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[ { "docid": "4642324", "title": "", "text": "would lose its right to a deficiency claim by virtue of section llll(b)(l)(A)(ii). It is, however, the clear intent of the draftsmen of the Code to protect the nonre-course secured creditor by permitting such creditor to have recourse against the debtor,' if the creditor is not permitted to bid in the amount of such creditor’s debt in connection with a sale of the creditor’s collateral. For this reason, property encumbered by a lien in favor of a nonrecourse secured creditor should not be sold at private sale or, if the property is not sold at auction, the secured creditor should be allowed to match any offer made by a prospective purchaser at private sale. Collier, supra, at 1111-23 to 24. Although there are no prior decisions directly on point, the case law on related questions also supports the conclusion that the sale exception to section 1111(b)(1)(A) applies only where lienholders may credit bid. In Matter of DRW Property Co., 57 B.R. 987 (Bankr.N.D.Tex.1986), the court held that the sale exception applies where the debtor abandons the collateral to the lienholder. In so concluding, the court reasoned that it is the lienholder’s opportunity to take the collateral that is the key to the sale exception. The ability of the non-recourse lender to purchase its collateral at a sale, with a credit offset allowed for any bid up to the full amount of its debt, insures that the lender is protected. If the property is being sold for less than the outstanding indebtedness and the lender feels this price is too low or if it feels future appreciation will be meaningful, it may bid the full amount of its debt at the sale and take title to the property. With this protection, the non-recourse secured lender does not need and therefore is not given the statutory protection of § 1111(b). The draftsmen of the Code clearly intended to protect the non-recourse un-dersecured creditor in Chapter 11 reorganizations only if the creditor is not permitted to purchase the collateral at a sale or if the debtor intends to retain the collateral after bankruptcy" } ]

[ { "docid": "18734684", "title": "", "text": "section to preclude recurrence of the result perceived harsh to the secured creditors involved in Great National Life Ins. Co. v. Pine Gate Associates, Ltd., 2 B.C.D. 1478 (Bankr.N.D.Ga.1976). Pine Gate was decided under Chapter XII of the former Bankruptcy Act. The debtor in that case was a limited partnership whose sole asset was an apartment project, which was financed on a non-recourse basis. The debtor proposed a plan that limited the lenders’ secured claims to the appraised value of the property, which was less than the outstanding indebtedness. The plan did not provide these lenders with an unsecured deficiency claim and, therefore, the lenders could not participate or vote in the class of unsecured creditors. At the confirmation hearing, the lenders argued that the benefit of the bargain they negotiated for in providing non-recourse financing was either full payment or the right to foreclose on the property. They stated that their rights would not be adequately protected unless they were paid in full or allowed to foreclose. The bankruptcy court rejected the lenders’ arguments and held that the proposed treatment of the secured claims, through a cash payments equal to the property’s appraised value, was sufficient. Following Pine Gate, a debtor whose property had declined in value could cram down a plan on a lender who was undersecured and pay that lender only the appraised value of the property. Tampa Bay, supra, 864 F.2d at 50; and In re DRW Property Co. 82, 57 B.R. 987, 990 (Bankr.N.D.Tex.1986). Thus, the debtor could retain all of the property’s future appreciation for itself. Id. Further, the lender did not receive the benefit of its bargain, i.e., the lender did not receive full payment of its debt or possession of the property. DRW, supra, 57 B.R. at 990. Congress enacted § 1111(b) in response to the situation presented in Pine Gate. This section was intended to enable a debtor to retain encumbered property that is essential to its reorganization and preserve the unsecured non-recourse creditor’s benefit of the bargain. Tampa Bay, supra, 864 F.2d at 50. Congress protected both parties’ interests by" }, { "docid": "3400994", "title": "", "text": "sale in that the creditor is permitted to bid in and purchase the property, which allows it to preserve the benefit of its origi- . nal bargain with the debtor, i.e., payment ran full of the debt or a return of the property. Id., at 992-93. The DRW court then quotes from a leading treatise, as follows: Although the language of section 1111(b) does not refer specifically to abandon-ments, if the property is not sold, but is abandoned or returned to the secured party, the nonrecourse deficiency claim should disappear. While section 1111 (b)(l)(A)(ii) converts a nonrecourse claim into a recourse claim unless the property is sold under section 363 or under the plan, the subparagraph does not mention abandonment. This may well constitute an omission rather than an expression of the intent of Congress. The effect of abandonment is the same as the effect of a sale under Section 363 or under the plan. 5 Collier on Bankruptcy, ¶ 1111.02 at 1111-24 (15th Ed.1979). In denying the objection of the creditor, the DRW court concludes as follows: The safeguards placed in the Code for non-recourse creditors were placed there to protect the creditor where the Debtor intends to keep the property for sale or use in the reorganization process. In other words, conversion of non-recourse claims to recourse claims is the “price” the debtor pays to use encumbered property in its reorganization over the objection of the secured creditor. If the property is voluntarily or involuntarily returned to the secured creditor, the non-recourse secured creditor is no longer entitled to the preferred status. DRW, 57 B.R., at 993. In this case, debtor proposes to formally transfer the property to the creditor. Thus, the creditor will not be required to initiate and pursue foreclosure proceedings, as would have been required of the creditor in DRW, in order to obtain title to its property. Travelers contends that if this court adopts the DRW result in this case, it would in effect be reversing its own order, entered in this case. It is true that this court, in In re Western Real" }, { "docid": "13371872", "title": "", "text": "able to challenge the appraisal process. Such a creditor would have lost its contractual state law right to bid on the collateral at a foreclosure sale or renegotiate the loan to allow the debtor to retain the collateral. Practically, section 1111(b) provides the undersecured nonrecourse creditor with “the benefit it would otherwise obtain from its nonrecourse loan bargain.” In re 680 Fifth Ave. Assoc., 29 F.3d at 97; see also Tampa Bay Assoc., Ltd. v. DRW Worthington, Ltd. (In re Tampa Bay Assoc., Ltd.), 864 F.2d 47, 50 (5th Cir.1989). If the debtor elects to sell the collateral in the Chapter 11 proceeding, the creditor can bid on it. If the debtor elects to continue using the collateral, section 1111(b) ensures that the creditor has the ability to vote on the debtor’s plan. Section llll(b)’s language and purpose indicate that the recourse transformation is for distribution purposes only. It does not change the nature or terms of a creditor’s security interest. In re DRW Property Co., 57 B.R. 987, 992 (Bankr.N.D.Tex. 1986) (“The transformation of non-recourse claims into recourse claims is for distribution purposes only in a Chapter 11 reorganization case where the debtor has been given the power to retain encumbered property (over the objection of the secured creditor) for use in its plan of reorganization.”). Dika-Ward’s argument overlooks the mechanics of the claims allowance process and, if accepted, would have the practical result of placing the nonrecourse creditor in a better position than it would have been outside of bankruptcy, a result not contemplated by Section 1111(b). In re DRW, 57 B.R. at 992 (“ ‘It was obviously not intended by according recourse ... to nonrecourse claims [under section 1111(b) ] that the holders of these claims would be given any additional rights under state law.’ ”) (quoting 3 Norton Bankr. L. & Prac. § 57.02). Because we conclude that section llll(b)’s transformation is for distribution purposes only, we conclude that, following Ward I, the Mortgage remained nonrecourse. Dika-Ward, as holder of that nonrecourse Mortgage, can look only to the property secured by the Mortgage. III. CONCLUSION We" }, { "docid": "18734686", "title": "", "text": "providing undersecured creditors with an opportunity to elect to have their liens treated as recourse claims if the debtor retained the property. Id. Section 1111(b) represents an attempt by Congress to create a balance between the debtor’s need for protection and a creditor’s right to receive equitable treatment. On the one hand, section 1111(b), taken in conjunction with sections 1124 and 1129, gives the debtor the power to retain encumbered property essential to the debt- or’s reorganization and to obtain confirmation of its plan in the face of opposition by a class of creditors whose claims are secured by such property. This preserves the debtor’s ability to reorganize. On the other hand, sections 1111(b), 1124 and 1129 permit the secured lender to protect itself so as to insure reasonable treatment under a plan. Thus, section 1111(b) protects the legitimate expectation of the secured lender that the bankruptcy laws will be used only as a shield to protect debtors and not as a sword to enrich debtors at the expense of secured creditors. 5 COLLIER ON BANKRUPTCY, § 1111.02, at 1111-18 (15th ed. 1993). Section llll(b)(l)(A)(ii) further explicitly provides that a non-recourse creditor whose secured property is sold pursuant to 11 U.S.C. § 363 or a plan of reorganization is not entitled to the special protection afforded by § 1111(b), i.e., such creditors are not entitled to an unsecured deficiency claim. Thus, § 1111(b) only protects non-recourse un-dersecured creditors (1) that are not permitted to purchase the collateral at a sale; or (2) if the debtor intends to retain the property after bankruptcy and not repay the debt in full. Tampa Bay, supra, 864 F.2d at 50. It is clear that an undersecured non-recourse creditor is deprived of its § 1111(b) deficiency claim when there is a sale of the property. 11 U.S.C. § 1111 (b) (1)(A) (ii). Lincoln responds to this argument by claiming that the instant case does not involve a sale of the Property, but instead involves a transfer. Thus, we must determine whether Lincoln, a non-recourse creditor, is deprived of its § 1111(b) deficiency claim when the" }, { "docid": "3400991", "title": "", "text": "holds that the property sought to be transferred by debtors here is the indubitable equivalent of itself, and that as to Travelers’ secured claim only, the proposed transfer would satisfy the indubitable equivalent requirement of § 1129(b)(2) (A)(iii). II. THE UNSECURED CLAIM In its original objection, Travelers asserted that debtors had simply ignored its unsecured claim in proposing the Plan Amendment, and that to do so violated the requirements of § 1123(a)(4), that claimants within a single class be given equal treatment, and the requirement of § 1129(b)(1), that the plan not discriminate unfairly. In response, debtors asserted that Travelers was not entitled to more than its property in satisfaction of its claim, because it had no unsecured claim. For this proposition, debtors rely on § 1111(b)(1)(A) , and on Matter of DRW Property Co., 57 B.R. 987 (Bankr.N.D.Tex.1986). Under § 1111(b)(1)(A), claims secured by liens on property of the estate, whether recourse or non-recourse, are treated as though they were recourse claims, unless an election is made under § 1111(b)(2) or, if the claim is in fact non-recourse, the property is sold under § 363 or is to be sold under the plan. If the § 1111(b)(2) election is made, the creditor's claim is a secured claim to the full extent the claim is allowed, including the secured and unsecured components thereof. The purpose of § 1111(b) was to restore to the non-recourse secured creditor the benefit of his bargain, and to cure the harsh result of the holding in Great National Life Insurance Co. v. Pine Gate Associates, Ltd., 2 B.C.D. 1478 (Bankr.N.D.Ga.1976), under which the debtor in a de pressed real estate market was permitted to “cash out” its non-recourse secured creditor by paying only the then value of the property securing the debt, thus preserving to itself all potential future appreciation in the value of the property. The creditor, holding only a non-recourse claim, was left without an unsecured, deficiency claim. In Matter of DRW Property Co., supra, a non-recourse, undersecured creditor contended, as does Travelers here, that it could retain and assert an unsecured deficiency" }, { "docid": "3897347", "title": "", "text": "claim had recourse against the debtor on account of such claim, whether or not such holder has such recourse, unless (i) The class of which such claim is a part elects ... application of paragraph (2) of this subsection.... (2) If such an election is made, then notwithstanding section 506(a) of this title, such claim is a secured claim to the extent that such claim is allowed. Section 1111(b)(1)(A) treats a claim secured by a lien on property as recourse regardless of whether the underlying transaction or applicable law provides for recourse. A nonrecourse creditor is a creditor who has agreed to look only to its collateral for satisfaction of its debt and does not have any right to seek payment of any deficiency from a debtor’s other assets. See, In re Dan Hixson Chevrolet Co., 20 B.R. 108, 110-111 (Bankr.N.D.Tex.1982) (nonrecourse means that the lienor may look only to the property subject to his lien to satisfy his debt and cannot look to the debtor personally for payment.) A recourse creditor has the right to seek payment of a deficiency in the value of its collateral from the debtor’s other assets. C. Averch and M. Collins, Norton Bankruptcy Law Advisor, May 1993, 3, citing, Nelson and Whitman, Real Estate Finance Law § 2.1, 18-19 (2d ed. 1985). The following illustration explains the effect of § 1111(b)(1)(A). If a nonre-course lender advances $1 million secured by collateral worth $100,000, at confirmation, the nonrecourse lender gets its secured claim for $100,000 and a bonus—an unsecured claim for $900,000. This bonus is subject to two exceptions. First, if the plan of reorganization provides that collateral is to be sold, the undersecured creditor does not get recourse because the nonre-course lender may, under 11 U.S.C. § 363(k), bid in the undersecured portion of its claim when the collateral is sold. A similar result occurs if the debtor in possession abandons the property to the creditor, or if the property is sold under the plan of reorganization. Second, under § 1111(b)(2), the undersecured creditor may elect to have its claim treated as fully secured," }, { "docid": "5977407", "title": "", "text": "parties was never clearly determined. Because of this the Court questioned whether the transfer to ARC was truly a “sale.” However because the Court felt that it would be more efficient to look at other issues first, the question of the relationship between buyer and seller was delayed and has not been determined at this time. SECTION 1111(b) ELECTION KK wished to make an election under 11 U.S.C. § 1111(b) to treat its non-recourse obligation as fully secured. Because of this the debtor structured the plan as a “sale” and requested that the Court determine that KK was denied its right to elect because the property was being sold under the plan. The Court struggled with the language of Section 1111(b)(1)(B)(ii) which apparently differentiates between the rights of a non-recourse creditor and of a recourse creditor when the property is to be sold under the plan. Despite the apparent confusion in language, the legislative history makes it clear that if the property is being sold under a Chapter 11 plan, a non-recourse creditor will have its claim reduced to the allowed secured claim as provided by Section 506(a), will lose its unsecured claim, and can be left unimpaired if its allowed secured claim is paid in full on the effective date of the plan. In re DRW Property Co. 82 (Bankr.N.D.Tex. 1986), 57 B.R. 987. Therefore if this is truly a sale of the property under the plan, KK loses its right to elect under § 1111(b) and also loses any unsecured claim for the deficiency and cannot vote in the unsecured class. VALUE OF THE PROPERTY A key issue that must be determined is the value of the property. The debtor seeks to hold the creditor to the $3,000,000 value that it put forth in the action for relief from stay. The creditor has now come in with a higher appraisal. A debtor may not argue that because the creditor has undervalued the security in a relief from stay proceeding, the creditor can be compelled to subordinate its claim to inferior obligations of the debtor. 11 U.S.C. § 506(a);" }, { "docid": "18734687", "title": "", "text": "BANKRUPTCY, § 1111.02, at 1111-18 (15th ed. 1993). Section llll(b)(l)(A)(ii) further explicitly provides that a non-recourse creditor whose secured property is sold pursuant to 11 U.S.C. § 363 or a plan of reorganization is not entitled to the special protection afforded by § 1111(b), i.e., such creditors are not entitled to an unsecured deficiency claim. Thus, § 1111(b) only protects non-recourse un-dersecured creditors (1) that are not permitted to purchase the collateral at a sale; or (2) if the debtor intends to retain the property after bankruptcy and not repay the debt in full. Tampa Bay, supra, 864 F.2d at 50. It is clear that an undersecured non-recourse creditor is deprived of its § 1111(b) deficiency claim when there is a sale of the property. 11 U.S.C. § 1111 (b) (1)(A) (ii). Lincoln responds to this argument by claiming that the instant case does not involve a sale of the Property, but instead involves a transfer. Thus, we must determine whether Lincoln, a non-recourse creditor, is deprived of its § 1111(b) deficiency claim when the property securing its claim is transferred rather than sold pursuant to a plan. Cf. DRW, supra, 57 B.R. at 993 (Congress’ failure to include abandonments, foreclosures, and transfers of property in the exception to 1111(b) appears to be an unintentional omission rather than an expression of Congressional intent). The Tampa Bay court also addressed the issue of whether an undersecured, non-recourse creditor that foreclosed on the property securing its claim was entitled tó an unsecured deficiency claim under § 1111(b). The court reasoned that [foreclosure is similar to a section 363 sale in that the creditor in each instance is allowed the opportunity to preserve the benefit of its bargain with the debtor by purchasing its collateral at a salé.... With this protection, the nonrecourse secured lender does not need the statutory protection of section 1111(b). 864 F.2d at 50. Since the occurrence of a foreclosure was held to enable the creditor to receive the benefit of its bargain, the court held that creditor was not entitled to a deficiency claim under § 1111(b). Other" }, { "docid": "18734689", "title": "", "text": "courts addressing the same or similar issues have reached the same result. See In re 680 Fifth Avenue Associates, 156 B.R. 726, 730 (Bankr.E.D.N.Y.1993); In re Mesa Business Park Partnership, 127 B.R. 144, 148-49 (Bankr.W.D.Tex.1991); In re National Real Estate Limited Partnership-II, 104 B.R. 968, 973-75 (Bankr.E.D.Wis.1989) (a non-recourse creditor that foreclosed on a property securing its claim was not entitled to a deficiency claim under § 1111(b)); and DRW, supra, 57 B.R. at 991 (if a property securing a claim is abandoned or foreclosed during Chapter 11 case, a non-recourse creditor is not entitled to deficiency claim). Faced with the same issue involved in this case, the court in In re Western Real Estate Fund, Inc., 109 B.R. 455, 464-66 (Bankr.W.D.Okl.1990), held that a transfer of property under the plan before the court deprived the non-recourse creditor of a § 1111(b) unsecured deficiency claim. In the instant case, the transfer of Property to Lincoln provides Lincoln with the benefit of its bargain. That is, when becoming a non-recourse creditor, Lincoln agreed to accept the Property or payment in full. Like the creditors in the cases cited above, since Lincoln is getting the Property, it is not entitled to an unsecured deficiency claim under § 1111(b) in addition. Thus, Lincoln’s Plan improperly provides it with an unsecured claim and, therefore, it cannot vote in Class 5. Its plan allowing it to do so cannot be confirmed. b. VALUATION OF LINCOLN’S SECURED CLAIM We have already pointed out, in our discussion of Lincoln’s Objections to the Debtor’s Plan, at pages 767-68 supra, that Lincoln improperly valued its own secured claim at $6,600,000, because it failed to deduct therefrom pre-petition tax liens against the Property totalling about $207,720. The increase in value from the U.S. Healthcare lease is unlikely to offset this over-valuing of its secured claim. Therefore Lincoln’s Plan also cannot be confirmed because Lincoln’s claim is over-valued in the Plan. 4. THE REMAINDER OF THE DEBTOR’S OBJECTIONS TO LINCOLN’S PLAN LACK MERIT. a. IMPAIRMENT OF LINCOLN’S CLAIM The Debtor has raised numerous other objections to Lincoln’s Plan, as noted at" }, { "docid": "23560064", "title": "", "text": "of the date of confirmation. The court must determine the value of the undersecured creditor’s collateral before determining the creditor’s allowed secured claim pursuant to § 506(a). In Opinion II, supra, 105 B.R. at 805, in response to an adversary proceeding filed by Wolk for the specific purpose of obtaining a § 506(a) determination, we ultimately valued Goldome’s secured claim at $4.2 million. Section 1111(b) deals with the rights of partially-secured, or undersecured, creditors in Chapter 11 cases. Under § 1111(b)(1)(A), recourse and non-recourse claims secured by liens on property of the estate are treated as though they were recourse claims, with the claimant having an unsecured claim to the extent of its deficiency claim. Such claims are accorded this special recourse treatment unless an election is made under § 1111(b)(2), or, as in the case of Goldome, the claim is non-recourse and the property is sold under § 363 of the Code or is to be sold under the Plan. See § HH(b)(l)(A)(ii). If the § 1111(b)(2) election is made, an allowed claim is a secured claim to the extent that the claim is allowed, notwitbr standing the value of the collateral as determined under § 506(a). See generally In the Matter of Tampa Bay Associates, Ltd., 864 F.2d 47 (5th Cir.1989); In re California Hancock, Inc., 88 B.R. 226 (Bankr. 9th Cir.1988); and In re Western Real Estate Fund, Inc., 75 B.R. 580 (Bankr.W.D.Okla.1987). The purpose of the § 1111(b)(2) election, “is to provide additional protection” to an undersecured creditor where its collateral is worth more than the value given to it pursuant to § 506(a) or that the treatment of unsecured creditors under the proposed plan is “so unattractive that the electing creditor is willing to waive his unsecured deficiency claim.” 5 COLLIER ON BANKRUPTCY, II 1111.02[5], at 1111-27 (15th ed. 1989) (hereinafter cited as “COLLIER”). The drafters’ Commentary is helpful in understanding § 1111(b) and, in pertinent part, provides as follows: Section 1111(b)(1) [contains] the general rule that a secured claim is to be treated as a recourse claim in chapter 11 whether or not the" }, { "docid": "18734685", "title": "", "text": "and held that the proposed treatment of the secured claims, through a cash payments equal to the property’s appraised value, was sufficient. Following Pine Gate, a debtor whose property had declined in value could cram down a plan on a lender who was undersecured and pay that lender only the appraised value of the property. Tampa Bay, supra, 864 F.2d at 50; and In re DRW Property Co. 82, 57 B.R. 987, 990 (Bankr.N.D.Tex.1986). Thus, the debtor could retain all of the property’s future appreciation for itself. Id. Further, the lender did not receive the benefit of its bargain, i.e., the lender did not receive full payment of its debt or possession of the property. DRW, supra, 57 B.R. at 990. Congress enacted § 1111(b) in response to the situation presented in Pine Gate. This section was intended to enable a debtor to retain encumbered property that is essential to its reorganization and preserve the unsecured non-recourse creditor’s benefit of the bargain. Tampa Bay, supra, 864 F.2d at 50. Congress protected both parties’ interests by providing undersecured creditors with an opportunity to elect to have their liens treated as recourse claims if the debtor retained the property. Id. Section 1111(b) represents an attempt by Congress to create a balance between the debtor’s need for protection and a creditor’s right to receive equitable treatment. On the one hand, section 1111(b), taken in conjunction with sections 1124 and 1129, gives the debtor the power to retain encumbered property essential to the debt- or’s reorganization and to obtain confirmation of its plan in the face of opposition by a class of creditors whose claims are secured by such property. This preserves the debtor’s ability to reorganize. On the other hand, sections 1111(b), 1124 and 1129 permit the secured lender to protect itself so as to insure reasonable treatment under a plan. Thus, section 1111(b) protects the legitimate expectation of the secured lender that the bankruptcy laws will be used only as a shield to protect debtors and not as a sword to enrich debtors at the expense of secured creditors. 5 COLLIER ON" }, { "docid": "14781005", "title": "", "text": "even where the lenders’ collateral had been abandoned or foreclosed during the penden-cy of the Chapter 11 bankruptcy proceeding. A disclosure statement hearing was held on January 15, 1986, and on February 21, 1986 the bankruptcy court in Matter of DRW Property Co. 82, 57 B.R. 987 (N-D. Tex.1986) overruled Treehouse’s objection. On March 4, 1986, the bankruptcy court confirmed the Debtor’s Third Amended Joint Plan of Reorganization, which provided for the payment of all allowed unsecured claims. Tampa Bay, the appellant in the case before us, had the misfortune to be an undersecured, nonrecourse creditor of one of the ninety-five Walker partnerships, DRW Worthington, Ltd., at the time it filed its petition in bankruptcy. The Debtor had had as its sole asset the Worthington Park I Apartments. On April 5, 1985, Tampa Bay filed a motion seeking relief from the automatic stay to permit it to foreclose its security interest in the apartment property. The stay was lifted and Tampa Bay subsequently foreclosed. On April 7, 1986, Tampa Bay filed a proof of claim seeking to recover the principal of $3,825,000, plus interest, from the Debtor. On August 26, 1986 the Debtor filed its objection to Tampa Bay’s claim on the basis that Tampa Bay’s claim had been fully satisfied by the return of its collateral during the bankruptcy proceeding. On October 8, 1986, after foreclosure and sale, Tampa Bay filed an amended proof of claim, seeking payment of its deficiency of $1,169,204.15. The bankruptcy court disallowed Tampa Bay’s deficiency claim in its entirety on January 27, 1988, on the grounds that a nonrecourse, undersecured creditor waives its right to recourse status under section 1111(b)(1)(A) by obtaining possession of its collateral pursuant to a motion for relief from stay or motion for abandonment. The court cited Matter of DRW. On appeal, the district court affirmed the bankruptcy court’s ruling. On appeal to this court, Tampa Bay argues that its foreclosure on the Worthing-ton apartments during the pendency of bankruptcy proceedings does not operate to waive its right to a recourse unsecured claim under section ■ 1111(b)(1)(A) of the Bankruptcy" }, { "docid": "13371871", "title": "", "text": "680 Fifth Ave. Assoc. v. Mut. Benefit Life Ins. Co. (In re 680 Fifth Ave. Assoc.), 29 F.3d 95, 97 (2d Cir.1994); Kenneth N. Klee, All You Ever Wanted to Know About Cram Down Under the New Bankruptcy Code, 53 Am. Bankr. L.J. 133, 161 (1979). This unsecured deficiency claim enables the undersecured nonrecourse creditor to vote on the debtor’s plan of reorganization. Absent the unsecured deficiency claim, the undersecured nonrecourse creditor would not be able to vote so long as it received the collateral’s appraised value. 11 U.S.C. § 1124(1) (a claim is unimpaired if the plan “leaves unaltered the legal, equitable, and contractual rights to which such claim or interest entitled the holder of such claim or interest”); 11 U.S.C. § 1126(f) (holders of unimpaired claims are “conclusively presumed to have accepted the plan”); see Michael J. Kaplan, Nonrecourse Undersecured Creditors Under New Chapter 11 — • the Section 1111(b) Election: Already a Need for Change, 53 Am. Bankr. L.J. 269, 270-71 (1979). Without a vote, the nonrecourse underseeured creditor would not be able to challenge the appraisal process. Such a creditor would have lost its contractual state law right to bid on the collateral at a foreclosure sale or renegotiate the loan to allow the debtor to retain the collateral. Practically, section 1111(b) provides the undersecured nonrecourse creditor with “the benefit it would otherwise obtain from its nonrecourse loan bargain.” In re 680 Fifth Ave. Assoc., 29 F.3d at 97; see also Tampa Bay Assoc., Ltd. v. DRW Worthington, Ltd. (In re Tampa Bay Assoc., Ltd.), 864 F.2d 47, 50 (5th Cir.1989). If the debtor elects to sell the collateral in the Chapter 11 proceeding, the creditor can bid on it. If the debtor elects to continue using the collateral, section 1111(b) ensures that the creditor has the ability to vote on the debtor’s plan. Section llll(b)’s language and purpose indicate that the recourse transformation is for distribution purposes only. It does not change the nature or terms of a creditor’s security interest. In re DRW Property Co., 57 B.R. 987, 992 (Bankr.N.D.Tex. 1986) (“The transformation of" }, { "docid": "13936729", "title": "", "text": "creditors are not of equal legal status with Code-created deficiency claims. They have an independent claim against the general partners which the deficiency claim does not enjoy, because Section 1111(b) does not confer a comparable right. The “recourse claim” is only good against the debtor’s estate in the 'Chapter 11 case. Section 1111(b) does not purport to create a claim cognizable under state partnership law against the partners. The transformation of nonrecourse claims into recourse claims is for distribution purposes only in a Chapter 11 reorganization cases where the debtor has been given the power to retain encumbered property (over the objection of the secured creditor) for use in its plan of reorganization.. “It was obviously not intended by according recourse [status] to non-recourse, claims that the holders of these claims would be given any additional rights under state law.” 3 Norton Bankr.L. & Prac. § 57.02 ... conversion of non-recourse claims to recourse claims is the “price” the debtor pays to use encumbered property in its reorganization over the objection of the secured creditor. If the property is voluntarily or involuntarily returned to the secured creditor, the non-recourse secured creditor is no longer entitled to this preferred status. Matter of DRW Property Co., 57 B.R. 987, 992, 993 (Bankr.N.D.Tex.1986). Indeed, the estate in Chapter 11 has no claim against the partners, at least not via bankruptcy law. See I-37 Gulf Ltd. Partnership, 48 B.R. 647, 649 (Bankr.S.D.Tex. 1985); see also 5 Collier on Bankruptcy H 1111.02[2], p. 1111-22 (15th ed. 1985). What is more, in a Chapter 7 case, while the estate has a claim against the partners, Phoenix’ Code-created deficiency claim is no longer part of the estate’s liabilities. 11 U.S.C. §§ 723, 1111(b). The legal “nature” of Phoenix’ deficiency claim is thus subtly different from that of the trade debt. In this plan, the debtor “directs” the trade to the general partners, who are anticipated to pay their claims in satisfaction of their liability under the Texas Uniform Partnership Act. The trade are thus being treated somewhat differently, in recognition of their unique legal rights against the" }, { "docid": "14781004", "title": "", "text": "payment at their foreclosure sales, and asserted “deficiency claims” against their debtors for the shortfall. Many of the secured creditors who claimed a deficiency, however, had lent money to their debtors on a nonrecourse basis. Thus by the terms of their mortgage documents they had agreed to look solely to the real property mortgaged as collateral for repayment in the event of default, and waived the right to proceed against the makers of the notes under personal or corporate liability for any deficiency. On March 29, 1985, the bankruptcy court entered an order procedurally consolidating the partnerships in accordance with Bankruptcy Rule 1015(b). On November 26, 1985, after the consolidation, the ninety-five partnerships filed a single Proposed Joint Disclosure Statement and Plan of Reorganization. One creditor, Treehouse Associates Limited Partners (“Treehouse”) specifically objected to the disclosure statement on the grounds that it improperly denied unsecured deficiency claims to the undersecured nonrecourse creditors of the debtors because section 1111(b) of the Bankruptcy Code operated to transform those creditors’ nonrecourse claims into recourse claims against the debtors, even where the lenders’ collateral had been abandoned or foreclosed during the penden-cy of the Chapter 11 bankruptcy proceeding. A disclosure statement hearing was held on January 15, 1986, and on February 21, 1986 the bankruptcy court in Matter of DRW Property Co. 82, 57 B.R. 987 (N-D. Tex.1986) overruled Treehouse’s objection. On March 4, 1986, the bankruptcy court confirmed the Debtor’s Third Amended Joint Plan of Reorganization, which provided for the payment of all allowed unsecured claims. Tampa Bay, the appellant in the case before us, had the misfortune to be an undersecured, nonrecourse creditor of one of the ninety-five Walker partnerships, DRW Worthington, Ltd., at the time it filed its petition in bankruptcy. The Debtor had had as its sole asset the Worthington Park I Apartments. On April 5, 1985, Tampa Bay filed a motion seeking relief from the automatic stay to permit it to foreclose its security interest in the apartment property. The stay was lifted and Tampa Bay subsequently foreclosed. On April 7, 1986, Tampa Bay filed a proof of claim" }, { "docid": "3400992", "title": "", "text": "is in fact non-recourse, the property is sold under § 363 or is to be sold under the plan. If the § 1111(b)(2) election is made, the creditor's claim is a secured claim to the full extent the claim is allowed, including the secured and unsecured components thereof. The purpose of § 1111(b) was to restore to the non-recourse secured creditor the benefit of his bargain, and to cure the harsh result of the holding in Great National Life Insurance Co. v. Pine Gate Associates, Ltd., 2 B.C.D. 1478 (Bankr.N.D.Ga.1976), under which the debtor in a de pressed real estate market was permitted to “cash out” its non-recourse secured creditor by paying only the then value of the property securing the debt, thus preserving to itself all potential future appreciation in the value of the property. The creditor, holding only a non-recourse claim, was left without an unsecured, deficiency claim. In Matter of DRW Property Co., supra, a non-recourse, undersecured creditor contended, as does Travelers here, that it could retain and assert an unsecured deficiency claim against the debtor even though the collateral for its debt was abandoned or foreclosed upon during the pend-ency of the Chapter 11 proceeding. The issue arose in the context of an objection to debtor’s disclosure statement regarding a proposed plan which would abandon, and therefore permit foreclosure of certain properties, and would deny the non-recourse, undersecured creditor any unsecured claim. After an exhaustive discussion of the history and purpose of § 1111(b), the court notes that the ability of the creditor, possessed under § 363(k), to purchase its collateral at a sale, with a credit offset allowed for any bid up to the full amount of its debt, protects the interests of the creditor. With this protection, the creditor does not need, and is not given, the further protection of recourse status under § 1111(b). Id., at 989-92. After stating that a foreclosure sale is clearly not a section 363 sale as referred to in § llll(b)(l)(A)(ii), as debtor contended, the DRW court concedes that abandonment and foreclosure are nevertheless similar to such a" }, { "docid": "18553767", "title": "", "text": "$12,200,000, leaving FSA with a under-secured nonrecourse deficiency claim for approximately $4,754,983. T-H NOLP’s plan proposed to deal with FSA’s claim under 11 U.S.C. § llll(b)(l)(A)(ii), which provides in pertinent part: (A) A claim secured by a lien on property of the estate shall be allowed or disallowed under section 502 of this title the same as if the holder of such claim had recourse against the debtor on account of such claim, whether or not such holder has such recourse, unless— ... (ii) such holder does not have such recourse and such property is sold under section 363 of this title or is to be sold under the plan. 11 U.S.C. § llll(b)(l)(A)(i). Section 1111(b)(1)(A) effectively provides under-secured nonrecourse creditors, such as FSA, an opportunity to elect to have their claims treated as recourse claims if their debtors retain the secured property. In re Tampa Bay Associates, Ltd., 864 F.2d 47, 50 (5th Cir.1989). Under subsection (ii), however, a nonrecourse deficiency claim is not treated as a recourse obligation when there is a sale of the collateral at which a creditor may credit bid up to the full amount of its claim. Id. However, subsection (ii) may only be utilized when a creditor is entitled to credit bid up to the full amount of its claim, not just the amount of its secured claim. Id.; In re National Real Estate Ltd. Partnership II, 104 B.R. 968, 974 (Bankr.E.D.Wis.1989). FSA’s claim against T-H NOLP is a non-recourse claim; FSA’s recourse on its claim is limited solely to the collateral for the debt — the hotel. The bankruptcy court decided that T-H NOLP’s plan did not provide for the treatment of FSA’s entire debt because it did not address FSA’s nonrecourse deficiency claim of $4,754,983; therefore it held that application of subsection (ii) was improper. Accordingly, the bankruptcy court held that the plan was unconfirmable, in that no reasonable prospect for a successful reorganization existed within a reasonable time, and lifted the automatic stay. We disagree with the bankruptcy court’s reading of the plan. Under the plan, T-H NOLP was to" }, { "docid": "14781006", "title": "", "text": "seeking to recover the principal of $3,825,000, plus interest, from the Debtor. On August 26, 1986 the Debtor filed its objection to Tampa Bay’s claim on the basis that Tampa Bay’s claim had been fully satisfied by the return of its collateral during the bankruptcy proceeding. On October 8, 1986, after foreclosure and sale, Tampa Bay filed an amended proof of claim, seeking payment of its deficiency of $1,169,204.15. The bankruptcy court disallowed Tampa Bay’s deficiency claim in its entirety on January 27, 1988, on the grounds that a nonrecourse, undersecured creditor waives its right to recourse status under section 1111(b)(1)(A) by obtaining possession of its collateral pursuant to a motion for relief from stay or motion for abandonment. The court cited Matter of DRW. On appeal, the district court affirmed the bankruptcy court’s ruling. On appeal to this court, Tampa Bay argues that its foreclosure on the Worthing-ton apartments during the pendency of bankruptcy proceedings does not operate to waive its right to a recourse unsecured claim under section ■ 1111(b)(1)(A) of the Bankruptcy Code. According to Tampa Bay, because section 1111(b) provides only two express exceptions to the recourse status afforded to otherwise nonrecourse creditors, and a foreclosure sale is not a stated exception, Tampa Bay is allowed a recourse unsecured claim against the Debt- or under section 1111(b). II Section 1111(b) reads in relevant part as follows: (1)(A) A claim secured by a lien on a property of the estate shall be allowed or disallowed under section 502 of this title [11 U.S.C. § 502] the same as if the holder of such claim had recourse against the debtor on account of such claim, whether or not such holder has such recourse, unless: (ii) such holder does not have such recourse and such property is sold under section 363 of this title [11 U.S.C. § 363] or is to be sold under the plan. (Emphasis added.) Section 1111(b) establishes the general rule, with exceptions, that a claim in a Chapter 11 case secured by a lien on property of the bankrupt estate is to be allowed against" }, { "docid": "18734688", "title": "", "text": "property securing its claim is transferred rather than sold pursuant to a plan. Cf. DRW, supra, 57 B.R. at 993 (Congress’ failure to include abandonments, foreclosures, and transfers of property in the exception to 1111(b) appears to be an unintentional omission rather than an expression of Congressional intent). The Tampa Bay court also addressed the issue of whether an undersecured, non-recourse creditor that foreclosed on the property securing its claim was entitled tó an unsecured deficiency claim under § 1111(b). The court reasoned that [foreclosure is similar to a section 363 sale in that the creditor in each instance is allowed the opportunity to preserve the benefit of its bargain with the debtor by purchasing its collateral at a salé.... With this protection, the nonrecourse secured lender does not need the statutory protection of section 1111(b). 864 F.2d at 50. Since the occurrence of a foreclosure was held to enable the creditor to receive the benefit of its bargain, the court held that creditor was not entitled to a deficiency claim under § 1111(b). Other courts addressing the same or similar issues have reached the same result. See In re 680 Fifth Avenue Associates, 156 B.R. 726, 730 (Bankr.E.D.N.Y.1993); In re Mesa Business Park Partnership, 127 B.R. 144, 148-49 (Bankr.W.D.Tex.1991); In re National Real Estate Limited Partnership-II, 104 B.R. 968, 973-75 (Bankr.E.D.Wis.1989) (a non-recourse creditor that foreclosed on a property securing its claim was not entitled to a deficiency claim under § 1111(b)); and DRW, supra, 57 B.R. at 991 (if a property securing a claim is abandoned or foreclosed during Chapter 11 case, a non-recourse creditor is not entitled to deficiency claim). Faced with the same issue involved in this case, the court in In re Western Real Estate Fund, Inc., 109 B.R. 455, 464-66 (Bankr.W.D.Okl.1990), held that a transfer of property under the plan before the court deprived the non-recourse creditor of a § 1111(b) unsecured deficiency claim. In the instant case, the transfer of Property to Lincoln provides Lincoln with the benefit of its bargain. That is, when becoming a non-recourse creditor, Lincoln agreed to accept the" }, { "docid": "21558005", "title": "", "text": "rule that a claim secured by a lien on property of the estate is to be treated as giving the lienholder recourse against the debtor, whether or not recourse exists under applicable non-bankruptcy law. See In re PCH Assocs., 949 F.2d 585, 604 (2d Cir.1991); In re DRW Property Co., 57 B.R. 987, 991 (Bankr.N.D.Tex.1986). The statute thereby puts the Chapter 11 debtor who wishes to retain collateral property in the same position as a person who purchased property “subject to” a mortgage lien would face in the nonbankruptey context. Outside of bankruptcy, if the owner wanted to retain the property after the mortgage went into default it would either have to work out a satisfactory resolution of the mortgage with the lender or bid on the property at a public foreclosure sale. Section 1111(b) puts Chapter 11 debtors to the same choice of either paying off the debt or forfeiting the property, and thereby allows the debtor to retain the property and effectuate its reorganization, but without frustrating the lienholder’s rights. By giving the lienholder recourse against the debtor personally for the amount of any deficiency, § 1111(b) provides the lien-holder the benefit it would otherwise obtain from its nonrecourse loan bargain — i.e., either full payment (or at least a claim against the estate for the full amount of the debt and the ability to vote on the plan to the extent of its claim), or the right to foreclose and bid on the property at public auction. See In re Tampa Bay Assocs., Ltd., 864 F.2d 47, 49-50 (5th Cir.1989); In re DRW Property Co., 57 B.R. at 990-91; 5 Collier on Bankruptcy, supra, ¶1111.02[2], at 1111-31 to 1111-32. In this ease, the bankruptcy court concluded that MBLI was entitled to the election under § 1111(b) even though it is not in privity with the Debtors. The court reasoned that § 1111(b) applies to all hen claims against property of the estate, irrespective of whether there is contractual privity with respect to the debt giving rise to the hen: The plain meaning of § 1111(b) does not" } ]

[ { "docid": "17988994", "title": "", "text": "express warranty. Count Three alleges a breach of implied warranty of merchantability. Count Four alleges a breach of implied warranty of fitness for a particular purpose. Count Five alleges breach of implied covenant of good faith and fair dealing. Count Six alleges conversion of the $785,724 AIES received from Exxon, but failed to refund after the system failure. Count Seven alleges unjust enrichment. And Count Eight alleges deceptive business practices in violation of New York’s General Business Law. AIES filed a counterclaim alleging Exxon’s breach of contract, and moved to dismiss Counts Five, Six, and Eight of Exxon’s complaint. Exxon stipulated to a dismissal, without prejudice, of Counts Five and Six. Discussion New York law prohibits “[deceptive acts or practices in the conduct of any business, trade or commerce or in the furnishing of any service in this state.” N.Y. GEN. BUS. LAW § 349 (McKinney’s 2001). To state a cause of action under § 349, a plaintiff must allege (1) a deceptive consumer-oriented act or practice which is misleading in a material respect, and (2) injury resulting from such act. E.g. Andre Strishak & Assocs., P.C. v. Hewlett Packard Co., 300 A.D.2d 608, 752 N.Y.S.2d 400, 401 (2d Dep’t 2002). The New York courts have held that a threshold matter in § 349 cases is whether or not the act in question was consumer-oriented. In Oswego Laborers’ Local 214 Pension Fund v. Marine Midland Bank, 85 N.Y.2d 20, 623 N.Y.S.2d 529, 647 N.E.2d 741 (N.Y.1995), the New York Court of Appeals examined the legislative history of the statute, and concluded that, “[a]s shown by its language and background, section 349 is directed at wrongs against the consuming public.” Id. at 24-25, 623 N.Y.S.2d 529, 647 N.E.2d 741. Consumer-oriented conduct does not necessarily require repetition or a pattern of deceptive behavior, but to state a claim of consumer-oriented deception, a plaintiff must allege that the disputed acts or practices have a broader impact on consumers at large. Id. at 25, 623 N.Y.S.2d 529, 647 N.E.2d 741. The Court concluded that “[pjrivate contract disputes, unique to the parties, for example, would" } ]

[ { "docid": "14259866", "title": "", "text": "to those applied under the Lanham Act). Accordingly, the Court dismisses Fox’s common law unfair competition claim. H. Section 349 Fox’s claim that defendants engaged in deceptive business practices under New York law through their promotional activities is unavailing for related reasons. (Fox Amend. Compl. ¶¶ 67-69.) Section 349 “was designed to protect consumers from various forms of consumer fraud and deception.” Smith v. Triad Mfg. Group, Inc., 255 A.D.2d 962, 681 N.Y.S.2d 710, 712 (4th Dep’t 1998) (citation omitted). The section outlaws, inter alia, “[deceptive acts or practices in the conduct of any business, trade, or commerce or in the furnishing of any service in [New York].” Section 349(a). In order to establish a violation of Section 349, a plaintiff must’ prove that: (i) the conduct of the defendant is consumer-oriented; (ii) the defendant is engaging in an act or practice that is deceptive or misleading in a material way; and (iii) the plaintiff has been injured by reason thereof. Oswego Laborers’ Local 214 Pension Fund v. Marine Midland Bank, 85 N.Y.2d 20, 25, 623 N.Y.S.2d 529, 647 N.E.2d 741 (1995). The New York Court of Appeals has defined a “deceptive act or practice” as a representation or omission “likely to mislead a reasonable consumer acting reasonably under the circumstances.” Id. at 26, 623 N.Y.S.2d 529, 647 N.E.2d 741. In order to show conduct that is consumer oriented, a plaintiff must plead and prove injury to the public generally, rather than to itself alone. Int’l Sport Divers Ass’n, Inc. v. Marine Midland Bank, N.A., 25 F.Supp.2d 101, 114 (W.D.N.Y.1998) (citation omitted). “The conduct need not be repetitive or recurring, but the defendant’s acts or practices must have a broad impact on consumers at large.” Id. “[T]he gravamen of the Complaint must be consumer injury or harm to the public interest.” Something Old, Something New, Inc. v. QVC, Inc., No. 98 Civ. 7450, 1999 WL 1125063, at *11 (S.D.N.Y. Dec. 8, 1999) (quoting Securitron Magnalock Corp. v. Schnabolk, 65 F.3d 256, 264 (2d Cir.1995)). In this case, Fox’s claim must fail because it does not allege, nor does the record" }, { "docid": "7835752", "title": "", "text": "cases. C. The City’s GBL § 349 Claims: Nexicon, Smokes-Spirits, and EZ-Tobacco The District Court dismissed the City’s GBL § 349 claims in the three cases where it was raised. For the reasons below, we affirm the district court’s holding in the Smokes-Spirits case, and reserve judgment in the Nexicon and EZTobacco cases pending certification of a question regarding standing to the New York Court of Appeals. GBL § 349(a) declares that “[deceptive acts or practices in the conduct of any business, trade or commerce or in the furnishing of any service in” New York are unlawful. N.Y. Gen. Bus. § 349(a). The statute provides a private right of action. Id. at § 349(h); see Blue Cross & Blue Shield of N.J., Inc. v. Philip Morris U.S.A. Inc., 3 N.Y.3d 200, 205, 785 N.Y.S.2d 399, 818 N.E.2d 1140, 1143 (N.Y. 2004). “To make out a prima facie case under Section 349, a plaintiff must demonstrate that (1) the defendant’s deceptive acts were directed at consumers, (2) the acts are misleading in a material way, and (3) the plaintiff has been injured as a result.” Maurizio v. Goldsmith, 230 F.3d 518, 521 (2d Cir.2000) (per curiam) (citing Oswego Laborers’ Local 214 Pension Fund v. Marine Midland Bank, 85 N.Y.2d 20, 25, 623 N.Y.S.2d 529, 647 N.E.2d 741, 744 (N.Y.1995)). “[A]n action under § 349 is not subject to the pleading-with-partieularity requirements of Rule 9(b), Fed.R.Civ. P., but need only meet the bare-bones notice-pleading requirements of Rule 8(a).... ” Pelman ex rel. Pelman v. McDonald’s Corp., 396 F.3d 508, 511 (2d Cir.2005). We have explained that “the gravamen” of a GBL § 349 claim is “consumer injury or harm to the public interest.” Securitron Magnalock Corp. v. Schnabolk, 65 F.3d 256, 264 (2d Cir.1995) (internal quotation marks omitted), cert. denied, 516 U.S. 1114, 116 S.Ct. 916, 133 L.Ed.2d 846 (1996). Thus, in Securitron, we found that a plaintiff could sue its competitor under GBL § 349 as it had alleged injury to the public interest. See id. The City’s allegations in Smokes-Spirits are that defendants intentionally failed to inform their customers that" }, { "docid": "4021527", "title": "", "text": "law are governed largely by the same standard as their Lanham Act counterparts, they require a showing of bad faith or intent. See Genesee Brewing Co., Inc. v. Stroh Brewing Co., 124 F.3d 137, 149 (2d Cir.1997). As previously discussed, Defendants’ alleged bad faith is a matter for the jury. See also Philip Morris, 2004 WL 1375277, at *6 (citing Centaur Commc’ns, Ltd. v. A/S/M Commc’ns, Ins., 830 F.2d 1217, 1227 (2d Cir.1987) (“[Ajwareness [that a mark is in use] can give rise to an inference of bad faith.”)). Accordingly, Defendants’ motion for summary judgment with respect to its common law unfair competition claim is denied. C.Deceptive Acts and Practices Plaintiffs also assert deceptive acts and practices in violation of New York General Business Law Section 349. To state a claim under this section, Plaintiff must show that Defendants’ actions would materially mislead a reasonable consumer, and that Plaintiff was injured as a result of Defendants’ acts. See S.Q.K.F.C., Inc. v. Bell Atl. TriCon Leasing Corp., 84 F.3d 629, 636 (2d Cir.1996); Galerie Furstenberg v. Coffaro, 697 F.Supp. 1282, 1291 (S.D.N.Y.1988). “[C]orporate competitors ... have standing to bring a claim under [section 349] so long as some harm to the public at large is at issue.” Securitron Magnalock Corp. v. Schnabolk, 65 F.3d 256, 264 (2d Cir.1995) (internal quotation marks omitted). “The critical question ... is whether the matter affects the public interest in New York....” Securitron Magnalock Corp., 65 F.3d at 264. Plaintiffs have presented no evidence concerning harm to the public at large. Accordingly, Defendants’ motion for summary judgment is granted with respect to Plaintiffs’ state deceptive acts and practices claim. III. Damages Defendants also move for summary judgment claiming that even if Plaintiffs could establish liability, they would not be entitled to damages. “In order to recover an accounting of an infringer’s profits, a plaintiff must prove that the infringer acted in bad faith.” Int’l Star Class Yacht Racing Ass’n v. Tommy Hilfiger, U.S.A., Inc., 80 F.3d 749, 753 (2d Cir.1996). “[I]n order for a Lanham Act plaintiff to receive an award of damages the plaintiff must" }, { "docid": "6274470", "title": "", "text": "however, for conspiring with any “John Doe” defendants whose identities are not yet known. B. Claim Pursuant to New York Business Law § 349 Plaintiffs allege that Sethi’s conduct violated Section 349 of New York General Business Law. In relevant part, the statute provides that: “[djeceptive acts or practices in the conduct of any business, trade or commerce or in the furnishing of any service in this state are hereby declared unlawful.” N.Y. Gen. Bus. Law § 349(a). “[A]ny person who has been injured by reason of any violation of this section may bring an action in his own name to enjoin such unlawful act or practice.” N.Y. Gen. Bus. Law § 349(h). In order to state a claim under Section 349, plaintiffs must allege that: 1) defendants engaged in conduct that is deceptive and misleading in a material way; 2) the deceptive conduct was “consumer-oriented,” and 3) plaintiffs have been injured “by reason of’ defendants’ conduct. In re MTBE Products Liab. Litig., 175 F.Supp.2d 593, 630 (S.D.N.Y.2001). In the case at bar, plaintiffs have sufficiently alleged that the defendants intended to deceive consumers and the general public into believing unauthorized infringing copies were authentic. The Court arrives at its conclusion in recognition of decisions wherein courts have found that “corporate competitors... have standing to bring a claim under this [statute]... so long as some harm to the public at large is at issue.” Securitron Magnalock Corp. v. Schnabolk, 65 F.3d 256, 264 (2d Cir.1995), cert. denied, 516 U.S. 1114, 116 S.Ct. 916, 133 L.Ed.2d 846 (1996); see Oswego Laborers’ Local 214 Pension Fund v. Marine Midland Bank, 85 N.Y.2d 20, 25, 623 N.Y.S.2d 529, 532, 647 N.E.2d 741 (1995). The critical concern is “whether the matter affects the public interest in New York, not whether the suit is brought by a consumer or a competitor.” Securitron Magnalock Corp. v. Schnabolk, 65 F.3d at 264; S.Q.K.F.C., Inc. v. Bell Atlantic Tricon Leasing Corp., 84 F.3d 629, 636 (2d Cir.1996); In re MTBE Products Liab. Litig., 175 F.Supp.2d at 631. In light of the foregoing, the Court sustains plaintiffs’ claim that" }, { "docid": "15757303", "title": "", "text": "Zuckerbrod v. New York Tel. Co., 87 A.D.2d 574, 447 N.Y.S.2d 742, 743 (2d Dep’t 1982). If a defendant engaged in fraud to conceal its conduct, the statute of limitations is two years from the date that plaintiffs had notice of a possible claim. See N.Y. C.P.L.R. 203(g) (West Supp. 1999). Defendants claim that plaintiffs’ claims are time-barred because suit was filed on June 4, 1996, more than three years after the Ericsson cutover. (Defs. Mem. at 36). Defendants again assert that even though plaintiffs claim that defendants fraudulently concealed problems with the cutover, plaintiffs were on notice in 1990 of a possible claim and that therefore the statute of limitations was not tolled. (Id.). For the reasons stated above, questions of fact exist as to whether plaintiff had notice of a possible claim prior to 1996 or whether the statute was tolled due to defendants’ conduct. (2) Sufficiency of the Claims (a)New York General Business Law Claim Section 349 of New York’s General Business Law, part of the state’s consumer protection statute, creates a private right of action for injuries to consumers resulting from deceptive trade practices. N.Y. Gen. Bus. Law § 349(h). To state a claim under the statute, the plaintiff must allege that the defendant’s deceptive practices were materially misleading and caused the plaintiffs injury. S.Q.K.F.C., Inc. v. Bell Atlantic Tricon Leasing Corp., 84 F.3d 629, 636 (2d Cir.1996) (citing Oswego Laborers’ Local 214 Pension Fund v. Marine Midland Bank, N.A., 85 N.Y.2d 20, 623 N.Y.S.2d 529, 532, 647 N.E.2d 741 (Ct.App.1995)). As the Second Circuit has noted, § 349 “was not intended to be a ‘sword to be wielded in business-versus-business disputes ... where the party asserting the claim is not acting in a consumer role.’ ” S.Q.K.F.C., 84 F.3d at 636 (quoting Richard E. Givens, Overall Scope of General Business Law §§ 849-350, Supplementary Practice Commentaries 166, 167 (McKinney Supp.1996)). A plaintiff must “demonstrate that the acts or practices have a broader impact on consumers at large.” S.Q.K.F.C., 84 F.3d at 636 (quoting Oswego, 623 N.Y.S.2d at 532, 647 N.E.2d 741); see Grand General Store," }, { "docid": "11799446", "title": "", "text": "that the Plaintiff has stated a valid claim under both the Lanham Act, 15 U.S.C. § 1125(c)(1), and under NYGBL § 360-l. D. As to the Plaintiff’s Claim for Deceptive Acts and Practices Lastly, the Plaintiff brings a claim for deceptive acts and practices under NYGBL § 349. NYGBL § 349(a) declares that “[deceptive acts or practices in the conduct of any business, trade, or commerce or in the furnishing of any service” in New York are unlawful. “To make out a prima facie case under Section 349, a plaintiff must demonstrate that (1) defendant’s deceptive acts were directed at consumers, (2) the acts are misleading in a material way, and (3) the plaintiff has been injured as a result.” Maurizio v. Goldsmith, 230 F.3d 518, 521 (2d Cir.2000) (per curiam) (citing Oswego Laborers’ Local 211 Pension Fund v. Marine Midland Bank, 85 N.Y.2d 20, 25, 623 N.Y.S.2d 529, 647 N.E.2d 741 (1995)). “[A]n action under § 349 is not subject to the pleading-with-particularity requirements of Rule 9(b), Fed.R.Civ.P., but need only meet the bare-bones notice-pleading requirements of Rule 8(a).... ” Pelman ex rel. Pelman v. McDonald’s Corp., 396 F.3d 508, 511 (2d Cir.2005). The purpose of NYGBL § 349 is to “ ‘empower customers,’ especially ‘the disadvantaged’ ” and to “even the playing field of their disputes with better funded and superiorly situated fraudulent businesses.” Watts v. Jackson Hewitt Tax Service Inc., 579 F.Supp.2d 334, 346 (E.D.N.Y.2008) (quoting Vitolo v. Mentor H/S, Inc., 426 F.Supp.2d 28, 33 (E.D.N.Y.2006)). However, “the prevailing view in the Second Circuit is that ‘trademark infringement claims are not cognizable under [NYGBL] § 349 unless there is specific and substantial injury to the public interest over and above the ordinary trademark infringement.’ ” Perfect Pearl Co., Inc. v. Majestic Pearl & Stone, Inc., 887 F.Supp.2d 519, 543 (S.D.N.Y.2012) (quoting MyPlayCity, Inc. v. Conduit Ltd., No. 10 Civ. 1615(CM), 2012 WL 1107648, at *15 (S.D.N.Y. Mar. 30, 2012)) (internal ellipse and brackets omitted). Indeed, “[i]t is well-established that trademark infringement actions alleging only general consumer confusion do not threaten the direct harm to consumers for purposes" }, { "docid": "2419335", "title": "", "text": "sufficiently to withstand a motion to dismiss. In sum, the Court grants the motions by Applewoods, Lasergate, ML Direct, Com/ Tech, Shalek, and the IADs, to dismiss the negligent misrepresentation claims but denies the same motion by the Sterling Foster Defendants. 9. The Section 349 Claims The following defendants move to dismiss the claims brought pursuant to Section 349 of the N.Y. Gen. Bus. L. on the ground that the section does not apply to investment transactions involving publicly traded securities: the Sterling Foster Defendants, the Shalek Defendants, Pace and Novich, the Bear Stearns Defendants, Harriton, Applewoods, and Lasergate. Section 349(a) prohibits “deceptive acts or practices in the conduct of any business, trade or commerce in the furnishing of any service in [the] state.” N.Y. Gen. Bus. L. § 349(a). The statute is a consumer protection device, see Securitron Magnalock Corp. v. Schnabolk, 65 F.3d 256, 264 (2d Cir.1995), that requires a finding of conduct that is “consumer oriented,” see S.Q.K.F.C., Inc. v. Bell Atlantic Tricon Leasing Corp., 84 F.3d 629, 636 (2d Cir.1996). Thus, a plaintiff must show that “the acts or practices have a broader impact on consumers at large.” Oswego Laborers’ Local 211 Pension Fund v. Marine Midland Bank, N.A., 85 N.Y.2d 20, 25, 623 N.Y.S.2d 529, 532, 647 N.E.2d 741 (1995). “Securities transactions are not explicitly exempted from Section 349, and the terms ‘consumer’ and ‘consumer-oriented’ are not defined by the statute.” Spirit Partners, L.P. v. audiohighway.com, 99 Civ. 9020 (RJW), 2000 WL 685022 *7 (May 25, 2000). Further, neither the Second Circuit nor the New York Court of Appeals has addressed the issue of whether securities transactions fall within the protections of Section 349. Nevertheless, the courts within this Circuit that have been presented with the issue have held that Section 349 does not apply to securities transactions. See Cyber Media Chvup, Inc. v. Island Mortgage Network, Inc., 183 F.Supp.2d 559, 581 (E.D.N.Y.2002) (relying on the decisions of other district courts within the Second Circuit to dismiss plaintiffs’ Section 349 claims on the ground that they were based on securities fraud); Spirit Partners, 2000 WL" }, { "docid": "14259865", "title": "", "text": "origin or false advertising “are not asserting rights equivalent to those protected by copyright and therefore do not encounter preemption,” Warner Bros., 720 F.2d at 246 (citing Nimmer §§ 1.01[B][1] n. 47, 2.12 n. 25 (1983)), this aspect of Fox’s unfair competition claim is precluded for the same reasons as Fox’s Lanham Act claim, namely, that Fox has accrued no goodwill in the X-Men film, logos, or the marks it was assigned under the 1993 Agreement that may have been misappropriated. Cf. Genesee Brewing Co. v. Stroh Brewing Co., 124 F.3d 137, 149 (2d Cir.1997) (“Under New York law, common law unfair competition claims closely resemble Lanham Act claims except insofar as the state law claim may require an additional element of bad faith or intent.”) (citation omitted); Revlon Consumer Prods. Corp. v. Jennifer Leather Broadway, Inc., 858 F.Supp. 1268, 1278 (S.D.N.Y.1994) (same); Avon Prods., Inc. v. S.C. Johnson & Son, Inc., 984 F.Supp. 768, 800 (S.D.N.Y.1997) (dismissing unfair competition claim and noting that the standards for a finding of unfair competition are substantially similar to those applied under the Lanham Act). Accordingly, the Court dismisses Fox’s common law unfair competition claim. H. Section 349 Fox’s claim that defendants engaged in deceptive business practices under New York law through their promotional activities is unavailing for related reasons. (Fox Amend. Compl. ¶¶ 67-69.) Section 349 “was designed to protect consumers from various forms of consumer fraud and deception.” Smith v. Triad Mfg. Group, Inc., 255 A.D.2d 962, 681 N.Y.S.2d 710, 712 (4th Dep’t 1998) (citation omitted). The section outlaws, inter alia, “[deceptive acts or practices in the conduct of any business, trade, or commerce or in the furnishing of any service in [New York].” Section 349(a). In order to establish a violation of Section 349, a plaintiff must’ prove that: (i) the conduct of the defendant is consumer-oriented; (ii) the defendant is engaging in an act or practice that is deceptive or misleading in a material way; and (iii) the plaintiff has been injured by reason thereof. Oswego Laborers’ Local 214 Pension Fund v. Marine Midland Bank, 85 N.Y.2d 20, 25," }, { "docid": "3000477", "title": "", "text": "this section ... to enjoin such unlawful act or practice, an action to recover his actual damages or fifty dollars, whichever is greater or both such actions.” Gucci’s motion to dismiss Defendants’ § 349 counterclaim argues that Defendants do not allege Gucci engaged in fraudulent activity that is consumer oriented or has a direct impact on consumers at large. Gucci further maintains that the gravamen of the Defendants’ first counterclaim is not consumer injury or harm to the public interest but, rather, harm to DFA’s business. Defendants respond that “Gucci’s false statements to consumers that their authentic Gucci handbags were counterfeit were misleading and dishonest in a material way. Moreover, [DFA] was injured by Gucci’s consumer-oriented fraudulent conduct.” (Memorandum of Law of Defendants Duty Free Apparel, Ltd. and Joel Soren In Opposition to Plaintiffs Motion to Dismiss Defendants’ Counterclaims dated April 26, 2002 (“Def.Mem.”) at 5.) The Court finds insufficient grounds for Defendants’ § 349 counterclaim. To establish a prima facie case for a claim of deceptive trade practices under N.Y. GBL § 349, a claimant must allege that: “(1) the defendant’s deceptive acts were directed at consumers, (2) the acts are misleading in a material way, and (3) the plaintiff has been injured as a result.” Maurizio v. Goldsmith, 230 F.3d 518, 521 (2d Cir.2000) (per curiam); see Capitol Records, Inc. v. Wings Digital Corp., 218 F.Supp.2d 280, 285-86 (S.D.N.Y.2002); Oswego Laborers’ Local 214 Pension Fund v. Marine Midland Bank, N.A., 85 N.Y.2d 20, 623 N.Y.S.2d 529, 647 N.E.2d 741, 744 (1995). “ ‘[C]or-porate competitors now have standing to bring a claim under this [statute] ... so long as some harm to the public at large is at issue ....’” Securitron Magnalock Corp. v. Schnabolk, 65 F.3d 256, 264 (2d Cir.1995) (quoting Bristol-Myers Squibb Co. v. McNeil-P.P.C., Inc., 786 F.Supp. 182, 215 (E.D.N.Y.), vacated in part on other grounds, 973 F.2d 1033, 1036 (2d Cir.1992)), cert. denied, 516 U.S. 1114, 116 S.Ct. 916, 133 L.Ed.2d 846 (1996). However, when a competitor raises a § 349 claim, “[i]t is clear that ‘the gravamen of the complaint must be consumer injury" }, { "docid": "5716529", "title": "", "text": "C. Deceptive Trade Practices Plaintiff also cannot maintain her claim for deceptive trade practices, under the applicable New York law, which prohibits “[deceptive acts or practices in the conduct of any business.” N.Y. Gen. Bus. L. § 349(a); see also id. § 349(h) (providing for private right of action under statute). Under Section 349(a), the phrase “deceptive acts or practices” is limited to actual misrepresentations (or omissions), made to consumers, in New York. Goshen v. Mut. Life Ins. Co., 98 N.Y.2d 314, 325, 746 N.Y.S.2d 858, 774 N.E.2d 1190 (2002) (citations omitted). “An act is deceptive ... only if it is likely to mislead a reasonable consumer.” Marcus v. AT & T Corp., 138 F.3d 46, 64 (2d Cir.1998) (citations omitted). As the purpose of Section 349 “is to protect the consumer public-at-large,” Siotkas v. LabOne, Inc., 594 F.Supp.2d 259, 277 (E.D.N.Y.2009) (citing Oswego Laborers’ Local 211 Pension Fund v. Marine Midland Bank, 85 N.Y.2d 20, 24-25, 623 N.Y.S.2d 529, 647 N.E.2d 741 (1995)), “[a]t the threshold, a plaintiff must [allege] that the § 349 claim implicates ‘consumer oriented’ conduct by the defendant,” Shapiro v. Berkshire Life Ins. Co., 212 F.3d 121, 126 (2d Cir.2000) (quoting Gaidon v. Guardian Life Ins. Co., 94 N.Y.2d 330, 344, 704 N.Y.S.2d 177, 725 N.E.2d 598 (1999)) (internal citation omitted). “Under New York law, a deceptive act or practice ‘that has a broader impact on consumers at large’ meets this threshold test, but a private contract dispute ... does not.” Id. (internal quotations omitted). Therefore, to make out a prima facie case under this law, a plaintiff must plead facts capable of establishing that “(1) the defendant’s deceptive acts were directed at consumers, (2) the acts are misleading in a material way, and (3) the plaintiff has been injured as a result.” Maurizio v. Goldsmith, 230 F.3d 518, 521 (2d Cir.2000) (citing Oswego Laborers, 85 N.Y.2d at 25, 623 N.Y.S.2d 529, 647 N.E.2d 741). Moreover, the plaintiff must also allege that the deceptive acts complained of took place within the State of New York. Goshen, 98 N.Y.2d at 325, 746 N.Y.S.2d 858, 774 N.E.2d" }, { "docid": "6274471", "title": "", "text": "sufficiently alleged that the defendants intended to deceive consumers and the general public into believing unauthorized infringing copies were authentic. The Court arrives at its conclusion in recognition of decisions wherein courts have found that “corporate competitors... have standing to bring a claim under this [statute]... so long as some harm to the public at large is at issue.” Securitron Magnalock Corp. v. Schnabolk, 65 F.3d 256, 264 (2d Cir.1995), cert. denied, 516 U.S. 1114, 116 S.Ct. 916, 133 L.Ed.2d 846 (1996); see Oswego Laborers’ Local 214 Pension Fund v. Marine Midland Bank, 85 N.Y.2d 20, 25, 623 N.Y.S.2d 529, 532, 647 N.E.2d 741 (1995). The critical concern is “whether the matter affects the public interest in New York, not whether the suit is brought by a consumer or a competitor.” Securitron Magnalock Corp. v. Schnabolk, 65 F.3d at 264; S.Q.K.F.C., Inc. v. Bell Atlantic Tricon Leasing Corp., 84 F.3d 629, 636 (2d Cir.1996); In re MTBE Products Liab. Litig., 175 F.Supp.2d at 631. In light of the foregoing, the Court sustains plaintiffs’ claim that Sethi violated Section 349 of New York General Business Law. C. Unfair Competition and Misappropriation Lastly, the Court turns to consider whether plaintiffs’ adequately state a claim for unfair competition and misappropriation. An unfair competition claim exists where a defendant appropriates the “skill, expenditures and labor” of a plaintiff to gain a commercial advantage. Roy Export Co. Establishment of Vaduz, Liechtenstein v. Columbia Broad. Sys., Inc., 672 F.2d 1095, 1105 (2d Cir.1982), cert. denied, 459 U.S. 826, 103 S.Ct. 60, 74 L.Ed.2d 63 (1982); see Noble v. Great Brands of Europe, Inc., 949 F.Supp. 183, 188 (S.D.N.Y. 1996) (stating unfair competition involves “the bad faith misappropriation of the labors and expenditures of another”). Here, the gravamen of the complaint is that defendants acted in bad faith by misappropriating copyrighted music for their own financial gain and in order to realize a commercial advantage over that of the rightful owners of such copyrights. Having found sufficient facts to support a claim for unfair competition and misappropriation, the Court sustains the claim. IV. CONCLUSION For the reasons" }, { "docid": "16674431", "title": "", "text": "on a claim of unfair competition it must demonstrate (1) actual or the likelihood of confusion and (2) bad faith. Trilini I, at *9 (citing W.W.W. Pharm. Co. v. Gillette Co., 984 F.2d 567, 576 (2d Cir.1993) (limited on other grounds by Deere & Co. v. MTD Prods., Inc., 41 F.3d 39 (2d Cir.1994)); Saratoga Vichy Spring Co. v. Lehman, 625 F.2d 1037, 1044 (2d Cir.1980)). “The first element mirrors the confusion element under both Sections 32 and 43 of the Lanham Act.” Trilini I, at *9. Because the likelihood of confusion elements pertaining to plaintiffs common law unfair competition and Lanham Act claims are the same, they also require a similar factual showing. Plaintiff has not met its burden in showing that defendants’ goods are not genuine, so it is not necessary to reach the issue of bad faith. Accordingly, defendants’ cross-motion with respect to plaintiffs common law unfair competition claim is granted. c. Plaintiffs claims under N.Y. Gen. Bus. Law § 349 Both parties cross-move for summary judgment on plaintiffs claim that defendants have violated N.Y. Gen. Bus. Law § 349. The statute proscribes “[d]e-ceptive acts or practices in the conduct of any business, trade or commerce.” N.Y. Gen. Bus. Law § 349. “To make out a prima facie case under Section 349, a plaintiff must demonstrate that (1) the defendant’s deceptive acts were directed at consumers, (2) the acts are misleading in a material way, and (3) the plaintiff has been injured as a result.” Maurizio v. Goldsmith, 230 F.3d 518, 521 (2d Cir.2000) (citing Oswego Laborers’ Local 214 Pension Fund v. Marine Midland Bank, 85 N.Y.2d 20, 25, 647 N.E.2d 741, 744, 623 N.Y.S.2d 529, 532 (1995)). A competitor may sue under Section 349, as long as “the gravamen of the complaint [is] consumer injury or harm to the public interest.” Securitron Magnalock Corp. v. Schnabolk, 65 F.3d 256, 264 (2d Cir.1995) (internal quotations and citations omitted). A number of courts have held that “ ‘trademark cases are outside the scope of this general consumer protection statute,’ ” reasoning that the public harm that results from" }, { "docid": "23303906", "title": "", "text": "Section 349 of New York’s General Business Law and the New York common law of unfair competition by disparagement. The district court denied these claims based on its conclusion that the plaintiffs had failed to carry their burden to show that the Paintings were authentic. While most of the state law claims were based on statements about the authenticity of the Paintings, some were not. The Le Devoir and ARTnews statements addressed the certificates that Mark had provided to the Boulés and the conversations between the Boulés and Khidekels about the Paintings. As the district court held that plaintiffs proved by a preponderance of the evidence the falsity of the statements in Le Devoir and ARTnews, Boule, 138 F.Supp.2d at 505, we remand for further proceedings to determine whether these false statements constitute a violation of Section 349 and the claim of unfair competition by disparagement. In addition, because Section 349 requires proof of a deceptive practice, and does not require proof that a statement is false, we remand for further proceedings on all of plaintiffs’ claims under Section 349. A few additional observations about these two causes of action may prove of assistance on remand. Section 349 prohibits “[deceptive acts or practices in the conduct of any business, trade or commerce.” N.Y. Gen. Bus. Law. § 349(a). To establish a claim under Section 349, the plaintiff must show “a materi al deceptive act or practice directed to consumers that caused actual harm.” Marcus v. AT & T Corp., 138 F.3d 46, 63 (2d Cir.1998); see also Ortho Pharm. Corp. v. Cosprophar, Inc., 32 F.3d 690, 697 (2d Cir.1994); Goshen v. Mutual Life Ins. Co. of N.Y., 98 N.Y.2d 314, 323-24, 746 N.Y.S.2d 858, 774 N.E.2d 1190 (2002). We have not yet decided whether false statements are likely to be deceptive. See Ortho Pharm., 32 F.3d at 697. “Deceptive acts” are defined objectively, as acts “likely to mislead a reasonable consumer acting reasonably under the circumstances.” Maurizio v. Goldsmith, 230 F.3d 518, 521 (2d Cir.2000). Further, a deceptive practice “need not reach the level of common-law fraud to be actionable" }, { "docid": "21343166", "title": "", "text": "for equitable tolling. Accordingly, the motion to dismiss the RDD plaintiffs’ § 349 claim as time-barred is granted. (ii) The defendants have moved to dismiss for failure to state a claim the § 349 claim by the NCS plaintiffs. Section 349 prohibits “[deceptive acts or practices in the conduct of any business, trade or commerce or in the furnishing of any service .... ” N.Y. Gen. Bus. L. § 349(a). To plead a prima facie claim under § 349, the plaintiffs must allege that: “(1) the defendant’s deceptive acts were directed at consumers, (2) the acts are misleading in a material way, and (3) the plaintiff has been injured as a result.” Maurizio v. Goldsmith, 230 F.3d 518, 521 (2d Cir. 2000); see also Tasini v. AOL, Inc., 851 F.Supp.2d 734, 742 (S.D.N.Y.), aff'd, 505 Fed.Appx. 45 (2d Cir. 2012) (summary order). The defendants argue that the NCS plaintiffs cannot establish the first two elements of the claim. (a) Although the text of § 349 does not explicitly limit the provision to conduct aimed at consumers, courts have consistently held that “the statute is, at its core, a consumer protection device.” Securitron Magnalock Corp. v. Schnabolk, 65 F.3d 256, 264 (2d Cir. 1995). Non-consumers, such as business competitors, may have standing to sue under § 349, but “the gravamen of the complaint must be consumer injury or harm to the public interest.” Id. (citation omitted). The plaintiffs must show that “the acts or practices have a broader impact on consumers at large in that they are directed to consumers or that they potentially affect similarly situated consumers.” Spirit Locker, Inc. v. EVO Direct, LLC, 696 F.Supp.2d 296, 302 (E.D.N.Y. 2010) (citation and internal quotation marks omitted); see also Wilson v. Nw. Mut. Ins. Co., 625 F.3d 54, 65 (2d Cir. 2010) (“[T]o demonstrate the requisite consumer-oriented conduct in a dispute concerning coverage under an insurance policy, a plaintiff must establish facts showing injury or potential injury to the public _”); City of New York v. Smokes-Spirits.Com, Inc., 12 N.Y.3d 616, 883 N.Y.S.2d 772, 911 N.E.2d 834, 839 (2009) (“We ..." }, { "docid": "26101", "title": "", "text": "at *7, where a plaintiff can only plead facts to allege harm from copying, a claim under section 360 — l should be considered preempted. Count 4 is dismissed on that basis. Further, Count 4 is dismissed for failure to state a claim. Eyal has alleged no facts to support its allegation that “its Prinuette Trade Dress has acquired enormous value and recognition in the United States” and that “[s]uch trade dress is well known to the consuming public and the trade as identifying and distinguishing [Eyal] as the exclusive and unique source of the products that are used in connection with such trade dress.” Second Am. Compl. ¶ 10. This pleading, completely bereft of any factual allegations, is insufficient to state a plausible claim to relief. Iqbal, 129 S.Ct. at 1949. v. Count 5 is Dismissed Count 5 alleges that Jewelex’s actions “constituted deceptive acts and practices directed at consumers in the conduct of their business,” in violation of New York General Business Law § 349. As applied to this case, the claim is preempted. Eyal, again, has alleged harms arising only from Jewelex’s alleged copying of its design, and thus asserts only a harm squarely covered by federal copyright law. Further, Count 5 is dismissed because Eyal has failed to state a claim. To establish a prima facie case for a claim of deceptive business practices under section 349, a plaintiff must allege that: “(1) the defendant’s deceptive acts were directed at consumers, (2) the acts are misleading in a material way, and (3) the plaintiff has been injured as a result.” Maurizio v. Goldsmith, 230 F.3d 518, 521 (2d Cir.2000). “[T]he gravamen of the complaint must be consumer injury or harm to the public interest.” Securitron Magnalock Corp. v. Schnabolk, 65 F.3d 256, 264 (2d Cir.1995) (internal quotation omitted). “Claims that arise out of a trademark infringement action, and disputes between competitions where the core of the claim is harm to another business as opposed to consumers, both constitute situations which courts have found to reflect a public harm that is too insubstantial to satisfy the pleading" }, { "docid": "4555326", "title": "", "text": "the furnishing of any service in this state are hereby declared unlawful.” To establish a prima facie case under Section 349, plaintiffs must demonstrate that “(1) the defendant’s deceptive acts were directed at consumers, (2) the acts are misleading in a material way, and (3) the plaintiff has been injured as a result.” Maurizio v. Goldsmith, 230 F.3d 518, 521 (2d Cir.2000) (citing Oswego Laborers’ Local 214 Pension Fund v. Marine Midland Bank, N.A., 85 N.Y.2d 20, 25, 623 N.Y.S.2d 529, 647 N.E.2d 741 (1995)). “[D]eceptive acts” are defined as acts that are “likely to mislead a reasonable consumer acting reasonably under the circumstances.” Maurizio v. Goldsmith, 230 F.3d at 522. The scope of Section 349 is notably broad in three important respects. First, claims brought under Section 349 are not subject to the heightened pleading requirements set forth in Rule 9(b). See Pelman ex rel. Pelman v. McDonald’s Corp., 396 F.3d 508, 511 (2d Cir.2005). Second, to state a claim under Section 349, plaintiffs need not allege they relied on defendants’ misrepresentations. See Koch v. Acker, Merrall & Condit Co., 18 N.Y.3d 940, 941, 944 N.Y.S.2d 452, 967 N.E.2d 675 (2012). Third, plaintiffs need not plead defendants knew or should have known the alleged statements were false or misleading. Oswego Laborers’ Local 214 Pension Fund v. Marine Midland Bank, N.A., 85 N.Y.2d at 26, 623 N.Y.S.2d 529, 647 N.E.2d 741. The Connecticut Unfair Trade Practices Act (“CUTPA”) provides, in relevant part, that “[n]o person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.” Conn. Gen.Stat. § 42-110b(a). CUTPA is intended to be liberally construed “in an effort to effectuate its public policy goals.” Sportsmen’s Boating Corp. v. Hensley, 192 Conn. 747, 756, 474 A.2d 780 (1984) (citing Conn. GemStat. § 42-110b(d)). CUTPA requires neither reliance nor “proof of intent to deceive, to defraud or to mislead.” Associated Inv. Co. Ltd. P’ship v. Williams Assoc. IV, 230 Conn. 148, 158, 645 A.2d 505 (1994) (citations and internal alterations omitted). Additionally, CUT-PA claims need not meet the heightened" }, { "docid": "23303907", "title": "", "text": "plaintiffs’ claims under Section 349. A few additional observations about these two causes of action may prove of assistance on remand. Section 349 prohibits “[deceptive acts or practices in the conduct of any business, trade or commerce.” N.Y. Gen. Bus. Law. § 349(a). To establish a claim under Section 349, the plaintiff must show “a materi al deceptive act or practice directed to consumers that caused actual harm.” Marcus v. AT & T Corp., 138 F.3d 46, 63 (2d Cir.1998); see also Ortho Pharm. Corp. v. Cosprophar, Inc., 32 F.3d 690, 697 (2d Cir.1994); Goshen v. Mutual Life Ins. Co. of N.Y., 98 N.Y.2d 314, 323-24, 746 N.Y.S.2d 858, 774 N.E.2d 1190 (2002). We have not yet decided whether false statements are likely to be deceptive. See Ortho Pharm., 32 F.3d at 697. “Deceptive acts” are defined objectively, as acts “likely to mislead a reasonable consumer acting reasonably under the circumstances.” Maurizio v. Goldsmith, 230 F.3d 518, 521 (2d Cir.2000). Further, a deceptive practice “need not reach the level of common-law fraud to be actionable under section 349.” Stutman v. Chemical Bank, 95 N.Y.2d 24, 29, 709 N.Y.S.2d 892, 731 N.E.2d 608 (2000). The district court expressed reservations as to whether plaintiffs are within the class of persons, namely, consumers, for whose protection Section 349 was enacted. Boulé, 138 F.Supp.2d at 501 n. 7. Section 349, however, allows recovery not only by consumers, but also by competitors if there is “some harm to the public at large.” Securitron Magnalock Corp. v. Schnabolk, 65 F.3d 256, 264 (2d Cir.1995). Although a Section 349 plaintiff is not required to show justifiable reliance by consumers, Oswego Laborers’ Local 214 Pension Fund v. Marine Midland Bank, N.A., 85 N.Y.2d 20, 26, 623 N.Y.S.2d 529, 647 N.E.2d 741 (1995), “[a]n act is deceptive within the meaning of the New York statute only if it is likely to mislead a reasonable consumer.” Marcus, 138 F.3d at 64. On appeal, the Boulés describe their claim of “unfair competition by disparagement” as a claim for defamation of another’s business. Where a statement impugns “the basic integrity” of a" }, { "docid": "16674432", "title": "", "text": "have violated N.Y. Gen. Bus. Law § 349. The statute proscribes “[d]e-ceptive acts or practices in the conduct of any business, trade or commerce.” N.Y. Gen. Bus. Law § 349. “To make out a prima facie case under Section 349, a plaintiff must demonstrate that (1) the defendant’s deceptive acts were directed at consumers, (2) the acts are misleading in a material way, and (3) the plaintiff has been injured as a result.” Maurizio v. Goldsmith, 230 F.3d 518, 521 (2d Cir.2000) (citing Oswego Laborers’ Local 214 Pension Fund v. Marine Midland Bank, 85 N.Y.2d 20, 25, 647 N.E.2d 741, 744, 623 N.Y.S.2d 529, 532 (1995)). A competitor may sue under Section 349, as long as “the gravamen of the complaint [is] consumer injury or harm to the public interest.” Securitron Magnalock Corp. v. Schnabolk, 65 F.3d 256, 264 (2d Cir.1995) (internal quotations and citations omitted). A number of courts have held that “ ‘trademark cases are outside the scope of this general consumer protection statute,’ ” reasoning that the public harm that results from trademark infringement is “too insubstantial to satisfy the pleading requirements of § 349.” Karam Prasad, LLC v. Cache, Inc., No. 07-cv-5785, 2007 WL 2438396, at *2 (S.D.N.Y. Aug. 27, 2007) (quoting Tommy Hilfiger Licensing, Inc. v. Nature Labs, LLC, 221 F.Supp.2d 410, 413 n. 2 (S.D.N.Y.2002)) (collecting cases). Indeed, plaintiff asserts that it has incurred damages from lost business. However, the statute requires that plaintiff demonstrate some harm to the consumer or public at large. Because defendants’ goods originate from the same manufacturer as plaintiffs goods, and because plaintiff is unable to show a difference in the quality control standards of defendants’ goods, plaintiff has not shown that defendants’ goods are not genuine. In this situation, plaintiff has failed to show any consumer harm whatsoever. Accordingly, defendants’ cross-motion with respect to plaintiffs Section 349 claim is granted. d. Plaintiffs claims under N.Y. Gen. Bus. Law § 350 Both parties cross-move for summary judgment on plaintiffs claim that defendants have violated N.Y. Gen. Bus. Law § 350. Section 350 proscribes “[fjalse advertising in the conduct of" }, { "docid": "9403312", "title": "", "text": "the cases relied upon by Plaintiff recognize any form of unfair competition other than palming off and misappropriation, see Roy Export Co. Establishment of Vaduz, Liechtenstein v. Columbia Broadcast. Sys., 672 F.2d 1095, 1105-06 (2d Cir.1982) (addressing unfair competition claim brought under misappropriation theory); Telecom Int’l Am., 280 F.3d at 197-98 (same), and the New York Court of Appeals has expressly declined to “recog-niz[e] ... any other new theory of liability under the New York law of unfair competition,” ITC Ltd., 9 N.Y.3d at 479, 850 N.Y.S.2d 366, 880 N.E.2d 852. The Court accordingly finds that the absence of any allegations supporting a claim under either the palming off or misappropriation theory requires that Plaintiffs common-law claim for unfair competition be dismissed. IX. New York General Business Law § 349 Finally, the Court considers Plaintiffs claim under New York General Business Law § 349(a). Like Plaintiffs other state-law claims, this cause of action arises from SATV’s communications to Screenvision, which allegedly contained “false and/or misleading statements regarding plaintiffs legal rights to have the [The Lost Concert ] exhibited without a license or permission from [SATV] and/or Apple” and “false and/or misleading statements or omissions concerning [SATV’s] and/or Apple’s copyright, publishing rights and/or performing rights of the Songs in North America.” Am. Compl. ¶ 154. Section 349(a) declares unlawful “[deceptive acts and practices in the conduct of any business, trade or com merce or in the furnishing of any service in this state.” Notwithstanding the broad language of the statute, it has been interpreted to apply only to consumer-oriented conduct, see Oswego Laborers’ Local 211 Pension Fund v. Marine Midland Bank, N.A., 85 N.Y.2d 20, 25, 623 N.Y.S.2d 529, 647 N.E.2d 741 (1995), with the paradigmatic case “involvfing] an individual consumer who falls victim to misrepresentations made by a seller of consumer good[s]” because of “false and misleading advertising,” Spirit Locker, Inc. v. EVO Direct, LLC, 696 F.Supp.2d 296, 301 (E.D.N.Y.2010) (quoting Teller v. Bill Hayes, Ltd., 213 A.D.2d 141, 630 N.Y.S.2d 769, 774 (2d Dep’t 1995)) (second alteration in original). Thus, in order to state a claim for violation of" }, { "docid": "4555325", "title": "", "text": "Brown v. Hain Celestial Grp., Inc., 913 F.Supp.2d at 890-92; Koh v. S.C. Johnson & Son, Inc., 2010 WL 94265, at *3 (N.D.Cal. Jan. 6, 2010) (denying defendants motion to dismiss plaintiffs claims relating to products he did not purchase, noting “this is not a case in which plaintiff is asserting claims against defendants that never harmed him,” and “defer[ing] ruling on the issue until the class certification stage”); see also Elias v. Ungar’s Food Products, Inc., 252 F.R.D. 233, 243 (D.N.J.2008) (granting in part motion for class certification and noting, “the fact that the named plaintiffs did not purchase some of the products at issue does not render plaintiffs’ claims atypical from the potential class members nor does it defeat commonality”). Accordingly, the motion to dismiss plaintiffs’ claims relating to products they did not purchase is denied. C. Failure to State a Claim 1. New York and Connecticut Consumer Protection Statutes New York General Business Law § 349 provides “[deceptive acts or practices in the conduct of any business, trade or commerce or in the furnishing of any service in this state are hereby declared unlawful.” To establish a prima facie case under Section 349, plaintiffs must demonstrate that “(1) the defendant’s deceptive acts were directed at consumers, (2) the acts are misleading in a material way, and (3) the plaintiff has been injured as a result.” Maurizio v. Goldsmith, 230 F.3d 518, 521 (2d Cir.2000) (citing Oswego Laborers’ Local 214 Pension Fund v. Marine Midland Bank, N.A., 85 N.Y.2d 20, 25, 623 N.Y.S.2d 529, 647 N.E.2d 741 (1995)). “[D]eceptive acts” are defined as acts that are “likely to mislead a reasonable consumer acting reasonably under the circumstances.” Maurizio v. Goldsmith, 230 F.3d at 522. The scope of Section 349 is notably broad in three important respects. First, claims brought under Section 349 are not subject to the heightened pleading requirements set forth in Rule 9(b). See Pelman ex rel. Pelman v. McDonald’s Corp., 396 F.3d 508, 511 (2d Cir.2005). Second, to state a claim under Section 349, plaintiffs need not allege they relied on defendants’ misrepresentations. See Koch" } ]

[ { "docid": "1183324", "title": "", "text": "he knew about it at the time, but he observed, correctly, that it would not have affected his decision on whether or not to file charges. So long as he was acting in good faith and not merely seeking to collect a debt, the discharge was no bar. A state’s attorney has prosecutorial discretion and must be free to investigate alleged violations of state law and to exercise that prosecutorial discretion in deciding whether or not to file criminal charges. In re Schake, 154 B.R. 270 (Bankr.Neb.1993). The evidence in this case shows clearly that Ginkowski was not merely seeking to collect a debt, but that he was acting in good faith in an effort to carry out his responsibilities as a public prosecutor. Injunctive relief will not ordinarily be granted when there is an adequate remedy at law, and Berg has an adequate remedy at law. He has not shown that he will suffer great and immediate irreparable harm. He can assert his defenses in state court. The procedural and other safeguards afforded to him in the pending state criminal prosecution adequately protect his interests. The “cost, anxiety, and inconvenience of having to defend [himself] against a single criminal prosecution” is not sufficient to warrant the issuance of an injunction, nor is the fact that restitution may be ordered. Restitution as a sanction for criminal activity is not synonymous with debt collection activities. U.S. v. Alexander, 743 F.2d 472 (7th Cir.1984); In re Padgett, 37 B.R. 280, 285 (Bankr.W.D.Ky.1983). Furthermore, Berg has the opportunity to defend himself in state court and avoid a restitution order. The court finds that the plaintiff in this case is in no danger of great and immediate irreparable injury, such as was defined in Younger, and that the plaintiffs request for an injunction must accordingly be denied. The complaint seeks only injunctive relief against the defendants Richard Alan Ginkow-. ski and Robert J. Jambois and the office of the District Attorney in Kenosha County, and they have moved to dismiss the complaint. The court has found that injunctive relief as to these defendants should" } ]

[ { "docid": "5450011", "title": "", "text": "proceedings.” McDonald v. Burrows, 731 F.2d 294, 299 (5th Cir.1984) (citing United States v. Carson, 669 F.2d 216 (5th Cir.1982) and Barnette, 673 F.2d at 1252). Accordingly, under Younger, the possible imposition of such an order does not entitle Fussell to an injunction. Second, Fussell argues that the prosecution was brought in bad faith, as \"the only purpose of the criminal prosecution is to coerce repayment of the debt” (emphasis Fussell’s). It is true that “[t]here is a constitutional right to be free of bad faith prosecution.” Hand v. Gary, 838 F.2d 1420, 1424 (5th Cir.1988) (internal quotations omitted). Such prosecution “cause[s] sufficient irreparable harm to support federal injunction of a state prosecution.” Id. However, we do not agree with Fussell’s one-sided characterization of the motives of this prosecution. The evidence indicates that the purpose of the prosecution was both to prosecute a crime and make the victim whole. Further, the Supreme Court has defined a bad-faith prosecution as one that “has been brought without a reasonable expectation of obtaining a valid conviction.” Kugler, 421 U.S. at 126 n. 6, 95 S.Ct. at 1531 n. 6 (citing Perez, 401 U.S. at 85, 91 S.Ct. at 675); see also Hefner v. Alexander, 779 F.2d 277, 280 (5th Cir.1985) (“ ‘bad faith’ exception is narrow and should be granted parsimoniously”). Fus-sell does not and could not contend that the prosecution here meets this criterion, as it is clear from the record that there are sufficient facts to justify a prosecution. Further, it is not clear that the prosecutor’s collateral desire to secure restitution for the Bank can properly be characterized as “bad faith.” The Supreme Court has indicated that it views restitution as primarily furthering the interests of the State: Although restitution does resemble a judgment “for the benefit of” the victim, the context in which it is imposed undermines that conclusion. The victim has no control over the amount of restitution awarded or over the decision to award restitution. Moreover, the decision to impose restitution generally does not turn on the victim’s injury, but on the penal goals of the State" }, { "docid": "243334", "title": "", "text": "such an amount due and owing directly to them .... This court therefore finds and determines that the underlying purpose of probationary criminal restitution under the facts of the case is not one of simple debt servicing for victims but is in fact rehabilitative in nature. State of Arizona v. Magnifico, 21 B.R. 800, 803 (Bkrtcy.D.Ariz.1982) (emphasis added). The court commented that if restitution was being used as a subterfuge to collect a private debt, action to stay the effect of the restitution order would be justified: Those courts, though each noting the reluctance of the Bankruptcy Court to interfere in any way with the enforcement of criminal law, looked to the motivation involved in the criminal charges when litigated to collect the debt. The decisions reflect that the true purpose for the restitution in each case was to make the victim whole after discharge of an underlying, pre-existing debt; therefore, the criminal proceedings involving restitution therein was properly stayed by the Bankruptcy Code under such limited circumstances explained therein. State of Arizona v. Magnifico, 21 B.R. at 803 (emphasis added). The United States Court of Appeals for the Fifth Circuit has also suggested a limitation on its prohibition of judicial interference to cases involving purely “rehabilitative” restitution: Carson argues that to require restitution is unfair in light of FNB’s failure to assert its rights in the bankruptcy proceeding. If the principal aim of the probation condition were to make the bank whole, this argument might have some appeal. United States v. Carson, 669 F.2d 216, 217 (5th Cir.1982) (emphasis added). This distinction — compensation vs. punishment— finds some support in 11 U.S.C.A. § 523(a)(7) (West 1979) which excepts from discharge fines and penalties to government entities only if punitive in nature— even fines and penalties payable to the government are discharged in bankruptcy if found to be compensatory. However, nothing in § 523 suggests a similar exception for restitution awards not payable to a government. Even if we accept the argument that only “compensatory” awards of restitution are dischargeable in bankruptcy, the proof clearly establishes that no motive of" }, { "docid": "16529739", "title": "", "text": "Kelly Court explained: Although restitution does resemble a judgment “for the benefit of’ the victim, the context in which it is imposed undermines that conclusion. The victim has no control over the amount of restitution awarded or over the decision to award restitution. Moreover, the decision to impose restitution generally does not turn on the victim’s injury, but on the penal goals of the State and the situation of the defendant. Id. To be sure, Kelly is not on all fours with this case. The Connecticut statute at issue in Kelly “d[id] not require imposition of restitution in the amount of the harm caused. Instead, it provide[d] for a flexible remedy tailored to the defendant’s situation.” Id. at 53, 107 S.Ct. 353. Accordingly, the Court reasoned, discharging the restitution order “would hamper the flexibility of state criminal judges in choosing the combination of imprisonment, fines, and restitution most likely to further the rehabilitative and deterrent goals of state criminal justice systems.” Id. at 49, 107 S.Ct. 353; see also, e.g., United States v. Prodan, 181 B.R. 279, 281 (E.D.Va.1995) (finding restitution order not dischargeable because it represented a “ ‘flexible remedy tailored to the defendant’s situation’ rather than an exact accounting of the harm caused” and was to the benefit of a governmental unit). In this case, Byrd was prompted under pressure to pay an amount equivalent to the debt to the casinos plus fines, without having benefit of judicial overview or discretion. The restitution paid by Byrd was not part of a criminal sentence handed down by a court, as was the case in Kelly. Byrd was, however, entitled to judicial overview and discretion, and would have had it if he had elected to defend the charges against him in a Nevada court. The court concludes that the fact that the restitution was paid by Byrd on short notice and without the exercise of judicial oversight is the price Byrd paid for sending in payment rather than staying in jail pursuant to a lawful warrant. The court makes no criticism in this order of the Nevada statute’s requirement of" }, { "docid": "6443523", "title": "", "text": "at 361. In particular, the Kelly Court found that restitution orders imposed in criminal proceedings were nondischargeable within the meaning of Section 523(a)(7). In Kelly, the debtor-defendant was ordered to make restitution for welfare fraud as a condition of her probation. Kelly, 479 U.S. at 39, 107 S.Ct. at 355. The Court first addressed whether Kelly’s criminal restitution obligation was a debt within the meaning of the Bankruptcy Code. Id. at 49, 107 S.Ct. at 361. The Court found it unnecessary to decide whether criminal penalties were “debts” within the meaning of 11 U.S.C. § 101(4), because the debt, if it was one, was nondischargeable. Id. at 50,107 S.Ct. at 361. The Court next considered' whether the restitution obligation was dischargeable, assuming that it was a debt. It stated that neither of the qualifying clauses of Section 523(a)(7) would allow the discharge of restitution. Id. at 51-52, 107 S.Ct. at 362. Its analysis focused on the true beneficiaries and purpose of restitution. The criminal justice system benefits society as a whole, and is not operated primarily for the benefit of crime victims. Id. The Court also reasoned that the victim had no control over the decision to impose restitution or the decision on the amount of restitution to be ordered. Id. Instead, the decision to impose restitution turns “on the penal goals of the State and the situation of the defendant.” Id. The Court held that “[bjecause criminal proceedings focus on the State’s interests in rehabilitation and punishment, rather than the victim’s desire for compensation ... restitution orders imposed in such proceedings operate ‘for the benefit of’ the State ...” and “are not assessed ‘for ... compensation’ of the victim.” Id. at 53,107 S.Ct. at 362-63. The Supreme Court’s broad ruling, with its focus on the primary beneficiaries and purpose of criminal restitution orders, indicated that all restitution obligations should satisfy the two criteria of Section 523(a)(7). The identification of society and the state as the primary beneficiaries of the restitution obligation satisfied the limitation that the debt be “to and for the benefit of a governmental unit.” See Tabb," }, { "docid": "14030819", "title": "", "text": "VWPA is fundamentally penal in nature but that nevertheless a civil settlement can absolve the defendant of a need to pay restitution). But see United States v. Hampshire, 95 F.3d 999, 1005 (10th Cir.1996) (“[R]estitution orders issued pursuant to the VWPA are predominantly compensatory.”). In Kelly, the Court also suggested that restitution orders pursuant to the VWPA were penal sanctions. Id. at 53 n. 14, 107 S.Ct. 353. In support of this proposition, the Court commented: [t]he criminal justice system is not operated primarily for the benefits of the victims, but for the benefit of society as a whole. Thus, it is concerned not only with punishing the offender, but also with rehabilitating him. Although restitution does resemble a judgment “for the benefit of’ the victim, the context in which it is imposed undermines that conclusion. The victim has no control over the amount of restitution awarded or over the decision to award restitution. Moreover, the decision to impose restitution generally does not turn on the victim’s injury, but on the penal goals of the State and the situation of the defendant. Kelly, 479 U.S. at 52, 107 S.Ct. 353 (1986). Although the Court grounded its opinion on federalism concerns, some courts have found the wording of this section of Kelly broad enough to reach restitution ordered pursuant to the VWPA. See United States v. Caddell, 830 F.2d 36, 39 (5th Cir.1987) (“[T]he language in the [Kelly] opinion extends generally to penal sanctions of restitution without regard to whether the court imposing the sanction is a state or federal court.”). However, in Towers, the United States Court of Appeals for the Seventh Circuit observed that § 523(a)(7) “offers weak support for exempting restitution orders from discharge” without the aid of federalism concerns because § 523(a)(7) “does not mention restitution, and it operates only if the penalty is ‘for the benefit of a governmental unit’ — a condition not easy to satis fy when the governmental body is collecting for private creditors.” Towers, 162 F.3d at 954; see also Hughey v. United States, 495 U.S. 411, 419 n. 4, 110 S.Ct." }, { "docid": "8084266", "title": "", "text": "U.S. at 50-52, 107 S.Ct. at 361-62. It explained as follows: The criminal justice system is not operated primarily for the benefit of victims, but for the benefit of society as a whole, Thus, it is concerned not only with punishing the offender, but also with rehabilitating him. Although restitution does resemble a judgment “for the benefit of’ the victim, the context in which it is imposed undermines that conclusion. The victim has no control over the amount of restitution awarded or over the decision to award restitution.... Because criminal proceedings focus on the State’s interests in rehabilitation and punishment, rather than the victim’s desire for compensation, we conclude that restitution orders imposed in such proceedings operate “for the benefit of’ the State. Similarly, they are not assessed “for ... compensation” of the victim. The sentence following a criminal conviction necessarily considers the penal and rehabilitative interests of the State. Those interests are sufficient to place restitution orders within the meaning of § 523(a)(7). Id. at 52-53, 107 S.Ct. at 362-63 (footnote omitted). See also id. at 49, 107 S.Ct. at 360 (Making restitution orders dischargeable “would hamper the flexibility of state criminal judges in choosing the combination of imprisonment, fines, and restitution most likely to further the rehabilitative and deterrent goals of state criminal justice systems.”); id. at 49 n. 10,107 S.Ct. at 360-61 n. 10 (“Restitution is an effective rehabilitative penalty because it forces the defendant to confront, in concrete terms, the harm his actions have caused. Such a penalty will affect the defendant differently than a traditional fine, paid to the State as an abstract and impersonal entity, and often calculated without regard to the harm the defendant has caused.”). The essence of the distinction drawn by the Court in Kelly between civil debts and restitution is that the latter comprises punitive, rehabilitative and deterrent components which the former lacks. Thus the Prosecutor is arguably violating the discharge injunction if the prosecution of the Debtor has some purpose other than to deter crime or to punish or rehabilitate the Debtor for his alleged fraud. Cf. e.g., In" }, { "docid": "22726674", "title": "", "text": "exception to discharge for fines. We must decide whether the result is altered by the two major differences between restitution and a traditional fine. Un like traditional fines, restitution is forwarded to the victim, and may be calculated by reference to the amount of harm the offender has caused. In our view, neither of the qualifying clauses of § 523(a)(7) allows the discharge of a criminal judgment that takes the form of restitution. The criminal justice system is not operated primarily for the benefit of victims, but for the benefit of society as a whole. Thus, it is concerned not only with punishing the offender, but also with rehabilitating him. Although restitution does resemble a judgment “for the benefit of” the victim, the context in which it is imposed undermines that conclusion. The victim has no control over the amount of restitution awarded or over the decision to award restitution. Moreover, the decision to impose restitution generally does not turn on the victim’s injury, but on the penal goals of the State and the situation of the defendant. As the Bankruptcy Judge who decided this case noted in Pellegrino: “Unlike an obligation which arises out of a contractual, statutory or common law duty, here the obligation is rooted in the traditional responsibility of a state to protect its citizens by enforcing its criminal statutes and to rehabilitate an offender by imposing a criminal sanction intended for that purpose.” 42 B. R., at 133. This point is well illustrated by the Connecticut statute under which the restitution obligation was imposed. The statute authorizes a judge to impose any of eight specified conditions of probation, as well as “any other conditions reasonably related to his rehabilitation.” Conn. Gen. Stat. § 53a-30(a)(9) (1985). Clause (4) of that section authorizes a judge to require that the defendant “make restitution of the fruits of his offense or make restitution, in an amount he can afford to pay or provide in a suitable manner, for the loss or damage caused thereby and the court may fix the amount thereof and the manner of performance.” This clause" }, { "docid": "8084282", "title": "", "text": "part, to compensate the State for the expense it had incurred in prosecuting [the debtor] in state criminal court,” and hence would appear to be a compensatory debt outside the scope of § 523(a)(7). Id. at 108. But “[i]n light of ... Kelly,” the court held that the debt was nondischargeable because it was “part of [the debtor’s] criminal sentence.” Id. Thus in Hollis, the Sixth Circuit extended Kelly’s holding to a fine which was not designed to “make whole” a specific victim of the debtor’s crime. Indeed, the court went so far as to suggest that, with respect to criminal proceedings, Kelly effectively deleted from § 523(a)(7) the language excepting fines which are “compensation for actual pecuniary loss.” See id. (“ ‘[Section] 523(a)(7) preserves from discharge any condition a state criminal court imposes as part of a criminal sentence.’ ” (quoting Kelly, 479 U.S. at 50, 107 S.Ct. at 361; emphasis added by Hollis)). Given Hollis ’ strict fidelity to the teachings of Kelly, it seems likely that the judicial panel which decided Daulton was simply unaware of Kelly or its implications vis-a-vis § 524(a). In short, Kelly mandates the conclusion that the Debtor’s discharge, although barring enforcement of the co-op debt as a civil obligation, does not prevent the Prosecutor from initiating or continuing proceedings against the Debtor with the objective of obtaining entry of an order requiring the Debtor to pay restitution. See In re Fussell, 928 F.2d 712, 716 (5th Cir.1991), cert. denied, 502 U.S. 1107, 112 S.Ct. 1203, 117 L.Ed.2d 443 (1992) (questioning whether “the prosecutor’s collateral desire to secure restitution ... can properly be characterized as ‘bad faith[,]’ ” and suggesting that Kelly calls for a negative response); id. at 717 (“[I]f we accept the validity of [the] criminal statute at issue here [which “punish[es] one who intentionally ‘hinder[s] enforcement of [a] security interest or lien[,]’ ” id. at 714], we are bound to accept a degree of coercion [to pay the debt].”); Wilson, 30 B.R. at 97 (“Restitution to an aggrieved party is manifestly a legitimate consideration in the prosecutor’s evaluation of a" }, { "docid": "1321269", "title": "", "text": "a condition of probation is not a “debt” as contemplated by the dischargeability provisions of the Bankruptcy Code. One of these cases is In re Button, 8 B.R. 692 (Bkrtcy.W.D.N.Y.1981), wherein the court set forth its analysis as follows: Under the Bankruptcy Code, § 101(11) says the term “debt” means liability on a claim. “Claim”, pursuant to § 101(4) means right to payment. “Creditor”, according to § 101(9) generally means an entity that has a claim against the debtor that arose before filing. From these definitions, it does not appear that restitution could be considered a debt nor that a victim could be considered a creditor. With restitution, the victim has no right to payment. It is the criminal court which sets the restitution amount and if it is not paid the victim cannot proceed against the debtor to enforce payment, but instead the probation officer must report the event of non-payment to the court which in turn determines if a violation of probation has occurred. 8 B.R. at 694. The Court in Button found further support for its holding in the automatic stay provisions of § 362(b)(1) which states that the filing of a bankruptcy petition does not operate as a stay against a criminal proceeding against the debtor, and the legislative history relative to that provision. House Report No. 95-595, U.S.Code Cong. & Admin.News 1978, p. 5787, states that “[t]he bankruptcy laws are not a haven for criminal offenders”, and that “criminal actions and proceedings may proceed in spite of bankruptcy.” A recent Fifth Circuit decision, United States v. Carson, 669 F.2d 216 (5th Cir.1982), has held that a federal court may require restitution as a condition of probation when the debt which resulted in the conviction has been discharged in bankruptcy. The court based its holding on its interpretation of the major purpose of restitution. It found that the focus of restitution orders is punishment and rehabilitation of the offender rather than recompense to the victim. Thus, the Court found no conflict between the order of restitution and the discharge of the debt in bankruptcy. The case" }, { "docid": "22726673", "title": "", "text": "does not compel the conclusion reached by the Court of Appeals, that a discharge in bankruptcy voids restitution orders imposed as conditions of probation by state courts. Nowhere in the- House and Senate Reports is there any indication that this language should be read so intrusively. If Congress had intended, by § 523(a)(7) or by any other provision, to discharge state criminal sentences, “we can be certain that there would have been hearings, testimony, and debate concerning consequences so wasteful, so inimical to purposes previously deemed important, and so likely to arouse public outrage,” TVA v. Hill, 437 U. S. 153, 209 (1978) (Powell, J., dissenting). Our reading of § 523(a)(7) differs from that of the Second Circuit. On its face, it creates a broad exception for all penal sanctions, whether they be denominated fines, penalties, or forfeitures. Congress included two qualifying phrases; the fines must be both “to and for the benefit of a governmental unit,” and “not compensation for actual pecuniary loss.” Section 523(a)(7) protects traditional criminal fines; it codifies the judicially created exception to discharge for fines. We must decide whether the result is altered by the two major differences between restitution and a traditional fine. Un like traditional fines, restitution is forwarded to the victim, and may be calculated by reference to the amount of harm the offender has caused. In our view, neither of the qualifying clauses of § 523(a)(7) allows the discharge of a criminal judgment that takes the form of restitution. The criminal justice system is not operated primarily for the benefit of victims, but for the benefit of society as a whole. Thus, it is concerned not only with punishing the offender, but also with rehabilitating him. Although restitution does resemble a judgment “for the benefit of” the victim, the context in which it is imposed undermines that conclusion. The victim has no control over the amount of restitution awarded or over the decision to award restitution. Moreover, the decision to impose restitution generally does not turn on the victim’s injury, but on the penal goals of the State and the situation" }, { "docid": "8084265", "title": "", "text": "States, H.R.Doc. No. 93-137, 93d Cong., 1st Sess., Pts. I and II, Letter of Transmittal at p. 2 (1973) (describing “relie[f for] the honest but unfortunate debtor from the weight of op pressive indebtedness” as one of “the objectives of this system” (emphasis added)). As indicated earlier, however, the Debtor’s theory in invoking § 524(a)(2) targets the Prosecutor’s motives for prosecuting, rather than the criminal statute itself. A review of the Supreme Court’s decision in Kelly v. Robinson, 479 U.S. 36, 107 S.Ct. 353, 93 L.Ed.2d 216 (1986) will serve to clarify the underpinnings of this argument. The statute at issue in Kelly was § 523(a)(7), which excepts from discharge “any debt — (7) to the extent such debt is for a fine, penalty, or forfeiture payable to and for the benefit of a governmental unit, and is not compensation for actual pecuniary loss.” 11 U.S.C. § 523(a)(7). The Court ruled that pursuant to this provision, with respect to which there is no deadline for filing a complaint, criminal restitution obligations are nondisehargeable. Kelly, 479 U.S. at 50-52, 107 S.Ct. at 361-62. It explained as follows: The criminal justice system is not operated primarily for the benefit of victims, but for the benefit of society as a whole, Thus, it is concerned not only with punishing the offender, but also with rehabilitating him. Although restitution does resemble a judgment “for the benefit of’ the victim, the context in which it is imposed undermines that conclusion. The victim has no control over the amount of restitution awarded or over the decision to award restitution.... Because criminal proceedings focus on the State’s interests in rehabilitation and punishment, rather than the victim’s desire for compensation, we conclude that restitution orders imposed in such proceedings operate “for the benefit of’ the State. Similarly, they are not assessed “for ... compensation” of the victim. The sentence following a criminal conviction necessarily considers the penal and rehabilitative interests of the State. Those interests are sufficient to place restitution orders within the meaning of § 523(a)(7). Id. at 52-53, 107 S.Ct. at 362-63 (footnote omitted). See also" }, { "docid": "17761589", "title": "", "text": "535 F.2d 676, 678 (2d Cir.), cert. denied, 429 U.S. 885, 97 S.Ct. 235, 50 L.Ed.2d 165 (1976). Defendant’s challenge is without merit. Defendant next contends that the district court lacked jurisdiction over the prosecution against her, because it arose under or was related to her bankruptcy proceeding. Bankruptcy courts have jurisdiction over bankruptcy cases and some civil matters arising in or related to such cases. See 28 U.S.C. §§ 157, 1334. Neither of these statutes, however, grants bankruptcy courts exclusive jurisdiction over post-discharge criminal matters involving the debt- or. Defendant’s argument is frivolous. Defendant contends that her criminal prosecution was an impermissible attempt to collect a discharged debt. See 11 U.S.C. § 524(a)(2) (discharge in bankruptcy operates as injunction against collection proceedings). She fails to show that the principal motivation behind her prosecution was to collect on a discharged debt. See Brinkman v. City of Edina (In re Brinkman), 123 B.R. 318, 322 (Bankr.D.Minn.1991) (stating “principal motivation” test). The government may seek restitution in favor of victims who hold debts of the defendant, even if such debts have been discharged in bankruptcy. See United States v. Carson, 669 F.2d 216, 217 (5th Cir.1982) (conditioning probation on restitution). Defendant next argues that her prosecution violated the Double Jeopardy Clause, because she already had been “punished” by the judgment entered against her in the bankruptcy proceedings. We agree with the First Circuit that “[a] monetary sanction which has no punitive function, i.e., has no purpose other than restitution or compensation for the loss engendered by the defendants’ conduct is not punishment within the ambit of the double jeopardy clause.” United States v. Kayne, 90 F.3d 7, 11 (1st Cir.1996), cert. denied, — U.S.-, 117 S.Ct. 681, 136 L.Ed.2d 607 (1997). The bankruptcy judgment against defendant clearly served the remedial function of compensating her victims. Because defendant was not “punished” by the entry of judgment, the later criminal prosecution was not forbidden by the Double Jeopardy Clause. See United States v. Ursery, — U.S.-,---, 116 S.Ct. 2135, 2141-42, 135 L.Ed.2d 549 (1996) (discussing effect of civil forfeiture action). Finally, defendant argues that" }, { "docid": "12300950", "title": "", "text": "burden for coordinating contribution from the Government to individual defendants who are not well placed to seek contribution. Unlike most other examples of joint and several liability, there is no simple way for the defendants to discover who else has been convicted of possession or receipt of Vicky’s images. There are dozens if not hundreds of jurisdictions involved, and no individual defendant has the right to be informed when related cases arise. The Government, in contrast, has already assembled a database to keep abreast of restitution awards to Vicky all over the country. Punitive and rehabilitative concerns may also counsel against entire liability in this context. “The criminal justice system is not operated primarily for the benefit of the victims, but for the benefit of society as a whole.” Kelly v. Robinson, 479 U.S. 36, 52, 107 S.Ct. 353, 93 L.Ed.2d 216 (1986). Although the Court in Robinson was deciding the different issue of whether to allow a defendant to discharge her restitution obligations in bankruptcy, part of its reasoning is right on point here: [The criminal justice system] is concerned not only with punishing the offender, but also with rehabilitating him. Although restitution does resemble a judgment “for the benefit of’ the victim, the context in which it is imposed undermines that conclusion. The victim has no control over the amount of restitution awarded or over the decision to award restitution. Moreover, the decision to impose restitution generally does not turn on the victim’s injury, but on the penal goals of the State and the situation of the defendant. As the Bankruptcy Judge who decided this case noted in Pellegrino: “Unlike an obligation which arises out of a contractual, statutory or common law duty, here the obligation is rooted in the traditional responsibility of a state to protect its citizens by enforcing its criminal statutes and to rehabilitate an offender by imposing a criminal sanction intended for that purpose.” Id. (quoting In re Pellegrino, 42 B.R. 129, 133 (Bankr.D.Conn.1984)). An apportionment system that spreads the effect of the penal goals of deterrence, retribution, and rehabilitation among the many convicted" }, { "docid": "13386477", "title": "", "text": "money in a telemarketing operation and then converting the money to personal use, the indictment is also specific enough to satisfy Hughey. Thus, the district court could order- restitution to the victims not named in the indictment. BANKRUPTCY DISCHARGE Pepper contends that the district court could not order restitution as part of his sentence because the debts of some of the people that were to be compensated had been discharged in bankruptcy. We disagree. Generally, a bankruptcy proceeding and a criminal prosecution are fundamentally different proceedings, both in purpose and procedure, and the causes of action resolved by each are totally different. United States v. Tatum, 943 F.2d 370, 381 (4th Cir.1991). The pursuit of one proceeding will seldom resolve the other. Id. at 381-82. As such, we do not believe that a bankruptcy discharge has any effect on the district court’s power to order restitution in a criminal case. See Kelly v. Robinson, 479 U.S. 36, 50, 107 S.Ct. 353, 361, 93 L.Ed.2d 216 (1986) (holding that under the established law that bankruptcy courts could not discharge criminal judgments). In United States v. Carson, 669 F.2d 216 (5th Cir.1982), the district court had ordered restitution as a condition of parole. The defendant had already obtained a discharge for the debt of those people who were to be compensated. The defendant argued that the discharge restricted the district court from ordering restitution. The Court rejected the arguments for two reasons. Primarily, the Court reasoned that making restitution was consistent with the spirit of probation as offering a offender the chance to rehabilitate himself. Id. at 217-18. Secondly, the Court held that although a bankruptcy discharge extinguishes a defendant’s liability, it does not extinguish the losses that the victim suffered. Id. at 217. The Court determined that restitution seeks to compensate for this loss. Id. It stated that the defendant does not “offer any reason to restrict the losses for which restitution is authorized to those for which the aggrieved party retains a right of action.” Id. Similarly, in this case, Pepper’s bankruptcy discharge does nothing to relieve the loss suffered" }, { "docid": "16529738", "title": "", "text": "lost, but on what a particular offender should do to make amends. Requiring Byrd to pay a certain amount each month, based on his circumstances, conceivably could serve a rehabilitative purpose; requiring him to find it immediately or stay in jail, does not. That said, the court does conclude that Clark County was not precluded by law from taking the actions described above. The court includes comment on them here because the County’s actions are troubling, and its lack of candor regarding the purposes of its prosecution, or “deferred prosecution,” of Byrd warrants mention. The court concludes that under Kelly v. Robinson, 479 U.S. 36, 107 S.Ct. 353, 93 L.Ed.2d 216 (1986), and the precedent developed on this point in this circuit, a governmental entity is entitled to commence or continue a criminal prosecution against a debtor even if the prosecution is based upon a debt that could be discharged in bankruptcy, and even if the prosecuting entity intends to pass recovered monies on to the complaining victim/creditor in the form of restitution. As the Kelly Court explained: Although restitution does resemble a judgment “for the benefit of’ the victim, the context in which it is imposed undermines that conclusion. The victim has no control over the amount of restitution awarded or over the decision to award restitution. Moreover, the decision to impose restitution generally does not turn on the victim’s injury, but on the penal goals of the State and the situation of the defendant. Id. To be sure, Kelly is not on all fours with this case. The Connecticut statute at issue in Kelly “d[id] not require imposition of restitution in the amount of the harm caused. Instead, it provide[d] for a flexible remedy tailored to the defendant’s situation.” Id. at 53, 107 S.Ct. 353. Accordingly, the Court reasoned, discharging the restitution order “would hamper the flexibility of state criminal judges in choosing the combination of imprisonment, fines, and restitution most likely to further the rehabilitative and deterrent goals of state criminal justice systems.” Id. at 49, 107 S.Ct. 353; see also, e.g., United States v. Prodan, 181" }, { "docid": "21444087", "title": "", "text": "is compensatory. See id. at 679-84 (analyzing text and legislative history of VWPA and concluding that it was intended primarily to be a compensatory, rather than punitive, statute). Indeed, the very title of the VWPA — “The Victim and Witness Protection Act” — might lead one to believe that the point behind the VWPA is compensation, not retribution or the like. Nevertheless, the overwhelming trend in the easelaw is to read the VWPA as a penal provision. The catalyst for this trend was the Supreme Court’s decision in Kelly v. Robinson, 479 U.S. 36, 55, 107 S.Ct. 353, 364, 93 L.Ed.2d 216 (1986). In Kelly, the Court was asked to consider the nature of restitution ordered under a Connecticut statute. In concluding that the Connecticut restitution statute was penal in character, the Court commented broadly about the purpose of restitution in the criminal law: The criminal justice system is not operated primarily for the benefit of victims, but for the benefit of society as a whole. Thus, it is concerned not only with punishing the offender, but also with rehabilitating him. Although restitution does resemble a judgment “for the benefit of’ the victim, the context in which it is imposed undermines that conclusion. The victim has no control over the amount of restitution awarded or over the decision to award restitution. Moreover, the decision to impose restitution generally does not turn on the victim’s injury, but on the penal goals of the State and the situation of the defendant. As the Bankruptcy Judge who -decided this ease noted in Pellegrino: “Unlike an obligation which arises out of a contractual, statutory or common law duty, here the obligation is rooted in the' traditional responsibility of a state to protect its citizens by enforcing its criminal statutes and to rehabilitate an offender by imposing a criminal sanction intended for that purpose.” Id. at 52, 107 S.Ct. at 362 (citations omitted). Technically, the Court’s comments in Kelly were aimed only at a state restitutionary system, yet in a footnote the Court hinted that they might apply to the VWPA as well. See id." }, { "docid": "5450012", "title": "", "text": "U.S. at 126 n. 6, 95 S.Ct. at 1531 n. 6 (citing Perez, 401 U.S. at 85, 91 S.Ct. at 675); see also Hefner v. Alexander, 779 F.2d 277, 280 (5th Cir.1985) (“ ‘bad faith’ exception is narrow and should be granted parsimoniously”). Fus-sell does not and could not contend that the prosecution here meets this criterion, as it is clear from the record that there are sufficient facts to justify a prosecution. Further, it is not clear that the prosecutor’s collateral desire to secure restitution for the Bank can properly be characterized as “bad faith.” The Supreme Court has indicated that it views restitution as primarily furthering the interests of the State: Although restitution does resemble a judgment “for the benefit of” the victim, the context in which it is imposed undermines that conclusion. The victim has no control over the amount of restitution awarded or over the decision to award restitution. Moreover, the decision to impose restitution generally does not turn on the victim’s injury, but on the penal goals of the State and the situation of the defendant____ Because criminal proceedings focus on the State’s interests in rehabilitation and punishment, rather than the victim’s desire for compensation, we conclude that restitution orders imposed in such proceedings operate “for the benefit of” the State. Similarly, they are not assessed “for ... compensation” of the victim. The sentence following a criminal conviction necessarily considers the penal and rehabilitative interests of the State. Kelly v. Robinson, 479 U.S. 36, 52-53, 107 S.Ct. 353, 362-363, 93 L.Ed.2d 216 (1986) (footnote omitted; ellipsis in original) (discussing the dischargeability of restitution orders in bankruptcy). At most, it seems to us that the coerciveness and “bad faith” Fussell complains of are inherent in a statute punishing economic crime between non-stranger parties. These fraud and fraud-like offenses — such as hindering a creditor or writing a check backed by insufficient funds — are nonviolent and have an impact focused disproportionately on the single party who voluntarily entered into a transaction with the offender. Thus, it is not surprising that a district attorney might be concerned" }, { "docid": "8084283", "title": "", "text": "was simply unaware of Kelly or its implications vis-a-vis § 524(a). In short, Kelly mandates the conclusion that the Debtor’s discharge, although barring enforcement of the co-op debt as a civil obligation, does not prevent the Prosecutor from initiating or continuing proceedings against the Debtor with the objective of obtaining entry of an order requiring the Debtor to pay restitution. See In re Fussell, 928 F.2d 712, 716 (5th Cir.1991), cert. denied, 502 U.S. 1107, 112 S.Ct. 1203, 117 L.Ed.2d 443 (1992) (questioning whether “the prosecutor’s collateral desire to secure restitution ... can properly be characterized as ‘bad faith[,]’ ” and suggesting that Kelly calls for a negative response); id. at 717 (“[I]f we accept the validity of [the] criminal statute at issue here [which “punish[es] one who intentionally ‘hinder[s] enforcement of [a] security interest or lien[,]’ ” id. at 714], we are bound to accept a degree of coercion [to pay the debt].”); Wilson, 30 B.R. at 97 (“Restitution to an aggrieved party is manifestly a legitimate consideration in the prosecutor’s evaluation of a defendant’s eligibility for pre-trial diversion.”). And since that is true, it follows as a matter of logic that I cannot appropriately make a finding of prosecutorial misconduct based in whole or in part on “offers” of restitution. With this important limitation in mind, the question becomes, under what circumstances might it be proper to conclude that a criminal case is being prosecuted in bad faith? A couple of scenarios seem plausible. One of course assumes that the whole point of prosecuting a defendant is to obtain a conviction. If the evidence against the defendant is such that there is little likelihood of a guilty verdict being rendered, suspicions naturally arise that the prosecutor has some ulterior motive for proceeding with the case. Cf, e.g., Cameron v. Johnson, 390 U.S. 611, 619-20, 88 S.Ct. 1335, 1340, 20 L.Ed.2d 182 (1968) (“Appellants’ case that there are ‘special circumstances’ establishing irreparable injury sufficient to justify federal intervention ... come[s] down to the proposition that the statute was enforced against them, not because the Mississippi officials in good faith" }, { "docid": "14030818", "title": "", "text": "restitution and deposited the monies into the state treasury. In Kelly, there was no doubt that the restitution was “payable to and for the benefit of a governmental unit.” The issue becomes more complex when, as here, the restitution is payable to private victims. Arguably, restitution paid to a private victim is still paid for the benefit of the Government — i.e., the Government receives the benefit of criminal deterrence. To determine whether restitution owed to private victims is still for the benefit of the Government, an analysis of whether restitution is fundamentally penal or compensatory is helpful but not dispositive. Courts have often considered restitution fundamentally penal. See United States v. Edwards, 162 F.3d 87, 91 (3d Cir.1998); United States v. Sheinbaum, 136 F.3d 443, 448 (5th Cir.1998), cert. denied, 526 U.S. 1133, 119 S.Ct. 1808, 143 L.Ed.2d 1011 (1999); United States v. Savoie, 985 F.2d 612, 619 (1st Cir.1993); United States v. Vetter, 895 F.2d 456, 459 (8th Cir.1990); see also United States v. Bruchey, 810 F.2d 456, 460-461 (4th Cir.1987) (concluding that VWPA is fundamentally penal in nature but that nevertheless a civil settlement can absolve the defendant of a need to pay restitution). But see United States v. Hampshire, 95 F.3d 999, 1005 (10th Cir.1996) (“[R]estitution orders issued pursuant to the VWPA are predominantly compensatory.”). In Kelly, the Court also suggested that restitution orders pursuant to the VWPA were penal sanctions. Id. at 53 n. 14, 107 S.Ct. 353. In support of this proposition, the Court commented: [t]he criminal justice system is not operated primarily for the benefits of the victims, but for the benefit of society as a whole. Thus, it is concerned not only with punishing the offender, but also with rehabilitating him. Although restitution does resemble a judgment “for the benefit of’ the victim, the context in which it is imposed undermines that conclusion. The victim has no control over the amount of restitution awarded or over the decision to award restitution. Moreover, the decision to impose restitution generally does not turn on the victim’s injury, but on the penal goals of the" }, { "docid": "5450013", "title": "", "text": "and the situation of the defendant____ Because criminal proceedings focus on the State’s interests in rehabilitation and punishment, rather than the victim’s desire for compensation, we conclude that restitution orders imposed in such proceedings operate “for the benefit of” the State. Similarly, they are not assessed “for ... compensation” of the victim. The sentence following a criminal conviction necessarily considers the penal and rehabilitative interests of the State. Kelly v. Robinson, 479 U.S. 36, 52-53, 107 S.Ct. 353, 362-363, 93 L.Ed.2d 216 (1986) (footnote omitted; ellipsis in original) (discussing the dischargeability of restitution orders in bankruptcy). At most, it seems to us that the coerciveness and “bad faith” Fussell complains of are inherent in a statute punishing economic crime between non-stranger parties. These fraud and fraud-like offenses — such as hindering a creditor or writing a check backed by insufficient funds — are nonviolent and have an impact focused disproportionately on the single party who voluntarily entered into a transaction with the offender. Thus, it is not surprising that a district attorney might be concerned in large part with making the victim whole, as the societal interest in such prosecutions is largely merged with the interest of the victim. These considerations, combined with the victim’s inclination to withdraw the complaint if the debtor satisfies the debt, naturally result in coercive plea agreements in which the debtor avoids prosecution or imprisonment only by satisfying or reaffirming the debt. Thus, if we accept the validity of criminal statute at issue here, we are bound to accept a degree of coercion. As Fussell has not challenged the validity of the statute, this is an issue we do not consider. Fussell makes an additional argument, outside the framework of Younger: he argues that permitting the criminal prosecution, which might ultimately result in restitution to the creditor, gives the Bank a preference over other creditors. Although essentially true, this argument is unavailing, as we have held that the fact that restitution effectively grants a preference is irrelevant. See United States v. Caddell, 830 F.2d 36, 39 (5th Cir.1987); cf. Kelly v. Robinson, 479 U.S. at" } ]

[ { "docid": "585101", "title": "", "text": "under the grant of authority in § 4 the district court was limited to enforcing arbitration agreements according to their terms, and since the parties agree that the architect has not consented in writing, the district court should not have ordered consolidation. V The Authority and LDWA contend that regardless of whether Webb complied with the contract, Webb waived arbitration. In Price v. Drexel Burnham Lambert, Inc., 791 F.2d 1156, 1159 (5th Cir.1986), this court stated: [A] finding that a party has waived its right to arbitration is a legal conclusion subject to our plenary review, but ... the findings upon which the conclusion is based are predicate questions of fact, which may not be overturned unless clearly erroneous. The district court, however, did not discuss the issue, though the Authority raised it. The district court only discussed Webb’s compliance with paragraph 7.9.2, a separate issue from waiver. Accordingly, we remand the waiver issue to the district court. VI We affirm the district court’s conclusion that the Federal Arbitration Act governs this case; modify the arbitration order to exclude LDWA’s counterclaim against Webb, since the requisite contractual basis for arbitration between LDWA and Webb does not exist; vacate the district court’s ruling that Webb complied with the contractual prerequisites for demanding arbitration, since that question is for the arbitrator; reverse the district court’s consolidation order, persuaded that the Owner-Contractor contract expressly excluded the architect from consolidation absent written consent; and remand the question of waiver, since the district court did not consider the question separately from the question of compliance with the contractual requirements for demand. AFFIRMED in part as modified, VACATED in part, and REVERSED in part. . By stipulation, the parties agree that Ray Boyd Construction will not be compelled to arbitrate. . The Authority argues as a threshold matter that the district court made no findings about whether the Owner-Contractor contract is a \"transaction involving interstate commerce,\" thus this court cannot consider the issue. This argument has no merit. The district court in its order of June 5, 1986, found that the contracts evidenced a transaction involving" } ]

[ { "docid": "18887057", "title": "", "text": "Exp., Inc., 849 F.2d 464 (10th Cir.1988). The findings upon which the conclusion of waiver is based, however, are questions of fact which must be accepted unless clearly erroneous. Reid Burton Constr. v. Carpenters Dist. Council, 614 F.2d 698 (10th Cir.), cert. denied, 449 U.S. 824, 101 S.Ct. 85, 66 L.Ed.2d 27 (1980); Del E. Webb Constr. v. Richardson Hosp. Auth., 823 F.2d 145, 150 (5th Cir.1987) (quoting Price v. Burnham Lambert, Inc., 791 F.2d 1156, 1159 (5th Cir.1986)). The trial court held that Shearson’s actions, namely its delay in asserting its contractual right to arbitrate and its extensive participation in litigation, constituted a waiver of its right to compel arbitration. Shearson claims that it did not waive its arbitration right because it sought arbitration of the state law claims at the earliest practicable time subsequent to the U.S. Supreme Court’s decision in Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 105 S.Ct. 1238, 84 L.Ed.2d 158 (1985). Shear-son maintains that the state law claims were nonarbitrable under the “intertwining doctrine,” which provided that “[w]hen ar-bitrable and nonarbitrable claims arise out of the same transaction, and are sufficiently intertwined factually and legally, the district court ... may in its discretion deny arbitration as to the arbitrable claims and try all the claims together in federal court.” Id. 216-17, 105 S.Ct. at 1240-41 (footnote omitted). Byrd rejected that doctrine. Id. at 217, 105 S.Ct. at 1240. Shear-son claims that the federal and state law claims were intertwined so that, until Byrd, it could not have sought arbitration of the state law claims because of the nonarbitrable nature of the section 12(2) claim. In Peterson, this court rejected Shearson's argument and stated that “[gjiven the open state of the law and the discretionary nature of the [intertwining] doctrine, Shearson probably should have requested arbitration of the state claims at the outset.” 849 F.2d at 467. Shearson argues, however, that it moved to compel arbitration at a point when Mi-dAmerica would have suffered no prejudice, i.e., at the time the second trial was ordered but not yet tried. Shearson relies in part" }, { "docid": "21543767", "title": "", "text": "right to arbitration by their participation in judicial proceedings. A trial court’s finding that a party has waived its right to arbitration is subject to de novo review, but the factual findings underlying that conclusion may not be overturned unless clearly erroneous. Price v. Drexel Burnham, Lambert, Inc., 791 F.2d 1156, 1159 (5th Cir.1986). Despite the strong federal policy favoring arbitration, the right to arbitration may be waived. Price, 791 F.2d at 1158 (citing Miller Brewing Co. v. Fort Worth Distributing Co., Inc. (FWDC), 781 F.2d 494, 497 (5th Cir.1986) and Sedco, Inc. v. Petroleos Mexicanos Mexican National Oil Co. (Pemex), 767 F.2d 1140, 1150 (5th Cir.1985). While the party claiming waiver has a heavy burden, “ ‘waiver will be found when the party seeking arbitration substantially invokes the judicial process to the detriment or prejudice of the other party.’ ” Price, 791 F.2d at 1158 (quoting Miller Brewing Co., 781 F.2d at 497). “Prejudice to the party opposing arbitration, not prejudice to the party seeking arbitration, is determinative of whether a court should deny arbitration on the basis of waiver.” Price, 791 F.2d at 1162. In the instant case, the trial court made no findings as to whether Frye was prejudiced, but held that no waiver had occurred because “prior to the Byrd decision, a motion to compel arbitration would have been ‘futile.’ ” We later rejected this argument in Price, 791 F.2d at 1162-63. We do not accept Drexel’s contention that such a motion would have been futile, and therefore, that a finding of waiver is unjustified in this case. * * * Drexel’s argument is undercut by the Byrd decision itself, since the decision would never have reached the Supreme Court but for the defendant’s insistence on arbitration in the face of the intertwining doctrine. Moreover, Drexel’s futility argument assumes that the Prices would have objected to arbitration had it been raised ab initio. Id. at 1163. But see Fisher v. A.G. Becker Paribas Inc., 791 F.2d 691, 694-97 (9th Cir.1986) (failure to move to compel arbitration during three-and-a-half years of pretrial activity did not constitute waiver" }, { "docid": "23208467", "title": "", "text": "and defended the substantive issues in dispute” in the proceedings below, Brief of Appellee/Cross-Appellant at 27, and because Merrill Lynch voluntarily dismissed its interlocutory appeal from the March 1990 denial of arbitration of the Title VII dispute. Merrill Lynch, on the other hand, argues that it preserved the issue of the arbitrability of Metz’s Title VII claim in a joint pretrial order entered by the district court on June 7, 1991. There the parties stipulated that “[t]he Court has jurisdiction of the parties and of the subject matter, subject to Defendant’s right to arbitration in the event of a change in the law.” Pretrial Order at 2. Thus we must determine the effect of Merrill Lynch’s litigation activities, its dismissal of its interlocutory appeal, and the stipulation in the pretrial order. We begin with the recognition that there is a strong federal policy encouraging the expeditious and inexpensive resolution of disputes through arbitration. See Peterson v. Shearson/American Express, 849 F.2d 464, 465 (10th Cir.1988) (“There is a strong federal policy favoring arbitration for dispute resolution.”) (citing Perry v. Thomas, 482 U.S. 488, 489-90, 107 S.Ct. 2520, 2525, 96 L.Ed.2d 426 (1987)). Nevertheless “the right to arbitration, like any other contract right, can be waived.” Reid Burton Constr. Inc. v. Carpenters Dist. Council of S. Colo., 614 F.2d 698, 702 (10th Cir.) (citation omitted), cert. denied, 449 U.S. 824, 101 S.Ct. 85, 66 L.Ed.2d 27 (1980). Accord Peterson, 849 F.2d at 465-66 (“When a contract mandates arbitration, courts generally will enforce the arbitration clause absent a waiver.”) (citations omitted) (emphasis added). In determining whether a party has waived its right to arbitration, we examine the following factors: (1) whether the party’s actions are inconsistent with the right to arbitrate; (2) whether “the litigation machinery has been substantially invoked” and the parties “were well into preparation of a lawsuit” before the party notified the opposing party of an intent to arbitrate; (3) whether a party either requested arbitration enforcement close to the trial date or delayed for a long period before seeking a stay; (4) whether a defendant seeking arbitration filed a" }, { "docid": "23045189", "title": "", "text": "those claims. 2. Shearson’s Express or Implied Waiver of the Right to Compel Arbitration The appellants argue that Shearson expressly waived its right to compel arbitration unless all of the appellants’ claims are arbitrable. In addition, they argue that Shearson implicitly waived its right to compel arbitration because it actively litigated this case for over two years before moving to compel arbitration.” “A party seeking to prove waiver of a right to arbitration must demonstrate: (1) knowledge of an existing right to compel arbitration; (2) acts inconsistent with that existing right; and (3) prejudice to the party opposing arbitration resulting from such inconsistent acts.” Fisher v. A.G. Becker Paribas Inc., 791 F.2d 691, 694 (9th Cir.1986). However, waiver of the right to arbitration is disfavored because it is a contractual right, and thus “any party arguing waiver of arbitration bears a heavy burden of proof.” Id. (quoting Belke v. Merrill Lynch, Pierce, Fenner & Smith, 693 F.2d 1023, 1025 (11th Cir.1982)). The Fisher test applies to both express and implied waiver. Here, the appellants’ civil RICO and pendent state law claims are arbitrable as controversies “arising out of or relating to” their accounts with Shearson. However, appellants argue that Shearson waived its right to compel arbitration of all of the claims now because it did not seek to arbitrate the civil RICO and state claims previously. We agree. Under the first prong of the Fisher test, we find that Shearson expressly waived arbitration of the civil RICO and pendent state law claims because it relinquished a known existing right to arbitrate those claims. Shearson argues that it did not seek arbitration of the appellants’ securities claims until July of 1987 because before the McMahon decision (on June 8, 1987), it believed that Rule 15c2-2 precluded arbitration of those claims. Thus, because Shearson believed it could not arbitrate some of the claims, it chose not to arbitrate any of them. However, in Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 217, 105 S.Ct. 1238, 1240, 84 L.Ed.2d 158 (1985), the Supreme Court held that district courts must grant motions to" }, { "docid": "21543766", "title": "", "text": "The case was then transferred to Judge Fish. In April 1985, defendants demanded arbitration based on the Supreme Court’s recent decision in Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 105 S.Ct. 1238, 84 L.Ed.2d 158 (1985) (rejecting doctrine of intertwining and holding that arbitrable pendent claims must be arbitrated). In November 1985, they moved to compel arbitration. Frye opposed the motion, arguing that defendants had waived any right to arbitration by participating fully in discovery and trial without demanding arbitration. The trial court granted defendants’ motion, staying all proceedings pending arbitration. The district court ruled that any attempt to compel arbitration of Frye’s claims prior to Byrd would have been “futile” and that defendants had promptly moved for arbitration after that decision. The court later denied Frye’s motion for reconsideration. A panel of arbitrators denied Frye relief. The trial court confirmed the arbitrators’ decision and dismissed Frye’s claims. II On appeal, Frye contends that the trial court erred by compelling arbitration of her claims. She argues that the Paine Webber defendants waived their right to arbitration by their participation in judicial proceedings. A trial court’s finding that a party has waived its right to arbitration is subject to de novo review, but the factual findings underlying that conclusion may not be overturned unless clearly erroneous. Price v. Drexel Burnham, Lambert, Inc., 791 F.2d 1156, 1159 (5th Cir.1986). Despite the strong federal policy favoring arbitration, the right to arbitration may be waived. Price, 791 F.2d at 1158 (citing Miller Brewing Co. v. Fort Worth Distributing Co., Inc. (FWDC), 781 F.2d 494, 497 (5th Cir.1986) and Sedco, Inc. v. Petroleos Mexicanos Mexican National Oil Co. (Pemex), 767 F.2d 1140, 1150 (5th Cir.1985). While the party claiming waiver has a heavy burden, “ ‘waiver will be found when the party seeking arbitration substantially invokes the judicial process to the detriment or prejudice of the other party.’ ” Price, 791 F.2d at 1158 (quoting Miller Brewing Co., 781 F.2d at 497). “Prejudice to the party opposing arbitration, not prejudice to the party seeking arbitration, is determinative of whether a court should deny" }, { "docid": "18887056", "title": "", "text": "construe the Oklahoma statutory provision for noncontractual damages, Okl.Stat.Ann. tit. 23, § 61 (West 1987), broadly. See, e.g., Sade v. Northern Natural Gas Co., 483 F.2d 230, 236 (10th Cir.1973); see also King v. City of Guymon, 523 P.2d 1154 (Okla.Ct.App.1974). Viewing the evidence in the light most favorable to the verdict, we cannot say that the award is beyond the scope of the evidence before the jury, that it shocks the judicial conscience, or that it raises an irresistible inference of passion or prejudice. V. Shearson argues that the district court erred in finding that Shearson had waived its right to compel arbitration of the Oklahoma Securities Act section 408(a)(2) and breach of fiduciary duty claims. Where the dispositive facts are undisputed, the denial of a motion to compel arbitration, based on a finding of waiver, is a legal conclusion which we review de novo. Fraser v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 817 F.2d 250 (4th Cir.1987); Fisher v. A.G. Becker Paribas, Inc., 791 F.2d 691 (9th Cir.1986); see Peterson v. Shearson/American Exp., Inc., 849 F.2d 464 (10th Cir.1988). The findings upon which the conclusion of waiver is based, however, are questions of fact which must be accepted unless clearly erroneous. Reid Burton Constr. v. Carpenters Dist. Council, 614 F.2d 698 (10th Cir.), cert. denied, 449 U.S. 824, 101 S.Ct. 85, 66 L.Ed.2d 27 (1980); Del E. Webb Constr. v. Richardson Hosp. Auth., 823 F.2d 145, 150 (5th Cir.1987) (quoting Price v. Burnham Lambert, Inc., 791 F.2d 1156, 1159 (5th Cir.1986)). The trial court held that Shearson’s actions, namely its delay in asserting its contractual right to arbitrate and its extensive participation in litigation, constituted a waiver of its right to compel arbitration. Shearson claims that it did not waive its arbitration right because it sought arbitration of the state law claims at the earliest practicable time subsequent to the U.S. Supreme Court’s decision in Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 105 S.Ct. 1238, 84 L.Ed.2d 158 (1985). Shear-son maintains that the state law claims were nonarbitrable under the “intertwining doctrine,” which provided that" }, { "docid": "18887055", "title": "", "text": "of and benefits from that position. The court made the instructions specific to a relationship between a broker-dealer and a client because that is the relationship at issue. We hold that the court’s instructions sufficiently stated the law of Oklahoma regarding breach of fiduciary duty and provided the jury with ample understanding of the issues for their determination. IV. Shearson contends that the amount of damages awarded for the breach of fiduciary duty claim was excessive and lacked support in the record. “[Ajbsent an award so excessive as to shock the judicial conscience and to raise an irresistible inference that passion, prejudice, corruption or other improper cause invaded the trial, the jury’s determination of the damages is considered inviolate.” Malandris v. Merrill Lynch, Pierce, Fenner & Smith, 703 F.2d 1152, 1168 (10th Cir.1981) (en banc) (plurality opinion) (quoted in Specht v. Jensen, 832 F.2d 1516, 1528) (10th Cir.1987); see also Aspen Highlands Skiing Corp. v. Aspen Skiing Co., 738 F.2d 1509, 1526-27 (10th Cir.1984). The district court’s instruction regarding the damages award was proper. We construe the Oklahoma statutory provision for noncontractual damages, Okl.Stat.Ann. tit. 23, § 61 (West 1987), broadly. See, e.g., Sade v. Northern Natural Gas Co., 483 F.2d 230, 236 (10th Cir.1973); see also King v. City of Guymon, 523 P.2d 1154 (Okla.Ct.App.1974). Viewing the evidence in the light most favorable to the verdict, we cannot say that the award is beyond the scope of the evidence before the jury, that it shocks the judicial conscience, or that it raises an irresistible inference of passion or prejudice. V. Shearson argues that the district court erred in finding that Shearson had waived its right to compel arbitration of the Oklahoma Securities Act section 408(a)(2) and breach of fiduciary duty claims. Where the dispositive facts are undisputed, the denial of a motion to compel arbitration, based on a finding of waiver, is a legal conclusion which we review de novo. Fraser v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 817 F.2d 250 (4th Cir.1987); Fisher v. A.G. Becker Paribas, Inc., 791 F.2d 691 (9th Cir.1986); see Peterson v. Shearson/American" }, { "docid": "14697198", "title": "", "text": "Houlihan v. Schmacker, 621 F.Supp. 48 (E.D.Mo.1985); Peele v. Kidder, Peabody & Co., Inc., 620 F.Supp. 61 (W.D.Mo.1985); Land v. Dean Witter Reynolds, Inc., 617 F.Supp. 52 (E.D.Va.1985); Gerhardstein v. Shearson/American Express, Inc., [Current] Fed.Sec.L.Rep. (CCH) ¶ 92,512 (N.D. Ohio March 3, 1986); Rockoff v. Shearson Lehman/American Express, Inc., [Current] Fed.Sec.L.Rep. (CCH) ¶ 92,513 (S.D.Fla.Feb. 12, 1986); Frye v. Paine Webber Jackson & Curtis, [Current] Fed.Sec.L.Rep. (CCH) ¶ 92,516 (N.D.Tex.Dec. 26, 1985). Other courts have continued to conclude that Wilko applies to 1934 Act claims and therefore have held that such claims are not arbitrable. E.g., Shapiro v. Merrill Lynch & Co., 634 F.Supp. 587 (S.D.Ohio 1986); Bustamante v. Rotan Mosle, Inc., 633 F.Supp. 303 (S.D.Tex. 1986); Blomquist v. Churchill, 633 F.Supp. 131 (D.S.C.1985); Bale v. Dean Witter Reynolds, Inc., 627 F.Supp. 650 (D.Minn.1986); Levendag v. Churchill, 623 F.Supp. 620 (D.S.C.1985). See abo Palmer, Arbitration of Securities Complaints, Nat’l L.J., Dec. 9,1985, at 15, col. 1. Merrill Lynch contended at oral argument that two-thirds of the federal district courts that have considered the issue have held that claims arising under section 10(b) and Rule 10b-5 are arbitrable. . Phillips contends that Merrill Lynch has waived any right to compel arbitration of claims arising under section 10(b) and Rule 10b-5 because of its delay in seeking arbitration and its active participation in this lawsuit. The district court concluded that Merrill Lynch’s motion was timely in light of the recent Supreme Court decision in Dean Witter Reynolds Inc. v. Byrd, supra. We agree with the district court’s conclusion under the circumstances present in this case. See Fogarty v. Piper, 781 F.2d 662, 663 (8th Cir.1986); see also Fisher v. A.G. Becker Paribas, Inc., 791 F.2d 691, 698 (9th Cir.1986); Rush v. Oppenheimer & Co., 779 F.2d 885, 887 (2d Cir.1985). We note that a court should resolve in favor of arbitration \"any doubts concerning * * * an allegation of waiver, delay, or a like defense to arbitrability.” Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1, 24-25, 103 S.Ct. 927, 941, 74 L.Ed.2d 765 (1983). . The Securities" }, { "docid": "20698217", "title": "", "text": "1292(a), which has been interpreted to allow an interlocutory appeal from the grant or denial of a motion to compel arbitration. Miller v. Drexel, Burnham, Lambert, Inc., 791 F.2d 850, 852-53 (11th Cir.1986). Peterson claims that Shearson has waived any right to arbitrate the state law claims and that the federal claim is not arbitrable. Shearson claims that it has the right to arbitrate all claims and that it has not waived its right to compel arbitration. Shearson argues that it could not have sought arbitration of the state law claims prior to Dean Witter Reynolds Inc. v. Byrd, 470 U.S. 213, 105 S.Ct. 1238, 84 L.Ed.2d 158 (1985), which was decided on the original trial date, and that it could not have sought arbitration of the federal claim until Shearson/American Express Inc. v. McMahon, — U.S.-, 107 S.Ct. 2332, 96 L.Ed.2d 185 (1987), which was decided during the pendency of this appeal. The contract between Peterson and Shearson included the following arbitration clause: Unless unenforceable due to federal or state law, any controversy arising out of or relating to my accounts, to transactions with you for me or to this agreement or the breach thereof, shall be settled by arbitration____ Rec. vol. I at 240. There is a strong federal policy favoring arbitration for dispute resolution. Perry v. Thomas, — U.S. -, 107 S.Ct. 2520, 2525, 96 L.Ed.2d 426 (1987); Rush v. Oppenheimer & Co., 779 F.2d 885, 887 (2d Cir.1985). When a contract mandates arbitration, courts generally will enforce the arbitration clause absent a waiver. See Nesslage v. York Securities, Inc., 823 F.2d 231, 234 (8th Cir.1987) (citing Moses H. Cone Memorial Hosp. v. Mercury Constr. Co., 460 U.S. 1, 24-25, 103 S.Ct. 927, 941, 74 L.Ed.2d 765 (1983)). A party asserting a waiver of arbitration has a heavy burden of proof. Belke v. Merrill Lynch, Pierce, Fenner & Smith, 693 F.2d 1023, 1025 (11th Cir.1982). Shearson contends that although it did not suggest arbitration of the Rule 10b-5 claim either by motion or in its amended answer, it did not waive arbitration of the federal claim. We" }, { "docid": "7208978", "title": "", "text": "also prejudicially burdened Fraser to the extent that they related to arbitrable claims. We hold that Merrill Lynch waived its right to arbitration of either Fraser’s claims or its own counterclaim. Merrill Lynch argues that it should not be charged with most of the four-and-one-half-year delay in this case because, under what Merrill Lynch terms the “overwhelming view,” a motion to compel would have been futile prior to the decision in Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 105 S.Ct. 1238, 84 L.Ed.2d 158 (1985). In Byrd, the United States Supreme Court rejected the “intertwining doctrine,” under which, “[w]hen arbitrable and nonarbitra ble claims arise out of the same transaction, and are sufficiently intertwined factually and legally, the district court ... may in its discretion deny arbitration as to the arbitrable claims and try all the claims together in federal court.” Id. at 216-17, 105 S.Ct. at 1240. At the time Merrill Lynch filed its complaint in this case, the intertwining doctrine had been adopted in two circuits, Miley v. Oppenheimer & Co., Inc., 637 F.2d 318 (5th Cir.1981); Mansbach v. Prescott, Ball & Turben, 598 F.2d 1017 (6th Cir.1979), and referred to approvingly in a third. De Lancie v. Birr, Wilson & Co., 648 F.2d 1255, 1258-59 n. 4 (9th Cir.1981) (dicta). By the time Byrd was decided, the number of circuits embracing the intertwining doctrine had risen to four. Byrd v. Dean Witter Reynolds, Inc., 726 F.2d 552 (9th Cir.1984), rev’d, 470 U.S. 213, 105 S.Ct. 1238, 84 L.Ed.2d 158 (1985); Belke v. Merrill Lynch, Pierce, Fenner & Smith, 693 F.2d 1023 (11th Cir.1982). Fraser’s claim under Section 12(2) of the Securities Act of 1933 is nonarbitrable. Wilko v. Swan, 346 U.S. 427, 74 S.Ct. 182, 98 L.Ed. 168 (1953). Since this claim was intertwined with Fraser’s other claims, Merrill Lynch argues, “there was a clear basis to believe” that arbitration would be denied. Merrill Lynch’s basis to believe that the court below would compel arbitration was, however, at least equally clear. First, this Court had not directly addressed the intertwining doctrine prior to Byrd. Second," }, { "docid": "18887058", "title": "", "text": "“[w]hen ar-bitrable and nonarbitrable claims arise out of the same transaction, and are sufficiently intertwined factually and legally, the district court ... may in its discretion deny arbitration as to the arbitrable claims and try all the claims together in federal court.” Id. 216-17, 105 S.Ct. at 1240-41 (footnote omitted). Byrd rejected that doctrine. Id. at 217, 105 S.Ct. at 1240. Shear-son claims that the federal and state law claims were intertwined so that, until Byrd, it could not have sought arbitration of the state law claims because of the nonarbitrable nature of the section 12(2) claim. In Peterson, this court rejected Shearson's argument and stated that “[gjiven the open state of the law and the discretionary nature of the [intertwining] doctrine, Shearson probably should have requested arbitration of the state claims at the outset.” 849 F.2d at 467. Shearson argues, however, that it moved to compel arbitration at a point when Mi-dAmerica would have suffered no prejudice, i.e., at the time the second trial was ordered but not yet tried. Shearson relies in part on the Federal Arbitration Act’s strong policy favoring arbitration. See Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior Univ., — U.S.-, 109 S.Ct. 1248, 1253-54, 103 L.Ed.2d 488 (1989). It is generally true that courts will resolve “any doubts concerning ... waiver, delay, or a like defense to arbitrability” in favor of arbitration. Nesslage v. Pork Sec., Inc., 823 F.2d 231 (8th Cir.1987) (quoting Moses H. Cone Memorial Hosp. v. Mercury Constr. Co., 460 U.S. 1, 24-25, 103 S.Ct. 927, 941-42, 74 L.Ed.2d 765 (1983)). Further, a party alleging a waiver of arbitration bears a heavy burden of proof. Peterson v. Shearson/American Exp., Inc., 849 F.2d at 466. The Peterson court set forth several factors that this court must examine in determining whether a party has waived its right to arbitration: (1) [WJhether the party’s actions are inconsistent with the right to arbitrate; (2) whether “the litigation machinery has been substantially invoked” and the parties “were well into preparation of a lawsuit” before the party notified the opposing party of an" }, { "docid": "23208471", "title": "", "text": "F.2d 184 (1st Cir.1989), cert. denied, 493 U.S. 1045, 110 S.Ct. 842, 107 L.Ed.2d 836 (1990); Swenson v. Management Recruiters International, Inc., 858 F.2d 1304 (8th Cir.1988), cert. denied, 493 U.S. 848, 110 S.Ct. 143, 107 L.Ed.2d 102 (1989). In these circumstances, we feel that Merrill Lynch’s dismissal in August 1990 of the interlocutory appeal, without more, did not constitute a waiver of its right to seek arbitration. Peterson v. Shearson/American Express, 849 F.2d at 466; Fisher v. A.G. Becker Paribas, Inc., 791 F.2d 691, 695-97 (9th Cir.1986). However, this does not end our waiver analysis. The relevant law, while clearly adverse to Merrill Lynch in August 1990, changed before the June 1991 trial in this case. As noted, on May 13, 1991 the Supreme Court decided Gilmer v. Interstate/Johnson Lane Corporation, 500 U.S. 20, 111 S.Ct. 1647, 114 L.Ed.2d 26 (1991), and a week later vacated and remanded the Fifth Circuit’s decision in Alford v. Dean Witter Reynolds, Inc., 905 F.2d 104 (5th Cir.1990) (finding no right to compel arbitration in Title VII cases) with instructions for reconsideration in light of Gilmer. See 500 U.S. 930, 111 S.Ct. 2050, 114 L.Ed.2d 456. In Gilmer, the Court affirmed the Fourth Circuit’s decision that ADEA claims are subject to compelled arbitration. The Court explicitly eschewed its prior “mistrust of the arbitral process”, emphasizing instead the “liberal federal policy favoring arbitration agreements” reflected in the Federal Arbitration Act, 9 U.S.C. §§ 1-16. 500 U.S. at 33. n. 5, 35, 111 S.Ct. at 1656 n. 5, 1657. The Supreme Court’s actions in Gilmer and Alford clearly signaled a change in the law governing the arbitrability of Title VII claims, giving Merrill Lynch, several weeks before the trial of Metz’ claim, solid grounds to renew below its demand for arbitration. Indeed, in its reply brief in this court, p. 4, Merrill Lynch itself stated that “the remand of Alford I makes it clear that the standard [for determining arbitrability of Title VII claims] is now set forth in Gilmer v. Interstate/Johnson Lane Corp_” While Merrill Lynch asserts in its brief in chief before us," }, { "docid": "23049092", "title": "", "text": "not extend to the defamation claim, which it found was not integrally linked to the parties’ contractual relationship. Defendant’s motion to compel arbitration was therefore denied. From this denial Morganton appeals. DISCUSSION I Waiver The lineage of what a member of this Court referred to as “the old judicial hostility to arbitration,” Kulukundis Shipping Co. v. Amtorg Trading Corp., 126 F.2d 978, 985 (2d Cir.1942) (Frank, J.), is of ancient origin, extending back to those days when the English judges opposed any innovation that would deprive them of their jurisdiction. See Bernhardt v. Polygraphic Co., 350 U.S. 198, 211 n. 5, 76 S.Ct. 273, 280 n. 5, 100 L.Ed. 199 (1956) (Frankfurter, J., concurring in part). Today federal policy strongly favors arbitra tion as an alternative dispute resolution forum. See Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 480-81, 109 S.Ct. 1917, 1919-20, 104 L.Ed.2d 526 (1989). A district court has no discretion regarding the arbitrability of a dispute when the parties have agreed in writing to arbitration. McMahan Securities Co. v. Forum Capital Markets L.P., 35 F.3d 82, 85-86 (2d Cir.1994); Federal Arbitration Act, 9 U.S.C. §§ 3-4 (1988). The question of whether a party’s pretrial conduct amounts to waiver of arbitration is purely a legal one, and our review of this issue is de novo. See Rush v. Oppenheimer & Co., 779 F.2d 885, 887 (2d Cir.1985); cf. Genesco, Inc. v. T. Kakiuchi & Co., 815 F.2d 840, 846 (2d Cir.1987) (order denying motion to stay proceedings pending arbitration subject to de novo review). The factual determinations upon which a district court predicates its finding of waiver, nonetheless, are ordinarily not reversed unless they are clearly erroneous. See Fraser v. Merrill Lynch Pierce, Fenner & Smith, Inc., 817 F.2d 250, 251 n. 2 (4th Cir.1987); Price v. Drexel Burnham Lambert, Inc., 791 F.2d 1156, 1159 (5th Cir.1986); Reid Burton Constr., Inc. v. Carpenters Dist. Council, 614 F.2d 698, 703 (10th Cir.), cert. denied, 449 U.S. 824, 101 S.Ct. 85, 66 L.Ed.2d 27 (1980); cf. St. Mary’s Medical Center v. Disco Aluminum Prods. Co., 969 F.2d 585," }, { "docid": "14365285", "title": "", "text": "will address it only briefly. Fayda argues that China Products waived the parties’ arbitration agreement by engaging in negotiations and subsequent agreements instead of seeking arbitration when problems with the contract first arose. The arbitration clause itself, however, specifically provides that “[a]ll disputes arising in connection with this Sales Contract or the execution thereof shall be settled amicably by negotiation.” (D.I. 9, Exhibit A at 2 [emphasis added].) If “no settlement can be reached,the [sic] case under dispute shall then be submitted for arbitration_” (Id. [emphasis added].) Fayda has not shown or even alleged that China Products has attempted to litigate any claims under the parties’ 1987 contract. In fact, China Products’ response to Fayda’s counterclaim on this contract was the instant motion for stay under the FAA. Furthermore, Fayda has not alleged any prejudice from what it alleges is China Products’ waiver of the arbitration remedy. Bearing in mind that a “waiver of the right to arbitration is not to be lightly inferred,” Brobst v. Dean Witter Reynolds Inc., No. 86-6077, slip op. at 3 (E.D.Pa. Dec. 7, 1987) (available on Westlaw at 1987 WL 26630); accord Valero Refining, Inc. v. M/T Lauberhorn, 813 F.2d 60, 66 (5th Cir.1987); see also Peterson v. Shearson/American Express, Inc., 849 F.2d 464, 466 (10th Cir.1988), the Court concludes that as a matter of law no waiver has been shown on this record. Relationship Between Counterclaim and China Products’ Claim Fayda’s final argument against the issuance of a stay is that the facts underlying its counterclaim on the 1987 contract relate to its course of dealing defense against China Product’s claim on the 1989 contract. The Court rejects this argument as a basis for denying a section 3 motion for stay. As counsel for Fayda himself noted at oral argument, this point is covered by the Supreme Court’s opinion in Dean Witter Reynolds Inc. v. Byrd, 470 U.S. 213, 217, 105 S.Ct. 1238, 1240, 84 L.Ed.2d 158 (1985). There, the Court held that the FAA did not permit a district court to decline to enforce an arbitration agreement because arbitra-ble and nonarbitrable claims" }, { "docid": "23045188", "title": "", "text": "a particular dispute is determined by the substantive law at the time of the hearing. See McCowan v. Dean Witter Reynolds, Inc., 682 F.Supp. 741, 743 (S.D.N.Y.1987). This court recently rejected a similar argument in Leicht, 848 F.2d at 133-34. In Leicht, the defendant brokerage firm argued that similar exclusionary language in an arbitration agreement was merely a disclaimer of liability in accordance with Rule 15c2-2, but did not grant the plaintiff customer a right to litigate federal securities claims. Id. at 133. We found that the exclusionary language expressly granted the plaintiff a contractual right to litigate his securities claims. Id. Similarly, the provision in Shearson’s agreement expressly excluded from arbitration those claims arising under the federal securities laws (both the 1933 and 1934 Acts). A fortiori, such an express exclusion from arbitration is an express grant of the right to litigate those claims. Because we conclude that the arbitration agreement does not apply to the appellants’ securities claims, we need not decide whether legal constraints external to the parties’ agreement foreclose arbitration of those claims. 2. Shearson’s Express or Implied Waiver of the Right to Compel Arbitration The appellants argue that Shearson expressly waived its right to compel arbitration unless all of the appellants’ claims are arbitrable. In addition, they argue that Shearson implicitly waived its right to compel arbitration because it actively litigated this case for over two years before moving to compel arbitration.” “A party seeking to prove waiver of a right to arbitration must demonstrate: (1) knowledge of an existing right to compel arbitration; (2) acts inconsistent with that existing right; and (3) prejudice to the party opposing arbitration resulting from such inconsistent acts.” Fisher v. A.G. Becker Paribas Inc., 791 F.2d 691, 694 (9th Cir.1986). However, waiver of the right to arbitration is disfavored because it is a contractual right, and thus “any party arguing waiver of arbitration bears a heavy burden of proof.” Id. (quoting Belke v. Merrill Lynch, Pierce, Fenner & Smith, 693 F.2d 1023, 1025 (11th Cir.1982)). The Fisher test applies to both express and implied waiver. Here, the appellants’ civil" }, { "docid": "23049093", "title": "", "text": "Capital Markets L.P., 35 F.3d 82, 85-86 (2d Cir.1994); Federal Arbitration Act, 9 U.S.C. §§ 3-4 (1988). The question of whether a party’s pretrial conduct amounts to waiver of arbitration is purely a legal one, and our review of this issue is de novo. See Rush v. Oppenheimer & Co., 779 F.2d 885, 887 (2d Cir.1985); cf. Genesco, Inc. v. T. Kakiuchi & Co., 815 F.2d 840, 846 (2d Cir.1987) (order denying motion to stay proceedings pending arbitration subject to de novo review). The factual determinations upon which a district court predicates its finding of waiver, nonetheless, are ordinarily not reversed unless they are clearly erroneous. See Fraser v. Merrill Lynch Pierce, Fenner & Smith, Inc., 817 F.2d 250, 251 n. 2 (4th Cir.1987); Price v. Drexel Burnham Lambert, Inc., 791 F.2d 1156, 1159 (5th Cir.1986); Reid Burton Constr., Inc. v. Carpenters Dist. Council, 614 F.2d 698, 703 (10th Cir.), cert. denied, 449 U.S. 824, 101 S.Ct. 85, 66 L.Ed.2d 27 (1980); cf. St. Mary’s Medical Center v. Disco Aluminum Prods. Co., 969 F.2d 585, 588-89 (7th Cir.1992) (waiver determination upheld unless clearly erroneous). We have often and emphatically applied the strong federal policy favoring arbitration. See Progressive Casualty Ins. Co. v. C.A. Reaseguradora Nacional De Venezuela, 991 F.2d 42, 45 (2d Cir.1993); David L. Threlkeld & Co. v. Metallgesellschaft Ltd., 923 F.2d 245, 250 (2d Cir.), cert. dismissed, 501 U.S. 1267, 112 S.Ct. 17, 115 L.Ed.2d 1094 (1991); Fleck v. E.F. Hutton Group, Inc., 891 F.2d 1047, 1050-53 (2d Cir.1989). The rule preferring arbitration, when agreed upon, had led to its corollary that any doubts concerning whether there has been a waiver are resolved in favor of arbitration. See Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-25, 103 S.Ct. 927, 941, 74 L.Ed.2d 765 (1983). Given this presumption of arbitrability, waiver of arbitration “is not to be lightly inferred.” Rush, 779 F.2d at 887 (quoting Carcich v. Rederi A/B Nordie, 389 F.2d 692, 696 (2d Cir.1968)). Whether or not there has been a waiver is decided in the context of the case, with a" }, { "docid": "23208470", "title": "", "text": "cert. denied, 436 U.S. 948, 98 S.Ct. 2855, 56 L.Ed.2d 791 (1978); Clark v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 924 F.2d 550, 553 (4th Cir.), cert. denied, — U.S. -, 112 S.Ct. 74, 116 L.Ed.2d 48 (1991); cf. Allen v. Hadden, 738 F.2d 1102, 1106 (10th Cir.1984). Moreover, we have held that where a party “almost certainly” could not have obtained an order for arbitration before a change in the controlling precedent, there was no waiver of the right to arbitrate by not seeking arbitration. Peterson v. Shearson/American Express, 849 F.2d at 466. Here the arbitrability of Title VII claims was an open question in our circuit when Merrill Lynch dismissed its interlocutory appeal of the denial of its motion to arbitrate the Title VII claims. Other circuits which had addressed the question had concluded that no such right existed, relying on Alexander. E.g., Alford v. Dean Witter Reynolds, Inc., 905 F.2d 104 (5th Cir.1990), vacated, 500 U.S. 930, 111 S.Ct. 2050, 114 L.Ed.2d 456 (1991); Utley v. Goldman Sachs & Co., 883 F.2d 184 (1st Cir.1989), cert. denied, 493 U.S. 1045, 110 S.Ct. 842, 107 L.Ed.2d 836 (1990); Swenson v. Management Recruiters International, Inc., 858 F.2d 1304 (8th Cir.1988), cert. denied, 493 U.S. 848, 110 S.Ct. 143, 107 L.Ed.2d 102 (1989). In these circumstances, we feel that Merrill Lynch’s dismissal in August 1990 of the interlocutory appeal, without more, did not constitute a waiver of its right to seek arbitration. Peterson v. Shearson/American Express, 849 F.2d at 466; Fisher v. A.G. Becker Paribas, Inc., 791 F.2d 691, 695-97 (9th Cir.1986). However, this does not end our waiver analysis. The relevant law, while clearly adverse to Merrill Lynch in August 1990, changed before the June 1991 trial in this case. As noted, on May 13, 1991 the Supreme Court decided Gilmer v. Interstate/Johnson Lane Corporation, 500 U.S. 20, 111 S.Ct. 1647, 114 L.Ed.2d 26 (1991), and a week later vacated and remanded the Fifth Circuit’s decision in Alford v. Dean Witter Reynolds, Inc., 905 F.2d 104 (5th Cir.1990) (finding no right to compel arbitration in Title VII cases)" }, { "docid": "20698216", "title": "", "text": "BALDOCK, Circuit Judge. Plaintiff-appellee Norman C. Peterson (Peterson) commenced this action in April 1983. His complaint alleged that a broker employed by defendant-appellant Shear-son/American Express, Inc. (Shearson) was responsible for losses incurred by Peterson arising from trading in stock options. The complaint stated six claims for relief: one federal claim based on § 10(b) of the Securities Exchange Act of 1934 (1934 Exchange Act), 15 U.S.C. § 78j(b), and Rule 10b-5, 17 C.F.R. § 240.10b-5, and five pendent state law claims. Shearson successfully moved for a more definite statement, but did not move to dismiss on the grounds that all or part of the claims were arbitra-ble. Shearson then filed a timely answer to the amended complaint, but neglected to assert arbitration as a defense. Trial was originally set for March 1985, but was rescheduled for August 1985. In July 1985, Shearson filed a motion to compel arbitration and to stay the proceedings pending arbitration of four of the state law claims. The trial court denied the motion. Shearson appeals pursuant to 28 U.S.C. § 1292(a), which has been interpreted to allow an interlocutory appeal from the grant or denial of a motion to compel arbitration. Miller v. Drexel, Burnham, Lambert, Inc., 791 F.2d 850, 852-53 (11th Cir.1986). Peterson claims that Shearson has waived any right to arbitrate the state law claims and that the federal claim is not arbitrable. Shearson claims that it has the right to arbitrate all claims and that it has not waived its right to compel arbitration. Shearson argues that it could not have sought arbitration of the state law claims prior to Dean Witter Reynolds Inc. v. Byrd, 470 U.S. 213, 105 S.Ct. 1238, 84 L.Ed.2d 158 (1985), which was decided on the original trial date, and that it could not have sought arbitration of the federal claim until Shearson/American Express Inc. v. McMahon, — U.S.-, 107 S.Ct. 2332, 96 L.Ed.2d 185 (1987), which was decided during the pendency of this appeal. The contract between Peterson and Shearson included the following arbitration clause: Unless unenforceable due to federal or state law, any controversy arising" }, { "docid": "20698226", "title": "", "text": "the party notified the opposing party of an intent to arbitrate; (3) whether a party either requested arbitration enforcement close to the trial date or delayed for a long period before seeking a stay; (4) whether a defendant seeking arbitration filed a counterclaim without asking for a stay of the proceedings; (5) “whether important intervening steps [e.g., taking advantage of judicial discovery procedures not available in arbitration] had taken place”; and (6) whether the delay “affected, misled, or prejudiced” the opposing party. Reid Burton Constr., Inc. v. Carpenters Dist. Council of S. Colorado, 614 F.2d 698, 702 (10th Cir.), cert. denied, 449 U.S. 824, 101 S.Ct. 85, 66 L.Ed.2d 27 (1980). Under these factors, we conclude that Shearson has waived its right to arbitrate the state law claims. First, Shear-son’s actions were inconsistent with its alleged intent to arbitrate because it prepared for a scheduled trial without objecting on the grounds of arbitration. See rec. vol. I at 65-66, 203-09. As we have discussed, given both the unsettled state of the law in this circuit concerning the intertwining doctrine and the discretionary nature of that doctrine, Shearson should have asked the district court for arbitration of the state law claims initially. Second, the parties were well into case preparation when the arbitration request was made; indeed, they would have gone to trial had the district court not rescheduled it. See id. at 210. Third, Shearson sought arbitration close to the trial date, for reasons which include Shearson’s failure to examine the contract governing Peterson’s accounts. Fourth, important intervening steps were undertaken which were unavailable in arbitration, such as deposing witnesses. See id. at 203-09; Reid Burton, 614 F.2d at 703. Finally, Shearson’s delay in filing a motion to compel arbitration, until four months after the Byrd decision and approximately five weeks prior to the rescheduled trial date, affected and probably misled Peterson, who already had prepared for a trial. See Reid Burton, 614 F.2d at 703 (holding that defendant’s request to arbitrate on the day of trial constituted sufficient prejudice for waiver of arbitration). We hold that Shearson has waived" }, { "docid": "21543768", "title": "", "text": "arbitration on the basis of waiver.” Price, 791 F.2d at 1162. In the instant case, the trial court made no findings as to whether Frye was prejudiced, but held that no waiver had occurred because “prior to the Byrd decision, a motion to compel arbitration would have been ‘futile.’ ” We later rejected this argument in Price, 791 F.2d at 1162-63. We do not accept Drexel’s contention that such a motion would have been futile, and therefore, that a finding of waiver is unjustified in this case. * * * Drexel’s argument is undercut by the Byrd decision itself, since the decision would never have reached the Supreme Court but for the defendant’s insistence on arbitration in the face of the intertwining doctrine. Moreover, Drexel’s futility argument assumes that the Prices would have objected to arbitration had it been raised ab initio. Id. at 1163. But see Fisher v. A.G. Becker Paribas Inc., 791 F.2d 691, 694-97 (9th Cir.1986) (failure to move to compel arbitration during three-and-a-half years of pretrial activity did not constitute waiver since arbitration agreement was unenforceable prior to Byrd). The district court erred by finding that the intertwining doctrine rejected in Byrd justified defendants’ delay in seeking arbitration of Frye’s claims. “While the mere failure to assert the right of arbitration does not alone translate into a waiver of that right ... such failure does bear on the question of prejudice, and may, along with other considerations, require a court to conclude that waiver has occurred.” Price, 791 F.2d at 1161. Both delay and the extent of the moving party’s participation in judicial proceedings are material factors in assessing a plea of prejudice. Id. In Price, we held that plaintiffs had been sufficiently prejudiced by defendant’s seventeen-month delay in seeking arbitration, including the time and expense in responding to discovery and a motion for summary judgment, to conclude that defendants had waived their contractual right to arbitration. Price, 791 F.2d at 1160-62. See also Fraser v. Merrill Lynch Pierce, Fenner & Smith, Inc., 817 F.2d 250 (4th Cir. 1987) (sufficient prejudice to support waiver where brokerage" } ]

[ { "docid": "6572839", "title": "", "text": "debts for reasons not within the control of the debtor. In re Rappaport, 16 B.R. 615, 617 (Bankr.N.J.1981); 2) Whether the debtor has made a good faith effort to negotiate a deferment or forbearance of payment. In re Rice, 13 B.R. 614, 617 (Bankr.S.D.1981); 3) Whether the hardship will be long-term. In re Bowen, 37 B.R. 171, 172-173 (Bankr.M.D.Fla.1984); 4) Whether the debtor has made payments on the student loan. In re Shoberg, 41 B.R. 684, 688 (Bankr.Minn.1984); 5) Whether there is permanent or long-term disability of the debtor. In re Wilson, 76 B.R. 19, 20 (Bankr.R.I.1987); 6) The ability of the debtor to obtain gainful employment in the area of study. In re Bell, 5 B.R. 461, 463 (Bankr.N.D.Ga.1980); 7) Whether the debtor has made a good faith effort to maximize income and minimize expenses. In re Johnson, 5 B.C.D. 532, 537-38 (Bankr.E.D.Penn.1979); 8) Whether the dominant purpose of the bankruptcy petition was to discharge the student loans. In re Johnson, supra at 540-541; 9) The ratio of the student loan to the total indebtedness. In re Erickson, 52 B.R. 154, 159 (Bankr.N.D.1985). In the present case, while the Debt- or does not earn an extraordinarily high income, it is clear that she has the ability to repay the student loan indebtedness. In fact, the Debtor is able to pay not only the student loan indebtedness, but also car payments of $232.69 for her non-economy car and payments to Zales Jewelers for frivolous luxury purchases of jewelry. Any alleged “undue hardship” which the Debtor may suffer is no more than a mere “garden variety hardship” that is suffered by all bankruptcy debtors, and if there is any hardship at all, it is clearly self-imposed due to the extravagant purchases of the Debtor. The Debtor’s financial status has improved in that her income has more than doubled in the past three years. It is expected that her future income of the Debt- or will continue to rise and that her future ability to repay the student loans will only increase. There has been no showing that the Debtor has made" } ]

[ { "docid": "16947142", "title": "", "text": "be an unmarried individual (other than surviving spouses and heads of households) with a taxable income over $22,100 but not over $53,500. Her tax liability is, therefore, calculated by adding $3,315 plus 28% of the excess of her annual income ($40,000) over $22,100; this yields a liability of $8,327. Id. . Mo.Rev.Stat. § 143.011. The Debtor is a resident of Missouri with a taxable income over $9,000. Her tax liability for state income tax purposes is calculated by adding $315 plus 6% of the excess of her annual income ($40,000) over $9,000; this yields a liability of $2,175. Id. . 26 U.S.C. § 3101(a). The Debtor must pay a tax equal to 6.2% of her wages received by her with respect to her employment. Id. Therefore, her tax liability for social security purposes is $2,480. . See Order Denying Motions for Summary Judgment by Defendants Sallie Mae, Inc. and Educational Credit Management Corporation (Doc. # 114) (September 9, 2008). .These factors include: (1) total present and future incapacity to pay debts for reasons not within the control of the debtor; (2) whether the debtor has made a good faith effort to negotiate a deferment or forbearance of payment; (3) whether the hardship will be long-term; (4) whether the debtor has made payments on the student loan; (5) whether there is permanent or long-term disability of the debtor; (6) the ability of the debtor to obtain gainful employment in the area of the study; (7) whether the debtor has made a good faith effort to maximize income and minimize expenses; (8) whether the dominant purpose of the bankruptcy petition was to discharge the student loans; and (9) the ratio of student loan debt to total indebtedness. See, e.g., Houshmand v. Missouri Student Loan Program (In re Houshmand), 320 B.R. 917, 920 (Bankr.W.D.Mo.2004); VerMaas v. Student Loans of North Dakota (In re VerMaas), 302 B.R. 650, 656-57 (Bankr.D.Neb.2003); Morris v. Univ. of Arkansas (In re Morris), 277 B.R. 910, 914 (Bankr.W.D.Ark.2002). . See, e.g., DeBrower v. Pennsylvania Higher Educ. Asst. Agency (In re DeBrower), 387 B.R. 587, 591 (Bankr.N.D.Iowa 2008) (stating that" }, { "docid": "18122031", "title": "", "text": "fifteen hours a week at Goodwill Industries, for $5.50 per hour, netting $150.00 every two weeks and ten hours a week at the Dollar Store, taking home approximately $50.00 each week. The DEBTOR and TAMARA filed a joint Chapter 7 petition on February 26, 2002. The DEBTOR listed student loans totaling $20,000.00 and TAMARA listed student loans totaling $19,204.02. The DEBTOR brought this action seeking a determination that his student loans were dischargeable as an undue hardship. TAMARA has not sought to discharge her student loans. The monthly expenses for the DEBTOR and his family are rent of $300.00; gas and electricity of $160.00 to $175.00; water and sewer of $40.00; telephone of $80.00; home maintenance of $50.00; food and nonfood items of $600.00; clothing of $100.00; medical and dental expenses of $20.00; transportation expenses of $100.00; recreation expenses of $50.00; automobile insurance of $50.00; son’s school expenses of $80.00; and miscellaneous expenses of $100.00, totaling $1,745.00. The family’s total monthly income is $1,758.00, including the two Social Security payments. The DEBTOR does not have a driver’s license. ANALYSIS Under Section 523(a)(8), a student loan is not dischargeable in bankruptcy unless “excepting such debt from discharge ... will impose an undue hardship on the debtor and the debtor’s dependents.” While the term “undue hardship” is not defined in the Bankruptcy Code, the Seventh Circuit has embraced the Second Circuit’s three-part Brunner test, which requires the debtor to demonstrate by a preponderance of the evidence: 1. That the debtor cannot maintain, based on current income and expenses, a minimal standard of living for himself and his dependents if forced to repay the loans; 2. That additional circumstances exist indicating that this state of affairs is likely to persist for a significant portion of the repayment period of the student loans; and 3. That the debtor has made good faith efforts to repay the loans. Matter of Roberson, 999 F.2d 1132 (7th Cir.1993)(adopting the three-part test set by the Second Circuit in Brunner v. New York State Higher Education Services Corp., 831 F.2d 395 (2d Cir.1987), the “Brunner test”). Because the debtor" }, { "docid": "21181044", "title": "", "text": "to pay debts for reasons not within the control of the debtor; (2) whether the debtor has made a good faith effort to negotiate a deferment or forbearance of payment; (3) whether the hardship will be long-term; (4) whether the debtor has made payments on the student loan; (5) whether there is permanent or long-term disability of the debtor; (6) the ability of the debtor to obtain gainful employment in the area of the study; (7) whether the debtor has made a good faith effort to maximize income and minimize expenses; (8) whether the dominant purpose of the bankruptcy petition was to discharge the student loan; and (9) the ratio of student loan debt to total indebtedness. VerMaas v. Student Loans of North Dakota (In re VerMaas), 302 B.R. 650, 656-57 (Bankr.D.Neb.2003); Morris v. Univ. of Arkansas, 277 B.R. 910, 914 (Bankr.W.D.Ark.2002). Applying the totality of the circumstances test to the instant case, the Court examines each factor separately. B. Analysis of the Totality of the Circumstances 1. Past, Present and Reasonably Reliable Future Financial Resources The Court must first consider the Debtors’ past, present and reasonably reliable future financial resources. Because Debtors pool their income (or have pooled it in the past), and their expenses are drawn from that pooled income, the Court will consider both of Debtors’ income (or potential income). See Sweeney v. Educ. Credit Mgmt. Corp. (In re Sweeney), 304 B.R. 360, 362-63 (D.Neb.2002). According to pay stubs and corresponding bank deposits, as of July 2006, Mr. McLaughlin’s average, net monthly salary was $2,512, an amount which was understated by about $500 in his Schedule I. Despite the fact that a vast majority of Mr. McLaughlin’s pay stubs from 2005 and 2006 indicate that he earned eight or more hours of overtime pay per pay period, he testified, without any supporting documentation or witnesses, that he would no longer be receiving overtime due to a restructuring of the company. He testified that his future pay checks would reflect a straight 40 hour week at his hourly rate of $15.92. According to the testimony of a representative" }, { "docid": "273504", "title": "", "text": "income and expenses, maintain a 'minimal' standard of living for herself or her dependants if forced to repay the loans; (2) that this state of affairs is likely to persist for a significant portion of the repayment period of the student loans; and (3) that the debtor has made good faith efforts to repay the loans.” Brunner v. New York State Higher Educ. Serv. Corp., 831 F.2d 395, 396 (2d Cir.1987). The significant difference between the Brunner approach and the totality of the circumstances test is the requirement in Brunner that a debtor demonstrate that she has made good faith efforts to repay the educational loans at issue. See Kelly, 312 B.R. at 206. . Even if Elizabeth earned only $15 per hour, her pre-tax income for a 30-hour week would be $450 per week. Deducting 25% for taxes, her take-home pay would be $337.50 per week or approximately $1,450 per month ($337.50 x 4.3 weeks). . If Troy continues to make $15,000 in sales for every two-month period, or $7,500 in sales every month, he will earn a monthly commission of $750 (10% of $7,500). . We note that the bankruptcy judge did not inquire of the Smiths, directly or through counsel, about the prospects that such expenses might arise and, if they were to arise, what their amounts would be. Thus, the record is devoid of evidence on those points. Although the court's assumptions were sensible, they were not within the range of matters amenable to judicial notice. See Fed.R.Evid. 201. . If Elizabeth works 30 hours a week at $18 per hour, her pre-tax income would be $540 per week. Deducting 25% for taxes, her take-home pay will be $405 per week or approximately $1,741 per month ($405 x 4.3 weeks). Troy currently makes $600 per week, or $2,580 per month ($600 x 4.3). Including a projected monthly commission of $750, his total pre-tax earnings will be approximately $3,330 per month. Deducting 25% for taxes, his take-home pay will be approximately $2,497 per month. Thus, the Smiths will have combined take-home earnings of $4,238 per month, which" }, { "docid": "23445680", "title": "", "text": "is subject to periodic call when needed. The Debtor is currently placed at Owens-Illinois in the Chemistry lab and receives $8.50 per hour for his services. 7.) The Debtor submitted a monthly budget to the Court indicating that his net monthly income was approximately $789.00 and his net monthly expenses were approximately $858.00. 8.) The Debtor has a child by a prior marriage for whom he pays child support. The Debtor has remarried; his current spouse works at J.L. Hudson’s Department Store as a clerk for $6.50 per hour. She has a daughter, seven years of age, who lives with them; sporadic child support payments are received from this child’s father. 9.) The Debtor testified that he and his present wife have an arrangement whereby they each pay for their own expenses with their own income. Further, she is to pay the expenses incurred on behalf of her daughter who resides with them. They each contribute, however, to the mortgage. The wife pays for the taxes and insurance on the real property, and the Debtor pays the utilities. 10.) The Debtor’s personal expenses include approximately $40.00 per month in prescriptions and other general medical expenses incurred in treating his epilepsy. The Debtor testified that this condition was very likely attributable to his former drug dependence. Debtor’s budget sheet indicates that his expenses exceed his income by approximately $60.00 each month. (See Plaintiffs Exhibit 2.) This sheet, however, does not reflect his present wife’s income and her expenses. LAW The issue as previously stated is whether the facts of this particular case satisfy the exception to the non-dischargeability rule: whether repayment of the student loans would serve as an undue hardship on the Debtor. The Bankruptcy Code declares student loan obligations to be exceptions to discharge under Section 523(a)(8). Section 523(a)(8) states the following: Section 523. Exceptions to discharge. “(a) A discharge under section 727, 1141, or 1328(b) of this title does not discharge an individual debtor from any debt— ... (8) to a governmental unit, or a nonprofit institution of higher education, for an educational loan, unless— (A) such loan" }, { "docid": "21181055", "title": "", "text": "ability to obtain employment, however, there is no medical evidence to corroborate her testimony nor do her limitations stop her from traveling over 900 miles a month to visit and care for her mother, playing golf occasionally or maintaining a household, thus, they should not impede her ability to find some type of employment. Accordingly, there is no indication that either of Debtors’ physical conditions will impose limitations on their ability to earn or unusual stress on their monthly budget. The Court may also consider Debtors’ efforts to repay or negotiate repayment of their student loans. The record indicates that Mr. McLaughlin has paid approximately $3,400 toward one of his loans and that Mrs. McLaughlin has not made any payments toward her loans. Mrs. McLaughlin testified that she was aware of several different payment options being offered, with a total payment for both Debtors of between $400 and $600 per month, however there is no evidence before the Court that Debtors have attempted to incorporate a restructured payment plan into their budget. Additionally, as previously stated, although Debtors continue to pay taxes through employment withholdings, and in fact may be over withholding thereby reducing their monthly income, they have intentionally neglected to file their tax returns for the last five years. Mr. McLaughlin testified that, although they historically received a tax refund, because he was advised that any refund available could be seized by creditors to pay down their debts, they would simply not file their taxes so that creditors could not get their returns. Thus, in addition to finding that Debtors are not maximizing their income or minimizing their expenses, the Court finds Debtors’ actions of intentional ly neglecting to file tax returns to spite their creditors, lacking in good faith. For all of the above reasons, the Court finds that repayment of the Debtors’ student loan indebtedness to ECMC and Education would not impose an undue hardship on them pursuant to 11 U.S.C. § 523(a)(8) and it is therefore not dis-chargeable. It is therefore ORDERED that the indebtedness owed by Debtors to ECMC and Education not be discharged" }, { "docid": "4682282", "title": "", "text": "a significant portion of the repayment period of the student loans; and (3) that the debtor has made good faith efforts to repay the loans.” Brunner v. New York State Higher Education Services Corp., 831 F.2d 395 (2nd Cir.1987). The Debtor has not shown he cannot maintain a “minimal” standard of living if he is forced to repay his student loans. Mr. Garneau lives with his mother and does not pay rent. His mother owns her home and is self-sufficient. Mr. Garneau is not married and has no dependents. The schedules originally filed with the Court showed monthly expenses of $360 for rent, $110 for electricity, $200 for gas, $20 for water, $45 for telephone, $195 for other taxes, $30 for health insurance, $53 for insurance, $153 for his auto payment, $150 for transportation, $16 for education, $150 for food, $20 for clothing, $271 for medical, dental and medicines, $31 for laundry, cleaning and reading material, a total of $1,804. However, the testimony revealed several of those items are not the Debtor’s expenses. The only household expenses he actually pays is the telephone bill. The taxes listed were real estate taxes which his mother pays. He no longer pays for health insurance and has completed payments on his car. He also testified that his transportation was actually $225 per month and not $150. However, no explanation was given for this increase. The Debtor’s monthly expenses are $736. The Debtor has a monthly income of $1,226.27 based on the 42 hours per week which the Debtor testified he works. The Debtor did state that he intended to hire a subcontractor to work the weekends because he is unable due to his hip. Assuming he does, he will be earning approximately $875.91 per month. Even at this lower figure, he would have excess income of $139.91 per month with which to pay his $110 monthly student loan payment. On this point, it is enlightening that the Debtor made monthly payments of $153 on his car. Prior to the hearing on his complaint, Mr. Garneau finished making payments on his car loan. Thus," }, { "docid": "13881955", "title": "", "text": "where Chapter 7 debtor’s monthly deficit is $450.00 and she and her five children already living at poverty level); Wegfehrt v. Ohio Student Loan Commission (In re Wegfehrt), 10 B.R. 826 (Bankr.N.D.Ohio 1981) (Chapter 7 debtor’s educational loan, which comprised one per cent of her total indebtedness, discharged on basis of undue hardship where her monthly expenses exceeded her monthly income by $184.00); New York State Higher Education Services Corp. v. Moore (In re Moore), 4 B.C.D. 791 (Bankr.W.D.N. Y.1978) (educational loan discharged where Act “debtor’s” present style of living at poverty level, e.g. “[s]he has stretched her budget by not eating”). The Debtor is still eating lunch out, driving a non-economy model car, buying presents for his relatives, and spending money on clothes and recreation. By his own admission, after paying all these “necessary” expenses, the Debtor still has almost one hundred dollars left over. This amount reflects a “residual ability” to repay his student loan, see In re Medeiros, supra, 86 B.R. at 286, and, in essence, affirmatively answers the “mechanical” or “economic” tier of the Johnson analysis against the Debtor. Although the record does not disclose the length of the repayment term, this one hundred dollars, while short of the $144.00 monthly payment, could form the basis of a renegotiation of the Debtor’s student loan. This is especially so given the short term nature of the Debtor’s monthly loan obligations to Sears and Montgomery Ward, totalling sixty-four dollars. See Exhibits C and D. The absence of any attempt at deferral or “work-out” prior to filing for bankruptcy and again prior to commencing the instant adversary proceeding does not evidence the Debtor’s good faith to repay his loan, particularly a loan that represents the second largest claim in his petition. In addition, the filing of the petition two weeks prior to the loan’s first payment is suspect, even though the educational loan debt does comprise approximately fourteen per cent of the Debtor’s total indebtedness and he is attempting to minimize his expenses and overcome his temporary “adversity” by living with his parents. See, e.g., In re Albert, supra," }, { "docid": "4186982", "title": "", "text": "an evaluation of the debtor’s past, present, and reasonably reliable future financial resources; a calculation of the reasonable necessary living expenses of the debtor and her dependents; and any other circumstances unique to the particular bankruptcy case. Long, 322 F.3d at 554 (citing Andrews, 661 F.2d at 704 and Andresen v. Nebraska Student Loan Program, Inc. (In re Andresen), 232 B.R. 127, 140 (8th Cir. BAP 1999)). As the Eighth Circuit expressed in Long: In evaluating the totality-of-the-circumstances, our bankruptcy reviewing courts should consider: (1) the debtor’s past, present, and reasonably reliable future financial resources; (2) a calculation of the debtor’s and her dependent’s reasonable necessary living expenses; and (3) any other relevant facts and circumstances surrounding each particular bankruptcy case. Simply put, if the debtor’s reasonable future financial resources will sufficiently cover payment of the student loan debt — while still allowing for a minimal standard of living — then the debt should not be discharged. Certainly, this determination will require a special consideration of the debtor’s present employment and financial situation — including assets, expenses, and earnings — along with the prospect of future changes — positive or adverse — in the debtor’s financial position. 322 F.3d at 554-55 (citing Andresen, 232 B.R. at 141); Reynolds v. Penn. Higher Educ. Assistance Agency (In re Reynolds), 425 F.3d 526, 532 (8th Cir.2005). In applying the totality-of-the-circumstances test, courts have considered the following: (1) total present and future incapacity to pay debts for reasons not within the control of the debtor; (2) whether the debtor has made a good-faith effort to negotiate a deferment or forbearance of payment; (3) whether the hardship will be long-term; (4) whether the debtor has made payments on the student loan; (5) whether there is permanent or long-term disability of the debtor; (6) the abili ty of the debtor to obtain gainful employment in the area of the study; (7) whether the debtor has made a good-faith effort to maximize income and minimize expenses; (8) whether the dominant purpose of the bankruptcy petition was to discharge the student loan; and (9) the ratio of student" }, { "docid": "208028", "title": "", "text": "this issue have adopted a number of somewhat varying tests in defining what constitutes an “undue hardship”, but generally whether repayment of an educational loan will impose an undue hardship on the debt- or is controlled by the facts and circumstances of each case. E.g., Simons v. Higher Education Assistance Foundation, 119 B.R. 589, 592 (Bankr.S.D.Ohio 1990); Dyer v. University of Tennessee, 40 B.R. 872, 873 (Bankr.E.D.Tenn.1984). In analyzing this issue, the United States Bankruptcy Court for the Middle District of Florida recently set forth the following exhaustive list of factors to consider in determining whether or not an undue hardship exists: (1) Total incapacity now and in the future to pay one’s debts for reasons not within the control of the debtor; . (2) Whether the debtor has made a good faith effort to negotiate a deferment or forbearance of payment; (3) Whether the hardship will be long-term; (4) Whether the debtor has made payments on the student loan; (5) Whether there is permanent or long-term disability of the debtor; (6) The ability of the debtor to obtain gainful employment in the area of study; (7) Whether the debtor has made a good faith effort to maximize income and minimize expenses; (8) Whether the dominant purpose of the bankruptcy petition was to discharge the student loans, with discharge being denied if such was the dominant purpose of the bankruptcy petition; and (9) The ratio of the student loan to the total indebtedness with a larger ratio resulting in denial of discharge. D’Ettore v. Devry Institute of Technology, 106 B.R. at 718. In applying the aforementioned criteria to this case, the Court finds the Debt- or has not demonstrated by a preponderance of evidence that repayment of the student loan in question would amount to an undue hardship. The facts weighing against the Debtor’s petition in this case are that (1) The Debtor’s disability is not a total disability and, from the proof before the Court, represents at most a 50% disability, (2) the Debtor has made no effort to repay this student loan nor any serious effort to convince" }, { "docid": "1932095", "title": "", "text": "the debtor’s conduct in the broader context of his total financial picture). “Good faith is measured by the debtor’s ‘efforts to obtain employment, maximize income, and minimize expenses.’ ” [citations omitted]; see also Pena, 155 F.3d at 1114 (holding that bankruptcy court did not clearly err in finding that debtor had exhibited good faith in paying back student loans where, inter alia, debtor used large sum disability benefits distribution to pay down portions of other debts that were approximately four times amount of student loans). “A debtor’s effort — or lack thereof — to negotiate a repayment plan is an important indicator of good faith.” [citation omitted]. Birrane, at 499. It is undisputed that Debtors have made very significant payments on all of their several student loan obligations, including the New Loans — Husband paid a total of $52,332.17 over a nineteen year period, of which $23,346.75 was paid on his 1995 New Loan in five and a half years — Wife paid a total of $42,894.41 over a seventeen and a half year period, of which $11,243.44 was paid on her 1993 New Loan in approximately one year. Wife testified credibly and without contradiction about her belief that she had received a hardship deferment, her extensive efforts to learn the status of her New Loan and obtain an accounting to explain the increasing balance and addition of unidentified charges, and her tendering of large payments for several months despite a lack of information in response to her constant requests. There is no question that Debtors made serious attempts to pay the New Loans over long periods of time. As discussed above, Creditor argues that Debtors should have done more to increase income and decrease expenses. However, for the reasons set forth above, the Court does not consider that Debtors could or should have done more than they did. For example, Creditor argues that Debtors should have sought less expensive housing' — but Husband testified that he deals with “an awful lot of people who talk to me all the time about the difficulty of finding affordable housing”, Debtors’ rent" }, { "docid": "72722", "title": "", "text": "student loan obligation would be $136.33 based on her income as of the petition date. Payments under this program are calculated based upon the Debtor’s ability to pay and are tied to her actual income. After twenty-five years of payments under this program, any remaining balance would be forgiven. The bankruptcy court found that the Debtor had net monthly income of $1,443 and net monthly expenses of $1,905.95 based on her schedules as of the petition date. [Memorandum Opinion, pp. 3-4.] The net monthly expenses included a student loan payment of $564.09 and transportation costs of $195.00. [Id., p. 4.] The court found that the Debtor’s monthly expenses were anticipated to increase by approximately $100 per month for additional rent and utility expenses. [M] The court found that the Debtor’s transportation costs of $195 per month were unnecessarily high due to the transporting of her grandchildren and reduced the Debtor’s reasonable necessary monthly transportation expenses by $50. [Id., p. 9.] The court also imputed to the Debtor additional net income of $100 per month due to her potential for summer employment. [Id., p. 8.] The court found that if the student loan payment of $564.09 were eliminated from her budget, she would have excess monthly income of $151. [Id., p. 9.] Nonetheless, the court determined that the student loan debt created an undue hardship for the Debtor and entered its judgment discharging the obligation. The Appellant appealed the discharge of the student loan debt. STANDARD OF REVIEW We review the bankruptcy court’s factual findings under the clearly erroneous standard and review its determination of undue hardship de novo. Long v. Educ. Credit Mgmt. Corp. (In re Long), 322 F.3d 549, 553 (8th Cir.2003). DISCUSSION Pursuant to Section 523(a)(8) of the Bankruptcy Code, a student loan obligation is excepted from discharge “unless excepting such debt from discharge ... will impose an undue hardship on the debt- or and the debtor’s dependents.” 11 U.S.C. § 523(a)(8). The debtor bears the burden of proving undue hardship by a preponderance of the evidence. Woodcock v. Chemical Bank, NYSHESC (In re Woodcock), 45 F.3d 363" }, { "docid": "17544418", "title": "", "text": "expenses; and (3) any other relevant facts and circumstances surrounding each particular bankruptcy case. Id. (emphasis added).The debtor has the burden of proving undue hardship. Reynolds v. Penn. Higher Educ. Assistance Agency (In re Reynolds), 425 F.3d 526, 529 (8th Cir.2005). Because the totality-of-the-circumstances test is “very broad,” “courts in the Eighth Circuit have looked to a number of facts and circumstances to assist them in making this determination.” McLaughlin v. U.S. Funds (In re McLaughlin), 359 B.R. 746, 750 (Bankr.W.D.Mo.2007). Such factors include: (1) total present and future incapacity to pay debts for reasons not within the control of the debtor; (2) whether the debtor has made a good faith effort to negotiate a deferment or forbearance of payment; (3) whether the hardship will be long-term; (4) whether the debtor has made payments on the student loan; (5) whether there is permanent or long-term disability of the debtor; (6) the ability of the debtor to obtain gainful employment in the area of the study; (7) whether the debtor has made a good faith effort to maximize income and minimize expenses; (8) whether the dominant purpose of the bankruptcy petition was to discharge the student loan; and (9) the ratio of student loan debt to total indebtedness. Id. (citing VerMaas v. Student Loans of N.D. (In re VerMaas), 302 B.R. 650, 656-57 (Bankr.D.Neb.2003); Morris v. Univ. of Ark. (In re Morris), 277 B.R. 910, 914 (Bankr.W.D.Ark.2002)). Thus, a “debtor’s good faith effort to lower [his or] her monthly payment by qualifying for an income contingent repayment plan is a factor in the undue hardship analysis.” Cumberworth v. U.S. Dep’t of Educ. (In re Cumberworth), 347 B.R. 652, 661 (8th Cir.BAP2006) (emphasis added). A bankruptcy court should not “plac[e] too much weight on [the debtor’s] refusal to enroll in the ICRP.” Coco v. N.J. Higher Educ. Student Assistance Auth. (In re Coco), No. 08-2965, 2009 WL 1426757, at *4 (3d Cir. May 22, 2009) (unpublished). This is “because any discharged portion of [the debtor’s] loan would be treated as taxable income at the time of the discharge, [meaning that the debtor’s]" }, { "docid": "16947143", "title": "", "text": "the control of the debtor; (2) whether the debtor has made a good faith effort to negotiate a deferment or forbearance of payment; (3) whether the hardship will be long-term; (4) whether the debtor has made payments on the student loan; (5) whether there is permanent or long-term disability of the debtor; (6) the ability of the debtor to obtain gainful employment in the area of the study; (7) whether the debtor has made a good faith effort to maximize income and minimize expenses; (8) whether the dominant purpose of the bankruptcy petition was to discharge the student loans; and (9) the ratio of student loan debt to total indebtedness. See, e.g., Houshmand v. Missouri Student Loan Program (In re Houshmand), 320 B.R. 917, 920 (Bankr.W.D.Mo.2004); VerMaas v. Student Loans of North Dakota (In re VerMaas), 302 B.R. 650, 656-57 (Bankr.D.Neb.2003); Morris v. Univ. of Arkansas (In re Morris), 277 B.R. 910, 914 (Bankr.W.D.Ark.2002). . See, e.g., DeBrower v. Pennsylvania Higher Educ. Asst. Agency (In re DeBrower), 387 B.R. 587, 591 (Bankr.N.D.Iowa 2008) (stating that availability of ICRP is one factor to be considered); Collins v. Educational Credit Mgmt. Corp. (In re Collins), 376 B.R. 708, 716 (Bankr.D.Minn.2007) (holding that the availability of the ICRP is one factored to be considered, but is not determinative, nor should it be given undue weight by the court); Bray v. Educational Credit Management Corp. (In re Bray), 332 B.R. 186, 198 (Bankr.W.D.Mo.2005) (holding that the court must consider the availability of repayment restructuring options). . 34 C.F.R. § 685.209. . See 34 C.F.R. § 685.209(c)(4). It is unclear whether the discharge under the ICRP creates tax liability. To the extent a student loan is discharged in a bankruptcy case, there is no tax liability to the debtor. . 34 C.F.R. § 685.209(a)(2) (2006). . 72 Fed.Reg. 26803-01, 2007 WL 1372759 at *26804 (Attachment — Examples of Calculations of Monthly Repayment Amounts, Example 1, Step 1) (May 11, 2007). .Id. The constant multiplier is a factor used to calculate amortized payments at a given interest rate over a fixed period of time. Id. ." }, { "docid": "4273894", "title": "", "text": "a 1984 car with over 200,000 miles. According to her bankruptcy schedules, Debtor’s current monthly income is $2,299.33, which just pays her monthly expenses of $2,295.05. One of these expenses is a $130 payment on her mother’s discharged unsecured loan debt. Debtor admitted that she could afford to pay a portion of the student loan debt — about $100 per month, but not all of it. In 2001, when Debtor’s deferments were exhausted and her wages were about to be garnished, she made ten reduced monthly payments totaling $1,450.62. Then, in 2002, Debtor received a collection statement and notice that her payments were increasing from $800 to $917 per month under a 10-year repayment plan. In addition, the monthly payment of $917 would not suffice to pay the accruing monthly interest. Unable to pay that amount, Debtor was referred by ECMC to the William D. Ford Direct Loan Program (“Ford”). Debtor testified that, after several meetings with Ford representatives, the lowest payment plan Ford had offered her required a $14,000 sign-up fee and monthly payments of about $800 for 50 years, for a-total of $250,000. Both parties agreed that even if Debtor qualified for Ford’s Income Contingent Repayment (“ICR”) program, the best terms would likely be about $389 per month for at least 25 years. On June 12, 2002, Debtor filed a voluntary chapter 7 petition. She commenced an adversary proceeding to determine that the student loan debt was dischargeable under § 523(a)(8) because it was an “undue hardship.” Debtor alleged that she could not afford the $917 minimum monthly payment, and had not been able to obtain affordable loan consolidation. She noted that it was likely that her inability to pay would continue for a significant portion of the repayment period “based on her age and the fact that she is maxed out in her career potential.” Plaintiffs Trial Brief (July 29, 2003), at 3. Therefore, she asserted that she met the test for undue hardship formulated in Brunner v. New York State Higher Educ. Servs. Corp., 831 F.2d 395, 396-97 (2d Cir.1987) and adopted by the Ninth Circuit" }, { "docid": "21181043", "title": "", "text": "living enjoyed before the filing of the petition. See Stanley, 300 B.R. at 817. On the other hand, it is not necessary that a debtor live in abject poverty in order to demonstrate undue hardship and obtain a discharge of student loans. See Stanley, 300 B.R. at 818. A minimal standard of living requires that the debtor have sufficient financial resources to satisfy needs for food, shelter, clothing and medical treatment. Gill v. Nelnet Loan Services, Inc. (In re Gill), 326 B.R. 611, 627 (Bankr.E.D.Va.2005); see also Myers v. Fifth Third Bank (In re Myers), 280 B.R. 416, 421-422 (Bankr.S.D.Ohio 2002) (minimal standard of living includes the following elements: shelter, utilities, food and personal hygiene, clothing, health insurance or ability to pay medical and dental expenses and recreation). The “totality of the circumstances” is obviously a very broad test, giving the Court considerable flexibility. As a result, courts in the Eighth Circuit have looked to a number of facts and circumstances to assist them in making this determination including: (1) total present and future incapacity to pay debts for reasons not within the control of the debtor; (2) whether the debtor has made a good faith effort to negotiate a deferment or forbearance of payment; (3) whether the hardship will be long-term; (4) whether the debtor has made payments on the student loan; (5) whether there is permanent or long-term disability of the debtor; (6) the ability of the debtor to obtain gainful employment in the area of the study; (7) whether the debtor has made a good faith effort to maximize income and minimize expenses; (8) whether the dominant purpose of the bankruptcy petition was to discharge the student loan; and (9) the ratio of student loan debt to total indebtedness. VerMaas v. Student Loans of North Dakota (In re VerMaas), 302 B.R. 650, 656-57 (Bankr.D.Neb.2003); Morris v. Univ. of Arkansas, 277 B.R. 910, 914 (Bankr.W.D.Ark.2002). Applying the totality of the circumstances test to the instant case, the Court examines each factor separately. B. Analysis of the Totality of the Circumstances 1. Past, Present and Reasonably Reliable Future Financial" }, { "docid": "18781664", "title": "", "text": "higher Court says otherwise, § 523(a)(8) excepts from discharge, an educational loan guaranteed by a governmental unit or non-profit institution regardless of whether the loan is made directly to the student or to the student’s parent. Having found that § 523(a)(8) does apply to the case at bar, the next question which must be answered is whether the debt should be discharged for undue hardship. In In re Ford, 22 B.R. 442, 9 B.C.D. 715 (Bankr.W.D.N.Y.1982) this Court set forth the legislative history, case law definitions, and tests regarding the determination of undue hardship in educational loan discharge cases. This opinion will apply those principles and tests to the facts in the case at bar. Courts have applied three tests to determine whether the facts of a particular case constitute undue hardship. The three tests are: (i) the mechanical “undue hardship” test (focusing on debtor’s expenses and future financial resources); (ii) the good faith test (factors include debtor’s efforts to obtain employment, minimize expenditures, and maximize resources); and (iii) the underlying policy test (amount of student loan debt, percentage of indebtedness, and benefit from education). In re Clay, 12 B.R. 251, 254 (Bankr.N.D.Iowa 1981) citing In re Johnson, 5 B.C.D. 532, 544-45 (Bankr.E.D.Pa.1979). The first test is the mechanical test. In Ford, this Court held that with a monthly net income of $1,116 and monthly expenses of $1,330, to require the debtor to pay $35.53 in monthly installments as required by the student loan agreement would impose an economic deprivation and undue hardship on the debtor. In the case at bar, the debtors’ present monthly expenses are within twenty dollars of their monthly income. It must be noted here that the debtors’ expenses were unrealistic in a couple of areas. The debtors listed clothing expenses of only $15 a month, $180 a year is not going to adequately clothe a family of six. Likewise, the $15 a month for home repair and auto maintenance does not seem appropriate. One auto repair will deplete the $180 the debtors have budgeted. In addition to these observations, the debtor has incurred post-petition medical" }, { "docid": "4186983", "title": "", "text": "assets, expenses, and earnings — along with the prospect of future changes — positive or adverse — in the debtor’s financial position. 322 F.3d at 554-55 (citing Andresen, 232 B.R. at 141); Reynolds v. Penn. Higher Educ. Assistance Agency (In re Reynolds), 425 F.3d 526, 532 (8th Cir.2005). In applying the totality-of-the-circumstances test, courts have considered the following: (1) total present and future incapacity to pay debts for reasons not within the control of the debtor; (2) whether the debtor has made a good-faith effort to negotiate a deferment or forbearance of payment; (3) whether the hardship will be long-term; (4) whether the debtor has made payments on the student loan; (5) whether there is permanent or long-term disability of the debtor; (6) the abili ty of the debtor to obtain gainful employment in the area of the study; (7) whether the debtor has made a good-faith effort to maximize income and minimize expenses; (8) whether the dominant purpose of the bankruptcy petition was to discharge the student loan; and (9) the ratio of student loan debt to total indebtedness. Poe v. Penn. Higher Educ. Assistance Agency (In re Poe), 354 B.R. 265, 269 (Bankr.W.D.Mo.2006) (citing Morris v. Univ. of Ark. (In re Morris), 277 B.R. 910, 914 (Bankr.W.D.Ark.2002) (quoting D’Ettore v. Devry Inst. of Tech. (In re D’Ettore), 106 B.R. 715 (Bankr.M.D.Fla.1989))). The student loan creditors argue that Ms. May should be required to take advantage of the loan consolidation and repayment plans offered by the Department of Education and make affordable payments over the next 25 years rather than discharge the debt. The availability of the government’s income-contingent repayment plan is merely one factor to be considered in determining undue hardship; it is not determinative. Lee v. Regions Bank Student Loans (In re Lee), 352 B.R. 91, 95 (8th Cir. BAP 2006). Overemphasizing an income-contingent repayment plan “would have the effect in many cases of displacing the individualized determination of undue hardship mandated by Congress in § 523(a)(8) since the payments on a student loan will almost always be affordable, i.e., not impose an undue hardship on a" }, { "docid": "4186992", "title": "", "text": "in the Bank of America account was inconsistent and illogical, as was her testimony regarding her reasons for commingling her money and expenses with Mr. Hillhouse. It is difficult, if not impossible, to decipher her actual financial resources and expenses. Most importantly, Plaintiff has not demonstrated a good-faith effort to minimize her expenses. As discussed above, her expenses are not modest or commensurate with her resources. Balm v. Salliemae Servicing Corp. (In re Balm), 333 B.R. 443, 448 (Bankr.N.D.Iowa 2005). A debtor who desires to discharge student loan debt must show by a preponderance of the evidence that repayment of those loans would impose an undue hardship upon her. This Debtor simply has not met that burden. She has not made any real effort to repay the loans, has not taken advantage of the income contingent repayment plan for the consolidated loan, nor has she explored consolidation or refinance options with respect to the five loans which were not included in the Direct Consolidated Loan. Her true financial picture was not established with any clarity at all. Between cutting back on expenses by several hundred dollars per month and factoring in a modest increase in income from her current jobs, the totality of circumstances of this case reveal that it would not be an undue hardship for Plaintiff to pay student loan payments of around $700.00 per month. That amount would cover the monthly payments owed to the five student loan obligations (those payable to Help Service Group, Inc., The Education Resources Institute, Texas Guaranteed Student Loan Corporation, and Texas Higher Education Coordinating Board) which predate the consolidation loan. Combined, the five loans due to those four entities carry a monthly payment obligation of approximately $698.00 per month. Plaintiffs current financial resources will permit her to make payments on these loans, and it is not unreasonable to believe, given her education, abilities, and perhaps a modicum of motivation, that she can further increase her future financial resources. Plaintiff does not suffer from a disability or other condition that prevents her from achieving her full earning potential. In fact, with two" }, { "docid": "208029", "title": "", "text": "the debtor to obtain gainful employment in the area of study; (7) Whether the debtor has made a good faith effort to maximize income and minimize expenses; (8) Whether the dominant purpose of the bankruptcy petition was to discharge the student loans, with discharge being denied if such was the dominant purpose of the bankruptcy petition; and (9) The ratio of the student loan to the total indebtedness with a larger ratio resulting in denial of discharge. D’Ettore v. Devry Institute of Technology, 106 B.R. at 718. In applying the aforementioned criteria to this case, the Court finds the Debt- or has not demonstrated by a preponderance of evidence that repayment of the student loan in question would amount to an undue hardship. The facts weighing against the Debtor’s petition in this case are that (1) The Debtor’s disability is not a total disability and, from the proof before the Court, represents at most a 50% disability, (2) the Debtor has made no effort to repay this student loan nor any serious effort to convince her daughter to make any payments on the student loan, (3) the Tennessee Court of Appeals on review of the Debtor’s unemployment compensation application found as a matter of fact that the Debtor had voluntarily imposed restrictions upon her availability for work, including imposing salary restrictions and medical restrictions which were beyond those restrictions set by her doctors, and the Court of Appeals’ findings of fact are binding upon the Debtor in this proceeding absent contrary proof, (4) while the Debtor has a “bare bones budget”, the Debtor has made no efforts to maximize her income and thereby obtain funds to make some repayment on this student loan, and (5) the Debtor’s bankruptcy petition reveals that the student loan debt represents a substan tial part of her total unsecured debt — a fact weighing against granting the Debtor a hardship discharge. The Debtor relies heavily upon her present poor financial position to support her request for a hardship discharge. However, as previously mentioned, the fact that the Debtor suffers present financial adversity is insufficient in" } ]

[ { "docid": "21905604", "title": "", "text": "GINSBURG, Circuit Judge: This case presents a novel and difficult legal issue in the context of the mounting volume of litigation relating to deaths or injuries caused by exposure to asbestos products. We are asked to decide whether manifestation of any asbestos-related disease (in this case, asbestosis) triggers the running of the statute of limitations on all separate, distinct, and later-manifested diseases (here, malignant mesothelioma, an extremely lethal form of cancer) engendered by the same asbestos exposure. We hold that time to commence litigation does not begin to run on a separate and distinct disease until that disease becomes manifest. I. Introduction A. The Facts Beginning in 1941, Henry J. Wilson was steadily employed as an insulation worker at various construction sites in the metropolitan Washington, D. C. area. As an inte gral element of this employment, Wilson regularly handled and was otherwise exposed to asbestos and asbestos products. On February 14, 1973, Wilson was x-rayed as part of his local union’s routine program instituted to determine which workers, if any, had contracted asbestosis. Evaluation of these x-rays revealed that Wilson was indeed suffering from “mild asbestosis.” Following his receipt of this diagnosis, Wilson began a new job, still in the insulation trade, but involving little, if any, exposure to asbestos. Subsequent to 1973, Wilson’s health rapidly deteriorated. He suffered two heart attacks in June 1974 and a collapsed lung in February 1975, and was hospitalized on each occasion. Because of these episodes and on the advice of his physician, Wilson retired. Complaining of sharp pains in his chest, Wilson was again hospitalized in February 1978. On this occasion, Wilson was diagnosed as having mesothelioma, a cancer of the mesothelial cells with a poor prognosis for recovery. Wilson died on May 17,1978. B. The District Court Proceedings On May 16, 1979, just short of one year after Wilson’s death, his widow, Blannie S. Wilson (“Appellant”), instituted the instant diversity action. Named as defendants (collectively “Johns-Manville”) were designers, manufacturers, and distributors of as bestos and asbestos products, which, allegedly, Wilson frequently used, installed, removed, or otherwise encountered. Proceeding under the District" } ]

[ { "docid": "23507083", "title": "", "text": "of the time of initial exposure to the potential pathogen. In this context, the “sustained” injury must be equated with the physical manifestation of disease. The corollary is that the actionable delict in strict liability for physical injury is the generation of disease in the plaintiff’s body, and not the initial exposure of the plaintiff to potentially hazardous substances or some more abstract invasion of the plaintiff’s legally protectible interests. The question remains, however, whether, upon the manifestation of one disease, a cause of action accrues for all prospective diseases, so that the plaintiff has the right (and in a limitations context, the duty) to seek recovery for physically distinct and separate diseases that may or may not develop in the future. The courts that have considered this issue in the limitations context have said no. In Wilson v. Johns-Manville Sales Corp., 684 F.2d 111 (D.C.Cir.1982), the court determined that a diagnosis of “mild asbestosis” in 1973 did not start the limitations period running for the separate and distinct disease of mesothelioma, first manifested in 1978. The court noted that there was a tension between the underlying evidentiary and repose considerations. The court observed that although it would best serve the defendant’s interests in repose to have all contingent claims accrue simultaneously, the evidentiary concerns of “the existence of the [prospective] disease, its proximate cause, and the resultant damage” are better served by allowing the evidence to develop over time. Id. at 119. The court then determined that the plaintiff’s interest in receiving adequate compensation and the defendant’s interest in paying no more than that were best served by recognizing discrete causes of action for discrete injuries. Id. Finally, the court held that considerations of judicial economy weighed in favor of recognizing separate causes of action, lest the plaintiff be compelled to rush to court upon the first manifestation of an injury not in itself worthy of litigation, rather than risk losing all claims for future serious injuries. Id. at 120. Accord, Pierce v. Johns-Manville Sales Corp., 296 Md. 656, 464 A.2d 1020 (1983). In Goodman v. Mead Johnson &" }, { "docid": "20070167", "title": "", "text": "repose and the law’s expectation of a reasonable plaintiff’s diligence against the unfairness which would result from a rule that commenced a cause of action predicated on an injury which was unknown and unknowable. Further, a rule which commences a cause of action for unforeseeable injuries which have not yet manifested themselves, would impose an unreasonable and undesirable incentive for anticipatory actions. We note that this holding is consistent with decisions by courts in other jurisdictions that apply a discovery principle similar to the rule in Illinois. For example, in Pierce v. Johns-Manville Sales Corp., 296 Md. 656, 464 A.2d 1020 (1983), the plaintiff had been employed as an insulation mechanic, where he was exposed to asbestos and asbestos products manufactured by defendant. In 1973 plaintiff suffered from severe chest pain and was diagnosed with asbestosis. He was told that this condition increased the risk that he would acquire lung cancer. Although his previous symptoms persisted, he was reasonably healthy until 1979, when he was diagnosed with adenocarcinoma of the lung — a form of cancer. Plaintiff’s survivors brought an action against the manufacturer of the asbestos, which the defendant resisted by arguing that the limitations period commenced when plaintiff first learned of an injury caused by defendant’s products. Maryland’s high court, applying a discovery rule identical to Illinois’, held that plaintiff’s knowledge of the asbestosis injury did not cause an action based on his lung cancer to accrue prior to the manifestation of that later injury. The rationale underlying statutes of limitation supports the conclusion that having never sought tort recovery for the harm resulting from asbestosis, recovery for the harm resulting from lung cancer should not be barred and that, therefore, a cause of action accrued at the time [plaintiff] knew or reasonably should have known of the existence of lung cancer. 464 A.2d at 1026. See also Wilson v. Johns-Manville Sales Corp., 684 F.2d 111 (D.C.Cir.1982) (applying District of Columbia law to a similar factual setting as Pierce and reaching same conclusion); Sheppard v. A.C. & S. Co., 498 A.2d 1126 (Del.Super.Ct.1985) (applying Delaware law, plaintiffs knowledge" }, { "docid": "293026", "title": "", "text": "producing cause of mesothelioma. Insufficient exposure is a defense which is preserved under this collateral estoppel order preventing relitigation of whether products containing asbestos are defective and whether asbestos dust can be a producing cause of mesothelioma. Plaintiffs’ wrongful death cause of action is alleged to have accrued in 1977-1978 when Alvin Flatt contracted mesothelioma and died; obviously, plaintiffs could not have joined in Borel. Plaintiffs did not know of their claim during the period when Borel was being litigated. Johns Manville was not sued for nominal damages by Ciar ence Borel s survivors, and the procedural rules currently in effect in the federal courts are the same as the rules that governed the trial of Borel. The Court is convinced that the estoppel effect of the Borel judgment was foreseeable to Johns Man-ville; furthermore, the Court finds that the Borel opinion relates to all products which contain asbestos and is not limited to the particular products to which Clarence Borel was exposed. Johns Manville has successfully defended several asbestos lawsuits in the recent past. Campbell v. Johns Manville, No. 3-78-185 (E.D.Tenn.1978); Starnes v. Johns Manville, No. 2075-122 (E.D.Tenn.1977); Carpenter v. Johns Manville, No. C-78-224 (N.D.Ohio 1979). The Court notes that Johns Manville had a judgment entered in its favor in Mooney v. Fibreboard Corp., et. al., 485 F.Supp. 242 (E.D.Tex.1980), a case in which Chief Judge Fisher collaterally estopped re-litigation of the issue of whether products containing asbestos are unreasonably dangerous and held that asbestos dust is a competent producing cause of mesothelioma and asbestosis. These previous judgments in favor of Johns Manville are not inconsistent with the conclusion reached in Borel that asbestos products were defectively marketed without an adequate warning because “inhaling asbestos dust in industrial conditions, even with relatively light exposure, can produce the disease of asbestosis.” Ibid., p. 1083. Rather, lawsuits in which Johns Manville has prevailed have been decided on the basis that there was insufficient exposure to asbestos dust, or alternatively, the plaintiff, or decedent, did not contract asbestosis or mesothelioma. The Court holds that as a matter of law products containing asbestos" }, { "docid": "13199053", "title": "", "text": "does not arise at a specific point of time, as does a broken bone; mesothelioma results over a period of time, the beginning of the period being unknown. In other words, the cancer — the hurt — the harm — the injury— did not spring up at infliction of the wrongful act, that is, when the dust was inhaled no later than 1972. Rather, the tumor — the hurt — the harm — the injury — manifestly occurred before June of 1978 when the mesothelioma was diagnosed; the time it began to form before that date not being shown by the evidence. Simply put, legally and medically there was no injury upon inhalation of defendants’ asbestos fibers. Id. It is thus clear that the Virginia Supreme Court regarded the inhalation or exposure to asbestos particles as the wrongful act of the defendants and not as the plaintiffs injury. The United States Court of Appeals for the Fourth Circuit followed the Locke decision in Large v. Bucyrus-Erie Co., 707 F.2d 94 (4th Cir.1983), and held that the plaintiff’s claim alleging that he was suffering from various ailments, including bilateral hearing loss, silicosis, industrial bronchitis and asbestosis, as a result of his exposure to excessive noise, silica dust, stone dust and asbestos dust was time barred by the applicable Virginia statute of limitations. The Fourth Circuit more specifically noted that: Locke is on point with the present case factually and teaches that the statute runs from the date of injury determined to a medical certainty, not the date of last exposure. In cases based upon facts such as Locke and this one, the running of the statute is triggered by the injury even if it occurs years before the symptoms, not the date of the wrongful act, an entirely different element in the cause of action. Large, 707 F.2d at 98. The Plaintiffs in this case have presented no medical evidence which would tend to show that the above holding in Locke is not also applicable here, i.e., that the exposure is an injury and not merely the wrongful act of the" }, { "docid": "189990", "title": "", "text": "“result in the inequity of barring the mesothelioma plaintiff’s cause of action before he sustains injury.” Id. at 906. The Locke court had no occasion to consider the further wrinkle presented by this case, i.e., assuming that the statute begins to run on the date of injury, whether it begins to run anew for each successive injury caused by the same wrongful act. Joyce argues that under Locke, a personal injury plaintiff has a separate cause of action and a separate two-year limitations window for each distinct injury caused by the plaintiff’s wrongful conduct, here exposure to asbestos. We disagree. Virginia courts have long applied the rule that, for purposes of the statute of limitations, there is but a single, indivisible cause of action for all injuries sustained, whether or not all of the damage is immediately apparent. A common articulation of the rule states that where an injury, though slight, is sustained in consequence of the wrongful or negligent act of another and the law affords a remedy therefor the statute of limitations attaches at once. It is not material that all of the damages resulting from the act should have been sustained at that time and the running of the statute is not postponed by the fact that the actual or substantial damages do not occur until a later date. Caudill v. Wise Rambler, Inc., 210 Va. 11, 168 S.E.2d 257 (1969), citing Richmond Redevelopment and Housing Authority v. Laburnum Construction Corp., 195 Va. 827, 80 S.E.2d 574 (1954). See also Louisville and Nashville Railroad v. Saltzer, 151 Va. 165, 144 S.E. 456, 457 (1928) (“Whenever any injury, however slight it may be, is complete at the time the [act or omission] is completed, the cause of action then accrues.”). Nothing in the Locke opinion suggests that the Supreme Court of Virginia intended to depart from the indivisible cause of action theory. Rather, the court stressed that “[t]he rule we adopt today is but an application of our prior decisions ... to the facts of the present case.” Locke, 275 S.E.2d at 906. In a recent case, this" }, { "docid": "189987", "title": "", "text": "The parties agree that Virginia’s two-year statute of limitations for personal injury claims applies in this case. Va.Code § 8.01-243(A) (1984). The only issue on appeal is thus whether these claims accrued when the pleural effusions and parenchymal asbestosis diseases first appeared, within the limitations period, or when Joyce developed pleural thickening more than ten years earlier. Although this precise issue has not been addressed by the Supreme Court of Virginia, we are constrained to hold that, given that court’s prior decisions and adherence to the theory that in an action for personal injury, there is but a single, indivisible cause of action, Joyce’s only cause of action against the manufacturers accrued when he first developed pleural thickening sometime prior to 1970. The Virginia statute of limitations for personal injuries provides, in pertinent part, that “every action for personal injuries, whatever the theory of recovery, ... shall be brought within two years next after the cause of action shall have accrued.” Va.Code § 8.01-243(A) (1984). Accrual is governed by Va.Code § 8.01-230 (1984), which provides that “[i]n every action for which a limitation period is prescribed, the cause of action shall be deemed to accrue and the prescribed limitation period shall begin to run from the date the injury is sustained____” The issue of accrual of a cause of action for latent asbestos-related disease was addressed by the Virginia Supreme Court for the first time in Locke v. Johns-Manville Corp., 221 Va. 951, 275 S.E.2d 900 (1981). In Locke, the plaintiff sought damages for malignant mesothelioma suffered as a result of occupational exposure to airborne asbestos fibers between 1948 and 1972. Locke was apparently in excellent health until he experienced symptoms in 1978, and a subsequent chest X-ray revealed mesothelioma. The trial court held that Locke’s complaint, filed in 1978, was untimely because his exposure to asbestos had ended nearly six years earlier. The issue on appeal was whether the cause of action ac-. crued at or before the last tortious exposure in 1972 or at the time that Locke first developed mesothelioma several years later. Defining “injury” (for purposes" }, { "docid": "8799465", "title": "", "text": "a later-manifesting disease that is totally separate and distinct from the initial injury. We simply hold that the district court was correct in concluding that Kemp’s injury was the PID and that the statute of limitations began to run when she knew of her injury and its cause, not when she later discovered all of the consequences and complications of the PID. IV. CONCLUSION For the foregoing reasons, we AFFIRM. . The parties agree that the limitations period governing this suit is six years. However, the statute has subsequently been amended to allow only three years. See Miss.Code Ann. § 15-1-49 (1995); Owens-Illinois, Inc. v. Edwards, 573 So.2d 704, 705 (Miss.1990). . For example, following exposure to asbestos, an individual can contract asbestosis or mesothelioma. These diseases can emerge years apart from each other. The asbestosis is related to the mesothelioma only in the sense that both are caused by exposure to asbestos. However, mesothelioma develops independently of asbestosis; it is possible to have mesothelioma without ever having asbestosis, and vice versa. See Wilson v. Johns-Manville Sales Corp., 684 F.2d 111, 113, 117 (D.C.Cir.1982)." }, { "docid": "23507089", "title": "", "text": "To permit “recovery” for harms not yet effected would contravene Mississippi’s clear policy against treating manufacturers as insurers of their products. Whatever benefit lies in allowing some plaintiffs present compensation for speculative future injury must be balanced against the need for maintaining viable enterprises that can accomplish the risk distribution purpose of strict liability for those persons who are caused injury by a defendant’s product. See Ward v. Hobart Manufacturing Co., 450 F.2d 1176, 1189 (5th Cir.1971) (construing Mississippi law). The detriment to defendants of allowing claims for uneffected future harms is mani fest. A plaintiff who suffered the injury of asbestos callouses on his hands, for instance, plausibly could institute an action, based on expert testimony of statistical probability, to recover not only for callouses but for future injuries that ran the gamut from asbestosis to mesothelioma to lung cancer. The defendants’ interests in repose pale against the interests of equitable exposure to liability. On the other hand, the plaintiff suffers little if any detriment by being required to await manifestation of a condition before having a claim for damages resulting from that class of conditions. The quality of the plaintiff’s evidence of cancer injury is likely to improve with the passage of time. Indeed, the plaintiff has a better chance of securing fair compensation for his injuries when the injury has actually manifested itself and medical certainty can replace speculation. Our holding that the causes of action must be divided for purposes of seeking recovery for future harm requires that they also be discrete for limitations purposes. It would disadvantage a plaintiff unfairly and disserve judicial economy to measure the limitations periods for future diseases from the time of manifestation of a separate and distinct disease. Because the claims for separate injuries are divisible, the plaintiff would not be barred from bringing a subsequent suit based on claims for separate and distinct injuries within the applicable limitation period following the materialization of the later disease. Cf. Everett Plywood Corp. v. United States, 512 F.2d 1082, 1087 (Ct.Cl.1975) (separate action founded on single indivisible contract may be brought later" }, { "docid": "23507082", "title": "", "text": "(1972), which provides: “All actions for which no other period of limitation is prescribed shall be commenced within six years next after the cause of such action accrued, and not after.” The court observed: The statute of limitations in strict products liability cases should strike a balance between the necessity of providing the consumer with adequate time within which to discover a defect and institute an action, and the need to provide the manufacturer with a definite period of liability and a date on which his exposure to suit ends .... [W]e hold that ... the statute begins to run from the time that injuries are sustained. Ford Motor Co. v. Broadway, 374 So.2d at 209. The court’s recognition of the plaintiff’s need to have adequate time in which to vindicate his rights commands the view that the Mississippi court would follow the judicial trend in adopting the discovery rule for strict liability latent disease cases, rather than put upon the plaintiff the uneasy burden of instituting a claim for injuries unknown and unknowable as of the time of initial exposure to the potential pathogen. In this context, the “sustained” injury must be equated with the physical manifestation of disease. The corollary is that the actionable delict in strict liability for physical injury is the generation of disease in the plaintiff’s body, and not the initial exposure of the plaintiff to potentially hazardous substances or some more abstract invasion of the plaintiff’s legally protectible interests. The question remains, however, whether, upon the manifestation of one disease, a cause of action accrues for all prospective diseases, so that the plaintiff has the right (and in a limitations context, the duty) to seek recovery for physically distinct and separate diseases that may or may not develop in the future. The courts that have considered this issue in the limitations context have said no. In Wilson v. Johns-Manville Sales Corp., 684 F.2d 111 (D.C.Cir.1982), the court determined that a diagnosis of “mild asbestosis” in 1973 did not start the limitations period running for the separate and distinct disease of mesothelioma, first manifested in" }, { "docid": "8799464", "title": "", "text": "had been injured until he discovered that the temporary numbness was really permanent. Kemp knew she was injured when she was diagnosed with PID. That she later discovered an aftereffect of that injury does not change the fact that she knew she was injured. Kemp insists that because PID and infertility are not synonymous, limitations for a cause of action for infertility should bé measured on a different timeline than an action for PID. We in no way mean to suggest that PID and infertility are synonymous. However, they are both the product of the same chain of causality: the IUD caused the PID, and the PID caused the infertility. Cases in other contexts, such as asbestos, have distin guished between two separate, distinct diseases and two interrelated conditions. See, e.g., Wilson v. Johns-Manville Sales Corp., 684 F.2d 111 (D.C.Cir.1982). In the case at bar, there is but one disease — PID; the infertility is not a separate disease, but a complication of the PID. We express no opinion with regard to a situation involving a later-manifesting disease that is totally separate and distinct from the initial injury. We simply hold that the district court was correct in concluding that Kemp’s injury was the PID and that the statute of limitations began to run when she knew of her injury and its cause, not when she later discovered all of the consequences and complications of the PID. IV. CONCLUSION For the foregoing reasons, we AFFIRM. . The parties agree that the limitations period governing this suit is six years. However, the statute has subsequently been amended to allow only three years. See Miss.Code Ann. § 15-1-49 (1995); Owens-Illinois, Inc. v. Edwards, 573 So.2d 704, 705 (Miss.1990). . For example, following exposure to asbestos, an individual can contract asbestosis or mesothelioma. These diseases can emerge years apart from each other. The asbestosis is related to the mesothelioma only in the sense that both are caused by exposure to asbestos. However, mesothelioma develops independently of asbestosis; it is possible to have mesothelioma without ever having asbestosis, and vice versa. See Wilson v." }, { "docid": "22441254", "title": "", "text": "Circuit explained that although \"the possible existence of subclinical asbestos-related injury may be of interest to a histologist ...[,] subclinical injury resulting from exposure to asbestos is insufficient to constitute the actual loss or damage ... required to sustain a cause of action under generally applicable principles of tort law.” 758 F.2d at 942. We tend to agree. Nevertheless, Schweitzer is obviously not this case. Here we have Jackson, whose injuries are far from being merely sub-clinical. . Despite the clear applicability of Layton, the defendants have cited enough slightly off-point cases that we are compelled to say what this case is not. It is not an asbestos suit where a plaintiff with cancer who never sought to recover for asbestosis or any other asbestos-related injury but who did in fact have another asbestos-related injury comes before us seeking some recovery. The present case is therefore unlike those where a cancer victim who had not brought suit upon manifestation of another earlier-developing injury later attempts to get something once cancer appears. See, e.g., Pierce v. Johns-Manville Sales Corp., 296 Md. 656, 464 A.2d 1020 (1983); Wilson v. Johns-Manville Sales Corp., 684 F.2d 111 (D.C.Cir.1982). In Wilson, for example, the D.C. Circuit rejected JM’s claim that \"once some harm is apparent, a claim accrues not only for harm then manifest, but for all harm that may eventuate in the future as a result of the same conduct.” 684 F.2d at 117. In Wilson, the victim of asbestosis never brought suit; his widow did after the victim died of asbestos-related mesothelioma. The D.C. Circuit permitted the widow’s suit but explicitly noted that \"we need not and do not decide whether Johns-Manville’s initial premise is correct, i.e., whether judgment on a claim for asbestosis ... would have precluded a subsequent claim based on the ... mesothelioma diagnosis. It suffices to point out that res judi- cata (claim preclusion) doctrine and policy would control the decision on that question.” 684 F.2d at 117. Our case is different. Since Jackson has already sued to recover for asbestosis, it is enough for our purposes that Mississippi" }, { "docid": "189988", "title": "", "text": "that “[i]n every action for which a limitation period is prescribed, the cause of action shall be deemed to accrue and the prescribed limitation period shall begin to run from the date the injury is sustained____” The issue of accrual of a cause of action for latent asbestos-related disease was addressed by the Virginia Supreme Court for the first time in Locke v. Johns-Manville Corp., 221 Va. 951, 275 S.E.2d 900 (1981). In Locke, the plaintiff sought damages for malignant mesothelioma suffered as a result of occupational exposure to airborne asbestos fibers between 1948 and 1972. Locke was apparently in excellent health until he experienced symptoms in 1978, and a subsequent chest X-ray revealed mesothelioma. The trial court held that Locke’s complaint, filed in 1978, was untimely because his exposure to asbestos had ended nearly six years earlier. The issue on appeal was whether the cause of action ac-. crued at or before the last tortious exposure in 1972 or at the time that Locke first developed mesothelioma several years later. Defining “injury” (for purposes of § 8.01-230, the date on which a cause of action accrues) to mean “positive, physical or mental hurt to the claimant, not legal wrong to him in the broad sense that his legally protected interests have been invaded,” the court held that Locke’s action was timely. 275 S.E.2d at 904-05. Stressing that it was not embracing a “discovery” rule, the court noted that it is conceivable that in a given case the evidence will demonstrate that an injury occurred months or even years before the onset of symptoms and diagnosis. Id. at 905. Rather, observing that a cause of action involves three essential elements, (1) a legal obligation of a defendant to a plaintiff, (2) a violation or breach of that duty or right, and (3) harm or damage to the plaintiff caused by the violation or breach, the court held that a cause of action for personal injuries is keyed to the date of injury rather than the date of the wrongful act. Id. at 904. To hold otherwise, reasoned the court, would" }, { "docid": "15964972", "title": "", "text": "CUMMINGS, Chief Judge. These appeals require us to determine when the Wisconsin statute of limitations for personal injuries begins running against causes of action for asbestos-caused diseases. The plaintiffs or decedents in each of the ten cases below were insulation workers who were exposed to insulation containing asbestos. In two of the pases the insulation workers died from mesothelioma, a cancer that allegedly is caused by exposure to asbestos fibers. In the remaining eight cases the workers suffer from asbestosis, a lung disease involving fibrosis of the lungs, pleural thickening, pleural plaques, and shortness of breath. For a detailed description of asbestosis, see Porter v. American Optical Corp., 641 F.2d 1128, 1132-1133 (5th Cir. 1981). The defendants and third-party defendants are or once were manufacturers of asbestos insulation products. Asbestos products generally have wrought widespread and monstrous suffering. It is reported that insurers of asbestos manufacturers now face roughly 16,000 damage suits and that new cases are filed at the rate of 450 per month. During the past forty years, some nine million American workers still alive today were exposed to asbestos, and a study to be published by the Labor Department estimates that at least 8,500 workers — perhaps as many as 10,000 — will die each year until the end of this century from asbestos-related cancers. Wall St.J., June 14, 1982, at 1, col. 6 (Midwest Ed.). The district court consolidated the ten cases for pretrial purposes. The defendants and third-party defendants moved for summary judgment in nine of the actions based on Wisconsin’s three-year statute of limitations for personal injury and wrongful death, Wis.Stat. §§ 893.14, 893.205(1), and 893.205(2) (1977). The district court denied the motions, but certified that its denial “involves a controlling issue of law as to which there is a substantial ground for difference of opinion, and an immediate appeal therefrom may materially advance the ultimate termination of the litigation.” Order of April 6, 1981 at 9. We then permitted these interlocutory appeals pursuant to 28 U.S.C. § 1292(b). I There is no dispute that Wisconsin law governs these causes of action and that" }, { "docid": "190001", "title": "", "text": "district court. AFFIRMED. . Joyce named as defendants A.C. and S., Inc., Eagle-Picher Industries, Owens-Corning Fiberglas Corp., Pittsburgh Corning Corp., Armstrong World Industries, Inc., The Celotex Corp., Fiberboard Corp., Armstrong Cork Co., Atlas Turner, Ltd., Bell Asbestos Mines, Ltd., E.I. DuPont de Nemours & Co., Inc., Gale Corp., Keene Corp., Lake Asbestos of Quebec, Ltd., GAF Corp., Southern Textile Corp., Raymark Industries, Inc., Nicolet, Inc., and Forty-Eight Insulation, Inc., each of which had its citizenship in states other than Virginia. . In an order dated August 15, 1983, the district court granted the motions of William S. Legus, Sr., James S. Moore, both DuPont employees, and William S. Legus, Sr., Executor of the Estate of Bessie C. Legus, to intervene in this action. All of the claims of the Estate of Bessie C. Legus, as well as the claims of Moore and Legus against the manufacturers, were later settled. With respect to their claims against DuPont, references in this opinion to Joyce refer to the plaintiffs Moore and Legus as well. . According to the deposition of DuPont’s medical director, prior to 1970 the company’s policy was to retain only an employee's initial X-ray and the most recent one taken, so long as intervening X-rays were free of changes. Consequently, the company retained only Joyce’s initial 1946 chest X-ray until 1970, after which time it saved X-rays taken each year. . Joyce also claims to be in the high risk category for mesothelioma, lung and intestinal cancer, and other asbestos-related diseases. . The Virginia statute of limitations was amended in 1985 to provide that actions for asbestos-related injuries or diseases accrue “when a diagnosis of asbestosis, interstitial fibrosis, mesothelioma or other disabling asbestos-related injury or disease is first communicated to the person or his agent by a physician.” Va.Code § 8.01-249 (Supp.1985). . A well-established exception to the rule permits plaintiffs separate rights of action for personal injuries and property damage. See Caudill v. Wise Rambler, Inc., 210 Va. 11, 168 S.E.2d 257 (1969), Carter v. Hinkle, 189 Va. 1, 52 S.E.2d 135 (1949). . Plaintiffs’ \"Memorandum in Opposition of" }, { "docid": "2603458", "title": "", "text": "CORNELIA G. KENNEDY, Circuit Judge. The sole question in this consolidated appeal is when, under the law of Ohio, a cause of action against a manufacturer of asbestos for injury due to exposure accrues. Each of the three plaintiffs-appellants sued appellees, manufacturers of products containing asbestos, in separate actions before different District Court judges, claiming injury due to exposure to asbestos. Appellant Clutter was exposed to asbestos pri- or to 1962 when he helped dismantle a chemical plant and between 1962 and 1964 when he worked with asbestos-containing brake shoe linings. In February 1977, he was diagnosed as having pleural mesothelioma. He filed suit March 8, 1978. He died August 17, 1978. (His widow continued his suit as a survival action and added a wrongful death claim. The wrongful death claim is not before this Court.) Appellant Dwiggins was last exposed to asbestos January 1976. He was disabled as of May 1976, when a tissue sample was taken from his lung. At that time asbestosis was not diagnosed. However, a reeut from the same tissue was analyzed February 24, 1978 as showing asbestosis. He filed suit February 24, 1978. Appellant McGreevey worked as an asbestos insulation mechanic 1939-1973. He was first diagnosed as having asbestosis July 1977 and filed suit October 13, 1977. The courts below held that these claims were governed by the statute of limitations found in Ohio Rev.Code § 2305.10. That section provides that an action for bodily injury shall be brought within two years after the cause thereof arose. The District Courts held that under Ohio law, plaintiffs-appellants’ causes of action arose when the injury occurred, which in the present cases was when the last exposure to asbestos occurred. The courts refused to apply the date when the disease manifested itself. The District Court relied upon Wyler v. Tripi, 25 Ohio St.2d 164, 267 N.E.2d 419 (1971), in which the Ohio Supreme Court refused to apply a discovery rule in a malpractice case. Although the Ohio Supreme Court later articulated an exception to Wyler and applied the discovery rule to a suit alleging the doctor had" }, { "docid": "189989", "title": "", "text": "of § 8.01-230, the date on which a cause of action accrues) to mean “positive, physical or mental hurt to the claimant, not legal wrong to him in the broad sense that his legally protected interests have been invaded,” the court held that Locke’s action was timely. 275 S.E.2d at 904-05. Stressing that it was not embracing a “discovery” rule, the court noted that it is conceivable that in a given case the evidence will demonstrate that an injury occurred months or even years before the onset of symptoms and diagnosis. Id. at 905. Rather, observing that a cause of action involves three essential elements, (1) a legal obligation of a defendant to a plaintiff, (2) a violation or breach of that duty or right, and (3) harm or damage to the plaintiff caused by the violation or breach, the court held that a cause of action for personal injuries is keyed to the date of injury rather than the date of the wrongful act. Id. at 904. To hold otherwise, reasoned the court, would “result in the inequity of barring the mesothelioma plaintiff’s cause of action before he sustains injury.” Id. at 906. The Locke court had no occasion to consider the further wrinkle presented by this case, i.e., assuming that the statute begins to run on the date of injury, whether it begins to run anew for each successive injury caused by the same wrongful act. Joyce argues that under Locke, a personal injury plaintiff has a separate cause of action and a separate two-year limitations window for each distinct injury caused by the plaintiff’s wrongful conduct, here exposure to asbestos. We disagree. Virginia courts have long applied the rule that, for purposes of the statute of limitations, there is but a single, indivisible cause of action for all injuries sustained, whether or not all of the damage is immediately apparent. A common articulation of the rule states that where an injury, though slight, is sustained in consequence of the wrongful or negligent act of another and the law affords a remedy therefor the statute of limitations attaches" }, { "docid": "21905610", "title": "", "text": "of the plaintiffs rights.” Burnett v. New York Central Railroad, 380 U.S. 424, 428, 85 S.Ct. 1050, 1054, 13 L.Ed.2d 941 (1965). Latent disease claims fit comfortably within this generalization. As Justice Rutledge observed, application of the invasion-of-the-body rule to such cases, which involve “unknown and inherently unknowable” harm, would provide the injured party with only a “delusive” remedy. Urie v. Thompson, 337 U.S. 163, 169, 69 S.Ct. 1018, 1024, 93 L.Ed. 1282 (1949). See also Ricciuti v. Voltarc Tubes, Inc., 277 F.2d 809, 813 (2d Cir. 1960) (time-of-the-act rule “would nullify any right to recover for many serious but slowly and insidiously developing diseases”); Harig, 284 Md. at 80, 394 A.2d at 305. Johns-Manville principally argues, however, that even if the discovery rule is applicable to the instant case, Appellant’s claim is nonetheless barred by the three-year limitations period. Henry Wilson, Johns-Man-ville urgés most strenuously, had only one indivisible cause of action for asbestos-related injuries and that cause of action accrued five years before he “discovered” that he had cancer; it accrued in 1973 when Wilson “discovered” he was suffering from “mild asbestosis.” We now turn to that central contention. B. Distinct Illnesses as Separate Causes of Action Johns-Manville focuses on the alleged wrongful conduct and asserts that once some harm is apparent, a claim accrues not only for harm then manifest, but for all harm that may eventuate in the future as a result of the same conduct. Johns-Man-ville’s theory is that Henry Wilson’s claim ripened no later than February 1973 when he was diagnosed as having “mild asbestosis.” Within three years of that diagnosis, Johns-Manville reasons, Wilson could have instituted a personal injury action seeking damages, not only for asbestosis, but for consequences that might develop later, including separate and distinct illnesses such as mesothelioma or another form of cancer. Had Wilson sued between 1973 and 1976, and then attempted to return to court after the February 1978 malignant me-sothelioma diagnosis, he would have been blocked, Johns-Manville asserts, by the well-established rule that a claim or cause of action may not be split. See generally Restatement (Second)" }, { "docid": "189993", "title": "", "text": "“Once a cause of action is complete and the statute of limitations begins to run, it runs against all damages resulting from the wrongful act, even damages which may not arise until a future date____ The emotional distress ... was only an additional injury resulting from the same wrongful act.” Id. See also Large v. Bucyrus-Erie Co., 707 F.2d 94 (4th Cir.1983), affirming the district court’s grant of summary judgment for defendants, 524 F.Supp. 285 (E.D. Va.1981) (“Of course, the general rule in Virginia is that the limitations period begins to run when the initial injury, even if relatively slight, is sustained, and the manifestation of more substantial injuries at a later date does not extend the limitations period.” 524 F.Supp. at 289). In this case, although the date of Joyce’s first injury' — pleural thickening — is unclear, he does not dispute that it developed more than two years before this action was filed. Under Locke, the statute of limitations was not triggered until the pleural thickening developed; under Virginia’s indivisible cause of action rule, Joyce’s only cause of action for all of his asbestos-related injuries also accrued on that date. Therefore, Joyce’s complaint seeking damages from the manufacturers for pleural effusion and parenchymal asbestosis, both of which were allegedly caused by exposure to asbestos, was not timely filed and was properly dismissed by the district court. We recognize that this rule may effectively preclude recovery for serious injuries that develop more than two years after an initial hurt, however slight, given the difficulty of proving future damages when the fact and extent of future injury is unknown. Although the indivisible cause of action theory is readily justified in cases of traumatic injury, where all damages are generally immediately apparent, its result may be harsh when applied to asbestos-related or other “creeping disease” cases where, by definition, there may be gaps between the onset of various distinct injuries caused by exposure to asbestos. We are not, of course, at liberty to modify the rule. Any change in favor of asbestos or other latent disease plaintiffs must come from the" }, { "docid": "15964974", "title": "", "text": "Sections 893.14, 893.205(1), and 893.205(2) of the 1977 Wisconsin Statutes comprise the applicable statutes of limitations. Those sections provide: 893.14 Actions, time for commencing. The following actions must be commenced within the periods respectively hereinafter prescribed after the cause of action has accrued * * *. 893.205 Within 3 years. Within 3 years: (1) An action to recover damages for injuries to the person * * *. (2) An action brought to recover damages for death caused by the wrongful act, neglect or default of another * * *. The dispute underlying the motions for summary judgment concerns when a cause of action for asbestos-caused injuries “has accrued” within the meaning of these statutes and thus when the three-year period has begun running. Wisconsin law is well established up to a point. “A cause of action accrues when there exists a claim capable of present enforcement, a suable party against whom it may be enforced, and a party who has a present right to enforce it.” Barry v. Minahan, 127 Wis. 570, 573, 107 N.W. 488 (1906). In order to have “a claim [in tort] capable of present enforcement,” the Wisconsin Supreme Court has held the plaintiff must have suffered “an injury,” or “damages.” See, e.g., United States Fire Ins. Co. v. E.D. Wesley Co., 105 Wis.2d 305, 316, 313 N.W.2d 833 (1982); Holifield v. Setco Industries, Inc., 42 Wis.2d 750, 755, 168 N.W.2d 177 (1969). The problem in the instant cases is to fix a time during the course of the plaintiffs’ progressive development of asbestos-caused disease when the plaintiffs were “injured” and the limitations period began running. There are roughly three different times during the course of an asbestos disease when a plaintiff might be deemed to have received the injury that starts the limitations period: when (or while) the plaintiff is exposed to asbestos, when the plaintiff’s disease is first medically diagnosable, or when the plaintiff’s disease has manifested itself by symptoms such as shortness of breath that should or in fact do alert the plaintiff to the presence of a disease. Although no Wisconsin case is" }, { "docid": "21905617", "title": "", "text": "workers’ compensation or private insurance, may provide adequate recompense for the initial ailment. If no further disease ensues, the injured party would have no cause to litigate. However, if such a person is told that another, more serious disease may manifest itself later on, and that a remedy in court will be barred unless an anticipatory action is filed currently, there will be a powerful incentive to go to court, for the consequence of a wait-and-see approach to the commencement of litigation may be too severe to risk. Moreover, a plaintiff’s representative in such a case may be motivated to protract and delay once in court so that the full story of his client’s condition will be known before the case is set for trial. | Our consideration of this appeal persuades us that a model or rule acceptable for more common personal injury actions may not be appropriate in latent disease cases. . With respect to the statute of limitations issue before us, we conclude that a potential defendant’s interest in repose is counterbalanced and outweighed by other factors, (including evidentiary considerations, securing fair compensation for. serious harm, and deterring uneconomical anticipatory lawsuits. We therefore hold that the diagnosis of,“mild asbestosis’' received by Henry Wilson in February 1973 did not start the clock on his right to sue for the separate and distinct disease, mesothelioma, attributable to the same asbestos exposure, but not manifest until February 1978. Blannie Wilson’s action, we decide, to the extent that it seeks recovery based on me-sothelioma, from which her husband suffered and died, was timely filed. Conclusion For the reasons stated, we hold that Appellant’s Survival and Wrongful Death action was timely. We therefore reverse the district court’s summary judgment order dismissing the complaint and remand this ease for further proceedings. It is so ordered. . It has been estimated that new asbestos cases are being filed át a rate of 450 a month and that 16,000 such cases are currently pending. Wall St. J., June 14, 1982, at 1, col. 6. Responding, inter alia, to the estimate that 1.6 million workers will" } ]

[ { "docid": "22664195", "title": "", "text": "Justice Brennan delivered the opinion of the Court. This case, commenced as a petition for an order to compel arbitration under § 4 of the United States Arbitration Act of 1925 (Arbitration Act or Act), 9 U. S. C. §4, presents the question whether, in light of the policies of the Act and of our decisions in Colorado River Water Conservation District v. United States, 424 U. S. 800 (1976), and Will v. Calvert Fire Insurance Co., 437 U. S. 655 (1978), the District Court for the Middle District of North Carolina properly stayed this diversity action pending resolution of a concurrent state-court suit. The Court of Appeals for the Fourth Circuit reversed the stay. 656 F. 2d 933, rehearing denied, 664 F. 2d 936 (1981). We granted certiorari. 455 U. S. 937 (1982). We affirm. I Petitioner Moses H. Cone Memorial Hospital (Hospital) is located in Greensboro, N. C. Respondent Mercury Construction Corp. (Mercury), a construction contractor, has its principal place of business in Alabama. In July 1975, Mercury and the Hospital entered into a contract for the construction of additions to the Hospital building. The contract, drafted by representatives of the Hospital, included provisions for resolving disputes arising out of the contract or its breach. All disputes involving interpretation of the contract or performance of the construction work were to be referred in the first instance to J. N. Pease Associates (Architect), an independent architectural firm hired by the Hospital to design and oversee the construction project. With certain stated exceptions, any dispute decided by the Architect (or not decided by it within a stated time) could be submitted by either party to binding arbitration under a broad arbitration clause in the contract: “All claims, disputes and other matters in question arising out of, or relating to, this Contract or the breach thereof, . . . shall be decided by arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association then obtaining unless the parties mutually agree otherwise. This agreement to arbitrate shall be specifically enforceable under the prevailing arbitration law. The award rendered" } ]

[ { "docid": "20364465", "title": "", "text": "before any litigation and referred the Kilpatricks to the provision in their warranty booklet requiring conciliation or arbitration as a condition precedent to any attempted litigation. The Kilpatricks requested through their attorney that the matter be submitted to arbitration with the American Arbitration Association (“AAA”) as provided in the warranty booklet. The Kilpatricks’ attorney reviewed the AAA rules and represented them at the arbitration. The arbitrator determined that the problems with the Kilpa-tricks’ house were not covered by the warranty and ruled in favor of HBW. The Kil-patricks did not appeal the arbitrator’s decision or file a proceeding in court to have it vacated, modified, or corrected. Instead the Kilpatricks filed suit on the contract in Louisiana state court, and HBW removed to federal court based on diversity of citizenship. Along with its answer, HBW filed a counterclaim for confirmation of the earlier arbitration. HBW also filed a motion for summary judgment based on arbitration and award. The district court granted the motion and the arbitration award was confirmed. II. A. We review a grant of summary judgment de novo, viewing all evidence in the light most favorable to the non-moving party. E.g., Insurance Company of North America v. Dealy, 911 F.2d 1096 (5th Cir.1990). Our review of the district court’s confirmation of an arbitrator’s award is likewise de novo. Executone Information Systems, Inc. v. Davis, 26 F.3d 1314 (5th Cir.1994). We also approach this case in the light of the “liberal federal policy favoring arbitration.” Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24, 103 S.Ct. 927, 941, 74 L.Ed.2d 765 (1983). B. The central issue in this case is whether the district court correctly determined that the parties agreed to binding arbitration. The Kilpatricks contend that the warranty called for non-binding arbitration based on a provision in the warranty that “[t]he dispute resolution process shall precede any litigation attempted by either party.” The Kilpatricks argue that the fact that the warranty makes arbitration a condition precedent to litigation indicates that the arbitration is non-binding. We disagree. Numerous courts have held that arbitration is binding" }, { "docid": "20364467", "title": "", "text": "where the rules under which the arbitration is conducted call for binding arbitration. E.g., Rainwater v. National Home Ins. Co., 944 F.2d 190 (4th Cir.1991) (holding that an arbitration in accordance with AAA rules is a binding arbitration); Commonwealth Edison Co. v. Gulf Oil Corp., 541 F.2d 1263, 1273 (7th Cir.1976) (holding that incorporation of rules of arbitration in agreement established requisite consent to judgment); I/S Stavborg (O.H. Meling, Manager) v. National Metal Converters, Inc., 500 F.2d 424 (2d Cir.1974) (holding that agreement to be bound by arbitration and consent to judgment could be inferred by reference to rules which provide for binding arbitration); see also Varley v. Tarrytown Associates, Inc., 477 F.2d 208, 210 (2d Cir.1973) (conceding that agreement to binding arbitration could be expressed by incorporating arbitration rules, but finding that AAA rules in force at the time did not allow for entry of judgment); cf. Dowling v. Home Buyers Warranty Corp. II, 428 S.E.2d 709 (S.C.1993) (finding that there was no agreement to arbitrate where the Arbitration Acknowledgement and correspondence from the arbitration agency stated that the arbitration would not be binding). The decisions holding that reference to AAA rules as permitting entry of judgment are longstanding. Consequently, all parties are on notice that resort to AAA arbitration will be deemed both binding and subject to entry of judgment unless the parties expressly agree otherwise. Rainwater, 944 F.2d at 194. In the instant case, it is undisputed that the warranty provided that AAA rules would govern if the dispute were submitted to AAA arbitration. The arbitration was conducted under AAA rules and those rules provided for binding arbitration unless the applicable law or the terms of the warranty specified otherwise. We must therefore determine whether there is anything in the warranty that specifies non-binding arbitration. We find the Kilpatricks contention that the “condition precedent” language in the warranty calls for non-binding arbitration unpersuasive. We agree with the Fourth Circuit’s treatment of this issue in Rainwater: Though [the Kilpatrick’s] claim has some surface appeal, we think that the “condition precedent” language cannot carry all the weight [the Kilpatricks]" }, { "docid": "1923861", "title": "", "text": "more than judicial confirmation or other subsequent procedures not undermining the binding nature of the arbitration. Id. Given this history and precedent, “first referred” is insufficiently specific to overcome the policy and presumption favoring binding arbitration. Plaintiffs next allege that defendants’ failure to include in the arbitration clause express language indicating that the arbitration would be binding should be held to indicate an intent that the arbitration would not be binding. Plaintiffs point to standard clauses recommended by the American Arbitration Association (“AAA”) which include express language that arbitration shall be binding and suggest that defendants’ decision not to use those clauses in the Agreement indicates lack of intent to refer to binding arbitration. While the inclusion of express language such as “binding” or “final” would support an interpretation that the parties intended to refer to binding arbitration, it does not necessarily follow that the omission of such language indicates a contrary intent. Generally, a presumption in favor of a particular interpretation puts the parties on notice that if they wish to escape the default rule, they must do so explicitly, but an intent to invoke the default rule need not be expressly indicated. Restatement (SECOND) Of CONTRACTS § 202 (1981). Similarly, plaintiffs’ reliance upon the rule that ambiguities are to be construed against the drafter is unpersuasive. As noted above, the Agreement must be interpreted in light of the liberal federal policy which includes the expectation that arbitration shall be binding. Given this presumption, the “first referred” language is not sufficiently unclear to constitute an ambiguity. Even if it were, the rule of construing clauses against the drafter is not unilaterally dispositive when other decisive factors are present. Case law supports this interpretation. Courts have held that the “magic words” such as “final” or “binding” are unnecessary when the clause includes certain other indications of an intent to consent to binding arbitration. Rainwater, 944 F.2d at 193: see also Commonwealth Edison v. Gulf Oil Corp., 541 F.2d 1263, 1266 (7th Cir.1976); I/S Stavborg v. Nat’l Metal Converters, Inc. 500 F.2d 424, 425 (2d Cir.1974); Varley v. Tarrytown Assocs., 477" }, { "docid": "1923860", "title": "", "text": "overcome the policy and presumption favoring binding arbitration. Numerous courts have held that language implying that arbitration was a condition precedent to any other avenues of resolution is not sufficiently specific to call for non-binding arbitration. McKee II, 45 F.3d at 984; Rainwater v. Nat’l Home Ins. Co., 944 F.2d 190, 194 (4th Cir.1991); Duke v. Crop Growers Ins., Inc., 70 F.Supp.2d 711, 715 (S.D.Tex.1999) (respectively holding that clauses such as “shall precede,” “shall be a condition precedent,” and separate right-to-sue language, do not overcome the policy favoring arbitration). In this Court’s opinion, “first referred” is sufficiently similar to the language used in these cases that it is reasonable to apply the same rule. The Fourth Circuit explained that “condition precedent” language was traditionally included in arbitration clauses to overcome the federal courts’ hostility toward enforcing such clauses. Rainwater. 944 F.2d at 194. Since the enactment of the FAA, courts are no longer reluctant to enforce arbitration clauses, so any “condition precedent” language is merely an artifact that should not be interpreted to indicate anything more than judicial confirmation or other subsequent procedures not undermining the binding nature of the arbitration. Id. Given this history and precedent, “first referred” is insufficiently specific to overcome the policy and presumption favoring binding arbitration. Plaintiffs next allege that defendants’ failure to include in the arbitration clause express language indicating that the arbitration would be binding should be held to indicate an intent that the arbitration would not be binding. Plaintiffs point to standard clauses recommended by the American Arbitration Association (“AAA”) which include express language that arbitration shall be binding and suggest that defendants’ decision not to use those clauses in the Agreement indicates lack of intent to refer to binding arbitration. While the inclusion of express language such as “binding” or “final” would support an interpretation that the parties intended to refer to binding arbitration, it does not necessarily follow that the omission of such language indicates a contrary intent. Generally, a presumption in favor of a particular interpretation puts the parties on notice that if they wish to escape the default" }, { "docid": "9777671", "title": "", "text": "and must be interpreted like any other contract. Saturn Distribution Corp. v. Williams, 905 F.2d 719 (4th Cir.1990). The warranty describes the following procedures to be followed in the event of a disagreement between a homeowner and underwriter on a claim: Should the Builder or Homebuyer(s) disagree with the Insurer’s decision to deny the claim ..., the contesting party shall call for conciliation with [HBW] or an arbitration to be conducted by the American Arbitration Association (A.A.A.),_ The conciliation and/or arbitration process will be conducted in accordance with the warranty conditions described herein and the rules and regulations of the A.A.A. ... The voluntary dispute settlement process provided herein shall be a condition precedent to the commencement of any litigation by any party to compel compliance with the warrant documents or to seek relief for any dispute arising out of this program. We note that this contract was drafted by NHIC and therefore should be construed against them when ambiguities are present. As support for his position, Rainwater points to the provision in the warranty that the “rules and regulations of the AAA” will apply. At the time of the arbitration, see AAA Rule 1 (“The parties shall be deemed to have agreed to these rules in the form in effect when the request for dispute settlement is received by the AAA.”), Rule 26(c) of the AAA provided: Unless the applicable law or the warranty program, the insurance policy, or another applicable document provides otherwise, the parties to these rules shall be deemed to have consented that judgment upon the arbitration award may be entered in any federal or state court having jurisdiction thereof. Based on this rule, Rainwater argues that the arbitration award in his favor, issued pursuant to AAA rules, was intended to be final and consequently must be confirmed. The district court agreed, and so do. we. Other courts also have held that reference to AAA rules and regulations is enough to make arbitration binding. In Commonwealth Edison Co. v. Gulf Oil Corp., 541 F.2d 1263, 1272-73 (7th Cir.1976), which involved arbitration of a uranium supply contract," }, { "docid": "1923857", "title": "", "text": "deficiencies as a basis upon which the Court may vacate the award, the effort must fail. Any misconduct alleged by the plaintiffs is on the part of defendants, not the arbitrator. Moreover, plaintiffs state that they lodged their complaints with the arbitrator and, although they were subsequently denied, plaintiffs do not assert any prejudicial error in the arbitrator’s review of their objections. Absent substantial misconduct that prejudiced plaintiffs’ case before the arbitrator, this Court has no authority to modify or vacate an award by a qualified arbitrator that is the result of a process that appears to have afforded plaintiffs an opportunity to fully and fairly adjudicate their claims. See Fairchild & Co., 516 F.Supp. at 1314. B. Plaintiffs’ Motion to Clarify Order Notwithstanding this Court’s ruling that the parties were bound to arbitrate their dispute, plaintiffs argue that the decision of the arbitrator is not binding on them. Consequently, they assert that they are free to pursue in litigation the claims which have been denied in arbitration. In support of this argument, plaintiffs rely on a case which states that “mandatory arbitration” and “binding arbitration” are “two different things.” U.S. v. Bankers Ins. Co., 245 F.3d 315, 322 (4th Cir.2001) This Court acknowledges that there is a conceptual difference between binding and mandatory arbitration and thus that two parties could theoretically agree to mandatory non-binding arbitration. However, that it is merely possible provides an insufficient basis on which to conclude that it actually occurred in this case. In assessing whether the Agreement binds the parties to the decision of the arbitrator, this Court first notes that federal policy strongly favors enforcement of arbitration clauses. See, e.g., Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983). Significantly, this policy in favor of arbitration has been interpreted to impute a presumption that arbitration will be binding. McKee v. Home Buyers Warranty Corp. II, 45 F.3d 981, 985 (5th Cir.1995) (“We think that the ‘federal policy favoring arbitration’ covers more than simply the substantive scope of the arbitration clause ... and" }, { "docid": "16378959", "title": "", "text": "to this federal policy and require all winners in arbitrations to seek affirmation in the district court. We decline to adopt such a rule. Rather, we agree with the Fourth and Fifth Circuits and hold that an arbitrator’s order is binding on the parties unless they expressly agree otherwise, and does not require affirmation from a court to take effect. Thus, as a matter of law, the arbitrator’s order was a binding arbitral decision at the time of UPS’ set-off. Second, Centurion claims that the arbitrator’s order requiring it to post the bond was not an indemnification order. It argues that the order gave UPS no duty to post a bond with the Costa Rican court. UPS, on the other hand, notes that the purchase agreement requires Centurion to “defend, indemnify and hold harmless” UPS “from and against ... any loss, claim, damage, liability or expense resulting to [UPS] from [inter alia, the Carga Aerea litigation].” Under Florida law, an indemnity is “a right which inures to one who discharges a duty owed by him, but which, as between himself and another, should have been discharged by the other, and is allowable only where the whole fault is in the one against whom the indemnity is sought.” Houdaille Industries, Inc. v. Edwards, 374 So.2d 490, 492 (Fla.1979). UPS has an indemnity right in the present case. It discharged a duty which should have been discharged by Centurion (based on the arbitrator’s order) — the posting of the bond. Centurion did not produce any evidence that UPS was at fault in the Carga Aerea litigation. Centurion incurred the liability in the Carga Aerea litigation and specifically retained that liability after the purchase agreement. Furthermore, Centurion explicitly agreed to “indemnify” UPS for liabilities or expenses resulting to it from the Carga Aerea litigation. As such, we affirm the district court’s finding that Centurion failed to present sufficient evidence to overcome summary judgment as to whether UPS breached the purchase agreement in exercising its right of offset. 2. Breach of Posh-Closing Agreement Centurion alleges that UPS committed two separate breaches of the post-closing" }, { "docid": "20364466", "title": "", "text": "of summary judgment de novo, viewing all evidence in the light most favorable to the non-moving party. E.g., Insurance Company of North America v. Dealy, 911 F.2d 1096 (5th Cir.1990). Our review of the district court’s confirmation of an arbitrator’s award is likewise de novo. Executone Information Systems, Inc. v. Davis, 26 F.3d 1314 (5th Cir.1994). We also approach this case in the light of the “liberal federal policy favoring arbitration.” Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24, 103 S.Ct. 927, 941, 74 L.Ed.2d 765 (1983). B. The central issue in this case is whether the district court correctly determined that the parties agreed to binding arbitration. The Kilpatricks contend that the warranty called for non-binding arbitration based on a provision in the warranty that “[t]he dispute resolution process shall precede any litigation attempted by either party.” The Kilpatricks argue that the fact that the warranty makes arbitration a condition precedent to litigation indicates that the arbitration is non-binding. We disagree. Numerous courts have held that arbitration is binding where the rules under which the arbitration is conducted call for binding arbitration. E.g., Rainwater v. National Home Ins. Co., 944 F.2d 190 (4th Cir.1991) (holding that an arbitration in accordance with AAA rules is a binding arbitration); Commonwealth Edison Co. v. Gulf Oil Corp., 541 F.2d 1263, 1273 (7th Cir.1976) (holding that incorporation of rules of arbitration in agreement established requisite consent to judgment); I/S Stavborg (O.H. Meling, Manager) v. National Metal Converters, Inc., 500 F.2d 424 (2d Cir.1974) (holding that agreement to be bound by arbitration and consent to judgment could be inferred by reference to rules which provide for binding arbitration); see also Varley v. Tarrytown Associates, Inc., 477 F.2d 208, 210 (2d Cir.1973) (conceding that agreement to binding arbitration could be expressed by incorporating arbitration rules, but finding that AAA rules in force at the time did not allow for entry of judgment); cf. Dowling v. Home Buyers Warranty Corp. II, 428 S.E.2d 709 (S.C.1993) (finding that there was no agreement to arbitrate where the Arbitration Acknowledgement and correspondence from the" }, { "docid": "20364470", "title": "", "text": "by 9 U.S.C. § 9, or to other litigation in which the arbitration award would be final but just a sub-text in some larger litigation context. Rainwater, 944 F.2d at 194. Because the Kilpatricks submitted the dispute to arbitration under AAA rules that required binding arbitration unless the warranty provided for non-binding arbitration, and the warranty did not provide for nonbinding arbitration, the district court was correct in determining that the arbitration was binding. C. The Kilpatricks assert that the threshold question of whether the parties agreed to binding arbitration is purely a matter of contract to be determined according to state law. The Kilpatricks contend that if we construe the warranty according to Louisiana law, the federal policy favoring arbitration would not apply and that a state policy requiring that ambiguities in a document be resolved against the sophisticated drafter would control. The difficulty with this argument is that the Federal Arbitration Act (FAA), 9 U.S.C. § 2, declares that written agreements to arbitrate are enforceable when contained in a contract involving interstate commerce, see Allied-Bruce Terminix Companies, Inc. v. Dobson, — U.S. -, 115 S.Ct. 834, 130 L.Ed.2d 753 (1995), and the Kilpatricks’ warranty certainly falls within this category. The Supreme Court has explained that, in construing an arbitration agreement within the scope of the FAA, “as with any other contract, the parties’ intentions control, but those intentions are generously construed as to issues of arbitrability.” Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 626 105 S.Ct. 3346, 3354, 87 L.Ed.2d 444 (1985). That is, the FAA “create[s] a body of federal substantive law of arbitrability, applicable to any arbitration agreement within the coverage of the Act,” Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24, 103 S.Ct. 927, 941, 74 L.Ed.2d 765 (1983), and that body of federal law requires that, “in applying general state-law principles of contract interpretation to the interpretation of an agreement within the scope of the Act, ... due regard must be given to the federal policy favoring arbitration, and ambiguities as to the scope of the" }, { "docid": "21869192", "title": "", "text": "the Outside Directors that Endorsement 24 clearly and unambiguously refers to the whole paragraph and to all three procedures (“the procedures specified in this Section IV(Q)”), as now being non-binding and optional, compared with their having previously been the “sole and exclusive procedures” prior to addition of the Endorsement. Alternatively, since the Court has concluded that the AEGIS Policy does not mandate binding arbitration, Fastow maintains that at minimum it does require nonbinding arbitration, which agreement is also enforceable under the FAA. United States v. Bankers Ins. Co., 245 F.3d 315, 322 (4th Cir.2001) (“Although non-binding arbitration may turn out to be a futile exercise ... this fact does not, as a legal matter, preclude a non-binding arbitration agreement from being enforced.”), citing Wolsey, Ltd. v. Foodmaker, Inc., 144 F.3d 1205, 1209 (9th Cir.1998) (“In light of the strong presumption in favor of arbitrability ..., we hold that arbitration need not be binding in order to fall within the scope of the Federal Arbitration Act.”). This question whether the FAA applies to non-binding arbitration agreements with dispute resolution alternatives is unsettled, and neither the Fifth Circuit nor Texas courts have addressed it. Bankers, 245 F.3d at 322 (“Whether an agreement to enter into non-binding arbitration is enforceable under the FAA is not a matter well settled in the federal courts ....”). Moreover, the Third Circuit disagrees with the Ninth Circuit’s ruling in Wolsey. Dluhos v. Strasberg, 321 F.3d 365, 371 (3d Cir.2003) (dispute resolution procedure did not constitute “arbitration” within the meaning of the FAA because the dispute would not necessarily be resolved by arbitration); Harrison v. Nissan Motor Corp., Ill F.3d 343, 349-52 (3d Cir.1997) (informal dispute resolution procedure provided by Nissan was not an “arbitration” contemplated by the FAA, which does not occur until the process is completed and the arbitrator makes a decision; moreover the Lemon Law permits party to file suit as an alternative to arbitration). The AEGIS Policy does provide in steps alternative ways the suit could be resolved without a final decision by an arbitrator and the partial settlement before the Court was accomplished" }, { "docid": "16378957", "title": "", "text": "with the purchase agreement. The court also rejected Centurion’s allegations of breach of the implied covenant of good faith and fair dealing because no breach of the explicit terms of the contract had occurred, and Centurion’s claims for breach of confidentiality because they had not been properly raised in the complaint. Centurion appeals the Moore litigation from these grants of summary judgment. II. We review the district court’s grant of summary judgment de novo, applying the same legal standards as the district court, and construing the facts and drawing all reasonable inferences therefrom in the light most favorable to the non-moving party. Cuesta v. School Bd. of Miami-Dade Co., 285 F.3d 962, 966 (11th Cir.2002). 1. Breach of Purchase Agreement Under Section 11.04 of the purchase agreement, UPS must prove two things in order to offset an indemnity against its payments to Centurion without breaching the agreement: (1) that it obtained a “binding arbitral decision” against Centurion and (2) that the decision obligated Centurion to indemnify UPS. Centurion claims that genuine issues of material fact remain as to whether UPS has shown either of these elements. First, Centurion claims that the arbitrator’s order was not a “binding arbitral decision” at the time of the set-off because the order was still awaiting confirmation from the district court. Other circuits have held that an order from an AAA arbitrator is binding unless the parties expressly agree otherwise, and does not require affirmation from a court to bring it into effect. See, e.g., McKee v. Home Buyers Warranty Corp., 45 F.3d 981, 983 (5th Cir.1995); Rainwater v. Nat’l Home Ins. Co., 944 F.2d 190, 193 (4th Cir.1991). This issue is a matter of first impression for our court. In considering it, we note that the Supreme Court has declared a strong federal policy in favor of arbitration to resolve disputes. Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1, 24, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983). To adopt a rule that an arbitral decision is not “binding” and thus lacks the authority of a conclusive judgment would run counter" }, { "docid": "20364469", "title": "", "text": "would ascribe to it. Traditionally, federal courts were hostile to arbitration clauses since it was thought they could be avoided at the whim of either party. See generally Continental Grain Co. v. Dant & Russell, Inc., 118 F.2d 967 (9th Cir.1941) (arbitration agreements could not be enforced in federal courts prior to passage of FAA). As a result, parties frequently included “condition precedent” language to make certain that the arbitration process ran its course before a federal court could entertain a suit. See, e.g., Pettus v. Olga Coal Co., 137 W.Va. 492, 72 S.E.2d 881, 885 (1952) (holding that “condition precedent” language did not oust court of jurisdiction, something frowned upon at common law, but rather made suit premature until the terms of the contract were fulfilled). Therefore, we read “condition precedent” to some extent as an artifact left over from the days of hostility toward arbitration. To the extent that the phrase has meaning, we find that it does not undermine the binding nature of arbitration, but instead applies to the confirmation process permitted by 9 U.S.C. § 9, or to other litigation in which the arbitration award would be final but just a sub-text in some larger litigation context. Rainwater, 944 F.2d at 194. Because the Kilpatricks submitted the dispute to arbitration under AAA rules that required binding arbitration unless the warranty provided for non-binding arbitration, and the warranty did not provide for nonbinding arbitration, the district court was correct in determining that the arbitration was binding. C. The Kilpatricks assert that the threshold question of whether the parties agreed to binding arbitration is purely a matter of contract to be determined according to state law. The Kilpatricks contend that if we construe the warranty according to Louisiana law, the federal policy favoring arbitration would not apply and that a state policy requiring that ambiguities in a document be resolved against the sophisticated drafter would control. The difficulty with this argument is that the Federal Arbitration Act (FAA), 9 U.S.C. § 2, declares that written agreements to arbitrate are enforceable when contained in a contract involving interstate commerce," }, { "docid": "20364468", "title": "", "text": "arbitration agency stated that the arbitration would not be binding). The decisions holding that reference to AAA rules as permitting entry of judgment are longstanding. Consequently, all parties are on notice that resort to AAA arbitration will be deemed both binding and subject to entry of judgment unless the parties expressly agree otherwise. Rainwater, 944 F.2d at 194. In the instant case, it is undisputed that the warranty provided that AAA rules would govern if the dispute were submitted to AAA arbitration. The arbitration was conducted under AAA rules and those rules provided for binding arbitration unless the applicable law or the terms of the warranty specified otherwise. We must therefore determine whether there is anything in the warranty that specifies non-binding arbitration. We find the Kilpatricks contention that the “condition precedent” language in the warranty calls for non-binding arbitration unpersuasive. We agree with the Fourth Circuit’s treatment of this issue in Rainwater: Though [the Kilpatrick’s] claim has some surface appeal, we think that the “condition precedent” language cannot carry all the weight [the Kilpatricks] would ascribe to it. Traditionally, federal courts were hostile to arbitration clauses since it was thought they could be avoided at the whim of either party. See generally Continental Grain Co. v. Dant & Russell, Inc., 118 F.2d 967 (9th Cir.1941) (arbitration agreements could not be enforced in federal courts prior to passage of FAA). As a result, parties frequently included “condition precedent” language to make certain that the arbitration process ran its course before a federal court could entertain a suit. See, e.g., Pettus v. Olga Coal Co., 137 W.Va. 492, 72 S.E.2d 881, 885 (1952) (holding that “condition precedent” language did not oust court of jurisdiction, something frowned upon at common law, but rather made suit premature until the terms of the contract were fulfilled). Therefore, we read “condition precedent” to some extent as an artifact left over from the days of hostility toward arbitration. To the extent that the phrase has meaning, we find that it does not undermine the binding nature of arbitration, but instead applies to the confirmation process permitted" }, { "docid": "21869191", "title": "", "text": "(S.D.N.Y.2003) (same). Nor does it apply where the contracts are between sophisticated parties of equal bargaining power, as in a corporation with counsel like Enron and its insurers. McDermott Int’l v. Lloyds Underwriters of London, 944 F.2d 1199, 1207 (5th Cir.1991); DaPuzzo, 263 F.Supp.2d at 729. Furthermore this Court notes that § IV(Q)(3) of the AEGIS policy, dealing with Dispute Resolution and arbitration, states that the terms of the policy are “to be construed in an evenhanded fashion as between the COMPANY and the INSURER” and that any ambiguity is to be resolved “without regard to the authorship of the language and without any presumption or arbitrary interpretation or construction in favor of either the COMPANY or the INSURER.” The determination whether a contract is ambiguous and the interpretation of a contract are questions of law for the court. Reliant Energy Services, Inc. v. Enron Canada Corp., 349 F.3d 816, 821 (5th Cir.2003), citing Stinnett v. Colorado Interstate Gas Co., 227 F.3d 247, 254 (5th Cir.2000). This Court finds Fastow’s interpretation strained and agrees with the Outside Directors that Endorsement 24 clearly and unambiguously refers to the whole paragraph and to all three procedures (“the procedures specified in this Section IV(Q)”), as now being non-binding and optional, compared with their having previously been the “sole and exclusive procedures” prior to addition of the Endorsement. Alternatively, since the Court has concluded that the AEGIS Policy does not mandate binding arbitration, Fastow maintains that at minimum it does require nonbinding arbitration, which agreement is also enforceable under the FAA. United States v. Bankers Ins. Co., 245 F.3d 315, 322 (4th Cir.2001) (“Although non-binding arbitration may turn out to be a futile exercise ... this fact does not, as a legal matter, preclude a non-binding arbitration agreement from being enforced.”), citing Wolsey, Ltd. v. Foodmaker, Inc., 144 F.3d 1205, 1209 (9th Cir.1998) (“In light of the strong presumption in favor of arbitrability ..., we hold that arbitration need not be binding in order to fall within the scope of the Federal Arbitration Act.”). This question whether the FAA applies to non-binding arbitration agreements" }, { "docid": "1923858", "title": "", "text": "on a case which states that “mandatory arbitration” and “binding arbitration” are “two different things.” U.S. v. Bankers Ins. Co., 245 F.3d 315, 322 (4th Cir.2001) This Court acknowledges that there is a conceptual difference between binding and mandatory arbitration and thus that two parties could theoretically agree to mandatory non-binding arbitration. However, that it is merely possible provides an insufficient basis on which to conclude that it actually occurred in this case. In assessing whether the Agreement binds the parties to the decision of the arbitrator, this Court first notes that federal policy strongly favors enforcement of arbitration clauses. See, e.g., Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983). Significantly, this policy in favor of arbitration has been interpreted to impute a presumption that arbitration will be binding. McKee v. Home Buyers Warranty Corp. II, 45 F.3d 981, 985 (5th Cir.1995) (“We think that the ‘federal policy favoring arbitration’ covers more than simply the substantive scope of the arbitration clause ... and encompasses an expectation that such procedures will be binding.” (emphasis added) (citations omitted)). Thus, even though the question of whether the Award of Arbitrator shall be binding is properly characterized as a question of contract interpretation, such interpretation must be conducted in light of this liberal federal policy. McKee II, 45 F.3d at 984-85 (quoting Volt Info. Sers., Inc. v. Stanford Univ., 489 U.S. 468, 475-76, 109 S.Ct. 1248, 103 L.Ed.2d 488 (1989)) (“[I]n applying general state-law principles of contract interpretation ... due regard must be given to the federal policy favoring arbitration, and ambiguities as to the scope of the arbitration clause itself resolved in favor of arbitration.”) Parties may overcome this policy favoring arbitration and the presumption that it will be binding by including in their agreement provisions to the contrary. Plaintiffs point to the use of “first referred” in the Agreement’s arbitration clause as indicative of the parties’ intent that the arbitration was to be merely a non-binding prerequisite to pursuing litigation or other avenues of resolution. However, such language does not" }, { "docid": "9777672", "title": "", "text": "that the “rules and regulations of the AAA” will apply. At the time of the arbitration, see AAA Rule 1 (“The parties shall be deemed to have agreed to these rules in the form in effect when the request for dispute settlement is received by the AAA.”), Rule 26(c) of the AAA provided: Unless the applicable law or the warranty program, the insurance policy, or another applicable document provides otherwise, the parties to these rules shall be deemed to have consented that judgment upon the arbitration award may be entered in any federal or state court having jurisdiction thereof. Based on this rule, Rainwater argues that the arbitration award in his favor, issued pursuant to AAA rules, was intended to be final and consequently must be confirmed. The district court agreed, and so do. we. Other courts also have held that reference to AAA rules and regulations is enough to make arbitration binding. In Commonwealth Edison Co. v. Gulf Oil Corp., 541 F.2d 1263, 1272-73 (7th Cir.1976), which involved arbitration of a uranium supply contract, the court held that although the parties did not expressly agree that arbitration would be binding and judgment could be entered, the parties did agree “to incorporate rules of arbitration into their agreement, thereby establishing the requisite consent to entry of judgment, if the rules so provided.” In Commonwealth Edison, as in here, the rules do so provide for entry of judgment. Similarly in Stavborg, 500 F.2d 424, the court held that an explicit agreement to be bound by arbitration and consent to judgment was not required, but could be inferred by reference to rules which do provide for binding arbitration. To the same effect is Varley v. Tarrytown Assocs., Inc., 477 F.2d 208, 210 (2d Cir.1973), in which the court held that “confirmation of an arbitration award is appropriate only where the parties ‘in their agreement have agreed that a judgment of the court shall be entered upon the award....’” The Varley court conceded that the parties could express agreement by incorporating arbitration rules, however it found that the rules referred to, the AAA" }, { "docid": "1923862", "title": "", "text": "rule, they must do so explicitly, but an intent to invoke the default rule need not be expressly indicated. Restatement (SECOND) Of CONTRACTS § 202 (1981). Similarly, plaintiffs’ reliance upon the rule that ambiguities are to be construed against the drafter is unpersuasive. As noted above, the Agreement must be interpreted in light of the liberal federal policy which includes the expectation that arbitration shall be binding. Given this presumption, the “first referred” language is not sufficiently unclear to constitute an ambiguity. Even if it were, the rule of construing clauses against the drafter is not unilaterally dispositive when other decisive factors are present. Case law supports this interpretation. Courts have held that the “magic words” such as “final” or “binding” are unnecessary when the clause includes certain other indications of an intent to consent to binding arbitration. Rainwater, 944 F.2d at 193: see also Commonwealth Edison v. Gulf Oil Corp., 541 F.2d 1263, 1266 (7th Cir.1976); I/S Stavborg v. Nat’l Metal Converters, Inc. 500 F.2d 424, 425 (2d Cir.1974); Varley v. Tarrytown Assocs., 477 F.2d 208, 210 (2d Cir.1973). Moreover, plaintiffs’ focus on the omission of explicit language indicating the binding nature of the arbitration fails to acknowledge that which is explicitly included: that the arbitration will be conducted under the rules and regulations of the AAA. Reference to rules in the clause effectively incorporates those rules in their entirety into the Agreement. See, e.g., Stavborg, 500 F.2d at 426. This is significant because under the AAA rules, all arbitrations are binding. Consequently, reference to AAA rules and regulations is sufficient to make the arbitration binding. Rainwater, 944 F.2d at 193; see also Commonwealth Edison, 541 F.2d at 1272-73 (agreement to incorporate the rules sufficient to establish consent to entry of judgment if the rules so provided); Stavborg, 500 F.2d at 425 (explicit agreement to be bound by arbitration was not required but could be inferred by reference to rules which do provide for binding arbitration); Varley, Mil F.2d at 210 (inclusion of AAA rules is sufficient to incorporate them into agreement); St. Lawrence Explosives Corp. v. Worthy Bros." }, { "docid": "16378958", "title": "", "text": "remain as to whether UPS has shown either of these elements. First, Centurion claims that the arbitrator’s order was not a “binding arbitral decision” at the time of the set-off because the order was still awaiting confirmation from the district court. Other circuits have held that an order from an AAA arbitrator is binding unless the parties expressly agree otherwise, and does not require affirmation from a court to bring it into effect. See, e.g., McKee v. Home Buyers Warranty Corp., 45 F.3d 981, 983 (5th Cir.1995); Rainwater v. Nat’l Home Ins. Co., 944 F.2d 190, 193 (4th Cir.1991). This issue is a matter of first impression for our court. In considering it, we note that the Supreme Court has declared a strong federal policy in favor of arbitration to resolve disputes. Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1, 24, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983). To adopt a rule that an arbitral decision is not “binding” and thus lacks the authority of a conclusive judgment would run counter to this federal policy and require all winners in arbitrations to seek affirmation in the district court. We decline to adopt such a rule. Rather, we agree with the Fourth and Fifth Circuits and hold that an arbitrator’s order is binding on the parties unless they expressly agree otherwise, and does not require affirmation from a court to take effect. Thus, as a matter of law, the arbitrator’s order was a binding arbitral decision at the time of UPS’ set-off. Second, Centurion claims that the arbitrator’s order requiring it to post the bond was not an indemnification order. It argues that the order gave UPS no duty to post a bond with the Costa Rican court. UPS, on the other hand, notes that the purchase agreement requires Centurion to “defend, indemnify and hold harmless” UPS “from and against ... any loss, claim, damage, liability or expense resulting to [UPS] from [inter alia, the Carga Aerea litigation].” Under Florida law, an indemnity is “a right which inures to one who discharges a duty owed by him," }, { "docid": "1923859", "title": "", "text": "encompasses an expectation that such procedures will be binding.” (emphasis added) (citations omitted)). Thus, even though the question of whether the Award of Arbitrator shall be binding is properly characterized as a question of contract interpretation, such interpretation must be conducted in light of this liberal federal policy. McKee II, 45 F.3d at 984-85 (quoting Volt Info. Sers., Inc. v. Stanford Univ., 489 U.S. 468, 475-76, 109 S.Ct. 1248, 103 L.Ed.2d 488 (1989)) (“[I]n applying general state-law principles of contract interpretation ... due regard must be given to the federal policy favoring arbitration, and ambiguities as to the scope of the arbitration clause itself resolved in favor of arbitration.”) Parties may overcome this policy favoring arbitration and the presumption that it will be binding by including in their agreement provisions to the contrary. Plaintiffs point to the use of “first referred” in the Agreement’s arbitration clause as indicative of the parties’ intent that the arbitration was to be merely a non-binding prerequisite to pursuing litigation or other avenues of resolution. However, such language does not overcome the policy and presumption favoring binding arbitration. Numerous courts have held that language implying that arbitration was a condition precedent to any other avenues of resolution is not sufficiently specific to call for non-binding arbitration. McKee II, 45 F.3d at 984; Rainwater v. Nat’l Home Ins. Co., 944 F.2d 190, 194 (4th Cir.1991); Duke v. Crop Growers Ins., Inc., 70 F.Supp.2d 711, 715 (S.D.Tex.1999) (respectively holding that clauses such as “shall precede,” “shall be a condition precedent,” and separate right-to-sue language, do not overcome the policy favoring arbitration). In this Court’s opinion, “first referred” is sufficiently similar to the language used in these cases that it is reasonable to apply the same rule. The Fourth Circuit explained that “condition precedent” language was traditionally included in arbitration clauses to overcome the federal courts’ hostility toward enforcing such clauses. Rainwater. 944 F.2d at 194. Since the enactment of the FAA, courts are no longer reluctant to enforce arbitration clauses, so any “condition precedent” language is merely an artifact that should not be interpreted to indicate anything" }, { "docid": "10332825", "title": "", "text": "the parties providing for consolidated arbitration.” Del E. Webb Constr. v. Richardson Hosp. Auth, 823 F.2d 145, 150 (5th Cir.1987); See also Champ v. Siegel Trading Co., Inc., 55 F.3d 269, 275 (7th Cir.1995) (“section 4 of the FAA forbids federal judges from ordering class arbitration where the parties’ arbitration agreement is silent on the matter”); American Centennial Ins. Co. v. National Casualty Co., 951 F.2d 107, 108 (6th Cir.1991) (“a district court is without power to consolidate arbitration proceedings, over the objection of a party to the arbitration agreement, when the agreement is silent regarding consolidation”). Contrary to the plaintiffs’ assertion, the reference to “each and all of the depositors are referred to as ‘you’ ” throughout the deposit agreement, is not equivalent to a written agreement providing for consolidated arbitration. After reviewing the arbitration provision and determining that it does not expressly provide for consolidated arbitration, the Court finds that the plaintiffs are not entitled to arbitrate as a class. The Court therefore finds that the defendants’ motion to dismiss the plaintiffs’ class action allegations should be granted. Finally, in their supplemental brief, the plaintiffs cite Randolph v. Green Tree Fin. Corp., 178 F.3d 1149 (11th Cir.1999), a recent decision by the Eleventh Circuit reversing the district court’s decision to grant a motion to compel arbitration in a TILA case, in support of their argument that the Court should not enforce the arbitration agreement. In Randolph, the purchaser of a mobile home sued her lender under the TILA for its failure to disclose a policy requiring purchasers to obtain insurance that would protect the lienholder in the event of default. (Id. at 1151.) The retail installment contract entered into between the purchaser and lender required all disputes to be resolved by binding arbitration. (Id.) The arbitration provision, however, failed to identify the allocation of filing fees, the apportionment of arbitrators’ costs and expenses, and more importantly, whether the rules of the American Arbitration Association [AAA] would be used to govern the parties’ dispute. (Id. at 1158.) Thus, the Court ultimately concluded that, “the arbitration clause in this case" } ]

[ { "docid": "18410678", "title": "", "text": "intent to commit a more severe crime, but the sentencing court- gave reasoned arguments for the sentence it imposed. It outlined the-rationale, its treatment of the mitigating factors, and even engaged in a criminology debate with the defense counsel over the effectiveness of incarceration. See United States v. Fernández-Cabrera, 625 F.3d 48, 53 (1st Cir. 2010) (“While the court ordinarily should identify the main factors upon which it relies, its statement need not be lengthy . /. nor need it dissect every factor made relevant by 18- U.S.C. § 3553.... Even silence is not necessarily fatal; ‘a court’s reasoning can often be inferred by comparing what was argued by the.parties or contained in the presen-tence ‘report with what the judge did.’” (alteration in original) (quoting United States v. Turbides-Leonardo, 468 F.3d 34, 40-41 (1st Cir. 2006))). At the end of the hearing the court briefly referred to the § 3553(a) factors and asked whether the defense counsel had anything further. Only upon being satisfied that all relevant factors had been discussed did the court impose the variant sentence. We have repeatedly held that after the district court correctly calculates the guidelines range, “sentencing becomes a judgment call,” United States v. Politano, 522 F.3d 69, 73 (1st Cir. 2008) (quoting United States v. Martin, 520 F.3d 87, 92 (1st Cir. 2008)), and “[t]here is no one. reasonable sentence in any .given case but, rather, a universe of reasonable sentencing outcomes,” United States v. Clogston, 662 F.3d 588, 592 (1st Cir. 2011) (citing Martin, 520 F.3d at 92). And while Pagán’s 60-month sentence is considerably longer than the 37-month sentence recommended by parties, “no extraordinary .circumstances are .required to justify a sentence outside the Guidelines range.” Pedroza-Orengo, 817 F.3d at 837 (quoting United States v. Nelson, 793 F.3d 202, 207 (1st Cir. 2015)). Therefore, the sentence reflected a “plausible, albeit not inevitable, view of the circumstances sufficient to distinguish this case from the mine-run of cases covered by the [guidelines range].” United States v. Del Valle-Rodríguez, 761 F.3d 171, 177 (1st Cir. 2014). In sum, the district court did not commit procedural" } ]

[ { "docid": "23270020", "title": "", "text": "enhanced his sentence under § 2K2.1(b)(5). B. Reasonableness of Nichols’ sentence Although Nichols asserts that his 57-month sentence was unreasonable, he fails to explain why or how this is so. Instead, he provides a number of reasons why he believes — as the government did at sentencing- — that a 30-month sentence would have been reasonable. However, the question before us is not the reasonableness of Nichols’ and the government’s requested sentence, but rather whether the “ultimate sentence” imposed is reasonable in light of the § 3553(a) factors. See Cantrell, 433 F.3d at 1279 (emphasis added). Section 3553(a) states that a district court should impose a sentence “sufficient, but not greater than necessary” to “reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; to afford adequate deterrence to criminal conduct; to protect the public from further crimes of the defendant ...; and to provide the defendant with needed ... training, medical care, or other correctional treatment....” 18 U.S.C. § 3553(a)(2). The district court also should weigh factors such as “the nature and circumstances of the offense and the history and characteristics of the defendant;” “the kinds of sentences available;” “the [applicable] sentencing range[;]” the articulated policy goals of the guidelines; “the need to avoid unwarranted sentence disparities” among similar defendants; and “the need to provide restitution to any victims of the offense.” § 3553(a)(1), (3)(7). “To comply with the requirements of Booker, the district court must have sufficiently considered the Guidelines as well as the other factors listed in § 3553(a). This requirement does not necessitate a specific articulation of each factor separately, but rather a showing that the district court considered the statutorily-designated factors in imposing a sentence.” United States v. Knows His Gun, 438 F.3d 913, 918 (9th Cir.2006). Here, the record demonstrates both that the district court sufficiently considered these factors and that Nichols’ sentence was not unreasonable. First, as defense counsel conceded at sentencing, Nichols’ criminal history is “horrendous.” Although only 22 years old, Nichols has numerous prior convictions for crimes involving illegal drug possession," }, { "docid": "19939159", "title": "", "text": "abuse-of-discretion review, we “must give due deference to the district court’s decision that the § 3553(a) factors ... justify the extent of the variance.” Id. at 597; see also United States v. Grossman, 513 F.3d 592 (6th Cir.2008). After considering the guidelines range (41-51 months), the court considered the other § 3553(a) factors and found that the range did not adequately account for Smith’s culpability, i.e., the seriousness of her offense. See 18 U.S.C. § 3553(a)(2)(A). Smith’s fraud was worse than the run-of-the-mine case because she committed it “during a time when money was being given to alleviate the suffering caused by the 9/11 attacks.” The guidelines range understated the financial harm to the chapter both because “the defendant obfuscated some of the facts as a result of ... her manipulation of the records” and because of the “damage done ... to [the chapter’s] credibility ... in a particular time of need.” And “there were many other victims [of Smith’s fraud], even though they may not be identifiable,” and the victims of “future natural disasters probably will not receive help that they would otherwise receive from contributions.” The court added that Smith’s characteristics, see id. § 3553(a)(1), and the need for deterrence, see id. § 3553(a)(2)(B), justified a strict sentence given Smith’s “previous record of fraudulent conduct” and her “additional fraudulent conduct” committed “when released on bond.” Seeking to deter others, the court thought that “[t]he word should go out that if you blatantly steal from a public charity ... the results can be severe.” The court considered Smith’s cooperation and “ameliorated to some extent the sentence which [it] would otherwise have applied” but still arrived at the judgment that an above-guidelines sentence was necessary. In view of the deference we owe the district court’s assessment that the § 3553(a) factors “justify the extent of the variance,” Gall, 128 S.Ct. at 597; see also Grossman, at 597, we conclude that the district court could reasonably determine that a 72-month sentence was appropriate on this record. Smith says she deserved a lower sentence because fraud is not a violent crime, because" }, { "docid": "22584754", "title": "", "text": "The court followed the spirit and the letter of the Supreme Court’s and our precedent and obeyed the applicable statutory provisions when it considered all of the § 3553(a) factors at sentencing. In addition to weighing the corrected advisory guidelines range, the court also gave weight to several of the other relevant § 3553(a) factors, including: (1) the history and characteristics of the defendant, (2) the need to promote respect for the law, (3) the need to provide adequate deterrence, (4) the nature and circumstances of the crime, and (5) the need to protect the public. After considering all of the other relevant § 3553(a) factors, the district court was convinced that they outweighed the corrected advisory guidelines range, which did not adequately capture Rosales-Bruno’s history and characteristics. It was for that reason the district court varied upward from the guidelines range. The variance of 60 months above the advisory guidelines range was a major one. But the Supreme Court has forbidden us from presuming that a sentence outside the guidelines range is unreasonable. Gall, 552 U.S. at 51, 128 S.Ct. at 597. So, too, has it forbidden us from requiring “extraordinary circumstances to justify” such a sentence. Id. at 47,' 128 S.Ct. at 595 (quotation marks omitted). The district court supported the 60-month variance with significant justifications, including, the facts of Rosales-Bruno’s earlier violent crimes. The sentence the district court imposed was 33 months below the statutory maximum of 120 months, which is a consideration favoring its reasonableness. See 8 U.S.C. § 1326(b)(1); United States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir.2008) (holding that a 50-month sentence for violating 8 U.S.C. § 1326(b)(1) was substantively reasonable in part because the sentence was well below the statutory maximum of 120 months imprisonment). The district court’s decision to vary upward from the corrected advisory guidelines range was within its substantial discretion. Regardless of whether we would have done the same thing if we had been the sentencer, the sentence was within the outer bounds of the district court’s substantial sentencing discretion — “in the ballpark of permissible outcomes.” Irey, 612" }, { "docid": "22275761", "title": "", "text": "to Colombia to support his minor children there, id. at 16. He suggested that a sentence of twenty-seven months would be sufficient. See id. at 9. Mr. Balbin-Mesa then obtained new counsel for sentencing purposes, and his new counsel filed a sentencing memorandum. Id. at 41. He argued that the advisory guideline range of thirty-seven to forty-six months was absurd because without Mr. Balbin-Mesa’s single prior conviction for cocaine trafficking, the advisory guideline range would have been zero to six months. Id. at 44. He summarized the difficult circumstances of Mr. BalbinMesa’s life and requested a variance from the advisory guideline range. See id. at 41-42, 45; see also United States v. Sells, 541 F.3d 1227, 1237 n. 2 (10th Cir.2008) (explaining the analytical distinction that a downward departure is made under Chapter 4 or 5 of the Sentencing Guidelines, whereas a downward variance is made in light of the sentencing factors in 18 U.S.C. § 3553(a)). In June 2010, the district court held a sentencing hearing. The parties confirmed that Mr. Balbin-Mesa’s agreement to waive his appeal rights lowered the advisory guideline range to thirty-three to forty-one months. See R., Vol. 3, Tr., June 23, 2010, Sentencing Hr’g at 8-10. Mr. Balbin-Mesa again asked for a variance in light of the sentencing factors in 18 U.S.C. § 3553(a) and the circumstances of this case, suggesting that sixteen months’ imprisonment would be a sufficient sentence. R., Vol. 3, Tr., June 23, 2010, Sentencing Hr’g at 9. After hearing the parties’ arguments, the district court stated that Mr. BalbinMesa’s offense level with the appeal waiver was twenty and the criminal history category was I, resulting in an advisory guideline range of thirty-three to forty-one months. Id. at 10. The court further noted that Mr. Balbin-Mesa’s prior conviction “occurred 21 years ago and ...’ [he] has not had prior or subsequent convictions since that first offense[.]” Id. The court expressly stated that it would “rely on the factors of [§ ] 3553 and craft a sentence that [was] adequate to reflect the seriousness of the offense as well as the deterrence necessary" }, { "docid": "23659478", "title": "", "text": "Booker1 s “remedial” holding; and that the court failed to give him the required notice of the upward variance under Rule 32(h) of the Federal Rules of Criminal Procedure. “We review a district court’s sentence for reasonableness, which involves a procedural as well as a substantive inquiry.” Politano, 522 F.3d at 72 (citing Gall, 128 S.Ct. at 597). In reviewing the reasonableness of a particular sentence, we afford the district court broad discretion. “[A]fter the court has calculated the [applicable guidelines range], ‘sentencing becomes a judgment call, and a variant sentence may be constructed based on a complex of factors whose interplay and precise weight cannot even be precisely described.’ ” Id. (quoting United States v. Martin, 520 F.3d 87, 92 (1st Cir.2008)). “Assuming a plausible explanation and a defensible overall result, sentencing is the responsibility of the district court.” United States v. Jimenez-Beltre, 440 F.3d 514, 519 (1st Cir.2006). Here, the court gave the following explanation for its imposition of a sentence of 480 months: In this case we believe that the guidelines do not reflect the seriousness of the offense and do not provide reasonable and adequate deterrence and punishment. Based on evidence presented during the trial, the defendant was a trigger-man who possessed powerful weapons to facilitate the instant offense. Moreover, he was involved in violence at controlled drug points where he sold cocaine, crack cocaine, heroin and marijuana during different periods. Therefore, to provide just punishment in light of the seriousness of the offense and to protect the community, the Court will sentence the defendant according to the statute. López-Soto received a sentence that was two and one half times greater—and more than twenty-four years longer — than the top of the recommended guidelines range. In such a case, the district court must offer an especially compelling reason for its sentence. See United States v. Smith, 445 F.3d 1, 4 (1st Cir.2006) (“The farther the judge’s sentence departs from the guidelines sentence ... the more compelling the justification based on factors in section 3553(a) that the judge must offer in order to enable the court of" }, { "docid": "22959510", "title": "", "text": "the advisory guideline range, such as a defendant’s lack of criminal history, can nevertheless form the basis of a variance.”); United States v. Roberson, 334 Fed.Appx. 787, 790 (8th Cir.2009) (unpublished) (affirming the district court’s upward variance because “[w]hile it is true the Guidelines accounted for the seriousness of the instant offense ... the district court did not abuse its discretion in concluding the Guidelines did not account for [its] extreme, dangerous, and random nature”). Thus, even if though the guideline range for a violation of 18 U.S.C. § 1001 already accounts for “the possibility that a suspect would lie to an interrogator in order to minimize his exposure to criminal prosecution,” Robertson, 324 F.3d at 1032, the district court did not err in varying upward based on its determination that the Guidelines do not fully account for the nature, circumstances, and seriousness of Richart’s offense, see 18 U.S.C. § 3553(a)(1), (2)(A). Accordingly, “we cannot say that the district court abused its discretion by giving too much weight to an improper factor.” United States v. Barrett, 552 F.3d 724, 727 (8th Cir.2009). We also disagree with Richart’s assertion that the district court failed to give sufficient weight to the advisory guideline range. The district court acknowledged at sentencing that “[t]he custody range is zero to [six] months under the [Guidelines,” but explicitly found that “a zero-to-six month sentence is far, far too inadequate.” Clearly, the district court did not fail to consider this relevant factor. See Saddler, 538 F.3d at 890 (“A district court abuses its discretion ... when it fails to consider a relevant factor that should have received significant weight....” (internal quotations marks omitted)). Therefore, we turn to Richart’s argument that a 120-month sentence was greater than necessary to achieve the purposes set forth in § 3553(a)(2). Section 3553(a) provides that the sentencing court “shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in [§ 3553(a)(2)].” These purposes are the need for the sentence imposed: (A) to reflect the seriousness of the offense, to promote respect for the law, and" }, { "docid": "22584774", "title": "", "text": "error of judgment.”); Shaw, 560 F.3d at 1237 (“The district court ... is permitted to attach great weight to one factor over others.”) (quotation marks omitted); Williams, 526 F.3d at 1323 (noting that it is “within the district court’s discretion to decide how much weight to give each § 3553(a) factor”). Placing substantial weight on a defendant’s criminal record is entirely consistent with § 3553(a) because five of the factors it requires a court to consider are related to criminal history. See 18 U.S.C. § 3553(a)(1), (a)(2)(A)-(C), (a)(6). Our precedent supports the conclusion that the district court did not abuse its discretion in assigning weight to, and weighing, the § 3553(a) sentencing factors. Under substantive reasonableness review, we have repeatedly affirmed sentences that included major upward variances from the guidelines for defendants with significant criminal histories that the sentencing courts weighed heavily. See, e.g., Over-street, 713 F.3d at 634, 636-40 (affirming 420-month sentence where guidelines recommendation was only 180-210 months); Early, 686 F.3d at 1221-22 (affirming 210-moiith sentence where guidelines range was only 78-97 months); Shaw, 560 F.3d at 1238-41 (affirming statutory maximum 120-month sentence where guidelines range was only 30-37 months); see also United States v. Turner, 474 F.3d 1265, 1274, 1280-81 (11th Cir.2007) (affirming 240-month sentence despite guidelines range of only 51-63 months and defendant’s lack of criminal history). Other circuits have affirmed above guidelines sentences for illegal reentry defendants with criminal histories. See, e.g., United States v. Rivera-Santana, 668 F.3d 95, 98-100, 99 n. 5, 106 (4th Cir.2012) (holding that 240-month sentence for illegal reentry following removal for an aggravated felony conviction was substantively reasonable even though the guidelines range was only 120-150 months, the variance being justified by the defendant’s extensive criminal history); United States v. Yanez-Rodriguez, 555 F.3d 931, 946-49 (10th Cir.2009) (affirming 144-month sentence for illegal reentry following removal for an aggravated felony conviction substantively reasonable even though the guidelines range was only 41-51 months imprisonment, the upward variance being justified in part by the defendant’s prior conviction for aggravated sexual battery), overruled in part on unrelated grounds by Puckett v. United States, 556" }, { "docid": "22275762", "title": "", "text": "waive his appeal rights lowered the advisory guideline range to thirty-three to forty-one months. See R., Vol. 3, Tr., June 23, 2010, Sentencing Hr’g at 8-10. Mr. Balbin-Mesa again asked for a variance in light of the sentencing factors in 18 U.S.C. § 3553(a) and the circumstances of this case, suggesting that sixteen months’ imprisonment would be a sufficient sentence. R., Vol. 3, Tr., June 23, 2010, Sentencing Hr’g at 9. After hearing the parties’ arguments, the district court stated that Mr. BalbinMesa’s offense level with the appeal waiver was twenty and the criminal history category was I, resulting in an advisory guideline range of thirty-three to forty-one months. Id. at 10. The court further noted that Mr. Balbin-Mesa’s prior conviction “occurred 21 years ago and ...’ [he] has not had prior or subsequent convictions since that first offense[.]” Id. The court expressly stated that it would “rely on the factors of [§ ] 3553 and craft a sentence that [was] adequate to reflect the seriousness of the offense as well as the deterrence necessary in protection of the public.” Id. The court considered it “sufficient, but not greater than necessary” to sentence Mr. Balbin-Mesa to twenty-eight months’ imprisonment, granting to this extent his request for a downward variance from the advisory guideline range in light of the sentencing factors in 18 U.S.C. § 3553(a). See R., Vol. 3, Tr., June 23, 2010, Sentencing Hr’g at 10-11; see also id., Vol. 1, at 60. The court ordered a two-year period of supervised release, and added the special condition that Mr. BalbinMesa not reenter the United States again without prior legal authority. Id., Vol. 3, Tr., June 23, 2010, Sentencing Hr’g at 11. The court warned Mr. Balbin-Mesa that if he violated that special condition, he would “immediately be placed in prison and likely have to serve a longer sentence next time[.]” Id. The court did not impose a fine due to Mr. Balbin-Mesa’s “lack of financial resources[.]” Id. At the end of the hearing, the court asked if there was anything further on behalf of the government or the defendant." }, { "docid": "11173587", "title": "", "text": "the § 3553(a) factors and because the [Guidelines purport to take into consideration most, if not all, of the other § 3553(a) factors.” United States v. Holcomb, 625 F.3d 287, 293 (6th Cir.2010) (internal quotation marks omitted). A sentence will be found substantively unreasonable “when the district court selects a sentence arbitrarily, bases the sentence on impermissible factors, fails to consider relevant sentencing factors, or gives an unreasonable amount of weight to any pertinent factor.” Id. (internal quotation marks omitted). When sentencing Michael Smith, the district court considered the various factors under § 3553(a) and granted a downward variance, concluding that a sentence within the Guidelines range of 262 to 327 months was unnecessary. The court instead imposed a sentence of 120 months of imprisonment. In doing so, the court concentrated on the seriousness of the offense and the need to deter future conduct. Michael Smith’s abuse of the fiduciary trust of Target Oil’s investors underscored the judgment of the court that the fraud perpetrated was serious and that similar conduct needed to be deterred. Hundreds of victims—including one whose infirmities were such that he “[c]ouldn’t even remember his own age”—had their trust violated by Michael Smith, which the district court concluded warranted substantial punishment. The fact that the district court specified the relevant § 3553(a) factors and explained the reasons for the particular sentence imposed shows that “the district court did not arbitrarily choose a sentence, but chose a sentence it considered sufficient but not greater than necessary to comply with the purposes of § 3553(a).” See Vowell, 516 F.3d at 512. “On abuse of discretion review, we will give ‘due deference to the [district [c]ourt’s reasoned and reasonable decision that the § 3553(a) factors, on the whole, justified the sentence.’ ” Id. (citing Gall v. United States, 552 U.S. 38, 59-60, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007)). The court could easily have sentenced Michael Smith within his applicable Guidelines range, so the actual 120-month sentence— which is 142 months below the low end of that range—can hardly be said to be substantively unreasonable. Turning next to Christopher" }, { "docid": "10627066", "title": "", "text": "ways”) (emphasis added). Accordingly, we hold that the district court correctly applied the three-level § 3A1.2 enhancement. B. Reasonableness of the Variance Cousins also contends that his sentence is unreasonable because the district judge failed adequately to explain why the upward variance of two months was “sufficient, but not greater than necessary,” to comply with the purposes of 18 U.S.C. § 3553(a). In reviewing sentencing decisions, we apply “a practical standard of review ... familiar to appellate courts: review for ‘unreasonable[ness].’ ” United States v. Booker, 543 U.S. 220, 261, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Guided by Booker’s principle of meaningful appellate review for reasonableness and its respect for the sentencing goals articulated in § 3553(a), we “may conclude that a sentence is unreasonable when the district judge fails to consider the applicable Guidelines range or neglects to consider the other factors listed in 18 U.S.C. § 3553(a), and instead simply selects what the judge deems an appropriate sentence without such required consideration.” United States v. Richardson, 437 F.3d 550, 553 (6th Cir.2006) (internal citation and quotation marks omitted) (quoting United States v. Webb, 403 F.3d 373, 383 (6th Cir.2005)). Section 3553(a) requires a sentencing court to consider the following factors: (1) “the nature and circumstances of the offense and the history and characteristics of the defendant”; (2) “the need for the sentence ... to reflect the seriousness of the offense, to promote respect for the law, ... to provide just punishment,” to deter similar criminal conduct, “to protect the public from further crimes of the defendant,” and to provide the defendant with training, medical care, or other treatment; (3) “the kinds of sentences available”; (4) the applicable advisory Guidelines range; (5) relevant policy statements by the Sentencing Commission; (6) “the need to avoid unwarranted sentencing] disparities”; and (7) “the need to provide restitution to ... victims.” 18 U.S.C. § 3553(a). A sentence within the Guidelines range triggers a rebuttable presumption of reasonableness, see Richardson, 437 F.3d at 553-54, but a court imposing such a sentence must nonetheless articulate its reasoning with sufficient specificity to permit meaningful appellate" }, { "docid": "22142489", "title": "", "text": "as well.” Id. Ultimately, the district court determined that the recommended Guidelines range of 15 to 21 months’ imprisonment did not “properly reflect the statutory factors” because of Tristan-Madrigal’s “repeated reentry[] and his serious drinking problem, which leads him to drive and to be quite dangerous.” Id. at 14. The district court concluded that the “two factors” of deterrence and public protection counseled toward an above-Guidelines sentence of thirty-six months’ imprisonment in this non “heartland or ... mine run case.” Id. Tristan-Madrigal made clear his objection to the substantive reasonableness of the above-Guidelines sentence and timely appealed. II. ANALYSIS Tristan-Madrigal argues that the district court’s upward variance resulted in a sentence greater than necessary to achieve the sentencing goals outlined in 18 U.S.C. § 3553(a) because (1) the district court overemphasized his past criminal behavior; (2) the district court unreasonably considered his need for substance-abuse treatment and vocational training because it failed to recognize that as a non-English-proficient non-citizen Tristan-Madrigal is ineligible for custodial treatment and training; and, finally, (3) no other information in the record supported an upward variance of the magnitude that the district court imposed. For the reasons set forth below, we disagree with each of Tristan-Madrigal’s arguments and affirm his sentence. A. Standard of Review This court reviews a district court’s sentence for reasonableness. United States v. Walls, 546 F.3d 728, 736 (6th Cir.2008). Because Tristan-Madrigal does not challenge the procedural reasonableness of his sentence, and explicitly disclaimed such a challenge at oral argument, this court need only “ ‘consider the substantive reasonableness of the sentence imposed under an abuse-of-discretion standard.’ ” Id. (quoting Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007)); see also United States v. Vallellanes, 339 Fed.Appx. 579, 582 (6th Cir.2009) (unpublished opinion) (bypassing the procedural-reasonableness analysis because the defendant did “not contend that his sentence [was] procedurally unreasonable”). The essence of a substantive-reasonableness claim is whether the length of the sentence is “greater than necessary” to achieve the sentencing goals set forth in 18 U.S.C. § 3553(a). “A sentence is substantively unreasonable if the district" }, { "docid": "22959512", "title": "", "text": "to provide just punishment for the offense; (B) to afford adequate deterrence to criminal conduct; (C) to protect the public from further crimes of the defendant; and (D)to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner. § 3553(a)(2). In this case, the district court varied upward from the top of the advisory guideline range by fifty-four months on each count, and ran the two sentences consecutive to each other to achieve a total upward variance of 114 months from what Gall characterizes as “the initial benchmark.” 552 U.S. at 49, 128 S.Ct. 586. This upward variance is “neither minor nor insubstantial,” and “[e]ven under Gall, ‘a [major] variance should be supported by a more significant justification than a minor one.’ ” Washington, 515 F.3d at 867 (alteration in original) (quoting Gall, 552 U.S. at 50, 128 S.Ct. 586). The district court “must make an individualized assessment based on the facts presented,” and upon determining that a non-Guidelines sentence is warranted, the district court “must consider the extent of the deviation and ensure that the justification is sufficiently compelling to support the degree of the variance.” Gall, 552 U.S. at 50, 128 S.Ct. 586; Washington, 515 F.3d at 867. However, even though the sentence imposed is outside the advisory Guidelines range, our substantive review of Riehart’s sentence is “narrow and deferential.” Feemster, 572 F.3d at 464 (internal quotation marks omitted); see also Gall, 552 U.S. at 51, 128 S.Ct. 586 (“Regardless of whether the sentence imposed is inside or outside the Guidelines range, the appellate court must review the sentence under an abuse-of-discretion standard.”). Thus, “it will be the unusual case when we reverse a district court sentence — whether within, above, or below the applicable Guidelines range — as substantively unreasonable.” Feemster, 572 F.3d at 464 (internal quotation marks omitted). We “may consider the extent of [any variance from the Guidelines range], but must give due deference to the district court’s decision that the § 3553(a) factors, on a whole, justify the extent of the variance.” Gall, 552" }, { "docid": "22584762", "title": "", "text": "several other sentencing factors than it assigned to the guidelines range. Nothing requires a sentencing court to give the advisory guidelines range as much weight as it gives any other § 3553(a) factor or combination of factors. See Shaw, 560 F.3d at 1237 (noting that a sentencing court “is permitted to attach great weight” to certain factors) (quotation marks omitted); see also Gall, 552 U.S. at 57, 128 S.Ct. at 600; Williams, 526 F.3d at 1322. A sentence’s variance outside the guidelines range, whether upward or downward, represents a district court’s judgment that the combined force of the other § 3553(a) factors are entitled to greater weight than the guidelines range. Otherwise, there would never be any variances. Yet every year thousands of sentences outside the guidelines are imposed and upheld. See, e.g., U.S. Sentencing Comm’n, Statistical Information Packet, Fiscal Year 2011, Eleventh Circuit 11 tbl.8 (2015) (showing that in fiscal year 2014 district courts imposed more than 20,000 sentences outside the guidelines range for reasons other than a departure). This is one of them. The dissent points out that “[njothing in the record at Rosales-Bruno’s initial sentencing hearing suggests that the court viewed Rosales-Bruno as the type of defendant who warranted an upward variance at all, let alone such • a significant one.” Dissenting Op. at 1280. No, but the record and result of the initial sentencing show that the district court thought that the appropriate sentence in view of all of the facts and circumstances was 87 months. At the initial sentencing, no variance was necessary to reach that appropriate sentence. At the resentencing, after reconsidering everything in light of the new guidelines range, the court concluded that an 87-month sentence was still the appropriate sentence in light of all the facts and circumstances, which is why it varied upward to that same sentence. The goal of sentencing is not to change the sentence in lockstep with changes in the advisory guidelines range but to “impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in [§ 3553(a)(2) ].” 18 U.S.C. §" }, { "docid": "8802820", "title": "", "text": "review the reasonableness of a sentence for an abuse of discretion. Gall v. United States, 552 U.S. 38, 41, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). “We may set aside a sentence only if we determine, after giving a full measure of deference to the sentencing judge, that the sentence imposed truly is unreasonable.” United States v. Irey, 612 F.3d 1160, 1191 (11th Cir.2010) (en banc). The district court must impose a sentence “sufficient, but not greater than necessary to comply with the purposes” listed in § 3553(a), including the need to reflect the seriousness of the offense, promote respect for the law, provide just punishment for the offense, deter criminal conduct, and protect the public from the defendant’s future criminal conduct. 18 U.S.C. § 3553(a). We examine the reasonableness of a sentence mindful of the totality of the circumstances. Gall, 552 U.S. at 51, 128 S.Ct. 586. “The party challenging the sentence bears the burden to show it is unreasonable in light of the record and the § 3553(a) factors.” United States v. Tome, 611 F.3d 1371, 1378 (11th Cir.2010). We conclude that Victor has not demonstrated his sentence was substantively unreasonable. His 121-month sentence was within the applicable guideline range, and we ordinarily expect such a sentence to be reasonable. United States v. Hunt, 526 F.3d 739, 746 (11th Cir.2008). And his sentence is supported by the § 3553(a) factors, which the district court discussed at length. The court considered the nature and circumstances of Victor’s offenses, emphasizing that, even when officers arrived on the scene, Victor “prepared himself to respond forcibly to them.” See 18 U.S.C. § 3553(a)(1). The court also considered Victor’s history and characteristics, explaining that Victor had no criminal history, a supportive family, and a remorseful attitude. See id. And the court stressed the need for Victor’s sentence to “reflect the seriousness of this crime,” “promote respect for the law,” and serve as a deterrent. See id. § 3553(a)(2). Based on these carefully considered factors, we do not agree that the district court’s failure to impose a below-guidelines sentence was unreasonable. AFFIRMED. . We" }, { "docid": "22959518", "title": "", "text": "552 U.S. at 51-52, 128 S.Ct. 586; see, e.g., United States v. Foy, 617 F.3d 1029, 1038 (8th Cir.2010) (affirming a 218-month upward variance because (1) “[w]e are not entitled ... under our deferential review to overturn a sentencing decision because we might have reasonably concluded a different sentence was appropriate”; (2) “the district court provided as our precedent requires, substantial insight into the reasons for its determination”; and (3) “the district court’s explicit justifications rest largely on the kind of defendant-specific determinations that are within the special competence of sentencing courts” (internal quotation marks omitted)); United States v. Azure, 596 F.3d 449, 456 (8th Cir.2010) (affirming the district court’s decision to run two sentences consecutively in order to achieve a 180-month sentence, which was 84 months above the top of the advisory guideline range for each count); United States v. Dehghani, 550 F.3d 716, 723 (8th Cir.2008) (affirming an upward variance of 105 months to achieve a sentence of 432 months’ imprisonment, and explaining that “[bjecause the sentencing judge is in a superior position to weigh the relevant factors under § 3553(a), the fact that we might reasonably conclude ‘that a different sentence was appropriate is insufficient to justify reversal of the district court’”) (quoting Gall, 552 U.S. at 51, 128 S.Ct. 586); United States v. McDonald, 267 Fed.Appx. 477, 478-79 (8th Cir.2008) (unpublished) (recognizing the Supreme Court’s rejection of an appellate rule that requires “extraordinary circumstances” to justify an extraordinary variance, and affirming a 130-month downward variance “[ujnder the more deferential abuse-of-discretion review outlined by the Supreme Court in Gall” (internal quotation marks omitted)); United States v. Larrabee, 436 F.3d 890, 894 (8th Cir.2006) (affirming an upward variance of 128 months). Ultimately, the district court determined that the circumstances of Richart’s offense were not typical, but were particularly egregious and out of the ordinary, justifying a significant upward variance. Giving deference to the district court as required by Gall, we cannot say that the district court committed a clear error of judgment in weighing the relevant factors. See Kane, 639 F.3d at 1136 (“Because of the substantial deference" }, { "docid": "5198320", "title": "", "text": "132 months imprisonment based on Gran-don’s “history and characteristics ..., the nature and circumstances of the offense, his dangerousness to the community, [and] the need for punishment and deterrence.” The district court then sentenced Grandon to 132 months imprisonment. Grandon appeals his sentence. II. DISCUSSION Grandon argues the district court erred in (1) departing upward based on underrepresented criminal history, and (2) alternatively varying upward. “We review sentences under a deferential abuse of discretion standard, reviewing the district court’s factual findings for clear error and its application of the guidelines de novo.” United States v. Spotted Elk, 632 F.3d 455, 458 (8th Cir.2011). We “must first ensure that the district court committed no significant procedural error.” Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). “If the district court did not pro-eedurally err, we ‘then consider the substantive reasonableness of the sentence imposed under an abuse-of-discretion standard.’” United States v. Franklin, 695 F.3d 753, 756-57 (8th Cir.2012) (quoting Gall, 552 U.S. at 51, 128 S.Ct. 586). A. Variance The district court based the variance on the sentencing factors contained in 18 U.S.C. § 3553(a), explaining a 132-month sentence was “sufficient but not' greater than necessary to achieve the goals of sentencing.” Specifically, the district court considered the “nature and circumstances of the offense,” id. § 3553(a)(1), inferring from Grandon’s use of a friendship and knowledge of the friend’s home security entry code “that [Grandon] was the mastermind of this burglary and the theft of these firearms.” The district court also discussed Grandon’s “history and characteristics,” id., finding by a preponderance of the evidence that Grandon had engaged in the uncharged criminal conduct of illegally possessing a narcotic while in jail and of shooting Bell. In addition, the district court considered the need for Grandon’s sentence “to reflect the seriousness of [his] offense” and “promote respect for the law,” pointing to “the foreseeable consequences of this very serious crime” and its belief Grandon had not been truthful about his involvement in shooting Bell..-See id. § 3553(a)(2)(A). Finally, the district court determined the variance was appropriate" }, { "docid": "22372958", "title": "", "text": "the effect of Schweitzer’s offenses on his family and the victims, his blatant disregard of prior orders of court, his failure to be deterred or rehabilitated despite prior terms of imprisonment and supervised release, and his dismissive attitude toward restitution obligations. The District Court weighed these considerations and concluded that, to foster the purposes of the Sentencing Reform Act, including the promotion of respect for the law and deterrence of future offenses, see 18 U.S.C. § 3553(a), a term of imprisonment of eighty-four months was necessary. There can be no doubt that the record reflects “rational and meaningful consideration” of the relevant statutory factors. See Grier, 449 F.3d at 574. Defense counsel complains that the sentence was above the range recommended by the Guidelines and by the parties. This does not call into question the District Court’s judgment. The range recommended by the Guidelines is one of the factors to be assessed in the sentencing calculus, but, just as a sentence within that range is not presumptively reasonable, a sentence outside of it is not presumptively unreasonable. Cooper, 437 F.3d at 331-32. And, of course, a district court is in no way bound by the parties’ sentencing recommendations. Indeed, perfunctory adoption of one party’s position — or both, if the parties agree — would arguably violate the court’s statutory duty to exercise “independent judgment” in its weighing of the relevant factors and crafting of the final judgment. See Grier, 449 F.3d at 574. The reasonableness of a sentence depends not on the district court’s adherence to the range recommended by the Guidelines or the parties but on its adherence to the mandate of the Sentencing Reform Act to give meaningful consideration to the factors of 18 U.S.C. § 3553(a). See id.; Cooper, 437 F.3d at 331-32. The record in this case confirms that the District Court understood and discharged its statutory obligations. We need not pass upon the District Court’s alternative justification for the sentence: its holding that an upward departure based on criminal history was warranted. The District Court offered this explanation only after it had already weighed the" }, { "docid": "22959511", "title": "", "text": "Barrett, 552 F.3d 724, 727 (8th Cir.2009). We also disagree with Richart’s assertion that the district court failed to give sufficient weight to the advisory guideline range. The district court acknowledged at sentencing that “[t]he custody range is zero to [six] months under the [Guidelines,” but explicitly found that “a zero-to-six month sentence is far, far too inadequate.” Clearly, the district court did not fail to consider this relevant factor. See Saddler, 538 F.3d at 890 (“A district court abuses its discretion ... when it fails to consider a relevant factor that should have received significant weight....” (internal quotations marks omitted)). Therefore, we turn to Richart’s argument that a 120-month sentence was greater than necessary to achieve the purposes set forth in § 3553(a)(2). Section 3553(a) provides that the sentencing court “shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in [§ 3553(a)(2)].” These purposes are the need for the sentence imposed: (A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; (B) to afford adequate deterrence to criminal conduct; (C) to protect the public from further crimes of the defendant; and (D)to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner. § 3553(a)(2). In this case, the district court varied upward from the top of the advisory guideline range by fifty-four months on each count, and ran the two sentences consecutive to each other to achieve a total upward variance of 114 months from what Gall characterizes as “the initial benchmark.” 552 U.S. at 49, 128 S.Ct. 586. This upward variance is “neither minor nor insubstantial,” and “[e]ven under Gall, ‘a [major] variance should be supported by a more significant justification than a minor one.’ ” Washington, 515 F.3d at 867 (alteration in original) (quoting Gall, 552 U.S. at 50, 128 S.Ct. 586). The district court “must make an individualized assessment based on the facts presented,” and upon determining that a non-Guidelines sentence is warranted, the district court" }, { "docid": "12421238", "title": "", "text": "set forth in § 3553(a). Booker, 543 U.S. at 261, 125 S.Ct. 738. In determining Mr. Santiago’s sentence, the district court was required first to calculate his sentence under the advisory guidelines. United States v. Stitman, 472 F.3d 983, 989 (7th Cir.2007). The district court did so and concluded that the advisory guidelines called for the statutory mandatory minimum sentence of 240 months’ imprisonment. Mr. Santiago does not allege any error in this respect. The court was then required to give Mr. Santiago the opportunity to invite its attention to any factor under § 3553(a) that would warrant a departure from the guidelines, see id., which the court did. The final step in the sentencing procedure required the court to consider the § 3553(a) factors and articulate the factors that determined the sentence imposed. See id. at 990. After considering the factors set forth in § 3553(a), the district court concluded that a sentence of 360 months’ imprisonment was sufficient but not greater than necessary to fulfill the purposes of § 3553(a). The district court concluded that Mr. Santiago’s history of violent and antisocial criminal conduct made a sentence above the statutory mandatory minimum necessary to promote respect for the law, to provide deterrence and to protect the public from Mr. Santiago. Each of the reasons articulated by the district court for justifying an above-guidelines sentence are grounded in § 3553(a). The district court’s findings revealed Mr. Santiago’s involvement in a series of violent crimes spanning more than twenty years. Given Mr. Santiago’s violent and persistent criminal conduct over such a long period of time, we conclude that the district court’s decision to impose a sentence greater than the advisory guidelines sentence was not unreasonable. Conclusion For the foregoing reasons, the judgment of the district court is affirmed. Affirmed . The district court had concluded that Mr. Santiago’s total offense level was 29 and his criminal history category was V. This resulted in an advisory guidelines range of 140-175 months' imprisonment. As noted previously, the guidelines provide that, when the statutory mandatory minimum sentence exceeds the advisory guidelines range, the" }, { "docid": "5198321", "title": "", "text": "district court based the variance on the sentencing factors contained in 18 U.S.C. § 3553(a), explaining a 132-month sentence was “sufficient but not' greater than necessary to achieve the goals of sentencing.” Specifically, the district court considered the “nature and circumstances of the offense,” id. § 3553(a)(1), inferring from Grandon’s use of a friendship and knowledge of the friend’s home security entry code “that [Grandon] was the mastermind of this burglary and the theft of these firearms.” The district court also discussed Grandon’s “history and characteristics,” id., finding by a preponderance of the evidence that Grandon had engaged in the uncharged criminal conduct of illegally possessing a narcotic while in jail and of shooting Bell. In addition, the district court considered the need for Grandon’s sentence “to reflect the seriousness of [his] offense” and “promote respect for the law,” pointing to “the foreseeable consequences of this very serious crime” and its belief Grandon had not been truthful about his involvement in shooting Bell..-See id. § 3553(a)(2)(A). Finally, the district court determined the variance was appropriate because Grandon was “an obvious danger to the community ... and ... at high risk to recidivate.” See id. § 3553(a)(2)(C). Grandon claims the variance was error because it was (1) based in part on the district court’s finding that Grandon shot Bell, which Grandon claims “was not supported by reliable evidence”; and (2) “largely based on the same grounds as the upward departure,” which Grandon asserts was improper. Grandon’s first argument amounts to a claim of procedural error. See Gall, 552 U.S. at 51, 128 S.Ct. 586 (explaining procedural error includes “selecting a sentence based on clearly erroneous facts”). Grandon’s second assignment of error involves the substantive. reasonableness of the variance. See United States v. Richart, 662 F.3d 1037, 1051 (8th Cir.2011) (“ ‘A district court abuses its discretion and imposes an unreasonable sentence when it fails to consider a relevant factor that should have received significant weight; gives significant weight to an improper or irrelevant factor; or considers only the appropriate factors but ... commits a clear error of judgment.’ ” (quoting United" } ]

[ { "docid": "23288285", "title": "", "text": "and seizures, shall not be violated....” The Supreme Court has determined that stopping an automobile and detaining its occupants constitute a seizure within the meaning of the fourth amendment. Delaware v. Prouse, 440 U.S. 648, 653, 99 S.Ct. 1391, 1395, 59 L.Ed.2d 660 (1979). War-rantless automobile stops and detentions to check the driver’s license and registration are permissible, however, when they are based on an “articulable and reasonable suspicion that ... either the vehicle or an occupant” has violated the law. Id. at 663, 99 S.Ct. at 1401. We have noted specifically in the context of automobile stops that objective factors known to the seizing officer must support this suspicion. United States v. Hawkins, 811 F.2d 210, 213-215 (3d Cir.), cert. denied, 484 U.S. 833, 108 S.Ct. 110, 98 L.Ed.2d 69 (1987). Velasquez testified during her competency hearing that she did not think that she was speeding at the time she was stopped, and that the car’s cruise control mechanism was activated and set at fifty-five miles per hour. App. at 155-56. However, neither Velasquez nor any other defense witness testified at the suppression hearing to controvert Duman’s testimony that she was speeding. Nor did her counsel argue during the hearing that she was not speeding. See app. at 438-42. Accordingly, the district court did not consider whether Velasquez was speeding when he ruled that the cocaine was admissible into evidence; rather, he assumed that she was speeding. Therefore, although Velasquez appears to argue on appeal that she was not speeding, see Appellant’s Reply Brief, at 3, she waived this issue by not arguing it below, Because this is an issue of fact which was not decided below, we do not reach it. 2. The search The district court denied Velasquez’s motion to suppress the physical evidence — the cocaine — obtained from the search. The court based its decision on its rulings that Velasquez lacked standing to object to the search and that she voluntarily gave her consent to the search. See app. at 448. As the court noted, either ruling by itself would be sufficient to support denial" } ]

[ { "docid": "14896878", "title": "", "text": "L.Ed.2d 854 (1973). In addition “[w]here the judge bases a finding of consent on the oral testimony at a suppression hearing, the clearly erroneous standard is particularly strong, since the judge had the opportunity to observe the demeanor of the witnesses.” United States v. Kelley, 981 F.2d 1464, 1470 (5th Cir.), cert. denied, 508 U.S. 944, 113 S.Ct. 2427, 124 L.Ed.2d 647 (1993). In Phillips, this Court announced six factors to be considered in deciding whether consent to search is obtained voluntarily. These factors include (1) the voluntariness of the defendant’s custodial status; (2) the presence of coercive police procedures; (3) the extent and level of the defendant’s cooperation with the police; (4) the defendant’s awareness of his right to refuse to consent; (5) the defendant’s education and intelligence; and (6) the defendant’s belief that no incriminating evidence will be found. Id. at 1023-24; see also Kelley, 981 F.2d at 1470. All of these factors are relevant; however, no single factor is dispositive. Zucco, 71 F.3d at 191 n. 14. Here, the district court did not clearly err in concluding based on the totality of the circumstances that. Tracy’s consent to search was voluntary. Tracy’s custodial status was voluntary in that Officer Salmon did not request consent until after the traffic stop had concluded; there was no evidence of any coercion by either officer; Tracy was cooperative with the officers, as evidenced by, among other things, his decision to step out of the van and telling Officer Salmon to “go ahead” and search the van; and Tracy seemed to have the ability to understand and communicate competently with the officers. Although Tracy probably did not know he had the right to refuse consent and likely knew of the incriminating evidence hidden in the van, based on the totality-of-the-circumstances, Tracy’s consent was voluntarily given. See United States v. Watson, 423 U.S. 411, 424, 96 S.Ct. 820, 828, 46 L.Ed.2d 598 (1976) (“[T]he absence of proof that [the defendant] knew he could withhold his consent, though it may be a factor in the overall judgment, is not to be given controlling significance.”)" }, { "docid": "4478235", "title": "", "text": "court to consider include the characteristics of the accused (such as age, maturity, education, intelligence, and. experience) and the conditions under which the consent to search was given (such as the officer’s conduct, the number of officers present, and the duration of the encounter). See Lattimore, 87 F.3d at 650. Whether the accused knew he possessed a right to refuse consent is a relevant factor, but the government need not demonstrate that the defendant knew of his right to refuse consent to prove that consent was voluntary. See Lattimore, 87 F.3d at 650. Written consent supports a finding that the consent was voluntary. See United States v. Navarro, 90 F.3d 1245, 1257 (7th Cir.1996). Consent given while in custody may still be voluntary. See United States v. Watson, 423 U.S. 411, 424, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976). If an individual voluntarily consents to a search while justifiably detained on reasonable suspicion, the products of the search are admissible. See Florida v. Royer, 460 U.S. 491, 502, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983). Boone argues that his consent to search his home was not voluntary and that all evidence obtained from the consent he gave to search should have been excluded by the district court. We review the factual findings of the district court for clear error and hold that the district court’s factual finding that Boone voluntarily consented to the search of his home was not clearly erroneous. The district court found that “there was-certainly a reasonable basis for the sheriff ... to stop [Boone’s] vehicle on the road” based on the information Sharon Boone gave to the police. Moreover, the district court found that during the time the police were talking with Boone, Boone did not ask to leave, he was cooperating with police and trying “to convince the police that he had nothing to hide,” and there was “no indication that he was coerced or his will was overborne.” Significantly, as noted above, Boone signed a consent form to search his house, and he was cooperating with police to deflect suspicion. The consent form stated," }, { "docid": "9745128", "title": "", "text": "police did not badger [the defendant] for information or consent, nor physically abuse or pressure him.” Strache, 202 F.3d at 986. In addition, the district court found that Bernitt .was in custody for only three to four minutes before the police solicited his consent. See id. (finding defendant’s consent voluntary even when defendant was in custody for approximately twenty minutes and not advised of his rights). In any case, “the fact of custody alone has never been enough in itself to demonstrate a coerced confession or consent to search.” United States v. Watson, 423 U.S. 411, 424, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976). In sum, we agree with the district court’s conclusion that Bernitt voluntarily consented to the search of his home. The potted plants found in his kitchen,' therefore, were properly submitted into evidence. The question remains of whether the scope of Bernitt’s consent included his unattached garage. Bernitt contends that even if we conclude his consent was voluntary, we should find that his consent only permitted search of his “residence.” Ber-nitt contends that he limited the scope of the search only to his home when he said, “Go ahead and search, you’re not going to find anything in the residence anyways.” On the other hand, at the suppression hearing, Officers Hoell and Vetter testified that Officer Hoell asked Bernitt for permission to search both his residence and garage. “A suspect may of course delimit as he chooses the scope of the search to which he consents.” Florida v. Jimeno, 500 U.S. 248, 252, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991). Moreover, while the officers testified at the suppression hearing that consenting to the search of Ber-nitt’s “residence” included, in their minds, search of Bernitt’s garage, the proper inquiry under the Fourth Amendment is that of objective reasonableness. In other words, “what would the typical reasonable person have understood by the exchange between the officer and the suspect?” Id. at 251, 111 S.Ct. 1801; see also Lemmons, 282 F.3d at 924 (“The scope of consent is defined by gauging, under the totality of the circumstances, what a typical" }, { "docid": "8048777", "title": "", "text": "was registered to another justified reasonable suspicion). The short detention therefore did not violate the Fourth Amendment. Whether or not a party has voluntarily consented to a search is a question of fact that the district court must evaluate in view of the totality of the circumstances. See Schneckloth v. Bustamonte, 412 U.S. 218, 248-49, 93 S.Ct. 2041, 2058-59, 36 L.Ed.2d 854 (1973); United States v. McRae, 81 F.3d 1528, 1536-37 (10th Cir.1996). Consent to search may be voluntary even though the consenting party is being detained at the time consent is given. See United States v. Watson, 423 U.S. 411, 424, 96 S.Ct. 820, 828, 46 L.Ed.2d 598 (1976) (“[T]he fact of custody alone has never been enough in itself to demonstrate a coerced confession or consent to search.”); United States v. Soto, 988 F.2d 1548, 1557 (10th Cir.1993) (“Valid consent may be given by a person being detained.”). Moreover, our cases dictate the conclusion that failure by law enforcement officials to advise a detainee of his Fourth Amendment right to refuse consent does not necessarily require a finding that consent was involuntary. See United States v. Sanchez-Valderuten, 11 F.3d 985, 990 (10th Cir.1993) (failure to advise lawfully detained defendant of his right to refuse consent only one factor in determining whether consent was voluntary); United States v. Manuel, 992 F.2d 272, 275 (10th Cir.1993) (same). Finally, we find nothing in the record to indicate the district court clearly erred in finding that Mr. Doyle voluntarily consented to the canine search. Ill In sum, we hold that Agent Muniz had reasonable suspicion to stop Mr. Doyle’s car and that his request to search Mr. Doyle’s vehicle did not exceed the scope of the detention. In addition, the district court’s finding that Mr. Doyle’s consent to Agent Muniz’s search of the car was clear and voluntary is not clearly erroneous. The judgment of the district court is AFFIRMED. . Because we hold that Agent Muniz's detention of Mr. Doyle was lawful, we do not address his claim that his consent to search and the evidence subsequently obtained should be suppressed" }, { "docid": "5282467", "title": "", "text": "Seda’s arguments regarding the classified material, the district court’s evidentiary decisions, the notion that the government was one-sided in its effort to obtain evidence abroad, or his view that the government’s characterization of the evidence rose to the level of a constitutional violation. Nonetheless, there were significant errors that merit a new trial. We conclude that the government violated its obligations pursuant to Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), by withholding significant impeachment evidence relevant to a central government witness. After reviewing the classified record, we also determine that the court erred in approving an inadequate substitution for classified material that was relevant and helpful to the defense. The substitution did not satisfy CIPA’s requirement that the summary “provide the defendant with substantially the same ability to make his defense as would disclosure of the specific classified information.” 18 U.S.C. app. 3 § 6(c)(1). We reject Seda’s remaining challenges to the handling of classified information under CIPA. We also conclude that the search that the government conducted of Seda’s computer hard drives went well beyond the explicit limitations of the warrant and remand to the district court to consider the appropriate scope of items seized and whether the exclusionary rule should apply. We are particularly troubled by the cumulative effect of these errors, which resulted in admitting evidence illegally seized while denying Seda both material impeachment evidence and potentially exculpatory evidence. See United States v. Wallace, 848 F.2d 1464, 1476 (9th Cir.1988) (emphasizing the cumulative effect of three trial errors improperly admitting impeachment evidence of a defense witness, erroneously bolstering the testimony of a prosecution witness, and admitting defendant’s statements that should have been suppressed). Although each of these issues potentially merits a remand or a new trial on its own, given these multiple, significant errors, “ ‘a balkanized, issue-by-issue harmless error review’ is far less effective than analyzing the overall effect of all the errors in the context of the evidence introduced at trial.... ” United States v. Frederick, 78 F.3d 1370, 1381 (9th Cir.1996) (quoting Wallace, 848 F.2d at 1476). Considering" }, { "docid": "2618673", "title": "", "text": "restraint of a Terry investigatory stop may be constitutionally justified only by probable cause.’ ” Royer, 460 U.S. at 496, 103 S.Ct. at 1323. The police must have probable cause to believe that the person has committed or is committing a crime to make a lawful warrantless arrest. United States v. Watson, 423 U.S. 411, 418, 96 S.Ct. 820, 825, 46 L.Ed.2d 598 (1976). After a day and a half of surveillance, no criminal activity by Richardson had been observed by the agents. Moreover, Officer McMillan’s testimony indicates that no probable cause existed to obtain a search warrant for the storage shed or Dock Richardson’s automobile when the conversation was initiated. The trial court held that “after obtaining Harris’s confession, the agents had probable cause to search, as the facts and circumstances within their knowledge were sufficient to warrant a prudent person in believing that the defendant had committed or was committing an offense.” Order Denying Motion to Suppress at 5 (Joint App. at 35). The arrest, however, occurred when the agents first placed Richardson in the police car, well before they obtained Harris’s statement. Accordingly, Harris’s statement had no effect on the legality of Richardson’s arrest. It could not be more clear that at the time of his arrest, the agents did not have probable cause to believe that Richardson had committed or was committing a crime. Accordingly, we hold that the arrest of Richardson was unreasonable and in violation of the Fourth Amendment. C. Did the Illegal Arrest Taint the Consent? The government argues, and the trial court held, that Richardson voluntarily consented to the search of the storage shed and automobile. Because the trial court did not find any constitutional violation in the encounter between Richardson and the law enforcement agents, the court did not consider whether Richardson’s consent to conduct the first search was tainted. See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). Accordingly, we now consider, de novo, whether the illegal arrest tainted Richardson's consent. A search based upon consent may be undertaken without warrant or probable" }, { "docid": "23053621", "title": "", "text": "these circumstances, we find that the officer’s extraneous questioning did not constitute an unreasonable seizure. B. Consent to Search Defendant next argues that even if the traffic stop was not unreasonably prolonged, he did not voluntarily consent to the search of his vehicle. The question of whether consent to search was freely and voluntarily given “is a question of fact to be determined from the totality of the circumstances.” Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). To be valid, consent must be “unequivocally, specifically, and intelligently given, uncontaminated by any duress or coercion.” United States v. Worley, 193 F.3d 380, 386 (6th Cir.1999) (internal quotation marks omitted). Because it is a question of fact, this Court reviews the district court’s finding of free and voluntary consent for clear error. United States v. Carter, 378 F.3d 584, 587 (6th Cir.2004) (en banc). Consent to search is a well-established exception to the Fourth Amendment’s warrant requirement. See Davis v. United States, 328 U.S. 582, 593-94, 66 S.Ct. 1256, 90 L.Ed. 1453 (1946). “The government bears the burden of proving, through ‘clear and positive testimony’ that the consent to search was given voluntarily.” United States v. Beauchamp, 659 F.3d 560, 570 (6th Cir.2011) (quoting United States v. Salvo, 133 F.3d 943, 953 (6th Cir.1998)). Courts should consider several factors when evaluating whether consent was voluntary, including: the age, intelligence, and education of the suspect; whether the suspect understands the right to refuse consent, id. at 572; the length and nature of the detention; the use of coercive or punishing conduct by the police, Bustamonte, 412 U.S. at 226, 93 S.Ct. 2041; and indications of “more subtle forms of coercion that might flaw [the suspect’s) judgment,” United States v. Watson, 423 U.S. 411, 424, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976). At the suppression hearing, Mercer testified that he stated to Defendant in reference to the vehicle, “You know we’re gonna want to look.” Mercer testified that Defendant then stated, “Go ahead.” On appeal, Defendant maintains that he never made this statement, but argues that if it" }, { "docid": "13767624", "title": "", "text": "487-88, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). The evidence in question was obtained via a search warrant for his house, which was based on evidence given by Ms. Higgins. Mr. Jarvi argues that the statements made by Ms. Higgins could not be used to obtain the warrant because they were the product of Fourth Amendment violations. However, “defendants charged with crimes of possession may only claim the benefits of the exclusionary rule if their own Fourth Amendment rights have in fact been violated.” United States v. Salvucci, 448 U.S. 83, 85, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980). In cases where multiple defendants are searched, Salvucei means that the defendant may not exclude evidence that has been “come at by exploitation” of a violation of somebody else’s rights. Our precedents regarding the intersection of these two doctrines place the burden on the defendant to demonstrate a “factual nexus” between a violation of his own Fourth Amendment rights and the discovery of the challenged evidence. United States v. Nava-Ramirez, 210 F.3d 1128, 1131 (10th Cir.2000) (internal citations omitted) (“At a minimum, a defendant must adduce evidence at the suppres sion hearing showing the evidence sought to be suppressed would not have come to light but for the government’s unconstitutional conduct”). Because the burden of proof was on Mr. Jarvi and he put forward insufficient evidence to support this theory at the suppression hearing, we affirm the district court’s ruling. The traffic stop can be divided into three relevant parts: the initial stop of Mr. Jar-vi’s truck, the detention after the stop, and the ultimate search of the truck. Mr. Jar-vi conceded that the stop was legal and the government conceded that the ultimate search was illegal; but the parties do not agree about the detention and did not make a stipulation below. Mr. Jarvi urges us to conclude from the government’s concession about the search that the detention was also illegal. Aplt.’s Br. 10-11. But the illegality of the search does not logically entail that the detention was illegal too: absent consent, the ultimate search required probable cause, but the" }, { "docid": "2169800", "title": "", "text": "actions of Shideler, Lange, and Resch can fairly be read to be in concert. Although the word “assist” is conelusory, Lange and Resch, upon reading the com plaint, could certainly ascertain that they are being sued for their role in stopping the exhibition and seizing the tape without a warrant. Thus, there is sufficient factual detail in the complaint to notify these defendants of the nature of the constitutional claims against them and frame an argument with regard to qualified immunity, discussed infra. Discovery can flesh out the balance of the details. In a related argument about Shideler, the defendants argue that the complaint fails to allege an unconstitutional seizure because Andre voluntarily handed the tape over to Shideler. The Court easily rejects this contention. Andre alleges that she gave Shideler the tape under threat of arrest and criminal prosecution. Furthermore, Andre alleges that she demanded a return of the tape within one (1) day after the incident. As such, there are sufficient facts in the allegations to preserve the voluntariness issue (including the scope and/or withdraw of consent, see Mason v. Pulliam, 557 F.2d 426 (5th Cir.1977)) for discovery. The Court questions the defendants’ reliance on: (1) United States v. Watson, 423 U.S. 411, 424, 96 S.Ct. 820, 828, 46 L.Ed.2d 598 (1976); (2) United States v. Gonzales, 79 F.3d 413, 421 (5th Cir.), cert. denied, — U.S. —, 117 S.Ct. 183, 136 L.Ed.2d 122 (1996); (3) United States v. Crowder, 62 F.3d 782, 787 (6th Cir.1995); (4) United States v. Miller, 20 F.3d 926, 930 (8th Cir.1994), cert. denied, 513 U.S. 886, 115 S.Ct. 226, 130 L.Ed.2d 152 (1994); and (5) United States v. Manuel, 992 F.2d 272, 275 (10th Cir.1993). These criminal cases, respectively, involved: (1) consent to search a car, (2) consent to search a car and a person, (3) consent to search, which led to seizure of a shotgun, (4) consent to search a car, and (5) consent to search a person. None of these cases were civil in nature or involved consent to seize personal property alleged to have First Amendment value. With regard" }, { "docid": "21907568", "title": "", "text": "an attempt to conceal identity should have been suppressed because the search warrant which led to their seizure was based on a factually insufficient affidavit. The major obstacle to this claim is that Fed.R.Crim.P. 12(b)(3) provides that a motion to suppress must be raised prior to trial, and here trial counsel failed to take such action. Defendant contends, however, that this failure to timely object should be excused under the relief for “cause” provision of Fed.R. Crim.P. 12(f) since the Government did not furnish trial counsel with a copy of the affidavit prior to trial. We cannot agree. The record indicates that defense counsel was given a copy of the search warrant and a list of the items seized nearly a month and a half before trial; that counsel had reason to believe the prosecution intended to introduce the seized items into evidence; and that counsel knew he could obtain the affidavit underlying the warrant. Yet at no time did the defense ever request a copy of the affidavit for the purpose of exploring whether the evidence could be suppressed. Defendant does not now argue that his trial attorney was incompetent, nor does he cite any authority for the proposition that the Government was obliged to turn over the affidavit absent a request. On these facts, ■we cannot say that defendant has established “cause” for relieving him from the timeliness requirements of Rule 12. V. Non-Disclosure of the Stevens Statement Defendant argues that the Government violated either the requirement of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), or the Jencks Act, 18 U.S.C. § 3500 et seq., by failing to disclose in advance of trial a statement by Paul Stevens (an alibi witness for the defense), contained in a report of FBI Agent Samuel J. Matson. Brady and its progeny require pretrial disclosure of exculpatory evidence materially favorable to the accused. See United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392,49 L.Ed.2d 342 (1976). Under the Jencks Act, after a prosecution witness has testified on direct, the Government, upon request, is required to" }, { "docid": "23113111", "title": "", "text": "observed innocent activities, nothing illegal. However, “probable cause requires only a probability or substantial chance of criminal activity, not an actual showing of such activity.” Gates, 462 U.S. at 244 n. 13, 103 S.Ct. at 2335 n. 13. Often, innocent behavior will form the grounds for probable cause. Id. Considering the totality of the circumstances; namely, Bray’s information, the confirmation of the July trip, and the observation of the activity on August 23, we conclude that the police had reasonable grounds to believe that the rental car contained cocaine and firearms. Therefore, the search of the rental ear was supported by probable cause. See Gates, 462 U.S. at 245, 103 S.Ct. at 2335. “If probable cause justifies a search of a vehicle which has been lawfully stopped, then that probable cause extends to justify the search of every part of the vehicle and all containers found therein in which contraband could be hidden.” United States v. Crotinger, 928 F.2d 203, 205 (6th Cir.1991), overruled on other grounds by U.S. v. Ferguson, 8 F.3d 385 (6th Cir.1993) (en banc). Thus, the district court correctly denied defendant’s motion to suppress the evidence seized from the rental car. The district court also correctly denied defendant’s motion to suppress the evidence seized from defendant’s person because this evidence was obtained from a search of defendant incident to an arrest justified by probable cause. “[T]he Fourth Amendment permits a duly authorized law enforcement officer to make a warrantless arrest in a public place even though he had adequate opportunity to procure a warrant after developing probable cause for arrest.” United States v. Watson, 423 U.S. 411, 427, 96 S.Ct. 820, 829, 46 L.Ed.2d 598 (1976) (Powell, J., concurring) (quoted in part in United States v. Duncan, 918 F.2d 647, 653 (6th Cir.1990), cert. denied, — U.S. -, 111 S.Ct. 2055, 114 L.Ed.2d 461 (1991)). In this case, the police officers had probable cause to make a warrantless arrest of defendant. The same circumstances that provided probable cause to search the rental car provided probable cause to believe defendant was committing a drug trafficking offense. Consequently," }, { "docid": "14281134", "title": "", "text": "both. Hamilton heard the informant say over the wire, “Okay, we’re all set. We’re taking off.” Both Deetjen and Prough testified that this meant that the sale had been made and the informant and Spaulding were going back to Maine. The defendant’s vehicle went in another direction. Prough radioed the police in Saugus, Massachusetts, and asked them to stop the defendant’s car with a marked cruiser. This was done. The defendant and the passenger, William Albright, were immediately arrested. The car was searched and the police seized $10,981 in currency, some of which was taken from the defendant’s person, but most was found underneath the front passenger seat. The police also seized a cellular telephone that was connected to the car’s cigarette lighter. The defendant admitted to the police that he owned the Honda, the money and the telephone. As soon as the informant’s car crossed over the border into Maine, MDEA agents stopped it, searched it and seized half a pound of cocaine. We end this section of the opinion by noting that the record does not show either directly or indirectly that either Massachusetts or Maine was mentioned on the tapes of the recorded conversations. And the agents testifying at the hearing stated they had not seen any drugs or money change hands. IV. The Defendant’s Argument The defendant asserts that there was no probable cause for the police to arrest him, search his motor vehicle, and seize therefrom $10,981 and a cellular telephone. A warrantless arrest, like the one at issue here, must be based on probable cause. See United States v. Watson, 423 U.S. 411, 417, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976); United States v. Link, 238 F.3d 106, 109 (1st Cir.2001); United States v. DeMasi, 40 F.3d 1306, 1312 (1st Cir.1994). Generally, if an arrest is not based on probable cause, then statements and evidence obtained as a result of the arrest are inadmissible. See Brown v. Illinois, 422 U.S. 590, 601-02, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975); Wong Sun v. United States, 371 U.S. 471, 484-86, 83 S.Ct. 407, 9 L.Ed.2d 441" }, { "docid": "9889950", "title": "", "text": "of fact determined by the totality of the circumstances. See United States v. Mendenhall, 446 U.S. 544, 557, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980); Schneckloth v. Bustamonte, 412 U.S. 218, 226, 227, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); United States v. Barnett, 989 F.2d 546, 554 (1st Cir.1993). Among other factors, a district court must consider “whether the consenting party was advised of his or her constitutional rights and whether permission to search was obtained by coercive means or under inherently coercive circumstances.” Barnett, 989 F.2d at 555; see also Schneckloth, 412 U.S. at 226, 93 S.Ct. 2041; United States v. Twomey, 884 F.2d 46, 51-52 (1st Cir.1989). “Although sensitivity to the heightened possibility of coercion is appropriate when a defendant’s consent is obtained during custody, see Schneckloth, 412 U.S. at 240, n. 29, 93 S.Ct. 2041, ‘custody alone has never been enough in itself to demonstrate ... coerced ... consent to search.’ ” Barnett, 989 F.2d at 555 (quoting United States v. Watson, 423 U.S. 411, 424, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976)). Here, Agent Blanco’s testimony contradicted Merced-Morales’ allegation of being coerced and held at gunpoint. The trial court observed both witnesses and determined that Agent Blanco’s testimony was more credible. Where, as here, “there are two competing interpretations of the evidence, the district court’s choice of one of them cannot be clearly erroneous.” United States v. Cruz Jiménez, 894 F.2d 1, 7 (1st Cir.1990); see also United States v. Zapata, 18 F.3d 971, 974 (1st Cir.1994) (holding trial judge’s denial of a suppression motion is entitled to considerable deference because he had opportunity to hear testimony, observe witness demeanor, and evaluate facts first hand). Accordingly, we conclude that appellant’s arguments on this issue are without merit. X. Evidence Seized at the Time of Merced-Morales ’ Arrest Merced-Morales argues that the evidence seized at the time of his arrest should have been suppressed because: (1) the drug conspiracy ended in 1995 when certain members of the Santiago-Lugo organization were arrested, and therefore the evidence was inadmissable pursuant to Fed.R.Evid. 404(b); and (2) the risk of" }, { "docid": "23069119", "title": "", "text": "16 and Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196, 10 L.Ed.2d 215 (1963). Rule 16(a)(1)(E) requires disclosure of “a written summary of [expert] testimony the government intends to use ... during its case in chief at trial. This summary must describe the witnesses’ opinions, the bases and reasons therefor, and the witnesses’ qualifications.” Basinger urges that the proper remedy for the alleged violations is reversal of his convictions. This court will only reverse a conviction because of a discovery violation if the district court abused its discretion and that error resulted in prejudice to the defendant’s substantial rights. United States v. Baker, 10 F.3d 1374, 1398 (9th Cir.1993), cert. denied, — U.S. -, 115 S.Ct. 330, 130 L.Ed.2d 289 (1994). Even assuming an abuse of discretion, we hold that reversal is not required because Basinger’s substantial rights were not violated. Basinger was aware before trial that Ely would “testify about his testing of the controlled substances” found at the site, and that “Mr. Ely will offer testimony on the red phosphorous method of methamphetamine production.” Basinger was fully informed about the relevant evidence seized from the shed that formed the basis for Ely’s testimony. The district court also offered Basinger additional time to review reports and prepare for cross-examination. See Baker, 10 F.3d at 1398. III. EVIDENCE SEIZED DURING A PRIOR ARREST Basinger sought to exclude testimony regarding certain items that had been seized during a 1991 traffic stop and arrest in California. Over his objection, Officer Hablitzel testified that he had stopped Basinger for an equipment violation regarding the car he was driving. Hablitzel noticed an illegal switchblade knife on Basinger’s belt, and on that basis arrested Basinger. Hablitzel conducted a search of Basinger’s car pursuant to the arrest and discovered (1) approximately 1)4 gram of methamphetamine, (2) $10,440 cash, and (3) a 90-pound drum of red phosphorous in the trunk. Basinger argues that testimony regarding the seized items should have been suppressed because Hablitzel’s search was illegal. He alternatively argues that the testimony was inadmissible under Fed.R.Evid. 404(b) and 403 as “prior bad acts”" }, { "docid": "23481074", "title": "", "text": "to the later motel search supports that testimony. As a result, the government met its burden of proving by a preponderance of the evidence that voluntary consent was obtained from Burns. The further search of Burns’s motel room was also justified by his consent. A recording was made, with Burns’s approval, by one of the arresting officers of the portion of the conversation in which Burns gave his consent to search the motel room. In that exchange, Burns engaged in a friendly conversation, and there is no hint that he was coerced in any way. Although Burns was handcuffed (because of his arrest for the fake driver’s license) when he led the officers to the room and permitted them to use his key to open the door, Burns’s consent was not invalidated simply because he was in custody at the time that he gave it. United States v. Watson, 423 U.S. 411, 424, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976) (holding that the defendant had not been coerced into consenting to a search, even though he had been arrested and was in police custody at the time). Burns was not confined in the police station when he gave his consent, and he was not physically threatened. As a result, there is no reason to believe that Burns’s consent was involuntary. The two plastic bags found in the motel room were therefore seized pursuant to a valid search. Turning next to J. Harden’s motion to suppress the evidence found-in the car that he was driving on July 2, 1998, this stop differs from the March 20, 1998 incident because it was not based upon probable cause to believe that a traffic violation had occurred. Instead, the stop was made to investigate a non-traffic-related crime. “[T]he police can stop and briefly detain a person for investigative purposes if the officer has a reasonable suspicion supported by articulable facts that criminal activity ‘may be afoot,’ even if the officer lacks probable cause.” United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989) (quoting Terry v. Ohio, 392 U.S." }, { "docid": "4175636", "title": "", "text": "home of F.B.I. agents is enough to make any consent the product of coercion might effectively foreclose almost all searches conducted pursuant to a voluntary consent. We decline to so hold. The defendant also argues that the F.B.I. agents told Mrs. Stone that if she did not consent they could obtain a search warrant. The testimony on this point is conflicting. Mrs. Stone testified that she was positive that the F.B.I. agents said they could get a search warrant. The F.B.I. agent in charge of the Stone ease testified that to his knowledge no one stated that the F.B.I. could obtain a warrant. He further testified that it would have been highly unlikely that anyone would so state since the F. B.I. had previously been advised that there was insufficient probable cause for authorization of a warrant. The trial judge heard the testimony of these witnesses and observed their demeanor on the witness stand and believed the testimony of F.B.I. agent Joseph Giglio. There is no basis for overturning this conclusion. Mrs. Stone testified that no threats were made to her by the F.B.I. agents and that she read and signed the consent form voluntarily. We conclude that there was no error in the ruling of the district court. III. The defendant argues that the government failed to disclose evidence favorable to the accused prior to trial. This argument is premised on the fact that the government had knowledge, prior to trial, that two of the bank employees could not identify the defendant. Stone insists that failure to inform the defendant of this evidence before trial violated his due process rights under the holding of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). However, in Brady, the defendant never had the benefit of the exculpa tory statement. The government in this case produced the two witnesses at trial and they testified that they could not identify the defendant. Stone has failed to show that any prejudice resulted from a failure to make the testimony available to him at an earlier time. IV. Additional errors are" }, { "docid": "6570453", "title": "", "text": "46. Agent Torrez noticed car keys on a table inside the motel room. See R., Vol. II at 36, 45; Vol. V at 4. An officer asked Defendant if he was driving the Mazda truck, and he replied that he had borrowed the truck from a friend. See R., Vol. II at 31. Defendant was told that a drug dog had alerted to the truck, and he was asked if he would consent to a search of the truck. See id. Defendant consented to have the truck searched. See id. Defendant was then read his Miranda warnings. See Appellant’s Br. at 6; Appel-lee’s Answer Br. at 4. The search of the Mazda truck revealed approximately 389 pounds of marijuana hidden in a false bed of the truck. See R., Vol. V at 4. ISSUES ON APPEAL Defendant contends that the trial court’s denial of his Motion to Suppress was in error, arguing that the evidence seized from the truck was the result of an illegal warrant-less entry into, and search of, his motel room. See Appellant’s Br. at 13. The government argues that the entry and search were legitimate because Defendant’s fourteen-year-old daughter gave her consent to the law enforcement officers’ entry. See Appellee’s Answer Br. at 5-6. Defendant maintains that his minor child, Nora, did not have the legal capacity to grant consent to enter the motel room and that Nora’s consent was not voluntary. See Appellant’s Br. at 13, 20. Defendant argues that the warrantless entry and search violated his rights under the Fourth Amendment and that the evidence obtained as a result of this search, including his statements, is therefore subject to the exclusionary rule as fruit of an illegal warrantless search. See Murray v. United States, 487 U.S. 533, 536-37, 108 S.Ct. 2529, 2533, 101 L.Ed.2d 472 (1988); Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 417-18, 9 L.Ed.2d 441 (1963). Defendant also contends that the prosecution withheld evidence which was material and exculpatory and, therefore, under Brady v. Maryland, 373 U.S. 83, 87-88, 83 S.Ct. 1194, 1197, 10 L.Ed.2d 215 (1963)," }, { "docid": "16807257", "title": "", "text": "recommendation on April 12, 1991. Defendant was convicted, and the district court sentenced him as a career offender under the Sentencing Guidelines based on five prior drug convictions. II. A. 1. Defendant first argues that the fact that his license was revoked was used as a mere pretext to stop and search defendant for drugs. In determining whether a stop was unreasonably pretextual, we must ask “whether under the same circumstances a reasonable officer would have made the stop in the absence of the invalid purpose.” United States v. Ferguson, 989 F.2d 202, 204 (6th Cir.1993) (quoting United States v. Smith, 799 F.2d 704, 709 (11th Cir.1986) (emphasis original)). Accord United States v. Pino, 855 F.2d 357, 361 (6th Cir.1988), modified, 866 F.2d 147 (6th Cir.1989), cert. denied, 493 U.S. 1090, 110 S.Ct. 1160, 107 L.Ed.2d 1063 (1990). Here, Birch knew that defendant’s license had been revoked. We conclude that, under these circumstances, a reasonable officer would have stopped defendant, rather than allowing him to continue to drive illegally. Thus, the stop was not unreasonable. When Birch then found the marijuana cigarette, he had probable cause to arrest defendant for possession of marijuana. See United States v. Watson, 423 U.S. 411, 418, 96 S.Ct. 820, 825, 46 L.Ed.2d 598 (1976) (commission of crime in presence of officer is sufficient cause to support warrantless arrest). We consequently find no constitutional error in either the initial stop or the arrest of defendant. 2. Defendant next contends that the subsequent search of the vehicle was unjustified. We disagree. A police officer may search the passenger compartment of an automobile incident to the lawful custodial arrest of the occupant of the vehicle without a warrant or probable cause. New York v. Belton, 453 U.S. 454, 460, 101 S.Ct. 2860, 2864, 69 L.Ed.2d 768 (1981). This is so even if the arrestee has been separated from his car prior to the search of the passenger compartment. United States v. White, 871 F.2d 41, 44 (6th Cir.1989). Further, where police have probable cause to believe that a vehicle contains contraband, they may search the entire vehicle" }, { "docid": "11023026", "title": "", "text": "by probable cause and thus the subsequent search was a lawful search incident to arrest. Ap-pellee’s Answer Brief at 17. United States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976), supports the arrest of Ramirez which was made in a public place in daytime. Watson noted that history clearly supports warrantless felony arrests in public places, and that such arrests need only be supported by probable cause at the time of arrest. Id. at 417, 96 S.Ct. at 824. Neither an arrest warrant nor exigent circumstances is required. Id. at 423, 96 S.Ct. at 827-28; see also United States v. Wright, 932 F.2d 868, 877 (10th Cir.) (“Law enforcement personnel may arrest a person without a warrant if there is probable cause to believe that person committed a crime.”), cert. denied, 502 U.S. 962, 112 S.Ct. 428, 116 L.Ed.2d 448 (1991); United States v. Maez, 872 F.2d 1444, 1449 n. 7 (10th Cir.1989) (a warrantless arrest in public with probable cause does not violate the Fourth Amendment, even though exigent circumstances do not exist). Here in his order denying the motion to suppress, the district judge cited Watson and found: The officers who arrested defendant were aware of a controlled drug transaction consummated in the recent past at 838 Bridge, SW, between defendant and a confidential informant. Moreover, the officers knew prior to defendant’s arrest that cocaine and a loaded firearm were found at 838 Bridge, SW, based on the successful execution of the search warrant. These factors rise to the level of probable cause and justify the officers’ warrantless arrest of defendant. “The facts and circumstances within the knowledge of the agents and those of which they had reasonably trustworthy information were sufficient to warrant an objective belief that a crime had been committed.” United States v. Skowronski 827 F.2d 1414, 1417 (10th Cir.1987). The evidence seized from defendant’s person was legally obtained per the dictates of the search warrant, and alternatively, was validly seized pursuant to a constitutionally permitted search incident to a lawful arrest. Order of September 24, 1993 at 2-3 (emphasis added)." }, { "docid": "9990820", "title": "", "text": "review the procedural reasonableness of Johnson’s sentence for an abuse of discretion by the District Court. United States v. Tomko, 562 F.3d 558, 567 (3d Cir.2009) (en banc). 1. Johnson’s first claim is that his cell phone was seized during the search incident to his arrest without probable cause in violation of the Fourth Amendment. After a hearing, the District Court denied Johnson’s motion to suppress. We too reject Johnson’s argument. The Fourth Amendment permits a felony arrest without a warrant based on probable cause, United States v. Watson, 423 U.S. 411, 417, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976), which is established when an officer has an objectively reasonable ground for belief in a suspect’s guilt based on the totality of the circumstances prior to the arrest, Maryland v. Pringle, 540 U.S. 366, 369-71, 124 S.Ct. 795, 157 L.Ed.2d 769 (2003). An officer may perform a warrantless search incident to a lawful arrest and seize evidence of criminal activity found within the area of the suspect’s immediate control. Chimel v. California, 395 U.S. 752, 763, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). But the exclusionary rule generally requires suppression of evidence seized during a search incident to an unlawful arrest. Wong Sun v. United States, 371 U.S. 471, 484, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). We conclude that officers had probable cause to arrest Johnson for substantially the same reasons cited by the District Court. Contrary to Johnson’s contentions, Donald Asper, an investigating officer, testified that before he arrested Johnson, William Childs, a cooperating witness, identified Johnson; that Childs’s statement was corroborated; and that Johnson walked quickly away as soon as he saw the arresting officers’ multiple, tinted, sport utility vehicles. Because Johnson’s cell phone was seized during the search incident to his lawful arrest, we will affirm the District Court’s denial of his motion to suppress. United States v. Robinson, 414 U.S. 218, 235, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973). 2. Johnson’s second claim is that the evidence was insufficient to support his robbery, firearms, and aiding and abetting convictions. Johnson moved for a judgment of" } ]

[ { "docid": "21321629", "title": "", "text": "defendant-appellee Village of Niles. No diversity of citizenship is asserted in the complaint. 1. The sole contested issue before us is whether plaintiffs may maintain this action against the defendant village in a federal district court, on a cause of action arising under Illinois state law, by joining it in the same complaint with their cause of action under the federal civil rights act against police officers of the village who were acting as such when the events complained of occurred. Because Siler v. Louisville & Nashville R. Co., 213 U.S. 175, 29 S.Ct. 451, 53 L.Ed. 753 (1909) was discussed in Hurn v. Oursler, 289 U.S. 238, 245, 53 S.Ct. 586, 77 L.Ed. 1148 (1933), relied upon by plaintiffs, we shall first discuss the Siler case. At 191, of 213 U.S., 29 S.Ct. 451, the Supreme Court held that when a federal district court (there known as the Circuit Court of the United States for the Eastern District of Kentucky) was presented by plaintiff with contentions that a state statute was invalid because it violated the federal constitution, it properly obtained jurisdiction, and having properly obtained it, the court had the right to decide all the questions in the case, even though it decided the federal question adversely to the party raising it, or even if it omitted to decide it at all, but decided the case on local or state questions only. In Oursler, 289 U.S. at 245, 53 S.Ct. at 589, Siler is recognized as stating a general rule broadly and without qualification. However, the court added that it is “a rule of general application, and we hold it to be such — as controlling in patent, trademark, and copyright cases as it was in the cases where it is announced.” However, the court then said at 245, 53 S.Ct. at 589: “But the rule does not go so far as to permit a federal court to assume jurisdiction of a separate and distinct' nonfederal cause of action because, it is joined in the same complaint with a federal cause of action. The distinction to be observed" } ]

[ { "docid": "4921832", "title": "", "text": "expected to try them all in one judicial proceeding[.]” United Mine Workers of America v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 1138, 16 L.Ed.2d 218 (1966). Lieb’s claims fall within the category of issues that the court may review pendent to the federal cause of action. Lieb has plead a single case based upon a coherent set of circumstances. Reliance upon different elements of the set to state each cause of action does not vitiate the court’s power to exercise pendent jurisdiction. The Supreme Court, in Gibbs, rejected as “unnecessarily grudging[,]” the approach of Hurn v. Oursler, 289 U.S. 238, 53 S.Ct. 586, 77 L.Ed. 1148 (1933), that required the various causes of action to be “little more than the equivalent of different epithets to characterize the same group of circumstances[,]” id. at 246, 53 S.Ct. at 589; United Mine Workers of America v. Gibbs, supra, 383 U.S. at 724-25, 86 S.Ct. at 1137-38. Lieb’s claims share sufficient underpinnings to present a case that would be resolved in a single proceeding if their federal and state character and the amount in controversy were not in issue. Recognizing that the court has the power to hear the entire case necessitates an evaluation of whether that power ought to be exercised. This determination requires a probing analysis because different principles control the discretionary exercise of pendent jurisdiction over state claims than those controlling federal claims beyond jurisdiction because of the amount in controversy. See Hagans v. Lavine, 415 U.S. 528, 548, 94 S.Ct. 1372, 1385, 39 L.Ed.2d 577 (1974); Theis, Pendent Jurisdiction Over Claims Arising Under Federal Law, 32 Hastings L.J. 91, 105-116 (1980). Before electing to exercise its pendent jurisdiction powers over state claims, a court must consider the factors of “judicial economy, convenience and fairness to litigants; if these are not present a federal court should hesitate to exercise jurisdiction[.]” United Mine Workers of America v. Gibbs, supra, 383 U.S. at 726, 86 S.Ct. at 1139. Lieb’s state claims for breach of warranty and for strict products liability are of a piece with the fraud claim. Relegating the" }, { "docid": "15561911", "title": "", "text": "the Gibbs case (supra) makes it plainly evident that the Supreme Court did not extend the principle of pendent jurisdiction to bootstrap service of process not otherwise valid. The court in discussing Hurn v. Oursler, 289 U.S. 238, 53 S.Ct. 586, 77 L.Ed. 1148, as limiting pendent jurisdiction to state and federal claims which are “little more than the equivalent of different epithets to char acterize the same group of circumstances” at page 725, 86 S.Ct. at page 1138: “This limited approach is unnecessarily grudging. Pendent jurisdiction, in the sense of judicial power, exists whenever there is a claim ‘arising under [the] Constitution, the Laws of the United States, and Treaties made or which shall be made, under their authority * * *,’ U.S.Const. Art. Ill, § 2, and the relationship between that claim and the state claim permits the conclusion that the entire action before the court comprises but one constitutional ‘case.’ * * * then follows the language important to our consideration here: “The federal claim must have substance sufficient to confer subject matter jurisdiction on the court. Levering & Garrigues v. Morrin, 289 U.S. 103, 53 S.Ct. 549, 77 L.Ed. 1062. at page 725, 86 S.Ct. at page 1138, the broadened approach is described as: “The state and federal claim must derive from a common nucleus of operative fact. But if, considered without regard to their federal or state character, a plaintiff’s claims are such that he would ordinarily be expected to try them all in one judicial proceeding, then, assuming substantiality of the federal issues, there is power in federal courts to hear the whole.” Gibbs (supra) though broadening the cause of action approach to pendent jurisdiction does not stand for the proposition that service of process to obtain personal jurisdiction can be bootstrapped as the plaintiff suggests here. The view of Judge Weinfeld in Kane v. Central American Mining & Oil, Inc., D.C., 235 P.Supp. 559 at 568 is a most enlightened one. Personal jurisdiction over defendants in separately stated causes of action in one case should not depend upon a ritualistic method of service" }, { "docid": "12433995", "title": "", "text": "been discharged from the ship and left on pier storage. To confer pendant or incidental jurisdiction, the complaint must state a “single cause of action” supported by federal and non-federal grounds, as distinguished from separate causes of action under federal and non-federal law. Hurn v. Oursler, 289 U.S. 238, 53 S.Ct. 586, 77 L.Ed. 1148 (1933). Separate causes of action are presented within the meaning of Hurn v. Oursler where the parties to the federal and non-federal claims are not identical. Pearce v. Pennsylvania R.R. Co., 162 F.2d 524 (C. A. 3, 1947), cert. den. 332 U.S. 765, 68 S.Ct. 71, 92 L.Ed. 350 (1947). Here the separate and alternative federal and non-federal causes of action are not asserted against identical defendants. Thus, no incidental or pendant jurisdiction exists with respect to the claim against the City. Accordingly, the motion to dismiss the alternative cause of action against the City will be granted on the ground that this Court lacks admiralty or maritime jurisdiction. . The Board of Harbor Commissioners operates the Wilmington Marine Terminal at the Port of Wilmington. . The complaint in pertinent part reads: “In the alternative, on or about November 2, 1965, said cargo was discharged in sound condition into the care and custody of the City of Wilmington. Said cargo was discharged onto the open pier at the Port of Wilmington and remained there. * * * ” 77 coils were removed by Howmet’s trucking agent on November 10, 1965 and found to be rusty and 168 coils remained there until sometime after December 31, 1965 when they were sold by Howmet. “Defendants knew or should have known that the cargo would be damaged if left exposed to rain and air. The defendants did not store said cargo, but permitted it to remain on the pier in an exposed condition. The defendants negligently caused said coils to be exposed to rain and air causing the coils to rust.” (Pars. 8(a) to 12, inclusive.) . From the facts alleged in the complaint of this case, it is clear that the Admiralty Jurisdiction Extension Act, 46 U.S.C." }, { "docid": "18215743", "title": "", "text": "ORDER EDENFIELD, District Judge. The plaintiff filed suit in the state courts of Georgia for $9,999.99 as damages for loss of the consortium of her husband as the result of personal injuries received by him when a bridge over which he was passing collapsed, causing him and the truck which he was driving to fall into a railroad gorge below, where he was burned by the explosion of a gas main which was damaged in the crash. The husband had already filed in this court a complaint for damages in the amount of $350,000.00 for his personal injuries suffered as the result of the same transaction. See Civil Action No. 10785 in this court. Despite the fact that the present petition does not allege the requisite jurisdictional amount, the defendants have removed the case to this court on the ground of diversity of citizenship, basing their removal upon the theory of pendent (ancillary) jurisdiction by reason of the fact that the husband’s case, showing the requisite amount, is already pending here and in the interest of judicial economy and convenience, the facts on liability being the same in both cases and the defendants in both cases being the same. See United Mine Workers of America v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218; Wilson v. American Chain & Cable Co., 364 F.2d 558 (3rd Cir. 1966); Borror v. Sharon Steel Co., 327 F.2d 165 (3rd Cir. 1964); Raybould v. Mancini-Fattore Co., 186 F.Supp. 235 (E.D.Mich.1960); Morris v. Gimbel Bros., Inc., 246 F.Supp. 984 (E.D.Pa. 1965); and Wiggs v. City of Tullahoma, 261 F.Supp. 821 (E.D.Tenn.1966). Plaintiff having filed a motion to remand,, the case presents a very interesting question of federal removal jurisdiction. Prior to the decision in United Mine Workers v. Gibbs, supra, the leading case on pendent (or ancillary) jurisdiction over non-federal questions was Hurn v. Oursler, 289 U.S. 238, 53 S.Ct. 586, 77 L.Ed. 1148, where the Supreme Court drew a distinction between: “ * * * a case where two distinct grounds in support of a single cause of action are alleged, one" }, { "docid": "23699419", "title": "", "text": "Pendent Jurisdiction This three-judge district court was convened because the complaint challenged the constitutionality of provisions of the Internal Revenue Code, 28 U.S.C. §§ 2282, 2284 (1964). This court also has jurisdiction, under 28 U.S.C. § 2282, sometimes called ancillary or pendent jurisdiction, to hear and determine the non-constitutional questions involved, including plaintiffs’ two statutory claims, based on the Civil Rights Act of 1964 and on the proper construction of the Internal Revenue Code. Flast v. Cohen, 392 U.S. 83, 90-91, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968); Florida Lime & Avocado Growers v. Jacobsen, 362 U.S. 73, 75-85, 80 S. Ct. 568, 4 L.Ed.2d 568 (1960); United States v. Georgia Pub. Serv. Comm’n, 371 U.S. 285, 287-288, 83 S.Ct. 397, 9 L.Ed.2d 317 (1963). “The doctrine of dependent or ancillary jurisdiction * * * springs from the equitable doctrine that a court with jurisdiction of a case may consider therein subject matter over which it would have no independent jurisdiction whenever such matter must be considered in order to do full justice.” Walmac Co. v. Isaacs, 220 F.2d 108, 113-114 (1st Cir. 1955). Pendent jurisdiction has usually been stated to exist when the two questions arise out of the same cause of action, whether they be state and federal claims, Hurn v. Ousler, 289 U.S. 238, 53 S.Ct. 586, 77 L.Ed. 1148 (1933), or two different federal claims, Romero v. International Terminal Operating Co., 358 U.S. 354, 79 S.Ct. 468, 3 L.Ed.2d 368 (1959). The Supreme Court has recently warned that the Federal courts should not be “unnecessarily grudging” in their assumption of pendent jurisdiction. The test is that the two claims “must derive from a common nucleus of operative fact,” and if “a plaintiff’s claims are such that he would ordinarily be expected to try them all in one judicial proceeding, then, assuming substantiality of the federal issues, there is power in Federal courts to hear the whole.” United Mine Workers of America v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 1138, 16 L.Ed.2d 218 (1966). The ultimate disposition of the claim upon which jurisdiction is based" }, { "docid": "17394545", "title": "", "text": "relied upon Hurn v. Oursler, 289 U.S. 238, 53 S.Ct. 586, 77 L.Ed. 1148, Siler v. Louisville & N. R. R. Co., 213 U.S. 175, 29 S.Ct. 451, 53 L.Ed. 753, in upholding the pendent jurisdiction: “Our present application of the doctrine of pendent jurisdiction is not novel. In Hurn v. Oursler, Mr. Justice Sutherland quoted from Siler v. Louisville & N. R. R. Co., 213 U.S. 175, 191, 29 S.Ct. 451, 455, 53 L.Ed. 753, 757 (1909), where the Court ruled that once federal question jurisdiction had been acquired the circuit court ‘had the right to decide all the questions in the ease, even though it decided the Federal questions adversely to the party raising them, or even if it omitted to decide them at all, but decided the case on local or state questions only.’ (Emphasis supplied.) UMW v. Meadow Creek Coal Co., 263 F.2d 52 (CA 6, 1959), cert. denied, 359 U.S. 1013, 79 S.Ct. 1149, 3 L.Ed.2d 1038 (1959) applied this theory in a case where, as here, the same conduct was claimed to constitute both a secondary boycott and a conspiracy prohibited by Tennessee common law. There the UMW argued that ‘the trial court, having in effect held that there was no violation of the federal Act, had no jurisdiction to determine and decide the common law or non-federal cause of action.’ 263 F.2d 59. We upheld federal jurisdiction to grant relief under state law, however, observing that ‘the claim of secondary boycott and unlawful conspiracy are not separate causes of action, but merely different grounds to support a single cause of action.’ 263 F.2d 60. We have continued to apply the rule of pendent jurisdiction, most recently in Price v. UMW, 336 F.2d 771, 775 (CA 6, 1964), cert. denied, 380 U.S. 913, 85 S.Ct. 899, 13 L.Ed.2d 799 (1965), and we are pointed to no persuasive reason for refusing to apply it here.” Gibbs, 343 F.2d 609 at 615. In a later case Lewis v. Pennington, 400 F.2d 806 (6 Cir., 1968) the 6th Circuit followed the guidelines laid down by the Supreme" }, { "docid": "6437038", "title": "", "text": "contractors is not clearly erroneous. See Cedar Crest Hats, Inc. v. United Hatters, Cap & Mil. Workers I. U., 362 F.2d 322 (5 Cir. 1966). Since a union is immune from federal antitrust liability if it acts alone, the district court correctly dismissed Count I. II. After dismissing the federal antitrust count on the merits, the district court dismissed the four state law counts, holding: “as there is no diversity between the plaintiff and the union defendant. This Court lacks jurisdiction to hear and determine this phase of the case.” Neither Webb nor the district court adverted to the possibility that the district court might have pendent jurisdiction over the state claims. In 1964, we said in Rumbaugh v. Winifrede Railroad Co., 4 Cir., 331 F.2d 530, cert. denied 379 U.S. 929, 85 S.Ct. 322, 13 L.Ed. 2d 341 (1964), that a district court had jurisdiction to decide federal and non-federal claims if they stated a “single cause of action,” and if “it cannot be said that the federal claim is ‘obviously without merit,’ or clearly foreclosed by prior Supreme Court decisions, or a matter that should be dismissed on the pleadings alone without presentation of some evidence.” 331 F.2d at 539-540 (footnotes omitted). Rumbaugh relied on Hurn v. Oursler, 289 U.S, 238, 53 S. Ct. 586, 77 L.Ed. 1148 (1933). Application of the quoted language might lead to the conclusion that the district court did not have pendent jurisdiction to decide the state claims. Some two years later in United Mine Workers v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966), the Supreme Court abandoned the Hurn-Rumbaugh mode of analysis as “unnecessarily grudging.” Gibbs held that as a matter of Article III judicial power, a federal court could adjudicate all issues in a “case” having both federal and state claims if those claims derived from a “common nucleus of operative fact . . . assuming substantiality of the federal issues.” Id., 383 U.S. at 725, 86 S.Ct. at 1138. Since Webb’s state claims differed from his federal claim only with respect to their legal theories" }, { "docid": "6173731", "title": "", "text": "disposition of this appeal, we may assume, without deciding, that Coulter has properly denominated its third counterclaim as one of “unfair competition” rather than one merely of breach of contract, as Particle Data contends. Coulter urges that its counterclaim is “related” within the meaning of Section 1338(b). The first case to bring pendent jurisdiction into prominence was Hurn v. Ousler, 289 U.S. 238, 53 S.Ct. 586, 77 L.Ed. 1148 (1933), wherein the Supreme Court distinguished proper from improper exercises of federal pendent jurisdiction over state law claims by contrasting “a case where two distinct grounds in support of a single cause of action are alleged, one only of which presents a federal question, and a case where two separate and distinct causes of action are alleged, one only of which is federal in character. In the former, where the federal question averred is not plainly wanting in substance, the federal court, even though the federal ground be not established, may nevertheless retain and dispose of the case upon the nonfederal ground; in the latter it may not do so upon the non-federal cause, of action.” 289 U.S. at 246, 53 S.Ct. at 589. In United Mine Workers v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 1138, 16 L. Ed.2d 218 (1965), the Court found this “limited approach * * * unnecessarily grudging.” The Court held “pendent jurisdiction, in the sense of judicial power, exists whenever there is a claim ‘arising under [the] Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority * * U.S.Const., Art. Ill, § 2, and the relationship between that claim and the state claim permits the conclusion that the entire action before the court comprises but one constitutional ‘case.’ * * * The state and federal claims must derive from a common nucleus of operative fact. But if, considered without regard to their federal or state character, a plaintiff’s claims are such that he would ordinarily be expected to try them all in one judicial proceeding, then, assuming substantiality of the federal issues, there is power" }, { "docid": "4921831", "title": "", "text": "the entire purchase price. Trebling this award would easily surmount the amount in controversy hurdle. Lieb has properly alleged a cause of action in fraud with a potential recovery in excess of $10,000. Diversity of citizenship is alleged and not disputed. Accordingly, the motion to dismiss the fraud claim is denied. III. Pendent Jurisdiction Among the four causes of action, only the claim for fraud fulfills the court’s jurisdictional requirements. The inadequacy of the amount in controversy in the other causes does not necessarily preclude their presentation in federal court; they may be cognizable pendent to the fraud claim. Exercise of pendent jurisdiction requires a two stage analysis to determine first, whether the court has the power to hear the pendent claims, and second, whether the court should exercise that power. See Leather’s Best, Inc. v. S.S. Mormaclynx, 451 F.2d 800, 809 (2d Cir. 1971). A court has the power to hear claims otherwise not within its jurisdiction if they “derive from a common nucleus of operative fact[,]” and if a plaintiff “would ordinarily be expected to try them all in one judicial proceeding[.]” United Mine Workers of America v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 1138, 16 L.Ed.2d 218 (1966). Lieb’s claims fall within the category of issues that the court may review pendent to the federal cause of action. Lieb has plead a single case based upon a coherent set of circumstances. Reliance upon different elements of the set to state each cause of action does not vitiate the court’s power to exercise pendent jurisdiction. The Supreme Court, in Gibbs, rejected as “unnecessarily grudging[,]” the approach of Hurn v. Oursler, 289 U.S. 238, 53 S.Ct. 586, 77 L.Ed. 1148 (1933), that required the various causes of action to be “little more than the equivalent of different epithets to characterize the same group of circumstances[,]” id. at 246, 53 S.Ct. at 589; United Mine Workers of America v. Gibbs, supra, 383 U.S. at 724-25, 86 S.Ct. at 1137-38. Lieb’s claims share sufficient underpinnings to present a case that would be resolved in a single proceeding if their" }, { "docid": "15561910", "title": "", "text": "it would claim that the alter ego theory asserted in plaintiff’s complaint makes the property of the defendant corporation the property of defendant NEWMAN. This would be a complete distortion of the alter ego doctrine. That doctrine has been invoked when fairness and justice require that the property of individual stockholders be made subject to the debts of the corporation. To apply such a doctrine here would be asking the court to apply the doctrine in one manner, i. e., make the property of the corporation the property of a stockholder, for the purposes of obtaining jurisdiction of the person of the stockholder and then to reverse the procedure, i. e., make the action of the individual stockholder the action of the corporation for purposes of creating liability in the name of the corporation. Neither reason nor law compel such a gymnastic. Plaintiff cites United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 as approval of the Supreme Court for a broad interpretation of pendent jurisdiction. But a reading of the Gibbs case (supra) makes it plainly evident that the Supreme Court did not extend the principle of pendent jurisdiction to bootstrap service of process not otherwise valid. The court in discussing Hurn v. Oursler, 289 U.S. 238, 53 S.Ct. 586, 77 L.Ed. 1148, as limiting pendent jurisdiction to state and federal claims which are “little more than the equivalent of different epithets to char acterize the same group of circumstances” at page 725, 86 S.Ct. at page 1138: “This limited approach is unnecessarily grudging. Pendent jurisdiction, in the sense of judicial power, exists whenever there is a claim ‘arising under [the] Constitution, the Laws of the United States, and Treaties made or which shall be made, under their authority * * *,’ U.S.Const. Art. Ill, § 2, and the relationship between that claim and the state claim permits the conclusion that the entire action before the court comprises but one constitutional ‘case.’ * * * then follows the language important to our consideration here: “The federal claim must have substance sufficient to confer subject" }, { "docid": "5614862", "title": "", "text": "to negligence within the scope of the FELA, it does not render the co-worker liable under the statute. Accordingly, Paz is not a proper party defendant under the FELA, and the Court does not have subject matter jurisdiction over the claims asserted against Paz on the basis of a federal question. Thus, in the absence of federal question (see 28 U.S.C. § 1331) or diversity (see 28 U.S.C. § 1332) jurisdiction, the Court must then determine whether pendent-party jurisdiction is available against a co-employee in an action brought under the FELA. (b) Pendent-Party Jurisdiction. Although Fed.R.Civ.P. 18(a) expressly permits the joinder of “as many claims” as a party has against another in an action, this rule is not without limitation and is subject to the doctrine of pendent jurisdiction. Rooted in the early Supreme Court decision of Hurn v. Oursler, 289 U.S. 238, 53 S.Ct. 586, 77 L.Ed. 1148 (1933), the doctrine was later refined in the landmark decision of United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966). While stressing that the doctrine is one “of discretion, not of plaintiff’s right” (id. at p. 726, 86 S.Ct. at p. 1139), the Court in Gibbs nonetheless held that federal courts have the Article III power to hear state-law claims if, taken together with the federal question providing jurisdiction, “the entire action before the court comprises but one constitutional ‘case’ ” (id. at p. 725, 86 S.Ct. at p. 1138). The test is whether “[t]he state and federal claims [] derive from a common nucleus of operative fact” (id.). Following Gibbs, several courts, including the Second Circuit (see, e.g., Almenares v. Wyman, 453 F.2d 1075, 1084-85 [2d Cir. 1971] [Friendly, J.], cert. denied, 405 U.S. 944, 92 S.Ct. 962, 30 L.Ed.2d 815 [1972]), applied the Gibbs analysis to permit the assertion of pendent claims over parties not the subject of the federal claim. This “pendent-party” jurisdiction was addressed by the Supreme Court in Aldinger v. Howard, 427 U.S. 1, 96 S.Ct. 2413, 49 L.Ed.2d 276 (1976). “Pendent-party” jurisdiction is broader than “pendent-claim” jurisdiction in that" }, { "docid": "9982637", "title": "", "text": "relationship which federal courts have required between the principal jurisdiction-conferring claim and the pendent claim has not remained constant, however. Originally, the requirement was that the failure of the principal claim had to establish the foundation for the pendent claim. Moore v. New York Cotton Exch., 270 U.S. 593, 46 S.Ct. 367, 70 L.Ed. 750 (1926). The Supreme Court later modified that requirement so that the principal and the ancillary or pendent claim had to be two distinct grounds in support of a single cause of action. Hurn v. Oursler, 289 U.S. 238, 53 S.Ct. 586, 77 L.Ed. 1148 (1933). The relationship test employed in Hum proved to be difficult to apply; much litigation revolved around whether the pleadings supported a single cause of action or whether two separate and distinct causes of action had been alleged. See American Fidelity & Casualty Co. v. Owensboro Milling Co., 222 F.2d 109 (6th Cir.1955); Jordine v. Walling, 185 F.2d 662 (3d Cir.1950); Zalkind v. Scheinman, 139 F.2d 895 (2d Cir.1943), cert. denied, 322 U.S. 738, 64 S.Ct. 1055, 88 L.Ed. 1572 (1944). These difficulties culminated in the decision of United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966), which required a new analysis of the required relationship between the principal claim and any ancillary or pendent claim. According to the Gibbs decision, the power of a federal court to hear one constitutional case is extended to include pendent non-federal question claims when the feder al question claim is substantial enough to establish original jurisdiction, and both the federal claim and the state claim stem from a common nucleus of operative facts. Further, without considering whether the claim is based on federal or state law, all the claims must be such that the plaintiff would ordinarily expect to try them in one judicial proceeding. If those factors are present, then the court has power to hear the entire case. Gibbs, 383 U.S. at 715, 86 S.Ct. at 1130. The Supreme Court in Gibbs held that the exercise of this power was discretionary and not constitutionally required. Considerations" }, { "docid": "9395854", "title": "", "text": "L.Ed. 1148 (1933), a federal court with federal jurisdiction of one cause of action could keep jurisdiction of a state-law cause of action only if it stated separate grounds for the same relief, not if it stated a separate cause of action. The court in Hurn stated (289 U.S. at 246, 53 S.Ct. at 589): “The distinction to be observed is between a case where two distinct grounds in support of a single cause of action are alleged, one only of which presents a federal question, and a case where two separate and distinct causes of action are alleged, one only of which is federal in character. In the former, where the federal question averred is not plainly wanting in substance, the federal court, even though the federal ground be not established, may nevertheless retain and dispose of the case upon the nonfederal ground-, in the latter it may not do so upon the nonfederal cause of action.” (Emphasis from original) The Hurn rule was expressly changed in United Mine Workers v. Gibbs, supra, where the Supreme Court stated (383 U.S. at 725, 86 S.Ct. at 1138): “This limited approach is unnecessarily grudging. Pendent jurisdiction, in the sense of judicial power, exists whenever there is a claim ‘arising under [the] Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority * * *,’ U.S. Const., Art. Ill, § 2, and the relationship between that claim and the state claim permits the conclusion that the entire action before the court comprises but one constitutional ‘case’. * * * The state and federal claims must derive from a common nucleus of operative fact. But if, considered without regard to their federal or state character, a plaintiff’s claims are such that he would ordinarily be expected to try them all in one judicial proceeding, then, assuming substantiality of the federal issues, there is power in federal courts to hear the whole.” (Emphasis from original) In Rosado, the court stated (397 U.S. at 405, 90 S.Ct. at 1214): “We are not willing to defeat the common" }, { "docid": "23195072", "title": "", "text": "federal courts’ jurisdiction to claims “arising under [the] Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority.” U.S. Const., art. Ill, § 2. When a plaintiff pleads a federal claim within a district court’s federal subject matter jurisdiction, a plaintiff may not automatically bring any other claim against the same defendant. Subject matter jurisdiction of non-federal claims, under the judicially-created doctrine of pendent jurisdiction, depends upon the relationship between those claims and the federal claims. The Supreme Court initially set out the concept underlying pendent jurisdiction in 1824 in Osborn v. Bank of the United States, 22 U.S. (9 Wheat.) 738, 6 L.Ed. 204 (1824). There, the Court stated that when a question to which the judicial power of the Union is extended by the constitution, forms an ingredient of the original cause, it is in the power of congress to give the Circuit Courts jurisdiction of that cause, although other questions of fact or of law may be involved in it. Id. at 823. The Court subsequently expanded the Osborn doctrine in Siler v. Louisville & Nashville R.R. Co., 213 U.S. 175, 29 S.Ct. 451, 53 L.Ed. 753 (1909), then narrowed pendent jurisdiction’s scope in Hurn v. Oursler, 289 U.S. 238, 53 S.Ct. 586, 77 L.Ed. 1148 (1933). Finally, more than two decades ago, the Court clarified the scope of pendent jurisdiction in United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966). In Gibbs, a unanimous Court rejected Hum as “unnecessarily grudging,” id. at 725, 86 S.Ct. at 1138, and adopted a two-part test resting on considerations of power and discretion. In evaluating a federal court’s power to hear a pendent claim, the Court stated that: [pjendent jurisdiction, in the sense of judicial power, exists whenever there is a claim “arising under [the] Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority ...,” U.S. Const., Art. Ill, § 2, and the relationship between that claim and the state claim permits the conclusion that the entire" }, { "docid": "15552043", "title": "", "text": "record now before the Court would be hazardous and unfair to both sides. Sharply contested, technical and complicated issues of fact should be resolved at a plenary trial, where the fact-finder may have the benefit of viva voce expert testimony as well as the testimony of other live witnesses, all subject to cross-examination. See, e. g., Miller v. General Outdoor Advertising Co., 337 F.2d 944 (2d Cir. 1964); Kierulff Asso ciates v. Luria Bros. & Co., 272 F.Supp. 537 (S.D.N.Y.1967). For the indicated reasons, defendants’ motion for partial summary judgment is hereby denied. So ordered. II. Defendants seek to dismiss the claims alleged in paragraphs “9” to “16” of the complaint on the ground that these claims for breach of oral and written contracts are non-federal in character and that the Court therefore lacks pendent jurisdiction to adjudicate them. The premise underlying this argument is that plaintiff has failed to satisfy the requirements for pendent jurisdiction formulated in Hurn v. Oursler, 289 U.S. 238, 53 S.Ct. 586, 77 L.Ed. 1148 (1933). In United Mine Workers of America v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966), a case not cited by either party, the Supreme Court abandoned the limitations set on the doctrine of pendent jurisdiction by Hurn v. Oursler, supra, and its progeny. In Gibbs, the Supreme Court noted that the Hurn v. Oursler cause of action test “has been the source of considerable confusion” and that “this limited approach is unnecessarily grudging”. (383 U.S. at 724, 725, 86 S.Ct. at 1138). Instead, the Supreme Court enunciated a new approach for determining when judicial power exists to consider the state claim: “The state and federal claims must derive from a common nucleus of operative fact. But if, considered without regard to their federal or state character, a plaintiff’s claims are such that he would ordinarily be expected to try them all in one judicial proceeding, then, assuming substantiality of the federal issues, there is power in federal courts to hear the whole.” (383 U.S. at 725, 86 S.Ct. at 1138). On this motion to dismiss, the" }, { "docid": "10906564", "title": "", "text": "proper case for the application of the doctrine of pendent jurisdiction. He admits that this Court does not have original jurisdiction over his claim; however, since the claim of the deceased wife’s administrator is properly before the Court, he argues that this Court has the power to hear his non-federal claim under the pendent jurisdiction doctrine. He urges the Court to exercise its discretion in favor of his claim in order to promote convenience of parties and witnesses and avoid needless duplication of effort by the state and federal courts. The United States Supreme Court first enunciated the concept of pendent jurisdiction in Hurn v. Oursler, 289 U.S. 238, 53 S.Ct. 586, 77 L.Ed. 1148 (1933). In that case, plaintiff sought an injunction for infringement of a copyrighted play which was permitted by the copyright laws of the United States. He also asserted a common law claim for damages for unfair competition against the same defendant. Plaintiff and defendant were citizens of the same state. The court held that where there is only one cause of action with jurisdiction being based upon a federal question, and several grounds for relief are sought (some of these grounds being non-federal in nature), the Court has the power to adjudicate the entire cause of action which includes both the federal and non-federal issues. The Hurn doctrine was further explained in United Mine Workers of America v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966) as follows: “Pendent jurisdiction, in the sense of judicial power, exists whenever there is a claim ‘arising under [the] Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their authority * * * ’ U.S.Const., Art. Ill, § 2, and the relationship between that claim and the state claim permits the conclusion that the entire action before the court comprises but one constitutional ‘case.’ The federal claim must have substance sufficient to confer subject matter jurisdiction on the court. * * * The state and federal claims must derive from a common nucleus of operative fact. But, if, considered" }, { "docid": "12433994", "title": "", "text": "on the pier from November 2nd until after December 31, 1965 to await removal by the consignee became a matter of inland storage with the City acting as warehouseman. This storage was entirely unrelated to navigation. From that point on, the relationship between How-met and the City was not maritime in nature. The City was not providing the consignee with wharfage service because the extended storage, during which the alleged rust damage occurred, did “not pertain to the navigation of a ship, nor assist a vessel in the discharge of a maritime obligation.” Pillsbury Flour Mills Co. v. Interlake S.S. Co., supra, 40 F.2d at 440; The Richard Winslow, 71 F. 426, 428 (C.A. 7, 1896); The Pulaski, 33 F. 383 (E.D.Mich.1888). Finally, although this Court had admiralty jurisdiction over How-met’s first alternative claim for cargo damaged in ocean transit against the carrier Tokyo (now dismissed for laches), this claim would not confer pendant or incidental admiralty jurisdiction over Howmet’s alternative and separate claim against the City for damage allegedly sustained after the cargo had been discharged from the ship and left on pier storage. To confer pendant or incidental jurisdiction, the complaint must state a “single cause of action” supported by federal and non-federal grounds, as distinguished from separate causes of action under federal and non-federal law. Hurn v. Oursler, 289 U.S. 238, 53 S.Ct. 586, 77 L.Ed. 1148 (1933). Separate causes of action are presented within the meaning of Hurn v. Oursler where the parties to the federal and non-federal claims are not identical. Pearce v. Pennsylvania R.R. Co., 162 F.2d 524 (C. A. 3, 1947), cert. den. 332 U.S. 765, 68 S.Ct. 71, 92 L.Ed. 350 (1947). Here the separate and alternative federal and non-federal causes of action are not asserted against identical defendants. Thus, no incidental or pendant jurisdiction exists with respect to the claim against the City. Accordingly, the motion to dismiss the alternative cause of action against the City will be granted on the ground that this Court lacks admiralty or maritime jurisdiction. . The Board of Harbor Commissioners operates the Wilmington Marine Terminal" }, { "docid": "22126269", "title": "", "text": "See Note, Parallel State and Federal Remedies, 71 Harv.L.Rev. 513, 523-24 (1957). Alternatively, even if different standards of recovery existed in the state and federal actions, res judicata would be applicable if plaintiffs were afforded an opportunity to allege the state grounds which constituted the same cause of action in the federal proceedings. See Restatement, Judgments § 62. Focusing on the latter test, we think that the doctrine of pendent jurisdiction, see Hurn v. Oursler, 1933, 289 U.S. 238, 53 S.Ct. 586, 77 L.Ed. 1148, afforded plaintiffs opportunity for joinder. In United Mine Workers of America v. Gibbs, 1966, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218, the Supreme Court established a liberal rule for judging the availability of pendent jurisdiction: “This limited approach is unnecessarily grudging. Pendent jurisdiction, in the sense of judicial power, exists whenever there is a claim ‘arising under [the] Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their authority * * *,’ U.S.Const., Art. Ill, § 2, and the relationship between that claim and the state claim permits the conclusion that the entire action before the court comprises but one constitutional ‘case.’ The federal claim must have substance sufficient to confer subject matter jurisdiction on the court. Levering & Garrigues Cp. v. Morrin, 289 U.S. 103, 53 S.Ct. 549, 77 L.Ed. 1062. The state and federal claims must derive from a common nucleus of operative fact. But if, considered without regard to their federal or state character, a plaintiff’s claims are such that he would ordinarily be expected to try them all in one judicial proceeding, then, assuming substantiality of the federal issues, there is power in federal courts to hear the whole.” Id. at 725, 86 S. Ct. at 1138 (footnote omitted). See also Whirl v. Kern, 5 Cir., 1969, 407 F.2d 781, cert. denied, 1970, 396 U.S. 901, 90 S.Ct. 210, 24 L.Ed.2d 177; Note, United Mine Workers of America v. Gibbs and Pendent Jurisdiction, 81 Harv.L.Rev. 657 (1968). Numerous decisions have applied this principle to permit the joinder of federal antitrust claims and" }, { "docid": "22769219", "title": "", "text": "the state claim. As to the first issue, it is questionable whether this state claim could have been heard under the test of Hurn v. Oursler, 289 U.S. 238, 246, 53 S.Ct. 586, 589, 77 L.Ed. 1148 (1933), which restricted pendent jurisdictions to instances in which “two distinct grounds [one state, one federal] in support of a single cause of action [were] alleged.” Joinder of the state claim against Tidewater would doubtless have been considered a second cause of action. But with the decision in United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966), the Court abandoned such an “unnecessarily grudging” approach to the question of power to hear the pendent claim, and turned instead to a mode of analysis which focuses upon the relationship between the facts underlying the state and federal claims: The state and federal claims must derive from a common nucleus of operative facts. But if, considered without regard to their federal or state character, a plaintiff’s claims are such that he would ordinarily be expected to try them all in one judicial proceeding, then, assuming substantiality of the federal issues, there is power in federal courts to hear the whole. Id. at 725, 86 S.Ct. at 1138 (footnote omitted). To be sure, the Gibbs Court was not confronted with the question whether pendent jurisdiction extended to a state claim against a party not named in the federal claim. But as we have recently observed in Astor-Honor, Inc. v. Grosset & Dunlap, Inc., 441 F.2d 627, 629 (2 Cir. 1971), “Mr. Justice Brennan’s language and the common sense considerations underlying it seem broad enough to cover that problem also. See Note, UMW v. Gibbs and Pendent Jurisdiction, 81 Harv. L.Rev. 657, 664 (1968).” In that decision, involving federal claims under the copyright laws and state claims of unfair trade practice and unfair competition, including a defendant not named in the copyright claims, we held that a federal court had power to hear a state claim against a party not named in the federal claim, provided the Gibbs test was met," }, { "docid": "18215744", "title": "", "text": "of judicial economy and convenience, the facts on liability being the same in both cases and the defendants in both cases being the same. See United Mine Workers of America v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218; Wilson v. American Chain & Cable Co., 364 F.2d 558 (3rd Cir. 1966); Borror v. Sharon Steel Co., 327 F.2d 165 (3rd Cir. 1964); Raybould v. Mancini-Fattore Co., 186 F.Supp. 235 (E.D.Mich.1960); Morris v. Gimbel Bros., Inc., 246 F.Supp. 984 (E.D.Pa. 1965); and Wiggs v. City of Tullahoma, 261 F.Supp. 821 (E.D.Tenn.1966). Plaintiff having filed a motion to remand,, the case presents a very interesting question of federal removal jurisdiction. Prior to the decision in United Mine Workers v. Gibbs, supra, the leading case on pendent (or ancillary) jurisdiction over non-federal questions was Hurn v. Oursler, 289 U.S. 238, 53 S.Ct. 586, 77 L.Ed. 1148, where the Supreme Court drew a distinction between: “ * * * a case where two distinct grounds in support of a single cause of action are alleged, one only of which presents a federal question, and a case where two separate and distinct causes of action are alleged, one only of which is federal in character. In the former, where the federal case averred is plainly not wanting in substance, the federal court, even though the federal ground be not established, may nevertheless retain and dispose of the case upon the nonfederal ground; in the latter it may not do so upon the nonfederal cause of action * * Although the court in the Gibbs case seemed willing to extend Hurn somewhat, saying: “This limited approach is unnecessarily grudging,” still in the final analysis, the court in Gibbs seems to apply Hurn as the ultimate test, at least to the extent of saying that before jurisdiction of one question, clearly within the jurisdiction of a federal court, can carry with it pendent jurisdiction over another clearly not within it, the relationship between the two must be such that, in reality, only one “Constitutional case” is involved. Applying this test in the present case," } ]

[ { "docid": "23431601", "title": "", "text": "costs nor their reasonableness.” And in Roberts v. United States, supra, 357 F.2d at 944-945, 174 Ct.Cl. at 949, the court again noted “ * * * their [plaintiff’s costs] appearance on plaintiff’s damage schedule does not by itself amount to probative evidence in the absence of anything else ****** [P]roof that the plaintiff’s costs * * * exceeded his payments under the contract would not in the usual case give rise to his right to recover the difference.” It is true, as plaintiff points out, that a calculation of a contractor’s total expenditure in the performance of his contract has been used in a few cases as the basis for a determination of his damages or increased costs resulting from some act of the defendant. However, an examination of each such case in this court demonstrates that in none of them did the damage proof relied on consist, as it does here, only of a single subtraction of contract receipts from total expenditures. In all of them, the total cost computation was used as “only a starting point” (River Construction Corp. v. United States, supra, 159 Ct.Cl. at 271), with such adjustments thereafter made in such computation 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. Similarly, in none of them were separate alleged breaches of contract combined for damage purposes into one “total loss” figure, with no attempt made to segregate the. increased costs flowing directly from each breach. Great Lakes Dredge & Dock Co. v. United States, 96 F.Supp. 923, 119 Ct.Cl. 504 (1951), cert. denied, 342 U.S. 953, 72 S.Ct. 624, 96 L.Ed. 708 (1952), involved an equitable adjustment to which the court held the contractor to be entitled as a result of a changed condition. The contract provided, in accordance with the usual standard clause, that such an adjustment should be based upon an “increase or decrease of cost.” In such cases the starting point for the" } ]

[ { "docid": "6575264", "title": "", "text": "of the equitable adjustment and the date on which interest accrues, and remanded. On remand the Claims Court is to consider only costs Dawco proves arise merely from the differing site conditions and from specific documented figures on derivative expenses, such as overhead, from which the equitable adjustment can be calculated (“actual costs”), and the court may not estimate damages by the “jury verdict method.” Damages are to be determined accordingly. COSTS Each party shall bear its own costs. AFFIRMED-IN-PART, REVERSED-IN-PART, AND REMANDED. . We received no explanation why Dawco’s April 2, 1986 letter to the Navy was not made part of the record before us, nor have we been able to locate it in the Claims Court record. . Even though we determine that the Claims Court incorrectly resorted to the \"jury verdict method,” we cannot, as an appellate tribunal, make factual findings that would establish the proper amount of the equitable adjustment. Assurance Co. v. United States, 813 F.2d 1202, 1205 n. 3 (Fed.Cir.1987). Here, our decision is limited to the review of the Claims Court’s selection of the method to determine damages. To the extent we discuss the Claims Court’s application of the \"jury verdict method,” we do so only to underscore the perils associated with this method. . The government contended that Dawco, in effect, presented the court with a \"total cost claim,” i.e., a summary of expenses attributable to the execution of the contract as a whole. What the court should have required, the government asserts, is an \"actual cost claim,\" detailing only the expenses arising from the differing site conditions. “Total cost claims,” like the \"jury verdict method,” are not favored and should only be resorted to when \"actual costs” cannot be determined. Wunderlich Contracting Co. v. United States, 351 F.2d 956, 965, 173 Ct.Cl. 180 (1965); G.M. Shupe, Inc. v. United States, 5 Cl.Ct. 662, 676 (1984). Here, however, since we conclude that Dawco has not shown it could not have presented the court with an \"actual cost claim,” there is no reason for us to reach the issue of whether a \"total" }, { "docid": "20646283", "title": "", "text": "In all of them, the total cost computation was used as “only a starting point” (River Construction Corp. v. United States, supra, at 271), with such adjustments thereafter made in such computation 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. Similarly, in none of them were separate alleged breaches of contract combined for damage purposes into one “total loss” figure, with no attempt made to segregate the increased costs flowing directly from each breach. Great Lakes Dredge & Dock Co. v. United States, 119 Ct. Cl. 504, 96 F. Supp. 923 (1951), cert. denied, 342 U.S. 953 (1952), involved an equitable adjustment to which the court held the contractor to be entitled as a result of a changed condition. The contract provided, in accordance with the usual standard clause, that such an adjustment should be based upon an “increase or decrease of cost.” In such cases the starting point for the calculation of the amount of the equitable adjustment is invariably a computation of the contractor’s cost of performing the extra work ordered by a change order or resulting from a changed condition. See Bruce Construction Corp., et al. v. United States, 168 Ct. Cl. 97, 324 F. 2d 516 (1963). In Great Lakes Dredge, the court rejected the contracting officer’s equitable adjustment allowance which was based not on the contractor’s actual increased costs but on what the costs would have been had a different system of coping with the changed condition been used. Instead, the court based the equitable adjustment on the difference between the contractor’s actual and originally estimated costs after making, however, an adjustment for the contractor’s underestimated bid, as well as adjustments for other costs, as shown by the record, for which the contractor was responsible and which were not attributable to the changed condition. On the record, the court concluded that the resulting amount was “the fairest basis for determining plaintiff’s increased costs due to the" }, { "docid": "13181433", "title": "", "text": "knowledge of the use to which the purchased fittings would be put and the requirements surrounding the installation of the sprinkler system. These factors, Southeastern argues, provide abundant evidence of the foreseeability requisite entitling it to recovery for consequential damages. In regard to the causation question, Southeastern refers to the testimony of Mr. Mills asserting that the root of the costs incurred was the defective fitting. Testifying that in the normal course of business it was Southeastern’s experience that actual job costs were within five percent of their estimated costs, Mr. Mills stated that the sixty percent increase of actual over estimated costs in the construction projects here was directly attributable to the unmerchantability of the goods supplied by Meyertech. Meyertech maintains that the total cost theory was properly disallowed as Southeastern failed to meet its burden of proof invoking the application of this particular measure of damages. We agree that the test set forth in Harkins is dispositive of whether Southeastern’s request for damages under the total cost method represents a viable claim, and also concur that Southeastern has failed to meet the requirements of this test. A brief sampling of cases allowing utilization of the total cost theory is illustrative of why its application is contraindicated herein. In Larry Armbruster & Sons v. State Public School Building Authority, 95 Pa. Comm.Ct. 310, 505 A.2d 395 (1986), damages were assessed on the total cost theory for increased labor and overhead costs incurred when changes in construction specifications resulted in an extra 24 weeks of labor. The damages were calculated by estimating the total man hours per week and multiplying that number by the actual costs for that period of time. These costs were verified by an independent certified public accountant who arrived at an almost identical figure for the labor costs. In light of the nature of the particular loss making it highly impracticable to calculate damages in some other fashion and where the loss figure was substantiated by reliable evidence, the theory was properly applied. In Baltimore Contractors, Inc. v. Albro Metal Products Corp., No. 79-4231 and No." }, { "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": "19999369", "title": "", "text": "$675,000 more than Youngdale’s bid. Tr. 521-38. The only specific knowledge Mr. Brinegar had of Youngdale’s bid was obtained from a 45-minute conversation that he had with Mr. Youngdale after the bid opening. Tr. 534. . This average is arrived at by aggregating the bids of the 11 other contractors plus the government’s estimate and dividing by 12 ($38,820,958 -=- 12 = $3,235,080). . Recently, the Claims Court has indicated that \"¡jlust because plaintiff has submitted an actual cost figure ... does not necessarily compel the conclusion that this figure is the most accurate reflection of the damages plaintiff incurred.” Concrete Placing, 25 Cl.Ct. at 378. . The court observes that Ms. Finch testified that the job cost sheet was audited by \"an accounting firm named John Pought from Portland, Oregon. And he prepared the audited financial statements for the fiscal year ending March 31, 1985, in which this job was completed” (Tr. 583); however, the plaintiff failed to call anyone from said firm to testify as to the accuracy of any of the audited figures. . Plaintiffs counsel failed to establish Ms. Finch’s educational or professional background beyond the fact that she is presently employed as a manager at Kuhn and Thefeld, a certified public accounting firm. Tr. 568. . PX 169 is a one-page summary sheet which compares the bid estimates for a particular item, i.e., labor, to the actual costs incurred with respect to that item, and then calculates Young-dale’s excess costs therefrom, i.e., the extent to which the actual costs exceed the bid estimates. PX 170 is a one-page summary schedule depicting Youngdale’s equitable adjustment as determined under the total cost method, i.e., it begins with Youngdale’s alleged total costs of $3,732,786** and adds to that $46,500*** in alleged \"wrongfully” withheld liquidated damages, $25,000*** for the Garcia Paving settlement claim allegedly paid by Youngdale, overhead of $189,750,** and a 10% profit of $399,-403, for a grand total of costs, overhead, and profit of $4,393,440. The schedule then deducts from that figure Youngdale's bid of $2,693,800, for an equitable adjustment of $1,699,640. ** Note that plaintiff has" }, { "docid": "20646282", "title": "", "text": "* *. That did not prove defendant’s responsibility for those costs nor their reasonableness.” And in Roberts v. United States, supra, 174 Ct. Cl. at 949, 357 F. 2d at 944-45, the court again noted “* * * their [plaintiff’s costs] appearance on plaintiff’s damage schedule does not by itself amount to probative evidence in the absence of anything else ****** [p]roof that the plaintiff’s costs * * * exceeded his payments under the contract would not in the usual case give rise to his right to recover the difference.” It is true, as plaintiff points out, that a calculation of a contractor’s total expenditure in the performance of his contract has been used in a few cases as the basis for a determination of his damages or increased costs resulting from some act of the defendant. However, an examination of each such case in this court demonstrates that in none of them did the damage proof relied on consist, as it does here, only of a single subtraction of contract receipts from total expenditures. In all of them, the total cost computation was used as “only a starting point” (River Construction Corp. v. United States, supra, at 271), with such adjustments thereafter made in such computation 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. Similarly, in none of them were separate alleged breaches of contract combined for damage purposes into one “total loss” figure, with no attempt made to segregate the increased costs flowing directly from each breach. Great Lakes Dredge & Dock Co. v. United States, 119 Ct. Cl. 504, 96 F. Supp. 923 (1951), cert. denied, 342 U.S. 953 (1952), involved an equitable adjustment to which the court held the contractor to be entitled as a result of a changed condition. The contract provided, in accordance with the usual standard clause, that such an adjustment should be based upon an “increase or decrease of cost.” In such cases" }, { "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": "21280756", "title": "", "text": "the regular and routine maintenance hours actually sustained a dramatic increase, that being in December of 1987. In the second term from August, 1988, through October, 1988, the plaintiff further claims an expenditure of 264.5 labor hours on regular and routine maintenance. As the standard monthly rate totalled 40.5, and the term spanned three months, the plaintiff calculates that the standard labor hour rate of 121.5 hours, subtracted from the 264.5 labor hours actually expended, totaled 143 hours of additional maintenance costs. When multiplied by the labor rate for that term, the adjustment for the second term equals $7,081.36. Thus, based on this damage calculation for the nondisclosure of superior knowledge, the plaintiff seeks a total adjustment of $20,470.12. As noted above, the plaintiff seeks to prove this adjustment under the total cost method. Apparently, the plaintiff assumes that this calculation so closely approximates the total cost- method that that method must apply, but when the computation of damages relies on estimates involving actual costs, actual costs and not total costs control. See Servi-done Constr. Corp. v. United States, 931 F.2d 860, 862 (Fed.Cir.1991) (allowing a damage calculation by total costs only “where no other way to compute damages was feasible”). Thus, this Court rejects the plaintiffs request to apply a total cost method of damage calculation where, as here, the evidence demonstrates sufficient documentation to support an estimation based on actual costs. Indeed, the Court of Claims has approved of the use of such estimations. Luria Bros. & Co. v. United States, 177 Ct.Cl. 676, 705, 369 F.2d 701, 714 (1966). Accordingly, applying the aetual cost method of damage calculation to the estimations of labor hours expended on additional maintenance at the Mart building per prior performance, this Court finds the plaintiff entitled to an additional equitable adjustment in the amount of $20,470.12. The defendant challenges the above liability calculation for additional maintenance on three grounds. First, the defendant asserts that the plaintiff provides no basis to prove the validity of the hourly labor rates. As noted above, the plaintiff charged two labor hour rates throughout the term of" }, { "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": "23431609", "title": "", "text": "piles to be used. Thus, the amount claimed for the particular work in controversy was, as the court recognized, “in the form of an equitable adjustment resulting from the change in specifications * * *.\" 347 F.2d at 246, 171 Ct.Cl. at 86. For the delays involved, the contractor sought only its overhead, and for the increased foundation work costs resulting from the change in the piles specification, which was the work involved in the “total cost” method dispute, plaintiff sought reimbursement for. such expenditures as re-excavation for sloughed-in footings, additional backfill, additional form work and grading, additional labor costs and water pumping. The amount allowed for the excess costs involved was specifically found to be “reasonable under the circumstances” (id.), and the “total cost” method of determining them the “only possible method by which these damages can be computed * * 347 F.2d at 247, 171 Ct.Cl. at 87. On another item of claim, however (loss incurred by reason of having to take over a subcontract), where it was the Government which pressed for the adoption of the “total cost” method because the amount produced thereby happened in this instance to be to its advantage, the court refused to adopt the method “since the exact amount of excess costs which plaintiff incurred as a result of defendant’s breach can be precisely computed.” 347 F.2d at 257, 171 Ct.Cl. at 105. Analysis thus indicates that in each of the four above cases, the “total cost” computation was regarded as “only a starting point.” River Construction Corp. v. United States, supra, 159 Ct.Cl. at 271. In each, the recovery based on total cost was refined by appropriate adjustments. Thus the court used the “method under proper safeguards.” J. D. Hedin Construction Co. v. United States, supra, 347 F.2d at 247, 171 Ct.Cl. at 86. Furthermore, the method was used only when the record showed “no other method was available” and “there is no other alternative.” Id. 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" }, { "docid": "3388825", "title": "", "text": "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 account for Servidone’s bid inaccuracies. The Claims Court took extensive testimony to determine a reasonable bid amount. This court discerns no clear error in the trial court’s substitution of a reasonable amount for Servidone’s bid under the total cost method. The Claims Court also considered the extent to which Servidone was responsible for added costs. Servidone, 19 Cl.Ct. at 386. In particular, the court considered Servidone’s inexperience with the highly plastic soils at the work site. The trial court then assessed appropriate overhead, profit, and equipment costs. This assessment included a correct application of the contract provision governing equipment costs. After exhaustive testimony, the trial court reached its findings about Servi-done’s actual costs, in which this court discerns no clear error. In sum, the Claims Court carefully found facts and correctly applied the law in a rare case justifying the total cost method. Under 41 U.S.C. § 611 (1982) (Section 12 of the CDA), the Claims Court awarded Servidone interest on its damages from the date the contracting officer received Servidone’s claim in March 1984." }, { "docid": "3388823", "title": "", "text": "in the damages computation. This substitution reduced Servidone’s claimed costs by $9,262,459.00. These findings produced an award to Servidone of $14,441,123.00. The trial court awarded Servidone interest on this sum from the date the Government contracting officer received Servidone’s certified claim. The Claims Court rejected Servidone’s request for recovery of over $13 million in interest on borrowings to cover the additional performance costs. On appeal, the Government questions both the damages and interest awards. On cross-appeal, Servidone questions the court’s substitution of a higher bid for Ser-vidone’s bid under the total cost method. Servidone also challenged the Claims Court’s denial of $13 million in interest on borrowings. DISCUSSION To receive an equitable adjustment from the Government, a contractor must show three necessary elements—liability, causation, and resultant injury. Wunderlich Contracting Co. v. United States, 351 F.2d 956, 968, 173 Ct.Cl. 180 (1965). Servidone presented causation evidence on three theories, one of which—the Type II differing site condition—the trial court sustained. This court discerns no basis for determining that the Claims Court clearly erred in this finding 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" }, { "docid": "23694540", "title": "", "text": "computation, even though the result is only approximate.” Wunder-lich Contracting Co. v. United States, 173 Ct.Cl. 180, 351 F.2d 956, 968 (1965); accord Assurance Co. v. United States, 813 F.2d 1202, 1205 (Fed. Cir.1987); Jackson v. United States, 12 Cl.Ct. 363, 366-67 (1987) (citing G.M. Shupe, Inc. v. United States, 5 Cl.Ct. 662, 719 (1984)). However, “leniency as to the actual mechanics of computation does not relieve a contractor of its basic and essential burden of establishing the fundamental facts of ... resultant damage.” G.M. Shupe, Inc. v. United States, 5 Cl.Ct. 662, 737 (1984). All outstanding motions are moot with the exception of plaintiffs motion, concurred in by defendant, to replace the court reporter’s incorrect exhibit list. That motion is allowed. . Plaintiff provided conflicting statements of when it actually commenced work. Mr. Marvin N. Kaplan, president of Mega Construction Company, Inc. (Mega), testified that work commenced September 17, 1985. However, plaintiffs principal expert witness on construction delays testified that work actually commenced a week later, on September 23, 1985. The start date is immaterial at this point, although it further confuses the delay claim discussed in detail later in this opinion. . Title IX of the Federal Courts Administration Act of 1992, Pub.L. No. 102-572, 106 Stat. 4506, enacted October 29, 1992, renamed this court The United States Court of Federal Claims. The Rules of the court are now abbreviated \"RCFC.” See General Order No. 32 (Dec. 4, 1992). . Plaintiffs counsel ignored the obvious. In a letter to the contracting officer dated July 14, 1987, a week before the termination for default, he stated, without support, that Your approach to replace the entire slab may very well be totally unsuitable and an overreaction, ... (As you know, Mega opened up two different areas of the slab for you at locations that, Mega contends, did not manifest the alleged [rebar placement] problems) ____ Mega is prepared to work with you to evaluate whether a problem exists, and if so, how to solve it, but you must be ready to cooperate. Please contact Marvin Kaplan or the undersigned at" }, { "docid": "20646279", "title": "", "text": "of [the claimed] recovery is 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. 163 Ct. Cl. at 351-52, 325 F. 2d at 458-59, 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, 154 Ct. Cl. at 549, 293 F. 2d at 632, 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, 180 Ct. 01. at 1025, 389 F. 2d at 1015, 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" }, { "docid": "23694539", "title": "", "text": "that damage awards to contractors are calculated based upon the difference between the reasonable cost for performing the work as changed and the reason able cost for performing the work according to the original contract specifications. J.L. Simmons Co. v. United States, 188 Ct.Cl. 684, 412 F.2d 1360, 1370 (1969) (citing Bruce Constr. Corp. v. United States, 163 Ct.Cl. 97, 324 F.2d 516, 519 (1963)). Exact computation of damages may prove to be extremely difficult to determine. Courts have held that [t]he ascertainment of damages, or of an equitable adjustment, is not an exact science, and where responsibility for damage is clear, it is not essential that the amount thereof be ascertainable with absolute exactness or mathematical precision: “It is sufficient if the evidence adduced is sufficient to enable a court or jury to make a fair and reasonable approximation.” Electronic & Missile Facilities, Inc. v. United States, 189 Ct.Cl. 237, 416 F.2d 1345, 1358 (1969) (citations omitted) (emphasis in original). “It is sufficient if [the plaintiff] furnishes the court with a reasonable basis for computation, even though the result is only approximate.” Wunder-lich Contracting Co. v. United States, 173 Ct.Cl. 180, 351 F.2d 956, 968 (1965); accord Assurance Co. v. United States, 813 F.2d 1202, 1205 (Fed. Cir.1987); Jackson v. United States, 12 Cl.Ct. 363, 366-67 (1987) (citing G.M. Shupe, Inc. v. United States, 5 Cl.Ct. 662, 719 (1984)). However, “leniency as to the actual mechanics of computation does not relieve a contractor of its basic and essential burden of establishing the fundamental facts of ... resultant damage.” G.M. Shupe, Inc. v. United States, 5 Cl.Ct. 662, 737 (1984). All outstanding motions are moot with the exception of plaintiffs motion, concurred in by defendant, to replace the court reporter’s incorrect exhibit list. That motion is allowed. . Plaintiff provided conflicting statements of when it actually commenced work. Mr. Marvin N. Kaplan, president of Mega Construction Company, Inc. (Mega), testified that work commenced September 17, 1985. However, plaintiffs principal expert witness on construction delays testified that work actually commenced a week later, on September 23, 1985. The start date is" }, { "docid": "19926276", "title": "", "text": "differentiate between costs allocable to the 42 unchanged items of work from the 47 items of work that were affected by change orders. Total delay costs, in the amount of $97,032.60, were obtained in exhibit A-2 by multiplying the average daily cost by the 51 standby time days summarized on page 33 of the exhibit. This court consistently has refused to allow recovery of claims on the so-called “total cost” method of computation. Kecovery on the basis of total expenditures less contract receipts is only appropriate where there are proper safeguards ■and there is no other alternative to compute reasonable damages when the Government’s responsibility for damages is clearly established. Where the “total cost” method of proving damages has been rejected, if the record otherwise contains reasonably satisfactory evidence of damages, or at least is sufficient to afford a basis for a jury verdict, such evidence has been given weight. Where the record is blank with respect to such alternative evidence, however, the court has dismissed the claim for failure of proof. Ascertainment of increased costs that are directly attributable to delay that results from changes ordered by the Government normally are measurable with a reasonable degree of accuracy. No attempt is made in exhibit A-2 to correlate costs attributable to particular delays that result from identified changes ordered. No attempt is made to correlate alleged labor inefficiency and indirect overhead expenses to the changed items of work as distinguished from the unchanged work items. The audit report submitted by plaintiffs after the second board hearing is similarly deficient. The purpose of this audit was to show details of lump-sum figures on page 2 of exhibit A-2. The audit, however, gives no detailed breakdown of the figures for labor, contractor-owned equipment depreciation, third-party equipment rentals, and general and administrative costs so as to allow allocation to changed and unchanged items of work. It is clear that exhibit A-2, the basic support for the subcontractor’s claim is, as found by the board, ‘‘* * * absolutely useless as a basis for determining the amount of any equitable adjustment * * *”" }, { "docid": "2916599", "title": "", "text": "of winter work, if the delays can be apportioned on the record before the court. i. When establishing the extent of government-caused delay to project completion, the contractor bears the burden of proving critical path delays In order to prevail on its claims for the additional costs incurred because of the late completion of a fixed-price government construction contract, “the contractor must show that the government’s actions affected activities on the critical path of the contractor’s performance of the contract.” Kinetic Builder’s Inc. v. Peters, 226 F.3d 1307, 1317 (Fed.Cir.2000) (citing Essex Electro, 224 F.3d at 1295-96 and Sauer Inc. v. Danzig, 224 F.3d 1340, 1345-46 (Fed.Cir.2000)). “‘The reason that the determination of the critical path is crucial to the calculation of delay damages is that only construction work on the critical path had an impact upon the time in which the project was completed.’ ” Wilner, 24 F.3d at 1399 n. 5 (quoting G.M. Shupe, Inc. v. United States, 5 Cl.Ct. 662, 728 (1984)). “One established way to document delay is through the use of Critical Path Method (CPM) schedules and an analysis of the effects, if any, of government-caused events upon the critical path of the project.” PCL Constr. Servs., Inc. v. United States, 47 Fed.Cl. 745, 801 (2000). A government delay which affects only those activities not on the critical path does not the delay the completion of the project. As the Claims Court stated in G.M. Shupe: If work on the critical path was delayed, then the eventual completion date of the project was delayed. Delay involving work not on the critical path generally had no impact on the eventual completion date of the project. 5 Cl.Ct. at 728. It is the contractor’s burden to establish the critical path of the project in order to justify an equitable adjustment based on an extension of the completion date of the project. See CEMS, Inc., 59 Fed.Cl. at 233 (denying recovery because the plaintiff had not met this burden). In PCL, this court denied recovery for government-caused delay because the contractor “never provided [the government] or this court" }, { "docid": "19999370", "title": "", "text": "figures. . Plaintiffs counsel failed to establish Ms. Finch’s educational or professional background beyond the fact that she is presently employed as a manager at Kuhn and Thefeld, a certified public accounting firm. Tr. 568. . PX 169 is a one-page summary sheet which compares the bid estimates for a particular item, i.e., labor, to the actual costs incurred with respect to that item, and then calculates Young-dale’s excess costs therefrom, i.e., the extent to which the actual costs exceed the bid estimates. PX 170 is a one-page summary schedule depicting Youngdale’s equitable adjustment as determined under the total cost method, i.e., it begins with Youngdale’s alleged total costs of $3,732,786** and adds to that $46,500*** in alleged \"wrongfully” withheld liquidated damages, $25,000*** for the Garcia Paving settlement claim allegedly paid by Youngdale, overhead of $189,750,** and a 10% profit of $399,-403, for a grand total of costs, overhead, and profit of $4,393,440. The schedule then deducts from that figure Youngdale's bid of $2,693,800, for an equitable adjustment of $1,699,640. ** Note that plaintiff has not offered any credible proof with respect to substantiating the amount of this item. *** This amount is in error, as the liquidated damages withheld from Youngdale by the government totalled $46,750, not $46,500. DX 44. . According to the court in Servidone, the plaintiff therein was allowed to recover under the total cost method, because the court was able to rely upon the accountant’s testimony with respect to the costs claimed, i.e., the court was generally impressed with the accountant's considerable experience in auditing construction companies, and his knowledge and competency as a witness. Servidone, 19 Cl.Ct. at 384. Additionally, the court indicated that the accountant \"completely reconstructed plaintiff’s accounting records by going back to original documents.” Id. Clearly, this is not the case at bar. . Additionally, Mr. Gaber testified that Young-dale was further delayed in putting in the site utilities because they encountered rock and, therefore, had to stop to excavate the rock before putting in the utilities or find some other manner to go around the rock. The court notes, however," }, { "docid": "19999252", "title": "", "text": "of last resort. Servidone, 931 F.2d at 861. We understand this to mean that the Federal Circuit has condoned the use of said method only “in those extraordinary circumstances where no other way to compute damages was feasible and where the trial court employed proper safeguards.” Id. at 862. In essence, the amount of damages recoverable under the total cost method is roughly equivalent to the total actual costs incurred in performing the contract minus the contractor’s bid price or estimated costs. Use of this method is highly disfavored by the courts, because it blandly assumes — that every penney of the plaintiff’s costs are prima facie reasonable, that the bid was accurately and reasonably computed, and that the plaintiff is not responsible for any increases in cost. Urban Plumbing & Heating v. United States, 187 Ct.Cl. 15, 408 F.2d 382 (1969); F.H. McGraw & Co. v. United States, 131 Ct.Cl. 501, 130 F.Supp. 394 (1955). These assumptions will not fly because relevant ease law has shown that this method is used only in cases 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" }, { "docid": "21280742", "title": "", "text": "Electronic & Missile Fer-tilities, Inc. v. United States, 189 Ct.Cl. 237, 257, 416 F.2d 1345, 1358 (1969) (citations omitted, emphasis in original). “It is sufficient if he [plaintiff] furnishes the court with a reasonable basis for computation, even though the result is only approximate.” Wunderlich Contracting Co. v. United States, 173 Ct.Cl. 180, 199, 351 F.2d 956, 968 (1965); see also Capital Electric Co. v. United States, 729 F.2d 743, 746 (Fed.Cir.1984); Jackson v. United States, 12 Cl.Ct. 363, 366-67 (1987); Addison Miller, Inc. v. United States, 108 Ct.Cl. 513, 557, 70 F.Supp. 893, 900, cert. denied, 332 U.S. 836, 68 S.Ct. 217, 92 L.Ed. 408 (1947). However, “leniency as to the actual mechanics of computation does not relieve a contractor of its basic and essential burden of establishing the fundamental facts of liability, causation, and resultant injury.” G.M. Shwpe, Inc. v. United States, 5 Cl.Ct. [662] at 737 (1984). American Line Builders, Inc. v. United States, 26 Cl.Ct. 1155, 1181 (1992). With this understanding of the damage calculation as a baseline, this Court considers the plaintiffs calculation of damages. Repair Costs In defining damages, the plaintiff requests that this Court apply a total cost method of damage calculation. Although the plaintiff presents actual costs for all of the repair items, because of the exigencies of proof for certain damages, the plaintiff maintains only estimates of the additional costs associated with the additional maintenance items. As a general rule, where a party possesses actual costs of the additional work, a court utilizes this preferred method of damage calculation in lieu of the total cost method or the jury verdict method. Dawco Constr. v. United States, 930 F.2d 872, 881 (Fed.Cir.1991). As the plaintiff presents proof of the actual costs for the repairs, this Court first considers those costs, including the three major repairs as well as the miscellaneous repairs. First, the plaintiff seeks damages for the replacement of the field coils in passenger elevator No. 3. The direct labor costs for the repair by Miller totalled $4,608.45 (95 hours times $48.51 per hour), and the cost of repair by Missouri" } ]

[ { "docid": "14766954", "title": "", "text": "hero. The decided weight of judicial authority is that a woman did not at common law lose her citizenship here by marrying an alien unless she removed from the country. This seems a reasonable view. Citizenship, like domicile, must be to some extent a matter of intention. The intention should bo respected unless the rules of law make it impossible to do so. There is no evidence that Mrs. Fitzroy ever expected or intended to lose her citizenship in the United States. During the entire period of her marriage, she and her husband were both domiciled in this country and subject to its laws. It is pretty artificial to say on such facts, and in the absence of any controlling statute, that the marriage expatriated her and imposed upon her tho duty of allegiance to the British sovereign. It was said in Comitis v. Parkerson (C. C.) 56 F. 556, 22 L. R. A. 148: “A change of the allegiance due to the United States * * * involves, * * \" on the part of the citizen, the manifestation of the purpose to expatriate himself by some unequivocal act, which act must also be recognized by the government to be adequate for that purpose.” Billings, J. “I am clearly of the opinion that a woman, a citizen of the United States, does not lose that citizenship by marriage to an alien, at least so long as she continues to reside in the United States.” Munger, J,, Wallenburg v. Mo. Pac. Ry. Co. (C. C.) 159 F. 217. And this was the view of Justice Storey in Shanks v. Dupont, 3 Pet. 242, 7 L. Ed. 666. The same conclusion was reached by Mr. Allen, Attorney General of Mass., in an able and careful opinion to the Secretary of the Commonwealth. ' Atty. Gen. Report Mass. 1920, p. 260. I am aware that there are decisions to the contrary, but tho view which I follow seems, to me the sounder. In my opinion the petitioner did not by her marriage to Mr. Fitzroy lose her citizenship in the United States." } ]

[ { "docid": "22120303", "title": "", "text": "renounce and in truth do renounce my American citizenship, and swear to be faithful to H. M. the King of Italy and Albania, Emperor of Ethiopia, to his royal successors, and to loyally observe the statutes and other laws of the Kingdom of Italy! ” (Emphasis supplied.) See notes 1 and 2, supra. The Government further claims that the petitioner's signing of the instrument containing her oath of allegiance to the King of Italy was an oath of allegiance to a foreign state within the meanings of § 2 of the Act of 1907, and of § 401 (b) of the Act of 1940. We agree. See note 2, supra. Section 347 (a) of the Act of 1940 is set out in full in note 20, infra. The same is true of the requirements for expatriation under §§ 401 (a) and (b) and 403 (a) of the Nationality Act of 1940. See notes 1 and 2, supra. See also, Bauer v. Clark, 161 F. 2d 397 (C. A. 7th Cir.); Reynolds v. Haskins, 8 F. 2d 473 (C. A. 8th Cir.); United States ex rel. De Cicco v. Longo, 46 F. Supp. 170 (Conn.); United States ex rel. Wrona v. Karnuth, 14 F. Supp. 770 (W. D. N. Y.). For full text, see note 1, supra. The Santissima Trinidad, 7 Wheat. 283; Murray v. The Charming Betsy, 2 Cranch 64; Case of Isaac Williams, opinion of Ellsworth, C. J., see 2 Cranch 82-83, n.; Talbot v. Janson, 3 Dall. 133; Ex parte Griffin, 237 F. 445 (N. D. N. Y.); Comitis v. Parkerson, 56 F. 556 (C. C. E. D. La.); 14 Op. Atty. Gen. 295 (1872-1874); 8 Op. Atty. Gen. 139 (1856-1857). \"Whereas the right of expatriation is a natural and inherent right of all people, indispensable to the enjoyment of the rights of life, liberty, and the pursuit of happiness; and whereas in the recognition of this principle this government has freely received emigrants from all nations, and invested them with the rights of citizenship; and whereas it is claimed that such American citizens, with their descendents, are" }, { "docid": "22614852", "title": "", "text": "Louisiana, 163 U. S. 101; Williams v. Mississippi, 170 U. S. 213. See also Dubuclet v. Louisiana, 103 U. S. 550; Schmidt v. Cobb, 119 U. S. 286. Since Kentucky v. Powers, 201 U. S. 1, the federal courts have consistently applied the. Strauder-Rives doctrine to deny removal in a variety of circumstances. See, e. g., Kentucky v. Wendling, 182 F. 140 (C. C. W. D. Ky.); White v. Keown, 261 F. 814 (D. C. D. Mass.); Ohio v. Swift & Co., 270 F. 141 (C. A. 6th Cir.); New Jersey v. Weinberger, 38 F. 2d 298 (D. C. D. N. J.); Snypp v. Ohio, 70 F.2d 535 (C. A. 6th Cir.); Hull v. Jackson County Circuit Court, 138 F. 2d 820 (C. A. 6th Cir.); Steele v. Superior Court, 164 F. 2d 781 (C. A. 9th Cir.); Lamson v. Superior Court, 12 F. Supp. 812 (D. C. N. D. Cal.); California v. Lamson, 12 F. Supp. 813 (D. C. N. D. Cal.); Washington v. American Society of Composers, 13 F. Supp. 141 (D. C. W. D. Wash.); Bennett v. Roberts, 31 F. Supp. 825 (D. C. W. D. N. Y.); North Carolina v. Jackson, 135 F. Supp. 682 (D. C. M. D. N. C.); Texas v. Dorris, 165 F. Supp. 738 (D. C. S. D. Tex.); Louisiana v. Murphy, 173 F. Supp. 782 (D. C. W. D. La.); McDonald v. Oregon, 180 F. Supp. 861 (D. C. D. Ore.); Hill v. Pennsylvania, 183 F. Supp. 126 (D. C. W. D. Pa.); Rand v. Arkansas, 191 F. Supp. 20 (D. C. W. D. Ark.); Petition of Hagewood, 200 F. Supp. 140 (D. C. E. D. Mich.); Van Newkirk v. District Attorney, 213 F. Supp. 61 (D. C. E. D. N. Y.); City of Birmingham v. Croskey, 217 F. Supp. 947 (D. C. N. D. Ala.); Arkansas v. Howard, 218 F. Supp. 626 (D. C. E. D. Ark.); Alabama v. Robinson, 220 F. Supp. 293 (D. C. N. D. Ala.); Levitt & Sons, Inc. v. Prince George County Congress of Racial Equality, 221 F. Supp. 541 (D. C. D. Md.); Olsen" }, { "docid": "22231005", "title": "", "text": "Partnership (1st ed. 1841), §439, n. 1. E. g., The Seneca, Fed. Cas. No. 12,670 (C. C. E. D. Pa. 1829); The Emma B., 140 F. 771 (D. C. D. N. J. 1906). Compare discussion in Davis v. The Seneca, Fed. Cas. No. 3,650 (D. C. E. D. Pa. 1828) rev’d, The Seneca, supra. E. g., Lewis v. Kinney, Fed. Cas. No. 8,325 (C. C. E. D. Mo. 1879); The Red Wing, 10 F. 2d 389 (D. C. S. D. Cal. 1925); see Coyne v. Caples, 8 F. 638, 639-640 (D. C. D. Ore. 1881); Fischer v. Carey, 173 Cal. 185, 189-192, 159 P. 577, 578-580 (1916). Tunno v. The Betsina, Fed. Cas. No. 14,236 (D. C. D. S. C. 1857). E. g., Andrews v. Betts, 8 Hun (N. Y.) 322 (1876); Francis v. Lavine, 26 La. Ann. 311 (1874). Swain v. Knapp, 32 Minn. 429, 21 N. W. 414 (1884); Reynolds v. Nielson, 116 Wis. 483, 93 N. W. 455 (1903). E. g., Fischer v. Carey, 173 Cal. 185, 159 P. 577 (1916); Cline v. Price, 39 Wash. 2d 816, 239 P. 2d 322 (1951). Citations to eases with these varied holdings are collected in Note 302, 28 U. S. C. A. § 1333, 90 Am. St. Rep. 378-380 and in L. R. A. 1917A, 1114-1116. In England King’s Bench prohibited Admiralty’s exercise of partition jurisdiction in Ouston v. Hebden, 1 Wils. K. B. 101, 95 Eng. Rep. 515 (1745). However, jurisdiction, which extended even to minority share owners, was later given to admiralty by statute. The Admiralty Court Act, 1861, 24 Vict., c. 10, § 8. For applications of this decision, see, e. g., The Guayaquil, 29 F. Supp. 578 (D. C. E. D. N. Y. 1939); Hirsch v. The San Pablo, 81 F. Supp. 292 (D. C. S. D. Fla. 1948). The 1948 and 1949 revisions of 28 U. S. C. § 1333 amended the above clause. It now reads: “. . . saving to suitors in all cases all other remedies to which they are otherwise entitled.” We take it that this change in no way" }, { "docid": "22120304", "title": "", "text": "2d 473 (C. A. 8th Cir.); United States ex rel. De Cicco v. Longo, 46 F. Supp. 170 (Conn.); United States ex rel. Wrona v. Karnuth, 14 F. Supp. 770 (W. D. N. Y.). For full text, see note 1, supra. The Santissima Trinidad, 7 Wheat. 283; Murray v. The Charming Betsy, 2 Cranch 64; Case of Isaac Williams, opinion of Ellsworth, C. J., see 2 Cranch 82-83, n.; Talbot v. Janson, 3 Dall. 133; Ex parte Griffin, 237 F. 445 (N. D. N. Y.); Comitis v. Parkerson, 56 F. 556 (C. C. E. D. La.); 14 Op. Atty. Gen. 295 (1872-1874); 8 Op. Atty. Gen. 139 (1856-1857). \"Whereas the right of expatriation is a natural and inherent right of all people, indispensable to the enjoyment of the rights of life, liberty, and the pursuit of happiness; and whereas in the recognition of this principle this government has freely received emigrants from all nations, and invested them with the rights of citizenship; and whereas it is claimed that such American citizens, with their descendents, are subjects of foreign states, owing allegiance to the governments thereof; and whereas it is necessary to the maintenance of public peace that this claim of foreign allegiance should be promptly and finally disavowed: Therefore, “Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That any declaration, instruction, opinion, order, or decision of any officers of this government which denies, restricts, impairs, or questions the right of expatriation, is hereby declared inconsistent with the fundamental principles of this government.” 15 Stat. 223-224, R. S. § 1999, 8 U. S. C. § 800. The above language, when enacted, was intended to apply especially to immigrants into the United States. It sought to emphasize the natural and inherent right of such people to expatriate themselves from their native nationalities. It sought also to secure for them full recognition of their newly acquired American citizenship. The language is also broad enough to cover, and does cover, the corresponding natural and inherent right of American citizens to expatriate themselves. See" }, { "docid": "22982420", "title": "", "text": "country.” Cong. Globe, 33d Cong., 1st Sess. 170 (1854). Congressman Cutting explained: “In the reign of Victoria, in the year 1844, the English Parliament provided that the children of English mothers, though married to foreigners, should have the rights and privileges of English subjects, though bom out of allegiance. I have not, in this bill, gone to that extent, as the House will have observed from the reading of it.” (Emphasis added.) Cong. Globe, 33d Cong., 1st Sess. 170. In the context of the section it is clear that the word “parent” refers both to fathers and mothers. Section 2 of the Act of May 24, 1934 (48 Stat. 797), on which petitioner alternatively relies, is in all respects here material a re-enactment of the above provision. By § 3 of the Act of March 2, 1907 (34 Stat. 1228), marriage to an alien did terminate the citizenship of an American woman. See, e. g., Comitis v. Parkerson, 56 F. 556, 559-560 (C. C. E. D. La.), writ of error dismissed sub nom. Comitiz v. Parkerson, 163 U. S. 681; Ruckgaber v. Moore, 104 F. 947, 948-949 (C. C. E. D. N. Y.), affirmed, 114 F. 1020 (C. A. 2d Cir.); Wallenburg v. Missouri Pacific R. Co., 159 F. 217, 219 (C. C. D. Neb.); In re Fitzroy, 4 F. 2d 541, 542 (D. C. D. Mass.); In re Lynch, 31 F. 2d 762 (D. C. S. D. Cal.); Petition of Zogbaum, 32 F. 2d 911, 912-913 (D. C. D. S. D.); In re Wright, 19 F. Supp. 224, 225 (D. C. E. D. Pa.); Watkins v. Morgenthau, 56 F. Supp. 529, 530-531 (D. C. E. D. Pa.). Such a construction was espoused by Attorney General William D. Mitchell in 1933, 37 Op. Atty. Gen. 90, and is also indicated in two District Court cases. See Petition of Black, 64 F. Supp. 518; Petition of Donsky, 77 F. Supp. 832. But see D’Alessio v. Lehman, 183 F. Supp. 345, which takes a contrary view. Moreover, even if petitioner’s mother had suffered a loss of citizenship which was later reacquired, petitioner’s" }, { "docid": "22749808", "title": "", "text": "§ 40-7-4.J. (Supp. 1981); N. C. Gen. Stat. § 7A-289.30(e) (1981) (“clear, cogent, and convincing evidence”); Ohio Rev. Code Ann. §§ 2151.35, 2151.414(B) (Page Supp. 1982); R. I. Gen. Laws § 15-7-7(d) (Supp. 1980); Tenn. Code Ann. §37-246(d) (Supp. 1981); Va. Code § 16.1-283. B (Supp. 1981); W. Va. Code §49-6-2(c) (1980) (“clear and convincing proof”); Wis. Stat. §48.31(1) (Supp. 1981-1982). Fifteen States, the District of Columbia, and the Virgin Islands, by court decision, have required “clear and convincing evidence” or its equivalent. See Dale County Dept. of Pensions & Security v. Robles, 368 So. 2d 39, 42 (Ala. Civ. App. 1979); Harper v. Caskin, 265 Ark. 558, 560-561, 580 S. W. 2d 176, 178 (1979); In re J. S. R., 374 A. 2d 860, 864 (D. C. 1977); Torres v. Van Eepoel, 98 So. 2d 735, 737 (Fla. 1957); In re Kerns, 225 Kan. 746, 753, 594 P. 2d 187, 193 (1979); In re Rosenbloom, 266 N. W. 2d 888, 889 (Minn. 1978) (“clear and convincing proof”); In re J. L. B., 182 Mont. 100, 116-117, 594 P. 2d 1127, 1136 (1979); In re Souza, 204 Neb. 503, 510, 283 N. W. 2d 48, 52 (1979); J. v. M., 157 N. J. Super. 478, 489, 385 A. 2d 240, 246 (App. Div. 1978); In re J. A., 283 N. W. 2d 83, 92 (N. D. 1979); In re Darren Todd H., 615 P. 2d 287, 289 (Okla. 1980); In re William L., 477 Pa. 322, 332, 383 A. 2d 1228, 1233, cert. denied sub nom. Lehman v. Lycoming County Children’s Services, 439 U. S. 880 (1978); In re G. M., 596 S. W. 2d 846, 847 (Tex. 1980); In re Pitts, 535 P. 2d 1244, 1248 (Utah 1975); In re Maria, 15 V. I. 368, 384 (1978); In re Sego, 82 Wash. 2d 736, 739, 513 P. 2d 831, 833 (1973) (“clear, cogent, and convincing evidence”); In re X., 607 P. 2d 911, 919 (Wyo. 1980) (“clear and unequivocal”). South Dakota’s Supreme Court has required a “clear preponderance” of the evidence in a dependency proceeding. See In re B." }, { "docid": "22534845", "title": "", "text": "to the Court of Appeals’ views on Rule 22, which seem to be shared by our Brother Douglas, compare Underwriters at Lloyd’s v. Nichols, 363 F. 2d 357 (C. A. 8th Cir. 1966), and A/S Krediit Pank v. Chase Manhattan Bank, 155 F. Supp. 30 (D. C. S. D. N. Y. 1957), aff’d, 303 F. 2d 648 (C. A. 2d Cir. 1962), with National Casualty Co. v. Insurance Co. of North America, 230 F. Supp. 617 (D. C. N. D. Ohio 1964), and American Indemnity Co. v. Hale, 71 F. Supp. 529 (D. C. W. D. Mo. 1947). See also 3 Moore, Federal Practice ¶ 22.04, at 3008 and n. 4. See, e. g., Travelers Indemnity Co. v. Greyhound Lines, Inc., 260 F. Supp. 530 (D. C. W. D. La. 1966); Commercial Union Insurance Co. of New York v. Adams, 231 F. Supp. 860 (D. C. S. D. Ind. 1964); Pan American Fire & Casualty Co. v. Revere, 188 F. Supp. 474 (D. C. E. D. La. 1960); Onyx Refining Co. v. Evans Production Corp., 182 F. Supp. 253 (D. C. N..D. Tex. 1959).' Although Travelers and Revere were brought in Louisiana, a State which authorizes “direct action” suits against insurance companies, the statute .was not relied upon in Travelers (see 260 F. Supp., at 533, n. 3), and furnished only an alternative ground in Revere (see .188 F. Supp., at 482-483). The only post-1948 case relied upon by the Court of Appeals and respondents, National Casualty Co. v. Insurance Co. of North America, 230 F. Supp. 617 (D. C. N. D. Ohio 1964), turns out to be of little assistance with respect to statutory interpleader since that court denied statutory interpleader solely on the ground that all claimants were citizens of Ohio and hence lacked the required diversity of citizenship. Id., at 619. See, e. g., Haynes v. Felder, 239 F. 2d 868, 872-875 (C. A. 5th Cir. 1957); Holcomb v. Aetna Life Insurance Co., 255 F. 2d 577, 582 (C. A. 10th Cir.), cert. denied sub nom. Fleming v. Aetna Life Insurance Co., 358 U. S. 879 (1958);" }, { "docid": "22982419", "title": "", "text": "“I am sorry, Mrs., you cannot [return to the United States] in that condition” — falls far short of misconduct such as might prevent the United States from relying on petitioner’s foreign birth. In this situation, we need not stop to inquire whether, as some lower courts have held, there may be circumstances in which the United States is estopped to deny citizenship because of the conduct of its officials. Affirmed. Mr. Justice Douglas dissents. See p. 310, infra. See pp. 312-313, infra. 2 American Law Register 193. That the enacting Congress accepted and acted upon the view that the Act of 1802 (later re-enacted as R. S. § 2172) had no effect as to parents who became citizens after 1802 is clear from the following statement of Congressman Cutting: “. . . the children of a man [U. S. citizen] who happened to be in the world on the 14th of April, 1802, born abroad, are American citizens, while the children of persons born on the 15th of April, 1802, are aliens to the country.” Cong. Globe, 33d Cong., 1st Sess. 170 (1854). Congressman Cutting explained: “In the reign of Victoria, in the year 1844, the English Parliament provided that the children of English mothers, though married to foreigners, should have the rights and privileges of English subjects, though bom out of allegiance. I have not, in this bill, gone to that extent, as the House will have observed from the reading of it.” (Emphasis added.) Cong. Globe, 33d Cong., 1st Sess. 170. In the context of the section it is clear that the word “parent” refers both to fathers and mothers. Section 2 of the Act of May 24, 1934 (48 Stat. 797), on which petitioner alternatively relies, is in all respects here material a re-enactment of the above provision. By § 3 of the Act of March 2, 1907 (34 Stat. 1228), marriage to an alien did terminate the citizenship of an American woman. See, e. g., Comitis v. Parkerson, 56 F. 556, 559-560 (C. C. E. D. La.), writ of error dismissed sub nom. Comitiz v." }, { "docid": "22614853", "title": "", "text": "W. D. Wash.); Bennett v. Roberts, 31 F. Supp. 825 (D. C. W. D. N. Y.); North Carolina v. Jackson, 135 F. Supp. 682 (D. C. M. D. N. C.); Texas v. Dorris, 165 F. Supp. 738 (D. C. S. D. Tex.); Louisiana v. Murphy, 173 F. Supp. 782 (D. C. W. D. La.); McDonald v. Oregon, 180 F. Supp. 861 (D. C. D. Ore.); Hill v. Pennsylvania, 183 F. Supp. 126 (D. C. W. D. Pa.); Rand v. Arkansas, 191 F. Supp. 20 (D. C. W. D. Ark.); Petition of Hagewood, 200 F. Supp. 140 (D. C. E. D. Mich.); Van Newkirk v. District Attorney, 213 F. Supp. 61 (D. C. E. D. N. Y.); City of Birmingham v. Croskey, 217 F. Supp. 947 (D. C. N. D. Ala.); Arkansas v. Howard, 218 F. Supp. 626 (D. C. E. D. Ark.); Alabama v. Robinson, 220 F. Supp. 293 (D. C. N. D. Ala.); Levitt & Sons, Inc. v. Prince George County Congress of Racial Equality, 221 F. Supp. 541 (D. C. D. Md.); Olsen v. Doerfler, 225 F. Supp. 540 (D. C. E. D. Mich.). As pointed out in the separate opinion of Judge Bell in the Court of Appeals for the Fifth Circuit, 342 F. 2d 336, 343, 345, the Supreme Court of Georgia has in at least one case applied the doctrine of Hamm v. City of Rock Hill to set aside convictions under the state trespass statute. Bolton v. Georgia, 220 Ga. 632, 140 S. E. 2d 866. In addition to their racial allegation, the defendants must also show that the restaurant facilities in question were establishments covered by the Civil Rights Act of 1964. Mr. Justice Douglas, with whom The Chief Justice, Mr. Justice Brennan and Mr. Justice Fortas join, concurring. As I indicate in my opinion in the Peacock cases, post, p. 842, equal civil rights of a citizen of the United States are “denied” within the meaning of 28 U. S. C. § 1443 (1) (1964 ed.) when he is prosecuted for asserting them. Section 201 of the Civil Rights Act of 1964" }, { "docid": "23154042", "title": "", "text": "with certain formalities demonstrative of the proper intent, and in every instance wholly different from the ordinary naturalization procedures. In re Wohlgemuth, 35 F. 2d 1007; In re Krausmann, 28 F. 2d 1004; Petition of Drysdale, 20 F. 2d 957; In re Page, 12 F. 2d 135. In fact, Congressman Perkins, supporting the bill on the floor of the House, explained its effect in these words: \"The courts have decided that a woman takes the citizenship of her husband, only the decisions of the courts provide no means by which she may retake the citizenship of her own country on the expiration of the marital relation. This bill contains nothing new in that respect, except a provision that when the marital relation is terminated the woman may then retake her former citizenship.” 41 Cong. Rec. 1465. Cases discussing the pre-1907 law generally held that a woman did not lose her citizenship by marriage to an alien, although she might bring about that result by other acts (such as residing abroad after the death of her husband) demonstrating an intent to relinquish that citizenship. E. g., Shanks v. Dupont, 3 Pet. 242; In re Wright, 19 F. Supp. 224; Petition of Zogbaum, 32 F. 2d 911; In re Lynch, 31 F. 2d 762; Petition of Drysdale, 20 F. 2d 957; In re Fitzroy, 4 F. 2d 541; Wallenburg v. Missouri Pacific R. Co., 159 F. 217; Ruckgaber v. Moore, 104 F. 947; Comitis v. Parkerson, 56 F. 556. This was also the view of the Department of State. 3 Moore, 449-450; 3 Hackworth, 247-248. The marriage provisions of the 1907 legislation were substantially repealed by the 1922 Cable Act, 42 Stat. 1021, and the last remnants of the effect of marriage on loss of citizenship were eliminated in 1931. 46 Stat. 1511. See Roche, The Loss of American Nationality, 99 U. of Pa. L. Rev. 25, 47-49. See 86 Cong. Rec. 11943. Exec. Order No. 6115, April 25, 1933. Codification of the Nationality Laws of the- United States, H. R. Comm. Print, Pt. 1, 76th Cong., 1st Sess. vii. The bill" }, { "docid": "23122467", "title": "", "text": "20-17-210(a), (g) (1991 and Supp. 1995); Cal. Health & Safety Code Ann. §§ 7191.5(a), (g) (West Supp. 1997); Cal. Prob. Code Ann. § 4723 (West Supp. 1997); Colo. Rev. Stat. §§ 15-14-504(4), 15-18-112(1), 15-18.5-101(3), 15-18.6-108 (1987 and Supp. 1996); Conn. Gen. Stat. § 19a-575 (Supp. 1996); Del. Code Ann., Tit. 16, § 2512 (Supp. 1996); D. C. Code Ann. §§ 6-2430, 21-2212 (1995 and Supp. 1996); Fla. Stat. §§ 765.309(1), (2) (Supp. 1997); Ga. Code Ann. §§ 31-32-11(b), 31-36-2(b) (1996); Haw. Rev. Stat. § 327D-13 (1996); Idaho Code § 39-152 (Supp. 1996); Ill. Comp. Stat., ch. 755, §§ 35/9(f), 40/5, 40/50, 45/2-1 (1992); Ind. Code §§ 16-36-1-13, 16-36-4-19, 30-5-5-17 (1994 and Supp. 1996); Iowa Code §§ 144A.11.1-144A.11.6, 144B.12.2 (1989 and Supp. 1997); Kan. Stat. Ann. § 65-28,109 (1985); Ky. Rev. Stat. Ann. § 311.638 (Baldwin Supp. 1992); La. Rev. Stat. Ann. §§ 40:1299.58.10(A), (B) (West 1992); Me. Rev. Stat. Ann., Tit. 18-A, §§ 5-813(b), (e) (Supp. 1996); Md. Health Code Ann. § 5—611(c) (1994); Mass. Gen. Laws 201D, § 12 (Supp. 1997); Mich. Comp. Laws Ann. § 700.496(20) (West 1995); Minn. Stat. §§ 145B.14, 145C.14 (Supp. 1997); Miss. Code Ann. §§ 41-41-117(2), 41-41-119(1) (Supp. 1992); Mo. Rev. Stat. §§ 459.015.3, 459.055(5) (1992); Mont. Code Ann. §§50-9-205(1), (7), 50-10-104(1), (6) (1995); Neb. Rev. Stat. §§ 20-412(1), (7), 30-3401(3) (1995); Nev. Rev. Stat. § 449.670(2) (1996); N. H. Rev. Stat. Ann. §§ 137-H:10, 137-H:13, 137-J:1 (1996); N. J. Stat. Ann. §§ 26:2H-54(d), (e), 26:2H-77 (West 1996); N. M. Stat. Ann. §§ 24-7A-13(B)(1), (C) (Supp. 1995); N. Y. Pub. Health Law § 2989(3) (McKinney 1993); N. C. Gen. Stat. §§ 90-320(b), 90-321(f) (1993); N. D. Cent. Code §§ 23-06.4-01, 23-06.5-01 (1991); Ohio Rev. Code Ann. §§ 2133.12(A), (D) (Supp. 1996); Okla. Stat., Tit. 63, §§ 3101.2(C), 3101.12(A), (G) (1997); 20 Pa. Cons. Stat. § 5402(b) (Supp. 1996); R. I. Gen. Laws §§ 23-4.10-9(a), (f), 23-4.11-10(a), (f) (1996); S. C. Code Ann. §§ 44-77-130, 44-78-50(A), (C), 62-5-504(0) (Supp. 1996); S. D. Codified Laws §§ 34-12D-14, 34-12D-20 (1994); Tenn. Code Ann. §§ 32-11-110(a), 39-13-216 (Supp. 1996); Tex. Health & Safety Code Ann. §§ 672.017, 672.020," }, { "docid": "22982421", "title": "", "text": "Parkerson, 163 U. S. 681; Ruckgaber v. Moore, 104 F. 947, 948-949 (C. C. E. D. N. Y.), affirmed, 114 F. 1020 (C. A. 2d Cir.); Wallenburg v. Missouri Pacific R. Co., 159 F. 217, 219 (C. C. D. Neb.); In re Fitzroy, 4 F. 2d 541, 542 (D. C. D. Mass.); In re Lynch, 31 F. 2d 762 (D. C. S. D. Cal.); Petition of Zogbaum, 32 F. 2d 911, 912-913 (D. C. D. S. D.); In re Wright, 19 F. Supp. 224, 225 (D. C. E. D. Pa.); Watkins v. Morgenthau, 56 F. Supp. 529, 530-531 (D. C. E. D. Pa.). Such a construction was espoused by Attorney General William D. Mitchell in 1933, 37 Op. Atty. Gen. 90, and is also indicated in two District Court cases. See Petition of Black, 64 F. Supp. 518; Petition of Donsky, 77 F. Supp. 832. But see D’Alessio v. Lehman, 183 F. Supp. 345, which takes a contrary view. Moreover, even if petitioner’s mother had suffered a loss of citizenship which was later reacquired, petitioner’s case would still not come within the statutory definition of “resumption of American citizenship.” Congress gave explicit content to this requirement of § 5 of the Act of 1907, § 3 of the same Act providing: “At the termination of the marital relation she may resume her American citizenship . . . .” (Emphasis added.) 34 Stat. 1228. Petitioner’s mother has never terminated her marital relation with petitioner’s alien father. See, e. g., Podea v. Acheson, 179 F. 2d 306; Lee You Fee v. Dulles, 236 F. 2d 885, 887." }, { "docid": "23154043", "title": "", "text": "husband) demonstrating an intent to relinquish that citizenship. E. g., Shanks v. Dupont, 3 Pet. 242; In re Wright, 19 F. Supp. 224; Petition of Zogbaum, 32 F. 2d 911; In re Lynch, 31 F. 2d 762; Petition of Drysdale, 20 F. 2d 957; In re Fitzroy, 4 F. 2d 541; Wallenburg v. Missouri Pacific R. Co., 159 F. 217; Ruckgaber v. Moore, 104 F. 947; Comitis v. Parkerson, 56 F. 556. This was also the view of the Department of State. 3 Moore, 449-450; 3 Hackworth, 247-248. The marriage provisions of the 1907 legislation were substantially repealed by the 1922 Cable Act, 42 Stat. 1021, and the last remnants of the effect of marriage on loss of citizenship were eliminated in 1931. 46 Stat. 1511. See Roche, The Loss of American Nationality, 99 U. of Pa. L. Rev. 25, 47-49. See 86 Cong. Rec. 11943. Exec. Order No. 6115, April 25, 1933. Codification of the Nationality Laws of the- United States, H. R. Comm. Print, Pt. 1, 76th Cong., 1st Sess. vii. The bill was considered by the House Committee on Immigration and Naturalization and its subcommittee. Hearings before the House Committee on Immigration and Naturalization on H. R. 6127, 76th Cong., 1st Sess. The Senate did not hold hearings on the bill. Hearings, at 37-38. Id., at 132. The passport provision was apparently deleted by the subcommittee, for it does not appear in the version of the bill that was printed when hearings resumed before the full committee on May 2, 1940. Id., at 207. Cf. In the Matter of P-, 1 I. & N. Dec. 267 (this particular election in Canada was open only to British subjects). Hearings, at 98. Id., at 286-287. The broad sweep of the statute was specifically called to the attention of the committee by Mr. Henry F. Butler. Hearings, at 286-287. Mr. Butler also submitted a brief, suggesting that the coverage of the statute be limited to those voting “in a manner in which only nationals of such foreign state or territory are eligible to vote or participate.” Id., at 387. In" }, { "docid": "22384754", "title": "", "text": "1st Cir. 1946); Gonzales v. United Fruit Co., 193 F. 2d 479 (C. A. 2d Cir. 1951); Rosenquist v. Isthmian S. S. Co., 205 F. 2d 486 (C. A. 2d Cir. 1953); Mitchell v. Trawler Racer, Inc., 265 F. 2d 426 (C. A. 1st Cir. 1959), rev’d on other grounds, 362 U. S. 539 (1960); McDonald v. Cape Cod Trawling Corp., 71 F. Supp. 888, 891 (D. C. 'Mass. 1947); Gilmore and Black, The Law of Admiralty (1957), 262 For an illuminating discussion of the practical problems, see Jenkins v. Roderick, 156 F. Supp. 299, 304-306 (D. C. Mass. 1957) (Wyzanski, J.). This Court has held that recovery of maintenance and cure does not bar a subsequent action under the Jones Act, Pacific S. S. Co. v. Peterson, 278 U. S. 130 (1928), but of course, where such closely related claims are submitted to different triers of fact, questions of res judicata and collateral estoppel necessarily arise, particularly in connection with efforts to avoid duplication of damages. Maintenance and cure allows recovery for wages only to the end of the voyage on which a seaman is injured or becomes ill. The Osceola, 189 U. S. 158, 175 (1903). Medical expenses need not be provided beyond the point at which a seaman becomes incurable. Farrell v. United States, 336 U. S. 511 (1949). See, e. g., Bartholomew v. Universe Tankships, Inc., 279 F. 2d 911, 915-916 (C. A. 2d Cir. 1960); Stendze v. The Boat Neptune, Inc., 135 F. Supp. 801 (D. C. Mass. 1955). For another example of some of the difficulties involved in separate trials, compare Claudio v. Sinclair Ref. Co., 160 F. Supp. 3 (D. C. E. D. N. Y. 1958), with Lazarowitz v. American Export Lines, 87 F. Supp. 197. (D. C. E. D. Pa. 1949). See generally Currie, The Silver Oar and All That: A Study of the Romero Case, 27 U. of Chi. L. Rev. 1 (1959); Kurland, The Romero Case and Some Problems of Federal Jurisdiction, 73 Harv. L. Rev. 817, 850 (1960); Note, 73 Harv. L. Rev. 138 (1959). Waring v. Clarke, 5" }, { "docid": "22698636", "title": "", "text": "in part because the action was a local one, and state courts in the transferee district would not have taken jurisdiction over it). See, e. g., Dufek v. Roux Distrib. Co., 125 F. Supp. 716 (D. C. S. D. N. Y. 1954); Barnhart v. Rogers Producing Co., 86 F. Supp. 595 (D. C. N. D. Ohio 1949); Troy v. Poorvu, 132 F. Supp. 864 (D. C. Mass. 1955); United States v. Reid, 104 F. Supp. 260 (D. C. E. D. Ark. 1952); Otto v. Hirl, 89 F. Supp. 72 (D. C. S. D. Iowa 1952); McGee v. Southern Pacific Co., 151 F. Supp. 338 (D. C. S. D. N. Y. 1957); Rogers v. Halford, 107 F. Supp. 295 (D. C. E. D. Wisc. 1952); Herzog v. Central Steel Tube Co., 98 F. Supp. 607 (D. C. S. D. Iowa 1951); Mitchell v. Gundlach, 136 F. Supp. 169 (D. C. Md. 1955); McCarley v. Foster-Milburn Co., 89 F. Supp. 643 (D. C. W. D. N. Y. 1950). Otto v. Hirl, 89 F. Supp. 72, 74 (D. C. S. D. Iowa 1952). Cain v. Bowater’s Newfoundland Pulp & Paper Mills, Ltd., 127 F. Supp. 949, 950 (D. C. E. D. Pa. 1954). Johnson v. Harris, 112 F. Supp. 338, 341 (D. C. E. D. Term. 1953). Hill v. Upper Mississippi Towing Corp., 141 F. Supp. 692 (D. C. Minn. 1956); McGee v. Southern Pacific Co., 151 F. Supp. 338 (D. C. S. D. N. Y. 1957); Welch v. Esso Shipping Co., 112 F. Supp. 611 (D. C. S. D. N. Y. 1953); Mire v. Esso Shipping Co., 112 F. Supp. 612 (D. C. S. D. N. Y. 1953); Cain v. Bowater’s Newfoundland Pulp & Paper Mills, Ltd., 127 F. Supp. 949 (D. C. E. D. Pa. 1954); Anthony v. RKO Radio Pictures, 103 F. Supp. 56 (D. C. S. D. N. Y. 1951); Blaski v. Howell (D. C. N. D. Ill., March 14, 1958). General Electric Co. v. Central Transit Warehouse Co., 127 F. Supp. 817 (D. C. W. D. Mo. 1955); Tivoli Realty v. Paramount Pictures, 89 F. Supp. 278 (D." }, { "docid": "5313742", "title": "", "text": "the country of her husband. That loss of her citizenship follows, there can be little doubt. This result is wrought, not by the marriage alone, but by marriage accompanied by change of domicile. In such a ease the wife adopts the nationality of her husband. The United States has given full recognition to the right of expatriation. R. S. § 1999 (8 USCA § 15). And so it seems logical to differentiate between the case of a woman who marries an alien, but who does not abandon her domicile in the United States, and one who, after such a marriage, leaves this country and takes up her abode under the government to which her husband owes allegiance. In this ease the petitioner has never abandoned her residence-in the United States; she has not shown any intent to expatriate herself. There having been at the time of her marriage no law visiting any of the consequences upon her which. ihe statute later prescribed, she should he held not to have suffered the disability adverted to. While the facts considered were not exactly like those shown here, the decisions in the following cases fully support the conclusions herein expressed: Wallenburg v. Missouri Pac. R. Co. (C. C.) 159 F. 217; Ruckgaber v. Moore (C. C.) 104 F. 947, affirmed in (C. C. A. 2) 114 F. 1020; Comitis v. Parkarson (C. C.) 56 F. 556, 22 L. R. A. 148; In re Fitzroy (D. C.) 4 F.(2d) 541. It follows that the petition of Mrs. Lynch should be dismissed, and it is so ordered." }, { "docid": "22698637", "title": "", "text": "C. S. D. Iowa 1952). Cain v. Bowater’s Newfoundland Pulp & Paper Mills, Ltd., 127 F. Supp. 949, 950 (D. C. E. D. Pa. 1954). Johnson v. Harris, 112 F. Supp. 338, 341 (D. C. E. D. Term. 1953). Hill v. Upper Mississippi Towing Corp., 141 F. Supp. 692 (D. C. Minn. 1956); McGee v. Southern Pacific Co., 151 F. Supp. 338 (D. C. S. D. N. Y. 1957); Welch v. Esso Shipping Co., 112 F. Supp. 611 (D. C. S. D. N. Y. 1953); Mire v. Esso Shipping Co., 112 F. Supp. 612 (D. C. S. D. N. Y. 1953); Cain v. Bowater’s Newfoundland Pulp & Paper Mills, Ltd., 127 F. Supp. 949 (D. C. E. D. Pa. 1954); Anthony v. RKO Radio Pictures, 103 F. Supp. 56 (D. C. S. D. N. Y. 1951); Blaski v. Howell (D. C. N. D. Ill., March 14, 1958). General Electric Co. v. Central Transit Warehouse Co., 127 F. Supp. 817 (D. C. W. D. Mo. 1955); Tivoli Realty v. Paramount Pictures, 89 F. Supp. 278 (D. C. Del. 1950); Felchlin v. American Smelting & Refining Co., 136 F. Supp. 577 (D. C. S. D. Calif. 1955). See also Johnson v. Harris, 112 F. Supp. 338 (D. C. E. D. Tenn. 1953) (dictum). Silbert v. Nu-Car Carriers, 111 F. Supp. 357 (D. C. S. D. N. Y. 1953); Hampton Theaters, Inc., v. Paramount Film Distributing Corp., 90 F. Supp. 645 (D. C. D. C. 1950). See also Arvidson v. Reynolds Metals Co., 107 F. Supp. 51 (D. C. W. D. Wash. 1952) (denying the defendants’ motion to transfer in part because the plaintiff would not have been amenable to process in the transferee court). Ferguson v. Ford Motor Co., 89 F. Supp. 45 (D. C. S. D. N. Y. 1950); Glasfloss Corp. v. Owens-Corning Fiberglas Corp., 90 F. Supp. 967 (D. C. S. D. N. Y. 1950). McCarley v. Foster-Milburn Co., 89 F. Supp. 643 (D. C. W. D. N. Y. 1950); Troy v. Poorvu, 132 F. Supp. 864 (D. C. Mass. 1955). See cases cited in note 1, supra. See 28" }, { "docid": "22719196", "title": "", "text": "in State v. Turner, 556 S. W. 2d 563, 566 (1977): “The involuntary mental patient is entitled to treatment, to periodic and recurrent review of his mental condition, and to release at such time as he no longer presents a danger to himself or others.” Haw. Rev. Stat. § 334-60 (b) (4) (I) (Supp. 1978); Idaho Code § 66-329 (i) (Supp. 1978); Kan. Stat. Ann. §59-2917 (1976); Mont. Rev. Codes Ann. § 38-1305 (7) (Supp. 1977); Okla. Stat., Tit. 43A, § 54.1 (C) (Supp. 1978); Ore. Rev. Stat. §426.130 (1977); Utah Code Ann. §64r-7-36 (6) (1953); Wis. Stat. § 51.20 (14) (e) (Supp. 1978-1979); Superintendent of Worcester State Hospital v. Hagberg, 374 Mass. 271, 372 N. E. 2d 242 (1978); Proctor v. Butler, 117 N. H. 927, 380 A. 2d 673 (1977); In re Hodges, 325 A. 2d 605 (D. C. 1974); Lausche v. Commissioner of Public Welfare, 302 Minn. 65, 225 N. W. 2d 366 (1974), cert. denied, 420 U. S. 993 (1975). See also In re J. W., 44 N. J. Super. 216, 130 A. 2d 64 (App. Div.), cert. denied, 24 N. J. 465, 132 A. 2d 558 (1957); Denton v. Commonwealth, 383 S. W. 2d 681 (Ky. App. 1964) (dicta). Ariz. Rev. Stat. Ann. § 36-540 (1974); Colo. Rev. Stat. § 27-10-111 (1) (Supp. 1976); Conn. Gen. Stat. § 17-178 (c) (1979); Del. Code Ann., Tit. 16, §5010 (2) (Supp. 1978); Ga. Code §88-501 (u) (1978); Ill. Rev. Stat., ch. 911/2, §3-808 (Supp. 1977); Iowa Code §229.12 (1979); La. Rev. Stat. Ann. §28:55E (West Supp. 1979); Me. Rev. Stat. Ann., Tit. 34, § 2334 (5) (A) (1) (1978); Mich. Stat. Ann. §14.800 (465) (1976); Neb. Rev. Stat. §83-1035 (1976); N. M. Stat. Ann. §43-1-11C (1978); N. D. Cent. Code § 25-03.1-19 (1978); Ohio Rev. Code Ann. § 5122.15 (B) (Supp. 1978); Pa. Stat. Ann., Tit. 50, § 7304 (f) (Purdon Supp. 1978-1979); S. C. Code § 44-17-580 (Supp. 1978); S. D. Comp. Laws Ann. § 27A-9-18 (1977); Vt. Stat. Ann., Tit. 18, §7616 (b) (Supp. 1978); Md. Dept, of Health & Mental Hygiene Reg. 10.21.03G (1973);" }, { "docid": "15753156", "title": "", "text": "In re Krausmann (D.C.) 28 F.(2d) 1004; In re Wohlgemuth (D.C.) 35 F.(2d) 1007. On the other hand, it has been held that prior to March 2, 1907, the marriage of an American woman to an alien and residence with him abroad in the country of his citizenship until his death did not deprive her of her American citizenship. Petition of Zogbaum (D.C.) 32 F.(2d) 911. It will be noted that all but one of these cases were decided long after 1907. After full consideration, we find ourselves unable to accept either of these views, but have .reached the conclusion which we think is supported' by a great majority of the cases decided prior to March 2, 1907, that the marriage of an American woman to an alien prior to that date did not of itself deprive her of her American citizenship, even though such a marriage if followed by withdrawal from the United States would have that result. Shanks v. Dupont, 3 Pet. 242, 7 L.Ed. 666; Comitis v. Parkerson (C.C.) 56 F. 556, 22 L.R.A. 148; Ruckgaber v. Moore, Collector (C.C.) 104 F. 947, affirmed (C.C.A.) 114 F. 1020; Wallenburg v. Missouri Pac. Ry. Co. (C.C.) 159 F. 217; In re Fitzroy (D.C.) 4 F.(2d) 541; In re Lynch (D.C.) 31 F.(2d) 762. It seems to us that these cases from Shanks v. Dupont to Wallenburg v. Missouri Pac. Ry. Co. represent the state of the law as declared by the federal courts during the period in question. Furthermore, they include the only ruling of the Supreme Court upon the subject. Nothing could be clearer than the following statement of Mr. Justice Story in Shanks v. Dupont, supra, 3 Pet. 242, at page 246, 7 L.Ed. 666: “Neither did the marriage with Shanks produce that effect; because marriage with an alien, whether a friend or an enemy, produces no dissolution of the native allegiance of the wife. It may change her civil rights, but it does not affect her political rights or privileges. The general doctrine is, that no persons can, by any act of their own; without" }, { "docid": "22731139", "title": "", "text": "his defenses to the third-party plaintiff’s claim as provided in Rule 12 ... . The third-party defendant may assert against the plaintiff any defenses which the third-party plaintiff has to the plaintiff’s claim. . . .” (The amendments which became effective March 19, 1948, and are included here, made no changes that are material in the instant cases.) Rule 20 similarly provides for the permissive joinder of parties. See Englehardt v. United States, 69 F. Supp. 451 (D. C. Md.); Newsum v. Pennsylvania R. Co., 79 F. Supp. 225 (D. C. S. D. N. Y.) (third-party practice); Maryland v. Manor Real Estate & Trust Co., 83 F. Supp. 91 (D. C. Md.), rev’d in part on other grounds, 176 F. 2d 414; Rivers v. Bauer, 79 F. Supp. 403 (D. C. E. D. Pa.), aff’d, 175 F. 2d 774; and Bullock v. United States, 72 F. Supp. 445 (D. C. N. J.); also 3 Moore’s Federal Practice (2d ed. 1948) 2737-2738; Hulen, Suits on Tort Claims Against the United States, 7 F. E. D. (1948) 699-700; and Note, Joinder of the Government under the Federal Tort Claims Act, 59 Yale L. J. 1515-1521 (1950). Contra: Prechtl v. United States, 84 F. Supp. 889 (D. C. W. D. N. Y.); Donovan v. McKenna, 80 F. Supp. 690 (D. C. Mass.); Uarte v. United States, 7 F. R. D. 705 (D. C. S. D. Calif.), aff’d on other grounds, 175 F. 2d 110; Drummond v. United States, 78 F. Supp. 730 (D. C. E. D. Va.). See Ryan Distributing Corp. v. Caley, 51 F. Supp. 377 (D. C. E. D. Pa.) (in patent litigation, claim of damages for infringement was tried by jury and petition for injunction was passed on by the court); Ford v. Wilson & Co., 30 F. Supp. 163 (D. C. Conn.) (legal issues to jury, equity issues to the court); Munkacsy v. Warner Bros. Pictures, 2 F. R. D. 380 (D. C. E. D. N. Y.) (libel issue by jury; violation of civil rights where jury was not demanded was tried by the court); Mealy v. Fidelity National" } ]

[ { "docid": "20554692", "title": "", "text": "Pupil racial segregation in the Detroit Public School System and the residential racial segregation resulting primarily from public and private racial discrimination are interdependent phenomena. The affirmative obligation of the defendant Board has been and is to adopt and implement pupil assignment practices and policies that compensate for and avoid incorporation into the school system the effects of residential racial segregation. The Board’s building upon housing segregation violates the Fourteenth Amendment. See, Davis v. Sch. Dist. of Pontiac, supra,, and authorities there noted. 7. The Board’s policy of selective optional attendance zones, to the extent that it facilitated the separation of pupils on the basis of race, was in violation of the Fourteenth Amendment. Hobson v. Hansen, D.C., 269 F.Supp. 401, aff’d sub nom., Smuck v. Hobson, 132 U.S.App.D.C. 372, 408 F.2d 175. 8. The practice of the Board of transporting black students from overcrowded black schools to other identifiably black schools, while passing closer identifiably white schools, which could have accepted these pupils, amounted to an act of segregation by the school authorities. Spangler v. Pasadena City Bd. of Ed., D.C., 311 F.Supp. 501. 9. The manner in which the Board formulated and modified attendance zones for elementary schools had the natural and predictable effect of perpetuating racial segregation of students. Such conduct is an act of de jure discrimination in violation of the Fourteenth Amendment. United States v. School District 151, D.C., 286 F.Supp. 786; Brewer v. School Board of City of Norfolk, 4 Cir., 397 F.2d 37. 10. A school board may not, consistent with the Fourteenth Amendment, maintain segregated elementary schools or permit educational choices to be influenced by community sentiment or the wishes of a majority of voters. Cooper v. Aaron, 358 U.S. 1, 12-13, 15-16, 78 S.Ct. 1401, 3 L.Ed.2d 5. “A citizen’s constitutional rights can hardly be infringed simply because a majority of the people choose that it be.” Lucas v. 44th Gen’l Assembly of Colorado, 377 U.S. 713, 736-737, 84 S.Ct. 1459, 1474, 12 L.Ed.2d 632. 11. Under the Constitution of the United States and the constitution and laws of the State" } ]

[ { "docid": "14531280", "title": "", "text": "the controlled transfer policy • — regardless of overcrowded conditions at the receiving schools. Therefore, as the third response to the partial defense of residential segregation and neighborhood schools raised by the defendants, a further quotation from the Keyes case, 413 U.S. at 212, is apposite, as follows: “[W]e have no occasion to consider in this case whether a ‘neighborhood school policy’ of itself will justify racial or ethnic concentrations in the absence of a finding that school authorities have committed acts constituting de jure segregation. . . . the mere assertion of such a policy is not dispositive where, as in this case, the school authorities have been found to have practiced de jure segregation . of the school system by techniques that indicate that the ‘neighborhood school’ concept has not been maintained free of manipulation.” The arguments raised by the defendants in this case have been identical to those in the Keyes case in that they are mere assertions. See also Spangler v. Pasadena Board of Education, C.D.Cal.1970, 311 F.Supp. 501, 522; Davis v. Pontiac School District, E.D.Mich.1971, 309 F. Supp. 734, 744, aff’d 6 Cir. 1971, 443 F. 2d 573, cert. denied, 1971, 404 U.S. 913, 92 S.Ct. 233, 30 L.Ed,2d 186, and Taylor v. New Rochelle, 2 Cir. 1961, 294 F.2d 36, 39. Inseparability of District In considering the ramifications of the defendants’ segregative conduct, further attention must be paid to the city’s geography and the natural boundaries that lie within it. This necessity is explained in Keyes v. School District No. 1, Denver, Colo., supra, 413 U.S. at 200-205, from which the following excerpts are taken: “We have never suggested that plaintiffs in school desegregation cases must bear the burden of proving the elements of de jure segregation as to each and every school or each and every student within the school system.” Id., at 200. “This is not a case, however, where a statutory dual system has ever existed. Nevertheless, where plaintiffs prove that the school authorities have carried out a systematic program of segregation affecting a substantial portion of the students, schools, teachers" }, { "docid": "14531257", "title": "", "text": "promotional system in August 1971. Nonetheless the thirty vacancies filled at the time of trial on an acting basis had all been filled by whites. VI Examination and Vocational Schools and Programs A high degree of racial segregation also exists in the city’s specialized high schools and vocational programs. Three high schools, Boston Latin, Girls Latin and Boston Technical, have traditionally admitted students only by competitive examination. They offer excellent college preparatory instruction and their graduates matriculate at the nation’s finest colleges and universities; they are called examination schools or elite schools. Their enrollments are heavily white; and the faculties at the three schools from 1967 to 1972 averaged only one black member per school. The precise percentages of black students at these high schools for the school years beginning in the fall of the years 1967 to 1972 were as follows: 1967 1968 1969 1970 1971 1972 Boston Latin 3.2 3.0 2.6 2.3 1.9 2.2 Girls Latin 3.5 6.1 6.3 5.3 5.4 5.0 Boston Tech. 6.7 8.5 8.1 8.3 10.8 13.7 The two trade schools, Boston Trade and Girls Trade, have heavily black enroll ments. The precise percentages of black students in their enrollments for the period were as follows: 1967 1968 1969 1970 1971 1972 Boston Trade 9.6 40.7 41.3 53.2 66.5 65.2 Girls Trade 35.7 40.0 66.0 69.8 74.8 68.7 * The city also operates various industrial trade programs at several regular high schools whose enrollments are predominantly white. The question presented is whether the racial segregation in these high schools and programs is intentional and therefore unconstitutional. The test to be applied is stated in Keyes v. School District No. 1, Denver, Colorado, supra, 413 U.S. at 208. On the basis of the presumption created by the defendants’ segregative practices in other parts of the school system, we conclude that these schools and programs have been intentionally segregated. The controlling principles appear in the Keyes case which held that “a finding of intentionally segregative school board actions in a meaningful portion of a school system creates a presumption that other segregated schooling within the system is" }, { "docid": "853088", "title": "", "text": "U.S. 717, 94 S.Ct. 3112, 41 L.Ed.2d 1069 (1974) (Detroit); Keyes v. School Dist. No. 1, 413 U.S. 189, 93 S.Ct. 2686, 37 L.Ed.2d 548 (1973) (Denver); Brinkman v. Gilligan, 503 F.2d 684 (6th Cir. 1974) (Dayton); Oliver v. Michigan State Bd. of Educ., 508 F.2d 178 (6th Cir. 1974) (Kalamazoo); Berry v. School Dist., 505 F.2d 238 (6th Cir. 1974) (Benton Harbor, Mich.); United States v. Board of School Comm’rs, 474 F.2d 81 (7th Cir.), cert. denied, 413 U.S. 920, 93 S.Ct. 3066, 37 L.Ed.2d 1041 (1973) (Indianapolis); Kelly v. Guinn, 456 F.2d 100 (9th Cir. 1972), cert. denied, 413 U.S. 919, 93 S.Ct. 3048, 37 L.Ed.2d 1041 (1973) (Las Vegas); Davis v. School Dist., 443 F.2d 573 (6th Cir. 1971) (Pontiac); United States v. School Dist. 151, 432 F.2d 1147 (7th Cir. 1970), cert. denied, 402 U.S. 943, 91 S.Ct. 1610, 29 L.Ed.2d 111 (1971) (Cook County, Ill.); Clemons v. Board of Educ., 228 F.2d 853 (6th Cir.), cert. denied, 350 U.S. 1006, 76 S.Ct. 651, 100 L.Ed. 868 (1956) (Hillsboro, Ohio); Taylor v. Board of Educ., 294 F.2d 36 (2d Cir.), cert. denied, 368 U.S. 940, 82 S.Ct. 382, 7 L.Ed.2d 339 (1961) (New Rochelle); Booker v. Special School Dist. No. 1, 351 F.Supp. 799 (D.Minn.1972) (Minneapolis); Spangler v. Pasadena City Bd. of Educ., 311 F.Supp. 501 (C.D.Calif.1970). . The origins of the statute are discussed, and' the essence of its provisions set out, in the district court’s opinion. 379 F.Supp. at 417-418. The Act was amended, after the district court opinion was filed, to limit sharply the measures which the state board may employ in attempting to bring about racial balance in the schools. St.1974, c. 636 (July 26, 1974). The Massachusetts Supreme Judicial Court recently considered these amendments, and found that they would be unconstitutional if interpreted to reverse or impede the progress toward the achievement of racial balance in a city already subject to a state court order that a racial balance plan be implemented. School Comm. v. Board of Educ., Mass., 319 N.E.2d 427 (1974) (Springfield). Since the district court’s opinion is founded" }, { "docid": "14531258", "title": "", "text": "schools, Boston Trade and Girls Trade, have heavily black enroll ments. The precise percentages of black students in their enrollments for the period were as follows: 1967 1968 1969 1970 1971 1972 Boston Trade 9.6 40.7 41.3 53.2 66.5 65.2 Girls Trade 35.7 40.0 66.0 69.8 74.8 68.7 * The city also operates various industrial trade programs at several regular high schools whose enrollments are predominantly white. The question presented is whether the racial segregation in these high schools and programs is intentional and therefore unconstitutional. The test to be applied is stated in Keyes v. School District No. 1, Denver, Colorado, supra, 413 U.S. at 208. On the basis of the presumption created by the defendants’ segregative practices in other parts of the school system, we conclude that these schools and programs have been intentionally segregated. The controlling principles appear in the Keyes case which held that “a finding of intentionally segregative school board actions in a meaningful portion of a school system creates a presumption that other segregated schooling within the system is not adventitious. It establishes ... a prima facie case of unlawful segregative design on the part of school authorities, and shifts to those authorities the burden of proving that other segregated schools within the system are not also the result of intentionally segregative actions.” We have heretofore made detailed findings of intentional segregation of students and staff at all grade levels and in all parts of the city. Plaintiffs have shown racial segregation in the examination and vocational schools and programs, thereby establishing “a prima facie case of unlawful segregative design on the part of school authorities” with respect to such schools. The burden of disproving unlawful intent thereupon falls upon the defendants, who in this case have failed to carry that burden. The presumption created by their general course of conduct stands. There was not a great deal of evidence received at the trial on the question whether the defendants intended that the examination schools be segregated; but most of what was introduced tended to support the validity of the presumption discussed in the" }, { "docid": "682313", "title": "", "text": "v. Michigan State Board of Education, 508 F.2d 178 (6th Cir. 1974), cert. denied, 421 U.S. 963, 95 S.Ct. 1950, 44 L.Ed.2d 449 (1975) (Kalamazoo); Berry v. School Dist. of City of Benton Harbor, Mich., 505 F.2d 238 (6th Cir. 1974); Brinkman v. Gilligan, 503 F.2d 684 (6th Cir. 1974) (Dayton); Johnson v. San Francisco Unified School District, 500 F.2d 349 (9th Cir. 1974); Soria v. Oxnard School District Board of Trustees, 488 F.2d 579 (9th Cir. 1973), cert. denied, 416 U.S. 951-952, 94 S.Ct. 1961, 40 L.Ed.2d 301 (1974); United States v. Board of Sch. Com’rs of Indianapolis, Ind., 474 F.2d 81 (7th Cir.), cert. denied, 413 U.S. 920, 93 S.Ct. 3066, 37 L.Ed.2d 1041 (1973); Kelly v. Guinn, 456 F.2d 100 (9th Cir. 1972), cert. denied, 413 U.S. 919, 93 S.Ct. 3048, 37 L.Ed.2d 1041 (1973) (Las Vegas); Davis v. School District of City of Pontiac, Inc., 443 F.2d 573 (6th Cir.), cert. denied, 404 U.S. 913, 92 S.Ct. 233, 30 L.Ed.2d 186 (1971); United States v. School District 151 of Cook County, Ill., 432 F.2d 1147 (7th Cir. 1970), cert. denied, 402 U.S. 943, 91 S.Ct. 1610, 29 L.Ed.2d 111 (1971); Taylor v. Board of Ed. of City Sch. Dist. of New Rochelle, 294 F.2d 36 (2nd Cir.), cert. denied, 368 U.S. 940, 82 S.Ct. 382, 7 L.Ed.2d 339 (1961); Clemons v. Board of Education of Hillsboro, 228 F.2d 853 (6th Cir.), cert. denied, 350 U.S. 1006, 76 S.Ct. 651, 100 L.Ed. 868 (1956); Husbands v. Pennsylvania, 395 F.Supp. 1107 (E.D.Pa.1975); Booker v. Special School Dist. No. 1, Minneapolis, Minn., 351 F.Supp. 799 (D.Minn.1972); Spangler v. Pasadena City Board of Education, 311 F.Supp. 501 (C.D.Calif.1970). “8. The District Court found in several instances that the segregative results were not only foreseeable, but that the defendants had conscious knowledge of the likelihood of such results, particularly with respect to faculty assignment, school construction, and the deterioration of Tech High." }, { "docid": "490646", "title": "", "text": ". . [I]n our view the use of the neighborhood school plan is the direct and effective cause of segregation in the schools. The Board imposed a neighborhood school plan, ab initio, upon a clear and established pattern of residential segregation in the face of an obvious and inevitable result.”); United States v. Texas Education Agency, 467 F.2d 848, 863 (5th Cir. 1972) (“The natural and foreseeable consequence of [the school board’s various administrative actions] was segregation of Mexican-Americans. Affirmative action to the contrary would have resulted in desegregation. When school authorities, by their actions, contribute to segregation in education, whether by causing additional segregation or maintaining existing segregation, they deny to the students equal protection of the laws.”); Oliver v. Kalamazoo Board of Education et al., 368 F.Supp. 143, 180 (W.D.Mich.1973) (“The Kalamazoo School Board’s acts of commission and omission clearly demonstrate that the Kalamazoo School Board’s administration of the school system substantially contributed to and proximately caused the segregated condition which prevails in the system”); Hoots v. Pennsylvania, 359 F.Supp. 807, 823 (W.D.Pa.1973) (“When the natural and foreseeable consequences of actions taken by school authorities are to preserve segregation within the public schools or to hamper its removal, such actions violate the Fourteenth Amendment.”); Johnson v. San Francisco Unified School District, 339 F.Supp. 1315, 1318-1319 (N.D.Cal.1971) (“[I]f the school board, as in this case, has drawn school attendance lines, year after year, knowing that lines maintain or heighten racial imbalance, the resulting segregation is de jure.”); Soria v. Oxnard School District Board of Trustees, 328 F.Supp. 155, 157 (C.D.Cal.1971) (“The maintenance of unequal educational opportunities in the Oxnard Elementary Schools through racial imbalance denies plaintiffs their rights to equal protection of the laws, guaranteed by the Fourteenth Amendment.”); Spangler v. Pasadena City Board of Education, 311 F.Supp. 501, 521 (C.D.Cal.1970) (“Under the Fourteenth Amendment a public school body has an obligation to act affirmatively to promote integration, consistent with the principles of educational soundness and administrative feasibility.”). In the Keyes case, Mr. Justice Powell, concurring, but without contradiction, concluded that where racially segregated schools exist, the school board" }, { "docid": "14531134", "title": "", "text": "also have attendance ratios sharply out of line with the racial makeup of the school system. Only five of these approximately 140 elementary schools, Marshall, Taylor, Barrett, Stone and Curley, have a racial composition within ten percent of the citywide 61:32 ratio of whites to blacks. Teachers are also segregated. Seventy-five percent of Boston’s black teachers are in schools more than 50% black. Eighty-one schools have never had a black teacher. The Boston public school system is thus characterized by racial segregation. The defendants do not dispute this central fact. The dispute, rather, is how the schools have become and remained that way. The court’s primary task is to determine whether the defendants have intentionally and purposefully caused or maintained racial segregation in meaningful or significant segments of the Boston public school system, in violation of the Fourteenth Amendment. Keyes v. School District No. 1, Denver, Colorado, 1973, 413 U.S. 189, 93 S.Ct. 2686, 37 L.Ed.2d 548; Swann v. Board of Education, 1971, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554; Brown v. Board of Education, 1954, 347 U.S. 483, 74 S. Ct. 686, 98 L.Ed. 873; Davis v. School Dist. of Pontiac, Inc., E.D.Mich.1970, 309 F.Supp. 734, aff’d 6 Cir. 443 F.2d 573, cert. denied, 1971, 404 U.S. 913, 92 S.Ct. 233, 30 L.Ed.2d 186. In making this determination, the court has analyzed the defendants’ conduct in six principal areas, to be discussed separately, as follows, (1) facilities utilization and new structures, (2) districting and redistricting, (3) feeder patterns, (4) open enrollment and controlled transfers (5) faculty and staff and (6) vocational and examination schools. I Facilities Utilization and New Structures The plaintiff and the defendants presented much evidence pertaining to overcrowding, the use of portable facilities,, and new annexes and schools. The crucial evidence consisted not only of the decisions on the use of school facilities but also of the complex contexts in which these decisions were made. Thus the planning, timing, educational justifications and other factors all pertain to intent or purpose. The effect of school officials’ actions is more readily apparent. The first relevant facet" }, { "docid": "19819679", "title": "", "text": "plan. Brewer is distinguishable from the present case in that the case involved a statutory dual school system. In striking down the Norfolk plan, the court did observe that “[assignment of pupils to neighborhood schools is a sound concept, but it cannot be approved if residence in a neighborhood is denied to Negro pupils solely on the ground of color.” 397 F.2d at 42. The second case cited by plaintiffs is Spangler v. Pasadena City Board of Education, 311 F.Supp. 501 (D.C.Cal.1970), in which the district court held that a neighborhood school policy is unconstitutional when it results in imbalanced schools. The court ruled that “[ujnder the Fourteenth Amendment a public school body has an obligation to act affirmatively to promote integration.” 311 F.Supp. at 521. This decision, relying in part on Brewer, was handed down three years before the Supreme Court spelled out the requirement of segregative intent in Keyes. Spangler was never reviewed by the Ninth Circuit because the school board acquiesced in the court’s order. 427 F.2d 1352 (9th Cir. 1975). In view of these facts, this court is not disposed to follow Spangler. Several cases have approved neutral adherence to a neighborhood school policy. In Oliver v. Michigan Board of Education, supra, 508 F.2d 178, 182 (6th Cir. 1974), the Sixth Circuit held that a school board could rebut the presumption of segregative intent by establishing that its conduct was “a consistent and resolute application of racially, neutral policies.” 508 F.2d at 182. This same court expressly approved adherence to a racially neutral neighborhood school policy even though it resulted in ethnic imbalance in the school system. Higgins v. Board of Education of City of Grand Rapids, supra, 508 F.2d 779, 783, 791 (6th Cir. 1974). The Ninth Circuit has commented on the neighborhood school policy in Johnson v. San Francisco Unified School District, supra: The Court in Keyes specifically reserved the issue of “whether a ‘neighborhood school policy’ of itself will justify racial or ethnic concentrations in the absence of a finding that school authorities have committed acts constituting de jure segregation.” 413 U.S. at" }, { "docid": "21889991", "title": "", "text": "of Education, 369 F.2d 29 (4th Cir. (1966); Webb v. Bd. of Education of Chicago, 223 F.Supp. 466 (N.D.Ill.1963). Yet school boards, in the exercise of their administrative discretion in determining school sites, school sizes and capacities, the location of attendance zone lines, etc., can, and often do, have an overwhelming impact upon the degree of racial and ethnic mixing that is achieved in the schools. Recognizing the pervasive influence that school boards can have in this area, other courts have broadened the concept of “unlawfully segregative state action” to include the improper exercise by a school board (as agent of the State and of its political subdivisions) of its administrative discretion in connection with the implementation, operation or manipulation^ of a neighborhood school plan. When such “state action” creates or perpetuates racial or ethnic imbalance, it may be/ in violation of equal protection. In Taylor v. Bd. of Educ. of New Rochelle, 191 F.Supp. 181 (S.D.N.Y.), reh., 195 F.Supp. 231, aff’d 294 F.2d 36 (2d Cir.), cert. den. 368 U.S. 940, 82 S.Ct. 382, 7 L.Ed.2d 339 (1961), the court, declaring that de jure segregation should! include all “segregation created or maintained by official act, regardless of its form” (191 F.Supp. at 194, n. 12), found the segregation in question to be of a de jure nature because (1) the board had gerrymandered attendance zones which effectively segregated the schools, and (2) the board, ignoring the advice of psychologists, sociologists, educators and state officials had made no changes to improve the balance in the schools. This case gests that de facto segregation may take on overtones of de jure segregation not! only when a school board causes segrega! tion by intentional, affirmative acts, but also when it fails to adopt viable alter-:j natives of integrative value. See also]: Keyes v. School Dist. of Denver, supra note 31. The case of Hobson v. Hansen, 269 F.Supp. 401 (D.D.C.1967), aff’d, Smuck v. Hobson, 132 U.S.App.D.C. 372, 408 F.2d 175 (1969), involved a neighborhood school plan in the District of Columbia which predictably had resulted in severe imbalance in the schools there." }, { "docid": "9652590", "title": "", "text": "any action with a purpose to segregate, and (b) if that action has had the effect of creating or aggravating segregation in the schools of the District, and (c) if segregation currently exists, and (d) if there is a causal connection between the acts of the school administration and the current condition of segregation, then there is segregation which is imposed by law; and such is prohibited by the Fourteenth Amendment to the Constitution. Keyes v. School District No. 1, Denver, Colorado, 313 F.Supp. 61, 73 (D.C.Colo.1970). 6. It is violative of the Fourteenth Amendment for public school officials to make educational policy decisions which are based wholly or in part on considerations of the race of students or teachers, and which have the effect of increasing or aggravating racial segregation in the public schools. Poindexter v. Louisiana Financial Assistance Commission, 275 F.Supp. 833 (E.D.La.1967), affirmed, 389 U.S. 571, 88 S.Ct. 693, 19 L.Ed.2d 780 (1968); Spangler v. Pasadena City Board of Education, 311 F.Supp. 501 (C.D.Cal.1970); Taylor v. Board of Education of New Rochelle, supra. 7. When school officials consistently draw attendance lines so as to increase or further aggravate racial segregation within their district, the presumption arises that they have done so in order to promote racial segregation. Spangler v. Pasadena City Board of Education, supra; United States v. School District 151 of Cook County, Illinois, 286 F.Supp. 786 (N.D.Ill.1968). In the absence of an affirmative showing of justification for attendance lines other than racial ones, a court has no other choice than to conclude that racial considerations were the motivating factors. 8. Construction policies which create or aggravate racial segregation are an “important indicia of a segregated system.” A pattern of school construction and/or abandonment is entitled to great weight in determining the existence of legally imposed school segregation. Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 18, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971); Kelly v. Guinn, supra. 9. When school officials vary the size of schools depending on the area of the district in which they are built, and when they allow some schools" }, { "docid": "12156230", "title": "", "text": "school authorities have practiced purposeful ségregation in part of the school system. Id. at 208, 93 S.Ct. at 2697. See also Penick v. Columbus Board of Education, supra, 429 F.Supp. at 252. No such finding was made in this case. Thus, unless the trial court’s findings with regard to segregative intent are clearly erroneous, neither the Keyes burden-shifting principle nor the constitutional obligation to establish a unitary school system plays a part in this case. We do observe that the District Court misstated the Keyes burden-shifting principle. That principle is properly invoked upon a finding of intentionally segregative school board actions; the District Court, however, stated that the burden of proof shifts to the defendants where the evidence supports such a finding. 454 F.Supp. at 989. Whether the court actually placed the burden on the defendants is not clear from its opinion. Neither is it significant to this apjjeal in light of our decision. If the court in fact shifted the burden, the error could only have operated in appellants’ favor. With reference to the burden of proof, the District Court also cited this court’s opinion in Oliver v. Michigan Board of Education, 508 F.2d 178 (6th Cir. 1974), cert. denied, 421 U.S. 963, 95 S.Ct. 1950, 44 L.Ed.2d 449 (1975). In that case, we held that a presumption of segregative, purpose arises when plaintiffs establish that the natural, probable, and foreseeable result of public officials’ action or inaction was an' increase or maintenance of segregation. According to Oliver, the presumption becomes proof unless defendants affirmatively establish that their conduct was a consistent and resolute application of racially neutral policies. Id. at 182. In other words, the presumption shifted the burden of proof to the defendant to demonstrate that its policies have been racially nondiscriminatory. The validity of this presumption was cast in doubt by the Supreme Court in Dayton II: We have never held that as a general proposition the foreseeability of segregative consequences makes out a prima facie case of purposeful racial discrimination and shifts the burden of producing evidence to the defendants if they are to escape" }, { "docid": "20799320", "title": "", "text": "286 F.Supp. 786, 798 (N.D.Ill.), aff’d, 404 F.2d 1125 (7th Cir. 1968); United States v. Board of Education, 396 F.2d 44 (5th Cir. 1968); Davis v. Board of School Commissioners, 393 F.2d 690 (5th Cir. 1968); Spangler v. Pasadena City Board of Education, 311 F.Supp. 501, 523 (C.D.Cal.1970); Davis v. School District, 309 F.Supp. 734, 744 (E.D.Mich.1970); Kier v. County School Board, 249 F.Supp. 239 (W.D.Va.1966). 10. The evidence presented by the parties is insufficient to demonstrate the reasons why there are unconscionably few black teachers and administrators presently employed by the District. Having found, however, that other acts of defendants resulted in de jure segregation, the Court has the power to ensure that defendants will not discriminate against blacks in hiring future teachers and administrators, and the power to require the District to actively pursue a policy of hiring blacks for these positions. Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 12, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971) ; Brown v. Board of Education, 349 U.S. 294, 300-301, 75 S.Ct. 753, 99 L.Ed. 1083 (1955); Hobson v. Hansen, 269 F.Supp. 401, 516 (D.D.C.1967), appeal dismissed, 393 U.S. 801, 89 S.Ct. 40, 21 L.Ed.2d 85 (1968). 11. The manner in which the District formulated and modified attendance zones for elementary schools had the inevitable effect of perpetuating and exacerbating existing racial segregation of students. Such conduct constitutes de jure discrimination in violation of the Fourteenth Amendment. United States v. School District 151, 286 F.Supp. 786, 795-796, 798 (N.D.Ill.), aff’d, 404 F.2d 1125 (7th Cir. 1968); Brewer v. School Board of City of Norfolk, 397 F.2d 37, 40-42 (4th Cir. 1968); United States v. Jefferson County Board of Education, 372 F.2d 836, 867-868 (5th Cir. 1965), aff’d en banc, 380 F.2d 385 (1966), cert. denied, sub nom. Caddo Parish School Bd. v. United States, 389 U.S. 840, 88 S.Ct. 67, 19 L.Ed.2d 103 (1967) ; Taylor v. Board of Education, 294 F.2d 36 (2d Cir.), cert. denied, 368 U.S. 940, 82 S.Ct 382, 7 L.Ed. 339 (1961); Spangler v. Pasadena City Board of Education, 311 F.Supp. 501, 522 (C.D.Cal.1970);" }, { "docid": "14531303", "title": "", "text": "and intent to segregate the Boston public schools and that such actions caused current conditions of segregation in the Boston public schools. The findings of fact stated in the preceding divisions of this opinion have described practices which have been ruled to be unconstitutional in many other cases, e. g., Keyes v. School District No. 1, supra, at 201-202; Booker v. Special School District, D.Minn.1972. 351 F.Supp. 799, 804, 808; Bradley v. Milliken, E.D. Mich.1970, 338 F.Supp. 582, 587-588, 593, aff’d 6 Cir. 1972, 484 F.2d 215; Spangler v. Pasadena Board of Education, C.D.Cal.1970, 311 F.Supp. 501, 508, 520, 522; Taylor v. Board of Education, S.D.N.Y.1961, 191 F.Supp. 181, 184-185, 192, 194, aff’d 2 Cir. 1961, 294 F.2d 36, 38. In five of the categories of defendants’ activities, described in divisions IV, ante, the court concludes on the basis of evidence within each category that the defendants were acting with segregative intent. Only in division VI, ante, on Examination and Vocational Schools and Programs, has the court relied upon the burden-shifting principle discussed in the Keyes case at 413 U.S. 208-210. However, this principle is applicable generally and would be available to buttress the conclusions in divisions I-V if need be. The segregative consequences of many of the defendants’ actions were scarcely contested, but were argued by the defendants to have been unforeseeable or beyond the defendants’ power to prevent. The court has generally rejected these defenses for reasons stated either within numbered divisions of the opinion or in the part entitled Residential Segregation and Neighborhood Schools. On the issue whether substantial portions of the system have been intentionally segregated by the defendants, the court concludes that they have. Plaintiffs have proved that the defendants intentionally segregated schools at all levels, e.g., secondary English, intermediate Lewenberg and elementary Hennigan; built new schools for a decade with sizes and locations designed to promote segregation ; maintained patterns of overcrowding and underutilization which promoted segregation at 26 schools; and expanded the capacity of approximately 40 schools by means of portables and additions when students could have been assigned to other schools with" }, { "docid": "12156229", "title": "", "text": "disagree with appellants’ claim that the District Court failed to consider the legal relevance of the defendants’ pre-Brown conduct. The court was required'to hold the defendants to a continuing obligation to dismantle a segregated school system only if it found that an intentionally segregated school system had been established at the time of Brown I. Having specifically found that no such intentional segregation had been proved, the trial court was under no duty to impose on the defendants a constitutional obligation to establish a unitary system. Nor . was the trial court obligated to invoke the burden-shifting principle set out in Keyes, supra. That principle is the allocation to the school board of the burden of proving either that its actions were “not taken in effectuation of a policy to create or maintain segregation . .., or, if unsuccessful in that effort, were not factors in causing the existing condition of segregation in these schools.” 413 U.S. at 214, 93 S.Ct. at 2700. However, this burden can only be shifted when the court finds that school authorities have practiced purposeful ségregation in part of the school system. Id. at 208, 93 S.Ct. at 2697. See also Penick v. Columbus Board of Education, supra, 429 F.Supp. at 252. No such finding was made in this case. Thus, unless the trial court’s findings with regard to segregative intent are clearly erroneous, neither the Keyes burden-shifting principle nor the constitutional obligation to establish a unitary school system plays a part in this case. We do observe that the District Court misstated the Keyes burden-shifting principle. That principle is properly invoked upon a finding of intentionally segregative school board actions; the District Court, however, stated that the burden of proof shifts to the defendants where the evidence supports such a finding. 454 F.Supp. at 989. Whether the court actually placed the burden on the defendants is not clear from its opinion. Neither is it significant to this apjjeal in light of our decision. If the court in fact shifted the burden, the error could only have operated in appellants’ favor. With reference to the" }, { "docid": "14531302", "title": "", "text": "Negroes have their own schools and the whites have their own schools.” The court has placed very little reliance on this type of evidence, which showed beyond doubt the segregative intent of that member, because it did not represent the attitude of most committee members. On the other hand, it has been impossible to overlook it completely, because this member was elected chairman by his colleagues for two years and rarely if ever did any member take exception to his remarks. The court has looked for and weighed valid, nondiscriminatory justifications for the defendants’ decisions and actions. Only when there were none or when there was clear evidence of discriminatory purpose has the court found that the defendants’ intent was segregative. Lastly, the court has endeavored to view the evidence, not with perfect hindsight, but with the perspective and in the chronology and context in which the defendants would have decided upon choices open to them. Applying these principles, the court concludes that the defendants took many actions in their official capacities with the purpose and intent to segregate the Boston public schools and that such actions caused current conditions of segregation in the Boston public schools. The findings of fact stated in the preceding divisions of this opinion have described practices which have been ruled to be unconstitutional in many other cases, e. g., Keyes v. School District No. 1, supra, at 201-202; Booker v. Special School District, D.Minn.1972. 351 F.Supp. 799, 804, 808; Bradley v. Milliken, E.D. Mich.1970, 338 F.Supp. 582, 587-588, 593, aff’d 6 Cir. 1972, 484 F.2d 215; Spangler v. Pasadena Board of Education, C.D.Cal.1970, 311 F.Supp. 501, 508, 520, 522; Taylor v. Board of Education, S.D.N.Y.1961, 191 F.Supp. 181, 184-185, 192, 194, aff’d 2 Cir. 1961, 294 F.2d 36, 38. In five of the categories of defendants’ activities, described in divisions IV, ante, the court concludes on the basis of evidence within each category that the defendants were acting with segregative intent. Only in division VI, ante, on Examination and Vocational Schools and Programs, has the court relied upon the burden-shifting principle discussed in the" }, { "docid": "9652589", "title": "", "text": "public school systems regardless of whether segregation is imposed by statute as it has been in the south, or whether it is imposed covertly as it has been in the north and west. Kelly v. Guinn, 456 F.2d 100 (9th Cir., 1972); Taylor v. Board of Education of City School Dist. of City of New Rochelle, 191 F.Supp. 181 (S.D.N.Y.1961), aff’d, 294 F.2d 36 (2nd Cir. 1961). 5. The mandate of Brown has been clear. However, uncertainty has developed over what in fact constitutes “segregation imposed by law.” The uncertainty is due in large part to the fact that the Supreme Court has specifically withheld decision on the question of whether school segregation caused by the implementation of a neighborhood school system on a district with racially segregated housing patterns is “segregation imposed by law.” Until this question is answered, no Court can be certain what the ultimate limits of the constitutional prohibition against segregation in education may be. However, it is beyond dispute that: (a) if the State and/or the school administration has taken any action with a purpose to segregate, and (b) if that action has had the effect of creating or aggravating segregation in the schools of the District, and (c) if segregation currently exists, and (d) if there is a causal connection between the acts of the school administration and the current condition of segregation, then there is segregation which is imposed by law; and such is prohibited by the Fourteenth Amendment to the Constitution. Keyes v. School District No. 1, Denver, Colorado, 313 F.Supp. 61, 73 (D.C.Colo.1970). 6. It is violative of the Fourteenth Amendment for public school officials to make educational policy decisions which are based wholly or in part on considerations of the race of students or teachers, and which have the effect of increasing or aggravating racial segregation in the public schools. Poindexter v. Louisiana Financial Assistance Commission, 275 F.Supp. 833 (E.D.La.1967), affirmed, 389 U.S. 571, 88 S.Ct. 693, 19 L.Ed.2d 780 (1968); Spangler v. Pasadena City Board of Education, 311 F.Supp. 501 (C.D.Cal.1970); Taylor v. Board of Education of New Rochelle," }, { "docid": "853099", "title": "", "text": "run there which did not admit students on a competitive basis). . The black enrollment at Boston Trade increased from 9.6% in 1967 to 65.2% in 1972. At Girls Trade the increase was from 35.7% to 68.7%. . The facts with respect to the examination and trade schools and the vocational programs illustrate the logic of the first principle established in Keyes. The schools and the programs are integral parts of the educational system in Boston, fulfilling specialized roles in that system. The examination schools are segregated because black children fare worse on the entrance examinations than whites. These children are products of the segregated elementary classes which constituted “tracks” to the examination schools and were more than 80% white. The predominantly white vocational programs recruited primarily at white junior high schools. Thus, the segregation of the lower schools had inevitable consequences for the examination and trade schools and vocational programs. . As we understand Keyes, little short of a positive showing that defendants acted with integrative intent would suffice to rebut the presumption of segregative intent. Berkelman v. San Francisco Unified School Distict, 501 F.2d 1264 (9th Cir. 1974), cited by defendants, is wholly inapposite, as the court there specifically noted that there was no showing of intentional segregation in the San Francisco School System to warrant the application of Keyes. 501 F.2d at 1266 n. 3. . The settlement of these charges led to the use in 1973 of examinations prepared by Educational Testing Services in Princeton, N. J., and the reservation of a number of seats in the examination schools for underrepresented districts of the city. This action has no relevance to defendants’ intent in earlier years. Keyes, 413 U.S. at 210, 93 S.Ct. 2686. . Defendants argue that when the Supreme Court said in Swann “ . . . where it is possible to identify a ‘white school’ or a ‘Negro school’ simply by reference to the racial composition of teachers and staffs a prima facie case of violation of substantive constitutional rights under the Equal Protection Clause is shown,” 402 U.S. at 18, 91 S.Ct." }, { "docid": "853049", "title": "", "text": "the first instance be attributable to outside forces. And neither Keyes, which speaks in terms of “policies and practices”, nor the cases which went before it support the suggestion that official policies and decisions which do not call for affirmative actions may not be considered by a court when it determines whether segregation has been intentionally promoted or maintained. “Every act of a school board and school administration, and indeed every failure to act where affirmative action is indicated, must now be subject to scrutiny.” Keyes, 413 U.S. at 234, 93 S.Ct. at 2710 (Powell, J., concurring in part and dissenting in part); id. at 230, 93 S.Ct. at 2708 (the Court “searches for de jure action in what the Denver School Board has done or failed to do”) (Powell, J.). Not only is it inconceivable that the repeated rejection of proposals which would promote desegregation could not properly be considered by a court as evidence of an intent to create or maintain segregation, but there can be no doubt that defendants’ failures to act are probative evidence of intent when it is remembered that they labored under the specific legal obligations imposed by the Massachusetts Racial Imbalance Act. “Plainly, where public issues are framed and questions posed which bear directly on the quality of education, a deliberate negative response from school authorities or a deliberate omission to act, can affect the shape of subsequent circumstances just as materially as can affirmative decisions and action. State responsibility under the United States Constitution must logically be and is fixed in either context.” Oliver v. Kalamazoo Bd. of Educ., 368 F.Supp. 143, 178 (W.D. Mich.1973), aff’d sub nom. Oliver v. Michigan State Bd. of Educ., 508 F.2d 178 (6th Cir. 1974); Kelly v. Guinn, 456 F.2d 100 (9th Cir. 1972) (school district had continued a neighborhood school policy at the elementary level); Spangler v. Pasadena City Bd. of Educ., 311 F.Supp. 501 (C.D.Cal.1970). If the school administrators of a community were allowed so to deal with a changing school population that the old segregative profile would not only persist but be sharpened," }, { "docid": "14531304", "title": "", "text": "Keyes case at 413 U.S. 208-210. However, this principle is applicable generally and would be available to buttress the conclusions in divisions I-V if need be. The segregative consequences of many of the defendants’ actions were scarcely contested, but were argued by the defendants to have been unforeseeable or beyond the defendants’ power to prevent. The court has generally rejected these defenses for reasons stated either within numbered divisions of the opinion or in the part entitled Residential Segregation and Neighborhood Schools. On the issue whether substantial portions of the system have been intentionally segregated by the defendants, the court concludes that they have. Plaintiffs have proved that the defendants intentionally segregated schools at all levels, e.g., secondary English, intermediate Lewenberg and elementary Hennigan; built new schools for a decade with sizes and locations designed to promote segregation ; maintained patterns of overcrowding and underutilization which promoted segregation at 26 schools; and expanded the capacity of approximately 40 schools by means of portables and additions when students could have been assigned to other schools with the effect of reducing racial imbalance. How many students were intentionally separated on a racial basis cannot be stated with any degree of precision; but the annual totals were certainly in the thousands, including graduates of nine K-8 elementary schools and four middle schools by means of feeder patterns manipulated by the defendants, students attending most high schools and several junior highs by the same means, students making imbalancing transfers under the open enrollment policy and exceptions to the controlled transfer policy, students transported to perpetuate segregation, and students at schools identifiably black by means of assignment and transfer policies regarding faculty and staff. As explained in the Keyes case, at 201-202, segregative practices like these have obvious reciprocal effects. For example, by using feeder patterns to channel black students to English, defendants not only concentrated black students there but also made high schools which the black students might otherwise have attended more predominantly white. Similarly every segregative transfer under open enrollment or an exception to the controlled transfer policy, whether by a white or" }, { "docid": "853089", "title": "", "text": "v. Board of Educ., 294 F.2d 36 (2d Cir.), cert. denied, 368 U.S. 940, 82 S.Ct. 382, 7 L.Ed.2d 339 (1961) (New Rochelle); Booker v. Special School Dist. No. 1, 351 F.Supp. 799 (D.Minn.1972) (Minneapolis); Spangler v. Pasadena City Bd. of Educ., 311 F.Supp. 501 (C.D.Calif.1970). . The origins of the statute are discussed, and' the essence of its provisions set out, in the district court’s opinion. 379 F.Supp. at 417-418. The Act was amended, after the district court opinion was filed, to limit sharply the measures which the state board may employ in attempting to bring about racial balance in the schools. St.1974, c. 636 (July 26, 1974). The Massachusetts Supreme Judicial Court recently considered these amendments, and found that they would be unconstitutional if interpreted to reverse or impede the progress toward the achievement of racial balance in a city already subject to a state court order that a racial balance plan be implemented. School Comm. v. Board of Educ., Mass., 319 N.E.2d 427 (1974) (Springfield). Since the district court’s opinion is founded upon the federal constitution, the merits of this appeal would in no event be affected by the amendments. . The district court’s opinon, 379 F.Supp. 410, 418-421 (D.Mass.1974), contains a succinct summary of this history of litigation, involving seven decisions of the Massachusetts Supreme Judicial Court, three decisions of a Single Justice thereof, a number of Superior Court proceedings, a decision of a federal Administrative Law Judge resulting in the withholding of many millions of dollars in federal educational assistance funds and, at 379 F.Supp. at 450-451, a discussion of the decision of the Massachusetts Commission Against Discrimination, finding discrimination in the Boston School Committee’s open enrollment and controlled transfer practices. . The state defendants, whose position on most issues was identical with that of plaintiffs, were found not to have intentionally contributed to racial segregation in the Boston public schools. On the contrary, the court held that they had done all that was possible under their limited authority to compel the city defendants to obey the state law and the federal constitution. The court," } ]

[ { "docid": "4187788", "title": "", "text": "in this court: (1) whether substantial evidence supports the Secretary’s determination; and (2) whether the district court should have remanded to the Secretary for consideration of new evidence. The parties agree that Torres is not entitled to benefits unless she is disabled, i.e., 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) (1976); 42 U.S.C. § 1382c(a)(3)(A) (1976). Torres is disabled within the meaning of the preceding sections “only if [her] physical or mental impairment or impairments are of such severity that [she] is not only unable to do [her] previous work but cannot, considering [her] 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) (1976); 42 U.S.C. § 1382c(a)(3)(B) (1976). The parties also agree that a claimant such as Torres has the burden of proof, or risk of nonpersuasion, in the initial proceeding of showing that she is “unable to return to her customary occupation.” Rossi v. Califano, 602 F.2d 55, 57 (3d Cir. 1979). If a claimant makes such a showing, then the Secretary has the burden of proving that the claimant “has the capacity to perform jobs that exist in the national economy.” Id. The proceeding under review, however, was initiated after the Secretary’s determination to terminate Torres’ benefits. Torres argues that under these circumstances the Secretary’s prior finding of her eligibility for benefits makes out a prima facie case of her continuing disability and entitlement to benefits. Under her theory, the burden of proof shifts to the Secretary to show that she is no longer disabled. The Government argues that the burden of proof as to disability remains on the claimant in a proceeding to terminate benefits. There is a split of authority as to which view is the better one. See Schauer v. Schweiker, 675 F.2d 55, 57-59 (2d Cir. 1982) (discussing the cases). Compare Cassiday v. Schweiker, 663 F.2d 745, 747, 749 (7th Cir. 1981) (burden shifts to Secretary), and Miranda v. Secretary, 514" } ]

[ { "docid": "23647863", "title": "", "text": "An administrative law judge (ALJ) conducted a de novo hearing and denied benefits on June 29, 1979. The Appeals Council declined to review his decision. On September 28, 1979, Mrs. Cassiday sought reversal of the administrative decision in' federal district court. On January 21, 1981, Judge Eschbach denied Mrs. Cassiday’s motion for summary judgment and granted the motion for summary judgment of the Secretary of Health and Human Services. Mrs. Cassiday then appealed to this Court. For the reasons set out below, we reverse and remand to the Secretary for the allowance of disability benefits to Mrs. Cassiday. I On appeal Mrs. Cassiday makes two arguments. First, had the Secretary given the proper weight to the opinions of treating, examining, and reviewing physicians as required by our decisions in Carver v. Harris, 634 F.2d 363 (7th Cir. 1980), and Allen v. Weinberger, 552 F.2d 781 (7th Cir. 1977), there would have been insufficient evidence in the record to support a determination that she was no longer disabled. Second, had the Secretary followed established precedents and his own regulations, he could not alternatively have concluded that, though disabled, Mrs. Cassiday was barred from receiving benefits because she refused to undergo surgery to cure or ameliorate her condition. In reviewing the decision to terminate Mrs. Cassiday’s benefits, we find sound guidance in the analysis in Miranda v. Secretary of Health, Education and Welfare, 514 F.2d 996, 998 (1st Cir. 1975) (citations and footnote omitted), where Judge Levin Campbell stated: described as having the “burden of proof”, meaning that he must furnish requisite medical and other evidence within his grasp, see 42 U.S.C. § 423(d)(5), and show reasonable diligence in maintaining his claim. * * * For his part, however, the Secretary must make an investigation that is not wholly inadequate under the circumstances. And once having found a disability, the Secretary may not terminate the benefits without substantial evidence to justify so doing. This will normally consist of current evidence showing that a claimant has improved to the point of being able to engage in substantial gainful activity; but it might also" }, { "docid": "21546751", "title": "", "text": "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”), — was “substantially justified.” There is some reason to think that it was not. The Administration reversed itself and provided benefits while applying the “medical improvements” standard contained in the new statute. That statute compromises (a) the need for accuracy in making certain that disability benefit recipients are truly disabled, and (b) the need to avoid continuous relitigation of matters once decided. It does so by permitting the Social Security Administration to terminate previously granted disability benefits if (a) there is medical improvement and the claimant can now work, or (b) there is significant evidence showing that the claimant was not disabled in the first place. To be more specific, the statute permits termination if (a) the claimant has medically improved and can now work, or (b) advances in medical or vocational therapy will permit the claimant to work, or (c) new or improved diagnostic techniques show that the claimant was not really disabled, or (d) new or old evidence shows that a “prior determination was in error.” See 42 U.S.C. § 423(f)(l)-(4). It is difficult to see how the Administration could have concluded that this standard requires it to pay benefits, but could also reasonably have concluded that preexisting First Circuit law did not require it to pay benefits. That is because preexisting First Circuit law, as enunciated in Miranda, 514 F.2d at 998, seemed to apply at least as strict a standard as the new statute (indeed, perhaps in respect to the need for new evidence, a stricter standard). Miranda says, [OJnce having found a disability, the Secretary may not terminate the benefits without substantial evidence to justify so doing. This will normally consist of current evidence showing that a claimant has improved to the point of being able to engage in substantial gainful activity; but it might also consist of evidence that claimant’s condition is not as serious as was first supposed. Id. (emphasis added). Of course, it is" }, { "docid": "21546752", "title": "", "text": "that the claimant was not really disabled, or (d) new or old evidence shows that a “prior determination was in error.” See 42 U.S.C. § 423(f)(l)-(4). It is difficult to see how the Administration could have concluded that this standard requires it to pay benefits, but could also reasonably have concluded that preexisting First Circuit law did not require it to pay benefits. That is because preexisting First Circuit law, as enunciated in Miranda, 514 F.2d at 998, seemed to apply at least as strict a standard as the new statute (indeed, perhaps in respect to the need for new evidence, a stricter standard). Miranda says, [OJnce having found a disability, the Secretary may not terminate the benefits without substantial evidence to justify so doing. This will normally consist of current evidence showing that a claimant has improved to the point of being able to engage in substantial gainful activity; but it might also consist of evidence that claimant’s condition is not as serious as was first supposed. Id. (emphasis added). Of course, it is conceivable that, had Congress not acted, this court would have modified its Miranda standard in light of the Administration’s adoption of regulations that said that “eligibility for cash benefits and for a period of disability will end” when “the evidence in [the claimant’s] file shows that [he is] able to do substantial gainful activity.” 20 C.F.R. §§ 404.1594, 416.994 (1981). See Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837, 843, 104 S.Ct. 2778, 2781-82, 81 L.Ed.2d 694 (1984) (when administrative agency has adopted a regulation implementing a statute, courts should ask only whether the regulation “is based on a permissible construction of the statute”). But, major modification seems unlikely since almost every other circuit had held that the Social Security Administration could not, consistent with its basic statute, interpret this regulation to permit termination in the absence of any evidence showing that the claimant’s medical condition had improved (or that the original disability determination had been erroneous). See, e.g., Rush v. Secretary of HHS, 738 F.2d 909, 915-16 (8th Cir.1984); DeLeon v. Secretary of HHS," }, { "docid": "776161", "title": "", "text": "after a claimant’s “disability ceases.” Reviewing the legislative history, this Court found that one important Congressional committee “consistently has read the phrase ‘disability ceases’ to require that the claimant’s medical condition actually have improved before his benefits may be terminated”—the “medical improvement standard” or “presumption of continuing disability.” Holden v. Heckler, 584 F.Supp. 463, 469 (N.D.Ohio 1984). It further found that: Secretaries of Health, Education and Welfare concurred with Congress’ reading of the statutes and applied a medical improvement standard to disability terminations from 1954 until 1976. So did various courts which interpreted the Act during those years. See Hall v. Celebrezze, 314 F.2d 686, 688 (6th Cir.1963) (“Once a condition has been shown to exist, there is a presumption, in the absence of proof to the contrary, that it has continued.”) Id. at 470. The opinion then explained that the Secretary abandoned the medical improvement standard in 1976 and instituted a “standard of current disability,” which was codified in regulations promulgated in 1980 and incorporated in numerous internal publications of the Social Security Administration (“SSA”). Id. at 470-71. Under this policy, more than 23,000 Ohio residents were terminated from the disability rolls. Id. at 471-72. Next, a review of recent case law demonstrated that ... Using different language, ten circuit courts of appeals have held that the Secretary may not terminate disability benefits without offering substantial evidence that the record supporting the initial determination of disability is no longer valid. The standard imposed by the courts has been called either a “medical improvement standard” or a “presumption of continuing disability.” * * * * * * Clearly the “medical improvement” and “presumption of continuing disability” standards are substantively identical ____ “Under either standard benefits may not be terminated without showing that the recipient’s medical condition has improved.” By whatever name, this is the law in ten circuits. Id. at 473-74 (citation and footnote omitted). The opinion continued: The Sixth Circuit is one of those circuits. Hall v. Celebrezze is one of the earliest cases adopting a “presumption of continuing disability” standard. And Hayes v. Secretary of Health, Education and" }, { "docid": "11750518", "title": "", "text": "yet been addressed by the court of appeals for this circuit. I have in a previous opinion been guided by the Court of Appeals for the First Circuit in Miranda v. Secretary of Health, Education and Welfare, 514 F.2d 996 (1st Cir.1975). See Shaw v. Schweiker, 536 F.Supp. 79 (E.D.Pa.1982). The Miranda court held that once having found a disability, the Secretary may not terminate the benefits without substantial evidence to justify so doing. This will normally consist of current evidence showing that a claimant has improved to the point of being able to engage in substantial gainful activity; but it might also consist of evidence that claimant’s condition is not as serious as was at first supposed. Miranda, supra at 998 (emphasis added). Miranda thus permits termination only upon the Secretary presenting substantial evidence that proves either (1) improvement to the point where the claimant is able to engage in substantial gainful activity or (2) claimant’s condition is “not as serious as was first supposed.” In Shaw, supra, I concluded that the second ground for termination applies only to those situations involving newly discovered evidence or a clearly erroneous interpretation of evidence in the initial granting of benefits. After a final determination of disability, if a termination of benefits is effected without a showing of either improvement or newly-discovered evidence, such a termination must necessarily be based on whim, caprice or an impermissible relitigation of facts and determinations already finally decided. Elsewhere in this circuit, Judge Ziegler of the Western District of Pennsylvania held in accord with the First Circuit when he determined that, before benefits may be terminated, there must be substantial evidence amounting to a showing of improvement. Timblin v. Harris, 498 F.Supp. 1107, 1108 (W.D.Pa.1980). Early this year, the Court of Appeals for the Ninth Circuit addressed the issue of the appropriate legal standard in “cessation” or “termination” cases. See Patti v. Schweiker, 669 F.2d 582, 58&-87 (9th Cir.1982). The Ninth Circuit held that, once the Secretary has determined that a claimant’s disability has ceased, the burden of proof to establish otherwise lies with the claimant," }, { "docid": "14039963", "title": "", "text": "of benefits is appropriate, because he also improperly questioned the findings of credibility of ALJ Roseman, misconstrued and mischaracterized certain facts and made serious mistakes as to interpretation of medical evidence and framing of hypothetical questions to the vocational expert present at the hearing, I will grant the motion of claimant Shaw and remand this case to the Secretary for further consideration. In reaching his final determination, ALJ Ennis received into evidence at the termination hearing extensive medical reports, including reports from psychiatrists, orthopedic surgeons and Mr. Shaw’s long-term treating physician. Neither these reports nor testimony heard at the hearing provide any evidence whatever of a change for the better in Mr. Shaw’s psychiatric or physical condition following the award of disability benefits in December 1980. In fact, a fair reading of these reports indicates that Mr. Shaw’s condition, especially his psychiatric condition, worsened during the period between December 1980 and the time of the hearing before ALJ Ennis. There was, further, no evidence on the record before ALJ Ennis that Mr. Shaw’s condition was not as serious as was initially determined by ALJ Roseman. Although the issue of the appropriate standard of law in cessation or termination of benefits cases has not been resolved by the court of appeals for this circuit, I am guided by the decision of the Court of Appeals for the First Circuit in Miranda v. Secretary of Health, Education and Welfare, 514 F.2d 966 (1st Cir. 1975). The Miranda court held that once having found a disability, the Secretary may not terminate the benefits without substantial evidence to justify so doing. This will normally consist of current evidence showing that a claimant has improved to the point of being able to engage in substantial gainful activity; but it might also consist of evidence that claimant’s condition is not as serious as was at first supposed. Id. at 998 (emphasis added). I interpret Miranda, in its holding that that disability benefits may be terminated by evidence that the condition is less serious than first supposed, to pertain only to situations involving newly discovered evidence or" }, { "docid": "1723821", "title": "", "text": "FLAUM, Circuit Judge. Plaintiff Duane Switzer appeals from the district court’s affirmance of a decision by the Social Security Administration to terminate his social security disability benefits. We reverse. Plaintiff suffers from lung abscesses and bronchitis and has been diagnosed as having chronic obstructive pulmonary disease. He applied for disability insurance benefits on May 28,1974, and was awarded benefits as of December 1973. The Social Security Administration terminated plaintiff’s benefits effective November 1975 as a result of a continuing disability investigation. In December 1977, however, on review of that action, an Administrative Law Judge (“AU”) found that plaintiff’s disability had been continuous from 1973 and ordered that his benefits be reinstated. Later, the Social Security Administration again investigated plaintiff’s disability and terminated his benefits, effective April 1980. Plaintiff requested reconsideration and also applied for supplemental security income benefits. A formal hearing was held before another AU, who affirmed the termination in a written opinion dated October 6, 1981. This second AU found that plaintiff’s condition had improved, that plaintiff no longer had a severe impairment, and that plaintiff could return to his former job as a furniture salesman (although he would occasionally be required to aid in lifting up to 300 pounds). The AU’s decision became the final decision of the Secretary when the Appeals Council denied review. Plaintiff then brought this action for judicial review. This case involves termination of benefits and is therefore governed by the standards set out in Cassiday v. Schweiker, 663 F.2d 745 (7th Cir.1981). In Cassiday, we held that “once having found a disability, the Secretary may not terminate the benefits without substantial evidence to justify so doing. This will normally consist of current evidence showing that a claimant has improved to the point of being able to engage in substantial gainful activity; but it might also consist of evidence that claimant’s condition is not as serious as was at first supposed,” 663 F.2d at 747 (quoting Miranda v. Secretary of Health, Education and Welfare, 514 F.2d 996, 998 (1st Cir.1975)). The Secretary’s brief essentially treats this appeal as a review of a denial" }, { "docid": "21133136", "title": "", "text": "which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work. 42 U.S.C. § 423(d)(2)(A). See generally Bowen v. Yuckert, 482 U.S. 137, 146-48, 107 S.Ct. 2287, 2293-95, 96 L.Ed.2d 119 (1987). The Commissioner uses a sequential five-step analysis to determine whether a claimant is disabled. See Goodermote v. Secretary of Health & Human Services, 690 F.2d 5, 6-7 (1st Cir.1982) (citing 20 C.F.R. § 404.1520). See also McDonald v. Secretary of Health & Human Services, 795 F.2d 1118, 1120 (1st Cir.1986). Once benefits are awarded, they may be terminated only if “a claimant has improved to the point of being able to engage in substantial gainful activity” or if his or her “condition is not as serious as was at first supposed.” Miranda v. Secretary of Health, Ed. & Welfare, 514 F.2d 996, 998 (1st Cir. 1975). In essence, the Commissioner’s regulations require (1) that there be improvement in a claimant’s medical condition and (2) that the improvement relate to the claimant’s ability to work. 20 C.F.R. § 404.1594(b)(1). While most termination cases concern benefits awarded in a previous proceeding, such cases may also include a situation, like here, “where the disability benefits were in effect awarded and terminated in the same proceeding.” Jones v. Bowen, 679 F.Supp. 133, 135 n. 1 (D.Mass.1988). However, as described in Jones, “nothing of importance turns on this distinction.” Id. IV. STANDARD OF REVIEW Once a disability is found, the Commissioner’s decision to terminate benefits, including limiting benefits to a closed time period, must be grounded in substantial evidence. Jones, 679 F.Supp. at 135 n. 1. See 42 U.S.C. § 405(g). Cf. Richardson v. Heckler, 750 F.2d 506, 509-10 (6th Cir.1984) (even if no previous proceeding established that plaintiff was disabled, once it is shown that plaintiff was disabled at some earlier point in time, a presumption arises that, in the absence of proof to the contrary, the disability continues). Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Richardson v. Perales," }, { "docid": "23647864", "title": "", "text": "his own regulations, he could not alternatively have concluded that, though disabled, Mrs. Cassiday was barred from receiving benefits because she refused to undergo surgery to cure or ameliorate her condition. In reviewing the decision to terminate Mrs. Cassiday’s benefits, we find sound guidance in the analysis in Miranda v. Secretary of Health, Education and Welfare, 514 F.2d 996, 998 (1st Cir. 1975) (citations and footnote omitted), where Judge Levin Campbell stated: described as having the “burden of proof”, meaning that he must furnish requisite medical and other evidence within his grasp, see 42 U.S.C. § 423(d)(5), and show reasonable diligence in maintaining his claim. * * * For his part, however, the Secretary must make an investigation that is not wholly inadequate under the circumstances. And once having found a disability, the Secretary may not terminate the benefits without substantial evidence to justify so doing. This will normally consist of current evidence showing that a claimant has improved to the point of being able to engage in substantial gainful activity; but it might also consist of evidence that claimant’s condition is not as serious as was at first supposed. As for the claimant, he remains at all times under a duty to exercise reasonable diligence in furnishing the Secretary with evidence relevant to his claim. The concept of “burden of proof” is in this context rather confusing. It is true that one claiming benefits is sometimes A It is necessary to begin with a brief chronology of Mrs. Cassiday’s various medical examinations. Dr. Carl Stallman, a general practitioner in Kendallville, Indiana, had been Mrs. Cassiday’s family doctor since 1960. Early in 1974 he referred her to Dr. Roger Murray, a Kendallville family practitioner and general surgeon. Dr. Murray hospitalized her and made the first tentative diagnosis of her condition. Dr. Murray in turn referred Mrs. Cassiday to Dr. Louis Romain, a neurologist in Fort Wayne. Dr. Romain hospitalized her for extensive tests in April 1974, confirmed the diagnosis of moderate to severe bilateral thoracic outlet syndrome, and recommended surgical removal of four ribs, two on either side of Mrs." }, { "docid": "4933875", "title": "", "text": "activity.” The ALJ then set out what he found to be the definition of disability under the Nebraska Aid to the Permanently and Totally Disabled State Plan and concluded without further discussion that she was no longer disabled under that definition. No specific source was cited for the definition, nor was the time period covered by the definition revealed. At no point did the ALJ address the question of improvement in McAvoy’s condition since 1960. The Appeals Council declined to review the ALJ’s decision, and the present appeal was taken. In nonconversion termination cases involving only the federal disability standard, several of the circuit courts of appeal, including the Eighth, have applied principles of administrative res judicata in adopting the following rule: “[Ojnce having found a disability, the Secretary may not terminate the benefits without substantial evidence to justify so doing. This will normally consist of current evidence showing that the claimant has improved to the point of being able to engage in substantial gainful activity; but it might also consist of evidence that claimant’s condition is not as serious as was at first supposed.” Miranda v. Secretary of Health, Education and Welfare, 514 F.2d 996, 998 (1st Cir.1975). Accord, Weber v. Harris, 640 F.2d 176, 178 (8th Cir.1981); Simpson v. Schweiker, 691 F.2d 966 (11th Cir.1982); Cassiday v. Schweiker, 663 F.2d 745 (7th Cir.1981). As Miranda and Weber pointed out, the second prong of the test allows the Secretary to compare the current condition with the relative strengths or weaknesses of the evidence on which the prior determination was made, at least where the condition was difficult to diagnose or benefits were granted on the basis of a tentative diagnosis. The burden of persuasion on the disability issue never shifts from the claimant. Weber v. Schweiker, supra at 177. However, “once the claimant has introduced evidence that his or her condition remains essentially the same as it was at the time of the earlier determination, the claimant is entitled to the benefit of a presumption that his or her condition remains disabling____ The presumption of continuing disability does not" }, { "docid": "1723822", "title": "", "text": "and that plaintiff could return to his former job as a furniture salesman (although he would occasionally be required to aid in lifting up to 300 pounds). The AU’s decision became the final decision of the Secretary when the Appeals Council denied review. Plaintiff then brought this action for judicial review. This case involves termination of benefits and is therefore governed by the standards set out in Cassiday v. Schweiker, 663 F.2d 745 (7th Cir.1981). In Cassiday, we held that “once having found a disability, the Secretary may not terminate the benefits without substantial evidence to justify so doing. This will normally consist of current evidence showing that a claimant has improved to the point of being able to engage in substantial gainful activity; but it might also consist of evidence that claimant’s condition is not as serious as was at first supposed,” 663 F.2d at 747 (quoting Miranda v. Secretary of Health, Education and Welfare, 514 F.2d 996, 998 (1st Cir.1975)). The Secretary’s brief essentially treats this appeal as a review of a denial of an initial application for benefits and makes no reference to Cassiday, although plaintiff argues that the case is controlling. The Secretary does, however, con- elude with the contention that “substantial evidence [supports the finding that] plaintiffs condition has improved to the point where he is able to resume his past relevant work.” We must, of course, uphold a decision of the Secretary that is supported by substantial evidence in the record as a whole, unless there has been an error of law. 42 U.S.C. § 405(g). Substantial evidence is “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). However, in this case we find that we are unable to affirm the decision of the Secretary even under this lenient standard of judicial review. In concluding that plaintiff’s condition had improved, the AU who terminated plaintiff’s benefits relied primarily on a reviewing physician’s report, dated May 28, 1980, that states, “Current spirometrie studies show" }, { "docid": "23381171", "title": "", "text": "adopted a similar approach. See Simpson v. Schweiker, 691 F.2d 966, 969 (11th Cir.1982) (in a benefits continuation case, the court “must ascertain whether the Secretary’s finding of improvement to the point of no disability is supported by substantial evidence”); Hayes v. Secretary of Health, Education and Welfare, 656 F.2d 204, 206 (6th Cir.1981) (reversed benefits termination because “the evidence does not support the conclusion that termination of [the claimant’s] benefits was proper because her condition had improved”); Shaw v. Schweiker, 536 F.Supp. 79, 80 (E.D.Pa.1982). We conclude that ordinarily a disability beneficiary meets his or her burden to prove continuing disability by introducing evidence that the underlying condition continues, which in turn gives rise to a presumption of continuing disability. However, if the Secretary were required to show evidence of improvement in all instances, it might preclude termination of benefits to some individuals whose original disability determination was made in error. We do not believe Congress intended such a result. Although it is unlikely that there is any substantial number of beneficiaries who fall within this category, the Secretary must be given the opportunity to introduce evidence that shows the original decision to have been in error. As stated by the First Circuit in Miranda: [0]nce having found a disability, the Secretary may not terminate the benefits without substantial evidence to justify so doing. This will normally consist of current evidence showing that a claimant has improved to the point of being able to engage in substantial gainful activity; but it might also consist of evidence that claimant’s condition is not as serious as was at first supposed. 514 F.2d at 998. See Shaw v. Schweiker, 536 F.Supp. at 82. There has been no suggestion in the record in this case or in the Secretary’s brief or argument that appellant’s disability benefits were terminated on the ground that the initial disability determination was clearly mistaken. In fact, notwithstanding the Secretary’s litigating position, the ALJ did articulate the “improvement” standard as the applicable inquiry. He stated, “To correctly terminate benefits, the evidence must clearly demonstrate that the claimant’s physical condition" }, { "docid": "14039964", "title": "", "text": "not as serious as was initially determined by ALJ Roseman. Although the issue of the appropriate standard of law in cessation or termination of benefits cases has not been resolved by the court of appeals for this circuit, I am guided by the decision of the Court of Appeals for the First Circuit in Miranda v. Secretary of Health, Education and Welfare, 514 F.2d 966 (1st Cir. 1975). The Miranda court held that once having found a disability, the Secretary may not terminate the benefits without substantial evidence to justify so doing. This will normally consist of current evidence showing that a claimant has improved to the point of being able to engage in substantial gainful activity; but it might also consist of evidence that claimant’s condition is not as serious as was at first supposed. Id. at 998 (emphasis added). I interpret Miranda, in its holding that that disability benefits may be terminated by evidence that the condition is less serious than first supposed, to pertain only to situations involving newly discovered evidence or a clearly erroneous interpretation of evidence in the initial granting of benefits. I do not read Miranda as sanctioning a challenge of the original findings by a redetermination of issues already resolved. In this circuit, Judge Ziegler of the Western District of Pennsylvania held in accord with the First Circuit when he determined that, before benefits may be terminated, there must be substantial evidence amounting to a showing of improvement. See Timblin v. Harris, 498 F.Supp. 1107, 1108 (W.D.Pa.1980). In its motion for summary judgment and accompanying memorandum of law, the government does not address this issue, but rather argues against benefits for Mr. Shaw as though benefits had never been granted. At oral argument, counsel for the Secretary asserted the government’s position that the standard of law for cessation cases set forth in Miranda is incorrect and that, in terminating benefits, the Secretary need only show that disability has ceased, not that substantial improvement has been made by the claimant. I find the government’s position to be logically and legally unsound. Once a final" }, { "docid": "21546753", "title": "", "text": "conceivable that, had Congress not acted, this court would have modified its Miranda standard in light of the Administration’s adoption of regulations that said that “eligibility for cash benefits and for a period of disability will end” when “the evidence in [the claimant’s] file shows that [he is] able to do substantial gainful activity.” 20 C.F.R. §§ 404.1594, 416.994 (1981). See Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837, 843, 104 S.Ct. 2778, 2781-82, 81 L.Ed.2d 694 (1984) (when administrative agency has adopted a regulation implementing a statute, courts should ask only whether the regulation “is based on a permissible construction of the statute”). But, major modification seems unlikely since almost every other circuit had held that the Social Security Administration could not, consistent with its basic statute, interpret this regulation to permit termination in the absence of any evidence showing that the claimant’s medical condition had improved (or that the original disability determination had been erroneous). See, e.g., Rush v. Secretary of HHS, 738 F.2d 909, 915-16 (8th Cir.1984); DeLeon v. Secretary of HHS, 734 F.2d 930, 936-37 (2d Cir.1984); Turner v. Heckler, 592 F.Supp. 599, 606 (N.D.Ind.1984); Holden v. Heckler, 584 F.Supp. 463, 474 (N.D.Ohio 1984); Doe v. Heckler, 576 F.Supp. 463, 470-72 (D.Md.1983); Graham v. Heckler, 573 F.Supp. 1573, 1578-80 (N.D.W.Va.1983), appeal dismissed, 742 F.2d 1448 (4th Cir.1984); Trujillo v. Heckler, 569 F.Supp. 631, 634 (D.Colo.1983); see also Vaughn v. Heckler, 727 F.2d 1040, 1043 (11th Cir.1984) (applying medical improvement standard on review of termination decision made after “current evidence” regulations went into effect); Daring v. Heckler, 727 F.2d 64, 68-69 (3d Cir.1984) (same); Person v. Secretary of HHS, 578 F.Supp. 190, 192 (E.D.Mich.1984) (same). But see Hill v. Heckler, 592 F.Supp. 1198, 1208-13 (W.D.Okla.1984) (disability beneficiaries not enti- tied to preliminary injunction against use of “current evidence” standard because little likelihood of succeeding on the merits of their claim that use of the standard was unlawful). Ultimately, the matter may come down to determining how obviously wrong the Administration was in terminating the claimant’s benefits. What had changed since the initial award? Was there any medical" }, { "docid": "23381172", "title": "", "text": "within this category, the Secretary must be given the opportunity to introduce evidence that shows the original decision to have been in error. As stated by the First Circuit in Miranda: [0]nce having found a disability, the Secretary may not terminate the benefits without substantial evidence to justify so doing. This will normally consist of current evidence showing that a claimant has improved to the point of being able to engage in substantial gainful activity; but it might also consist of evidence that claimant’s condition is not as serious as was at first supposed. 514 F.2d at 998. See Shaw v. Schweiker, 536 F.Supp. at 82. There has been no suggestion in the record in this case or in the Secretary’s brief or argument that appellant’s disability benefits were terminated on the ground that the initial disability determination was clearly mistaken. In fact, notwithstanding the Secretary’s litigating position, the ALJ did articulate the “improvement” standard as the applicable inquiry. He stated, “To correctly terminate benefits, the evidence must clearly demonstrate that the claimant’s physical condition has improved sufficiently to allow her to undertake some form of substantial gainful activity.” The ALJ found there had been such improvement. As we set forth above, once Mrs. Kuzmin presented evidence that her condition remained the same, the Secretary was required to come forward with evidence of improvement. When the evidence before the first ALJ, who found it “wholly favorable” to Mrs. Kuzmin, is compared with the termination proceeding record, the marked similarity between the two is evident. For example, Mrs. Kuzmin’s testimony about her activities and impairments was substan tially the same at both hearings. Letters from her treating physician indicated that Mrs. Kuzmin’s examination was “relatively unchanged” and that she “if anything, has developed more symptoms in the last year.” We find no substantial evidence to support the AU’s finding that Mrs. Kuzmin’s condition had improved to the point of non-disability. The second ALJ listed three medical exhibits in recounting the “current” medical evidence he apparently relied upon in concluding there was improvement. First, he mentioned an October 1980 spirometry revealing “only" }, { "docid": "10935391", "title": "", "text": "Endorsement of the Medical Improvement Standard: The Law in Other Circuits While the Secretary’s interpretation of the administrative burden in disability cases has varied during the thirty years since the SSDI program was initiated, judicial interpretation of the Act has remained consistent. Using different language, ten circuit courts of appeals have held that the Secretary may not terminate disability benefits without offering substantial evidence that the record supporting the initial determination of disability is no longer valid. The standard imposed by the courts has been called either a “medical improvement standard” or a “presumption of continuing disability”. The former position was articulated in Miranda v. Secretary of Health, Education and Welfare, 514 F.2d 996, 998 (1st Cir.1975): ... And once having found a disability, the Secretary may not terminate the benefits without substantial evidence to justify so doing. This will normally consist of current evidence showing that a claimant has improved to the point of being able to engage in substantial gainful activity; but it might also consist of evidence that the claimant’s condition is not as serious as was at first supposed. Having permitted the Secretary to consider medical evidence presented during the original disability determination, the court carefully narrowed the scope of this “second look”. “It would be wrong for the Secretary to terminate an earlier finding of disability on no basis other than his reappraisal of the earlier evidence.” Id. at 998 n. *. Several courts have read Miranda as articulating an explicit “medical improvement” standard and have adopted it as such. See Cassiday v. Schweiker, 663 F.2d 745, 749 (7th Cir.1981) (“Given that the evidence continued to show the existence of the same condition, and given that there was no question of improvement but only disagreement about how disabling the condition had ever been, we think Mrs. Cassiday made out a prima facie case and the burden had shifted to the Secretary to justify the termination of benefits.”);. Van Natter v. Secretary of Health, Education and Welfare, No. 79-1439, slip op. at 6-7 (10th Cir. Jan. 8, 1981) (not for routine publication) (adopting Miranda standard as" }, { "docid": "7307230", "title": "", "text": "of this court’s decision in Cassiday v. Schweiker, 663 F.2d 745 (7th Cir.1981). In Cassiday, we held that the Secretary normally could not terminate disability benefits absent a finding that the claimant had “ ‘improved to the point of being able to engage in substantial gainful activity.’ ” Id. at 747 (quoting Miranda v. Secretary of Health, Educ. and Welfare, 514 F.2d 996, 998 (1st Cir.1975)). However, we also said that the Secretary might be justified in terminating benefits when the “ ‘claimant’s condition is not as serious as was at first supposed.’” Id. (quoting Miranda, 514 F.2d at 998). Mr. Hendricks contends that Cassiday established a standard comparable to the standard adopted by Congress in the Reform Act and that, therefore, the Secretary was not substantially justified in contesting Mr. Hendricks’ continued right to benefits. Contrary to the assertion of Mr. Hendricks, the decision in Cassiday does not establish that the government was not substantially justified in revoking Mr. Hendricks’ benefits. Cassiday did not preclude the possibility of the Secretary’s revoking benefits even when there was no “medical improvement.” Under Cassiday, the Secretary also could revoke disability benefits when later investigation revealed that the original grant of those benefits was mistaken. Indeed, between the time when Cassiday was decided and Congress passed the Reform Act, several district courts in this circuit affirmed decisions by the Secretary to terminate benefits even though no medical improvement had been shown. Although those decisions later were reversed by this court, see Switzer v. Heckler, 742 F.2d 382 (7th Cir.1984) and Soper v. Heckler, 754 F.2d 222 (7th Cir.1985), the analy-ses of the district courts nonetheless evidence a common understanding, at the time that Mr. Hendricks’ litigation was pending before the district court, that Cassiday did not unequivocally require the Secretary to prove “medical improvement” in order to terminate benefits. In light of the limited holding in Cassi-day, a strong argument can be made that the Secretary’s position in this litigation was substantially justified. The record contains a significant amount of evidence suggesting that Mr. Hendricks could engage in “substantial gainful activity.” See 42" }, { "docid": "14150913", "title": "", "text": "previously established, there is a presumption the disability is a continuing one in the absence of any evidence showing an improvement in a claimant’s condition. While not discussing the evidence in the record in the light of that standard, the magistrate found the record lacked substantial evidence to support the Secretary’s decision. The Secretary objects to the recommendation arguing the magistrate applied an erroneous legal standard in requiring evidence that plaintiff’s condition had improved before benefits may be terminated. II. Almost all of the circuits have enunciated a special standard to govern termination cases. Some circuits have held that once the Secretary finds a claimant disabled, she cannot generally terminate benefits without current evidence showing that a claimant has improved to the point of being able to engage in substantial gainful employment or that the claimant’s condition is not as serious as was first assumed. See Cassiday v. Schweiker, 663 F.2d 745 (7th Cir.1981); Weber v. Harris, 640 F.2d 176 (8th Cir.1981); Miranda v. Secretary of Health, Education and Welfare, 514 F.2d 996 (1st Cir.1975). Other circuits have held that in a termination case, since there is a previous finding of disability, there is a presumption the disability continues to exist unless there is evidence to show the disability has improved. See Dotson v. Schweiker, 719 F.2d 80 (4th Cir.1983). Patti v. Schweiker, 669 F.2d 582 (9th Cir.1982); Simpson v. Schweiker, 691 F.2d 966 (11th Cir.1982); Rivas v. Weinberger, 475 F.2d 255 (5th Cir.1973). The Third Circuit has outlined a slightly different standard. In a termination case, once a claimant produces evidence that her or his medical condition is unchanged, there is a presumption the medical condition which was previously found to be disabling continues to be disabling. Once the claimant has met this initial burden of production the burden is on the Secretary to produce evidence showing the claimant’s condition has improved or that the condition is not as serious as was originally supposed. Kuzmin v. Schweiker, 714 F.2d 1233 (3rd Cir.1983). The Sixth Circuit has not clearly ruled on this issue. Myers v. Richardson, 471 F.2d 1265 (6th" }, { "docid": "7307229", "title": "", "text": "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 or that special circumstances make an award unjust. 28 U.S.C. § 2412(d)(1)(A). Under the statute, Mr. Hendricks is entitled to attorneys’ fees if three prerequisites are met. First, Mr. Hendricks must be a prevailing party. Second, the position of the government must not have been substantially justified. Third, Mr. Hendricks’ case must not involve special circumstances that would make an award of fees unjust. See Gamber v. Bowen, 823 F.2d 242, 244 (8th Cir.1987). A. Substantially Justified We first consider whether the position of the Secretary in the underlying litigation was substantially justified. Mr. Hendricks argues that the Secretary’s position before the district court was not justified because of this court’s decision in Cassiday v. Schweiker, 663 F.2d 745 (7th Cir.1981). In Cassiday, we held that the Secretary normally could not terminate disability benefits absent a finding that the claimant had “ ‘improved to the point of being able to engage in substantial gainful activity.’ ” Id. at 747 (quoting Miranda v. Secretary of Health, Educ. and Welfare, 514 F.2d 996, 998 (1st Cir.1975)). However, we also said that the Secretary might be justified in terminating benefits when the “ ‘claimant’s condition is not as serious as was at first supposed.’” Id. (quoting Miranda, 514 F.2d at 998). Mr. Hendricks contends that Cassiday established a standard comparable to the standard adopted by Congress in the Reform Act and that, therefore, the Secretary was not substantially justified in contesting Mr. Hendricks’ continued right to benefits. Contrary to the assertion of Mr. Hendricks, the decision in Cassiday does not establish that the government was not substantially justified in revoking Mr. Hendricks’ benefits. Cassiday did not preclude the possibility of the Secretary’s revoking benefits even when" }, { "docid": "11750517", "title": "", "text": "determined that, for purposes of SSI benefits, the claimant could not return to her former employment as a sewing machine operator but did retain the residual functional capacity to do sedentary work as defined by the Act. He determined that she was therefore not disabled under the Act as of August 1979. Subsequently, the Appeals Council upheld the decision of the ALJ and the decision became the final one of the Secretary as of July 21, 1981. In his opinion, the ALJ reviewed the testimony and evidence presented under the standard utilized when an applicant makes an initial application for SSI benefits. The claimant argues that in so doing the ALJ applied the wrong standard of law in determining whether Mrs. Musgrove’s SSI bene fits were properly terminated. It is claimant’s position that benefits, once granted, may only be terminated upon a proof of some medical improvement or clear prior error in the initial determination of eligibility. I agree. The issue of what must be shown before the Secretary may terminate disability benefits has not yet been addressed by the court of appeals for this circuit. I have in a previous opinion been guided by the Court of Appeals for the First Circuit in Miranda v. Secretary of Health, Education and Welfare, 514 F.2d 996 (1st Cir.1975). See Shaw v. Schweiker, 536 F.Supp. 79 (E.D.Pa.1982). The Miranda court held that once having found a disability, the Secretary may not terminate the benefits without substantial evidence to justify so doing. This will normally consist of current evidence showing that a claimant has improved to the point of being able to engage in substantial gainful activity; but it might also consist of evidence that claimant’s condition is not as serious as was at first supposed. Miranda, supra at 998 (emphasis added). Miranda thus permits termination only upon the Secretary presenting substantial evidence that proves either (1) improvement to the point where the claimant is able to engage in substantial gainful activity or (2) claimant’s condition is “not as serious as was first supposed.” In Shaw, supra, I concluded that the second ground" } ]

[ { "docid": "9506800", "title": "", "text": "BAZELON, Chief Judge. These three consolidated actions, decided below on cross motions for summary judgment, involve construction of the “Isolated Tracts Act,” Eev.Stat. § 2455, as amended, 43 U.S.C. § 1171 (1958), and the regulations thereunder, 43 CFE Part 250. The Act provides in substance that the Secretary of the Interior may sell at public auction any isolated or disconnected parcel of the public domain, not exceeding a specified size, which in his judgment may properly be sold. It also grants owners of contiguous land a preference right to buy such parcels and provides for equitable division by the Secretary in the event of competing preference rights. The Act does not, however, specify either the manner or the time in which the Secretary is to exercise his judgment whether it would be proper to sell a particular tract; nor does it provide for the vesting of rights in or passing of title to lands sold. These matters are covered by 43 CFR § 250.5 which provides in pertinent part that “ * * * until the issuance of a cash certificate, the authorized officer may at any time determine that the lands should not be sold, the applicant or any bidder has no contractual or other rights as against the United States, and no action taken will create any contractual or other obligation of the United States.” On September 23,1952, Willcoxson filed in the Land and Survey Office of the Bureau of Land Management at Santa Fe, New Mexico, applications for the sale of two isolated tracts of land located in that State. In November 1952, the Manager of the Santa Fe Office received reports on the mineral qualities of the tracts from the Bureau’s staff. No field examinations were made at that time. The reports stated that “although adjacent areas are now the scene of uranium mining activities, there are no known uranium mining activities within the immediate vicinity” of the tracts; and “recommended that, since it is in the public interest to dispose of these lands, the application [s] be approved and the lands offered in public sale.”" } ]

[ { "docid": "22292443", "title": "", "text": "the Act are consistent with the mandatory requirements of the Act. See Thor-Westcliffe Development Inc. v. Udall, 114 U.S.App.D.C. 252, 314 F.2d 257; Safarick v. Udall, 113 U.S.App.D.C. 944, 304 F.2d 944. There is a further argument. Under the Mineral Leasing Act, it is contended, the unreviewable discretionary authority of the Secretary is exhausted when he decides to accept noncompetitive oil and gas lease applications; thereafter his acts are subject to review. In the same way, it is urged, the unreviewable discretion of the Secretary is exhausted when he decides to expose certain isolated tracts for sale, and any decision he 'makes thereafter is reviewable for abuse of discretion. Appellants’ understanding of the Mineral Leasing Act is correct insofar as, once the Secretary has decided to accept lease applications, the Act makes mandatory the granting of the lease to the first qualified applicant without competitive bidding. But the argument with regard to the scope of the Secretary’s discretion under the Isolated Tracts Act is faulty. It overlooks the fact that there is nothing in the Act or regulations which makes the accepting of any bid mandatory after the decision to expose the land for sale or to invite bidding is made. For this reason, the Secretary’s discretion under the Isolated Tracts Act, unlike his discretion under the Mineral Leasing Act, extends until such time as he accepts in accordance with the regulations some bid made on a parcel of land designated for sale. Ferry argues that due process of law requires that he at least be given a hearing on the issue of the fairness of the original appraisal. Since the Secretary announced that he rejected Ferry’s offer because it was less than the actual value of the land when the bids were made, Ferry argues that he ought to have an opportunity to demonstrate the error of this determination in a trial-like procedure. We know of no provision in the Isolated Tracts Act that requires such a hearing. Furthermore, there is no constitutional requirement to a right to a hearing where only a potential privilege to purchase United States" }, { "docid": "22292446", "title": "", "text": "June S, 1962, confirmed the earlier decision to vacate the sale on the grounds that the true value of the land at the time the bid was made exceeded the bid price by six times. In the Ferry case, the Department of Interior ordered the sale to Ferry to be vacated in a decision dated February 1, 1963. The decision stated that the fair market value of the land at the date of sale was $93,500 as compared with the appraised value of $24,238.55. The fair value of the land was determined to be $155,880 as of September 4, 1962. . Since the Secretary has discretionary power to refuse to sell at all, he also has the authority to set any conditions, consistent with the Act, upon which the sale may be made. Cf. Southern Pacific Co. v. Olympian Dredging Co., 260 U.S. 205, 208, 43 S.Ct. 26, 67 L.Ed. 213. If the appellants did not like the system the Secretary established for entertaining bids, their remedy was that of not bidding at all. Cf. Erie Coal & Coke Corp. v. United States, 266 U.S. 518, 45 S.Ct. 181, 69 L.Ed. 417; United States v. Weisbrod, 7 Cir., 202 F.2d 629, 633. . This is the text of 43 C.F.R. § 250.5 as it stood at the time of the bidding, as a result of its promulgation at 19 Fed. Reg. 9116 (1954). The text was amended at 28 Fed.Reg. 1589 (1963). One significant change in 43 C.F.R. § 250.5 made as a result of this amendment was that all public notices of sales under these regulations must now state expressly that the Government reserves a right to reject any and all bids prior to the issuance of the final certificates. The regulations prior to the amendment stated no such requirement, and the public notices in these two cases contained no such notice. Freeman argues that the amendment reflects the Secretary’s agreement with his position that this right of the Secretary to reject all bids must be stated in the public notice to be binding upon the bidders. The appellee" }, { "docid": "22292430", "title": "", "text": "be followed in selling these tracts. The Secretary may therefore promulgate regulations, pursuant to his general rule-making power, concerning how the sale may be had. Rev.Stat. § 2478, 43 U.S.C. § ' 1201. The rules promulgated with regard to these sales were, at the time of the bidding, as follows: “ * * * until the issuance of a cash certificate, the authorized officer may at any time determine that the lands should not be sold, the applicant or any bidder has no contractual or other rights as against the United States, and no action taken will create any contractual or other obligation of the United States.” Under this procedure the Secretary, in the exercise of his discretionary authority to. sell, merely invites bids from the public. The procedure established resembles an auction with reserve, since the Secretary reserves the right to reject any and all bids prior to the issuance of the certificate. See Restatement, Contracts § 27; Willcoxson v. United States, 114 U.S.App.D.C. 203, 207, 313 F.2d 884, 888. Freeman argues that the public notice had to state that the auction was being held with reserve, in order for these conditions to be binding upon the bidders. However, in this kind of auction, as in any other, the auction is deemed to be conducted with reserve, unless there is an express announcement or advertisement to the contrary before the auction takes place. 1 Williston, Contracts (3d ed.) § 29, pages 76-77. For this reason, even without the regulations, the Secretary had a right to reject a bid. It would be immaterial whether the bid was the high bid or whether the advertisement announcing the auction implied that the Secretary would sell to the highest bidder. See Levinson v. United States, 258 U.S. 198, 201, 42 S.Ct. 275, 66 L.Ed. 563. The regulations state that offers to purchase the land could be accepted only by the issuance of the cash certificate and that no other action taken would confer rights in the land upon bidders. Both appellants argue that these regulations do not apply to them since the public" }, { "docid": "22292445", "title": "", "text": "land is involved. Affirmed. . The declaration that they were high hidders and purchasers was, in each case, made subject to a waiting period of thirty days to afford owners, if any, of contiguous land to exercise their preference right to purchase the land in accordance with the provisions of 43 U.S.C. § 1171 and 43 C.F.R. Part 250. . Freeman was the only bidder in her case, and at the time of the bidding paid the bid price of $39,517.00 to the Manager, who issued a receipt to her. Ferry at the time of the bidding paid the bid sum of $32,500.00, which sum was received and receipted by the Manager, . In the Freeman case, on April 14, 1961, a joint decision of the Associate Director, approved by Secretary Udall, was rendered and issued vacating the sale on the ground that the then present value of the land exceeded the bid price by ten times. As a result of Freeman’s petition for reconsideration of this decision, the Acting Director and Assistant Secretary on June S, 1962, confirmed the earlier decision to vacate the sale on the grounds that the true value of the land at the time the bid was made exceeded the bid price by six times. In the Ferry case, the Department of Interior ordered the sale to Ferry to be vacated in a decision dated February 1, 1963. The decision stated that the fair market value of the land at the date of sale was $93,500 as compared with the appraised value of $24,238.55. The fair value of the land was determined to be $155,880 as of September 4, 1962. . Since the Secretary has discretionary power to refuse to sell at all, he also has the authority to set any conditions, consistent with the Act, upon which the sale may be made. Cf. Southern Pacific Co. v. Olympian Dredging Co., 260 U.S. 205, 208, 43 S.Ct. 26, 67 L.Ed. 213. If the appellants did not like the system the Secretary established for entertaining bids, their remedy was that of not bidding at all. Cf." }, { "docid": "18311380", "title": "", "text": "awaited the issuance of a cash certificate and patent to the land. In February of 1960 the Secretary issued a press release in regard to safe guards against land speculation. On June 6, 1960, the manager of the Land Office in Phoenix vacated his December 4, 1959 decision as to the land in question and rejected all applications. One of the reasons given was that under the anti-speculation policy, land within the influence of expanding cities like that involved here, would not be classified as suitable for auction. Appeal was taken to the Director of the Bureau of Land Management, who held that appellants could acquire no interest in the land until the issuance of a cash certificate, and, none having been issued, the sale could be, and was, properly vacated. This decision was appealed to the Secretary of the Interior. More than three years after the appeal was taken, the Secretary handed down his decision which denied the land to the appellants. Appellants then sought review of the decision under the provisions of the Administrative Procedure Act (5 U.S.C. § 1009). In the court below, motions were made by each side for summary judgment. Summary judgment was granted in favor of appellees, and the appellants have prosecuted this appeal. Appellants have specified three substantive points as grounds for reversal: (1) That it was error for the district court to hold that the Secretary of the Interior had discretion to accept or reject appellants’ offer until issuance of a cash certificate; (2) That it was error for the district court to find that the original sale was an auction with reserve; and (3) That if an auction with reserve the district court erred in not finding that appellants had met the reserve. In Ferry v. Udall, 336 F.2d 706 (9th Cir. 1964), we dealt with the proposed sale of an isolated tract under 43 U.S.C. § 1171. We answered each of appellants’ first two challenges with unmistakable clarity: (1) “The Isolated Tracts Act commits the decision to sell to the Secretary’s discretion.” 336 F.2d at 711. (2) “However, in this" }, { "docid": "22292431", "title": "", "text": "public notice had to state that the auction was being held with reserve, in order for these conditions to be binding upon the bidders. However, in this kind of auction, as in any other, the auction is deemed to be conducted with reserve, unless there is an express announcement or advertisement to the contrary before the auction takes place. 1 Williston, Contracts (3d ed.) § 29, pages 76-77. For this reason, even without the regulations, the Secretary had a right to reject a bid. It would be immaterial whether the bid was the high bid or whether the advertisement announcing the auction implied that the Secretary would sell to the highest bidder. See Levinson v. United States, 258 U.S. 198, 201, 42 S.Ct. 275, 66 L.Ed. 563. The regulations state that offers to purchase the land could be accepted only by the issuance of the cash certificate and that no other action taken would confer rights in the land upon bidders. Both appellants argue that these regulations do not apply to them since the public notice did not call their attention to the fact that the auction was being held pursuant to 43 C.F.R. § 250.5. Freeman and Ferry are bound by these regulations, however, since their publication in the Federal Register provided constructive notice. 49 Stat. 502, 44 U.S.C. § 307; Federal Crop Insurance Corp. v. Merrill, 332 U.S. 380, 384-385, 68 S.Ct. 1, 92 L.Ed. 10; Maryland Cas. Co. v. United States, 251 U.S. 342, 349, 40 S.Ct. 155, 64 L.Ed. 297. Two arguments advanced by the appellants are based on the presumption that some event other than the issuance of the cash certificate will constitute acceptance of their bids. The first such argument is that the obligation to sell lands became complete when the Land Manager accepted, and gave receipts for, the bid price paid by them. Appellants argue that the “general rule of real estate” applicable here is that where the applicant for a patent to public lands performs the prescribed conditions and pays the price, the equitable title thereto passes to the applicant and the" }, { "docid": "23697555", "title": "", "text": "that the best offer and/or terms can be achieved, as previously mentioned, the FDIC has the option to reject any and all bids and please be assured that the FDIC will treat all parties fairly and equitably and thereby eliminate any suspicion of collusion on behalf of this Federal Government agency, (emphasis added). The FDIC also stated in this letter that “[t]hose parties interested in bidding should have their financing limit approved by another lending institution prior to the bidding date.” On May 17,1979, the FDIC flatly rejected appellants’ verbal offer of $400,000 and stated that $490,000 was the lowest bid acceptable to it. Appellants then wrote a letter on June 7 offering to buy the property for $490,000. But this offer was subject to several conditions, the principal one being that payment of earnest money in the sum of $10,000 and the balance of the purchase price was contingent on appellants obtaining long-term financing. On June 12, 1979, the FDIC flatly rejected the offer, stating tersely that the offer was unacceptable “due to several of your conditions and assumptions.” On July 24, 1979, a Mr. George Kogan sent a written offer of $350,000 for the hotel to the FDIC, together with a $35,000 cash deposit. On August 27, 1979, the Board of Directors of the FDIC approved the sale to Kogan for $350,000. There is no evidence in the record that at this time appellants were able to meet the FDIC financing requirements. Based on these facts, the district court made the following findings: that the negotiations and sale to Kogan were not a sham or collusive; that the FDIC violated no rule or regulation by the sale to Kogan; that appellants did not acquire an exclusive right to purchase the property; that the FDIC made no representations that it would disclose to appellants the identity of competing bidders or the contents of their bids; and that appellants were aware at all times that the FDIC reserved the right to accept or reject any or all offers. Appellants argue that the grant of summary judgment was unwarranted because the" }, { "docid": "23697554", "title": "", "text": "year and had not been operated since. The FDIC’s annual estimated holding expenses were calculated at $96,476, which included property taxes, insurance, guard services, maintenance, depreciation and temporary shoring to prevent the collapse of the building. Because of these expenses and the rapid deterioration of the structure, the FDIC decided to attempt to sell the hotel. Pursuant to a published notice for closed bids, an auction was held, but the FDIC received no bids from any interested purchaser, including appellants. Prior to the auction appellant Clemons communicated with the FDIC and expressed his interest in negotiating a purchase of the property. He suggested that the FDIC adopt a public auction or open negotiations. The FDIC responded in writing: To state that the FDIC will obtain a higher price and/or terms in a public auction is non-supportive. All concerns [sic] will probably submit their best bid and the FDIC will have the option to reject any or all bids and to reschedule another bidding. Furthermore, we feel that open negotiations with bidders does not necessarily mean that the best offer and/or terms can be achieved, as previously mentioned, the FDIC has the option to reject any and all bids and please be assured that the FDIC will treat all parties fairly and equitably and thereby eliminate any suspicion of collusion on behalf of this Federal Government agency, (emphasis added). The FDIC also stated in this letter that “[t]hose parties interested in bidding should have their financing limit approved by another lending institution prior to the bidding date.” On May 17,1979, the FDIC flatly rejected appellants’ verbal offer of $400,000 and stated that $490,000 was the lowest bid acceptable to it. Appellants then wrote a letter on June 7 offering to buy the property for $490,000. But this offer was subject to several conditions, the principal one being that payment of earnest money in the sum of $10,000 and the balance of the purchase price was contingent on appellants obtaining long-term financing. On June 12, 1979, the FDIC flatly rejected the offer, stating tersely that the offer was unacceptable “due to several" }, { "docid": "168616", "title": "", "text": "provisions contain, attempts to “glean[ ] from the spirit and intent of FIRREA” that the FDIC is obligated to maximize its returns through competitive bidding. Brief for Appellant at 33. Specifically, he notes that, under FIRREA, the Resolution Trust Corporation (the “RTC”) is obligated to establish standards for fair and consistent treatment of bidders, see 12 U.S.C. § 1441a(a)(14) (West Supp.1990), and argues that the FDIC should therefore be controlled by the same requirements as well. In our view, however, the fact that Congress imposed these requirements on the RTC while simultaneously granting the FDIC the broad discretionary powers outlined above cuts against Gosnell’s claim, as it suggests that Congress was aware of the advantages of competitive bidding and consciously decided not to impose this alternative on the FDIC. Accordingly, were we to allow disappointed bidders such as Gosnell to challenge the manner in which the FDIC chooses to dispose of its assets, we would undermine Congress’ intent to allow the FDIC broad discretion in the disposition of its assets. Santoni v. FDIC, 677 F.2d 174, 179 (1st Cir.1982) (pre-FIRREA case); cf. Diercks v. FSLIC, 528 F.2d 916, 916 (7th Cir.1976) (per curiam) (discussing similarly broad discretion granted to the Federal Savings and Loan Insurance Corporation). In contrast to the wide range of discretion granted the FDIC under FIRREA, those statutes under which courts have granted standing to disappointed bidders all contained specific procedural guidelines protecting the bidders’ rights. For example, in B.K. Instrument, Inc. v. United States, 715 F.2d 713 (2d Cir.1983), we granted standing to a disappointed bidder for a defense contract where the statutes alleged to have been violated were quite “specific in their reference to bidders,” and where Congress had amended one of those statutes to “give prospective bidders sufficient information to permit them to bid responsibly.” Id. at 719; see also Choctaw Mfg. Co., Inc. v. United States, 761 F.2d 609, 611-12 (11th Cir.1985); Kinnett Dairies, Inc. v. Farrow, 580 F.2d 1260, 1265-66 (5th Cir.1978). In these cases, because the statutes were intended in part to protect the bidders’ rights, it was reasonable to conclude" }, { "docid": "12631851", "title": "", "text": "(March 11, 1969); Smith v. United States, 333 F.2d 70 (10th Cir. 1964); Commonwealth of Massachusetts v. Connor, 248 F.Supp. 656 (D.C.Mass.1966). An act is ministerial only if it is a positive command and so plainly prescribed as to be free from doubt. Prairie Band of Pottawatomie Tribe of Indians v. Udall, 355 F.2d 364 (10th Cir. 1966). The act which Walker seeks to have the Secretary of the Interior perform clearly does not constitute a ministerial act. Far from the Secretary’s duty to act being plainly prescribed, the Mining Claims Occupancy Act places no duty to act on the Secretary at all. No jurisdiction under the federal mandamus statute exists on the facts of this case. As an independent basis for decision, we also hold that, even assuming that the district court properly took jurisdiction, Walker was not entitled to a hearing. The Mining Claims Occupancy Act makes no provisions for a hearing when an applicant seeks a conveyance of land under the Act. In such a situation, no additional rights to a hearing exist under the Administrative Procedure Act. The Administrative Procedure Act does not impose any requirement of an adversary hearing before an agency; it merely specifies the procedure to be followed when a hearing is required by some other statute. Webster Groves Trust Co. v. Saxon, 370 F.2d 381 (8th Cir. 1966); LaRue v. Udall, 116 U.S.App.D.C. 396, 324 F.2d 428 (1963). This court dealt with the issue of the right to a hearing in a similar context in Ferry v. Udall, 336 F.2d 706 (9th Cir. 1964). In that case the Secretary of the Interior vacated purported sales of land to bidders who had bid under the Isolated Tracts Act. One of the bidders contended that he should have gotten a hearing to contest the finding of the Secretary. This court first pointed out that no provision of the Isolated Tracts Act requires such' a hearing. The court then stated, “Furthermore, there is no constitutional requirement to a right to a hearing where only a potential privilege to purchase United States land is involved.” 336" }, { "docid": "2348631", "title": "", "text": "failed and refused to pay the amount he bid and to comply with the terms of his bid contract. Appellant contends that “under condition 8 of the Sales Conditions, the Government was not bound to complete the sale of the merchandise, for it could arbitrarily cancel the sale at any time prior to actual delivery merely by withdrawing the merchandise and refunding any money already paid by the person who was ‘awarded’ the merchandise. The Government contends that the purchaser was bound to pay the amount of his bid just as soon as it made the ‘award.’ ” When defendant made his bid he did so with knowledge of the wording and import of Sales Condition No. 8 of the Government’s offer to sell. He admits he made his bid and that the Government accepted it. The property involved was never withdrawn from sale. It remained surplus property from the time he made his first inquiry about it, and he was sent a form upon which he made his bid, up to and until the resale thereof for his account, after notice to him. In his brief, appellant assumes factual situations that are not present in the case. He contends “that the buyer is not liable for failure to pay the money stated in his bid after he receives an ‘award.’ * * * When the Government ‘awarded’ a ‘Notics of Sale’ to the defendant the Government merely promised to complete the sale unless it became necessary to cancel the sale prior to actual physical delivery.” In Erie Coal & Coke Co. v. United States, 266 U.S. 518, 45 S.Ct. 181, 69 L.Ed. 417, it appeared that under the terms of an Act of Congress, approved July 11, 1919, 41 Stat. 105, the Secretary of War was authorized to sell supplies “Upon such terms as may be deemed best.” The sale of about 40,000 tons of nitrate of sodium was authorized to be held at public auction. The advertisement of the sale stated that the acceptance of any bid would not be final until the execution of a contract and" }, { "docid": "22292432", "title": "", "text": "notice did not call their attention to the fact that the auction was being held pursuant to 43 C.F.R. § 250.5. Freeman and Ferry are bound by these regulations, however, since their publication in the Federal Register provided constructive notice. 49 Stat. 502, 44 U.S.C. § 307; Federal Crop Insurance Corp. v. Merrill, 332 U.S. 380, 384-385, 68 S.Ct. 1, 92 L.Ed. 10; Maryland Cas. Co. v. United States, 251 U.S. 342, 349, 40 S.Ct. 155, 64 L.Ed. 297. Two arguments advanced by the appellants are based on the presumption that some event other than the issuance of the cash certificate will constitute acceptance of their bids. The first such argument is that the obligation to sell lands became complete when the Land Manager accepted, and gave receipts for, the bid price paid by them. Appellants argue that the “general rule of real estate” applicable here is that where the applicant for a patent to public lands performs the prescribed conditions and pays the price, the equitable title thereto passes to the applicant and the United States thereafter holds mere legal title subject to a trust. As pointed out in Willcoxson v. United States, 114 U.S.App.D.C. 203, 206-207, 313 F.2d 884, 887-888, the cases upon which the appellants rely are those involving statutes which made it mandatory for the Secretary to transfer the land to those who complied with the statutory requirements, and which limited the Secretary’s discretion to that of determining that the requirements had been met. Sale of property under the Isolated Tracts Act involves an entirely different method of disposing of public property. Under this Act, Congress has left entirely to the Secretary’s discretion whether to dispose of the land or not. Accordingly, this is not a case where a member of the public can acquire parts of the public domain merely by the compliance with or paying a price. In this case, no right to the land arises until the Secretary accepts a bid by issuing a certificate. The second argument along this line is that the offers of the appellants were accepted when they were" }, { "docid": "12631852", "title": "", "text": "exist under the Administrative Procedure Act. The Administrative Procedure Act does not impose any requirement of an adversary hearing before an agency; it merely specifies the procedure to be followed when a hearing is required by some other statute. Webster Groves Trust Co. v. Saxon, 370 F.2d 381 (8th Cir. 1966); LaRue v. Udall, 116 U.S.App.D.C. 396, 324 F.2d 428 (1963). This court dealt with the issue of the right to a hearing in a similar context in Ferry v. Udall, 336 F.2d 706 (9th Cir. 1964). In that case the Secretary of the Interior vacated purported sales of land to bidders who had bid under the Isolated Tracts Act. One of the bidders contended that he should have gotten a hearing to contest the finding of the Secretary. This court first pointed out that no provision of the Isolated Tracts Act requires such' a hearing. The court then stated, “Furthermore, there is no constitutional requirement to a right to a hearing where only a potential privilege to purchase United States land is involved.” 336 F.2d at 714. Similarly, all that Walker has under the Mining Claims Occupancy Act is a potential privilege to receive a conveyance of United States land. Here, as in Ferry, there is no right to a hearing. Walker cites Best v. Humboldt Mining Co., 371 U.S. 334, 83 S.Ct. 379, 9 L.Ed. 2d 350 (1963) and Adams v. Witmer, 271 F.2d 29 (9th Cir. 1958) in support of his contention that he is entitled to a hearing. These cases are inapposite. In Best the court was dealing with a mining claim that amounted to a possessory interest in land and that constituted a form of property; in Adams the court dealt with a mining claim that constituted a property right. Here, Walker’s claim does not amount to a property right; his right to receive a conveyance rested solely in the discretion of the Secretary of the Interior. Under these circumstances, due process does not require that Walker be given a hearing. Finally, the appellee attempts to rest his claim for a hearing on 43 C.F.R." }, { "docid": "23697557", "title": "", "text": "FDIC made three promises to them that, when taken together, raise genuine and material factual issues as to whether an implied contract arose through promissory estoppel that bound the FDIC to inform appellants not only of competing offers but of internal agency decisions to negotiate for a price below that which the FDIC told Clemons was the lowest acceptable bid. These alleged promises include two representations by the FDIC in its November 9, 1978 letter to Clemons, stating that the FDIC retained the option to “reject any or all offers” but would “treat all parties fairly and equitably.” The third alleged promise was a verbal statement by the FDIC on June 7, 1979, informing appellants that $490,000 was the lowest bid acceptable to the FDIC. We will uphold the district court’s entry of summary judgment only if, taking the record in the light most favorable to the party opposing the motion, there exists no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. O’Neill v. Dell Publishing Co., Inc., 630 F.2d 685, 686 & n.1 (1st Cir. 1980); Hahn v. Sargent, 523 F.2d 461, 464 (1st Cir. 1975), cert. denied, 425 U.S. 904, 96 S.Ct. 1495, 47 L.Ed.2d 54 (1976); Fed.R.Civ.P. 56(c); 10 C. Wright & A. Miller, Federal Practice and Procedure: Civil § 2716, at 430-32 (1973). As a threshold matter, we begin by examining whether federal or state law must be applied in evaluating appellants’ promissory estoppel claim. The powers of the FDIC are set forth in 12 U.S.C. § 1819. This section provides in pertinent part that the FDIC shall have the power [t]o sue and be sued, complain and defend, in any court of law or equity, State or Federal. All suits of a civil nature at common law or in equity to which the Corporation shall be a party shall be deemed to arise under the laws of the United States, and the United States district courts shall have original jurisdiction thereof, without regard to the amount in controversy ... except that any such suit to" }, { "docid": "19238228", "title": "", "text": "distinction between the several acts or to go to the extent of holding that the act of July 11 did not authorize a sale of the nitrate in question. The plaintiff contends that the sale was an auction sale, as the term is generally understood, and that when the auctioneer’s hammer fell on its bids they constituted acceptances by the United States, and completed binding contracts of sale, passing title to plaintiff. It may be conceded that at an ordinary auction sale the rule as stated by plaintiff generally prevails that “ as soon as the hammer falls ” the bargain is considered as concluded. But in sales under a statute such as we are considering, or in the absence of statutory authority with appropriate regulations governing the same, a sale of Government property is not effected by “ the fall of the hammer.” The applicable rule in such cases is more analogous to that governing judicial sales than to auction sales where the property is knocked down by an auctioneer to the highest bidder. At a judicial sale, though conducted to all appearances as an auction, at public outcry the bid is in legal effect only an offer to take the property at the price bid, and the acceptance or rejection of that offer is within the equitable discretion of the court. Such a sale is not final, nor can the purchaser have a legal title to the property he means to buy and has bid for until the sale is confirmed. Camden v. Mayhew, 129 U. S. 73, 82; Nalle v. Young, 160 U. S. 624, 637; Ballentyne v. Smith, 205 U. S. 285, 290. The sale in question was not a judicial sale, but the only authority for it must be found in the act of Congress- under which the Secretary proceeded. The statutes mentioned, which purport to authorize sales by the Secre tary, repose a power and authority in the exercise of which judgment and discretion must be used. He can say when a sale shall be made and pass upon the sufficiency of the price." }, { "docid": "22292429", "title": "", "text": "and Ferry then instituted the actions involved in this appeal. The numerous arguments advanced by Freeman and Ferry on this appeal present two basic issues: (1) whether Freeman and Ferry are entitled to the lands in question despite the fact that cash certificates have not been issued; and (2) whether it was an abuse of discretion, subject to review under section 10 of the Administrative Procedure Act, for the Secretary not to issue the cash certificates. With regard to the first issue, we hold that Freeman and Ferry are not entitled to any property or contractual rights in the lands in quéstion absent the issuance of the certificates. The Secretary has discretionary authority to decide whether “ * * * in his judgment, it would be proper * * * ” to expose for sale at public auction, for not less than appraised value, certain isolated and disconnected tracts and parcels of public land. Isolated Tracts Act, Rev.Stat. § 2455, as amended, 43 U.S.C. § 1171. The Act itself does not specify the procedure to be followed in selling these tracts. The Secretary may therefore promulgate regulations, pursuant to his general rule-making power, concerning how the sale may be had. Rev.Stat. § 2478, 43 U.S.C. § ' 1201. The rules promulgated with regard to these sales were, at the time of the bidding, as follows: “ * * * until the issuance of a cash certificate, the authorized officer may at any time determine that the lands should not be sold, the applicant or any bidder has no contractual or other rights as against the United States, and no action taken will create any contractual or other obligation of the United States.” Under this procedure the Secretary, in the exercise of his discretionary authority to. sell, merely invites bids from the public. The procedure established resembles an auction with reserve, since the Secretary reserves the right to reject any and all bids prior to the issuance of the certificate. See Restatement, Contracts § 27; Willcoxson v. United States, 114 U.S.App.D.C. 203, 207, 313 F.2d 884, 888. Freeman argues that the" }, { "docid": "22010496", "title": "", "text": "1375-1376, supra. . In Strickland v. Morton, supra, 519 F.2d 467, the language of the statute in question much more emphatically granted the Secretary of the Interior complete discretion to classify land for disposal or retention in federal ownership. Indeed the Court described the provision as “breath[ing] discretion at every pore.” 519 F.2d at 469. Ness Inv. Corp. v. United States Dept. of Agriculture, supra, 512 F.2d 706, involved the granting of a forest service special use permit under a statute which required no action whatsoever — all authority was permissive. See Ferry v. Udall, 336 F.2d 706, 712 (9 Cir. 1964), cert. denied, 381 U.S. 904, 85 S.Ct. 1449, 14 L.Ed.2d 286 (1965); United States v. Walker, 409 F.2d 477, 480 (9 Cir. 1969). Moreover, the statute specifically stated that permits were to be issued under such regulations “as [the Secretary] may make and upon such terms and conditions as he may deem proper.” 512 F.2d at 715. Finally, a forest service decision to reject all bids on the sale of timber was held unreviewable in Hi-Ridge Lumber Co. v. United States, supra, 443 F.2d 452. The statute there provided no standard at all on which to base review of the determination, and did provide an appeal procedure which the Court found to supply an adequate forum for the full consideration of protests such as the plaintiffs. . Section 706 provides: To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. The reviewing court shall— “(1) compel agency action unlawfully withheld or unreasonably delayed; and “(2) hold unlawful and set aside agency action, findings, and conclusions found to be— “(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; “(B) contrary to constitutional right, power, privilege, or immunity; “(C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; “(D) without observance of procedure required by law; “(E) unsupported by substantial evidence in a case" }, { "docid": "23697556", "title": "", "text": "of your conditions and assumptions.” On July 24, 1979, a Mr. George Kogan sent a written offer of $350,000 for the hotel to the FDIC, together with a $35,000 cash deposit. On August 27, 1979, the Board of Directors of the FDIC approved the sale to Kogan for $350,000. There is no evidence in the record that at this time appellants were able to meet the FDIC financing requirements. Based on these facts, the district court made the following findings: that the negotiations and sale to Kogan were not a sham or collusive; that the FDIC violated no rule or regulation by the sale to Kogan; that appellants did not acquire an exclusive right to purchase the property; that the FDIC made no representations that it would disclose to appellants the identity of competing bidders or the contents of their bids; and that appellants were aware at all times that the FDIC reserved the right to accept or reject any or all offers. Appellants argue that the grant of summary judgment was unwarranted because the FDIC made three promises to them that, when taken together, raise genuine and material factual issues as to whether an implied contract arose through promissory estoppel that bound the FDIC to inform appellants not only of competing offers but of internal agency decisions to negotiate for a price below that which the FDIC told Clemons was the lowest acceptable bid. These alleged promises include two representations by the FDIC in its November 9, 1978 letter to Clemons, stating that the FDIC retained the option to “reject any or all offers” but would “treat all parties fairly and equitably.” The third alleged promise was a verbal statement by the FDIC on June 7, 1979, informing appellants that $490,000 was the lowest bid acceptable to the FDIC. We will uphold the district court’s entry of summary judgment only if, taking the record in the light most favorable to the party opposing the motion, there exists no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. O’Neill v. Dell" }, { "docid": "18311381", "title": "", "text": "Administrative Procedure Act (5 U.S.C. § 1009). In the court below, motions were made by each side for summary judgment. Summary judgment was granted in favor of appellees, and the appellants have prosecuted this appeal. Appellants have specified three substantive points as grounds for reversal: (1) That it was error for the district court to hold that the Secretary of the Interior had discretion to accept or reject appellants’ offer until issuance of a cash certificate; (2) That it was error for the district court to find that the original sale was an auction with reserve; and (3) That if an auction with reserve the district court erred in not finding that appellants had met the reserve. In Ferry v. Udall, 336 F.2d 706 (9th Cir. 1964), we dealt with the proposed sale of an isolated tract under 43 U.S.C. § 1171. We answered each of appellants’ first two challenges with unmistakable clarity: (1) “The Isolated Tracts Act commits the decision to sell to the Secretary’s discretion.” 336 F.2d at 711. (2) “However, in this kind of auction, as in any other, the auction is deemed to be conducted with reserve, unless there is an express announcement or advertisement to the contrary before the auction takes place.” 336 F.2d at 710. The only distinction offered by appellants to differentiate this case from Ferry v. Udall is that appellants claim rights under 43 U.S.C. § 315f. By careful editing of that section appellants have misled only themselves. After classification of the land under 43 U.S.C. § 315f appellants clearly had a “preference right”, but that right was one against other applicants for the land, not against the United States. The district court noted this in its reference to The Yosemite Valley Case, 82 U.S. 77, 21 L.Ed. 82, (1872), as cited in Willcoxson v. United States, 114 U.S.App.D.C. 203, 313 F.2d 884 (1963). The district court was correct in finding that there is no conflict between § 315f and § 1171. Appellants obtained no legal right to the land (as distinguished from a right of preference over other claimants) which would" }, { "docid": "23697566", "title": "", "text": "§ 6-1, at 202 (2d ed. 1977). The recent Eighth Circuit case of Burst v. Adolph Coors Co., 650 F.2d 930 (8th Cir. 1981), dealt with a similar claim based on almost identical language. It held that a promise of “fair and equal consideration” to an applicant for a beer distributorship was not one which the applicant could reasonably interpret to be an offer and on which he could reasonably rely. Id. at 932. We hold that the alleged promises upon which appellants rely, taken togetherf and considered as a whole, were too indefinite and uncertain to sustain a claim of promissory estoppel. When the FDIC acts in its corporate capacity, it is vested with broad discretion to dispose of assets as it sees fit. See Diercks v. Federal Savings & Loan Ins. Corp., 528 F.2d 916, 916-17 (7th Cir. 1976); Edelman v. FHA, 382 F.2d 594, 598 (2d Cir. 1967). Appellants made no offer accompanied by evidence that they were able to buy the property. They never advanced beyond the position of a hopeful buyer with little or no realistic financing resources. The offer accepted by the FDIC was unconditional and accompanied by a cash deposit of 10% of the purchase price. Given its broad discretion to dispose of assets, and under fundamental tenets of contract law, the FDIC was free to sell the hotel at whatever price it deemed prudent and practical. Appellants suggest that, if they were given the opportunity to engage in discovery, they could uncover facts that would support their claims. No concrete examples are given of what discovery would disclose. 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 provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him. Fed.R.Civ.P. 56(e). In light of the undisputed facts, we cannot conceive what discovery" } ]

[ { "docid": "22081549", "title": "", "text": "for the Commission); Bass v. United States, 163 F. Supp. 1, 4 (W. D. Va. 1958), aff’d per curiam, 358 U. S. 333 (same); cf. United States v. Detroit & Cleveland Nav. Co., 326 U. S. 236, 240-241. In Schaffer Transp. Co. v. United States, 355 U. S. 83, 86 n. 3, 90, the Court deliberately refrained from guiding the Commission’s discretion in evaluating the relative advantages of competing carriers. Determinations by the Commission which Congress has committed to its judgment must be judicially respected because such exercises of administrative discretion are beyond the competence or jurisdiction of courts. Their power of review is confined to correction of Commission action that transcends the authority given it by Congress, including of course disregard by the Commission of procedural proprieties resulting in arbitrary use of its powers. In the present case, no claim can be made that the Commission’s findings are unsupported by substantial evidence. United States v. Pan American Corp., 304 U. S. 156, 158; cf. Universal Camera Corp. v. Labor Board, 340 U. S. 474; see Administrative Procedure Act, § 10 (e), 60 Stat. 237, 243 (1946), 5 U. S. C. § 1009 (e). The Commission’s detailed report negatives this, as it would a claim that the Commission neglected to make requisite findings. Of course the provisions of the National Transportation Policy must be applied by the Commission to each application, see Schaffer Transp. Co. v. United States, 355 U. S. 83, 88, but they “represent, at best, a compromise between stability and flexibility of industry conditions, each alleged to be in the national interest, and we can only look to see if the Commission has applied its familiarity with transportation problems to these conflicting considerations.” American Trucking Assns. v. United States, 344 U. S. 298, 314; see Interstate Commerce Commission v. Parker, 326 U. S. 60, 66. The Commission’s action here certainly does not fall short of that standard. See 79 M. C. C., at 705-706. An order of the Commission cannot stand, it is true, if we cannot tell what has been decided or if it leaves unclear" } ]

[ { "docid": "22642136", "title": "", "text": "several motivations or purposes and weighing the respective interests of employers and employees. And I think that is the standard the Court applies to the bargaining lockout in this case, but without heeding the fact the balance is for the Board to strike in the first instance. The Board’s role in this area is a “delicate task, reflected in part in decisions of this Court, of weighing the interests of employees in concerted activity against the interest of the employer in operating his business in a particular manner.” Erie Resistor, 373 U. S., at 229. Its decisions are not immune from attack in this Court. Its findings must be supported by substantial evidence and its explication must fit the case before it, be adequate, and be based upon the policy of the Act and an acceptable reading of industrial realities. I would reverse the Board’s decision here because it has not articulated a rational connection between the facts found and the decision made. “This is not to deprecate, but to vindicate (see Phelps Dodge Corp. v. Labor Board, 313 U. S. 177, 197), the administrative process, for the purpose of the rule is to avoid 'propel[ling] the court into the domain which Congress has set aside exclusively for the administrative agency.’ 332 U. S., at 196.” Burlington Truck Lines v. United States, 371 U. S. 156, 169. It is to ask the Board to show that it has exercised the discretion which it has under the Act. Such insistence on a reasoned decision is a foremost function of judicial review, especially where conflicting significant interests are sought to be accommodated. Compare Securities & Exchange Comm’n v. Chenery Corp., 318 U. S. 80, with Securities & Exchange Comm’n v. Chenery Corp., 332 U. S. 194. But this function is not to reject the Board’s reasoned assessment of the impact of a particular economic weapon on employee rights. It is certainly not to restrike the balance which the Board has reached. Mr. Justice Goldberg, with whom The Chief Justice joins, concurring in the result. I concur in the Court’s conclusion that the" }, { "docid": "22364272", "title": "", "text": "order. “[T]he orderly functioning of the process of review requires that the grounds upon which the administrative agency acted be clearly disclosed and adequately sustained.” Chenery, supra, at 94. Burlington Truck Lines, supra, at 169. A court cannot label a practice “unfair” under 15 U. S. C. § 45 (a)(1). It can only affirm or vacate an agency’s judgment to that effect. “If an order is valid only as a determination of policy or judgment which the agency alone is authorized to make and which it .has not made, a judicial judgment cannot be made to do service for an administrative judgment.” Chenery, supra, at 88. And as was repeated on other occasions: “For the courts to substitute their or counsel’s discretion for that of the Commission is incompatible with the orderly functioning of the process of judicial review. This is not to deprecate, but to vindicate (see Phelps Dodge Corp. v. Labor Board, 313 U. S. 177, 197), the administrative process, for the purpose of the rule is to avoid ‘propel [ling] the court into the domain which Congress has set aside exclusively for the administrative agency.’ 332 U. S., at 196.” Burlington Truck Lines, supra, at 169. In these circumstances, because the Court of Appeals’ judgment that S&H’s practices did not violate either the letter or the spirit of the antitrust laws was not attacked and remains undisturbed here, and because the Comm is sion’s order could not properly be sustained on other grounds, the judgment of the Court of Appeals setting aside the Commission’s order is affirmed. The Court of Appeals erred, however, in its construction of § 5; had it entertained the proper view of the reach of the section, the preferable course would have been to remand the case to the Commission for further proceedings. Chenery, supra, at 95; Burlington, supra, at 174; FPC v. United Gas Pipe Line Co., 393 U. S. 71 (1968). Accordingly, the judgment of the Court of Appeals is modified to this extent and the case is remanded to the Court of Appeals with instructions to remand it to the" }, { "docid": "22986562", "title": "", "text": "313 U. S. 177, 197; Burlington Truck Lines v. United States, 371 U. S. 156; Labor Board v. Metropolitan Ins. Co., 380 U. S. 438. Atlantic does not here dispute the fact that it engaged in practices to coerce its dealers into purchasing the sales-commission-sponsored TBA. Moreover, I agree with the Court that the record is sufficient to support the finding that Goodyear participated in these coercive practices. Ante, at 373-375. Therefore, I would have no difficulty in affirming the Commission’s orders if the Commission had ordered Atlantic and Goodyear to cease using sales-commission TBA plans as a remedy necessary to cure these coercive practices and prevent their recurrence. See United States v. Loew’s, Inc., 371 U. S. 38, 53. The Commission’s opinion however, does not appear to rest these orders on such a basis. Rather, it considered Atlantic’s coercive activities “as mere symptoms of a more fundamental restraint of trade inherent in the sales commission itself.” 58 F. T. C. 309, 348. (Emphasis added.) Apparently it was because the Commission believed that Atlantic’s participation in a sales-commission plan inherently restricted its dealers’ free choice in TBA purchasing that it enjoined Atlantic and Goodyear from entering into any sales-commission plans, with each other or others. It is on this basis that the Commission action must be reviewed. The propriety of agency action must be judged “solely by the grounds invoked by the agency,” Securities Comm’n v. Chenery Corp., 332 U. S. 194, 196. See Labor Board v. Metropolitan Ins. Co., supra; Burlington Truck Lines v. United States, supra, at 168. When looked at on this basis, however, it becomes obvious that the Commission has not supported its decision with adequate findings and conclusions, set forth with sufficient clarity, so that proper review is possible. This is seen when the Commission’s opinion is analyzed and read in conjunction with its orders, particularly its order enjoining Goodyear from participating in sales-commission arrangements with any oil company. Apparently the Commission’s conclusion that the Atlantic-Goodyear sales-commission plan operates as an inherently unfair method of competition was based upon a determination that the Atlantic dealers" }, { "docid": "22700851", "title": "", "text": "S. 534, 546 (1942). The delegation to the Commission is not, of course, unbounded, and it is the duty of a reviewing court to determine whether the course followed by the Commission is consistent with its mandate from Congress. See ICC v. Inland Waterways Corp., 319 U. S. 671, 691 (1943); Burlington Truck Lines, Inc. v. United States, 371 U. S. 156, 167-169 (1962). Cf. NLRB v. Wyman-Gordon Co., 394 U. S. 759, 767 (1969) (opinion of Fortas, J.). But a simple examination of the order being reviewed is frequently insufficient to reveal the policies that the Commission is pursuing. Thus, this Court has relied on the “simple but fundamental rule of administrative law,” SEC v. Chenery Corp., 332 U. S. 194, 196 (1947), that the agency must set forth clearly the grounds on which it acted. For “[w]e must know what a decision means before the duty becomes ours to say whether it is right or wrong.” United States v. Chicago, M., St. P. & P. R. Co., 294 U. S. 499, 511 (1935). See also Phelps Dodge Corp. v. NLRB, 313 U. S. 177, 197 (1941); SEC v. Chenery Corp., 318 U. S. 80, 94 (1943). And we must rely on the rationale adopted by the agency if we are to guarantee the integrity of the administrative process. Id., at 88. Cf. NLRB v. Metropolitan Life Ins. Co., 380 U. S. 438, 443-444 (1965). Only in that way may we “guard against the danger of sliding unconsciously from the narrow confines of law into the more spacious domain of policy.” Phelps Dodge Corp. v. NLRB, supra, at 194. An agency “may articulate the basis of its order by reference to other decisions,” NLRB v. Metropolitan Life Ins. Co., supra, at 443 n. 6. For “[ajdjudicated cases may and do, of course, serve as vehicles for the formulation of agency policies, which are applied and announced therein. See H. Friendly, The Federal Administrative Agencies 36-52 (1962). They generally provide a guide to action that the agency may be expected to take in future cases. Subject to the qualified role" }, { "docid": "22750913", "title": "", "text": "possible shortcomings of § 204 procedures, to the advantages of certification, nor to the serious objections to the latter. As we shall presently show, these objections are particularly important in the present context and they should have been taken into account. Appellants’ position is and was that the refusals to serve could be terminated through complaint procedures and thus the need for additional service obviated. The Commission was, as indicated, unresponsive to these arguments in its order, deeming that the availability of the other remedy “[did] not alter the situation.” This was error. Commission counsel now attempt to justify the Commission’s “choice” of remedy on the ground that a cease-and-desist order would have been ineffective. The short answer to this attempted justification is that the Commission did not so find. Securities & Exchange Comm’n v. Chenery Corp., 332 U. S. 194, 196. The courts may not accept appellate counsel’s post hoc rationalizations for agency action; Chenery requires that an agency’s discretionary order be upheld, if at all, on the same basis articulated in the order by the agency itself: “[A] simple but fundamental rule of administrative law . . . is . . . that a reviewing court, in dealing with a determination or judgment which an administrative agency alone is authorized to make, must judge the propriety of such action solely by the grounds invoked by the agency. If those grounds are inadequate or improper, the court is powerless to affirm the administrative action . . . .” Ibid. For the courts to substitute their or counsel’s discretion for that of the Commission is incompatible with the orderly functioning of the process of judicial review. This is not to deprecate, but to vindicate (see Phelps Dodge Corp. v. Labor Board, 313 U. S. 177, 197), the administrative process, for the purpose of the rule is to avoid “propel [ling] the court into the domain which Congress has set aside exclusively for the administrative agency.” 332 U. S., at 196. The second and longer answer to the attempted justification is that there is not substantial evidence of record upon which" }, { "docid": "22549607", "title": "", "text": "194, and has repeatedly held that the Board may find some conduct sufficiently destructive of concerted activities and union membership as to fall within the broad language of §§ 8 (a)(1) and (3) notwithstanding that the employer has a business justification for his actions. Republic Aviation Corp. v. Labor Board, 324 U. S. 793; Labor Board v. Truck Drivers Union, 353 U. S. 87 (Buffalo Linen); Labor Board v. Erie Resistor Corp., 373 U. S. 221; Labor Board v. Burnup & Sims, Inc., 379 U. S. 21. The Board holds that a lockout together with the hiring of replacements by the nonstruck employers of a multiemployer bargaining unit violates §§ 8 (a)(1) and (3). The Court decides that this holding is an “unauthorized assumption by an agency of major policy decisions properly made by Congress,” ante, at 292, and that the “proper balance to be struck between conflicting interests” requires affirmance of the denial of enforcement of the Board’s order. This decision represents a departure from the many decisions of this Court holding that the Board has primary responsibility to weigh the interest of employees in concerted activities against that of the employer' in operating his business, Phelps Dodge, 313 U. S. 177; Buffalo Linen, 353 U. S. 87, 95; Erie Resistor, 373 U. S. 221; Burnup & Sims, 379 U. S. 21. The Board’s discretion under these sections is not without substantial limits imposed by the policy of the Act and the requirement that the Board “disclose the basis of its order” and “give clear indication that it has exercised the discretion with which Congress has empowered it.” Phelps Dodge, 313 U. S. 177, 197; cf. Burlington Truck Lines v. United States, 371 U. S. 156, 168. But in my view the Board has set out the basis and requisite findings for its order in this case and has not exceeded its power in finding the lockout and replacement of union employees an unfair labor practice. The Court reasons that Buffalo Linen gave the non-struck employer in a multiemployer unit a “right” to lock out whenever a member of" }, { "docid": "22986573", "title": "", "text": "present evidence of coercion, are they illegal for oil companies which do not have the same relation with their dealers as Atlantic has with its dealers? Are they illegal for oil companies which do not have the same market position as Atlantic? Has the Commission drawn a distinction between sales-commission and purchase-resale TBA promotion plans, condemning the former but ap-approving the latter? ' If it has, is there a rational basis, consistent with the policies of § 5, for such a distinction? All of these questions appear to me to be inadequately answered by the Commission’s opinion. I do not mean to imply what the answers to any of these questions should be. Congress has entrusted the initial and primary responsibility for answering them to the Commission. However, as this Court has recognized, “We must know what a decision means before the duty becomes ours to say whether it is right or wrong.” United States v. Chicago, M., St. P. & P. R. Co., supra, at 511. “The administrative process will best be vindicated by clarity in its exercise.” Phelps Dodge Corp. v. Labor Board, supra, at 197. When the Commission “exercises the discretion given to it by Congress, it must ‘disclose the basis of its order’ and ‘give clear indication that it has [properly] exercised the discretion with which Congress has empowered it.’ ” Labor Board v. Metropolitan Ins. Co., supra, at 443. See Burlington Truck Lines v. United States, supra, at 167-169: Administrative agency action is not to be sustained where “its explication is . . . inadequate, irrational or arbitrary . . . .” Labor Board v. Erie Resistor Corp., 373 U. S. 221, 236. Moreover, if in these and the related cases the Commission is laying down the broad rule that all sales-commission TBA promotion arrangements in the oil industry are per se unfair methods of competition, such a rule has neither been clearly articulated nor supported with adequate economic analysis. In White Motor Co. v. United States, 372 U. S. 253, this Court reversed a district court that had developed a per se rule of" }, { "docid": "22551056", "title": "", "text": "197, 198 (1972), the Board distinguished its prior cases on the ground, inter alia, that “none of those cases presented a situation where an employee or his representative had been disciplined or discharged for requesting, or insisting on, union representation in the course of an interview.” Yet, soon after- wards the Board extended the right without explanation to situations where no discipline or discharge resulted. Mobil Oil Corp., 196 N. L. R. B. 1052 (1972); J. Weingarten Inc., 202 N. L. R. B. 446 (1973). The tortured history and inconsistency of the Board’s efforts in this difficult area suggest the need for an explanation by the Board of why the new rule was adopted. However, a much more basic policy demands that the Board explain its new construction. The integrity of the administrative process requires that “[w]hen the Board so exercises the discretion given to it by Congress, it must 'disclose the basis of its order’ and 'give clear indication that it has exercised the discretion with which Congress has empowered it.’ Phelps Dodge Corp. v. Labor Board, 313 U. S. 177, 197.” NLRB v. Metropolitan Ins. Co., 380 U. S. 438, 443 (1965). Here, there may be very good reasons for adopting the new rule, and the Court suggests some. See ante, at 260-261; 262-264; 265 n. 10. But these reasons are not to be found in the Board’s cases. In Metropolitan Ins. Co., supra, at 444, we made it clear that “ 'courts may not accept appellate counsel’s post hoc rationalizations for agency action.’ ” The Court today gives lip service to the rule that courts are not “ 'to stand aside and rubber stamp’ ” Board determinations. Ante, at 266. I would therefore remand the cases to the Court of Appeals with directions to remand to the Board so that it may enlighten us as to the reasons for this marked change in policy rather than leave with this Court the burden of justifying the change for reasons which we arrive at by inference and surmise. [This opinion applies also to No. 73-765, International Ladies’ Garment Workers’" }, { "docid": "8789219", "title": "", "text": "change of policy certified a single office unit of the insurance company as an appropriate unit. The Court of Appeals for the First Circuit refused to enforce the Order on the grounds that because of the Board’s failure to articulate specific reasons for its unit determination, the Board’s apparently inconsistent determination of appropriate units of respondent’s employees in other cities and regions, its failure to discuss what weight, if any, it gave to the factor of the extent of unit organization, and the fact that in these cases the Board consistently certified the unit requested by the Union, the Court could only conclude that the Board had regarded the extent of Union organization as controlling in violation of the provisions of Section 9(c) (5) of the Act. 327 F.2d 906. On appeal the Supreme Court held, 380 U.S., at page 442, 85 S.Ct., at page 1063: “We agree with the Court of Appeals that the enforcing court should not overlook or ignore an invasion of the § 9(c) (5) command. We further agree that in determining whether or not there has been such an evasion, the results in other recent decisions of the Board are relevant. We cannot, however, agree that the only possible conclusion here is that the Board has violated § 9(c) (5). * * * On the other hand, due to the Board’s lack of articulated reasons for the decisions in and distinctions among these cases, the Board’s action here cannot be properly reviewed. When the Board so exercises the discretion given to it by Congress, it must ‘disclose the basis of its order’ and ‘give clear indication that it has exercised the discretion with which Congress has empowered it.’ Phelps Dodge Corp. v. National Labor Relations Board, 313 U.S. 177, 197, 61 S.Ct. 845, 854, 85 L.Ed. 1271. See Burlington Truck Lines v. United States, 371 U.S. 156, 167-169, 83 S.Ct. 239 245-246, 9 L.Ed.2d 207; Interstate Commerce Comm’n v. J-T Transport Co., 368 U.S. 81, 93, 82 S.Ct. 204, 211, 7 L.Ed.2d 147. Although Board counsel in his brief and argument before this Court, has" }, { "docid": "22986574", "title": "", "text": "clarity in its exercise.” Phelps Dodge Corp. v. Labor Board, supra, at 197. When the Commission “exercises the discretion given to it by Congress, it must ‘disclose the basis of its order’ and ‘give clear indication that it has [properly] exercised the discretion with which Congress has empowered it.’ ” Labor Board v. Metropolitan Ins. Co., supra, at 443. See Burlington Truck Lines v. United States, supra, at 167-169: Administrative agency action is not to be sustained where “its explication is . . . inadequate, irrational or arbitrary . . . .” Labor Board v. Erie Resistor Corp., 373 U. S. 221, 236. Moreover, if in these and the related cases the Commission is laying down the broad rule that all sales-commission TBA promotion arrangements in the oil industry are per se unfair methods of competition, such a rule has neither been clearly articulated nor supported with adequate economic analysis. In White Motor Co. v. United States, 372 U. S. 253, this Court reversed a district court that had developed a per se rule of antitrust liability without regard to an analysis of the economics of the situation. The Court stated, “This is the first case involving a territorial restriction in a vertical arrangement; and we know too little of the actual impact of both that restriction and the one respecting customers to reach a conclusion on the bare bones of the documentary evidence before us.” 372 U. S., at 261. Similarly in this case, the Commission has not provided us with a factual record or analysis sufficient to reach the conclusion that sales-commission plans are per se illegal in the oil industry. In condemning such arrangements the Commission would be upsetting long-established practices prevalent in the oil industry. It would be affecting the entire oil industry, small companies as well as large, not just the particular parties involved in these cases. Finally, it must be remembered that the Commission is an expert administrative body set up by Congress in order to provide adequate economic fact finding and analyses of complicated problems such as the ones here presented. The integrity" }, { "docid": "22750912", "title": "", "text": "its discretion under § 207 (a) within the bounds expressed by the standard of “public convenience and necessity.” Compare id., at 91. And for the courts to determine whether the agency has done so, it must “disclose the basis of its order” and “give clear indication that it has exercised the discretion with which Congress has empowered it.” Phelps Dodge Corp. v. Labor Board, 313 U. S. 177, 197. The agency must make findings that support its decision, and those findings must be supported by substantial evidence. Interstate Commerce Comm’n v. J-T Transport Co., 368 U. S. 81, 93; United States v. Carolina Carriers Corp., 315 U. S. 475, 488-489 ; United States v. Chicago, M., St. P. & P. R. Co., 294 U. S. 499, 511. Here the Commission made no findings specifically directed to the choice between two vastly different remedies with vastly different consequences to the carriers and the public. Nor did it articulate any rational connection between the facts found and the choice made. The Commission addressed itself neither to the possible shortcomings of § 204 procedures, to the advantages of certification, nor to the serious objections to the latter. As we shall presently show, these objections are particularly important in the present context and they should have been taken into account. Appellants’ position is and was that the refusals to serve could be terminated through complaint procedures and thus the need for additional service obviated. The Commission was, as indicated, unresponsive to these arguments in its order, deeming that the availability of the other remedy “[did] not alter the situation.” This was error. Commission counsel now attempt to justify the Commission’s “choice” of remedy on the ground that a cease-and-desist order would have been ineffective. The short answer to this attempted justification is that the Commission did not so find. Securities & Exchange Comm’n v. Chenery Corp., 332 U. S. 194, 196. The courts may not accept appellate counsel’s post hoc rationalizations for agency action; Chenery requires that an agency’s discretionary order be upheld, if at all, on the same basis articulated in the order" }, { "docid": "22642137", "title": "", "text": "v. Labor Board, 313 U. S. 177, 197), the administrative process, for the purpose of the rule is to avoid 'propel[ling] the court into the domain which Congress has set aside exclusively for the administrative agency.’ 332 U. S., at 196.” Burlington Truck Lines v. United States, 371 U. S. 156, 169. It is to ask the Board to show that it has exercised the discretion which it has under the Act. Such insistence on a reasoned decision is a foremost function of judicial review, especially where conflicting significant interests are sought to be accommodated. Compare Securities & Exchange Comm’n v. Chenery Corp., 318 U. S. 80, with Securities & Exchange Comm’n v. Chenery Corp., 332 U. S. 194. But this function is not to reject the Board’s reasoned assessment of the impact of a particular economic weapon on employee rights. It is certainly not to restrike the balance which the Board has reached. Mr. Justice Goldberg, with whom The Chief Justice joins, concurring in the result. I concur in the Court’s conclusion that the employer’s lockout in this case was not a violation of either § 8 (a) (1) or § 8 (a) (3) of the National Labor Relations Act, 49 Stat. 452, as amended, 29 U. S. C. §§ 158 (a)(1) and (3) (1958 ed.), and I therefore join in the judgment reversing the Court of Appeals. I reach this result not for the Court’s reasons, but because, from the plain facts revealed by the record, it is crystal clear that the employer’s lockout here was justifiable. The very facts recited by the Court in its opinion show that this employer locked out its employees in the face of a threatened strike under circumstances where, had the choice of timing been left solely to the unions, the employer and its customers would have been subject to economic injury over and beyond the loss of business normally incident to a strike upon the termination of the collective bargaining agreement. A lockout under these circumstances has been recognized by the Board itself to be justifiable and not a violation of" }, { "docid": "11497607", "title": "", "text": "to make certain returns with regard to reserves that were incorrect, aren't you? Is that what you are trying to say? MR. HARWOOD: That was one of the subjects we are investigating, yes. THE COURT: What else are you investigating? MR. HARWOOD: Your Honor, the resolution states that we are engaged— THE COURT: Don’t tell me what the resolution says. Tell me what you are trying to do. I don’t understand the resolution. App. II at 399a-400a. . When, as here, the District Court decides not to refuse enforcement because of an insufficient statement of purpose, the court must determine for itself the agency’s actual purpose. In making this essentially factual determination the District Court may look to the agency’s statement of purpose (here the FTC’s authorizing resolution quoted in majority opinion at p. of 180 U.S.App.D.C., at p. 868 of 555 F.2d) and any other relevant evidence, but neither the District Court nor this court may rely on its own or counsel’s post hoc rationalizations. As the Supreme Court explained in Burlington Truck Lines, Inc. v. United States, The courts may not accept appellate counsel’s post hoc rationalizations for agency action; [SEC v. Chenery Corp., 332 U.S. 194, 196, 67 S.Ct. 1575, 91 L.Ed. 1995 (1947)] requires that an agency’s discretionary order be upheld, if at all, on the same basis articulated in the order by the agency itself: “[A] simple but fundamental rule of administrative law . . . is . . . that a reviewing court, in dealing with a determination or judgment which an administrative agency alone is authorized to make, must judge the propriety of such action solely by the grounds invoked by the agency. If those grounds are inadequate or improper, the court is powerless to affirm the administrative action . . . .” Ibid. For the courts to substitute their or counsel’s discretion for that of the Commission is incompatible with the orderly functioning of the process of judicial review. This is not to deprecate, but to vindicate (see Phelps Dodge Corp. v. Labor Board, 313 U.S. 177, 197, 61 S.Ct. 845, 853," }, { "docid": "22758515", "title": "", "text": "— of course it must not be set aside because the reviewing court might have made a different determination were it empowered to do so. But if the action is based upon a determination of law as to which the reviewing authority of the courts does come into play, an order may not stand if the agency has misconceived the law. In either event the orderly functioning of the process of review requires that the grounds upon which the administrative agency acted be clearly disclosed and adequately sustained.” Chenery’s teachings are applicable here. The Regional Office that issued the order under review refused to consider the merits of the arguments against the Excelsior rule which were raised by Wyman-Gordon on the ground that they had been rejected by the Board in the Excelsior case itself: “[I]t is well known that Excelsior issued only after oral argument and briefs, including amicus curiae briefs by interested parties. The Board has considered arguments such as those made here and nevertheless established the requirement embodied in Excelsior and the undersigned [Acting Regional Director] is bound by it.” Appendix 33. The Board denied review of this decision on the ground that “it raises no substantial issues warranting review.” Appendix 35. Since the major reason the Board has given in support of its order is invalid, Chenery requires remand. See also Bell v. United States, 366 U. S. 393, 412-413 (1961) ; Burlington Truck Lines v. United States, 371 U. S. 156, 167-168 (1962); cf. Phelps Dodge Corp. v. NLRB, 313 U. S. 177, 196-197 (1941). The prevailing opinion explains its departure from our leading decisions in this area on the ground that: “There is not the slightest uncertainty as to the outcome of [this] proceeding” on remand. Ante, n. 6, at 767. I can perceive no justification whatever for this assertion. Since the Excelsior rule was invalidly promulgated, it is clear that, at a minimum, the Board is obliged on remand to recanvass all of the competing considerations before it may properly announce its decision in this case. We cannot know what the outcome of" }, { "docid": "22364271", "title": "", "text": "have evidentiary support in the record. But even if the findings were considered to be adequate foundation for an opinion and order resting on unfair consequences to consumer interests, they still fail to sustain the Commission action; for the Commission has not rendered an opinion which, by the route suggested, links its findings and its conclusions. The opinion is barren of any attempt to rest the order on its assessment of particular competitive practices or considerations of consumer interests independent of possible or actual effects on competition. Nor were any standards for doing so referred to or developed. Our view is that “the considerations urged here in support of the Commission’s order were not those upon which its action was based.” SEC v. Chenery Corp., 318 U. S. 80, 92 (1943). At the least the Commission has failed to “articulate any rational connection between the facts found and the choice made.” Burlington Truck Lines v. United States, 371 U. S. 156, 168 (1962). The Commission’s action being flawed in this respect, we cannot sustain its order. “[T]he orderly functioning of the process of review requires that the grounds upon which the administrative agency acted be clearly disclosed and adequately sustained.” Chenery, supra, at 94. Burlington Truck Lines, supra, at 169. A court cannot label a practice “unfair” under 15 U. S. C. § 45 (a)(1). It can only affirm or vacate an agency’s judgment to that effect. “If an order is valid only as a determination of policy or judgment which the agency alone is authorized to make and which it .has not made, a judicial judgment cannot be made to do service for an administrative judgment.” Chenery, supra, at 88. And as was repeated on other occasions: “For the courts to substitute their or counsel’s discretion for that of the Commission is incompatible with the orderly functioning of the process of judicial review. This is not to deprecate, but to vindicate (see Phelps Dodge Corp. v. Labor Board, 313 U. S. 177, 197), the administrative process, for the purpose of the rule is to avoid ‘propel [ling] the court" }, { "docid": "8789221", "title": "", "text": "rationalized the different unit determination in the variant factual situations of these cases on criteria other than a controlling effect being given to the extent of organization, the integrity of the administration process requires that ‘courts may not accept appellate counsel’s post hoc rationalizations for agency action * * *.' Burlington Truck Lines v. United States, supra, 371 U.S. at 168, 83 S.Ct. at 246; see Securities & Exchange Comm’n v. Chenery Corp., 332 U.S. 194, 196, 67 S.Ct. 1575, 1577, 91 L.Ed. 1995. For reviewing courts to substitute counsel’s rationale or their discretion for that of the Board is incompatible with the orderly function of the process of judicial review.” (Footnotes omitted). Certiorari had been granted in the above case because of a conflict between the Circuit Courts of Appeals on the same unit determination questions involving insurance companies. All were remanded to the Circuits for remand to the National Labor Relations Board for further proceedings consistent with this opinion. See Metropolitan Life Ins. Co. v. N. L. R. B., 380 U.S. 523, 85 S.Ct. 1325, 14 L.Ed.2d 265, reversing 328 F.2d 820 (3rd Cir.); Western & Southern Life Ins. Co. v. N. L. R. B., 380 U.S. 522, 85 S.Ct. 1326, 14 L.Ed.2d 265, reversing 328 F.2d 891 (3rd Cir.); Metropolitan Life Insurance Co. v. N. L. R. B., 380 U.S. 525, 85 S.Ct. 1326, 14 L.Ed.2d 265, reversing 330 F.2d 62 (6th Cir.). Examining the determination of the Board in the instant case, we find a striking parallel. The Regional Director made his determination on the appropriateness of a single unit on the basis of (1) community of interest, (2) geographical separation, (3) substantial authority of plant managers, (4) little employee interchange between plants, and (5) no history of collective bargaining in any plant and no organization seeking broader based representation. All of these are, in themselves valid reasons, as they were so held by this court in Metropolitan Life Insurance Co. v. N. L. R. B., 328 F.2d 820. But here, as in the Metropolitan Life Insurance Company cases, the Board makes no attempt to explain" }, { "docid": "22215907", "title": "", "text": "order a violator “to take such affirmative action ... as will effectuate the policies of [the Act].” 29 U. S. C. § 160 (c); see, e. g., Golden State Bottling Co. v. NLRB, 414 U. S. 168, 176 (1973). This case does not present the exceptional situation in which crystal-clear Board error renders a remand an unnecessary formality. See NLRB v. Express Publishing Co., 312 U. S. 426 (1941); Communications Workers v. NLRB, 362 U. S. 479 (1960). For it cannot be gainsaid that the finding here that Heck’s asserted at least “debatable” defenses to the unfair labor practice charges, whereas objections to the representation election in Tiidee were “patently frivolous,” might have been viewed by the Board as putting the question of remedy in a different light. We cannot say that the Board, in performing its appointed function of balancing conflicting interests, could not reasonably decide that where “debatable” defenses are asserted, the public and private interests in affording the employer a determination of his “debatable” defenses, unfettered by the prospect of bearing his adversary’s litigation costs, outweigh the public interest in uncrowded dockets. There are, however, facial inconsistencies between the Board’s opinion in this case and the Tiidee decision, and the Court of Appeals therefore correctly declined to resolve those inconsistencies by substituting Board counsel’s rationale for that of the Board. 155 U. S. App. D. C., at 107 n. 8, 476 F. 2d, at 552 n. 8; see NLRB v. Metropolitan Life Ins. Co., 380 U. S. 438, 444 (1965); Burlington Truck Lines v. United States, 371 U. S. 156, 168-169 (1962). The integrity of the administrative process demands no less than that the Board, not its legal representative, exercise the discretionary judgment which Congress has entrusted to it. But since a plausible reconciliation by the Board of the seeming inconsistency was reasonably possible, it was “incompatible with the orderly function of the process of judicial review,” NLRB v. Metropolitan Life Ins. Co., supra, at 444, for the Court of Appeals to enlarge the Heck’s order without first affording the Board an opportunity to clarify the inconsistencies." }, { "docid": "8789220", "title": "", "text": "determining whether or not there has been such an evasion, the results in other recent decisions of the Board are relevant. We cannot, however, agree that the only possible conclusion here is that the Board has violated § 9(c) (5). * * * On the other hand, due to the Board’s lack of articulated reasons for the decisions in and distinctions among these cases, the Board’s action here cannot be properly reviewed. When the Board so exercises the discretion given to it by Congress, it must ‘disclose the basis of its order’ and ‘give clear indication that it has exercised the discretion with which Congress has empowered it.’ Phelps Dodge Corp. v. National Labor Relations Board, 313 U.S. 177, 197, 61 S.Ct. 845, 854, 85 L.Ed. 1271. See Burlington Truck Lines v. United States, 371 U.S. 156, 167-169, 83 S.Ct. 239 245-246, 9 L.Ed.2d 207; Interstate Commerce Comm’n v. J-T Transport Co., 368 U.S. 81, 93, 82 S.Ct. 204, 211, 7 L.Ed.2d 147. Although Board counsel in his brief and argument before this Court, has rationalized the different unit determination in the variant factual situations of these cases on criteria other than a controlling effect being given to the extent of organization, the integrity of the administration process requires that ‘courts may not accept appellate counsel’s post hoc rationalizations for agency action * * *.' Burlington Truck Lines v. United States, supra, 371 U.S. at 168, 83 S.Ct. at 246; see Securities & Exchange Comm’n v. Chenery Corp., 332 U.S. 194, 196, 67 S.Ct. 1575, 1577, 91 L.Ed. 1995. For reviewing courts to substitute counsel’s rationale or their discretion for that of the Board is incompatible with the orderly function of the process of judicial review.” (Footnotes omitted). Certiorari had been granted in the above case because of a conflict between the Circuit Courts of Appeals on the same unit determination questions involving insurance companies. All were remanded to the Circuits for remand to the National Labor Relations Board for further proceedings consistent with this opinion. See Metropolitan Life Ins. Co. v. N. L. R. B., 380 U.S. 523, 85" }, { "docid": "22215908", "title": "", "text": "adversary’s litigation costs, outweigh the public interest in uncrowded dockets. There are, however, facial inconsistencies between the Board’s opinion in this case and the Tiidee decision, and the Court of Appeals therefore correctly declined to resolve those inconsistencies by substituting Board counsel’s rationale for that of the Board. 155 U. S. App. D. C., at 107 n. 8, 476 F. 2d, at 552 n. 8; see NLRB v. Metropolitan Life Ins. Co., 380 U. S. 438, 444 (1965); Burlington Truck Lines v. United States, 371 U. S. 156, 168-169 (1962). The integrity of the administrative process demands no less than that the Board, not its legal representative, exercise the discretionary judgment which Congress has entrusted to it. But since a plausible reconciliation by the Board of the seeming inconsistency was reasonably possible, it was “incompatible with the orderly function of the process of judicial review,” NLRB v. Metropolitan Life Ins. Co., supra, at 444, for the Court of Appeals to enlarge the Heck’s order without first affording the Board an opportunity to clarify the inconsistencies. It is a guiding principle of administrative law, long recognized by this Court, that “an administrative determination in which is imbedded a legal question open to judicial review does not impliedly foreclose the administrative agency, after its error has been corrected, from enforcing the legislative policy committed to its charge.” FCC v. Pottsville Broadcasting Co., 309 U. S. 134, 145 (1940); see Fly v. Heitmeyer, 309 U. S. 146, 148 (1940); FTC v. Morton Salt Co., 334 U. S. 37, 55 (1948); FPC v. Idaho Power Co., 344 U. S. 17, 20 (1952); Konigs- berg v. State Bar, 366 U. S. 36, 43-44 (1961). Thus, when a reviewing court concludes that an agency invested with broad discretion to fashion remedies has apparently abused that discretion by omitting a remedy justified in the court’s view by the factual circumstances, remand to the agency for reconsideration, and not enlargement of the agency order, is ordinarily the reviewing court’s proper course. Application of that general principle in this case best respects the congressional scheme investing the Board and" }, { "docid": "11497608", "title": "", "text": "Inc. v. United States, The courts may not accept appellate counsel’s post hoc rationalizations for agency action; [SEC v. Chenery Corp., 332 U.S. 194, 196, 67 S.Ct. 1575, 91 L.Ed. 1995 (1947)] requires that an agency’s discretionary order be upheld, if at all, on the same basis articulated in the order by the agency itself: “[A] simple but fundamental rule of administrative law . . . is . . . that a reviewing court, in dealing with a determination or judgment which an administrative agency alone is authorized to make, must judge the propriety of such action solely by the grounds invoked by the agency. If those grounds are inadequate or improper, the court is powerless to affirm the administrative action . . . .” Ibid. For the courts to substitute their or counsel’s discretion for that of the Commission is incompatible with the orderly functioning of the process of judicial review. This is not to deprecate, but to vindicate (see Phelps Dodge Corp. v. Labor Board, 313 U.S. 177, 197, 61 S.Ct. 845, 853, 854, 85 L.Ed. 1271), the administrative process, for the purpose of the rule is to avoid “propelling] the court into the domain which Congress has set aside exclusively for the administrative agency.” 332 U.S., at 196, 67 S.Ct. 1575. 371 U.S. 156, 168-69, 83 S.Ct. 239, 246, 9 L.Ed.2d 207 (1962). . Transcript of the 13 Dec. 1973 Hearing, App. II at 352a & 360a. . Response to Senator Hart — FTC Investigation of Reporting of Natural Gas Reserves, June 1973, App. IX at 1690a-91a (emphasis added). See also Statement of James T. Hel-verson, Director, Bureau of Competition, FTC, Before the Subcomm. on Antitrust and Monopoly of the Senate Judiciary Comm., 27 June 1973, App. IX at 1738a-39a. . See note 171 infra. . As recently as 28 July 1975, in a letter to Senator Hart from then-Chairman Engman, the FTC has reconfirmed that the purpose of its investigation is “to determine whether proved gas reserves have been underreported, either by collusion or by individual action.” Memorandum in Support of Supplemental Opposition by Appellant, FTC," } ]

[ { "docid": "22057951", "title": "", "text": "the appellant’s confession under such circumstances was prejudicial error. The decision of the Court of Military Review is reversed, and the record of trial is returned to the Judge Advocate General of the Army. A rehearing may be ordered. Judge COOK and Senior Judge FERGUSON concur. . United States v. Tempia, 16 U.S.C.M.A. 629, 37 C.M.R. 249 (1967). . Article 31(b), Uniform Code of Military Justice, 10 U.S.C. § 831(b). . Article 128, UCMJ, 10 U.S.C. § 928. . Article 134, UCMJ, 10 U.S.C. § 934. . Article 39(a), UCMJ, 10 U.S.C. § 839(a). . Manual for Courts-Martial, United States, 1969 (Rev.), paragraph 140a (2). . United States v. Odenweller, 13 U.S.C.M.A. 71, 32 C.M.R. 71 (1962); United States v. Gorko, 12 U.S.C.M.A. 624, 31 C.M.R. 210 (1962). . United States v. Meade, 20 U.S.C.M.A. 510, 43 C.M.R. 350 (1971); United States v. Howard, 18 U.S.C.M.A. 252, 39 C.M.R. 252 (1969). . United States v. Sikorski, 21 U.S.C.M.A. 345, 45 C.M.R. 119 (1972); United States v. Attardi, 20 U.S.C.M.A. 548, 43 C.M.R. 388 (1971); United States v. Dicario, 8 U.S.C.M.A. 353, 24 C.M.R. 163 (1957). . United States v. Spivey, 8 U.S.C.M.A. 712, 25 C.M.R. 216 (1958). . 21 U.S.C.M.A. 345, 45 C.M.R. 119 (1972). . United States v. Keller, 17 U.S.C.M.A. 507, 38 C.M.R. 305 (1968); United States v. Dison, 8 U.S.C.M.A. 616, 25 C.M.R. 120 (1958). . 20 U.S.C.M.A. 510, 43 C.M.R. 350 (1971). . See also United States v. Jones, 7 U.S.C.M.A. 623, 23 C.M.R. 87 (1957). . Cf. United States v. Fisher, 4 U.S.C.M.A. 152, 15 C.M.R. 152 (1954); United States v. Dupree, 1 U.S.C.M.A. 665, 5 C.M.R. 93 (1952). . See United States v. Howard, supra. . The military judge correctly stated his obligations in his opening remarks to the jury: It is my judicial responsibility to assure that this trial is conducted in a fair, orderly, and impartial manner, in accordance with the law. . As the Supreme Court stressed in Miranda v. Arizona, 384 U.S. 436, 476, 86 S.Ct. 1602, 1629, 16 L.Ed.2d 694 (1966), “[i]f a statement made were in fact truly" } ]

[ { "docid": "1143477", "title": "", "text": "the only remedy available ' when the Government fails to follow its own regulation is dismissal of the charges. He cites our opinions in United States v. Walck, supra; United States v. Simpson, 51 C.M.R. 218, 1 M.J. 608 (A.C.M.R.1975); and United States v. Kalt, 50 C.M.R. 95 (A.C.M.R.1975), in support of his contention. We disagree with appellant’s position as' we believe dismissal to be but one of several possible remedies. The most reasonable remedy and the one followed by the courts whenever appropriate is to set aside the action that has been taken contrary to the regulation and require further proceedings in compliance with the regulation. That was the remedy directed by the Supreme Court of the United States in Accardi v. Shaughnessy, 347 U.S. 260, 74 S.Ct. 499, 98 L.Ed. 681 (1954), the basic case in this field; and by the Court of Military Appeals in United States v. Dunks, supra a recent military case based on Accardi. Such a remedy is inappropriate, however, in those situations where once the action proceeds in noncompliance, there is no effective way the procedures can be rolled back and compliance required. The question then becomes one of prejudice to the accused as a result of the noncompliance. Peavy v. Warner, 493 F.2d 748 (5th Cir. 1974). We must look at what right has been infringed and what adverse result has occurred because of the failure to follow the regulation. Assuming noncompliance for the purpose of applying such a standard in this case, we can perceive no prejudice to appellant from the Government’s failure to comply with its regulation. To say that appellant has had to remain in the service beyond his ETS and endure a criminal trial is to presuppose that he would have been released from service without trial had the regulation been followed. We find that to be such a remote possibility in this case as to be almost nonexistent. If the question had been presented to the convening authority prior to appellant’s ETS, we are convinced that appellant would be in the same position he is in today" }, { "docid": "1143508", "title": "", "text": "of service, by a general court-martial convening authority or his designee when certain conditions exist. We’ve discussed the matter with trial counsel. We believe the trial counsel’s willing to stipulate that the accused’s ETS date has passed; It was subsequent to his ETS date before charges were referred for trial; Charges had been preferred before the ETS date; and that no action was taken by either the general court-martial convening authority or his designee regarding the accused’s retention beyond his ETS date. TC: Government so stipulates, your Honor.” Additionally, I cannot concur with the conclusion that, because the first page of the charge sheet attached to the advice contained the date of the appellant’s enlistment and the length of that enlistment, the convening authority must have known the date of appellant’s ETS. Computation of an ETS by merely adding the period of enlistment to the entry date is notoriously risky, principally because of the operation of 10 U.S.C. § 972. The case sub judice is one in point. See footnote 2, Senior Judge Jones’ opinion. Thus, I find it highly dubious that the convening authority was even vaguely aware of appellant’s ETS when he referred the case to trial — assuming such knowledge at that point in time is relevant to the resolution of the instant case. . I am aware that the decisions in United States v. Hout, 19 U.S.C.M.A. 299, 41 C.M.R. 299 (1970), and in United States v. Downs, 3 U.S.C.M.A. 90, 11 C.M.R. 90 (1953), appear to create a waiver theory in cases in which personnel are held beyond their ETS without compliance with paragraph lid, MCM, 1969 (Rev.), when such personnel fail to object to their retention. However, I refuse to convert a failure of an incarcerated serviceman to demand his separation into a consensual or voluntary acquiescence in his retention, and therefore find that theory inapplicable in this case. . That the Government must comply with its own regulations is beyond cavil at this point. Accardi v. Shaughnessy, 347 U.S. 260, 74 S.Ct. 499, 98 L.Ed. 681 (1954); United States v. Dunks, supra; United" }, { "docid": "1143481", "title": "", "text": "or member is awaiting trial or result of trial. a. A member may be retained beyond the expiration of his term of service by a general court-martial convening authority, or his designee, when an investigation of his conduct has been initiated with a view to trial by court-martial; charges have been preferred; or the member has been apprehended, arrested, confined, or otherwise restricted by the appropriate authority. However, if charges have not been preferred, the member shall not be retained more than 30 days beyond the expiration of his terms of service without the personal approval of the general court-martial convening authority concerned. . Note 3, supra. . United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 74 S.Ct. 499, 98 L.Ed. 681 (1954). . The Court of Military Appeals set aside the findings and sentence to permit appellant to take his administrative appeal to the CINCU-SAREUR on the denial of his request for dismissal of charges under the USAREUR 45-day speedy trial rule. If the CINC granted the appeal, the charges would then be dismissed pursuant to the regulation. If he denied the appeal, the Court would authorize a rehearing. . To the extent the differing facts in United States v. Walck, 54 C.M.R. 308, 2 M.J. 551 (A.C.M.R.1976) (accused held almost two months beyond his ETS before convening authority acted to approve retention by referring case to trial, notwithstanding accused’s demands for release), distinguish it from the case at bar, the results are not inconsistent. However, to the extent that Walck holds (a) that failure of the Government to comply with its own regulation divests the court of jurisdiction to try the accused, and (b) that the sole remedy is. dismissal of charges, we expressly overrule that decision. We find no inconsistency between United States v. Kalt, 50 C.M.R. 95 (A.C.M.R.1975), and this case because there we found that jurisdiction had not been preserved under paragraph lid, Manual for Courts-Martial, United States, 1969 (Revised edition). Our decision in United States v. Simpson, 51 C.M.R. 218, 1 M.J. 608 (1975), is arguably but not actually inconsistent with our" }, { "docid": "12105046", "title": "", "text": "to represent appellant at trial, he requested that LT S be made available to act as his individual military counsel. It is uncontroverted that LT S would be unavailable until 24 October 1977; trial defense counsel thrice moved for a continuance until that date and each time his motion was denied. These denials form the crux of appellant’s present contention that, in so acting, the military judge abused his discretion. It is well-settled that the issue of whether or not a continuance should be granted is a matter resting within the sound discretion of the military judge, that his ruling is a proper subject for appellate review for his abuse of that discretion, and that he remains accountable for any resulting prejudice to an accused’s substantial rights. United States v. Thomson, 3 M.J. 271 (C.M.A.1977); United States v. Dunks, 1 M.J. 254 (C.M.A.1976). A trial judge should err on the side of liberalism in taking action on such a motion where there exists good cause for any ensuing delay. See Dunks, supra at 255 citing United States v. Daniels, 11 U.S.C.M.A. 52, 55, 28 C.M.R. 276, 279 (1959); United States v. Nichols, 2 U.S.C.M.A. 27, 36, 6 C.M.R. 27, 36 (1952). Once he has acted, our scrutiny will be directed to those matters properly before him which bore directly on his final determination. Cf., United States v. Quinones, 1 M.J. 64 (C.M.A.1975). Appellant’s final motion for a continuance was denied on 28 September 1977, three months to the day after the original Charge was preferred against him. As of the date of this denial, appellant had been actively seeking the assistance of individual military counsel for approximately six weeks; from the record before us it appears that he first requested an individual military counsel within three days of the date that he was served with the first charge sheet. Certainly under these circumstances it cannot be said that appellant’s request came at the eleventh hour and thus stemmed solely from a motive to delay trial. In essence, appellant’s final request was for a twenty-six day delay. While we recognize that" }, { "docid": "12104379", "title": "", "text": "merit. Accused agreed that the appraised value of the car was $1,500.00. What an accused is personally willing to pay for a stolen article is not a relevant measure of value or an indication of an improvident plea. Appellate defense counsel also ask the court not to approve a sentence which includes confinement at hard labor in view of the pretrial delay. Numerous persons who know the accused well recommend that confinement not be approved. In our view, however, accused already has received considerable leniency. The offenses of which the accused was convicted, multiple larcenies from fellow airmen and wrongful appropriation of government property, fully merit the punishment. We see no reason to disturb this sentence. Accordingly, the findings of guilty and the sentence are AFFIRMED. HERMAN, Senior Judge and ARROWOOD, Judge, concur. . He was acquitted of solicitation of another to commit larceny, and two other specifications of larceny were withdrawn by the convening authority. . As pointed out in United States v. Russo, 1 M.J. 134, 135 (C.M.A.1975), “a government agency must abide by its own rules and regulations where the underlying purpose of such regulations is the protection of personal liberties or interests.” United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 74 S.Ct. 499, 98 L.Ed. 681 (1954). . See Article 10, Uniform Code of Military Justice, 10 U.S.C. § 810; United States v. Burton, 21 U.S.C.M.A. 112, 44 C.M.R. 166 (1971); United States v. Banks, 7 M.J. 92 (C.M.A.1979). . The timeliness of prosecution of charges which have been earlier dismissed or withdrawn need not be considered on appellate review. United States v. Mohr, 21 U.S.C.M.A. 360, 45 C.M.R. 134 (1972)." }, { "docid": "5373575", "title": "", "text": "to the American Embassy Club, Seoul, Korea, upon my arrival at my next duty post which as of this date is: MCAS Air FMF Pac El Toro Santa Anna [sic], California /s/ George G. Webb George G. Webb Witnesses: /s/ Edwin M. Cronk /s/ Martin F. Stow” LATIMER, Judge (concurring in the result) : I concur in the result. I would concur outright, except that I have serious reservations whether the written acknowledgment of the obligation to pay the Embassy Club was more than merely evidentiary. In light of the clear waiver, however, consideration of this question is unnecessary in the case at bar. Accordingly, I join in affirming the decision of the board of review. FERGUSON, Judge (dissenting): f dissent. Waivers fall into two broad and general categories. The first is negative and arises out of a failure to act when action is required. The second is of the affirmative variety and is invoked whenever it appears that an accused or his counsel has withdrawn an issue from consideration by conduct which is “affirmative, deliberate and evidential of a conscious design.” United States v Mundy, 2 USCMA 500, 9 CMR 130. An examination of the reasons underlying each type of waiver will serve to demonstrate that neither may be applied in this case. Ordinarily, the accused’s failure at the trial level to challenge the legality of a search results in an incomplete development of the circumstances of the search. Appellate tribunals, therefore, cannot ascertain from the record of such a trial whether the search was legal or illegal. Since this deficiency in the record is attributable to the accused, he is precluded from claiming prejudice upon appeal. United States v Dupree, 1 USCMA 665, 5 CMR 93. The second type of waiver is found in situations similar to that presented by United States v Mundy, supra. There, the defense counsel prevailed upon the law officer to refrain from instructing the court-martial upon a lesser included offense clearly raised by the evidence. This Court held that such action constituted a waiver, declaring, “Necessarily a certain risk attends all tactics at" }, { "docid": "1084705", "title": "", "text": "sentence. In the first place, the defense counsel did not choose to object to the remarks, a circumstance which normally triggers the doctrine of waiver and precludes an accused from raising a claim of error on appeal. United States v. Nelson and United States v. Doctor, both supra; United States v. Pinkney, 22 U.S.C.M.A. 595, 48 C.M.R. 219 (1974). Such defense passivity, incidentally, has also been used as a somewhat reliable indicator of the minimal impact the prosecutor’s remarks made on the court members. United States v. Nelson, supra; United States v. Saint John, 23 U.S.C.M.A. 20, 48 C.M.R. 312 (1974); United States v. Ryan, 21 U.S.C.M.A. 9, 44 C.M.R. 63 (1971). Furthermore, we do not believe the trial counsel’s words were so inflammatory as to activate the military judge’s legal duty to intercede on a su a sponte basis to neutralize their impact. United States v. Nelson and United States v. Pinkney, both supra; see United States v. Graves, 23 U.S.C.M.A. 434, 50 C.M.R. 393, 1 M.J. 50 (1975); see also United States v. McGee, 23 U.S.C.M.A. 591, 50 C.M.R. 856, 1 M.J. 193 (1975). As a final consideration, the sentence adjudged was far less than the maximum authorized and the charges themselves were of a serious nature. And, as a legitimate aggravating factor, the court members were presented evidence that the accused had previously been punished under Article 15, Code, supra, for three instances of failure to report to assigned duties and a failure to obey an order. Consequently, we perceive no fair risk that the trial counsel’s remarks had any measurable effect on the court members’ determination of an appropriate sentence. In their remaining assertion of error, appellate defense counsel claim: THE STAFF JUDGE ADVOCATE ERRED IN PREPARING THE POST-TRIAL ADVICE WHEN THE PRETRIAL ADVICE PREPARED BY HIM WAS CHALLENGED AT TRIAL. In support of this contention counsel cite the United States Court of Military Appeal’s recent decision, United States v. Engle, 24 U.S.C.M.A. 213, 51 C.M.R. 510, 1 M.J. 387 (1976). In Engle, the defense counsel made a trial motion for a new advice on the" }, { "docid": "2503912", "title": "", "text": "pretrial confinement would have been illegal, if as he represented them to be, they did not prejudice him as to the findings or sentence. United States v. Johnson, 19 U.S.C.M.A. 49, 41 C.M.R. 49 (1969). Furthermore, the record reflects that the military judge did in fact consider the accused’s affidavit in extenuation and mitigation. In our opinion, this procedure was sufficient to offset any injustice that the accused may have suffered as a result of the conditions of his pretrial confinement. United States v. Cof fey, 40 C.M.R. 928 (N.B.R.1969); Cf. United States v. Lockhart, 43 C.M.R. 968 (A.F.C.M.R.1971), pet. denied, 43 C.M.R. 413 (1971). United States v. Jackson, 41 C.M.R. 677 (A.C.M.R.1970), pet. denied, 41 C.M.R. 403 (1970). Appellate defense counsel’s next contention is that the trial counsel erred in urging the military judge to consider deterrence of others as a factor in determining an appropriate sentence. United States v. Mosley, 1 M.J. 350 (1976); United States v. Miller, 1 M.J. 357 (1976). However, assuming that the argument was improper, we perceive no possibility of prejudice to the accused under the circumstances of this case. Here, unlike Mosely and Miller, the accused was tried by a military judge sitting alone. Therefore, since a trial judge is presumed to have exercised the proper discretion in distinguishing between material and immaterial evidence, absent a clear showing to the contrary, we can presume that, in imposing sentence, the military judge properly rejected the trial counsel’s argument. United States v. Montgomery, 20 U.S.C.M.A. 35, 42 C.M.R. 227, 231 (1970). In reaching this conclusion, we find it significant that Mosely and Miller, supra, are not the first cases in which the propriety of the general deterrence theory was discussed. Rather, the Court’s opinion in both cases merely emphasizes that which it had enunciated before with respect to this theory. Appellate defense counsel have invited our attention to two additional issues as asserted by the accused in his request for appellate representation. We find no merit in either of these. The Court’s decision in United States v. Burney, 21 U.S.C.M.A. 71, 44 C.M.R. 125 (1971)," }, { "docid": "12136953", "title": "", "text": "Hollmann prepared a comprehensive report. He concluded there was probable cause to believe the accused committed all of the offenses ultimately charged against him. He also concluded that the accused, for various specific reasons, should be confined pending trial. We believe that any conscientious pretrial confinement hearing officer would, of necessity, have “conducted a personal investigation of a general matter involving the particular offense” so as to disqualify him from subsequently being a counsel at the court which tries those offenses.- We therefore conclude it was error for Captain Hollmann to be appointed or act as trial counsel when those charges were referred for trial. Since no objection was made by defense counsel, we conclude the accused was not materially prejudiced by the trial counsel’s prior participation. Error in the appointment of trial counsel is not jurisdictional. Wright v. United States, 2 M.J. 9 (C.M.A.1976); United States v. Blake, 21 C.M.R. 809 (A.F.B.R. 1956). Ordinarily, failure to object to a trial counsel or court member’s prior participation as investigating officer waives the issue. United States v. Dyche, 8 U.S.C.M.A. 430, 24 C.M.R. 240 (1957); United States v. Chadwell, 32 C.M.R. 673 (N.B.R. 1964), affirmed, 13 U.S. C.M.A. 361, 32 C.M.R. 361 (1962). Moreover, the record also demonstrates, as appellate government counsel point out, an absence of prejudice to the accused. The accused did not testify at the pretrial hearing and there was thus no opportunity for unfair questions by one who might suspect he would later prosecute the accused. No witness at the pretrial hearing later testified at trial, and the accused pled guilty as charged. At trial, the role of the trial counsel was minimal since the assistant trial counsel primarily conducted the prosecution. Nonetheless, we do not condone or approve the appointment of pretrial confinement hearing officers as members of the prosecution. In our view, the appearance of evil and possible abuses which might flow from such an appointment are self-evident and must be avoided. Appellate defense counsel also assert that the pretrial confinement of the accused was unlawful. We resolve this issue adversely to the accused. United" }, { "docid": "14256898", "title": "", "text": "(N.C.M.R.1979), Judge Michel stated that: It is well-settled that the issue of whether or not a continuance should be granted is a matter resting within the sound discretion of the military judge, that his ruling is a proper subject for appellate review for his abuse of that discretion, and that he remains accountable for any resulting prejudice to an accused’s substantial rights. United States v. Thomson, 3 M.J. 271 (C.M.A.1977); United States v. Dunks, 1 M.J. 254 (C.M.A.1976)., A trial judge should err on the side of liberalism in taking action on such a motion where there exists good cause for any ensuing delay. See Dunks, supra at 255 citing United States v. Daniels, 11 U.S.C.M.A. 52, 55, 28 C.M.R. 276, 279 (1959); United States v. Nichols, 2 U.S.C.M.A. 27, 36, 6 C.M.R. 27, 36 (1952). Once he has acted, our scrutiny will be directed to those matters properly before him which bore directly on his final determination. Cf., United States v. Quinones, 1 M.J. 64 (C.M.A.1975). In the case at hand, the military judge opined that the defense had had ample time to collect extenuation and mitigation evidence. Defense counsel indicated that nearly two months had gone by between the time the initial letters were sent out to prospective witnesses and the date of the motion; appellant was waiting not for answers to the initial letters but to follow-up correspondence in the absence of response to the first set. The military judge calculated that the defense had had available over 90 days worth of man-hours in which to obtain this evidence and was obviously of the opinion that, given the length of time appellant already had spent in pretrial confinement, there was no practical purpose which would be served by further delay. The time given appellant to review the background material on the prospective members appears sufficient. In our review of the matters before the military judge, in application of Furgason, we do not see any abuse of discretion and, thus, find no merit in this assignment of error. IX THE MILITARY JUDGE ERRED TO THE SUBSTANTIAL PREJUDICE OF" }, { "docid": "2503911", "title": "", "text": "DECISION LeTARTE, Chief Judge: Despite his pleas, the accused was convicted of robbery and wrongful appropriation, in violation of Articles 122 and 121, Uniform Code of Military Justice, 10 U.S.C. §§ 922,921. The approved sentence extends to bad conduct discharge, total forfeitures, confinement at hard labor for 18 months and reduction in grade to airman basic. Initially, appellate defense counsel contend that the military judge “inadequately considered” the accused’s unlawful pretrial confinement in adjudging the sentence. We find no merit in this contention. The only “evidence” introduced at trial concerning the conditions of the accused’s pretrial confinement was his affidavit, which should not have been accepted by the military judge. Manual for Courts-Martial, 1969 (Rev), paragraph 75c (2). When an accused believes that he has been subjected to illegal pretrial confinement, he should present acceptable evidence of the relevant circumstances at the trial level so that the issue can be resolved by the court and preserved for appellate scrutiny. Nevertheless, we have considered the accused’s affidavit and are satisfied that while the conditions of his pretrial confinement would have been illegal, if as he represented them to be, they did not prejudice him as to the findings or sentence. United States v. Johnson, 19 U.S.C.M.A. 49, 41 C.M.R. 49 (1969). Furthermore, the record reflects that the military judge did in fact consider the accused’s affidavit in extenuation and mitigation. In our opinion, this procedure was sufficient to offset any injustice that the accused may have suffered as a result of the conditions of his pretrial confinement. United States v. Cof fey, 40 C.M.R. 928 (N.B.R.1969); Cf. United States v. Lockhart, 43 C.M.R. 968 (A.F.C.M.R.1971), pet. denied, 43 C.M.R. 413 (1971). United States v. Jackson, 41 C.M.R. 677 (A.C.M.R.1970), pet. denied, 41 C.M.R. 403 (1970). Appellate defense counsel’s next contention is that the trial counsel erred in urging the military judge to consider deterrence of others as a factor in determining an appropriate sentence. United States v. Mosley, 1 M.J. 350 (1976); United States v. Miller, 1 M.J. 357 (1976). However, assuming that the argument was improper, we perceive no possibility" }, { "docid": "12128634", "title": "", "text": "a violation of Article 13 at his court-martial but instead raised it for the first time on appeal to the United States Court of Military Appeals. The government opposed Johnson’s claim by relying on the Court’s long-standing waiver policy enunciated in United States v. Roberts: Ordinarily appellate courts review claimed errors only on the basis of the error as presented to the lower courts, Hovland v. Smith, 22 F.2d 769 (CA 9th Cir)(1927); however, this court will review material outside the record having to do with insanity, United States v. Bell, 6 U.S.C.M.A. 392, 20 C.M.R. 108, and jurisdiction, United States v. Dickenson, 6 U.S.C.M.A. 438, 20 C.M.R. 154. United States v. Roberts, 22 C.M.R. 112, 115 (C.M.A.1956). Despite the government’s submission, the Court held, “Imposition of punishment in violation of Article 13, Code, supra, 10 U.S.C. § 813, can, in our opinion, assume such serious proportions as to justify post-trial consideration.” United States v. Johnson, 41 C.M.R. at 50. Critical to the Court’s declaration of this principle was the fact that the allegations involved a “serious” violation of the statute. Also, the issue arose during a period in the development of military law when pretrial confinement was not reviewed by military magistrates with judicial training. See Courtney v. Williams, 1 M.J. 267 (C.M.A.1976). Moreover, Army defense counsel then were not assigned as they are now to legal organizations separate from and independent of a local staff judge advocate office. Compare United States v. Kitchens, 31 C.M.R. 175 (C.M.A.1961), with Army Regulation 27-10, Legal Services: Military Justice, para. 6-3 (18 March 1988). In the last two decades, this court has occasionally followed the mandate of Johnson and sometimes permitted appellants to raise the issue for the first time on appeal. See United States v. Peacock, 19 M.J. 909 (A.C.M.R.), petition denied, 20 M.J. 205 (C.M.A.1985); United States v. Travier, 42 C.M.R. 427 (A.C.M.R.1970). Conversely, and consistent with the general rule stated in Roberts, supra, we have also found waiver in the appellant’s failure to present the issue to the trial court. United States v. Huelskamp, 21 M.J. 509 (A.C.M.R.1985); United" }, { "docid": "1138578", "title": "", "text": "not true, a failure on his part to utter a denial will support an inference that he thereby admitted the truth of the imputation . If appellant had been in confinement, arrest, or custody or if at the time, he was under official investigation, the inference would not have arisen. But here, Ruckman was not an investigator or other official seeking to question appellant about the offense; he was the victim. Under such circumstances it is reasonable to infer that were appellant innocent, he would have denied the accusation. United States v. Armstrong, 4 U.S.C.M.A. 248, 15 C.M.R. 248 (1954), citing United States v. Creamer, 1 U.S.C.M.A. 267, 3 C.M.R. 1 (1952). As the evidence was properly admitted, and not objected to, the reference made thereby by the trial counsel was a fair comment upon the evidence. ARGUMENT OF TRIAL COUNSEL ON SENTENCE Here, appellant alleges that the argument of trial counsel on sentence was improper and prejudicial. Specifically the prosecutor told the jury: While indeed he [the appellant] has an absolute right to make an unsworn statement, you must there again consider the fact that he was not under oath and he cannot be cross-examined upon it. Since the accused cannot be cross-examined upon his unsworn statement, the Government’s remedies are limited to (1) submission of evidence to rebut facts contained therein, and (2) fair and reasonable comment upon facts and opinions contained in or omitted from the statement. United States v. Dupree, 40 C.M.R. 444 (A.B.R. 1968). The questioned comment here consisted only of reflecting matters appropriate to the weight to be given appellant’s unsworn statement. Furthermore, trial defense counsel did not register an objection to trial counsel’s argument concerning the unsworn statement. Failure to object to improper argument constitutes a waiver in the absence of a flagrant abuse of discretion. United States v. Wood, 18 U.S.C.M.A. 291, 40 C.M.R. 3 (1969); United States v. Doctor, 7 U.S.C.M.A. 126, 21 C.M.R. 252 (1956). We find no such flagrant abuse. Although appellant raises the issue of the military judge’s deficient pre-sentencing instruction as a tangential comment to this assignment" }, { "docid": "16332417", "title": "", "text": "of knowledge that apparently was not shared either by appellate counsel or this Court; or, was his lack of knowledge of the aforementioned regulation [Air Force Regulation 125-18] of such a character that the issue of competency of counsel is raised? United States v. Lassiter, supra at 545 (Early, Chief Judge, dissenting). Unfortunately, he did not answer the question; instead, he opted for a new review and action. II Although United States v. Barnes, 3 M.J. 406 (C.M.A.1977), did not cite United States v. Palenius, 2 M.J. 86 (C.M.A.1977), it cannot be said that the quote from Barnes, above, refers to ineffective counsel only during the trial. The main problem, however, is that if every waiver under Goode constitutes ineffective assistance of counsel, the Goode rule of waiver will be effectively eliminated. I seriously doubt that such a situation constitutes the correct law. Can it be realistically argued that misstating the accused’s volunteer status is somehow more prejudicial than failing to object to certain evidence at trial, or failing to comment on erroneous statements of the evidence or omitting the elements of the offense? I think not. The former may have impacted the finding of guilt itself. See United States v. Dupree, 1 U.S.C.M.A. 665, 5 C.M.R. 93 (1952). The latter may very well have served to shape the convening authority’s perception of the accused and, as a result, affected the withholding of clemency. See United States v. Kohler, supra. Concededly, strict application of the waiver doctrine probably means closer scrutiny of defense counsel’s performance. See United States v. Mason, 14 M.J. 92, 95 at n. 5 (C.M.A.1982). But not every error or omission renders counsel inadequate. United States v. Cohen, 2 M.J. 350 (A.F.C.M.R. 1976); and where an act or omission is deemed to be error it should be tested for prejudice. The majority opinion states as much, but either assumes prejudice, or, by implication, presumes it to be inherent in the omission. Testing for prejudice is not alien to the area of inadequate representation. There is no indication that Palenius precludes assessing a post-trial omission for prejudice. The" }, { "docid": "5373576", "title": "", "text": "deliberate and evidential of a conscious design.” United States v Mundy, 2 USCMA 500, 9 CMR 130. An examination of the reasons underlying each type of waiver will serve to demonstrate that neither may be applied in this case. Ordinarily, the accused’s failure at the trial level to challenge the legality of a search results in an incomplete development of the circumstances of the search. Appellate tribunals, therefore, cannot ascertain from the record of such a trial whether the search was legal or illegal. Since this deficiency in the record is attributable to the accused, he is precluded from claiming prejudice upon appeal. United States v Dupree, 1 USCMA 665, 5 CMR 93. The second type of waiver is found in situations similar to that presented by United States v Mundy, supra. There, the defense counsel prevailed upon the law officer to refrain from instructing the court-martial upon a lesser included offense clearly raised by the evidence. This Court held that such action constituted a waiver, declaring, “Necessarily a certain risk attends all tactics at trial level. When carefully considered tactics fail, the defense cannot be permitted to seek, upon appeal, further opportunity to indulge its tactical guesses at a new trial.” There is, in this record of trial, no such void in the evidence as to the circumstances of the search as to preclude an intelligent conclusion on the question of its legality. Neither does the record warrant the inference that, when the defense counsel failed to include specifications 2 and 6 within the scope of his objection, he did so in pursuance of an affirmative, deliberate, and consciously designed tactical plan. The simple fact is he failed to appreciate certain fundamental matters, hereinafter more fully developed. Thus, since the reasons supporting application of either type of waiver do not exist here, that principle is not at all applicable and should not be made the basis of this Court’s action. The only question we are called upon to decide is whether there appears on the face of the record clear error in an important area which we will reach" }, { "docid": "3623955", "title": "", "text": "be dismissed. By not granting the continuance today, there is a possibility that the accused could be found guilty of some charges and placed in confinement which would be a deprivation of liberty before this administrative appeal is processed. Even though he acknowledged that a 45-day rule appeal was pending, the trial counsel maintained that the continuance should be denied since the accused’s administrative request could be granted just as easily after trial with no prejudice to the accused. The trial judge denied the motion for continuance without comment. The appellant contends that the trial judge abused his discretion in denying the request for continuance pending resolution of his 45-day rule administrative appeal. United States v. Knudson, 4 U.S.C.M.A. 587, 16 C.M.R. 161 (1954); see Petty v. Moriarty, 20 U.S.C.M.A. 438, 43 C.M.R. 278 (1971). While the decision to grant or deny a motion for continuance rests within the trial judge’s sound discretion, he remains accountable for an abuse of discretion which prejudices an accused’s substantial rights. United States v. Foreman, 18 U.S.C.M.A. 249, 39 C.M.R. 249 (1969); United States v. Daniels, 11 U.S.C.M.A. 52, 28 C.M.R. 276 (1959); United States v. Plummer, 1 U.S.C.M.A. 373, 3 C.M.R. 107 (1952). The Government maintains that the trial judge did not abuse his discretion nor prejudice the appellant by denying the continuance request since proceeding with the trial had no impact upon the ultimate resolution of the administrative appeal. Even assuming, as the Government urges, that the result of the appeal was not jeopardized by proceeding with the trial, the denial of the continuance harmed the accused more fundamentally. We recently reaffirmed the applicability of the Accardi doctrine to military practice: “a government agency must abide by its own rules and regulations where the underlying purpose of such regulations is the protection of personal liberties or interests.” United States v. Russo, 23 U.S.C.M.A. 511, 512, 50 C.M.R. 650, 651, 1 M.J. 134, 135 (1975). What the USAREUR supplement to AR 27-10 commendably structures is a speedy trial standard similar in effect to the Burton rule but tailored exclusively to minor infractions to" }, { "docid": "1143480", "title": "", "text": "authority would have approved a lesser sentence had he been properly advised. The assigned error alleging appellant’s confession was improperly admitted into evidence has been considered but does not warrant discussion. We are convinced that appellant was properly advised in accordance with Article 31, U.C.M.J., and United States v. Tempia, 16 U.S.C.M.A. 629, 37 C.M.R. 249 (1967), and that he voluntarily waived his rights. The findings of guilty and the sentence are affirmed. Senior Judge CARNE, and Judges DONAHUE, FELDER, FULTON, MITCHELL and MOUNTS concur. Chief Judge CLAUSEN and Judge CLAUSE, not participating. . Initially the three charges contained a total of 61 specifications; after the Article 32 investigation the number of specifications was reduced and the larceny charges redrafted and repreferred. . Counsel stipulated that appellant’s ETS was 27 December 1975 but appellant’s service record admitted at trial establishes an ETS of 3 January 1976. However, we will accept the date of 27 December 1975 for purposes of this review. . 2 — 4. When investigation is initiated with view to trial by court-martial or member is awaiting trial or result of trial. a. A member may be retained beyond the expiration of his term of service by a general court-martial convening authority, or his designee, when an investigation of his conduct has been initiated with a view to trial by court-martial; charges have been preferred; or the member has been apprehended, arrested, confined, or otherwise restricted by the appropriate authority. However, if charges have not been preferred, the member shall not be retained more than 30 days beyond the expiration of his terms of service without the personal approval of the general court-martial convening authority concerned. . Note 3, supra. . United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 74 S.Ct. 499, 98 L.Ed. 681 (1954). . The Court of Military Appeals set aside the findings and sentence to permit appellant to take his administrative appeal to the CINCU-SAREUR on the denial of his request for dismissal of charges under the USAREUR 45-day speedy trial rule. If the CINC granted the appeal, the charges would then" }, { "docid": "1143509", "title": "", "text": "Thus, I find it highly dubious that the convening authority was even vaguely aware of appellant’s ETS when he referred the case to trial — assuming such knowledge at that point in time is relevant to the resolution of the instant case. . I am aware that the decisions in United States v. Hout, 19 U.S.C.M.A. 299, 41 C.M.R. 299 (1970), and in United States v. Downs, 3 U.S.C.M.A. 90, 11 C.M.R. 90 (1953), appear to create a waiver theory in cases in which personnel are held beyond their ETS without compliance with paragraph lid, MCM, 1969 (Rev.), when such personnel fail to object to their retention. However, I refuse to convert a failure of an incarcerated serviceman to demand his separation into a consensual or voluntary acquiescence in his retention, and therefore find that theory inapplicable in this case. . That the Government must comply with its own regulations is beyond cavil at this point. Accardi v. Shaughnessy, 347 U.S. 260, 74 S.Ct. 499, 98 L.Ed. 681 (1954); United States v. Dunks, supra; United States v. Burden, 23 U.S.C.M.A. 510, 50 C.M.R. 649, 1 M.J. 89 (1975); United States v. Russo, 23 U.S.C.M.A. 511, 50 C.M.R. 650, 1 M.J. 134 (1975). . United States v. Greenwalt, 6 U.S.C.M.A. 569, 20 C.M.R. 285 (1955). . In any event such doubts are to be resolved in favor of the appellant, United States v. Boatner, 20 U.S.C.M.A. 376, 43 C.M.R. 216 (1971). . See footnote 12, supra. . United States v. Simpson, 51 C.M.R. 218, 221, 1 M.J. 608, 612 (A.C.M.R.1975)." }, { "docid": "3623958", "title": "", "text": "of his 45-day rule administrative appeal. The decision of the United States Army Court of Military Review is reversed. The findings of guilty and the sentence are set aside. The record of trial is returned to the Judge Advocate General of the Army for resubmission to the convening authority. A rehearing may be ordered only if the Commander-in-Chief, US Army Europe and Seventh Army, determines that dismissal of the charges is not warranted under the 45-day rule guidelines. Judge COOK and Senior Judge FERGUSON concur. . A formalized appeal structure was not implemented until April 9, 1973, one month after the accused was tried. However, prior to April 9, appeals had been referred to in official messages as well as considered by the USAREUR headquarters. Eighteen of 59 appeals considered before April 9, in fact, were favorably acted upon. . Conmy v. United States, 20 U.S.C.M.A. 282, 43 C.M.R. 122 (1971); United States v. Potter, 14 U.S.C.M.A. 118, 33 C.M.R. 330 (1963). . A trial judge should be liberal in the granting of continuances where good cause for the delay exists. United States v. Daniels, 11 U.S.C.M.A. 52, 55, 28 C.M.R. 276, 279 (1959); United States v. Nichols, 2 U.S.C.M.A. 27, 36, 6 C.M.R. 27, 36 (1952). . United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 74 S.Ct. 499, 98 L.Ed. 681 (1954). . United States v. Burton, 21 U.S.C.M.A. 112, 44 C.M.R. 166 (1971). . Our resolution of the first granted issue makes it unnecessary to address the second assignment of error." }, { "docid": "1143476", "title": "", "text": "convening authority’s action was not a knowing approval of retention beyond ETS for purpose of trial. Although the ETS date was not specifically listed in the pretrial advice, it could be computed from the charge sheet which was attached as an inclosure to the advice. We may presume the Convening authority was aware of that information. In any event it is inconceivable that his decision to refer the case to trial would have been any different with or without such information. We therefore find that the general court-martial convening authority’s action in referring the case to trial on 7 January 1976 was the necessary approval for retention contemplated by the regulation. This makes it unnecessary to consider who may be designees within the meaning of the regulation. Even were we to find no compliance with the regulation we would not reach a different result in this case because of our views on the question of the remedy to be applied in a case where the Government fails to follow its own regulation. The appellant maintains the only remedy available ' when the Government fails to follow its own regulation is dismissal of the charges. He cites our opinions in United States v. Walck, supra; United States v. Simpson, 51 C.M.R. 218, 1 M.J. 608 (A.C.M.R.1975); and United States v. Kalt, 50 C.M.R. 95 (A.C.M.R.1975), in support of his contention. We disagree with appellant’s position as' we believe dismissal to be but one of several possible remedies. The most reasonable remedy and the one followed by the courts whenever appropriate is to set aside the action that has been taken contrary to the regulation and require further proceedings in compliance with the regulation. That was the remedy directed by the Supreme Court of the United States in Accardi v. Shaughnessy, 347 U.S. 260, 74 S.Ct. 499, 98 L.Ed. 681 (1954), the basic case in this field; and by the Court of Military Appeals in United States v. Dunks, supra a recent military case based on Accardi. Such a remedy is inappropriate, however, in those situations where once the action proceeds in" } ]

[ { "docid": "17694401", "title": "", "text": "States v. Hayden, 64 F.3d 126, 128 (3d Cir.1995). III. Discussion A. Withholdings Thayer appeals his conviction for violations of I.R.C. § 7202, arguing as a matter of law he could not be found guilty of the withholding tax offenses charged. I.R.C. § 7202 penalizes “[a]ny person required under this title to collect, account for, and pay over any tax imposed by this title who willfully fails to collect or truthfully account for and pay over such tax....” Thayer claims § 7202 is inapplicable because he was not a person required to pay over withheld taxes and because he truthfully accounted for the unpaid taxes. 1. Person Required to Pay Over Tax As noted, only a “person required under this title to collect, account for, and pay over” withholding taxes is criminally liable under § 7202. Thayer argues that only employers such as MIS and ELOP who are required to withhold employees’ taxes under I.R.C. §§ 3402-03 qualify. Thayer contends he was merely an officer and part-owner of the corporations, and not an “employer” as defined by the Internal Revenue Code. Because this is a question of statutory interpretation, we will exercise plenary review. See Parise, 159 F.3d at 794; Hayden, 64 F.3d at 128. I.R.C. § 6672(a), applying the same language in § 7202, imposes civil penalties on “any person required to collect, truthfully account for, and pay over any tax imposed by this title who willfully fails to collect such tax.” In Slodov v. United States, 436 U.S. 238, 98 S.Ct. 1778, 56 L.Ed.2d 251 (1978), the Supreme Court held that § 6672(a) applies to corporate officers or employees responsible for the collection and paying over of withholding taxes. See id. at 244-45, 98 S.Ct. 1778. Although the government in Slodov sought only civil penalties, the Court stated that persons civilly liable under § 6672(a) could also be held criminally liable under § 7202. See id. at 245, 247, 98 S.Ct. 1778. Thayer urges us not to follow this apparent dicta in Slodov. He contends that a corporate officer is a “person” for purposes of § 6672(a) only" } ]

[ { "docid": "17694400", "title": "", "text": "under 18 U.S.C. § 3231. We have jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291. Where the issues raised on appeal are preserved at trial, or through a timely motion for acquittal under Fed.R.Crim.P. 29(c), we will overturn a jury verdict “only when the record contains no evidence, regardless of how it is weighted, from which the jury could find guilt beyond a reasonable doubt....” United States v. Anderson, 108 F.3d 478, 481 (3d Cir.1997) (internal quotation marks and citations omitted). But issues on appeal which were not raised before the District Court, we will review for plain error. See United States v. Olano, 507 U.S. 725, 731, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). A conviction based on insufficient evidence is plain error only if the verdict “constitutes a fundamental miscarriage of justice.” United States v. Barel, 939 F.2d 26, 37 (3d Cir.1991). To the extent that Thayer’s argument raises issues of statutory interpretation, we will exercise plenary review. See United States v. Parise, 159 F.3d 790, 794 (3d Cir.1998); United States v. Hayden, 64 F.3d 126, 128 (3d Cir.1995). III. Discussion A. Withholdings Thayer appeals his conviction for violations of I.R.C. § 7202, arguing as a matter of law he could not be found guilty of the withholding tax offenses charged. I.R.C. § 7202 penalizes “[a]ny person required under this title to collect, account for, and pay over any tax imposed by this title who willfully fails to collect or truthfully account for and pay over such tax....” Thayer claims § 7202 is inapplicable because he was not a person required to pay over withheld taxes and because he truthfully accounted for the unpaid taxes. 1. Person Required to Pay Over Tax As noted, only a “person required under this title to collect, account for, and pay over” withholding taxes is criminally liable under § 7202. Thayer argues that only employers such as MIS and ELOP who are required to withhold employees’ taxes under I.R.C. §§ 3402-03 qualify. Thayer contends he was merely an officer and part-owner of the corporations, and not an “employer” as" }, { "docid": "17694403", "title": "", "text": "because § 6671(b) specifies that the term “person,” as used in I.R.C. ch. 68, subchapter B, encompassing §§ 6671-6724, “includes an officer or employee of a corporation, or a member or employee of a partnership, who as such officer, employee, or member is under a duty to perform the act in respect of which the violation occurs.” But for purposes of § 7202, the term “person” is defined by identical language. See I.R.C. § 7343 (“The term ‘person’ as used in this chapter [I.R.C. ch. 75, encompassing §§ 7201-7344], includes an officer or employee of a corporation, or a member or employee of a partnership, who as such officer, employee, or member is under a duty to perform the act in respect of which the violation occurs.”)- Therefore, Thayer, as the president and majority owner of MIS and ELOP, was properly charged and convicted as a “person” under § 7202. 2. Truthful Accounting Thayer contends the statute imposes criminal liability only on one who neither accounts for nor pays over withholding taxes. Since he did account for the withheld funds, Thayer argues the evidence was insufficient to convict him under § 7202. As noted, § 7202 applies to one who “willfully fails to collect or truthfully account for and pay over” employees’ income taxes. Thayer and the government both interpret this language to criminalize either of two acts: (1) willful failure to collect employees’ income taxes or (2) willful failure to truthfully account for and pay over withheld taxes. Because Thayer accounted for the withheld taxes by reporting the withholdings on the corporations’ quarterly tax returns, he can be convicted only under the second prong. Therefore, the question is whether a person who collects and accounts for but does not pay over taxes has failed to account for and pay over those taxes. Because this is a question of statutory interpretation, we will exercise plenary review. See Parise, 159 F.3d at 794; Hayden, 64 F.3d at 128. The Court of Appeals for the Second Circuit faced the identical question and, relying on the reasoning in United States v. Brennick, 908" }, { "docid": "10845736", "title": "", "text": "for the taxes is paying an employee “under the table,” and as such frustrates the IRS’s policy objective of assessing and collecting taxes. In contrast, a person who truthfully accounts for withholding taxes, but fails to turn the money over, does not frustrate the policy objectives of the IRS because the IRS is aware that money is owed and it knows where to collect the money. Gilbert concludes that “[wjhile compliance may not be timely, it can ultimately be achieved.” We are not persuaded by such arguments. As the Government explains, when an employer collects and accounts for withholding tax for an employee, the employee gets the benefit of the withholding tax, regardless of whether the IRS is paid. Thus, if the Government never receives the tax money, the Government has to carry the burden of crediting the employee for withholding taxes that were never paid. On the other hand, when an employer fails to collect the tax, the employee is not credited for the tax, and the Government does not have to carry the burden of crediting the employee for taxes that were never paid. In theory, the Government suffers a loss either way, but the Government correctly asserts that the loss is greater when an employer accounts for the tax, but never remits it to the IRS. The Government further contends that Slodov v. United States, 436 U.S. 238, 98 S.Ct. 1778, 56 L.Ed.2d 251 (1978) supports its interpretation of § 7202 as punishing the failure to account for or pay over withholding tax. In Slodov, the Supreme Court interpreted 26 U.S.C. § 6672, the civil counterpart to § 7202, and focused on language similar to the language of § 7202, where a person is liable if he “willfully fails to collect such tax, or truthfully account for and pay over such tax.” 26 U.S.C. § 6672. The Court analyzed this language to address whether § 6672 makes a person liable for paying over taxes collected by his predecessors. The Supreme Court concluded that a person was obligated to pay over withholding tax, regardless of whether that person" }, { "docid": "11789902", "title": "", "text": "While the corporation often had insufficient funds to pay wages — such that he often had to delay cashing his own paychecks and once had to use $30,000 of the equity in his home to pay a corporate debt that was due — Blanchard continued to pay the same wages to employees, his wife, and himself without paying over withheld payroll taxes to the IRS. At the same time, the Blanchards used funds from their personal bank account and the company’s corporate account to make discretionary purchases, including taking a family vacation in Florida (which Blanchard testified he believed was paid for by his mother-in-law); leasing two Cadillac automobiles (paid for by Karen); buying jewelry, firearms, and a CD player; and engaging in recreational gambling that, according to records produced at trial, resulted in annual losses ranging from approximately $1,500 in 2000 to $20,000 in 2002. On August 22, 2007, the jury returned a verdict of not guilty on counts one through five (the charges under 26 U.S.C. § 7201) and guilty on counts six through twenty-three (the charges under 26 U.S.C. § 7202 and 18 U.S.C. § 287). Blanchard moved for a new trial and a judgment of acquittal pursuant to Federal Rules of Criminal Procedure 29 and 33, arguing that insufficient evidence supported his convictions on counts 21 through 23 (the violations of 18 U.S.C. § 287), that the court’s instructions to the jury had been confusing and erroneous, and that the court had erred in denying his motion to dismiss counts six through seventeen as time-barred. The court denied this motion. On February 11, 2009, the court sentenced Blanchard to a term of imprisonment of twenty-two months, plus thirty-six months of supervised release. Pursuant to 18 U.S.C. § 3663, the court also imposed restitution of $195,852.60, as well as a special assessment of $1,800. Blanchard now appeals. II. ANALYSIS A. Limitations period for offenses under 26 U.S.C. § 7202 Blanchard argues that counts 6 through 17 of the indictment, charging him with violating § 7202 for failing to truthfully account for and pay over taxes from March" }, { "docid": "11789905", "title": "", "text": "of a six-year period of limitations, we need not consider Blanchard’s arguments regarding prior iterations of the statute. Section 7202 provides that “any person required under this title to collect, account for, and pay over any tax imposed by this title who willfully fails to collect or truth fully account for and pay over such tax” shall be guilty of a felony. 26 U.S.C. § 7202. The periods of limitation for prosecuting a violation of the tax laws are set out in § 6531, which provides in relevant part: No person shall be prosecuted, tried, or punished for any of the various offenses arising under the internal revenue laws unless the indictment is found or the information instituted within 3 years next after the commission of the offense, except that the period of limitation shall be 6 years- — • (4) for the offense of willfully failing to pay any tax, or make any return ... at the time or times required by law or regulations.... 26 U.S.C. § 6531. Blanchard argues that a willful failure “to pay over” withheld tax is different than a willful failure “to pay” tax, and therefore the six-year limitations period under § 6531(4) does not apply to violations of § 7202. Two district courts have found that offenses under § 7202 are not subject to § 6531(4)’s longer limitations period. See United States v. Brennick, 908 F.Supp. 1004 (D.Mass.1995); United States v. Block, 497 F.Supp. 629 (N.D.Ga.1980). These courts argue that each of the enumerated exceptions to the three-year limitations period in § 6531 tracks the language of a particular criminal offense set out in § 7201 and following sections. See Brennick, 908 F.Supp. at 1018; Block, 497 F.Supp. at 632. For instance, the court in Brennick argued, see 908 F.Supp. at 1018, that the language in § 6531(4) regarding “failing to pay any tax, or make any return” seems to correspond to the language in § 7203 providing that it is a misdemeanor for “[a]ny person required under this title to pay any estimated tax or tax, or required by this title or" }, { "docid": "17694402", "title": "", "text": "defined by the Internal Revenue Code. Because this is a question of statutory interpretation, we will exercise plenary review. See Parise, 159 F.3d at 794; Hayden, 64 F.3d at 128. I.R.C. § 6672(a), applying the same language in § 7202, imposes civil penalties on “any person required to collect, truthfully account for, and pay over any tax imposed by this title who willfully fails to collect such tax.” In Slodov v. United States, 436 U.S. 238, 98 S.Ct. 1778, 56 L.Ed.2d 251 (1978), the Supreme Court held that § 6672(a) applies to corporate officers or employees responsible for the collection and paying over of withholding taxes. See id. at 244-45, 98 S.Ct. 1778. Although the government in Slodov sought only civil penalties, the Court stated that persons civilly liable under § 6672(a) could also be held criminally liable under § 7202. See id. at 245, 247, 98 S.Ct. 1778. Thayer urges us not to follow this apparent dicta in Slodov. He contends that a corporate officer is a “person” for purposes of § 6672(a) only because § 6671(b) specifies that the term “person,” as used in I.R.C. ch. 68, subchapter B, encompassing §§ 6671-6724, “includes an officer or employee of a corporation, or a member or employee of a partnership, who as such officer, employee, or member is under a duty to perform the act in respect of which the violation occurs.” But for purposes of § 7202, the term “person” is defined by identical language. See I.R.C. § 7343 (“The term ‘person’ as used in this chapter [I.R.C. ch. 75, encompassing §§ 7201-7344], includes an officer or employee of a corporation, or a member or employee of a partnership, who as such officer, employee, or member is under a duty to perform the act in respect of which the violation occurs.”)- Therefore, Thayer, as the president and majority owner of MIS and ELOP, was properly charged and convicted as a “person” under § 7202. 2. Truthful Accounting Thayer contends the statute imposes criminal liability only on one who neither accounts for nor pays over withholding taxes. Since he did" }, { "docid": "14237982", "title": "", "text": "MEMORANDUM AND ORDER GERTNER, District Judge. I. INTRODUCTION The defendant, John A. Brennick, is charged with nine counts of structuring financial transactions to avoid currency reporting requirements (Counts 1-9), one count of bankruptcy fraud (Count 10), twenty-two counts of failing to truthfully account for and pay over payroll taxes (Counts 11-32), and one count of corruptly endeavoring to obstruct and impede the due administration of the internal revenue laws (Count 33). In essence, the superseding indictment charges that Brennick, who was the president of a number of health care companies, withheld payroll taxes from his employees but failed to pay them over to the Internal Revenue Service, during the period from 1986 to 1993. Instead, the indictment charges, the defendant withdrew millions of dollars from these companies through structured cash transactions designed to avoid bank reporting requirements. The indictment also charges that defendant subsequently filed for bankruptcy on behalf of himself and one of his companies, and that he made false statements under oath during the Section 341 meeting with creditors. Finally, the indictment charges that the defendant failed to timely, remit withholding taxes, made misrepresentations to the IRS concerning the reasons for his failure to pay taxes, took his pay mainly in cash, structured cash transactions to avoid bank reporting requirements, obtained separate Employer Identification Numbers for each of his separate companies, retained checks made payable to the Internal Revenue Service by his staff rather than depositing them, and diverted business assets to his personal use, all as a way of corruptly endeavoring to obstruct and impede the due administration of the internal revenue laws. Defendant has filed motions to dismiss various of the counts. I will address each of defendants’ arguments in turn. II. DOUBLE JEOPARDY Counts 11 through 32 charge the defendant with violating 26 U.S.C. § 7202, by failing to “truthfully account for and pay over, either in whole or in part, to the Internal Revenue Service ... federal income taxes ... due and owing to the United States of America.” Defendant contends that because he has already been assessed civil penalties in connection with these" }, { "docid": "10845734", "title": "", "text": "for and pay over withholding tax. In Wilson and Poll, however, this court was not concerned whether § 7202 required the failure of both elements, but instead addressed the issue of how to define willfulness under § 7202. We hold, as did the Second Circuit in United States v. Evangelista, 122 F.3d 112, 121 (2d Cir.1997), that this court’s statements in Wilson and Poll, as to whether § 7202 required the failure to both account for and pay over the tax, were dicta. Notwithstanding, Gilbert contends that an examination of the plain meaning of § 7202, and its context within the statutory scheme, compels the conclusion that the intent of § 7202 was to provide a penalty for those who intentionally failed to account for as well as pay over withholding taxes. Assuming that Gilbert’s construction of § 7202 is not necessarily inconsistent with the plain meaning of the statute, we conclude that it leads to “unreasonable or impracticable results.” See Daas, 198 F.3d at 1174. In Evangelista, the Second Circuit explained that construing § 7202 as requiring the failure to both account for and pay over the tax would “result in a greater penalty for one who simply failed to collect trust fund taxes than for one who collected them and, as is charged here, used them for his own selfish purposes ..., so long as he notified the IRS that he had collected the tax.” 122 F.3d at 121 (citation omitted). The court further noted, “[t]hat Congress intended to make such a distinction is simply inconceivable.” Id. The Third Circuit, in United States v. Thayer, agreed with the Second Circuit and provided additional support by noting the title of § 7202: “Willful failure to collect or pay over tax.” 201 F.3d 214, 221 (3d Cir.1999). According to Gilbert, his construction of § 7202 is not impracticable because there are reasons why a person who fails to account for and pay withholding taxes is punished more severely than a person who fails to account for or pay over such taxes. Gilbert explains that the employer who fails to account" }, { "docid": "14237983", "title": "", "text": "that the defendant failed to timely, remit withholding taxes, made misrepresentations to the IRS concerning the reasons for his failure to pay taxes, took his pay mainly in cash, structured cash transactions to avoid bank reporting requirements, obtained separate Employer Identification Numbers for each of his separate companies, retained checks made payable to the Internal Revenue Service by his staff rather than depositing them, and diverted business assets to his personal use, all as a way of corruptly endeavoring to obstruct and impede the due administration of the internal revenue laws. Defendant has filed motions to dismiss various of the counts. I will address each of defendants’ arguments in turn. II. DOUBLE JEOPARDY Counts 11 through 32 charge the defendant with violating 26 U.S.C. § 7202, by failing to “truthfully account for and pay over, either in whole or in part, to the Internal Revenue Service ... federal income taxes ... due and owing to the United States of America.” Defendant contends that because he has already been assessed civil penalties in connection with these charges, the instant prosecution is barred by the Double Jeopardy Clause' of the Fifth Amendment. In particular, he argues that the earlier IRS assessment of civil penalties against him constituted a “punishment” and, because the constitution prohibits multiple punishments for the same offense, the government is precluded from any further punitive action (be it civil or criminal) against him. See United States v. Halper, 490 U.S. 435, 440, 109 S.Ct. 1892, 1897, 104 L.Ed.2d 487 (1989). The superseding indictment charges the defendant with failing to pay approximately $1.4 million in withholding taxes, and paying late an additional $700,000 of such taxes. The IRS imposed penalties pursuant to four distinct sections of the Tax Code: (1) late deposit penalties (26 U.S.C. § 6656); (2) late payment penalties (26 U.S.C. § 6653); (3) late filing penalties (26 U.S.C. § 6651); and (4) bad check penalties (26 U.S.C. § 6657). The total amount of these penalties exceeds $600,000. In contending that these earlier penalties constituted an imposition of punishment which bars the government from engaging in further criminal" }, { "docid": "10845739", "title": "", "text": "pay over withholding taxes, and as such the district court erred by denying his motion for judgment of acquittal. “Willfulness in the context of criminal tax cases is defined as a voluntary, intentional violation of a known legal duty ... [it] need not include bad faith or bad purpose.” United States v. Powell, 955 F.2d 1206, 1210 (9th Cir.1992) (citation omitted). Gilbert contends that his failure to pay over the withholding tax was not willful because BITW did not have the funds to pay the taxes. The Government, however, asserts that it presented sufficient evidence at trial that Gilbert voluntarily and intentionally paid net wages to his employees with knowledge that withholding taxes were not being remitted to the IRS. See Sorenson v. United States, 521 F.2d 325, 328 (9th Cir.1975) (addressing § 6672 and holding that “the payment of net wages in circumstances where there are no available funds in excess of net wages from which to make withholding is a willful failure to collect and pay over under § 6672.”). We agree with the Government that Gilbert’s act of paying wages to his employees, instead of remitting withholding taxes to the IRS, shows that he voluntarily and intentionally violated § 7202. Thus, we find the district court did not err in finding that Gilbert’s failure to pay over the withholding tax was willful. C. Statute of Limitations Gilbert contends that the applicable statute of limitations for § 7202 is three years, not six years, as determined by the district court. Gilbert’s argument is based on whether the language of 26 U.S.C. § 6531(4) applies to § 7202. Gilbert asserts that § 6531 does not apply to § 7202, citing United States v. Brennick, 908 F.Supp. 1004 (D.Mass.1995), and United States v. Block, 497 F.Supp. 629 (N.D.Ga.1980). Three appellate courts have addressed this issue, and all three courts have concluded that the six-year statute of limitations under § 6531(4) applies. See United States v. Gollapudi, 130 F.3d 66, 68-71 (3rd Cir.1997); Evangelista, 122 F.3d at 119; United States v. Porth, 426 F.2d 519, 522 (10th Cir.1970). The Third Circuit’s" }, { "docid": "14238016", "title": "", "text": "of the verb “fail.” The dictionary defines “fail” as “to be unsuccessful in the performance or completion of’, as in “He failed to do his duty.” Random House Unabridged Dictionary (1987), Def. 9. Thus, the statute appears to impose a penalty on someone who intentionally is unsuccessful in the performance or completion of the requirement — that he truthfully account for and pay over withholding tax. Under this reading, any intentional failure to complete the required .task (to truthfully account for and pay over the tax) constitutes a crime. Cf. Kinnie v. United States, 994 F.2d 279, 283 (6th Cir.1993) (liability exists under 26 U.S.C. § 6672, the civil analogue to Section 7202, when defendant is “a responsible person” and “willfully failed to pay over the taxes due”); Purcell v. United States, 1 F.3d 932 (9th Cir.1993) (liability under Section 6672 “entails showing that the individual both was a ‘responsible person’ and acted willfully in failing to collect or pay over the withheld taxes.”). Defendant claims that this reading of the statute is inconsistent with the holdings in Wilson and Poll. Wilson involved a prosecution under Section 2707(c) of the Internal Revenue Code of 1939, the predecessor to Section 7202. Section 2707(c) imposed criminal sanctions on any person required to collect, account for and pay over withholding tax “who willfully fails to collect or truthfully account for and pay over such tax, and any person who willfully attempts in any manner to evade or defeat any tax imposed.... ” As in the instant ease, the defendant in Wilson had collected withholding tax from his employees, had truthfully reported tax, but had failed to pay the tax over to the government. Instead the defendant had used the money to pay other expenses of his failing business. He was charged in the indictment with “failing and refusing to pay said ... taxes withheld from the wages of employees.” The principal issue on appeal was the meaning of the statute’s willfulness requirement. The court held that willfulness required more than mere knowing failure to pay the tax when funds were available to do" }, { "docid": "10845737", "title": "", "text": "burden of crediting the employee for taxes that were never paid. In theory, the Government suffers a loss either way, but the Government correctly asserts that the loss is greater when an employer accounts for the tax, but never remits it to the IRS. The Government further contends that Slodov v. United States, 436 U.S. 238, 98 S.Ct. 1778, 56 L.Ed.2d 251 (1978) supports its interpretation of § 7202 as punishing the failure to account for or pay over withholding tax. In Slodov, the Supreme Court interpreted 26 U.S.C. § 6672, the civil counterpart to § 7202, and focused on language similar to the language of § 7202, where a person is liable if he “willfully fails to collect such tax, or truthfully account for and pay over such tax.” 26 U.S.C. § 6672. The Court analyzed this language to address whether § 6672 makes a person liable for paying over taxes collected by his predecessors. The Supreme Court concluded that a person was obligated to pay over withholding tax, regardless of whether that person had personally collected the tax. The Court explained that “Sections 6672 and 7202 were designed to assure compliance by the employer with its obligation to withhold and pay the sums withheld, by subjecting the employer’s officials responsible for the employer’s decisions regarding withholding and payment to civil and criminal penalties for the employer’s delinquen cy.” Slodov, 436 U.S. at 247, 98 S.Ct. 1778. Although Slodov is not directly on point, it expressly states the general purpose of § 6672 and § 7202 — that a person has an obligation to both withhold and pay over the tax. As such, when an individual fails to perform one of the required duties, he is subject to conviction under § 7202. We conclude, consistent with the holdings of Evangelista and Thayer and the Supreme Court’s reasoning in Slodov, that Gilbert was properly convicted under § 7202 for failing to pay over the taxes he withheld from his employees. B. Insufficient Evidence Gilbert asserts that there was insufficient evidence to prove that he willfully failed to account for and" }, { "docid": "10845731", "title": "", "text": "LAY, Circuit Judge: I. Tommy Lee Gilbert appeals from the district court’s finding that he violated 26 U.S.C. § 7202 of the Internal Revenue Code (“IRC”) by failing to remit to the Internal Revenue Service (“IRS”) withholding tax that he collected for the employees of his business. Gilbert owned and operated a business called Best in the West Security (“BITW”) between 1988 and 1993. The business provided security guard services for private companies. BITW was required to collect, account for, and pay over to the IRS withholding tax for each of its employees. BITW collected and accounted for the taxes, but it failed to pay over the withholding tax to the IRS. Gilbert claimed that his business did not have the necessary funds to pay the taxes. Nonetheless, Gilbert continued to pay his employees’ salaries while failing to pay over the withholding tax. Gilbert was subsequently indicted on six counts of willful failure to collect and pay over tax, in violation of 26 U.S.C. § 7202 (Counts 1-6); one count of tax evasion, in violation of 26 U.S.C. § 7201 (Count 7); one count of willful failure to file a tax return, in violation of 26 U.S.C. § 7203 (Count 8); and one count of willfully subscribing to a false statement, in violation of 26 U.S.C. § 7206(1) (Count 9). A jury found Gilbert guilty of Counts 3, 4, and 5, and Gilbert now appeals. On appeal, Gilbert argues that (1) the district court did not properly construe § 7202 of the IRC; (2) there was insufficient evidence to find him guilty under § 7202; (3) the indictment was barred by the statute of limitations; (4) his due process rights were violated by vindictive prosecution; and (5) his due process rights were violated by pre-indictment delay. We affirm. II. A. Statutory Construction Gilbert contends that the district court improperly construed 26 U.S.C. § 7202 in finding that he violated the statute by failing to pay over withholding tax to the IRS. Gilbert argues that § 7202 requires the failure to both account for and pay over withholding tax. The Government" }, { "docid": "17694404", "title": "", "text": "account for the withheld funds, Thayer argues the evidence was insufficient to convict him under § 7202. As noted, § 7202 applies to one who “willfully fails to collect or truthfully account for and pay over” employees’ income taxes. Thayer and the government both interpret this language to criminalize either of two acts: (1) willful failure to collect employees’ income taxes or (2) willful failure to truthfully account for and pay over withheld taxes. Because Thayer accounted for the withheld taxes by reporting the withholdings on the corporations’ quarterly tax returns, he can be convicted only under the second prong. Therefore, the question is whether a person who collects and accounts for but does not pay over taxes has failed to account for and pay over those taxes. Because this is a question of statutory interpretation, we will exercise plenary review. See Parise, 159 F.3d at 794; Hayden, 64 F.3d at 128. The Court of Appeals for the Second Circuit faced the identical question and, relying on the reasoning in United States v. Brennick, 908 F.Supp. 1004 (D.Mass.1995), ruled that § 7202 requires employers to both account for and pay over the taxes. The court held the plain language of the statute supported this reading: “ ‘The phrase “truthfully account for and pay over” is ... unambiguously conjunctive. A person who was required to “truthfully account for and pay over” a tax would be required to do both things to satisfy the requirement.’ ” United States v. Evangelista, 122 F.3d 112, 121 (2d Cir.1997) (quoting Brennick, 908 F.Supp. at 1016) (omission in original). The court also noted that a contrary interpretation “ ‘would result in a greater penalty for one who simply failed to collect trust fund taxes than for one who collect[ed] them and, as is charged here, used them for his own selfish purposes ..., so long as he notified the IRS that he had collected the tax. That Congress intended to make such a distinction is simply inconceivable.’” Id. at 121 (quoting Brennick, 908 F.Supp. at 1017) (omission in original). We agree. Thayer points out that, as" }, { "docid": "10845738", "title": "", "text": "had personally collected the tax. The Court explained that “Sections 6672 and 7202 were designed to assure compliance by the employer with its obligation to withhold and pay the sums withheld, by subjecting the employer’s officials responsible for the employer’s decisions regarding withholding and payment to civil and criminal penalties for the employer’s delinquen cy.” Slodov, 436 U.S. at 247, 98 S.Ct. 1778. Although Slodov is not directly on point, it expressly states the general purpose of § 6672 and § 7202 — that a person has an obligation to both withhold and pay over the tax. As such, when an individual fails to perform one of the required duties, he is subject to conviction under § 7202. We conclude, consistent with the holdings of Evangelista and Thayer and the Supreme Court’s reasoning in Slodov, that Gilbert was properly convicted under § 7202 for failing to pay over the taxes he withheld from his employees. B. Insufficient Evidence Gilbert asserts that there was insufficient evidence to prove that he willfully failed to account for and pay over withholding taxes, and as such the district court erred by denying his motion for judgment of acquittal. “Willfulness in the context of criminal tax cases is defined as a voluntary, intentional violation of a known legal duty ... [it] need not include bad faith or bad purpose.” United States v. Powell, 955 F.2d 1206, 1210 (9th Cir.1992) (citation omitted). Gilbert contends that his failure to pay over the withholding tax was not willful because BITW did not have the funds to pay the taxes. The Government, however, asserts that it presented sufficient evidence at trial that Gilbert voluntarily and intentionally paid net wages to his employees with knowledge that withholding taxes were not being remitted to the IRS. See Sorenson v. United States, 521 F.2d 325, 328 (9th Cir.1975) (addressing § 6672 and holding that “the payment of net wages in circumstances where there are no available funds in excess of net wages from which to make withholding is a willful failure to collect and pay over under § 6672.”). We agree with" }, { "docid": "14238011", "title": "", "text": "the challenged counts to be multiplicitous. With respect to Counts 1-9 (relating to structuring), the issue is not even close. Structuring does not in itself involve a violation of the internal revenue laws, and it is quite easy to conceive of a realistic scenario in which currency structuring would not involve an endeavor to obstruct the internal revenue laws (for example to avoid detection of an illegal business). The issue with respect to Counts 11-32 (relating to failure to report and pay over withholding tax under 26 U.S.C. § 7202) is closer, since these counts at least involve violations of the internal revenue code. However, even here, I find that there is far more than a “remote” possibility that a violation of Section 7202 could be proven without simultaneously proving a violation of Section 7212(a). Unlike 26 U.S.C. § 7201, the general tax evasion statute, Section 7202 does not involve taxes which are personally owed by defendant. The taxes at issue in Section 7202 are taxes owed by others (the defendant’s employees), which the defendant is required to collect, account for, and pay over to the Internal Revenue Service. A failure to comply with Section 7202 does not, therefore, necessarily confer any unlawful benefit on the defendant. He may, for example, fail to collect the tax from his employees in the first instance out of hatred for the government or a belief that withholding taxes are immoral, thus violating the law without putting any cash in his own pocket. By contrast Section 7212(a) entails an intent to obtain an unlawful benefit by endeavoring to obstruct operation of the tax laws. This is an additional evil which Section 7202 does not address. V. THE PROPER CONSTRUCTION OF 26 U.S.C. § 7202 Counts 11-32 charge the defendant with violation of 26 U.S.C. § 7202, which provides as follows: Any person required under this title to collect, account for, and pay over any tax imposed by this title who willfully fails to collect or truthfully account for and pay over such tax shall, in addition to other penalties provided by law, be guilty" }, { "docid": "2257878", "title": "", "text": "came only two weeks after the entry of this indictment, over five months before trial began, and the government was of course free to seek a superseding indictment at any time prior to trial. .The double jeopardy clause provides, \"nor shall any person be subject for the same of-fence to be twice put in jeopardy of life or limb.” U.S. Const, amend. V. . In a footnote, Ms. Farr also asserts that there was insufficient evidence to support the first element of the crime because, as she asserted in her argument for reversal, she did not personally owe the quarterly employment taxes of ATHA-Genesis. We need not pass on this argument because sufficient evidence showed that she at least owed the trust fund recovery penalty, which is, as we have already explained in footnote 5, also a “substantial tax liability.’’ See 26 U.S.C. § 6671. To the extent that she challenges the use of Section 7201 rather than Section 7202 to prosecute her failure to pay a Section 6672 liability, that question does not pertain to evidentiary sufficiency but is a question of law we have left open. See supra Part II.B. . Because we have resolved this appeal without the need to consider the items in the govemment's addendum to its supplemental appendix, we dismiss Ms. Farr’s motion to strike it as moot. We deny Ms. Farr's motion to strike the government’s entire answer brief. Because we reverse Ms. Farr’s conviction on the basis of an unconstitutional constructive amendment, we also have no need to consider her alternative challenge that the district court's contested jury instruction equating quarterly employment taxes and the trust fund recovery penalty impermissibly directed the jury that the government had proven the first essential element of Section 7201 (a substantial tax liability), except to note that it, too, does not implicate the sufficiency of the evidence against her and thus could not bar retrial." }, { "docid": "14238017", "title": "", "text": "the holdings in Wilson and Poll. Wilson involved a prosecution under Section 2707(c) of the Internal Revenue Code of 1939, the predecessor to Section 7202. Section 2707(c) imposed criminal sanctions on any person required to collect, account for and pay over withholding tax “who willfully fails to collect or truthfully account for and pay over such tax, and any person who willfully attempts in any manner to evade or defeat any tax imposed.... ” As in the instant ease, the defendant in Wilson had collected withholding tax from his employees, had truthfully reported tax, but had failed to pay the tax over to the government. Instead the defendant had used the money to pay other expenses of his failing business. He was charged in the indictment with “failing and refusing to pay said ... taxes withheld from the wages of employees.” The principal issue on appeal was the meaning of the statute’s willfulness requirement. The court held that willfulness required more than mere knowing failure to pay the tax when funds were available to do so. Rather, the court found that willfulness entailed an intent to evade the payment of taxes. Thus, if the trier of fact found that the defendant’s failure to pay tax was part of an attempt to save his business (and pay the tax later) rather than an attempt to avoid paying tax entirely, there would be no basis for conviction. Wilson, 250 F.2d at 324-325. In reaching its conclusion, the Wilson court stated in dicta that, “[sjince appellant both collected and accounted for the withheld monies, conviction under this section can be predicated only on the willful attempt to evade or defeat the payment of the taxes.” Wilson, 250 F.2d at 318. Seventeen years later, in Poll, the court, interpreting Section 7202, relied upon this dicta to support its own dictum that the crime “require[s] two failures to act, willful failure to truthfully account and willful failure to pay over.” Poll, 521 F.2d at 334, n. 3. But like Wilson, Poll did not turn on a determination of the elements of the crime, but again" }, { "docid": "11789924", "title": "", "text": "to the tax charges in the indictment because good faith is inconsistent with willfully failing to account for and pay over employment taxes. While the term good faith has no precise definition it means among other things an honest belief that is subjectively held, a lack of malice, and the intent to perform all lawful obligations. A person who acts on a belief or on an opinion honestly held is not punishable under this statute merely because that honest belief turns out to be incorrect or wrong. The tax laws are subject to criminal punishment only for those people who willfully fail to account for and pay over employment taxes.... In determining whether or not the Government has proved that the defendant willfully failed to account for and pay over employment taxes or whether the Defendant acted in good faith the jury must consider all of the evidence received in the case bearing on the Defendant’s state of mind. The burden of proving good faith ... does not rest with the Defendant because the Defendant has no obligation to prove anything to you. The Government has the burden of proving to you beyond a reasonable doubt that the Defendant acted willfully. (Id. at 1115-17 (§ 7202 instruction); id. at 1121-22 (§ 287 instruction).) The court also emphasized that, under § 7202, “[i]n considering the Defendant’s intent and whether or not he acted in good faith negating willfulness, you may consid er Defendant’s action in filling [sic] state withholding tax returns ■ with full payment.” (Id. at 1115-16.) Even though it found that an ability to pay taxes when due was not a separate element of a § 7202 offense, the court further instructed the jury that “[t]he good faith belief subjectively held by the Defendant that at the time payment was due that he lacked sufficient funds to enable him to meet his obligation to pay employment taxes may be considered by you in determining if the Defendant acted willfully.” (Id. at 1117.) Similarly, in the § 287 instruction on good faith, the court emphasized that “[p]roof of intent is" }, { "docid": "10845735", "title": "", "text": "7202 as requiring the failure to both account for and pay over the tax would “result in a greater penalty for one who simply failed to collect trust fund taxes than for one who collected them and, as is charged here, used them for his own selfish purposes ..., so long as he notified the IRS that he had collected the tax.” 122 F.3d at 121 (citation omitted). The court further noted, “[t]hat Congress intended to make such a distinction is simply inconceivable.” Id. The Third Circuit, in United States v. Thayer, agreed with the Second Circuit and provided additional support by noting the title of § 7202: “Willful failure to collect or pay over tax.” 201 F.3d 214, 221 (3d Cir.1999). According to Gilbert, his construction of § 7202 is not impracticable because there are reasons why a person who fails to account for and pay withholding taxes is punished more severely than a person who fails to account for or pay over such taxes. Gilbert explains that the employer who fails to account for the taxes is paying an employee “under the table,” and as such frustrates the IRS’s policy objective of assessing and collecting taxes. In contrast, a person who truthfully accounts for withholding taxes, but fails to turn the money over, does not frustrate the policy objectives of the IRS because the IRS is aware that money is owed and it knows where to collect the money. Gilbert concludes that “[wjhile compliance may not be timely, it can ultimately be achieved.” We are not persuaded by such arguments. As the Government explains, when an employer collects and accounts for withholding tax for an employee, the employee gets the benefit of the withholding tax, regardless of whether the IRS is paid. Thus, if the Government never receives the tax money, the Government has to carry the burden of crediting the employee for withholding taxes that were never paid. On the other hand, when an employer fails to collect the tax, the employee is not credited for the tax, and the Government does not have to carry the" } ]

[ { "docid": "11702709", "title": "", "text": "a second amended complaint, which incorporated a second Notice of Right to Sue. After the parties conducted discovery, IDOT again filed a motion for summary judgment, which was granted in its entirety. Roney appeals, and we review de novo the district court’s decision. Tanner v. Jupiter Realty Corp., 433 F.3d 913, 915 (7th Cir.2006). II. ANALYSIS A. Roney’s Retaliation Claims Under Title VII’s anti-retaliation provision, it is unlawful for an employer to “discriminate against” an employee “because he has opposed any practice made an unlawful employment practice” by the statute or “because he has made a charge, testified, assisted, or participated in” a Title VII “investigation, proceeding, or hearing.” 42 U.S.C. § 2000e-3(a). An employee can establish a prima facie case of retaliation by proceeding under either the direct or indirect method. See Sublett v. John Wiley & Sons, Inc., 463 F.3d 731, 740 (7th Cir.2006). Under the direct approach, the employee must show evidence that he engaged in a statutorily protected activity (such as bringing a Title VII claim) and as a result, suffered an adverse action. Id. Alternatively, the employee may proceed under the indirect approach and show that after he complained of discrimination, he, and not any other similarly situated employee who did not complain, was subject to an adverse action although he was performing up to the employer’s legitimate job expectations. Id. “Failure to satisfy any one element of the prima facie case is fatal to an employee’s retaliation claim.” Id. (quoting Hudson v. Chi. Transit Auth., 375 F.3d 552, 560 (7th Cir.2004)). i. Roney’s demotion claim is time-barred. Before we address the sufficiency of Roney’s claims of retaliation, we must first settle an issue disputed by the parties at oral argument: whether Roney’s demotion claim is time-barred by Title VII’s statute of limitations. At the outset of the litigation, the district court ruled that Roney could not recover on his claims that involved conduct occurring before July 2, 1997. The district court’s ruling stems from 42 U.S.C. § 2000e-5(e)(l), which provides that a charge of employment discrimination must be filed with the EEOC within 300" } ]

[ { "docid": "23124848", "title": "", "text": "for the first time about Price’s critical recommendations for him and he thought they made him look bad. At that same meeting, Baker recommended that Sitar be terminated. In assessing this part of Sitar’s case, we follow the standards for retaliation claims announced in Stone v. City of Indianapolis Pub. Util. Div., 281 F.3d 640 (7th Cir.2002). The plaintiff may establish a prima facie case of retaliation and overcome defendant’s motion for summary judgment using either the direct method or the indirect method. Under the direct method, the plaintiff must present direct evidence of (1) a statutorily protected activity; (2) an adverse action taken by the employer; and (3) a causal connection between the two. Id. at 644. Under the indirect method, the plaintiff must show that (1) she engaged in a statutorily protected activity; (2) she performed her job according to her employer’s legitimate expectations; (3) despite her satisfactory job performance, she suffered an adverse action from the employer; and (4) she was treated less favorably than similarly situated employees who did not engage in statutorily protected activity. Id.; Hilt-Dyson v. City of Chicago, 282 F.3d 456, 465 (7th Cir.2002); Haywood v. Lucent Techs., 323 F.3d 524, 531 (7th Cir.2003). If the plaintiff establishes these elements, the burden shifts to the defendant to come forward with a legitimate, non-invidious reason for its adverse action. Id. Although the burden of production shifts to the defendant under this method, “the burden of persuasion rests at all times on the plaintiff.” Haywood, 323 F.3d at 531 (citing Klein v. Trustees of Indiana Univ., 766 F.2d 275, 280 (7th Cir.1985)). Once the defendant presents a legitimate, non-invidious reason for the adverse action, the burden shifts back to the plaintiff to show that the defendant’s reason is pretextual. Id. The parties do not dispute that Sitar engaged in protected speech, or that her termination was the type of adverse action contemplated by the retaliation statute. The district court rejected Sitar’s retaliation claim for failing to prove causation, because more than three months had elapsed between the filing of her complaint and her termination. Under" }, { "docid": "4498207", "title": "", "text": "474 F.3d 455, 459 (7th Cir.2007). Under the direct method, a plaintiff must show that he engaged in a statutorily protected activity; he suffered an adverse action taken by the employer; and there was a causal connection between the two. Tomanovich v. City of Indianapolis, 457 F.3d 656, 663 (7th Cir.2006). “Under the indirect method, the plaintiff must show that (1) she engaged in a statutorily protected activity; (2) she performed her job according to her employer’s legitimate expectations; (3) despite her satisfactory job performance, she suffered an adverse action from the employer; and (4) she was treated less favorably than similarly situated employees who did not engage in statutorily protected activity.” Rhodes, 359 F.3d at 508. Defendants argue first that Golden and Moore cannot prevail under either method because they did not suffer an adverse employment action. Golden’s and Moore’s claims are based on the new schedules they received immediately before resigning their employment. Both schedules reflected reduced hours for the upcoming work period, and Golden’s reflected a transfer to a new site with a lengthier commute. Both, however, left their jobs before these changes took effect. Defendants contend that this claim is foreclosed by Whittaker, in which the Seventh Circuit considered whether a scheduled three-day suspension without pay could qualify as an adverse employment action even though the plaintiff quit before serving the suspension. The court noted that such actions are “[t]ypically ... economic injuries” and that an employee who “never served the suspension ... never realized any economic effect from the slated employment action.” Whittaker, 424 F.3d at 647. “Simply put, a suspension without pay that is never served does not constitute an adverse employment action.” /¿.‘Plaintiffs contend that the Seventh Circuit “categorically rejected this theory holding that its analysis applied only to discrimination claims under [§ 2000e-2(a) ], not retaliation claims under [§ 2000e-3(a) ].” Pis.’ Resp. at 17. They are incorrect. Nothing in the case indicates that the holding is limited in this manner. Indeed, the court stated that it was addressing both the discrimination claim and the retaliation claim “in tandem” and used the" }, { "docid": "23618592", "title": "", "text": "had issued him a performance warning based on a number of incidents between Andonissamy and his supervisors and coworkers. Andonissamy thus cannot demonstrate that he was meeting their legitimate expectations at the time he was fired. Nor did Andonissamy provide evidence demonstrating that other, similarly situated employees from different national origins were treated more favorably. We thus affirm the district court’s summary judgment decision on this count as well. B. Retaliation claim. Andonissamy’s next argument is that the district court improperly dismissed his claim that Hewlett-Packard retaliated against him for notifying superiors about the hostile work environment. To establish a claim for retaliation, an employee can proceed under one of two methods. Under the direct method, an employee must demonstrate that (1) he engaged in statutorily protected activity; (2) he suffered an adverse action taken by his employer; and (3) there was a causal connection between the statutorily protected activity and the adverse action. Tomanovich v. City of Indianapolis, 457 F.3d 656, 662-63 (7th Cir.2006). Under the indirect method, a plaintiff must prove that (1) he engaged in statutorily protected activity; (2) he met his employer’s legitimate expectations; (3) he suffered an adverse employment action; and (4) he was treated less favorably than similarly situated employees who did not engage in statutorily protected activity. Id. The district court ruled, first, that An-donissamy could not make a retaliation claim because he never complained to Hewlett-Packard about discriminatory behavior and so never engaged in statutorily protected activity. Second, the court found that the timing of Hewlett-Packard’s actions was not suspicious, as the record indicated that Andonissamy complained about Smith on May 6, 2003, which was the day after Smith served him with a performance warning based on Dixon-Woolfolk’s investigation. Andonissamy argues that he can prove his retaliation claim via the direct method. He claims that his e-mail to Lewis on May 6, 2003, which makes reference to his immigrant status, was sufficient to constitute a report of discrimination under Title VII. Andonissamy also argues that the timing of his termination, after Dixon-Woolfolk had completed her investí- gation of Smith, was suspicious. Andonis-samy’s" }, { "docid": "21155307", "title": "", "text": "for discrimination because of the vastly more favorable treatment Willis and Alvarez received as compared to Kodl. Specifically, Kodl claims that both Willis and Alvarez engaged in misconduct without discipline. As the district court recognized, however, there is no evidence that Willis and Alvarez engaged in misconduct. Willis denies he engaged in the conduct of which he was accused. And, the School District’s investigations confirmed that position and further found that Alvarez had not participated in the tape recording incident. Moreover, Kodl admitted that she engaged in unprofessional conduct in attempting to tape record a co-worker. Kodl has not shown pretext, and the district court did not err in granting summary judgment on Kodl’s sex and age discrimination claims. B. Retaliation Kodl next claims that the district court erred by entering summary judgment on her retaliation claims. A prima facie case of retaliation may be made directly or indirectly. Under the direct method, a plaintiff must show (1) she engaged in statutorily protected activity; (2) she suffered an adverse employment action taken by the employer; and (3) a causal connection between the two. Moser v. Ind. Dep’t of Corr., 406 F.3d 895, 903 (7th Cir.2005). Under the indirect method, plaintiff must show that she (1) engaged in statutorily protected expression, (2) met the employer’s legitimate expectations, (3) suffered an adverse employment action, and (4) was treated less favorably than similarly situated employees who did not engage in statutorily protected expression. Tomanovich v. City of Indianapolis, 457 F.3d 656, 663 (7th Cir.2006). The district court found that Kodl could not establish a prima facie case of retaliation under either a direct or an indirect method because she did not engage in protected expression, and even if she had, she failed to establish pretext. We agree. To constitute protected expression, “the complaint must indicate the discrimination occurred because of sex, race, national origin, or some other protected class. Merely complaining in general terms of ... harassment, without indicating a connection to a protected class or providing facts sufficient to create that inference, is insufficient.” Tomanovich, 457 F.3d at 663 (citations omitted). Neither" }, { "docid": "4804779", "title": "", "text": "of law. Fed R. Civ. P. 56(c). A. Retaliation To survive summary judgment on her retaliation claim, O’Neal needed to present evidence that, if believed by a trier of fact, would show (1) that she engaged in an activity protected by Title VII; (2) that she suffered an adverse action taken by the CPD; and (3) a causal connection between the two, under either the direct or indirect method of proof. See Tomanovich v. City of Indianapolis, 457 F.3d 656, 662-63 (7th Cir.2006); Stone v. City of Indianapolis Pub. Utils. Div., 281 F.3d 640, 642-44. O’Neal succeeds on the first two elements but fails on the third. First, O’Neal engaged in two activities protected by Title VII: filing her employment discrimination lawsuit in 2002 and filing her grievance for retaliation in 2006. See 42 U.S.C. § 2000e-3(a) (defining statutorily protected activity to include participating in a Title VII proceeding or opposing a practice made unlawful by Title VII). (By contrast, it did not constitute statutorily protected activity when O’Neal complained in 2007 to Commander O’Donnell that Lieutenant Kusinski tolerated insubordination by police officers under O’Neal’s command, because her complaints failed to indicate that the behavior was discriminatory. Tomanovich, 457 F.3d at 663; see O’Neal Letters of May 1 & 8, 2007; O’Neal Dep. at 313:1-3.) Second, O’Neal adduced sufficient evidence of an adverse employment action. An adverse employment action is one that “well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” Tomanovich, 457 F.3d at 664 (quoting Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006)). A lateral job transfer within an organization may constitute an adverse employment action, for example, if it reduces the employee’s “opportunities for future advancement.” Nichols v. S. Ill. Univ.-Edwardsville, 510 F.3d 772, 781 (7th Cir.2007). Commander Wiberg testified that repetitive reassignments “would negatively affect [one’s] ability to be promoted from a police sergeant to a lieutenant on the basis of a meritorious promotion.” Wiberg Dep. at 23-24. And indeed, the two actionable transfers were “repetitive,” considering as" }, { "docid": "19912924", "title": "", "text": "Garst retaliated against her for complaining about how she had been treated at the company, and that it did so in two ways: first by eliminating her position, and second by declining to hire her for the Research Assistant position at the Brookston facility that became open after the company’s restructuring. We review the district court’s grant of summary judgment de novo, viewing the record and all reasonable inferences drawn from it in the light most favorable to the party opposing the motion. Peirick v. Ind. Univ.-Purdue Univ. Indianapolis Athletics Dep’t, 510 F.3d 681, 687 (7th Cir.2007). Summary judgment is appropriate when the materials before the court demonstrate “that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c); see Hobbs v. City of Chicago, 573 F.3d 454, 460 (7th Cir.2009). Title VII forbids an employer from discriminating against an employee who has “opposed any practice” made unlawful by Title VII or who “has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing” under Title VII. 42 U.S.C. § 2000e-3(a). Scruggs can prove retaliation under either the direct or indirect method. See Argyropoulos v. City of Alton, 539 F.3d 724, 733 (7th Cir.2008). Under the direct method, a plaintiff must present evidence that: (1) she engaged in statutorily protected activity; (2) she suffered a materially adverse action; and (3) a causal connection exists between them. Id. A plaintiff proceeding under the indirect method establishes a prima facie ease by establishing the same first two elements, as well as that: (3) she was meeting her employer’s legitimate expectations; and (4) she was treated less favorably than a similarly situated employee who did not engage in statutorily protected activity. Stephens v. Erickson, 569 F.3d 779, 786 (7th Cir.2009); Kodl v. Bd. of Ed., School Dist. 45, Villa Park, 490 F.3d 558, 562 (7th Cir.2007). If the plaintiff succeeds in passing this initial hurdle, the burden shifts to the defendant to demonstrate a nondiscriminatory reason for its action. Stephens, 569" }, { "docid": "23542985", "title": "", "text": "4. Retaliation Lastly, we turn to Ms. Atanus’ contention that the GSA retaliated against her when it transferred her to a different position within the same GS-11 level after she filed a formal complaint of discrimination with the EEOC. Title VII proscribes an employer from retaliating against an employee who has engaged in statutorily protected activity. See 42 U.S.C. § 2000e-3(a) (“It shall be an unlawful employment practice for an employer to discriminate against any of his employees ... because he has opposed any practice made an unlawful employment practice by this subchapter, or ... has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchap-ter.”). Ms. Atanus proceeds under the indirect method of proof. Under the indirect methodology, an employee must present sufficient evidence to establish a prima facie case of retaliation. The employee must show that “(1) she engaged in statutorily protected activity; (2) she performed her job according to her employer’s legitimate expectations; (3) despite meeting her employer’s legitimate expectations, she suffered a materially adverse employment action; and (4) she was treated less favorably than similarly situated employees who did not engage in statutorily protected activity.” Hilt-Dyson v. City of Chicago, 282 F.3d 456, 465 (7th Cir.2002); see also Hudson v. Chicago Transit Auth., 375 F.3d 552, 560 (7th Cir.2004). “Under the indirect method of proof, failure to satisfy any one element of the prima facie case is fatal to an employee’s retaliation claim.” Hudson, 375 F.3d at 560. Once the employee establishes a prima facie case, the burden shifts to the employer to offer a legitimate, non-discriminatory reason for the adverse employment action. Hilt-Dyson, 282 F.3d at 465. The burden then shifts back to the employee to demonstrate that the employer’s reason is pretextual. Id. (noting that, at this point, summary judgment is proper if the employee fails to establish pretext). We focus on whether Ms. Atanus has suffered a materially adverse employment action — the third prong of her prima facie case. Adverse employment action “has been defined quite broadly in this circuit.” Smart v. Ball" }, { "docid": "23124847", "title": "", "text": "to indicate her [gender] is an issue. An employee can honestly believe she is the object of discrimination, but if she never mentions it, a claim of retaliation is not implicated, for an employer cannot retaliate when it is unaware of any complaints.” Miller, 203 F.3d at 1008. Cf. Dey v. Colt Const. & Dev. Co., 28 F.3d 1446, 1458 (7th Cir.1994). Sitar conceded that she never told Pedigo that sex discrimination was her real problem. That is enough to doom her claim of a retaliatory transfer. 2. Termination We come to the opposite conclusion with respect to Sitar’s claim that her termination was retaliatory. As we noted earlier, on December 17,1997, Sitar filed a formal complaint of sex discrimination and hostile work environment against Baker and Whitworth with INDOT’s Affirmative Action office. A few months later, on March 20, 1998, Baker was meeting with his supervisors (Davis and Risch) to discuss Price’s recommendation for Baker himself and Sitar’s continued status with INDOT. Baker became upset during the course of that meeting, because he heard for the first time about Price’s critical recommendations for him and he thought they made him look bad. At that same meeting, Baker recommended that Sitar be terminated. In assessing this part of Sitar’s case, we follow the standards for retaliation claims announced in Stone v. City of Indianapolis Pub. Util. Div., 281 F.3d 640 (7th Cir.2002). The plaintiff may establish a prima facie case of retaliation and overcome defendant’s motion for summary judgment using either the direct method or the indirect method. Under the direct method, the plaintiff must present direct evidence of (1) a statutorily protected activity; (2) an adverse action taken by the employer; and (3) a causal connection between the two. Id. at 644. Under the indirect method, the plaintiff must show that (1) she engaged in a statutorily protected activity; (2) she performed her job according to her employer’s legitimate expectations; (3) despite her satisfactory job performance, she suffered an adverse action from the employer; and (4) she was treated less favorably than similarly situated employees who did not engage" }, { "docid": "21160939", "title": "", "text": "on probation, issuing negative performance reviews for him, and continuing to deny him a promotion to the associate professional scientist payroll level. Because Brown filed his first discrimination complaint after December 29, 1999, his retaliation claim is not time-barred. Under the anti-retaliation provision of Title VII, it is unlawful for an employer to “discriminate against” an employee “because he has opposed any practice made an unlawful employment practice” by the statute or “because he has made a charge, testified, assisted, or participated in” a Title VII “investigation, proceeding, or hearing.” Roney, 474 F.3d at 459 (quoting 42 U.S.C. § 2000e-3(a)). “A plaintiff may prove retaliation by using either the direct method or the indirect, burden-shifting method.” Tomanovich v. City of Indianapolis, 457 F.3d 656, 662 (7th Cir.2006) (quotations and citations omitted). “Under the direct method, a plaintiff must show that (1) he engaged in statutorily protected activity; (2) he suffered an adverse action taken by the employer; and (3) there was a causal connection between the two.” Id. at 663 (quotations and citations omitted). Alternatively, under the indirect approach, in order to establish a prima facie case for retaliation the employee “must show the following: (1) after filing a charge [the employee] was subject to adverse employment action; (2) at the time, [the employee] was performing his job satisfactorily; and (3) no similarly situated employees who did not file a charge were subjected to an adverse employment action.” Hudson v. Chicago Transit Auth., 375 F.3d 552, 560 (7th Cir.2004). “ ‘If the plaintiff establishes a prima facie case, the burden of production shifts to the employer to present evidence of a non-discriminatory reason for its employment action.’ ” Tomanovich, 457 F.3d at 663 (quoting Adusumilli v. City of Chicago, 164 F.3d 353, 362 (7th Cir.1998)). Then, if the employer presents evidence of a non-discriminatory reason for its employment action, “ ‘the burden shifts back to the plaintiff to demonstrate that the employer’s reason is pre-textual.’ ” Id. (quoting Moser v. Ind. Dep’t of Corr., 406 F.3d 895, 903 (7th Cir.2005)). “Under the indirect method of proof, failure to satisfy any" }, { "docid": "4498205", "title": "", "text": "reasons, the Court grants defendants’ motion for summary judgment on counts five, six, and seven. C. Constructive discharge claims In counts nine and ten, Golden and Moore claim that WSB constructively discharged them. “In order to show that a hostile work environment resulted in a constructive discharge, [a plaintiff] must not only demonstrate that a hostile work environment existed but also that the abusive working environment was so intolerable that [his] resignation was an appropriate response.” Herron, 388 F.3d at 303 (internal quotation marks and citation omitted). “The working conditions for constructive discharge must be even more egregious than the high standard for hostile work environment because an employee is expected to remain employed while seeking redress.” Id. at 303 (internal quotation marks and citation omitted). “Because [Golden and Moore have] failed to show work conditions so egregious as to meet the stringent hostile work environment standard, [they] certainly cannot reach the even higher threshold required to show a constructive discharge.” Whittaker v. N. Illinois Univ., 424 F.3d 640, 647 (7th Cir.2005). This is so even though plaintiffs appear to base their constructive discharge claims primarily on their reduced hours rather than on discriminatory conduct. They have presented no evidence from which a reasonable jury could conclude that their “working conditions were so intolerable that [they] had to quit.” See Roby v. CWI, Inc., 579 F.3d 779, 785 (7th Cir.2009) (contrasting the plaintiff with employees whose co-workers had threatened or engaged in actual violence). The Court therefore grants defendants’ motion for summary judgment on counts nine and ten. D. Retaliation claims In counts eleven, twelve, and thirteen, plaintiffs assert that WSB retaliated against them after they submitted a complaint to the EEOC. Title VII forbids retaliation against anyone who “has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.” 42 U.S.C. § 2000e-3(a). An employee may establish retaliation by proceeding under either the direct or indirect method of proof. Roney v. Illinois Dep’t of Transp.," }, { "docid": "22597497", "title": "", "text": "IDOT that a problem exists as required in Silk. Rhodes failed to take advantage of the preventative or corrective opportunities provided by IDOT and thus her hostile environment claim fails without reaching a jury because she has not pointed to adequate evidence showing that IDOT was negligent in discovering or remedying the harassment. C. Retaliation Claim Finally, Rhodes claims that IDOT retaliated against her by marking her absent without pay, in violation of company policy, on what turned out to be her final day of employment. Title VII prohibits an employer from discriminating against an' employee because that employee hás opposed any practice deemed unlawful under the Act. 42 U.S.C. § 2000e-3(a). The plaintiff may establish a prima facie case of retaliation and overcome defendant’s motion for summary judgment using either the direct method or the indirect method. See Stone v. City of Indianapolis Pub. Util. Div., 281 F.3d 640, 642 (7th Cir.2002). Under the direct method, the plaintiff must present direct evidence of (1) a statutorily protected activity; (2) an adverse action taken by the employer; and (3) a causal connection between the two. Id. at 644. Under the- indirect method, the plaintiff must show that (1) she engaged in a statutorily protected activity; (2) she performed her job according to her employer’s legitimate expectations; (3) despite her satisfactory job performance, she suffered an adverse action from the employer; and (4) she was treated less favorably than similarly situated employees who did not engage in statutorily protected activity. Id.; Hilt-Dyson v. City of Chicago; 282 F.3d 456, 465 (7th Cir.2002); Haywood v. Lucent Techs., 323 F.3d 524, 531 (7th Cir.2003). “Under this method, the -plaintiff so proceeding need not show even an attenuated causal link.’ ” Haywood, id. (internal citation omitted). If the plaintiff establishes these elements, the burden of production shifts to the defendant to come forward with a legitimate, non-invidious reason for its adverse action. Id. Although the burden of production shifts to the defendant under this method, “the burden of persuasion rests at all times on the plaintiff.” Haywood, 323 F.3d at 531 (citing Klein v." }, { "docid": "23206393", "title": "", "text": "Hilb-Dyson’s sexual harassment claim. c. Finally, we turn to Ms. Hilt-Dyson’s contention that Sutherland retaliated against her for reporting his alleged discriminatory activity to the CPD. Title VII prohibits an employer from retaliating against an employee who has “opposed any practice made an unlawful employment practice by this subchapter or ... has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding or hearing” under the statute. See 42 U.S.C. § 2000e-3(a). To demonstrate that an employer has violated this provision of Title VII, an employee may present either direct or indirect evidence of the employer’s retaliatory intent. Direct evidence, however, frequently does not exist in these cases. As such, most employees attempt to satisfy their burden through the indirect method of proof. Under this indirect methodology, an employee must first present evidence sufficient to establish a prima facie case that her employer retaliated against her in violation of Title VII. More precisely, an employee must demonstrate that: (1) she engaged in statutorily protected activity; (2) she perfoimed her job according to her employer’s legitimate expectations; (3) despite meeting her employer’s legitimate expectations, she suffered a materially adverse employment action; and (4) she was treated less favorably than similarly situated employees who did not engage in statutorily protected activity. See Stone v. City of Indianapolis Pub. Utils. Div., No. 01-3210, 2002 WL 234239, at *1 (7th Cir. Feb.19, 2002). Absent direct evidence of retaliation, failure to satisfy any element of the prima facie case proves fatal to the employee’s retaliation claim. Once the employee succeeds in proving her prima facie case, the employer must offer a legitimate, noninvidious reason for the adverse employment action. See Stone, 2002 WL 234239, at *3; Aviles v. Cornell Forge Co., 241 F.3d 589, 592 (7th Cir.2001). Once the employer has done so, the burden of production shifts back to the plaintiff to demonstrate the pretextual nature of the proffered reason. See Stone, 2002 WL 234239, at *3; Aviles, 241 F.3d at 592. At this point, if the employee fails to establish pretext, her retaliation claim cannot survive summary judgment. 1." }, { "docid": "23708885", "title": "", "text": "438 (7th Cir.2004). The incidents of which Luckie complains fail to satisfy this objective test. The conduct in question consists of isolated events that were not physically threatening or humiliating and in some cases were not even directed at Luckie. The evidence is insufficient to show a workplace permeated with discriminatory ridicule, intimidation, and insult. See Cooper-Schut v. Visteon Auto. Sys., 361 F.3d 421, 426 (7th Cir.2004). Since Luckie fails to establish all of the elements of a hostile work environment claim, the district court properly granted summary judgment to Ameritech. Retaliation An employer may not retaliate against an employee who has complained about discrimination or other practices that violate Title VII. 42 U.S.C. § 2000e-3(a); Sitar v. Ind. Dep’t of Transp., 344 F.3d 720, 727 (7th Cir.2003). Luckie argues that Ameritech retaliated against her by placing her on a PIP and later terminating her employment because she contacted the EEO hotline to complain about Patterson and hired an attorney who sent letters to Ameritech alleging racial discrimination. A plaintiff has two distinct ways of establishing a prima facie case for unlawful retaliation: the direct method and the indirect method. Stone v. City of Indianapolis Public Util. Div., 281 F.3d 640, 644 (7th Cir.2002). In order to survive summary judgment under the direct method, Luckie must present direct evidence that: (1) she engaged in statutorily protected activity; (2) she suffered an adverse employment action; and (3) there is a causal connection between the two. Haywood v. Lucent Tech., Inc., 323 F.3d 524, 531 (7th Cir.2003). Alternatively, under the indirect method, Luckie must establish that: (1) she engaged in statutorily protected activity; (2) she was performing her job according to Ameritech’s legitimate expectations; (3) despite her satisfactory performance, she suffered an adverse employment action; and (4) she was treated less favorably than similarly situated employees who did not engage in statutorily protected activity. Williams, 361 F.3d at 1031; Stone, 281 F.3d at 644. Luckie contends that Patterson placed her on a PIP and later fired her in retaliation for her complaints to the EEO office and for hiring an attorney who" }, { "docid": "23137363", "title": "", "text": "district court granted their motions. Tomanovich appeals. II. On appeal, Tomanovich argues that the district court erred in granting the defendants summary judgment on his retaliation claims. We review a district court’s grant of summary judgment de novo, viewing all of the facts and drawing all reasonable inferences in favor of the nonmoving party. Lim v. Trs. of Ind. Univ., 297 F.3d 575, 580 (7th Cir.2002). Summary judgment is appropriate if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). Title VII 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). This type of discrimination is commonly called “retaliation.” “A plaintiff may prove retaliation by using either the direct method or the indirect, burden-shifting method.” Moser v. Ind. Dept. of Corr., 406 F.3d 895, 903 (7th Cir.2005). Under the direct method, a plaintiff must show that “(1) he engaged in statutorily protected activity; (2) he suffered an adverse action taken by the employer; and (3) [there was] a causal connection between the two.” Id. To prove retaliation under the “indirect method, the plaintiff must establish a prima facie case of retaliation by showing that: (1)[ ]he engaged in a statutorily protected activity; (2)[]he met the employer’s legitimate expectations; (3)[ ]he suffered an adverse employment action; and (4)[ ]he was treated less favorably than similarly situated employees who did not engage in statutorily protected activity.” Id. “If the plaintiff establishes a prima facie case, the burden of production shifts to the employer to present evidence of a non-discriminatory reason for its employment action.” Adusumilli v. City of Chicago, 164 F.3d 353, 362 (7th Cir.1998). “If the employer meets its burden, the burden shifts back to the plaintiff to demonstrate that the employer’s reason is pretextual.” Moser, 406 F.3d at 904. Tomanovieh asserts on appeal that he presented sufficient evidence to avoid summary judgment under both the direct and indirect methods." }, { "docid": "5214497", "title": "", "text": "R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 109, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002). A Title VII complaint generally is limited to the claims asserted in the underlying EEOC discrimination charge. Weiss v. Coca-Cola Bottling Co. of Chicago, 990 F.2d 333, 337 (7th Cir.1993). Ms. Majors counters that GE’s conduct was a pattern and practice, so her claim isn’t limited by the statute of limitation. A pattern and practice claim requires proof of discrimination against a protected group, Puffer v. Allstate Ins. Co., 675 F.3d 709, 716 (7th Cir.2012), but Ms. Majors offers no evidence or argument to suggest a protected group was subject to discrimination or retaliation. Ms. Majors’s retaliation claim was subject to the 300-day statute of limitation, and her second EEOC charge was filed 311 days after her first EEOC charge was filed. Consequently, the district court concluded that Ms. Majors’s retaliation claim was limited to GE’s conduct during the 300-day period before the second EEOC charge was filed, i.e., from June 3, 2009 forward. We agree. A Title VII plaintiff can prove retaliation under either the direct or indirect method. Nichols v. Southern Illinois Univ.-Edwardsville, 510 F.3d 772, 784 (7th Cir.2007). The direct method requires proof that (1) the employee engaged in statutorily protected activity; (2) she suffered an adverse employment action; and (3) a causal link exists between the two. Nichols v. Southern Illinois Univ.-Edwardsville, 510 F.3d at 784-85. The indirect method requires proof that (1) the employee engaged in statutorily protected activity; (2) she was meeting her employer’s legitimate expectations; (3) she suffered an adverse employment action; and (4) she was treated less favorably than similarly situated employees who did not engage in statutorily protected activity. Id. at 785. Ms. Majors claims she can prove GE retaliated against her under both methods. The parties don’t dispute that Ms. Majors engaged in a protected activity when she filed a charge of discrimination with the EEOC. Ms. Majors claims her job performance was rated as satisfactory, and that she was subject to an adverse employment action when GE denied her overtime hours and the" }, { "docid": "23027475", "title": "", "text": "Cir.2006) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). We will conclude that a genuine issue of material fact exists, precluding summary judgment, “only if sufficient evidence favoring the nonmoving party exists to permit a jury to return a verdict for that party.” Sides v. City of Champaign, 496 F.3d 820, 826 (7th Cir.2007) (citation omitted). Title VII forbids employer retaliation where an employee “has opposed any practice made an unlawful employment practice” by Title VII or “has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under” Title VII. 42 U.S.C. § 2000e-3(a). The anti-retaliation provision operates to “prevent employer inter ference with ‘unfettered access’ to Title YII’s remedial mechanisms ... by prohibiting employer actions that are likely ‘to deter victims of discrimination from complaining to the EEOC,’ the courts, or their employers.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 58, 68, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006) (quoting Robinson v. Shell Oil Co., 519 U.S. 387, 346, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997)). Argyropoulos can prove retaliation under either the direct or indirect method. Metzger v. III. State Police, 519 F.3d 677, 681 (7th Cir.2008). Under the direct method, Argyropoulos must present evidence, direct or circumstantial, showing that: (1) she engaged in statutorily protected activity; (2) she suffered a materially adverse action; and (3) a causal connection exists between the two. Id. Alternatively, Argyropoulos may establish a prima facie case of retaliation under the indirect method by showing that: (1) she engaged in statutorily protected activity; (2) she suffered a materially adverse action; (3) she met her employer’s legitimate expectations, i.e., she was performing her job satisfactorily; and (4) she was treated less favorably than some similarly situated employee who did not engage in statutorily protected activity. Nichols v. S. III. Univ.-Edwardsville, 510 F.3d 772, 785 (7th Cir.2007); see also Burks v. Wis. Dep’t of Transp., 464 F.3d 744, 759 (7th Cir.2006) (citing Stone v. City of Indianapolis Pub. Utils. Div., 281 F.3d" }, { "docid": "5214498", "title": "", "text": "plaintiff can prove retaliation under either the direct or indirect method. Nichols v. Southern Illinois Univ.-Edwardsville, 510 F.3d 772, 784 (7th Cir.2007). The direct method requires proof that (1) the employee engaged in statutorily protected activity; (2) she suffered an adverse employment action; and (3) a causal link exists between the two. Nichols v. Southern Illinois Univ.-Edwardsville, 510 F.3d at 784-85. The indirect method requires proof that (1) the employee engaged in statutorily protected activity; (2) she was meeting her employer’s legitimate expectations; (3) she suffered an adverse employment action; and (4) she was treated less favorably than similarly situated employees who did not engage in statutorily protected activity. Id. at 785. Ms. Majors claims she can prove GE retaliated against her under both methods. The parties don’t dispute that Ms. Majors engaged in a protected activity when she filed a charge of discrimination with the EEOC. Ms. Majors claims her job performance was rated as satisfactory, and that she was subject to an adverse employment action when GE denied her overtime hours and the opportunity to work “lack of work” Fridays. The parties dispute whether Ms. .Majors has established a causal link between the protected activity and the adverse employment action or offered evidence of similarly situated employees. Ms. Majors first points to the closeness in time between the date she filed the EEOC charge and the alleged retaliation. She argues that she received less overtime hours and “lack of work” Friday assignments than other quality control inspectors in the plant from June to October 2009, a time period that began less than two weeks after she filed the EEOC charge and ended when she retired. Closeness in time between the protected activity and the adverse employment action is evidence of the causal link between the two events, Lang v. Illinois Dep’t of Children & Family Servs., 361 F.3d 416, 419 (7th Cir.2004), but to survive summary judgment, the plaintiff must offer more evidence 'that supports the inference of a ■ causal link between the two events than simply close temporal proximity. Tomanovich v. City of Indianapolis, 457 F.3d" }, { "docid": "3052686", "title": "", "text": "material fact and that the moving party is entitled to a judgment as a matter of law.’ ” Id. (quoting Fed.R.Civ.P. 56(c)). The anti-retaliation provision of Title VII of the 1964 Civil Rights Act, 42 U.S.C. § 2000e-3(a), prohibits employer actions that “discriminate against” 'an employee because she has “opposed” practices that Title VII forbids or because she has “made a charge, testified, assisted, or participated in” a Title VII “investigation, proceeding, or hearing.” A plaintiff alleging retaliation can prove her case either by the direct or indirect method of proof. Szymanski v. County of Cook, 468 F.3d 1027, 1029 (7th Cir.2006). Under the direct method, direct evidence of retaliation is not required. Gates v. Caterpillar, Inc., 513 F.3d 680, 686 (7th Cir.2008) (“This Court recently has clarified that ... ‘circumstantial evidence that is relevant and probative on any of the elements of a direct case of retaliation may be admitted and, if proven to the satisfaction of the trier of fact, support a case of retaliation.’ ” (quoting Treadwell v. Office of Ill. Sec’y of State, 455 F.3d 778, 781 (7th Cir.2006))). Rather, a plaintiff must show through either direct or circumstantial evidence that (1) she engaged in statutorily protected activity; (2) she suffered an adverse action taken by the employer; and (3) there was a causal connection between the two. Dorsey v. Morgan Stanley, 507 F.3d 624, 627 (7th Cir.2007). Under the indirect method, a plaintiff must establish a prima facie case of retaliation by showing that (1) she engaged in statutorily protected activity; (2) she met her employer’s legitimate expectations; (3) she suffered an adverse action; and (4) she was treated less favorably than similarly situated employees who did not engage in statutorily protected activity. Nichols v. S. Ill. Univ.-Edwardsville, 510 F.3d 772, 785 (7th Cir.2007). If the plaintiff succeeds in establishing a prima facie ease, the burden shifts to the employer to produce a non-discriminatory reason for its employment action. Id. If the employer meets its burden of production, the burden of proof then remains with the plaintiff to show that the employer’s proffered reason is" }, { "docid": "23677165", "title": "", "text": "suggesting that the steps her employer took were not reasonably likely to prevent the harassment from recurring, which she did not do. Id. at 813. Because Waste Management was not negligent in uncovering, then responding, to Williams’s complaint and no jury could find otherwise based on the undisputed facts, the district court properly granted summary judgment to the company on Williams’s hostile environment claim. B. Retaliation Williams also alleges that Bec-kum and Cleeton retaliated against him for complaining about their behavior. In Stone v. City of Indianapolis Public Utilities Division, 281 F.3d 640 (7th Cir.), cert. denied, 537 U.S. 879, 123 S.Ct. 79, 154 L.Ed.2d 134 (2002), this circuit modified its approach to retaliation claims under Title VII and clarified the proof necessary to survive summary judgment. As we subsequently summarized in Sitar v. Indiana Department of Transportation, 344 F.3d 720 (7th Cir.2003): The plaintiff may establish a prima facie case of retaliation and overcome defendant’s motion for summary judgment using either the direct method or the indirect method. Under the direct method, the plaintiff must present direct evidence of (1) a statutorily protected activity; (2) an adverse employment action taken by the employer; and (3) a causal connection between the two. Under the indirect method, the plaintiff must show that (1) she engaged in a statutorily protected activity; (2) she performed her job according to her employer’s legitimate expectations; (3) despite her satisfactory job performance, she suffered an adverse action from the employer; and (4) she was treated less favorably than similarly situated employees who did not engage in statutorily protected activity. Id. at 728 (citing Stone, 281 F.3d at 644) (emphasis added). Generally required under both analyses is that the plaintiff suffered an adverse employment action. We find, as did the district court judge, that Williams did not suffer an adverse employment action, entitling Waste Management to summary judgment on his retaliation claim under either the direct or indirect approach. Williams alleges that the actions of Cleeton and Beckum, and to a lesser extent, management, resulted in his constructive discharge, which, if true, would amount to an adverse" }, { "docid": "4498206", "title": "", "text": "even though plaintiffs appear to base their constructive discharge claims primarily on their reduced hours rather than on discriminatory conduct. They have presented no evidence from which a reasonable jury could conclude that their “working conditions were so intolerable that [they] had to quit.” See Roby v. CWI, Inc., 579 F.3d 779, 785 (7th Cir.2009) (contrasting the plaintiff with employees whose co-workers had threatened or engaged in actual violence). The Court therefore grants defendants’ motion for summary judgment on counts nine and ten. D. Retaliation claims In counts eleven, twelve, and thirteen, plaintiffs assert that WSB retaliated against them after they submitted a complaint to the EEOC. Title VII forbids retaliation against anyone who “has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.” 42 U.S.C. § 2000e-3(a). An employee may establish retaliation by proceeding under either the direct or indirect method of proof. Roney v. Illinois Dep’t of Transp., 474 F.3d 455, 459 (7th Cir.2007). Under the direct method, a plaintiff must show that he engaged in a statutorily protected activity; he suffered an adverse action taken by the employer; and there was a causal connection between the two. Tomanovich v. City of Indianapolis, 457 F.3d 656, 663 (7th Cir.2006). “Under the indirect method, the plaintiff must show that (1) she engaged in a statutorily protected activity; (2) she performed her job according to her employer’s legitimate expectations; (3) despite her satisfactory job performance, she suffered an adverse action from the employer; and (4) she was treated less favorably than similarly situated employees who did not engage in statutorily protected activity.” Rhodes, 359 F.3d at 508. Defendants argue first that Golden and Moore cannot prevail under either method because they did not suffer an adverse employment action. Golden’s and Moore’s claims are based on the new schedules they received immediately before resigning their employment. Both schedules reflected reduced hours for the upcoming work period, and Golden’s reflected a transfer to a new site with" } ]

[ { "docid": "14458139", "title": "", "text": "award pursuant to § 301 of the Labor Management Relations Act, 29 U.S.C. § 185. Both parties moved for summary judgment. The district court granted San Juan’s motion and vacated the arbitrator’s decision. Although the court acknowledged that its power to review the arbitral decision was limited, it concluded that the arbitrator lost sight of the plain language of the MOA and CBA. Specifically, it rejected the arbitrator’s assertion that the MOA “identifies the Weekend Shift as a ten (10) hour shift,” instead concluding that “the MOA clearly and repeatedly identifies the entire twelve-hour work period at issue as a ‘weekend shift.’ ” The court also reasoned that the arbitrator’s attempts to define “normal workday,” “shift,” and “full time” had no basis in the text of the agreements. Although the court acknowledged that the MOA contained some inconsistencies, it nevertheless concluded that the arbitrator’s decision was indefensible. II We review a grant of summary judgment in a labor arbitration case de novo. Kennecott Utah Copper Corp. v. Becker, 186 F.3d 1261, 1266 (10th Cir. 1999). Judicial review of an arbitral award, however, “is among the narrowest known to law.” Champion Boxed Beef Co. v. Local No. 7 United Food & Commercial Workers Int’l Union, 24 F.3d 86, 87 (10th Cir.1994) (quotation omitted). An arbitrator’s factual findings are beyond review, as is her interpretation of the contract as long as it does not ignore the plain language of the collective bargaining agreement. Id. at 87. The Supreme Court has emphasized that vacating an arbitral award is warranted only in extraordinary circumstances. If an “arbitrator is even arguably construing or applying the contract and acting within the scope of his authority,” the arbitral award should be upheld. Major League Baseball Players Ass’n v. Garvey, 532 U.S. 504, 509, 121 S.Ct. 1724, 149 L.Ed.2d 740 (2001) (per curiam) (quotation omitted). An arbitral award may be vacated only if the arbitrator “strays from interpretation and application of the agreement and effectively dispenses his own brand of industrial justice.” Id. (quotation and alteration omitted). To show less deference would risk “improperly substituting] a judicial determination" } ]

[ { "docid": "15405351", "title": "", "text": "18, 1999, and the cases were consolidated in the district court. On December 15, 1999, the UAW moved for summary judgment, and on February 10, 2000, Dana filed a cross motion for summary judgment. In its cross motion for summary judgment, Dana argued that because Arbitrator Glendon’s interpretation of the neutrality provision diverged from Arbi trator Mittenthal’s interpretation of the provision, Arbitrator Glendon’s interpretation of the provision failed to draw its essence from- the collective bargaining agreement and violated public policy. The district court concluded, however, that prior arbitration decisions are not binding on later arbitration decisions unless the collective bargaining agreement so stipulates. And the court further found that Arbitrator Glendon’s interpretation of the neutrality provision drew its essence from the collective bargaining agreement. On May 12, 2000, the district court granted the UAW’s motion for summary judgment and denied Dana’s cross motion for summary judgment. Dana timely appeals. II. ANALYSIS A. Standard of Review We review de novo a district court’s grant of summary judgment in an arbitrated labor dispute. Beacon Journal Publ’g Co. v. Akron Newspaper Guild, Local No. 7, 114 F.3d 596, 599 (6th Cir.1997). However, the scope of review is extremely limited. Id. “As long as the arbitrator’s award draws its essence from the collective bargaining agreement, and is not merely his own brand of industrial justice, the award is legitimate.” United Paper-workers Int’l Union v. Misco, 484 U.S. 29, 36, 108 S.Ct. 364, 98 L.Ed.2d 286 (1987) (internal quotations omitted). The Supreme Court recently stated that “if an arbitrator is even arguably construing or applying the contract and acting within the scope of his authority, the fact that a court is convinced he committed serious error does not suffice to overturn his decision.” Major League Baseball Players Ass’n v. Garvey, 532 U.S. 504, 121 S.Ct. 1724, 1728, 149 L.Ed.2d 740 (2001) (quotation omitted). We have developed a four-prong test for determining when an arbitration award fails to draw its essence from the collective bargaining agreement; an award so fails when: “(1) it conflicts with express terms of the agreement; (2) it imposes additional requirements" }, { "docid": "10805335", "title": "", "text": "in future cases. First, as the majority notes, Majority Op. 11, Stolt-Nielsen fully reaffirmed the exceedingly deferential standard that federal courts must apply when reviewing arbitration decisions. Indeed, the Court began its analysis in Stolt-Nielsen by restating this deference in no uncertain terms; “Petitioners contend that the decision of the arbitration panel must be vacated, but in order to obtain that relief, they must clear a high hurdle.” 130 S.Ct. at 1767. The Court explained this exceptionally narrow standard of judicial review of arbitral decisions: “It is not enough for petitioners to show that the [arbitration] panel committed an error — or even a serious error.” Id. (citing E. Associated Coal Corp. v. Mine Workers, 531 U.S. 57, 62, 121 S.Ct. 462, 148 L.Ed.2d 354 (2000); United Paperworkers Int’l Union AFL-CIO v. Misco, Inc., 484 U.S. 29, 38, 108 S.Ct. 364, 98 L.Ed.2d 286 (1987)). Instead, the Court stated, “[i]t is only when [an] arbitrator strays from interpretation and application of the agreement and effectively ‘dispense^] his own brand of industrial justice’ that his decision may be unenforceable.’ ” Id. (alterations in original) (quoting Major League Baseball Players Ass’n v. Garvey, 532 U.S. 504, 509, 121 S.Ct. 1724, 149 L.Ed.2d 740 (2001) (per curiam), in turn quoting United Steelworkers of Am. v. Enter. Wheel & Car Corp., 363 U.S. 593, 597, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960)); see also United Paperworkers, 484 U.S. at 38, 108 S.Ct. 364 (“[A]s long as the arbitrator is even arguably construing or applying the contract and acting within the scope of his authority, that a court is convinced he committed serious error does not suffice to overturn his decision.”); United Steelworkers, 363 U.S. at 597, 80 S.Ct. 1358 (an arbitration award must be upheld “so long as it draws its essence” from the agreement). Thus, Stolt-Nielsen reaffirmed the Court’s longstanding precedent that courts must review arbitration decisions with the utmost deference. The Court’s decision to vacate the arbitrator’s class arbitration decision in Stolt-Nielsen did not alter this exceptionally deferential standard of review. There, the Court, in deciding that the arbitration panel had exceeded" }, { "docid": "10805295", "title": "", "text": "made clear that a court may not decline to enforce an award simply because it disagrees with the arbitrator’s legal reasoning. See, e.g., Major League Baseball Players Ass’n v. Garvey, 532 U.S. 504, 509, 121 S.Ct. 1724, 149 L.Ed.2d 740 (2001); E. Associated Coal Corp. v. United Mine Workers of Am., 531 U.S. 57, 62, 121 S.Ct. 462, 148 L.Ed.2d 354 (2000). Nevertheless, an arbitrator’s award is not entirely beyond reproach: [A]n arbitrator is confined to interpretation and application of the collective bargaining agreement; he does not sit to dispense his own brand of industrial justice. He may of course look for guidance from many sources, yet his award is legitimate only as long as it draws its essence from the collective bargaining agreement. When the arbitrator’s words manifest an infidelity to this obligation, courts have no choice but to refuse enforcement of the award. United Steelworkers of Am. v. Enter. Wheel & Car Corp., 363 U.S. 593, 597, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960) (emphasis added). In United Steelworkers, the Court explained that “[i]t is the arbitrator’s construction [of the contract] which was bargained for; and so far as the arbitrator’s decision concerns construction of the contract, the courts have no business overruling him because their interpretation of the contract is different from his.” Id. at 599, 80 S.Ct. 1358. This principle was echoed in United Paperworkers International Union v. Misco, Inc., 484 U.S. 29, 108 S.Ct. 364, 98 L.Ed.2d 286 (1987), where the Supreme Court again discussed the limited role of a court in reviewing an arbitrator’s interpretation of a contract. The Court explained that “[tjhe arbitrator may not ignore the plain language of the contract; but the parties having authorized the arbitrator to give meaning to the language of the agreement, a court should not reject an award on the ground that the arbitrator misread the contract.” Id. at 38, 108 S.Ct. 364. Thus, “as long as the arbitrator is even arguably construing or applying the contract and acting within the scope of his authority, that a court is convinced he committed serious error does not" }, { "docid": "22980259", "title": "", "text": "to reconsider the merits of an award even though the parties may allege that the award rests on errors of fact or on misinterpretation of the contract.” Id. at 36, 108 S.Ct. 364. “Because the parties have contracted to have disputes settled by an arbitrator chosen by them rather than by a judge, it is the arbitrator’s view of the facts and of the meaning of the contract that they have agreed to accept.” Id. at 37-38, 108 S.Ct. 364. In attempting to clarify the line between an award that permissibly “draws its essence from the contract” and one that impermissibly “reflect[s] the arbitrator’s own notions of industrial justice,” the Court gave this guidance: “[A]s long as the arbitrator is even arguably construing or applying the contract and acting within the scope of his authority, that a court is convinced he committed serious error does not suffice to overturn his decision.” Id. at 38, 108 S.Ct. 364. Consistent with this frame of reference, the Court upheld the award in that case because the arbitrator arguably was construing and applying the contract and because the decision involved at- worst “improvident, even silly,” decisionmaking. Id. at 39, 108 S.Ct. 364. Major League Baseball Players Ass’n v. Garvey, 532 U.S. 504, 121 S.Ct. 1724, 149 L.Ed.2d 740 (2001), reinforced the federal courts’ modest role in this area. In summarily reversing a court of appeals’ decision, the Court explained that the federal courts’ review of labor-arbitration decisions is not just “limited,” Misco, 484 U.S. at 36, 108 S.Ct. 364; it is “very limited,” Garvey, 532 U.S. at 509, 121 S.Ct. 1724. Rather than asking whether the arbitration award “draws its essence from the contract,” the Court asked whether the arbitrator was “ ‘even arguably construing or applying the contract.’ ” Id. at 509, 121 S.Ct. 1724 (quoting Misco, 484 U.S. at 38, 108 S.Ct. 364). “[O]nly when the arbitrator strays from interpretation and application,” the Court explained, does he enter the forbidden world of “effectively ‘dispensing] his own brand of industrial justice,’ ” making the arbitrator’s decision “unenforceable.” Id. at 509, 108 S.Ct. 364" }, { "docid": "11004274", "title": "", "text": "district court’s order, contending that the arbitrator’s award must be vacated because it does not draw its essence from the parties’ agreements. II. DISCUSSION Our review of an arbitrator’s award under section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, is limited to determining whether: (1) the parties agreed to arbitrate; and (2) the arbitrator had the power to make the award that he made. Daniel Const. Co. v. International Union of Operating Eng’rs, Local 513, 738 F.2d 296, 301 (8th Cir.1984) (citing United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582, 80 S.Ct. 1347, 1352, 4 L.Ed.2d 1409 (1960)). In the present case, the parties do not dispute that they agreed to arbitrate. Consequently, our analysis focuses on whether the arbitrator had the power to enter the award. The Supreme Court long ago determined that a labor arbitration award should be enforced “so long as it draws its essence from the collective bargaining agreement.” United Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 597, 80 S.Ct. 1358, 1361, 4 L.Ed.2d 1424 (1960). This extraordinary level of deference has not diminished in recent years. “[A]s long as the arbitrator is even arguably construing or applying the contract and acting within the scope of his authority, that a court is convinced he committed serious error does not suffice to overturn his decision.” United Paperworkers Int’l Union, AFL-CIO v. Misco, Inc., 484 U.S. 29, 38, 108 S.Ct. 364, 371, 98 L.Ed.2d 286 (1987). A reviewing court, however, may vacate an arbitration award when the award does not derive its essence from the collective bargaining agreement, or when the arbitrator ignores the plain language of the contract. Iowa Mold Tooling Co., Inc. v. Teamsters Local Union No. 828, 16 F.3d 311, 312 (8th Cir.1994) (citing Coca-Cola Bottling Co. v. Teamsters Local Union No. 688, 959 F.2d 1438, 1440 (8th Cir.), cert. denied, 506 U.S. 1013, 113 S.Ct. 635, 121 L.Ed.2d 566 (1992)); see also Northivest Airlines, Inc. v. International Ass’n of Machinists & Aerospace Workers, Air Transport Dist. Lodge No. 113, 894 F.2d 998, 999-1000" }, { "docid": "3367297", "title": "", "text": "interpret the meaning of their contract’s language,” “[t]hey have ‘bargained for’ the ‘arbitrator’s construction’ of their agreement, ... [a]nd courts will set aside the arbitrator’s interpretation of what their agreement means only in rare instances.” 531 U.S. at 61-62, 121 S.Ct. 462 (citation omitted). The Court continued: Of course, an arbitrator’s award “must draw its essence from the contract and cannot simply reflect the arbitrator’s own notions of industrial justice.” Paperworkers v. Misco, Inc., 484 U.S. 29, 38, 108 S.Ct. 364, 98 L.Ed.2d 286 (1987). “But as long as [an honest] arbitrator is even arguably construing or applying the contract and acting within the scope of his authority,” the fact that “a court is convinced he committed serious error does not suffice to overturn his decision.” Ibid. Eastern Associated Coal Corporation, 531 U.S. at 62, 121 S.Ct. 462; see also Major League Baseball Players Association v. Garvey, 532 U.S. 504, 121 S.Ct. 1724, 1728, 149 L.Ed.2d 740 (2001). The majority in this case overturns the arbitrator’s decision because the majority strongly disagrees with his interpretation of the collective bargaining agreement. The arbitrator held that the collective bargaining agreement obligates the employer to provide voluntary retirement benefits to union-member employees on the same terms as supervisors. In so construing the agreement, the arbitrator relied on article 1, section 3 of the agreement, the so-called anti-discrimination provision, which states that the company may not “discriminate” against “any employee because of membership or non-membership in the Union.” Tracing this clause to Sections 8(a) and (b) of the National Labor Relations Act, 29 U.S.C. § 158(a) and (b), the majority disagrees with the arbitrator’s interpretation, reasoning that “[b]e-cause supervisors are not ‘employees’ under the NLRA for purposes of collective bargaining, an employer’s affording retirement benefits to supervisors but not providing them to union member employees cannot possibly constitute discrimination between employees under the anti-discrimination section of the Agreement.” Maj. Op. at 180-81. The majority goes on to observe that the arbitrator’s reasoning is supported by “neither the law nor industry practice” and “is highly impractical, costly and may even be unmanageable” for some companies." }, { "docid": "14230119", "title": "", "text": "of review for the decisions of arbitrators, on the other hand, is highly deferential. See Beacon Journal Publ’g Co. v. Akron Newspaper Guild, Local No. 7, 114 F.3d 596, 599 (6th Cir.1997) (“The Supreme Court has made clear ... that courts must accord an arbitrator’s decision substantial deference because it is the arbitrator’s construction of the agreement, not the court’s construction, to which the parties have agreed.”). The Supreme Court has tightly circumscribed the authority of federal courts to overturn arbitration awards, and has consistently held that they may not do so “[a]s long as the arbitrator’s award draws its essence from the collective bargaining agreement, and is not merely his own brand of industrial justice.” United Paperworkers Int’l Union v. Misco, Inc., 484 U.S. 29, 36, 108 S.Ct. 364, 98 L.Ed.2d 286 (1987) (internal quotations omitted). “[I]f an arbitrator is even arguably construing or applying the contract and acting within the scope of his authority, the fact that a court is convinced he committed serious error does not suffice to overturn his decision.” Major League Baseball Players Ass’n v. Garvey, 532 U.S. 504, 509, 1015, 121 S.Ct. 1724, 149 L.Ed.2d 740 (2001) (internal quotations omitted). We have identified four ways by which an arbitrator may stray from the “essence” of the collective bargaining agreement: an arbitration award may be declared invalid and vacated if “(1) it conflicts with express terms of the agreement; (2) it imposes additional requirements not expressly provided for in the agreement; (3) it is not rationally supported by or derived from the agreement; or (4) it is based on general considerations of fairness and equity instead of the exact terms of the agreement.” Int’l Union, 278 F.3d at 554 (quoting MidMichigan Reg’l Med. Ctr.-Clare v. Prof'l Employees Div. of Local 79, 183 F.3d 497, 502 (6th Cir.1999)). In addition, courts may upset an arbitration award if it is rendered in “manifest disregard of the law,” see Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Jaros, 70 F.3d 418, 421 (6th Cir.1995), or if it is contrary to a well-defined and dominant public policy, see Eastern" }, { "docid": "13056543", "title": "", "text": "& Rio Grande W. R.R. Co., 119 F.3d at 849. Our review of the arbitration panel’s decision under the FAA and the few judicially created exceptions is, however, far more limited. Although the FAA does not create independent federal jurisdiction, the Supreme Court has held that the Act creates a body of substantive federal law governing arbitration agreements within its coverage. Allied-Bruce Terminix Cos. v. Dobson, 513 U.S. 265, 270-72, 115 S.Ct. 834, 130 L.Ed.2d 753 (1995); Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 25 n. 32, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983); accord Foster v. Turley, 808 F.2d 38, 40 (10th Cir.1986). Moreover, the Act creates no new rights “ ‘except a remedy to enforce an [arbitration] agreement.’ ” Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 220 n. 7, 105 S.Ct. 1238, 84 L.Ed.2d 158 (1985) (quoting legislative history). The Act applies to a written arbitration clause in “a contract evidencing a transaction involving commerce,” 9 U.S.C. § 2, a requirement broadly interpreted to correspond with Congress’s power under the Commerce Clause. Allied Bruce Terminix Cos., 513 U.S. at 269-70, 115 S.Ct. 834; Foster, 808 F.2d at 40. The district court ordered the arbitration in the case before us pursuant to a right-of-way agreement, a transaction involving pipelines for the interstate transportation of crude oil. The FAA therefore applies to the parties’ dispute. Our review of the arbitration panel’s decision under the FAA is strictly limited; this highly deferential standard has been described as “among the narrowest known to the law.” ARW Exploration Corp., 45 F.3d at 1462 (internal quotation marks omitted). In consenting to arbitration, “ ‘a party trades the procedures and opportunity for review of the courtroom for the simplicity, informality, and expedition of arbitration.’ ” Brown v. Coleman Co., 220 F.3d 1180, 1182 (10th Cir.2000) (quoting Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 31, 111 S.Ct. 1647, 114 L.Ed.2d 26 (1991)). We employ this limited standard of review and exercise caution in setting aside arbitration awards because one “purpose behind arbitration agreements is to avoid the expense" }, { "docid": "8609407", "title": "", "text": "narrowest known to the law.” United States Postal Service v. Am. Postal Workers Union, AFL-CIO, 204 F.3d 523, 527 (4th Cir.2000) (internal quotation marks omitted). “A court sits to ‘determine only whether the arbitrator did his job-not whether he did it well, correctly, or reasonably, but simply whether he did it.’ ” Id. (quoting Mountaineer Gas Co. v. Oil, Chem. & Atomic Workers Int’l Union, 76 F.3d 606, 608 (4th Cir.1996)). “[A]s long as the arbitrator is even arguably construing or applying the contract and acting within the scope of his authority, that a court is convinced he committed serious error does not suffice to overturn his decision.” United Paperworkers Int’l Union, AFL-CIO v. Misco, Inc., 484 U.S. 29, 38, 108 S.Ct. 364, 98 L.Ed.2d 286 (1987). Thus, the Court’s review of the arbitrator’s decision to certify an opt-out class is extremely narrow in scope. IV. DISCUSSION Movants assert two bases in support of their motion to vacate the arbitrator’s class determination award. - First, Movants contend that the arbitrator acted in manifest disregard of the law and, second, Movants claim that the arbitrator exceeded the scope of his authority. The Court finds that neither argument supports vacatur. A. Manifest Disregard of the Law A court’s authority to vacate actions of an arbitrator which are in manifest disregard of the law is clearly established. E.g., Apex Plumbing Supply, Inc. v. U.S. Supply Co., 142 F.3d 188, 193 (4th Cir.1998); Gallus Invs., L.P. v. Pudgie’s Famous Chicken, Ltd., 134 F.3d 231, 233-34 (4th Cir.1998). In exercising this authority, however, a court must proceed cautiously, as a “court’s belief that an arbitrator misapplied the law will not justify vacation of an arbitral award.” Remmey v. PaineWebber, Inc., 32 F.3d 143, 149 (4th Cir.1994). Instead, a court may vacate an award only where a party has shown “that the arbitrator[ ][was] aware of the law, understood it correctly, found it applicable to the case before [him], and yet chose to ignore it in propounding [his] decision.” Id. (citing National Wrecking Co. v. Int’l Bhd. of Teamsters, Local 731, 990 F.2d 957, 961 (7th" }, { "docid": "10340181", "title": "", "text": "existed is entitled to the same “extreme deference” as its determinations on the merits. See Sheldon, 269 F.3d at 1206; Schoenduve Corp., 442 F.3d at 733. BNSF cannot escape this deference by characterizing its challenge to the board’s scope of authority as an arbitrability issue. The finality of any arbitration award would be meaningless if a losing party could re-litigate its dispute in court by claiming an arbitrator exceeded his or her authority. See Dominion Video Satellite, Inc. v. Echostar Satellite LLC, 430 F.3d 1269, 1279 (10th Cir.2005). BNSF presents two additional arguments to gain an independent review of its claims. First, it contends a less deferential standard of review applies to claims that arbitrators exceeded their powers than applies to claims of fraud, corruption, or misconduct. See Aplt. Br. at 26-27 (“A court reviewing an arbitrator’s decision under FAA 9 U.S.C. § 10(a)(4) does not apply the same deference as required for challenges arising under FAA 9 U.S.C. § 10(a)(1) through 10(a)(3).”). We have held, however, that “our highly deferential standard of review” applies to claims “the arbitrator exceeded his power in issuing the award.” DMA Int’l, Inc. v. Qwest Comm. Int’l, Inc., 585 F.3d 1341, 1345 (10th Cir.2009). Second, BNSF points to United Paperworkers Int’l Union v. Misco, Inc., a Supreme Court decision, for the proposition that a high level of deference applies only when the arbitrator is acting within the scope of his or her authority. 484 U.S. 29, 108 S.Ct. 364, 98 L.Ed.2d 286 (1978). This reliance is misguided. In fact, United Paperworkers holds, “as long as the arbitrator is even arguably construing or applying the contract and acting within the scope of his authority, that a court is convinced he committed serious error does not suffice to overturn his decision.” 484 U.S. at 38, 108 S.Ct. 364. Thus, United Paperworkers mandates a deferential standard of review on scope of authority claims. In sum, BNSF cannot obtain an independent review of its scope of authority claim by characterizing it as an arbitrability claim. An arbitrability issue does not arise whenever the losing party to an arbitration" }, { "docid": "3367296", "title": "", "text": "imports notions not found in the Agreement itself.” Id. at 606. . A reviewing court can set aside an arbitration award if enforcement of the award violates public policy. Eastern Assoc. Coal Corp., 531 U.S. at 62-63, 121 S.Ct. 462; Exxon Shipping Co., 73 F.3d at 1291. An award can also be overturned if the arbitrator’s decision is not supported by the record. United Indus. Workers v. Virgin Islands, 987 F.2d 162, 170 (3d Cir.1993). In light of our ultimate disposition, we need not reach the Company's alternative arguments that the arbitration award should be vacated because it violated public policy or that the arbitrator's decision was unsupported by the record. ALITO, Circuit Judge, dissenting. Just last Term, the Supreme Court reminded us how narrow our proper scope of review is in a case such as this. In Eastern Associated Coal Corporation v. United Mine Workers of America, 531 U.S. 57, 121 S.Ct. 462, 148 L.Ed.2d 354 (2000), the Court wrote that when an “employer and union have granted to the arbitrator the authority to interpret the meaning of their contract’s language,” “[t]hey have ‘bargained for’ the ‘arbitrator’s construction’ of their agreement, ... [a]nd courts will set aside the arbitrator’s interpretation of what their agreement means only in rare instances.” 531 U.S. at 61-62, 121 S.Ct. 462 (citation omitted). The Court continued: Of course, an arbitrator’s award “must draw its essence from the contract and cannot simply reflect the arbitrator’s own notions of industrial justice.” Paperworkers v. Misco, Inc., 484 U.S. 29, 38, 108 S.Ct. 364, 98 L.Ed.2d 286 (1987). “But as long as [an honest] arbitrator is even arguably construing or applying the contract and acting within the scope of his authority,” the fact that “a court is convinced he committed serious error does not suffice to overturn his decision.” Ibid. Eastern Associated Coal Corporation, 531 U.S. at 62, 121 S.Ct. 462; see also Major League Baseball Players Association v. Garvey, 532 U.S. 504, 121 S.Ct. 1724, 1728, 149 L.Ed.2d 740 (2001). The majority in this case overturns the arbitrator’s decision because the majority strongly disagrees with his interpretation" }, { "docid": "11248575", "title": "", "text": "also Ormsbee Development Co. v. Grace, 668 F.2d 1140, 1146-47 (10th Cir.1982) (“Once an arbitration award is en tered, the finality of arbitration weighs heavily in its favor and cannot be upset except under exceptional circumstances”). Even if the Court should conclude that the arbitrator’s award must be set aside, the Court will not attempt to settle the merits of the parties’ dispute, since doing so “would improperly substitute a judicial determination for the arbitrator’s decision that the parties bargained for in the collective-bargaining agreement.” United Paperworkers International Union, AFL—CIO v. Misco, Inc., 484 U.S. 29, 41 n. 10, 108 S.Ct. 364, 98 L.Ed.2d 286 (1987). See also Jenkins v. Prudential-Bache Securities, Inc., 847 F.2d 631, 634-35 (10th Cir.1988) (the role of the courts in reviewing an arbitrator’s award is limited to the determination of whether the award draws its essence from the parties’ contract, and the award is not open to review on the merits) (quoting Sterling Colo. Beef Co., 767 F.2d at 720). Rather, in such a case, the Court is obligated to simply vacate the award in order to permit the possibility of further proceedings before the arbitrator. Misco, 484 U.S. at 41 n. 10, 108 S.Ct. 364. With these principles in mind, the Court turns to the substance of Conoco’s argument. As the party attacking the arbitrator’s award, Conoco bears the burden of showing that the award should be vacated. Ormsbee, 668 F.2d at 1147. See also Rocket Jewelry Box, Inc. v. Noble Gift Packaging, Inc., 157 F.3d 174 (2d Cir.1998) (The showing required to avoid summary confirmation of an award is high, and the party' moving to vacate it bears the burden of proof). In asking the Court to vacate the arbitrator’s award, Conoco maintains that the arbitrator exceeded his authority in fashioning the award, that the award does not draw its essence from the CBA, and that the award is contrary to the express provisions of the CBA. See Barnard v. Commercial Carriers, Inc., 863 F.2d 694, 697 (10th Cir.1988) (an award cannot be upheld if found contrary to the express language of the" }, { "docid": "4543306", "title": "", "text": "several of the Plaintiffs’ undisputed facts set forth in the Motion, although they agree that the Arbitrator made those findings (see Response, p. 3 n. 1); and second, the Deermans assert that the Arbitrator made errors of law. This Court has concluded that the Deermans may not, as a defense to confirmation of the Arbitration Award, assert that the award should be vacated, modified or corrected. The Deermans have forfeited any right to contest the Arbitration Award as a defense to confirming it on the grounds to the award should be vacated, modified or corrected. In addition, even if the Deermans had not forfeited their right to contest the Arbitration Award, their two defenses to confirmation of the Arbitration Award fail as a matter of law. Judicial review of an arbitration award is extremely limited. Dominion Video Satellite, Inc. v. EchoStar Satellite, L.L.C., 430 F.3d 1269, 1275 (10th Cir.2005) (citation omitted). Erroneous findings of fact made by an arbitrator in issuing an arbitration award are insufficient grounds to vacate or modify the award. See United Paperworkers Int’l Union, AFL-CIO v. Misco, Inc., 484 U.S. 29, 38, 108 S.Ct. 364, 371, 98 L.Ed.2d 286 (1987) (stating that “[cjourts thus do not sit to hear claims of factual or legal error by an arbitrator as an appellate court does in reviewing decisions of lower courts.”); In re WorldCom, Inc., 340 B.R. 719, 726 (Bankr.S.D.N.Y.2006) (“Mere ‘errors of law and fact are not grounds for vacating an arbitral award ... ’ ”)(quoting Sanders v. Gardner, 7 F.Supp.2d 151, 163 (E.D.N.Y.1998) (citing Edward M. Siegel v. Titan Indus. Corp., 779 F.2d 891, 892-93 (2d Cir.1985))). Other than the statutory bases for contesting confirmation of an arbitration award authorized under the FAA and the New Mexico Uniform Arbitration Act, there may exist a judicially-created basis for vacating an award where an arbitrator acts “in ‘manifest disregard’ of the law.” Dominion Video, 430 F.3d at 1275. Under the “manifest disregard” standard, the moving party must demonstrate from the record of the arbitration proceeding that the arbitrator “ ‘knew the law and explicitly disregarded it.’ ” Id." }, { "docid": "3640671", "title": "", "text": "to end the federal courts’ hostility to labor-arbitration awards. See United Steelworkers v. Am. Mfg. Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960); United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960); United Steelworkers v. Enter. Wheel & Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960). In one of these decisions, the Court stated that “[t]he refusal of courts to review the merits of an arbitration award is the proper approach to arbitration under collective bargaining agreements.” Enter. Wheel, 363 U.S. at 596, 80 S.Ct. 1358. Five years ago, the Court repeated the instruction: So long as “an arbitrator is even arguably construing or applying the contract and acting within the scope of his authority, the fact that a court is convinced he committed serious error does not suffice to overturn his decision.” Major League Baseball Players Ass’n v. Garvey, 532 U.S. 504, 509, 121 S.Ct. 1724, 149 L.Ed.2d 740 (2001) (internal quotation omitted). Between these bookend rulings, the Court has frequently reminded lower courts that an arbitration award may not be vacated merely because the arbitrator failed to resolve the merits correctly. See, e.g., United Paperworkers Int’l Union v. Misco, Inc., 484 U.S. 29, 38, 108 S.Ct. 364, 98 L.Ed.2d 286 (1987) (stating that “a court should not reject an award on the ground that the arbitrator misread the contract”); W.R. Grace & Co. v. Local Union 759, Int’l Union of United Rubber Workers, 461 U.S. 757, 764, 103 S.Ct. 2177, 76 L.Ed.2d 298 (1983) (stating that “a federal court may not overrule an arbitrator’s decision simply because the court believes its own interpretation of the contract would be a better one” and that a court is “not entitled to review the merits of the contract dispute”). When an employer and union agree to submit questions of contract interpretation to an arbitrator, our “limited” function thus is to “ascertain[] whether the party seeking arbitration is making a claim which on its face is governed by the contract.” Am. Mfg. Co., 363 U.S. at" }, { "docid": "19406000", "title": "", "text": "very unusual circumstances.\" First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 942, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995). That limited judicial review, we have explained, \"maintain[s] arbitration's essential virtue of resolving disputes straightaway.\" Hall Street Associates, L.L.C. v. Mattel, Inc., 552 U.S. 576, 588, 128 S.Ct. 1396, 170 L.Ed.2d 254 (2008). If parties could take \"full-bore legal and evidentiary appeals,\" arbitration would become \"merely a prelude to a more cumbersome and time-consuming judicial review process.\" Ibid. Here, Oxford invokes § 10(a)(4) of the Act, which authorizes a federal court to set aside an arbitral award \"where the arbitrator[ ] exceeded [his] powers.\" A party seeking relief under that provision bears a heavy burden. \"It is not enough ... to show that the [arbitrator] committed an error-or even a serious error.\" Stolt-Nielsen, 559 U.S., at 671, 130 S.Ct. 1758. Because the parties \"bargained for the arbitrator's construction of their agreement,\" an arbitral decision \"even arguably construing or applying the contract\" must stand, regardless of a court's view of its (de)merits. Eastern Associated Coal Corp. v. Mine Workers, 531 U.S. 57, 62, 121 S.Ct. 462, 148 L.Ed.2d 354 (2000) (quoting Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 599, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960) ; Paperworkers v. Misco, Inc., 484 U.S. 29, 38, 108 S.Ct. 364, 98 L.Ed.2d 286 (1987) ; internal quotation marks omitted). Only if \"the arbitrator act[s] outside the scope of his contractually delegated authority\"-issuing an award that \"simply reflect[s] [his] own notions of [economic] justice\" rather than \"draw[ing] its essence from the contract\"-may a court overturn his determination. Eastern Associated Coal, 531 U.S., at 62, 121 S.Ct. 462 (quoting Misco, 484 U.S., at 38, 108 S.Ct. 364). So the sole question for us is whether the arbitrator (even arguably) interpreted the parties' contract, not whether he got its meaning right or wrong. And we have already all but answered that question just by summarizing the arbitrator's decisions, see supra, at 2071 - 2072; they are, through and through, interpretations of the parties' agreement. The arbitrator's first ruling recited the \"question of" }, { "docid": "22980260", "title": "", "text": "was construing and applying the contract and because the decision involved at- worst “improvident, even silly,” decisionmaking. Id. at 39, 108 S.Ct. 364. Major League Baseball Players Ass’n v. Garvey, 532 U.S. 504, 121 S.Ct. 1724, 149 L.Ed.2d 740 (2001), reinforced the federal courts’ modest role in this area. In summarily reversing a court of appeals’ decision, the Court explained that the federal courts’ review of labor-arbitration decisions is not just “limited,” Misco, 484 U.S. at 36, 108 S.Ct. 364; it is “very limited,” Garvey, 532 U.S. at 509, 121 S.Ct. 1724. Rather than asking whether the arbitration award “draws its essence from the contract,” the Court asked whether the arbitrator was “ ‘even arguably construing or applying the contract.’ ” Id. at 509, 121 S.Ct. 1724 (quoting Misco, 484 U.S. at 38, 108 S.Ct. 364). “[O]nly when the arbitrator strays from interpretation and application,” the Court explained, does he enter the forbidden world of “effectively ‘dispensing] his own brand of industrial justice,’ ” making the arbitrator’s decision “unenforceable.” Id. at 509, 108 S.Ct. 364 (quoting Enterprise Wheel, 363 U.S. at 597, 80 S.Ct. 1358). But when “an arbitrator resolves disputes regarding the application of a contract, and no dishonesty is alleged, the arbitrator’s ‘improvident, even silly, factfinding’ does not provide a basis for a reviewing court to refuse to enforce the award.” Id. (quoting Misco, 484 U.S. at 39, 108 S.Ct. 364). Misco and Garvey refine the Steelworkers Trilogy in two ways. One, they define the line between a permissible award (that “draws its essence from the contract”) and an impermissible award (that “simply re-flectes] the arbitrator’s own notion[ ] of industrial justice”) based on whether “the arbitrator is even arguably construing or applying the contract and acting within the scope of his authority.” Misco, 484 U.S. at 38, 108 S.Ct. 364; see Garvey, 532 U.S. at 509, 121 S.Ct. 1724. Two, Misco and Garvey show that the Court means what it is saying. In both cases, the Court held that once it was established that the arbitrator was construing or applying the contract (and acting within the scope" }, { "docid": "12422170", "title": "", "text": "utilize the same standard that the district court was required to apply.” NCR Corp., 906 F.2d at 1500 (citations omitted). Our standard of review of “arbitral awards is among the narrowest known to the law. We must enforce an award which ‘draws its essence from the collective bargaining agreement.’ ” Litvak Packing v. United Food & Commercial Workers, Local Union No. 7, 886 F.2d 275, 276 (10th Cir.1989) (quoting United Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 597, 80 S.Ct. 1358, 1361, 4 L.Ed.2d 1424 (1960)). This has been interpreted to mean that “as long as the arbitrator is even arguably construing or applying the contract and acting within the scope of his authority, that a court is convinced he committed serious error does not suffice to overturn his decision.” United Paperworkers Int’l v. Misco, Inc., 484 U.S. 29, 38, 108 S.Ct. 364, 371, 98 L.Ed.2d 286 (1987). A corollary to the Misco standard is that “[w]e will not interfere with an arbitrator’s decision ‘unless it can be said with positive assurance that the contract is not susceptible to the arbitrator’s interpretation.’ ” Safeway, 889 F.2d at 947 (quoting Sterling Colo. Beef Co. v. United Food & Commercial Workers Local Union No. 7, 767 F.2d 718, 720 (10th Cir.1985)). Following the Misco standard, we must determine (1) whether the arbitrator acted within the contractual scope of his authority; and (2) if so, whether he was even arguably construing or applying the Agreement thus drawing the essence of his award from the Agreement. When addressing the first part of the Misco standard, it is important to realize that the “parties have contracted for an arbitrator to resolve their disputes, not a court. They have agreed to be bound by the arbitrator’s factfinding and contract interpretation whether his findings and conclusions are correct or not.” Litvak, 886 F.2d at 276 (citations omitted). Specifically, the arbitrator was, among other things, authorized by the parties to interpret the Provision in order to determine the proper method for the layoffs. Aplt.App. Vol. I, at 46. The Appellee concedes this point in its" }, { "docid": "13056544", "title": "", "text": "Congress’s power under the Commerce Clause. Allied Bruce Terminix Cos., 513 U.S. at 269-70, 115 S.Ct. 834; Foster, 808 F.2d at 40. The district court ordered the arbitration in the case before us pursuant to a right-of-way agreement, a transaction involving pipelines for the interstate transportation of crude oil. The FAA therefore applies to the parties’ dispute. Our review of the arbitration panel’s decision under the FAA is strictly limited; this highly deferential standard has been described as “among the narrowest known to the law.” ARW Exploration Corp., 45 F.3d at 1462 (internal quotation marks omitted). In consenting to arbitration, “ ‘a party trades the procedures and opportunity for review of the courtroom for the simplicity, informality, and expedition of arbitration.’ ” Brown v. Coleman Co., 220 F.3d 1180, 1182 (10th Cir.2000) (quoting Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 31, 111 S.Ct. 1647, 114 L.Ed.2d 26 (1991)). We employ this limited standard of review and exercise caution in setting aside arbitration awards because one “purpose behind arbitration agreements is to avoid the expense and delay of court proceedings.” Foster, 808 F.2d at 42. A court may not, therefore, independently judge an arbitration award. Ormsbee Dev. Co. v. Grace, 668 F.2d 1140, 1147 (10th Cir.1982). Mindful of the strong federal policy favoring arbitration, a court may grant a motion to vacate an arbitration award only in the limited circumstances provided in § 10 of the FAA, 9 U.S.C. § 10, or in accordance with a few judicially created exceptions, Denver & Rio Grande W. R.R. Co., 119 F.3d at 849. Under the FAA, vacation is proper in certain instances of fraud or corruption, arbitrator misconduct, or “[wjhere the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, definite award upon the subject matter submitted was not made.” 9 U.S.C. § 10(a)(4). Although Amoco does not allege fraud or misconduct, it does argue that the arbitrators exceeded their powers. In addition, Amoco argues the arbitration panel’s decision is in “manifest disregard of the law,” a judicially crafted exception to the general rule that arbitrators’ “erroneous interpretations" }, { "docid": "2966156", "title": "", "text": "4 L.Ed.2d 1424 (1960)). Accordingly, a district court’s review of a final arbitration award is limited. Id.', see also Major League Baseball Players Ass’n v. Garvey, 532 U.S. 504, 509, 121 S.Ct. 1724, 149 L.Ed.2d 740 (2001) (“Judicial review of a labor-arbitration decision ... is very limited. Courts are not authorized to review the arbitrator’s decision on the merits despite allegations that the decision rests on factual errors or misinterprets the parties’ agreement.”) (emphasis added). “The strong policy favoring the resolution of labor disputes by arbitration dictates that courts give broad discretion to the powers of an arbitrator and construe narrowly those circumstances where an award ought to be vacated.” Huntington Hosp. v. Huntington Hosp. Nurses’ Ass’n, 302 F.Supp.2d 34, 39 (E.D.N.Y.2004) (citations omitted). A court must confirm a labor arbitration award as long as it “draws its essence from the collective bargaining agreement” and does not amount to the arbitrator’s “own brand of industrial justice.” First Nat’l Supermarkets, Inc. v. Retail, Wholesale & Chain Store Food Emps. Union Local 338, Affiliated with the Retail, Wholesale & Dep’t Store Union, AFL-CIO, 118 F.3d 892, 896 (2d Cir.1997) (quoting Misco, 484 U.S. at 36, 108 S.Ct. 364). An award “draws its essence” from an agreement if it “could reasonably have been derived from the terms of the contract itself.” Ottley v. Sheepshead Nursing Home, 688 F.2d 883, 890 (2d Cir.1982). An award fails to “draw its essence” from an agreement “[w]hen it is clear that the arbitrator must have based his award on some body of thought, or feeling, or policy, or law that is outside the contract [] and not incorporated in it by reference.” Nat’l Football League Mgmt. Council v. Nat’l Football League Players Ass’n, No. 15-CV-5916, 125 F.Supp.3d 449, 465, 2015 WL 5148739, at *12 (S.D.N.Y. Sept. 3, 2015) (quoting In re Marine Pollution Serv., Inc., 857 F.2d 91, 94 (2d Cir.1988)) (internal quotation marks omitted). “As long as the arbitrator is even arguably construing or applying the contract and acting within the scope of his authority, that a court is convinced he committed serious error does not" }, { "docid": "15405352", "title": "", "text": "Co. v. Akron Newspaper Guild, Local No. 7, 114 F.3d 596, 599 (6th Cir.1997). However, the scope of review is extremely limited. Id. “As long as the arbitrator’s award draws its essence from the collective bargaining agreement, and is not merely his own brand of industrial justice, the award is legitimate.” United Paper-workers Int’l Union v. Misco, 484 U.S. 29, 36, 108 S.Ct. 364, 98 L.Ed.2d 286 (1987) (internal quotations omitted). The Supreme Court recently stated that “if an arbitrator is even arguably construing or applying the contract and acting within the scope of his authority, the fact that a court is convinced he committed serious error does not suffice to overturn his decision.” Major League Baseball Players Ass’n v. Garvey, 532 U.S. 504, 121 S.Ct. 1724, 1728, 149 L.Ed.2d 740 (2001) (quotation omitted). We have developed a four-prong test for determining when an arbitration award fails to draw its essence from the collective bargaining agreement; an award so fails when: “(1) it conflicts with express terms of the agreement; (2) it imposes additional requirements not expressly provided for in the agreement; (3) it is not rationally supported by or derived from the agreement; or (4) it is based on general considerations of fairness and equity instead of the exact terms of the agreement.” MidMichigan Reg’l Med. Ctr.-Clare v. Prof'l Employees Div. of Local 79, 183 F.3d 497, 502 (6th Cir.1999) (quotation omitted). B. Essence of the Collective Bargaining Agreement On appeal, Dana argues that the arbitration award by Arbitrator Glendon fails to draw its essence from the Master Agreement because Arbitrator Glendon rejected the interpretation of the neutrality provision adopted by Arbitrator Mittenthal “in four prior, materially identical, arbitration proceedings.” Appellant’s Br. at 15. First, Dana claims that Arbitrator Mittenthal’s interpretation of the neutrality provision had effectively become part of the contract or, that, at least, because the parties had renewed the provision without amendment, the interpretation indicated the parties’ intent. In support of this proposition, Dana cites an Eighth Circuit case in which the court held that an arbitration award that found a company’s “no beard” policy unreasonable" } ]

[ { "docid": "1492738", "title": "", "text": "said false representations were made maliciously, fraudulently, willfully, wantonly, and in reckless disregard of the rights of the plaintiff, and the plaintiff has been damaged by the matters alleged in the sum of $2,891, actual damages, and $15,000 exemplary damages, and he asks for judgment against the defendants in the sum of $17,891. A motion was duly filed to dismiss the complaint on the ground the petition on its face failed to show a jurisdictional amount in controversy. The trial court found that the petition was one for the recovery of the purchase price upon prompt rescission of the contract; that exemplary damages were not a proper element of damages; that the matter in controversy was less than $3,000'; and dismissed the petition for want of jurisdiction. The questions for determination are, first, does the cause of action sound in tort, or is it an action in implied assumpsit for the return of the purchase price? and, second, if the latter, may exemplary damages be pleaded and recovered as a proper element of damages? As to the first question, the petition of the plaintiff may be easily analyzed. It claims, first, that the plaintiff entered into a contract with the defendant W. F. Main to purchase machines at the agreed price of $2,891; second, that said agreement of purchase was caused and-induced by a conspiracy on the part of the defendants and others to procure such agreement by means of fraudulent statements, and that, in the carrying out of such conspiracy, such fraudulent statements were made to the plaintiff, relied upon by him and he was induced thereby to purchase the machines; third, that promptly thereafter the plaintiff by his own act rescinded the contract of purchase and demanded the return of the purchase price; fourth, that the fraudulent statements were made willfully and maliciously; and, fifth, that plaintiff is entitled to recover as damages the amount of the purchase price, and exemplary damages because of the willful misrepresentations. From this it is clearly evident that the cause set out in its entirety is for the recovery of the purchase" } ]

[ { "docid": "17869232", "title": "", "text": "a directed verdict, he conceded that his proof was not sufficient to entitle him to recover for damages for the alleged sale of 500 barrels of flour included in his cause of action. Generally speaking, with certain exceptions not here material, the amount in controversy for jurisdictional purposes is to be determined not by the amount plaintiff is able to prove, but by the amount demanded in his complaint, if such demand is made in good faith. By good faith is meant that the sum demanded in the'pleading is the real matter put in- dispute, and not so clearly fictitious as to make it legally certain that the amount alleged was merely to confer jurisdiction because clearly beyond reasonable expectation of recovery. This is particularly true in an action sounding in damages. Southwestern T. & T. Co. v. Walker Grain Co. (D.C.) 3 F.(2d) 819; Kunkel v. Brown (C.C.A.4) 99 F. 593; O. J. Lewis Mercantile Co. v. Klepner (C.C.A.2) 176 F. 343; Interstate Bldg. & Loan Ass’n v. Edgefield Hotel Co. (C.C.) 109 F. 692; Put-In-Bay Waterworks, L. & Ry. Co. v. Ryan, 181 U.S. 409, 21 S.Ct. 709, 45 L.Ed. 927; Hilton v. Dickinson, 108 U.S. 165, 2 S.Ct. 424, 27 L.Ed. 688; Barry v. Edmunds, 116 U.S. 550, 6 S.Ct. 501, 29 L.Ed. 729. The record discloses that proof was submitted by plaintiff in support of its claim for damages on account of the alleged sale of 500 barrels of flour, and it is argued that the evidence in support of this claim was substantial. On examination of the record, we think it cannot be said that the claim for damages on this item was fictitious or made in bad faith. It is charged that the court “erred at the close of all the testimony in directing the jury to return a verdict for the plaintiff of $2789.69.” This assignment, liberally construed, may raise the question of whether the record discloses any substantial evidence to support the verdict of the jury as directed. If there were any disputed questions of fact, we must assume that they were" }, { "docid": "6634288", "title": "", "text": "the judgment of dismissal and, commenting upon the authority of the trial judge to adjudicate the jurisdictional facts, said: “Such an authority obviously is not unlimited, and its limits ought to be ascertained and observed, lest, under the guise of determining jurisdiction, the merits of the controversy between the parties be summarily decided without the ordinary incidents of a trial, including the right to a jury. For it must not be forgotten that where, .in good faith, one has brought into court a cause of action which, as stated by him, is clearly within its jurisdiction, he has the right to try its merits in the manner provided by the Constitution and law, and cannot be -compelled to submit to a trial of another kind.” 204 U.S. at page 645, 27 S.Ct. at page 300; see Fireman’s Fund Ins. Co. v. Railway Express Agency, supra, 253 F.2d at pages 783-785. In actions at law where trial by jury is a matter of right, the plaintiff’s claim, e. g. as to the amount of damages sustained as a proximate consequence of an alleged wrongful act of the defendant, ordinarily serves to fix for jurisdictional purposes prior to plenary trial on the merits the sum or value of the matter in controversy, unless the amount appears not to be claimed in good faith. Globe Refining Co. v. Landa Cotton Oil Co., 1903, 190 U.S. 540, 546-547, 23 S.Ct. 754, 47 L.Ed. 1171; Smith v. Greenhow, 1884, 109 U.S. 669, 671, 3 S.Ct. 421, 27 L.Ed 1080. Of course, “where the law gives the rule, the legal cause of action, and not plaintiff’s demand, must be regarded.” McNutt v. General Motors Acceptance Corp., supra, 298 U.S. at page 182, 56 S.Ct. at page 782; Barry v. Edmunds, 1886, 116 U.S. 550, 560, 6 S.Ct. 501, 29 L.Ed. 729; Parmelee v. Ackerman, 6 Cir., 1958, 252 F.2d 721, 722. As Mr. Justice Roberts put it in St. Paul Mercury Indemnity Co. v. Red Cab Co., 1938, 303 U.S. 283, 58 S.Ct. 586, 82 L.Ed. 845, “if from the face of the pleadings, it is" }, { "docid": "11014617", "title": "", "text": "recoverable as a matter of state law. If the answer is yes, the court has subject matter jurisdiction unless it is clear “beyond a legal certainty that the plaintiff would under no circumstances be entitled to recover the jurisdictional amount.” Risse v. Woodard, 491 F.2d 1170, 1173 (7th Cir.1974). Applying this analysis to the present case, the answer to the first question is that under Wisconsin law, punitive damages may be awarded for fraudulent misrepresentation. See Jeffers v. Nysse, 98 Wis.2d 543, 297 N.W.2d 495, 499 (1980) (permitting punitive damages when seller of home misrepresented heating costs). Therefore, the district court had jurisdiction unless it could determine to a legal certainty that a verdict awarding Cadek $5000.01 (the amount necessary to exceed $50,000) in punitive damages “would be excessive and set aside for that reason.” Sharp, 939 F.2d at 515 (quoting Bell, 320 U.S. at 243, 64 S.Ct. at 7) (quoting Barry v. Edmunds, 116 U.S. 550, 565, 6 S.Ct. 501, 509, 29 L.Ed. 729 (1886)). The district court erred in so determining. In upholding a jury award of $5000 in punitive and $3800 in compensatory damages where the seller misrepresented the applicable building code to the purchaser of an apartment building, the Wisconsin Supreme Court held that punitive damages were proper “if the injured party shows a reckless indifference to or disregard of the rights of others on the part of the wrongdoer.” Lundin v. Shimanski, 124 Wis.2d 175, 368 N.W.2d 676, 687 (1985). A jury could certainly find that Great Lakes’ misrepresentation of their inadequate fire-fighting capabilities showed reckless disregard for the rights and safety of competitors and spectators. Where safety is at issue, the Wisconsin Supreme Court has allowed punitive damage recoveries even in cases of non-intentional torts. Wangen v. Ford Motor Company, 97 Wis.2d 260, 294 N.W.2d 437 (1980) (court allowed punitive damage claim in products liability case where defendant knew of defects). In determining the size of an award the jury can consider “potential damage that might have been done by such acts as well as the actual damage.” Jeffers, 297 N.W.2d at 497. Though" }, { "docid": "851079", "title": "", "text": "controversy, for jurisdictional purposes, is to be determined not by the amount plaintiff is able to prove, but by the amount demanded in his complaint, if such demand is made in good faith. By “good faith” is meant that the sum demanded in the pleading is the real matter put in dispute, and not so clearly fictitious as to make it legally certain that the amount alleged is merely to confer jurisdiction because clearly beyond reasonable expectation of recovery. This is particularly true in an action sounding in damages. Southwestern Telegraph & Telephone Co. v. Walker Grain Co., D.C., 3 F.2d 819; Kunkel v. Brown, 4 Cir., 99 F. 593; O. J. Lewis Mercantile Co. v. Klepner, 2 Cir., 176 F. 343; Interstate Bldg. & Loan Ass’n v. Edgefield Hotel Co., 4 Cir., 109 F. 692; Put-In-Bay Waterworks Light & Railway Co. v. Ryan, 181 U.S. 409, 21 S.Ct. 709, 45 L.Ed. 927; Hilton v. Dickinson, 108 U.S. 165, 2 S.Ct. 424, 27 L.Ed. 688; Barry v. Edmunds, 116 U.S. 550, 6 S.Ct. 501, 29 L.Ed. 729; Miller-Crenshaw Co. v. Colorado Mill Elevator Co., 8 Cir., 84 F.2d 930, filed July, 1936. The allegation of the motion that the complaint fails to state a claim against the defendant, upon which relief may be granted, should perhaps receive mention in passing. The Rules of Civil Procedure, 28 U.S.C.A., under w-hi-ch this Court is governed, are modern. By these rules it is not necessary to state a cause of action in this court. All that is necessary is a sufficient allegation to show a -claim upon which relief might ultimately be proven, or obtained, as a result of the evidence adduced upon the trial. Pleadings are no longer paramount in the trial of a case in this court. We now try our cases upon the evidence. We are fully equipped to require the evidence to be produced at the proper time. To say that the claim filed here may not ultimately be proven is not to deny the jurisdiction of the court. That is for determination at the trial. The question of" }, { "docid": "6634289", "title": "", "text": "as a proximate consequence of an alleged wrongful act of the defendant, ordinarily serves to fix for jurisdictional purposes prior to plenary trial on the merits the sum or value of the matter in controversy, unless the amount appears not to be claimed in good faith. Globe Refining Co. v. Landa Cotton Oil Co., 1903, 190 U.S. 540, 546-547, 23 S.Ct. 754, 47 L.Ed. 1171; Smith v. Greenhow, 1884, 109 U.S. 669, 671, 3 S.Ct. 421, 27 L.Ed 1080. Of course, “where the law gives the rule, the legal cause of action, and not plaintiff’s demand, must be regarded.” McNutt v. General Motors Acceptance Corp., supra, 298 U.S. at page 182, 56 S.Ct. at page 782; Barry v. Edmunds, 1886, 116 U.S. 550, 560, 6 S.Ct. 501, 29 L.Ed. 729; Parmelee v. Ackerman, 6 Cir., 1958, 252 F.2d 721, 722. As Mr. Justice Roberts put it in St. Paul Mercury Indemnity Co. v. Red Cab Co., 1938, 303 U.S. 283, 58 S.Ct. 586, 82 L.Ed. 845, “if from the face of the pleadings, it is apparent, to a legal certainty, that the plaintiff cannot recover the amount claimed, or if, from the proofs, the court is satisfied to a like certainty that the plaintiff never was entitled to recover that amount, and that his claim was therefore colorable for the purpose of conferring jurisdiction, the suit will be dismissed.” 303 U.S. at page 289, 58 S.Ct. at page 590. It may be said generally then that, absent any question of bad faith, or some legal limitation upon plaintiff’s claim such as would necessarily reduce it below the jurisdictional minimum, the amount demanded is to be taken at face value for jurisdictional purposes. And the presently prevailing view seems to be that, in actions at law where trial by jury is a matter of right, a challenge to the jurisdictional amount may not be adjudicated summarily in the face of timely objection by a party, but must be tried plenarily and submitted for jury determination. Of course, where segregation of the jurisdictional issue is appropriate under Rule 42(b) of the Federal" }, { "docid": "11014616", "title": "", "text": "inoperable fire truck at the side of the track, Great Lakes misrepresented its fire-fighting capability to both competitors and spectators — as certain a misrepresentation as the silent passing of the counterfeit bill. Cadek’s fraud allegation therefore survives Great Lakes’ challenge- under Rule 12(b)(6). 2. Availability of punitive damages The district court dismissed Cadek’s complaint under Rule 12(b)(1) holding that he could not recover punitive damages as a matter of law and that his remaining claim for $45,000 in compensatory damages fell short of the $50,000 required for diversity jurisdiction. 28 U.S.C. § 1332(a). “Where both actual and punitive damages are recoverable under a complaint each must be considered to the extent claimed in determining the jurisdictional amount.” Bell v. Preferred Life Society, 320 U.S. 238, 240, 64 S.Ct. 5, 6, 88 L.Ed. 15 (1943); Sharp Electronics Corp. v. Copy Plus, Inc., 939 F.2d 513, 515 (7th Cir.1991). Where punitive damages are required to satisfy the jurisdictional amount in a diversity case, a two-part inquiry is necessary. The first question is whether punitive damages are recoverable as a matter of state law. If the answer is yes, the court has subject matter jurisdiction unless it is clear “beyond a legal certainty that the plaintiff would under no circumstances be entitled to recover the jurisdictional amount.” Risse v. Woodard, 491 F.2d 1170, 1173 (7th Cir.1974). Applying this analysis to the present case, the answer to the first question is that under Wisconsin law, punitive damages may be awarded for fraudulent misrepresentation. See Jeffers v. Nysse, 98 Wis.2d 543, 297 N.W.2d 495, 499 (1980) (permitting punitive damages when seller of home misrepresented heating costs). Therefore, the district court had jurisdiction unless it could determine to a legal certainty that a verdict awarding Cadek $5000.01 (the amount necessary to exceed $50,000) in punitive damages “would be excessive and set aside for that reason.” Sharp, 939 F.2d at 515 (quoting Bell, 320 U.S. at 243, 64 S.Ct. at 7) (quoting Barry v. Edmunds, 116 U.S. 550, 565, 6 S.Ct. 501, 509, 29 L.Ed. 729 (1886)). The district court erred in so determining. In upholding" }, { "docid": "20085685", "title": "", "text": "available as a matter of law. The Second Restatement of Torts states that compensatory damages in an action for interference with a contract may include: “(a) the pecuniary loss of the benefits of the contract ...; (b) consequential losses for which the interference is a legal cause; and (c) emotional distress or actual harm to reputation, if they are reasonably to be expected to result from the interference.” Restatement (Second) of Torts § 774A(1) (1979). The New York Court of Appeals has noted that a plaintiff is entitled to “the full pecuniary loss of the benefits of the contract,” and that “the elements of damages, including consequential damages, would be those recognized under the more liberal rules applicable to tort actions.” Guard-Life, supra, 50 N.Y.2d at 191 & n. 6, 428 N.Y.S.2d at 636 & n. 6 (citing § 774A(1) comment c). The Restatement also makes clear that an action may be maintained, and damages awarded, for tortious interference despite the availability of an action for breach against the other party to the contract. “[T]he fact that [a] third person is liable for the breach does not affect the amount of damages awardable against the [tort defendant]; but any damages in fact paid by the third person will reduce the damages actually recoverable on the judgment.” Restatement (Second) of Torts § 774A(2); accord, Simon v. Royal Business Funds Corp., 34 A.D.2d 758, 310 N.Y.S.2d 409 (1st Dep’t 1970), aff'd, 29 N.Y.2d 692, 325 N.Y.S.2d 649, 275 N.E.2d 21 (1971); Canales v. Stuyvesant Ins. Co., 10 Misc.2d 583, 172 N.Y.S.2d 729, 733 (N.Y.Mun.Ct.1958). A plaintiff that has recovered a judgment in a contract action against the breaching party may not “recover more than the amount of damage he suffered.... [I]n the absence of pleading and proof of additional damages resulting from the defendants’ tort,” the complaint must be dismissed for legal insufficiency. Simon, supra, 310 N.Y.S.2d at 411. However, the moving defendants provide no authority for their contention that plaintiffs must first seek recovery from Hydra for breach of contract. Comment a to section 774A of the Restatement states that “[s]ince" }, { "docid": "15555814", "title": "", "text": "499, 75 N.E. 536, 537, 3 Ann.Cas. 310; Morton v. Weet, 142 Misc. 473, 254 N.Y.S. 655, and not in contract, it being immaterial that the acts constituting the wrong may in some way affect a contractual relationship. Churchill v. Howe, 186 Mich. 107, 152 N.W. 989, 990; Van Oss v. Synon, 85 Wis. 661, 56 N.W. 190, 191. To what extent the escrow contract was breached is unnecessary to the decision, as the petitions allege overt acts in pursuance of a conspiracy resulting in consequent damage. Passing by the general rule that where the plaintiff has several demands against the defendant which he may join in one action, the aggregate of those demands, exclusive of interests and costs, is the amount in controversy, Kimel v. Missouri State Life Ins. Co. (C.C.A.10) 71 F.(2d) 921, 924; Baltimore & O. Southwestern R. R. Co. v. United States, 220 U.S. 94, 106, 31 S.Ct. 368, 55 L.Ed. 384; Provident Mutual Life Ins. Co. v. Parsons (C.C.A.4) 70 F.(2d) 863, 864, certiorari denied 293 U.S. 582, 55 S.Ct. 95, 79 L.Ed. 678; Bullard v. Cisco, 290 U.S. 179, 54 S.Ct. 177, 78 L.Ed. 254, 93 A.L.R. 141, it should be noted that only one cause of action is in effect alleged by the plaintiff. The fact that the money held in escrow came from two different subscriptions is immaterial. Complaint is made of only one breach of duty. The failure of the conspirators to procure interim certificates for Simecek for his 4,000-share subscription does not therefore affect the validity of his claim for damages as a matter of law nor demonstrate that his claim for such damages is fictitious for the purpose of determining federal jurisdiction. Prior to October 10, Simecek had paid for the 4,000 shares. On that date the Omaha National Bank was handed money sufficient to pay for the entire block of 175.000 shares, and the stock was released. The appellee insists that the fact that the permanent certificates for these 4,000 shares were dated November 8, shows that Simecek received his stock from some unknown third party subsequent to" }, { "docid": "15555813", "title": "", "text": "the 1,500 shares which was considered insufficient to confer federal jurisdiction. With respect to federal jurisdiction, the fact that the claim may ultimately be held bad is immaterial. The Fair v. Kohler Die Co., 228 U.S. 22, 25, 33 S.Ct. 410, 57 L.Ed. 716. Except where it appears that part of the claim is fictitious and inserted for the purpose of invoking jurisdiction of the court, Nathan v. Rock Springs Distilling Co. (C.C.A.6) 10 F.(2d) 268, the amount in controversy is determined by that actually claimed in the petition and not by the amount the plaintiff may ultimately recover. Barry v. Edmunds, 116 U.S. 550, 560, 6 S.Ct. 501, 29 L.Ed. 729. The petitions in both cases ask judgment for damages suffered by the appellants on account of an unlawful conspiracy, of which the appellee bank through its officers was a party. Where conspiracy results in the commission of a wrong, the cause of action has always been considered to sound in tort, Young v. Main (C.C.A.8) 72 F.(2d) 640; Green v. Davies, 182 N.Y. 499, 75 N.E. 536, 537, 3 Ann.Cas. 310; Morton v. Weet, 142 Misc. 473, 254 N.Y.S. 655, and not in contract, it being immaterial that the acts constituting the wrong may in some way affect a contractual relationship. Churchill v. Howe, 186 Mich. 107, 152 N.W. 989, 990; Van Oss v. Synon, 85 Wis. 661, 56 N.W. 190, 191. To what extent the escrow contract was breached is unnecessary to the decision, as the petitions allege overt acts in pursuance of a conspiracy resulting in consequent damage. Passing by the general rule that where the plaintiff has several demands against the defendant which he may join in one action, the aggregate of those demands, exclusive of interests and costs, is the amount in controversy, Kimel v. Missouri State Life Ins. Co. (C.C.A.10) 71 F.(2d) 921, 924; Baltimore & O. Southwestern R. R. Co. v. United States, 220 U.S. 94, 106, 31 S.Ct. 368, 55 L.Ed. 384; Provident Mutual Life Ins. Co. v. Parsons (C.C.A.4) 70 F.(2d) 863, 864, certiorari denied 293 U.S. 582, 55 S.Ct." }, { "docid": "23326250", "title": "", "text": "44 Mich. 229, 6 N.W. 636; Chapman v. Kirby, 49 Ill. 211. In this same connection and commingled therewith it is argued that the verdict is excessive. This court has consistently held that in a tort action excessiveness of the verdict is a question to be determined by the trial court on motion for new trial and can not be considered as a ground for reversal. Kroger Grocery & Baking Co. v. Yount, 8 Cir., 66 F.2d 700, 92 A.L.R. 1166; Peitzman v. City of Illmo., 8 Cir., 141 F.2d 956; St. Louis. Southwestern Ry. Co. v. Ferguson, 8 Cir., 182 F.2d 949; Missouri-Kansas-Texas Ry. Co. v. Ridgway, 8 Cir., 191 F.2d 363. As to this rule we said in St. Louis Southwestern Ry. Co. v. Ferguson, supra [8 Cir., 182 F.2d 955]: “ * * * under the concept of appellate function in jury cases which has heretofore been expressed by the decisions of the Supreme Court and in our own, the change is not one which we would feel entitled to make.” Ordinarily it is the exclusive function of the jury to fix the amount of damages. Barry v. Edmunds, 116 U.S. 550, 6 S.Ct. 501, 29 L.Ed. 729; Tennant v. Peoria & P. U. Ry. Co., 321 U.S. 29, 64 S.Ct. 409, 88 L.Ed. 520; Bordonaro Bros. Theatres, Inc., v. Paramount Pictures, Inc., 2 Cir., 176 F.2d 594. The amount of damages assessed by the jury is confessedly large but it can not be said that it does not respond to the evidence and the trial court in its discretion overruled defendants’ motion for a new trial. It is argued, though not properly assigned as error, in defendants’ brief that the trial court erred in rejecting defendants’ offer to prove why they licensed the Brookside Theater as they did. As we understand the offer, defendants wished to show that in licensing pictures to independent exhibitors operating theaters in Kansas City each defendant was acting independently and not as the result of any understanding or conspiracy between the various defendants, and particularly they wished to show that in" }, { "docid": "3368942", "title": "", "text": "also claiming damages for the substantive tort. For example, in Fife v. The Great Atlantic & Pacific Tea Co., 356 Pa. 265, 52 A.2d 24, cert. denied, 332 U.S. 778, 68 S.Ct. 42, 92 L.Ed.2d 362 (1947), the complaint alleged a conspiracy having for its object a breach of contract between defendant, The Great Atlantic & Pacific Tea Co., and some independent haulers. The court did not have before it any claim by the plaintiffs to recover damages on the substantive claim of breach of contract. Similarly, in United Aircraft v. Boreen, 413 F.2d 694 (3d Cir. 1969), the plaintiff’s allegations with respect to the conspiracy had been unsuccessful in the court below, as had been its claims on the other substantive torts for inducement to breach the employment relationship and breach of fiduciary duty. Thus, neither the trial court nor this court had occasion to consider a situation in which plaintiff was successful before the trier of fact on both the substantive tort and the conspiracy tort. Some discussion of the issue appears in an early Wisconsin case, Patnode v. Westenhaver, 114 Wis. 460, 90 N.W. 467 (1902), where plaintiff sued for conspiracy to defraud her of certain real estate. The court recognized that the action could proceed on the conspiracy, but stated: “The gist [of this action] is the damage suffered by a wrong which was distinct from other wrongs which were in a measure incidental thereto. * * * The cause of action for the conspiracy in such circumstances is a possession by itself, a right to prosecute for the damages caused by the executed fraudulent combination. * * * The right to redress for damages caused by a consummated conspiracy is distinct, so to speak, from the right to redress for wrongs caused in the progress of its execution. It may go against all the members of the combine, and there may be incidental transactions causing damage included in the claim against all, from which causes of action may arise against individual members of the combine. The prosecution of all for the conspiracy may proceed concurrently" }, { "docid": "21494971", "title": "", "text": "303 U.S. 283, 289, 58 S.Ct. 586, 590, 32 L.Ed. 845, the court said: “It must appear to a legal certainty that the claim is really for less than the jursidictional amount to justify dismissal.” Dobie’s Federal Procedure says that the amount in controversy is always to be determined by the value to the plaintiff of the right that he in good faith asserts in his pleading, alleging the operative facts constituting his cause of action; and only the value of the right directly in issue in the particular suit, not the collateral effect of the judgment, may be considered in making up the necessary jurisdictional amount. Sec. 56, p. 133, 1928 Edition. See also 38 Harvard Law Review, p. 733. This is an action at law for a money judgment by an integral plaintiff against an integral defendant, and the amount in controversy is the amount of money sought in good faith to be recovered by the plaintiff. This is also an action for unliquidated damages, where the amount in controversy is ordinarily the sum claimed by the plaintiff in good faith; it is not the amount that he ultimately recovers. Wiley v. Sinkler, 179 U.S. 59, 65, 21 S.Ct. 17, 45 L.Ed. 84; Chesbrough v. North Trust Co., 252 U.S. 83, 40 S.Ct. 237, 64 L.Ed. 470. See also Barry v. Edmunds, 116 U.S. 550, 6 S.Ct. 501, 29 L.Ed. 729, where plaintiff’s property had been levied upon and carried away for a tax of $56.34; and the court said: “The plaintiff is not limited in his recovery to the mere value of the property taken. That would not necessarily cover his actual, direct, and immediate pecuniary loss.” A valid defense to a cause of action, apparent on the face of the complaint, does not diminish the amount that is claimed, nor determine what is the matter in dispute. Schunk v. Moline, Milburn & Stoddart Co., 147 U.S. 500, 505, 13 S.Ct. 416, 37 L.Ed. 255; Smithers v. Smith, 204 U.S. 632, 642, 27 S.Ct. 297, 51 L.Ed. 656, 659. The amount recovered or the failure of the" }, { "docid": "18778420", "title": "", "text": "Proof of a civil conspiracy under New York law “ ‘connects] a defendant with the transaction and ... charge[s] him with the acts and declarations of his co-conspirators,’ ” Green v. Davies, 182 N.Y. 499, 504, 75 N.E. 536, 537 (1905) (quoting Brackett v. Griswold, 112 N.Y. 454, 466-67, 20 N.E. 376, 379 (1889)), and exposes that defendant to joint and several liability for the victim’s losses. See also Goldstein v. Siegel, 244 N.Y.S.2d 378, 382, 19 A.D.2d 489, 493 (1st Dept.1963) (defining civil con spiracy as “common action for a common purpose by common agreement or understanding among a group, from which common responsibility derives”); Interstate Cigar Co. v. IBI Security Service, Inc., 105 Misc.2d 179, 184-85, 431 N.Y.S.2d 1016, 1020 (Sup.Ct.1980). Under New York law, a civil conspiracy is an agreement or confederation between two or more persons intentionally participating in the furtherance of a preconceived common plan or purpose to defraud. To constitute an actionable conspiracy, plaintiffs must establish not only the corrupt agreement between two or more persons, but their intentional participation in the furtherance of the plan or purpose, and resulting damage. Von Lehn v. Astor Art Galleries, Ltd., 86 Misc.2d 1, 7, 380 N.Y.S.2d 532, 538 (Sup.Ct.1976) (citations omitted). “In alleging conspiracy, the plaintiff carries the burden of proving (1) the corrupt agreement between two or more persons, (2) an overt act, (3) their intentional participation in the furtherance of a plan or purpose, and (4) the resulting damage.” Suarez v. Underwood, 103 Misc.2d 445, 447, 426 N.Y.S.2d 208, 210 (Sup.Ct.1980). Kashi clearly proved Gratsos’ deliberate participation in an agreement between himself and his co-defendants to defraud Kashi. Gratsos is, therefore, jointly and severally liable under New York law for the damage suffered by Kashi. Gratsos’ ties to the Onassis organization lent respectability to SMSC and induced Kashi to deal with the defendants. His participation was thus essential to the very initiation of the scheme in light of Kashi’s refusal to deal with SGI prior to its becoming affiliated with Gratsos. The district court found that Gratsos discussed the Kashi “swindle” with Wischmann in" }, { "docid": "18268638", "title": "", "text": "is really for less than the jurisdictional amount to justify dismissal. For the most part, this “legal certainty” test renders it difficult to secure dismissal of a case premised upon the failure to satisfy the jurisdictional amount. See e. g., Moore v. Betit, 511 F.2d 1004 (2d Cir. 1975). Nevertheless, the legal certainty standard is clearly applicable in those cases where recovery is limited by the terms of a contract, e. g., Doucet v. Travelers Insurance Co., 362 F.2d 263 (5th Cir. 1966); where the governing law places limits upon the damages recoverable, James v. Lusby, 162 U.S.App.D.C. 352, 499 F.2d 488 (1974); and, where the amount demanded is merely colorable for the purpose of obtaining jurisdiction. Arnold v. Troccoli, 344 F.2d 842 (2d Cir. 1965). See generally, 14 Wright, Miller & Cooper, Federal Practice & Procedure § 3702 (1976). Bearing in mind that the determination of the amount in controversy is a federal question to be decided under federal standards, see Horton v. Liberty Mutual Insurance Co., 367 U.S. 348, 352, 81 S.Ct. 1570, 6 L.Ed.2d 890 (1961), it further appears to be well-settled that: [w]here both actual and punitive damages are recoverable under a complaint each must be considered to the extent claimed in determining the jurisdictional amount. Bell v. Preferred Life Society, 320 U.S. 238, 240, 64 S.Ct. 5, 6, 88 L.Ed. 15 (1943). Accord, Scott v. Donald, 165 U.S. 58, 89-90, 17 S.Ct. 265, 41 L.Ed. 632 (1897); Barry v. Edmunds, 116 U.S. 550, 562-64, 6 S.Ct. 501, 29 L.Ed. 729 (1886); James v. Lusby, supra, 499 F.2d at 493; DuPont Galleries, Inc. v. International Magne-Tape, Ltd., 300 F.Supp. 1179, 1180 (S.D.N.Y.1969). It is noted, however, that this general -rule is subject to the earlier described limitations wherein: 1) certain damages may not be recoverable under the applicable law; and/or 2) the amount claimed is merely colorable for purposes of obtaining federal jurisdiction. In short, this Court holds that subject to the above limitations, a determination of the amount in controversy in actions maintained under 15 U.S.C. § 2310(d)(3)(B) must include consideration of both the actual" }, { "docid": "23345178", "title": "", "text": "been established; it was not there determined whether exemplary damages could or should be allowed. Looking for analogy to the Civil Rights legislation embodied in 42 U.S.C.A. § 1983, it is noted that there the statute expressly grants a Federal cause of action for “redress”, but no express provision is made for an award of damages, actual or punitive. Right of redress by way of an award of exemplary damages has nevertheless been implied under that statute on the ground that, in actions sounding in tort, punitive damages have traditionally been allowed where circumstances warrant, irrespective of enabling legislation. [Hague v. Committee for Industrial Organization, 101 F.2d 774, 789 (3rd Cir. 1939), mod’d on other grounds, 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423 (1939).]. So, too, in the case at bar, although plaintiff’s rights were established by contract under the Act, deprivation of such contractual rights by unreasonable and unjust' discrimination, in violation of the Act, amounted to tortious conduct on the part of defendant, imposition having been made upon plaintiff without his will or consent. Traditional judicial remedies generally available for tortious acts should, then, be available to plaintiff at bar. [See Scott v. Donald, 165 U.S. 58, 77-90,17 S.Ct. 265, 41 L.Ed. 632 (1897); see also Parker v. Lester, 227 F.2d 708, 713, 1955), aff’d, 235 F.2d 787 (9 Cir. 1956).] The fact that a plaintiff’s pecuniary loss, proximately resulting from unjust discrimination, is inconsequential should not rule out exemplary relief, since it is the vindication of his rights as a passenger, and the need to protect the rights of every air passenger from future encroachment, which warrants the assessment of damages over and above the passenger’s actual injury. [Cf. Barry v. Edmunds, 116 U.S. 550, 562, 6 S.Ct. 501, 29 L.Ed. 729 (1886); see Cal.Civil Code, § 3294.] Accordingly, exemplary damages may be awarded to plaintiff “if the defendant has acted wantonly, or oppressively, or with such malice as implies a spirit of mischief or criminal indifference to civil obligations.” [Lake Shore M. S. Railway Co. v. Prentice, supra, 147 U.S. at 107, 13 S.Ct." }, { "docid": "6675269", "title": "", "text": "TRIEBER, District Judge (after stating the facts as above). The damages claimed in the complaint are in excess of the amount necessary to confer jurisdiction on this court in this controversy, which is between citizens of different states; but it is now well settled that if, from the nature of the case, as stated in the pleadings, there could not legally be a judgment for the amount necessary to the jurisdiction, jurisdiction cannot attach, even though the damages be laid at a larger sum. As early as 1798 Chief Justice Ellsworth said: “It is not intended to say that on every question of jurisdiction the demand of the plaintiff alone is to be regarded, but that the value of the thing put in demand furnishes the rule. The nature of the case must certainly guide the judgment of the court, and whenever the law makes a rule the rule must be pursued. The proposition, then, is simply this: Where the law gives no rule, the demand of the plaintiff must furnish one; but, where the law gives the rule, the legal cause of action, and not the plaintiff’s demand, must be regarded.” Wilson v. Daniel, 3 Dall. 401, 407, 1 L. Ed. 655. This rule has been followed by the courts ever since. Hilton v. Dickinson, 108 U. S. 165, 2 Sup. Ct. 424, 27 L. Ed. 688; Bowman v. Railway Co., 115 U. S. 611, 6 Sup. Ct. 192, 29 L. Ed. 502; Barry v. Edmunds, 116 U. S. 550, 6 Sup. Ct. 501, 29 L. Ed. 729; Vance v. W. A. Vandercook Co., 170 U. S. 468, 18 Sup. Ct. 645, 42 L. Ed. 1111; Trading Co. v. Morrison, 178 U. S. 262, 20 Sup. Ct. 869, 44 L. Ed. 1061; Bank of Arapahoe v. David Bradley & Co., 19 C. C. A. 206, 72 Fed. 867. There is no allegation in the complaint showing any special damages suffered by plaintiff by reason of the unlawful detention of the premises by the defendant, nor is there anything alleged which would entitle plaintiff to any but actual damages, which" }, { "docid": "20085686", "title": "", "text": "fact that [a] third person is liable for the breach does not affect the amount of damages awardable against the [tort defendant]; but any damages in fact paid by the third person will reduce the damages actually recoverable on the judgment.” Restatement (Second) of Torts § 774A(2); accord, Simon v. Royal Business Funds Corp., 34 A.D.2d 758, 310 N.Y.S.2d 409 (1st Dep’t 1970), aff'd, 29 N.Y.2d 692, 325 N.Y.S.2d 649, 275 N.E.2d 21 (1971); Canales v. Stuyvesant Ins. Co., 10 Misc.2d 583, 172 N.Y.S.2d 729, 733 (N.Y.Mun.Ct.1958). A plaintiff that has recovered a judgment in a contract action against the breaching party may not “recover more than the amount of damage he suffered.... [I]n the absence of pleading and proof of additional damages resulting from the defendants’ tort,” the complaint must be dismissed for legal insufficiency. Simon, supra, 310 N.Y.S.2d at 411. However, the moving defendants provide no authority for their contention that plaintiffs must first seek recovery from Hydra for breach of contract. Comment a to section 774A of the Restatement states that “[s]ince the tort is an intentional one, punitive damages are recovered in these actions under appropriate circumstances.” New York law has also recognized that punitive damages may be available on proof of “ ‘actual malice or ill will,’ a wrong ‘morally culpable’ ... or a wrongful act ‘done wilfully, wantonly or maliciously.’ ” Guard-Life Corp. v. S. Parker Hardware Mfg. Corp., 67 A.D.2d 658, 412 N.Y.S.2d 623, 625 (1st Dep’t 1979), aff'd, 50 N.Y.2d 183, 428 N.Y.S.2d 628, 406 N.E.2d 445 (1980) (citations omitted); see also Universal City Studios, Inc. v. Nintendo Co., 615 F.Supp. 838, 863 (S.D.N.Y.1985), aff'd, 797 F.2d 70, 77-78 (2d Cir.1986) (applying New York law); Fury Imports, Inc. v. Shakespeare Co., 554 F.2d 1376, 1388-89 (5th Cir.1977) (applying New York law); Canales, supra, 172 N.Y.S.2d at 733. The requirement that a plaintiff prove its damages with reasonable certainty, see Restatement (Second) of Torts § 912, precludes plaintiffs’ recovery for projected profits from a new business of which the Friendship allegedly was to be the cornerstone. “The prospective profits of a new business" }, { "docid": "15555812", "title": "", "text": "action. Acting on the rule that a federal court should dismiss a case at any time when lack of jurisdiction appears, McNutt v. General Motors Corporation, 298 U.S. 178, 184, 56 S.Ct. 780, 782, 80 L.Ed. 1135; Miller v. First Service Corporation (C.C.A.8) 84 F.(2d) 680, the lower court dismissed both cases without prejudice on the ground that the amount involved in each of them did not “exceed the sum or value of $3,000.” 28 U.S.C. § 41 (28 U.S.C.A. § 41). In the Simecek case the lower court1 held that there was no evidence that the-money for the 4,000 shares ever came into the Omaha National Bank; that, as the.; cause of action was based upon the escrow contract, there could be no breach of the contract if the money did not go into the Omaha National Bank, and therefore no liability on the part of the appellee bank could exist with reference to the 4,000 shares; and that the controversy between the parties could be with reference only to the money paid on the 1,500 shares which was considered insufficient to confer federal jurisdiction. With respect to federal jurisdiction, the fact that the claim may ultimately be held bad is immaterial. The Fair v. Kohler Die Co., 228 U.S. 22, 25, 33 S.Ct. 410, 57 L.Ed. 716. Except where it appears that part of the claim is fictitious and inserted for the purpose of invoking jurisdiction of the court, Nathan v. Rock Springs Distilling Co. (C.C.A.6) 10 F.(2d) 268, the amount in controversy is determined by that actually claimed in the petition and not by the amount the plaintiff may ultimately recover. Barry v. Edmunds, 116 U.S. 550, 560, 6 S.Ct. 501, 29 L.Ed. 729. The petitions in both cases ask judgment for damages suffered by the appellants on account of an unlawful conspiracy, of which the appellee bank through its officers was a party. Where conspiracy results in the commission of a wrong, the cause of action has always been considered to sound in tort, Young v. Main (C.C.A.8) 72 F.(2d) 640; Green v. Davies, 182 N.Y." }, { "docid": "18268639", "title": "", "text": "6 L.Ed.2d 890 (1961), it further appears to be well-settled that: [w]here both actual and punitive damages are recoverable under a complaint each must be considered to the extent claimed in determining the jurisdictional amount. Bell v. Preferred Life Society, 320 U.S. 238, 240, 64 S.Ct. 5, 6, 88 L.Ed. 15 (1943). Accord, Scott v. Donald, 165 U.S. 58, 89-90, 17 S.Ct. 265, 41 L.Ed. 632 (1897); Barry v. Edmunds, 116 U.S. 550, 562-64, 6 S.Ct. 501, 29 L.Ed. 729 (1886); James v. Lusby, supra, 499 F.2d at 493; DuPont Galleries, Inc. v. International Magne-Tape, Ltd., 300 F.Supp. 1179, 1180 (S.D.N.Y.1969). It is noted, however, that this general -rule is subject to the earlier described limitations wherein: 1) certain damages may not be recoverable under the applicable law; and/or 2) the amount claimed is merely colorable for purposes of obtaining federal jurisdiction. In short, this Court holds that subject to the above limitations, a determination of the amount in controversy in actions maintained under 15 U.S.C. § 2310(d)(3)(B) must include consideration of both the actual and punitive damages to the extent claimed. The Court’s task is somewhat difficult because the determination of the amount in controversy is inextricably tied to the merits of each case. Given this circumstance, it rests with the trial court, in the first instance, to strike the proper balance between two seemingly dichotomous policies. On the one hand, the federal courts should not entertain cases in which the jurisdictional claim is wholly without merit; but, on the other hand, in reaching that determination, the court should refrain from deciding the merits, and thereby deprive a litigant of a trial. See Barry v. Edmunds, supra, 116 U.S. at 559, 6 S.Ct. 501. The initial area of inquiry requires an examination of the governing law to determine whether punitive damages are recoverable for breach of warranty. As previously noted, the Magnuson-Moss Warranty Act is silent on this issue; however, the Act does provide: 1) that implied warranty “means an implied warranty arising under State Law . . 15 U.S.C. § 2301(7); and, 2) that nothing in the Act" }, { "docid": "3823420", "title": "", "text": "against the defendants other than Dowling and Barlow, unless a conspiracy be shown.” There can be no question, we take it, but that an averment that acts were done in pursuance of a conspiracy does not change the nature of the civil action or add anything to its legal force and effect. In a criminal prosecution for conspiracy the unlawful combination and confederacy constitute the essential element of the offense rather than the overt acts done in pursuance of it. But that doctrine does not apply to civil suits for actionable torts. Green v. Davies, 182 N. Y. 499, 503, 75 N. E. 536, 3 Ann. Cas. 310. In the civil action, if the conspiracy is not made out, the allegation may be disregarded as surplusage. Perry v. Hayes, 215 Mass. 296, 102 N. E. 318. The rule is correctly stated in 8 Cyc. 647: ■ “If a plaintiff fail in the proof of a conspiracy or concerted design, he may yet recover damages against such of the defendants as are shown to be guilty of the tort without such agreement. The charge of conspiracy, where unsupported by evidence, will be considered mere surplusage, not necessary to be proved to support the action.” If the court below misconceived the action, the opinion rendered distinctly makes it evident that, if it had apprehended the true nature of the action, the decision would have been exactly the same as that which it in fact rendered; for the conclusions which the court reached expressly negatived the facts upon which the complainant would have had to rely to sustain a judgment in his favor under a correct understanding of the true nature of the action. The court 'below not only found that there was no conspiracy, but it found that there was no fraud, no intent to inflict a wrong, or to get an undue or an illegal profit. The court was convinced that the defendants honestly believed that the properties involved were worth the values which justified them in the action taken. The court also found that they exercised as directors the degree" } ]

[ { "docid": "22763402", "title": "", "text": "said that it “does not interfere with the normal exercise of the right of the employer to select its employees or to discharge them”; that the employer “may not, under cover of that right, intimidate or coerce its employees with respect to their self-organization and representation, and, on the other hand, the Board is not entitled to make its authority a pretext for interference with the right of discharge when that right is exercised for other reasons than such intimidation and coercion.” See, also, Associated Press v. National Labor Relations Board, 301 U. S. 103, 132. Compare Texas & New Orleans R. Co. v. Brotherhood, 281 U. S. 548, 571; Virginian Railway Co. v. System Federation No. 40, 300 U. S. 515, 559. It is apparent under that construction of the Act that had there been no strike, and employees had been guilty of unlawful conduct in seizing or committing depredations upon the property of their employer,- that conduct would have been good reason for discharge, as discharge on that-ground would- not be for the purpose of intimidating or coercing employees with respect to their right of self-organization or representation, or because-of any lawful union activity, but would rest upon an independent and adequate basis. But the Board, in exercising its authority under § 10 (c) to reinstate “employees,” insists that here the status of the employees was continued, despite discharge for unlawful conduct, by virtue of the definition of the term “employee” in § 2. (3). By that definition the term includes “any individual whose work has ceased as a consequence of, or in connection with, any current labor dispute or because of any unfair labor practice, and who' has not obtained any other regular. and substantially equivalent employment, : . .” We think that the argument misconstrues the statute. We are unable to conclude that Congress intended to compel employers to retain persons in their employ regardless of their unlawful conduct, — to invest those who go on strike with an immunity from discharge for acts of trespass or violence against the employer’s property, which they would not" } ]

[ { "docid": "21494607", "title": "", "text": "306 U.S. 240, 257, 59 S.Ct. 490, 497, 83 L.Ed. 627, 123 A.L.R. 599: “ * * * There is not a line in the statute to warrant the conclusion that it is any part of the policies of the Act to encourage employees to resort to force and violence in defiance of the law of the land. * * * ” True, as pointed out, the court there was dealing with a different sort of violence, to-wit, the sit-down strike, but the language employed leaves no doubt but that it applies to the character of violence and unlawful conduct found in the instant case. The court, 306 U.S. page 253, 59 S.Ct. page 495, 83 L.Ed. 627, 123 A.L.R. 599, said: “ * * * But in its legal aspect the ousting of the owner from lawful possession is not essentially different from an assault upon the officers of an employing company, * * *.” Not only did the court hold that those who actually participated in the violence were not entitled to reinstatement, but also held, 306 U.S. page 261, 59 S.Ct. page 498, 83 L.Ed. 627, 123 A.L.R. 599, that — “ * * * aiders and abettors, likewise guilty of unlawful conduct, are in no better case than the ‘sit-down’ strikers themselves. We find no ground for concluding that there is any policy of the Act which justifies the Board in ordering reinstatement in such circums1 anees.” In June, petitioner offered to take back 85 strikers in one week and 135 strikers in thirty days, which, under any view of the circumstances, was an offer more liberal than was required of it. But the fact that petitioner offered to reinstate more of the strikers than it was obligated to do, docs not weigh against it. Concerning a similar point, the court in the Fansteel case, 306 U.S. page 259, 59 S.Ct. page 497, 83 L.Ed. 627, 123 A.L.R. 599, said: “ * * * The important point is that respondent stood absolved by the conduct of those engaged in the ‘sit-down’ from any duty to reemploy" }, { "docid": "23576236", "title": "", "text": "requiring reinstatement or preferential 'listing of these striking employees.” There is stronger reason in the case at bar than in the Brashear Freight Lines cáse for holding that the striking minority are not, protected from discharge by the provisions pf the act. The particular grievance which led to the strike by the minority here was the failure of the employer to go forward with the bargaining which 'hafl been arranged by the representative, of all- the employees. The effort of the, minority was thus to take the bargaining out of the hands of the legally chosen .representatives,and proceed.with it themselves; and if a discharge, as in the Brashear case, is justified, where a minority of employees, in the absence of a bargaining agent, go on strike because of the refusal'‘of the employer to deal with them, certainly the discharge is justified where the'-only reason for the strike is the refusal to deal with a minority which is seeking to usurp the functions of the agent chosen by the majority. Support for this conclusion is found in our decision in the Hazel-Atlas Glass Co. v. N. L. R. B., 4 Cir., 127 F.2d 109, and the decisions of the Supreme Court in N. L. R. B. v. Sands Mfg. Co., 306 U.S. 332, 344, 59 S.Ct. 508, 83 L.Ed. 682, and N. L. R. B. v. Fansteel Corp., 306 U.S. 240, 59 S. Ct. 490, 83 L.Ed. 627, 123 A.L.R. 599, which,, while not precisely in point, lay down the propositions as stated in the Fansteel Corp. case, 306 U. S. at page 254, 59 S.Ct. at page 495, 83 L.Ed. 627, 123 A.L.R. 599, that the act “‘does not interfere yiith the normal exercise of the right of the employer to select its employees or to discharge them’; that the employer ‘may not, under cover of that right, intimidate or coerce its employees with respect to their self-organization and representation; and, on the other hand, the Board is not entitled to make its authority a pretext for interference with the right of discharge when that right is exercised for other" }, { "docid": "14115882", "title": "", "text": "desist (a) dominating AMMCO or contributing financial support thereto; (b) dominating and interfering with its employees in the exercise of their right to self-organize; (c) recognizing AMMCO as the employees’ representative for collective bargaining; (d) giving effect to its contract with AMMCO, and directing a withdrawal of all recognition of AMMCO; (e) directing respondent to offer reinstatement to three employees, and to make them whole for any loss suffered by reason of their discharge. Jurisdiction of the Board is not open to question. The stipulated facts bring the case within the rule governing the Board’s jurisdiction, announced in National Labor Relations Board v. Fainblatt, 306 U.S. 601, 59 S.Ct. 668, 83 L.Ed. 1014. The well-nigh undisputed evidence shows the following fact situation: Respondent’s plant is located close to Fansteel Metallurgical Company’s plant — an open field, only, separating them. During the winter and spring of 1937, agitation and lawlessness occurred in the Fansteel plant which culminated in the sit down strike in February. See National Labor Relations Board v. Fansteel Corp., 306 U.S. 240, 59 S.Ct. 490, 83 L.Ed. 627, 123 A.L.R. 599; Fansteel Corp. v. National Labor Relations Board, 7 Cir., 98 F.2d 375. The unrest spread to respondent’s plant where, up to April, 1937, there was no labor organization of any kind. The efficiency of the men became lower and production fell off. Instead of working steadily, employees gathered from time to time into small groups to discuss labor conditions generally and the local labor situation in particular. In April, discussion ran to Amalgamated. Organizers of SWOC contacted some of the employees and a substantial percentage joined. Travis, the respondent’s superintendent, made inquiries of the employees and their activities and expressed opposition to the CIO. At least some witnesses so testified. He denied it. The unrest resulted in a further reduction in production and Wacker, respondent’s president, called on Travis to “get production back to its normal efficiency.” In an attempt to do so, Travis named an employee, Maguire, a member of the CIO to pass a ballot box around and let the men vote on whether they" }, { "docid": "23367954", "title": "", "text": "defiant and insulting employee merely because it has done what any other employer would reasonably have done under the circumstances. We must not forget that the National Labor Relations Act “does not interfere with the normal exercise of the right of the employer to select its employees or to discharge them”; that the employer “may not, under cover of that right, intimidate or coerce its employees with respect to their self-organization and representation, and, on the other hand, the Board is, not entitled to make its authority a pretext for interference with the right of, discharge when that' right is exercised for other reasons than such intimidation , and coercion.” N. L. R. B. v. Jones & Laughlin Steel Corp. 301 U.S. 1, 45, 46, 57 S.Ct. 615, 628, 81 L.Ed. 893, 108 A.L.R. 1352; N. L. R. B. v. Fansteel Corp., 306 U.S. 240, 254, 59 S.Ct. 490, 83 L.Ed. 627, 123 A.L.R. 599. We do not think that, when the whole record is considered, Blakely can reasonably be held to have been discharged for the purpose of intimidating or coercing employees with relation to rights guaranteed them under the act. The Trial Examiner attributed great weight to what he thought was the attitude of the company towards petitions from its employees, as manifested by the letter to,which we have referred; but we must deal with that attitude as manifested in the case before us. The company’s position would probably have been very different if a petition having a proper purpose had been presented to it. When the one presented had no such purpose, but was the mere carrying forward of the defiant attitude of a recalcitrant employee whose manifest object was to defy proper discipline, it was properly dealt with by the company in accordance with its true nature. The conduct of Blakely in getting up and circulating such a petition was q very different sort of thing from the action of employees in going out on strike because of the grievance of a fellow workman, the case supposed by Judge Learned Hand in N. L. R. B." }, { "docid": "3075545", "title": "", "text": "the state penitentiary, we cannot concur in the respondent’s contention that these individuals have disqualified themselves from reemployment. The Board’s power to order the reinstate^ ment of employees is equitable in nature, to be exercised in the light of all of the circumstances of the case. Here the respondent itself has violated the law of the land. Under all the circumstances and without condoning the illegal acts of the strikers, we feel that such acts should not be a bar to the reinstatement of any except the 8 mentioned above.” We find nothing in the Act to support this assertion of power on the part of the Board, and we perceive no equitable circumstance to justify its exercise in this case. The Supreme Court in National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U.S. 1, 45, 57 S.Ct. 615, 628, 81 L.Ed. 893, 108 A.L.R. 1352, said: “The act does not interfere with the normal exercise of the right of the employer to select its employees or to discharge them. The employer may not, under cover of that right, intimidate or coerce its employees with respect to their self-organization and representation, and, on the other hand, the Board is not entitled to make its authority a pretext for interference with the right of discharge when that right is exercised for other reasons than such intimidation and coercion.” In Associated Press v. National Labor Relations Board, 301 U.S. 103, 132, 57 S.Ct. 650, 655, 81 L.Ed. 953, the court said: “The act does not compel the petitioner to employ any one; it does not require that the petitioner retain in its employ an incompetent editor or one who fails faithfully to edit the news to reflect the facts without bias or prejudice. The act permits a discharge for any reason other than union activity Or agitation for collective bargaining with employees. The restoration of Watson to his former position in no sense guarantees his continuance in petitioner’s employ. The petitioner is at liberty, whenever occasion may arise, to exercise its undoubted right to sever his relationship for any" }, { "docid": "22083497", "title": "", "text": "while safeguarding, in § 7, the right of employees to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection,” did not weaken the underlying contractual bonds and loyalties of employer and employee. The conference report that led to the enactment of the law said: “[T]he courts have firmly established the rule that under the existing provisions of section 7 of the National Labor Relations Act, employees are not given any right to engage in unlawful or other improper conduct. . . . “. . . Furthermore, in section 10 (c) of the amended act, as proposed in the conference agreement, it is specifically provided that no order of the Board shall require the reinstatement of any individual or the payment to him of any back pay if such individual was suspended or discharged for cause, and this, of course, applies with equal force whether or not the acts constituting the cause for discharge were committed in connection with a concerted activity.” H. R. Rep. No. 510, 80th Cong., 1st Sess. 38-39. This has been clear since the early days of the Wagner Act. In 1937, Chief Justice Hughes, writing for the Court, said: “The Act does not interfere with the normal exercise of the right of the employer to select its employees or to discharge them. The employer may not, under cover of that right, intimidate or coerce its employees with respect to their self-organization and representation, and, on the other hand, the Board is not entitled to make its authority a pretext for interference with the right of discharge when that right is exercised for other reasons than such intimidation and coercion.” Labor Board v. Jones & Laughlin, 301 U. S. 1, 45-46. See also, Labor Board v. Fansteel Corp., 306 U. S. 240, 252-258; Auto. Workers v. Wisconsin Board, 336 U. S. 245, 260-263. Many cases reaching their final disposition in the Courts of Appeals furnish examples emphasizing the importance of enforcing industrial plant discipline and of maintaining loyalty as well as the rights of concerted activities. The courts have refused" }, { "docid": "8999854", "title": "", "text": "if an employer influences his employees by unfair labor practices to withdraw support from their chosen representative, he must continue to bargain with them through their representative until, in the determination of the Board, the effect of his illegal acts has been dissipated. Obviously these cases have no relevance when the employer is exonerated from all fault. Even in cases in which the union’s loss of a majority is traceable to wrongful conduct on the part of the employer or the employees, it has been decided that the Board’s order to recognize the union cannot be enforced when it fails to face the realities of the situation. Such an order was reversed in National Labor Relations Board v. Fansteel Corp., 306 U.S. 240, 59 S.Ct. 490, 83 L.Ed. 627, 123 A.L.R. 599, where the employer indulged in certain anti-union statements and actions and subsequently the union lost its majority through the justifiable discharge of employees who had participated in a sit-down strike; and such an order failed of enforcement in National Labor Relations Board v. Hollywood-Maxwell Co., 9 Cir., 126 F.2d 815, where the men revoked their choice of the union when it was discovered that the union leader had been bribed by the president of the company. If in such cases the Board’s certificate may be set aside by the courts, on what ground can we refuse to uphold the employees’ right to choose their bargaining agent when no fault can be attributed either to them or to their employer? Only one answer to this question has been or can be made; and that upon reflection is seen to be totally inadequate in the present situation. It is said that the Board’s certificate must be given vitality for at least a reasonable time and may not be set aside at every transient whim or change of mind on the part of the employees, for otherwise orderly administration of the statute would be impossible. This is of course true; but it is still necessary in every set of circumstances to decide what is a reasonable time. The Board reached its" }, { "docid": "8999853", "title": "", "text": "40 for the union. The identity of interests of the employees at the two plants was complete, and the mistake in separating them became apparent as soon as wages at Roanoke were raised and the Lynchburg employees promptly repudiated the union, whose status, as their representative, impeded a simultaneous raise at Lynchburg. This history of the Board’s action may properly be considered in determining the propriety of the order of the Board now under review. The second mistake of the Board was in deciding that the action of the Lynch-burg employees in withdrawing support from the union was due to the interference and coercion of the company. The court has found that there was no substantial evidence to support this finding and that the company was entirely blameless. Nevertheless, the court concludes that in future bargaining the employees must submit to representation by an agent that they desire to repudiate. No precedent in support of this conclusion can be found amongst the numerous cases considered by the courts. There are many decisions which hold that if an employer influences his employees by unfair labor practices to withdraw support from their chosen representative, he must continue to bargain with them through their representative until, in the determination of the Board, the effect of his illegal acts has been dissipated. Obviously these cases have no relevance when the employer is exonerated from all fault. Even in cases in which the union’s loss of a majority is traceable to wrongful conduct on the part of the employer or the employees, it has been decided that the Board’s order to recognize the union cannot be enforced when it fails to face the realities of the situation. Such an order was reversed in National Labor Relations Board v. Fansteel Corp., 306 U.S. 240, 59 S.Ct. 490, 83 L.Ed. 627, 123 A.L.R. 599, where the employer indulged in certain anti-union statements and actions and subsequently the union lost its majority through the justifiable discharge of employees who had participated in a sit-down strike; and such an order failed of enforcement in National Labor Relations Board v." }, { "docid": "12768388", "title": "", "text": "at all. In National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U.S. 1, 45, 46, 57 S.Ct. 615, 628, 81 L.Ed. 893, 108 A.L.R. 1352, the court said that it (the Act) “does not interfere with the normal exercise of the right of the employer to select its employees or to discharge them”; that the employer “may not, under cover of that right, intimidate or coerce its employees with respect to their self-organization and representation, and, on the other hand, the Board is not entitled to make its authority a pretext for interference with the right of discharge when that right is exercised for other reasons than such intimidation and coercion.” It would serve no useful purpose to lengthen this opinion by narrating all of the testimony bearing on this issue. We are satisfied, especially when considering the record in light of petitioner’s course of conduct in respect to union activities and its dealings with its employees, that there is no evidence here that these men were discharged because of union activities. The order is set aside, and the petition to enforce is dismissed. The Board’s Order follows verbatim: “Upon the basis of the above findings of fact and conclusions of law and pursuant to Section 10(c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respondent, Jefferson Electric Company and its officers, agents, successors and assigns shall: “1. Cease and desist from: “(a) Discouraging membership in United Electrical and Radio Workers of America or any other labor organization of its employees by discriminating in regard to hire or tenure of employment or any term or condition of employment; “(b) Encouraging membership in International Brotherhood of Electrical Workers or any other labor organization of its employees by discriminating in regard to hire or tenure of employment or any term or condition of employment; “(c) Recognizing International Brotherhood of Electrical Workers as the exclusive 'bargaining representative of its employees unless and until International Brotherhood of Electrical Workers is certified as such by the Board; “(d) Giving effect to its contracts of May" }, { "docid": "18937513", "title": "", "text": "of the employer's directions, in breach of his contract. N. L. R. B. v. Sands Mfg. Co., 306 U.S. 332, 59 S.Ct. 508, 83 L.Ed. 682; N. L. R. B. v. Columbia Products Corp., 2 Cir., 141 F.2d 687. While these employees had the undoubted right to go on a strike and quit their employment, they could not continue to work and remain at their positions, accept the wages paid to them, and at the same time select what part of their allotted tasks they cared to perform of their own volition, or refuse openly or secretly, to the employer’s damage, to do other work. C. G. Conn, Ltd. v. N. L. R. B., 7 Cir., 108 F.2d 390; N. L. R. B. v. Condenser Corp., 3 Cir., 128 F.2d 67; N. L. R. B. v. Mt. Clemens Pottery Co., 6 Cir., 147 F.2d 262. Since these employees were lawfully discharged, they did not remain employees. Sec. 2(3), National Labor Relations Act, 29 U.S.C.A. § 152(3). They were therefore not entitled to reinstatement to their former positions. N. L. R. B. v. Fansteel Metallurgical Corp., 306 U.S. 240, 59 S.Ct. 490, 83 L.Ed. 627, 123 A.L.R. 599; Loveman, Joseph & Loeb v. N. L. R. B., 5 Cir., 146 F.2d 769; C. G. Conn, Ltd. v. N. L. R. B., supra; N. L. R. B. v. Mt. Clemens Pottery Co., supra. The Board was in error in holding that by refusing to process the Chicago orders these employees engaged in lawful assistance of their union, protected by Section 7 of the Act. They were not on a strike; they did not leave the premises nor the employment. There being an implied obligation on the part of the employees to obey the reasonable instructions of the employer while the employment continued, their refusal to do so was proper ground for their discharge, and having been properly discharged there was no duty on the part of respondent to reinstate them. N. L. R. B. v. Fansteel Metallurgical Corp., supra; Loveman, Joseph & Loeb v. N. L. R. B., supra. On January 4" }, { "docid": "21494606", "title": "", "text": "striking employees. The sole duty resting upon petitioner at that time was to refrain from discriminating against them because of their Union activities or their participation in the strike, and this duty was upon the assumption that the strike was conducted in a lawful manner. Unfortunately, however, this was not the case. The decision of this reinstatement issue must turn largely upon petitioner’s position in insisting that it be permitted to decide which of those engaged in unlawful, violent and criminal conduct would make desirable employees, in the event of reinstatement. Petitioner did not seek to hide behind its undoubted right to refuse to replace striking employees because their places had been taken by others, or upon the 1 enable ground that those engaged in violent and unlawful conduct had severed their relations as employees and were no longer entitled to consideration. We think it is plain that in this respect petitioner’s position was more favorable to the striking employees than the law required. As was said in National Labor Relations Board v. Fansteel Corp., 306 U.S. 240, 257, 59 S.Ct. 490, 497, 83 L.Ed. 627, 123 A.L.R. 599: “ * * * There is not a line in the statute to warrant the conclusion that it is any part of the policies of the Act to encourage employees to resort to force and violence in defiance of the law of the land. * * * ” True, as pointed out, the court there was dealing with a different sort of violence, to-wit, the sit-down strike, but the language employed leaves no doubt but that it applies to the character of violence and unlawful conduct found in the instant case. The court, 306 U.S. page 253, 59 S.Ct. page 495, 83 L.Ed. 627, 123 A.L.R. 599, said: “ * * * But in its legal aspect the ousting of the owner from lawful possession is not essentially different from an assault upon the officers of an employing company, * * *.” Not only did the court hold that those who actually participated in the violence were not entitled to reinstatement," }, { "docid": "12979161", "title": "", "text": "do not believe, however, that this case supports the contention. On page 252 of 306 U.S., on page 494 of 59 S.Ct., 83 L.Ed. 627, 123 A.L.R. 599, the court said: “ * * * The discharge was clearly proved. * * * * * * “This conduct on the part of the employees manifestly gave good cause for their discharge unless the National Labor Relations Act [29 U.S.C.A. § 151 et seq.] abrogates the right of the employer to refuse to retain in his employ those who illegally take and hold possession of his property.” Again on page 256 of 306 U.S., on page 496 of 59 S.Ct., 83 L.Ed. 627, 123 A.L.R. 599; “ * * * When the employees re sorted to that sort of compulsion they took a position outside the protection of the statute and accepted,the risk of the termination of their employment * * The quoted language indicates that the court recognized the unlawful conduct merely as grounds for -a discharge. Again it might have afforded justification for a refusal of reinstatement,, but again petitioner did not exercise .any right it had in this respect. Sit-down strikers we're reinstated on the same conditions as those who had not thus participated. Petitioner having raised no question concerning the status of such employees either prior to, or at the time of the strike settlement, we conclude it could not do so aft-erwards. In this connection, it is also pertinent to observe that the record, with the exception of twelve or fourteen Board witnesses who admitted they participated in the sit-down strike, is silent as to who were the participants. In fact, it is shown with no certainty as to the number who participated. Petitioner’s president estimated the number at 75, the Board found “about 100” and some of the witnesses placed the number as high as 150. It would seem that petitioner’s rights in this respect, if any, would constitute matters of defense to the Board’s charge, and that the burden was upon petitioner to offer proof in support thereof. Certainly all the employees should not" }, { "docid": "12979160", "title": "", "text": "for a period of some twenty-four hours, took possession of petitioner’s property for the purpose, evidently, of discontinuing operations. That such an act upon the part of a group of employees is unlawful is now recognized generally. We have no doubt but that petitioner would have been justified in discharging such employees and thereby severing such relation, but petitioner did not do so — in fact, in dealing with those who were on a strike it made no distinction between those who had participated in the sit-down strike and those who had not. It offered — in fact, urged and solicited — all former employees, without discrimination, to return to their jobs. Many of them did, and included in such number were some of those who participated in the sit-down strike. It is argued that the relation terminates automatically where the latter participate in a sit-down strike. National Labor Relations Board v. Fansteel Corp., 306 U.S. 240, 59 S.Ct. 490, 83 L.Ed. 627, 123 A.L.R. 599, is relied upon as authority for such position. We do not believe, however, that this case supports the contention. On page 252 of 306 U.S., on page 494 of 59 S.Ct., 83 L.Ed. 627, 123 A.L.R. 599, the court said: “ * * * The discharge was clearly proved. * * * * * * “This conduct on the part of the employees manifestly gave good cause for their discharge unless the National Labor Relations Act [29 U.S.C.A. § 151 et seq.] abrogates the right of the employer to refuse to retain in his employ those who illegally take and hold possession of his property.” Again on page 256 of 306 U.S., on page 496 of 59 S.Ct., 83 L.Ed. 627, 123 A.L.R. 599; “ * * * When the employees re sorted to that sort of compulsion they took a position outside the protection of the statute and accepted,the risk of the termination of their employment * * The quoted language indicates that the court recognized the unlawful conduct merely as grounds for -a discharge. Again it might have afforded justification for a" }, { "docid": "23394904", "title": "", "text": "Labor Relations Board v. Fansteel Metallurgical Corp., 306 U.S. 240, 257, 59 S.Ct. 490, 497, 83 L.Ed. 627, 123 A.L.R. 599. “ * * * the fundamental policy of the Act is to safeguard the rights of self-organization and collective bargaining, and thus by the promotion of industrial peace to remove obstructions to the free flow of commerce as defined in the Act.” It is our function to see that these rights guaranteed by the Act are amply secured to the employee. But in our effort to prevent the proscribed unfair labor practices, we must be mindful of the welfare of the honest employer. “The National Labor Relations Act was not intended to empower the Board to substitute its judgment for that of the employer in the conduct of his business. It did not deprive the employer of the right to select or dismiss his employees for any cause except where the employee was actually discriminated against because of his union activities or affiliation. * * * The Act does not vest in the Board managerial authority.” (Italics supplied.) Garrecht, C. J., in National Labor Relations Board v. Union Pacific Stages, 9 Cir., 99 F.2d 153, 177. Under a system of free enterprise, amended by a statute which seeks to attain an equality of contract and of justice through the protection of the employees’ right to bargain collectively, we must not destroy those liberties which are distinctive to our type of economy. The employer must be permitted to discharge the inefficient, the irresponsible, the disobedient, the immoral. “The petitioner is at liberty, whenever occasion may arise, to exercise its undoubted right to sever his relationship for any cause that seems to it proper save only as a punishment for, or discouragement of, such activities as the act declares permissible.” Associated Press v. National Labor Relations Board, supra, 301 U.S. at page 132, 57 S.Ct. at page 655, 81 L.Ed. 953. The mere existence of union affiliations, though these affiliations be material in nature, does not leave the employee free from the consequences of his indiscretions and failings. Where economic considerations" }, { "docid": "15568749", "title": "", "text": "does not compel the petitioner to employ any one.” Associated Press v. National Labor Relations Board, supra, 57 S.Ct. 650, 655, 81 L.Ed. —. “The act does not compel agreements between employers and employees. It does not compel any agreement whatever.” Jones & Laughlin Steel Corporation, supra, 57 S.Ct. 615, 628, 81 L.Ed.-, 108 A.L.R. 1352. “The act does not interfere with the normal exercise of the right of the employer to select its employees or to discharge them. The employer may not, under cover of that right, intimidate or coerce its employees with respect to their self-organization and representation, and, on the other hand, the Board is not entitled to make its authority a pretext for interference with the right of discharge when that right is exercised for other reasons than such intimidation and coercion.” Id., 57 S.Ct. 615, 628, 81 L.Ed. —, 108 A.L.R. 1352. To which may be added that the act does not authorize the imposition of penalties, or the making of unreasonable requirements by the Board. Agwilines v. National Labor Relations Board (C.C.A.) 87 F.(2d) 146. “The act establishes standards to which the Board must conform. There must be complaint, notice and hearing. The Board must receive evidence and make findings. The findings as to the facts are to be conclusive, but only if supported by evidence. The order of the Board is subject to review by the designated court, and only when sustained by the court may the order be enforced. Upon that review all questions of the jurisdiction of the Board and the regularity of its proceedings, all questions of constitutional right or statutory authority are open to examination by the court.” National Labor Relations Board v. Jones & Laughlin Steel Corp., 57 S.Ct. 615, 629, 81 L.Ed.-, 108 A.L.R. 1352. If the facts found by the Board support its order, and the evidence supports the findings, and if the order is within the scope of the regulatory provisions of the act, the court will enforce it. If otherwise, it will not do so. It is thus seen that the function of the" }, { "docid": "23576235", "title": "", "text": "the Union. The Union membership never included a majority of the employees in the unit. There was no legal obligation to bargain with this representative of a minority. Even if the position of respondent, at the time of the refusal to bargain .with a minority .representative, was that it would not bargain, with a union, ye,t such minority is in no position to-strike because of -failure to bargain with it and then receive compulsory reinstatement. Just as the employer, if he refused to bargain with'the representative of a majority of a proper unit, acts at his peril; so a minority of the employes, who strike because the employer refuses to bargain with their representative, do so at their peril in so far as.compulsory reinstatement is concerned. Under the finding of the Board that the representative was of a minority only of the proper unit and under'the undisputed evidence that the sole reason for the strike was the failure to bargain with such representative, there was no substantial evidence to sustain that portion of the order requiring reinstatement or preferential 'listing of these striking employees.” There is stronger reason in the case at bar than in the Brashear Freight Lines cáse for holding that the striking minority are not, protected from discharge by the provisions pf the act. The particular grievance which led to the strike by the minority here was the failure of the employer to go forward with the bargaining which 'hafl been arranged by the representative, of all- the employees. The effort of the, minority was thus to take the bargaining out of the hands of the legally chosen .representatives,and proceed.with it themselves; and if a discharge, as in the Brashear case, is justified, where a minority of employees, in the absence of a bargaining agent, go on strike because of the refusal'‘of the employer to deal with them, certainly the discharge is justified where the'-only reason for the strike is the refusal to deal with a minority which is seeking to usurp the functions of the agent chosen by the majority. Support for this conclusion is found" }, { "docid": "12768387", "title": "", "text": "record does not bear out the Board’s conclusion that the Brotherhood did not have a majority on May 11 and that it did not have a free and uncoerced majority on May 17 at the time of the closed shop agreement. The Board also found that three employees were discharged because of their activities in behalf of the United. Jefferson Electric contends that the discharges were non-discriminatory, temporary and simply due to lack of work. At the common law, the right of the employer to discharge was unconditional and absolute. Adair v. U. S., 208 U.S. 161, 28 S.Ct. 277, 52 L.Ed. 436, 13 Ann.Cas. 764; Coppage v. Kansas, 236 U.S. 1, 35 S.Ct. 240, 59 L.Ed. 441, L.R.A.1915C, 960; Cf. Texas & New Orleans Railroad Co. v. Brotherhood of Railway & S. S. Clerks, 281 U.S. 548, 50 S.Ct. 427, 74 L.Ed. 1034. Under the National Labor Relations Act the right to hire and to discharge remains inviolate, when exercised for ordinary ends. The employer may still discharge for good cause or no cause at all. In National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U.S. 1, 45, 46, 57 S.Ct. 615, 628, 81 L.Ed. 893, 108 A.L.R. 1352, the court said that it (the Act) “does not interfere with the normal exercise of the right of the employer to select its employees or to discharge them”; that the employer “may not, under cover of that right, intimidate or coerce its employees with respect to their self-organization and representation, and, on the other hand, the Board is not entitled to make its authority a pretext for interference with the right of discharge when that right is exercised for other reasons than such intimidation and coercion.” It would serve no useful purpose to lengthen this opinion by narrating all of the testimony bearing on this issue. We are satisfied, especially when considering the record in light of petitioner’s course of conduct in respect to union activities and its dealings with its employees, that there is no evidence here that these men were discharged because of union activities." }, { "docid": "23576237", "title": "", "text": "in our decision in the Hazel-Atlas Glass Co. v. N. L. R. B., 4 Cir., 127 F.2d 109, and the decisions of the Supreme Court in N. L. R. B. v. Sands Mfg. Co., 306 U.S. 332, 344, 59 S.Ct. 508, 83 L.Ed. 682, and N. L. R. B. v. Fansteel Corp., 306 U.S. 240, 59 S. Ct. 490, 83 L.Ed. 627, 123 A.L.R. 599, which,, while not precisely in point, lay down the propositions as stated in the Fansteel Corp. case, 306 U. S. at page 254, 59 S.Ct. at page 495, 83 L.Ed. 627, 123 A.L.R. 599, that the act “‘does not interfere yiith the normal exercise of the right of the employer to select its employees or to discharge them’; that the employer ‘may not, under cover of that right, intimidate or coerce its employees with respect to their self-organization and representation; and, on the other hand, the Board is not entitled to make its authority a pretext for interference with the right of discharge when that right is exercised for other reasons than such intimidation and coercion.’ ” In the Sands Mfg. Co. case, supra, the Supreme Court said [306 U.S. 332, 59 S.Ct. 514, 83 L.Ed. 682]: “The Act does not prohibit an effective discharge for repudiation by the employe of his agreement, any more than it prohibits such discharge for a tort committed against the employer.” While the striking employees here were not guilty of a breach of agreement not to strike, as in the Sands Mfg. Co. and Hazel-Atlas Glass Co., cases, supra, they were guilty of interfering with the collective bargaining, which was being carried on by their duly authorized agent, in violation of the collective bargaining agreement entered into with the company. When the union was selected by the. employees and recognized by the company as bargaining agent, it was understood 'and ágreed on all sides that bargaining with respect to wages, hours and conditions of work would be carried on between the union and the company in accordance with the above quoted statutory provision, that the employees would acquiesce in" }, { "docid": "22083498", "title": "", "text": "1st Sess. 38-39. This has been clear since the early days of the Wagner Act. In 1937, Chief Justice Hughes, writing for the Court, said: “The Act does not interfere with the normal exercise of the right of the employer to select its employees or to discharge them. The employer may not, under cover of that right, intimidate or coerce its employees with respect to their self-organization and representation, and, on the other hand, the Board is not entitled to make its authority a pretext for interference with the right of discharge when that right is exercised for other reasons than such intimidation and coercion.” Labor Board v. Jones & Laughlin, 301 U. S. 1, 45-46. See also, Labor Board v. Fansteel Corp., 306 U. S. 240, 252-258; Auto. Workers v. Wisconsin Board, 336 U. S. 245, 260-263. Many cases reaching their final disposition in the Courts of Appeals furnish examples emphasizing the importance of enforcing industrial plant discipline and of maintaining loyalty as well as the rights of concerted activities. The courts have refused to reinstate employees discharged for “cause” consisting of insubordination, disobedience or disloyalty. In such cases, it often has been necessary to identify individual employees, somewhat comparable to the nine discharged in this case, and to recognize that their discharges were for causes which were separable from the concerted activities of others whose acts might come within the protection of § 7. It has been equally important to identify employees, comparable to the tenth man in the instant case, who participated in simultaneous concerted activities for the purpose of collective bargaining or other mutual aid or protection but who refrained from joining the others in separable acts of insubordination, disobedience or disloyalty. In the latter instances, this sometimes led to a further inquiry to determine whether their concerted activities were carried on in such a manner as to come within the protection of § 7. See, e. g., Hoover Co. v. Labor Board, 191 F. 2d 380; Maryland Drydock Co. v. Labor Board, 183 F. 2d 538; Albrecht v. Labor Board, 181 F. 2d 652; Labor" }, { "docid": "23367953", "title": "", "text": "those engaging in the activity; but it is not the motive of the participants that we.are concerned with here but the “purpose” of the activity. It is clear that that purpose had no relation to collective bargaining, hours or conditions of work or any sort of mutual aid or protection of employees, but was simply and solely an effort on the part of Blakely to get rid of qr humiliate the supervisory employee with whom he was angry. The petition cannot be viewed apart from the circumstances which give rise to it; and, when so viewed, it is clearly not the sort of concerted activity which the statute protects. The conduct of Blakely in adopting a defiant and insulting attitude towards Lewis and then circulating a petition for his discharge because Lewis had rebuked him was conduct calling for discharge if any order or discipline in the plant was to be maintained; and the employer should not be branded with the guilt of an unfair labor practice and required to reemploy, with back pay, this defiant and insulting employee merely because it has done what any other employer would reasonably have done under the circumstances. We must not forget that the National Labor Relations Act “does not interfere with the normal exercise of the right of the employer to select its employees or to discharge them”; that the employer “may not, under cover of that right, intimidate or coerce its employees with respect to their self-organization and representation, and, on the other hand, the Board is, not entitled to make its authority a pretext for interference with the right of, discharge when that' right is exercised for other reasons than such intimidation , and coercion.” N. L. R. B. v. Jones & Laughlin Steel Corp. 301 U.S. 1, 45, 46, 57 S.Ct. 615, 628, 81 L.Ed. 893, 108 A.L.R. 1352; N. L. R. B. v. Fansteel Corp., 306 U.S. 240, 254, 59 S.Ct. 490, 83 L.Ed. 627, 123 A.L.R. 599. We do not think that, when the whole record is considered, Blakely can reasonably be held to have been discharged" } ]

[ { "docid": "2879349", "title": "", "text": "chosen because defendant has otherwise been a good husband, father, and hard worker who will benefit from the treatment for this addiction ordered by the court. III. Legal Analysis A sentencing court may downwardly depart if the defendant suffers from diminished capacity. U.S.S.G. § 5K2.13. The provision reads: A sentence below the applicable guideline range may be warranted if the defendant committed the offense while suffering from a significantly reduced mental capacity. However, the court may not depart below the applicable guideline range if (1) the significantly reduced mental capacity was caused by the voluntary use of drugs or other intoxicants; (2) the facts and circumstances of the defendant’s offense indicate a need to protect the public because the offense involved actual violence or a serious threat of violence; (3) the defendant’s criminal history indicates a need to incarcerate the defendant to protect the public; or (4) the defendant has been convicted of an offense [involving obscenity, sex abuse, sexual exploitation of children, or trafficking in children]. If a departure is warranted, the extent of the departure should reflect the extent to which the reduced mental capacity contributed to the commission of the offense. By a preponderance of the evidence defendant proved — and it is not disputed— that exceptions (l)-(4) above do not apply to Liu. See May 15 Tr. at 41-42. Liu was potentially eligible for a downward depar ture under this provision if he committed the offense while suffering from a significantly reduced mental capacity. Curiously, the term “significantly reduced mental capacity” was not originally defined. In 1998 the Sentencing Commission remedied this oversight and added Application Note 1, which defines this term: “Significantly reduced mental capacity” means the defendant, although convicted, has a significantly impaired ability to (A) understand the wrongfulness of the behavior comprising the offense or to exercise the power of reason; or (B) control behavior that the defendant knows is wrongful. Liu does not argue that he did not know that fraud was wrongful. Instead, he has shown that his pathological gambling addiction impaired his ability to control behavior that he knew was" } ]

[ { "docid": "5853501", "title": "", "text": "commerce must be denied. V. MOTION TO DISMISS MAIL FRAUD CHARGES Defendant moves to dismiss 15 of the 16 counts of mail fraud as duplicative. Each represented a separate mailing as part of the arson scheme. No separate fines or other punishments are imposed with respect to the mail fraud charges. Only the special assessment is affected by the separate mail fraud counts. Concurrent sentences are imposed on all counts. The evidence supports each mail fraud count. VI. STATUTORY AND SENTENCING GUIDELINES REQUIREMENTS Section 3553 of Title 18 of the United States Code describes the factors the court must consider at sentencing. The statute directs the court to “impose a sentence sufficient, but not greater than necessary, to comply with purposes set forth in paragraph (2) of this subsection.” 18 U.S.C. § 3553(a). It comprehensively states that the court shall consider— (1) the nature and circumstances of the offense and the history and characteristics of the defendant [and] (2) the need for the sentence imposed— (A) to reflect the seriousness of the offense; (B) to afford adequate deterrence to criminal conduct; (C) to protect the 'public from further crimes of the defendant; and (D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner; Id. See United States v. Guiro, 887 F.Supp. 66 (E.D.N.Y.1995) (sentencing options available for defendants must be compatible with the statutory directives); United States v. Abbadessa, 848 F.Supp. 369, 378-79 (E.D.N.Y.1994) (statute requires that the most appropriate sentence be imposed taking into account a defendant’s special circumstances), vacated, remanded sub nom., United States v. DeRiggi, 45 F.3d 713 (2d Cir. 1995); United States v. Concepcion, 795 F.Supp. 1262, 1271 (E.D.N.Y.1992) (the Sentencing Guidelines do not alleviate the court’s sentencing burden with respect to the statutory directives under 18 U.S.C. § 3553(a)), disapproved on other grounds, United States v. DeRiggi, 45 F.3d 713 (2d Cir.1995). Other factors the court considers in sentencing include the kinds and ranges of sentences found in the applicable Sentencing Guidelines, policy statements of the Sentencing Commission, the need to avoid sentencing" }, { "docid": "23391164", "title": "", "text": "court found that McBroom had a total of two criminal history points based on three separate convictions for driving while intoxicated. U.S.S.G. § 4Al.l(e) (one of the convictions was not counted pursuant to U.S.S.G. § 4A1.2(e)). McBroom’s criminal history category was therefore II. U.S.S.G. Ch. 5, Pt. A. For a total offense level of thirteen and a criminal history category of II, the Sentencing Guidelines provide for a sentence of fifteen to twenty-one months in prison. Id. B. 1. A district court may depart from the sentence established by the applicable guideline if the court finds that there exists “an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described.” 18 U.S.C. § 3553(b); U.S.S.G. § 5K2.0, p.s. In determining whether a circumstance was adequately taken into consideration, the sentencing court shall consider “only the sentencing guidelines, policy statements, and official commentary of the Sentencing Commission.” 18 U.S.C. § 3553(b). In subpart 5K2 of the guidelines, the Commission identifies some of the factors that it did not take into account fully in formulating the guidelines. U.S.S.G. § 5K2.0, p.s. Some of these factors recognize that an upward departure may be warranted in certain circumstances, see, e.g., U.S.S.G. § 5K2.7, p.s. (upward departure may be warranted where the defendant’s conduct resulted in the significant disruption of a governmental function), while other factors recognize that a downward departure may sometimes be justified, see, e.g., U.S.S.G. § 5K2.10, p.s. (downward departure may be warranted where the victim’s wrongful conduct contributed significantly to provoking the offense behavior). The factors contained in subpart 5K2 are the so-called “encouraged factors.” If a potential departure factor is an encouraged factor, the sentencing court is authorized to depart if the applicable guideline does not already take it into account. Koon v. United States, -U.S. ——, —, 116 S.Ct. 2035, 2045,135 L.Ed.2d 392 (1996). In contrast, some characteristics are “not ordinarily relevant to the determination of whether a sentence should be outside the applicable guideline" }, { "docid": "15469298", "title": "", "text": "be deported as a non-citizen immediately following the completion of his imprisonment. He will be separated from his family and friends, probably never to return legally to this country. The applicable offense level in the sentencing guidelines requires imposition of a 41 to 51 month period of incarceration, a 3 to 5 year period of supervised release and a $50 special assessment. As part of the plea agreement, the defendant agreed not to ask for a downward departure from the guideline sentence. A court has an independent power and responsibility to impose the proper sentence in the exercise of its discretion. See United States v. Lara, 905 F.2d 599 (2d Cir.1990) (factors warranting departure within the discretion of sentencing judge). It may depart downward even without a motion from the defendant and over the Government’s objection where the guidelines permit. See 18 U.S.C. § 3553(b); U.S. S.G. § 5K2.0; United States v. Jagmohan, 909 F.2d 61 (2d Cir.1990) (upholding downward departure over objection of government and without motion by defendant); cf. 18 U.S.C. § 3553(e) (requiring motion from Government before court may depart below statutory minimum); U.S.S.G. § 5K1.1 (requiring motion from Government before court may depart downward based upon substantial assistance). An agreement not to request a departure can not inhibit the exercise of the court's proper sentencing authority. Here, neither party objected that there was lack of notice of the court’s intention to depart. See Jagmohan, 909 F.2d at 64. The defendant has already served fifteen months in prison. His valuable service to the country in the armed forces, the unfortunate circumstances under which he failed to obtain his right to citizenship despite this service, and what will probably be the permanent separation from wife and his American born child all present “mitigating circumstances of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described.” 18 U.S.C. § 3553(b); U.S.S.G. § 5K2.0; see also United States v. Perez, 756 F.Supp. 698 (E.D.N.Y.1991). A downward departure is warranted. Defendant is" }, { "docid": "9798026", "title": "", "text": "In United States v. Agu, 763 F.Supp. 703 (E.D.N.Y.1991), Judge Weinstein departed downward under similar circumstances. The defendant there was also a permanent resident alien who had resided in the United States for many years. He was married to a permanent resident and had a one and one-half year old daughter who was a citizen of the United States by virtue of being born here. He could have applied for citizenship but never did so. Nevertheless, following his conviction for importation of heroin, he was subject to deportation, resulting in the “permanent separation from [his] wife and American born child.” Id. at 704. I agree with Judge Weinstein that these are mitigating circumstances of a kind, or to a degree, not adequately taken into consideration by the Commission. Id. (citing 18 U.S.C. 3553(b)). Because defendant has shown that deportation will wreak an extraordinary hardship on him, I will depart downward. Once a court decides to depart the extent of the departure is a matter within the court’s discretion and will be upheld so long as it is reasonable. United States v. Cruz-Guevara, 209 F.3d 644, 647 (7th Cir.2000); see also 18 U.S.C. § 3742(f). There are no “hard and fast rules” governing the extent of a departure, Cruz-Guevara, 209 F.3d at 648; rather, the “law merely requires that district judges link the degree of departure to the structure of the Guidelines and justify the extent of the departure taken.” United States v. Scott, 145 F.3d 878, 886 (7th Cir.1998). The Seventh Circuit has approved a method that involves calculating the defendant’s sentence by analogy to existing guideline provisions. Cruz-Guevara, 209 F.3d at 648. In determining the extent of departure under these circumstances, the closest analogy to an existing guideline is to U.S.S.G. § 2L2.1(b)(l), which provides for a three level reduction in certain immigration offenses if the crime “involved the smuggling, transporting, or harboring only of the defendant’s spouse or child.” Here, defendant’s immigration status will result in his deportation and the separation from his family following completion of his prison sentence. Because the Commission has concluded that the penalty" }, { "docid": "6542308", "title": "", "text": "fine cannot be supported by the record as within defendant’s present or prospective capacity to pay. VI.COST OF IMPRISONMENT Defendant has not been completely forthcoming about his outstanding loans, but the evidence demonstrates that they are not significant. Defendant was a collector, not a principal. Compare United States v. Sasso, 59 F.3d 341, 352 (2d Cir.1995); United States v. Ferranti 928 F.Supp. 206, 220 (E.D.N.Y.1996); United States v. Sessa, 821 F.Supp. 870, 875 (E.D.N.Y.1993), aff'd, 41 F.3d 1501 (2d Cir.1994). In the present case the Fatico hearing, see United States v. Fatico, 458 F.Supp. 388 (E.D.N.Y.1978), aff'd, 603 F.2d 1053 (2d Cir.1979), cert. denied, 444 U.S. 1073, 100 S.Ct. 1018, 62 L.Ed.2d 755 (1980), established that defendant had sufficient assets to pay the restitution and the fine imposed, supra sections IV and V, while leaving modest assets just sufficient to support his wife and children while he is incarcerated. In view of his wife’s illness and the need to support their young children, payment for the cost of imprisonment cannot be supported by any current or prospective assets. See U.S.S.G. § 5E1.2(i); cf. United States v. Ferranti 928 F.Supp. 206, 220. VII. SPECIAL ASSESSMENT A special assessment of $50.00 is imposed. 18 U.S.C. § 3013(a)(2)(A). VIII. SUPERVISED RELEASE Where imprisonment is imposed for an offense under 18 U.S.C. § 894, a term of supervised release of not more than three years may also be imposed. 18 U.S.C. § 3583(b)(2); U.S.S.G. § 5D1.2(a). The court imposes the maximum 3 year term of supervised release in view of defendant’s demonstrated tendency to be violent under the influence of alcohol. He is to receive treatment for alcoholism as directed by Probation. IX. CONCLUSION The special assessment of $50.00 shall have first priority in payment. United States v. Ferranti 928 F.Supp. 206, 225 (E.D.N.Y.1996); Thibodo v. United States, 187 F.2d 249, 257 (9th Cir.1951). Second in priority is restitution, and third is the fine. U.S.S.G. § 5El.l(c); United States v. Ferranti 928 F.Supp. 206, 225 (E.D.N.Y.1996); cf. United States v. Ahmad, 2 F.3d 245 (7th Cir.1993) (priority for victims does not excuse imposition of" }, { "docid": "19851445", "title": "", "text": "level is 26. Defendant is granted a reduction of four levels for his minimal role in the offense. See Guideline § 3B1.2(a). A further two-level reduction for acceptance of responsibility is also warranted since he freely admitted his role in the crime. See Guideline § 3El.l(a). These adjustments lead to a base offense level of 20. In combination with defendant’s criminal history category I (since he has no prior criminal record) a Guideline range of 33 to 41 months results. District courts have discretion to depart from the Guideline range where a factor or combination of factors is present which the Sentencing Commission did not adequately consider in formulating the Guidelines. 18 U.S.C. § 3653(b). See United States v. Gonzalez, 945 F.2d 525, 526 (2d Cir.1991) (downward departure). A court must exercise its “independent power and responsibility” in determining the proper sentence in each case. See United States v. Agu, 763 F.Supp. 703, 704 (E.D.N.Y.1991). The statutory requirement that the court consider rehabilitation, where required, takes precedence over the Guidelines. See 18 U.S.C. §§ 3551(a), 3553(a)(2)(D); United States v. Concepcion et al., 795 F.Supp. 1262 (E.D.N.Y.1992). A downward departure is required in this case since several characteristics, in combination, were not adequately taken into account by the Sentencing Commission. See United States v. Cook, 938 F.2d 149, 153 (9th Cir.1991) (“unique combination of factors” may mitigate); United States v. Rodriguez, 724 F.Supp. 1118 (S.D.N.Y.1989) (personal characteristics of defendant relevant in court’s decision to depart downward). The defendant’s lack of guidance, in combination with other- factors, is a proper basis for a downward departure. See United States v. Floyd, 945 F.2d 1096 (9th Cir.1991), amended, 956 F.2d 203 (2d Cir.1992). The criminal act in this case was an aberrant one for the defendant. The defendant “stumbled into something, awkwardly [and] naively.” United States v. Takai, 941 F.2d 738, 743 (9th Cir.1991); United States v. Peña, 930 F.2d 1486, 1494 (10th Cir.1991) (aberrant act). The defendant has made strong efforts to lead a decent life in a poor environment. His excellent employment history and his devotion to his family are highly unusual" }, { "docid": "6542297", "title": "", "text": "Act of 1982, Pub.L. 97-291, 1982 U.S.Code Cong. & Admin.News 2515 (“the Act”); United States v. Ferranti, 928 F.Supp. 206, 217-219, 220-221 (E.D.N.Y.1996) (discussing in detail the role and value of pecuniary penalties in the French system, the history of restitution, and its increasing acceptance in the United States); see also U.S.S.G. §• 5El.l(a) (“The court shall — (1) enter a restitution order if such an order is authorized under 18 U.S.C. §§ 3663-3664 ... ”) (emphasis added). Section 3663 of the Act gives the court broad discretion in fashioning a restitution order. United States v. Ferranti, 928 F.Supp. 206, 221 (E.D.N.Y.1996); United States v. Grundhoefer, 916 F.2d 788, 793 (2d Cir.1990); United States v. Casamento, 887 F.2d 1141, 1177 (2d Cir.1989), cert. denied, 493 U.S. 1081, 110 S.Ct. 1138, 107 L.Ed.2d 1043 (1990). For example, in the case of an offense involving, bodily injury, a court may order payment for medical expenses, including psychological treatment and other costs related to the healing process, and, where death results, reimbursement for funeral and related services. 18 U.S.C. § 3663(b)(2), (3). The defendant may be required to “reimburse the victim for lost income and necessary child care, transportation, and other expenses related to the participation in the investigation or prosecution of the offense ...” Id. § 3663(b)(4). Restitution to “any” victim is authorized. 18 U.S.C. § 3663(a)(1); United States v. Grundhoefer, 916 F.2d 788, 794 (2d Cir. 1990). The word “victim” is interpreted broadly. See, e.g., United States v. Durham, 755 F.2d 511, 512-13 (6th Cir.1985); United States v. Ferranti, 928 F.Supp. 206, 224 (E.D.N.Y.1996) (restitution- to insurance underwriters). A government entity can be a victim. See e.g., United States v. Ferranti, 928 F.Supp. at 224 (E.D.N.Y.1996) (restitution to New York Fire Department); United States v. Helmsley, 941 F.2d 71, 101 (2d Cir.1991) (restitution to the I.R.S. and the State of New York), cert. denied, 502 U.S. 1091, 112 S.Ct. 1162, 117 L.Ed.2d 409 (1992); United States v. Sunrhodes, 831 F.2d 1537 (10th Cir.1987) (restitution to the Indian Health Service). Where the costs to the victim have been advanced by a third" }, { "docid": "20004745", "title": "", "text": "these guidelines as a practical effort toward the achievement of a more honest, uniform, equitable, and therefore effective, sentencing system. U.S.S.G. § 1A1.1, pt. A(3); see also Marvin E. Frankel, Sentencing Guidelines: A Need for a Creative Collaboration, 101 Yale L.J.2043, 2047 (1992) (“The Commissioners took up the direction to look at prior average sentences ‘as a starting point,’ but not to be bound by them. That meant starting with a tradition of criminal sanctions that ranks next to the American states as the harshest in the Western world. Then, instead of mitigating, as I think a rational and courageous stance should have dictated under the power to formulate guidelines ‘consistent with the purposes of sentencing described in section 3553(a)(2) of title 18,’ the Commission produced guidelines that actually increase the overall severity ... ”) (footnotes omitted). A departure from the Guidelines was permitted only if the sentencing court “finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described.” 18 U.S.C. § 3553(b); Koon v. United States, 518 U.S. 81, 92-96, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996) (recognizing the importance of district court discretion to identify those cases that did not fall within the “heartland” of the Guidelines); United States v. Merritt, 988 F.2d 1298, 1311 (2d Cir.1993) (“consideration of a factor by the Commission does not bar departure”); see also, e.g., United States v. Hawkins, 380 F.Supp.2d 143 (E.D.N.Y. 2005) (granting downward departure on basis of extraordinary rehabilitation); United States v. Patterson, 281 F.Supp.2d 626 (E.D.N.Y.2003) (aberrant behavior); United States v. Liu, 267 F.Supp.2d 371 (E.D.N.Y.2003) (significantly reduced mental capacity); United States v. Blake, 89 F.Supp.2d 328 (E.D.N.Y.2000) (significantly reduced mental capacity, aberrant behavior, anticipated trauma to defendant’s infant child if separated from mother, and rehabilitation); United States v. Blarek, 7 F.Supp.2d 192 (E.D.N.Y.1998) (vulnerability in prison and HTV-positive status); United States v. Malpeso, 943 F.Supp. 254 (E.D.N.Y.1996) (family circumstances); United States v. Ferranti, 928 F.Supp. 206 (E.D.N.Y.1996) (departing" }, { "docid": "20005233", "title": "", "text": "right arm, headaches, blurred vision and hallucinations). • United States v. Blarek, 7 F.Supp.2d 192 (E.D.N.Y.1998) (defendant convicted of conspiracy to commit racketeering and money laundering granted downward departure to three years of supervised release because of HIV-positive status). • United States v. Rioux, 97 F.3d 648 (2d Cir.1996) (upholding downward departure based on physical condition and good works for a defendant convicted of violation of the travel act and scheme to commit extortion; defendant had received a kidney transplant 20 years prior, and the new kidney was diseased requiring regular blood tests and medicines, and the defendant also received a double hip replacement requiring monitoring). • United States v. Long, 977 F.2d 1264 (8th Cir.1992) (upholding probation for defendant convicted of money laundering whose extraordinary physical impairment left him vulnerable to victimization in prison). • United States v. Baron, 914 F.Supp. 660 (D.Mass.1995) (age and physical ailment of 76-year-old defendant, convicted of bank fraud, warranted downward departure to home detention and probation where defendant had cardiac condition and pituitary removed due to cancer, and was suspected of having prostate cancer). Title 18 Section 3553(a) provides evaluative criteria to restore balance between the order of society emphasized by the retributivist approach and the utilitarian view that every human being must be treated with respect for his or her individual circumstances. The stated criteria may clash, and not all apply in each case. The criteria also point to individuated considerations: No one size fits all. The object of this balancing process is to achieve not a perfect or a mechanical sentence, but a condign one — one that is decent, appropriate and deserved under all attendant circumstances. While convenient and time-saving, reducing this task to a mere ministerial one of mechanically applying the advisory sentencing guidelines is antithetical to the adjudicative process. Moreover, this case presents great difficulty in determining Rausch’s culpability when he himself has such cognitive deficits that he cannot appreciate their depravity. While insanity is not an issue in this case, diminished mental capacity is an attendant circumstance requiring consideration. B. To afford adequate deterrence to criminal conduct" }, { "docid": "6542298", "title": "", "text": "U.S.C. § 3663(b)(2), (3). The defendant may be required to “reimburse the victim for lost income and necessary child care, transportation, and other expenses related to the participation in the investigation or prosecution of the offense ...” Id. § 3663(b)(4). Restitution to “any” victim is authorized. 18 U.S.C. § 3663(a)(1); United States v. Grundhoefer, 916 F.2d 788, 794 (2d Cir. 1990). The word “victim” is interpreted broadly. See, e.g., United States v. Durham, 755 F.2d 511, 512-13 (6th Cir.1985); United States v. Ferranti, 928 F.Supp. 206, 224 (E.D.N.Y.1996) (restitution- to insurance underwriters). A government entity can be a victim. See e.g., United States v. Ferranti, 928 F.Supp. at 224 (E.D.N.Y.1996) (restitution to New York Fire Department); United States v. Helmsley, 941 F.2d 71, 101 (2d Cir.1991) (restitution to the I.R.S. and the State of New York), cert. denied, 502 U.S. 1091, 112 S.Ct. 1162, 117 L.Ed.2d 409 (1992); United States v. Sunrhodes, 831 F.2d 1537 (10th Cir.1987) (restitution to the Indian Health Service). Where the costs to the victim have been advanced by a third party, that party can be reimbursed for the advances. See United States v. Ferranti, 928 F.Supp. 206, 224 (E.D.N.Y.1996) (advance of the New York City Fire Department to the widow of a fireman killed in an arson case and insurance payments to the owner of a building damaged by the arson were reimbursed pursuant to 18 U.S.C. § 3664(e)(1)). Before ordering restitution, the court must take into account (1) the amount of loss sustained by the victim as a result of the offense, (2) the financial resources available to the defendant, (3) the financial needs and earning ability of the defendant and his or her dependents, and (4) any other factors the court deems appropriate. 18 U.S.C. § 3664(a). It need not set forth its findings in detail, but the record must reflect its consideration of these statutorily mandated factors. United States v. Tortora, 994 F.2d 79, 81 (2d Cir.1993); see also United States v. Roy William Harris, 79 F.3d 223 (2d Cir.1996) (court must consider the financial needs of defendant and his dependents before" }, { "docid": "5853502", "title": "", "text": "afford adequate deterrence to criminal conduct; (C) to protect the 'public from further crimes of the defendant; and (D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner; Id. See United States v. Guiro, 887 F.Supp. 66 (E.D.N.Y.1995) (sentencing options available for defendants must be compatible with the statutory directives); United States v. Abbadessa, 848 F.Supp. 369, 378-79 (E.D.N.Y.1994) (statute requires that the most appropriate sentence be imposed taking into account a defendant’s special circumstances), vacated, remanded sub nom., United States v. DeRiggi, 45 F.3d 713 (2d Cir. 1995); United States v. Concepcion, 795 F.Supp. 1262, 1271 (E.D.N.Y.1992) (the Sentencing Guidelines do not alleviate the court’s sentencing burden with respect to the statutory directives under 18 U.S.C. § 3553(a)), disapproved on other grounds, United States v. DeRiggi, 45 F.3d 713 (2d Cir.1995). Other factors the court considers in sentencing include the kinds and ranges of sentences found in the applicable Sentencing Guidelines, policy statements of the Sentencing Commission, the need to avoid sentencing disparity and the need to provide restitution to victims. 28 U.S.C. § 3553(a)(2), (4)-(7). VII. PRISON A. Arson Resulting in Death Sentencing for arson is controlled by Sentencing Guidelines § 2K1.4. Because death resulted, § 2K1.4(c)(l) directs utilization of the “most analogous guideline” from the homicide section of part A relating to chapter two — offenses against the person. Guidelines § 2A1.1 provides for life imprisonment for murder in the first degree. Per 18 U.S.C. § 1111(a), murder in the first degree includes death caused by arson. First degree murder under Guidelines § 2A1.1 with a base offense level of 43 is the crime most analogous to the charged offense, arson causing death. United States v. Prevatte, 66 F.3d 840, 842-844 (7th Cir. 1995); United States v. Martin, 63 F.3d 1422,1433 (7th Cir.1995) (death of a firefighter requires application of Guidelines § 2A1.1); United States v. Ryan, 9 F.3d 660, 672 (8th Cir.1993), cert. denied, — U.S. -, 115 S.Ct. 1793, 131 L.Ed.2d 721 (1995); United States v. El-Zoubi, 993 F.2d 442, 450-51 (5th Cir.1993)." }, { "docid": "20004743", "title": "", "text": "sentence, a sentencing judge would find it difficult to take account of all the section 3553(a)(2) factors. See generally Kevin Cole, The Em/pty Idea of Sentencing Disparity, 91 Nw. U.L.Rev. 1336, 1336-37 (1997). The Sentencing Commission failed to develop a method by which all section 3553(a)(2) factors should be combined in application. A philosophical problem arose when the Commission attempted to reconcile the differing perceptions of the purposes of criminal punishment. Most observers of the criminal law agree that the ultimate aim of the law itself, and of punishment in particular, is the control of crime. Beyond this point, however, the consensus seems to break down. Some argue that appropriate punishment should be defined primarily on the basis of the moral principle of ‘just deserts.’ ... Others argue that punishment should be imposed primarily on the basis of practical ‘crime control’ considerations .... Adherents of these points of view have urged the Commission to choose between them, to accord one primacy over the other. Such a choice would be profoundly difficult. The relevant literature is vast, the arguments deep, and each point of view has much to be said in its favor. A clear-cut Commission decision in favor of one of these approaches would diminish the chance that the guidelines would find the widespread acceptance they need for effective implementation. U.S.S.G. § 1A1.1, pt. A(3) (“The Basic Approach”); see also United States v. Blake, 89 F.Supp.2d 328, 340-46 (E.D.N.Y. 2000) (discussing the rehabilitative model); United States v. Blarek, 7 F.Supp.2d 192, 198-204 (E.D.N.Y.1998) (discussing section 3553(a) and traditional sentencing rationales). The Commission avoided the “philosophical problem” by “taking an empirical approach” and using averages of prior sentencing decisions to derive Guideline ranges for most offenses: Despite these policy-oriented departures from present practice, the guidelines represent an approach that begins with, and builds upon, empirical data. The guidelines will not please those who wish the Commission to adopt a single philosophical theory and then work deductively to establish a simple and perfect set of categorizations and distinctions .... After spending considerable time and resources exploring alternative approaches, the Commission has developed" }, { "docid": "6542295", "title": "", "text": "206, 213 (E.D.N.Y.1996); United States v. Concepcion, 795 F.Supp. 1262, 1271 (E.D.N.Y.1992) (the Sentencing Guidelines do not obviate the court’s sentencing burden with respect to the statutory directives under 18 U.S.C. § 3553(a)), disapproved on other grounds, United States v. DeRiggi, 45 F.3d 713 (2d Cir.1995). III. PRISON Sentencing for extortion is controlled by Sentencing Guideline section 2E2.1, providing a base offense level of 20. ' Adjusting for acceptance of responsibility, three levels are subtracted, leaving a total offense level of 17. The defendant’s criminal history places him in criminal history category II, resulting in a range for imprisonment of 27 to 33 months. Defendant seeks a downward departure pursuant to Guideline section 5K2.0 on account of the extreme family hardship which would be occasioned by his absence from the home. See U.S.S.G. § 5H1.6. Incarceration has had, and will continue to have, a particularly deleterious effect upon his wife and young children. The three year old shows signs of emotional distress. Unable to find competent, affordable full-time day care for the children, defendant’s wife has not been able to obtain employment. The family is already encountering financial difficulties. Family hardship imposed by defendant’s absence can be considered by the sentencing court which is “reluctant to wreak extraordinary destruction on dependents....” United, States v. Londono, 76 F.3d 33, 36 (2d Cir.1996); see also, United States v. Johnson, 964 F.2d 124, 128-129 (2d Cir.1992) (extraordinary family circumstances are a valid reason for a downward departure). The seriousness of the offense and the need for general and specific deterrence and for incapacitation here overrides the compassionate factors. Defendant’s conduct related to his offense involved violence. He liberally resorted to extravagant and graphic threats to extract payments from the victim. Defendant is sentenced to 27 months, which is within the Guidelines range. IV. RESTITUTION One of the purposes of sentencing is to provide restitution to victims of the offense. 18 U.S.C. § 3553(a)(7). Restitution has gained wide approval in recent years. The obligation to consider restitutory needs within the context of the criminal sentencing process has increased. See e.g., Victim and Witness Protection" }, { "docid": "16004097", "title": "", "text": "participation. Her powerful initial letter describing the agony she has gone through for the past year brought to light the full extent of the victim’s actions. Her second letter shows the benefits of the process in reducing bitterness. Her sentiments have weighed heavily on the court in attempting to reach a decision. 3. Restitution Modern federal law also requires consideration of the victim through the availability of restitution. Restitution not only requires the court to directly examine the harm that a victim has suffered, but it also attempts to make the victim whole. While in many cases — and this is one — money could never fully restore a victim to the status quo ante, restitution at least seeks to repair some of the damage suffered. Section 3663(a)(1) of the United States Code provides that “[t]he court, when sentencing a defendant convicted of an offense under this title ... may order, in addition to or ... in lieu of ány other penalty authorized by law, that the defendant make restitution to any victim of such offense.” See, e.g., U.S.S.G. § 5E1.1; United States v. Cheung, 952 F.Supp. 148 (E.D.N.Y.1997); United States v. Ferranti, 928 F.Supp. 206, 220-23 (E.D.N.Y.1996), aff'd, 135 F.3d 116 (2d Cir.), cert. denied, 523 U.S. 1096, 118 S.Ct. 1581, 140 L.Ed.2d 795 (1998). The statute require a balancing of the need to compensate the victim and the need to prevent so burdening the defendant and his or her family that it will suffer unduly: The court, in determining whether to order restitution under this section, shall consider— (I) the amount of the loss sustained by each victim as a result of the offense; and (II) the financial resources of the defendant, the financial needs and earning ability of the defendant and the defendant’s dependents, and such other factors as the court deems appropriate. 18 U.S.C. § 3663(B)(i). Among those “other factors” that a court should consider is that the amount of restitution should not present such a continuing burden on the defendant as to make rehabilitation almost impossible. In this case, great tension exists between the enumerated" }, { "docid": "6542296", "title": "", "text": "has not been able to obtain employment. The family is already encountering financial difficulties. Family hardship imposed by defendant’s absence can be considered by the sentencing court which is “reluctant to wreak extraordinary destruction on dependents....” United, States v. Londono, 76 F.3d 33, 36 (2d Cir.1996); see also, United States v. Johnson, 964 F.2d 124, 128-129 (2d Cir.1992) (extraordinary family circumstances are a valid reason for a downward departure). The seriousness of the offense and the need for general and specific deterrence and for incapacitation here overrides the compassionate factors. Defendant’s conduct related to his offense involved violence. He liberally resorted to extravagant and graphic threats to extract payments from the victim. Defendant is sentenced to 27 months, which is within the Guidelines range. IV. RESTITUTION One of the purposes of sentencing is to provide restitution to victims of the offense. 18 U.S.C. § 3553(a)(7). Restitution has gained wide approval in recent years. The obligation to consider restitutory needs within the context of the criminal sentencing process has increased. See e.g., Victim and Witness Protection Act of 1982, Pub.L. 97-291, 1982 U.S.Code Cong. & Admin.News 2515 (“the Act”); United States v. Ferranti, 928 F.Supp. 206, 217-219, 220-221 (E.D.N.Y.1996) (discussing in detail the role and value of pecuniary penalties in the French system, the history of restitution, and its increasing acceptance in the United States); see also U.S.S.G. §• 5El.l(a) (“The court shall — (1) enter a restitution order if such an order is authorized under 18 U.S.C. §§ 3663-3664 ... ”) (emphasis added). Section 3663 of the Act gives the court broad discretion in fashioning a restitution order. United States v. Ferranti, 928 F.Supp. 206, 221 (E.D.N.Y.1996); United States v. Grundhoefer, 916 F.2d 788, 793 (2d Cir.1990); United States v. Casamento, 887 F.2d 1141, 1177 (2d Cir.1989), cert. denied, 493 U.S. 1081, 110 S.Ct. 1138, 107 L.Ed.2d 1043 (1990). For example, in the case of an offense involving, bodily injury, a court may order payment for medical expenses, including psychological treatment and other costs related to the healing process, and, where death results, reimbursement for funeral and related services. 18" }, { "docid": "6542294", "title": "", "text": "but not greater than necessary, to comply with purposes set forth” in the statutes. 18 U.S.C. § 3553(a). These purposes include deterrence, just punishment, incapacitation, rehabilitation, and restitution. The court shall consider— ... (2) the need for the sentence imposed— (A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; (B) to afford adequate deterrence to criminal conduct; (C) to protect the public from further crimes of the defendant; and (D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner; [and] ... (7) the need to provide restitution to any victims of the offense. Id. Other relevant factors and purposes include the nature of the offense, the history and characteristics of the defendant, the kinds and ranges of sentences available under the applicable Sentencing Guidelines, policy statements of the Sentencing Commission, and the desirability for relative uniformity in sentencing. 28 U.S.C. § 3553(a)(1), (3)-(6). See United States v. Ferranti, 928 F.Supp. 206, 213 (E.D.N.Y.1996); United States v. Concepcion, 795 F.Supp. 1262, 1271 (E.D.N.Y.1992) (the Sentencing Guidelines do not obviate the court’s sentencing burden with respect to the statutory directives under 18 U.S.C. § 3553(a)), disapproved on other grounds, United States v. DeRiggi, 45 F.3d 713 (2d Cir.1995). III. PRISON Sentencing for extortion is controlled by Sentencing Guideline section 2E2.1, providing a base offense level of 20. ' Adjusting for acceptance of responsibility, three levels are subtracted, leaving a total offense level of 17. The defendant’s criminal history places him in criminal history category II, resulting in a range for imprisonment of 27 to 33 months. Defendant seeks a downward departure pursuant to Guideline section 5K2.0 on account of the extreme family hardship which would be occasioned by his absence from the home. See U.S.S.G. § 5H1.6. Incarceration has had, and will continue to have, a particularly deleterious effect upon his wife and young children. The three year old shows signs of emotional distress. Unable to find competent, affordable full-time day care for the children, defendant’s wife" }, { "docid": "6542307", "title": "", "text": "from the offense; [and] (6) the expected costs to the government of any imprisonment, supervised release, or probation component of the sentence; 18 U.S.C. § 3572(a)(l)-(6). In sum, a court must impose a fine in all cases, except where the defendant establishes that a fine cannot be paid presently or in the future. U.S.S.G. § 5E 1.2(a). The defendant carries the burden of demonstrating that a fine should not be imposed due to his financial inability to pay. United States v. Marquez, 941 F.2d 60, 65 (2d Cir.1991). Moreover, the court “is not required to accept a defendant’s unsubstantiated claim of penury, and it is entitled to reject such a claim when he has refused to cooperate with the Probation Department in exploring his financial resources.” United States v. Sasso, 59 F.3d 341, 352 (2d Cir.1995). Under the Sentencing Guidelines, the fine range is $5,000 to $50,000. U.S.S.G. § 5E1.2(c)(3). Considering all of défendant’s circumstances and the need for just punishment, a fine in the amount of $10,000, within the Guidelines, is imposed. A greater fine cannot be supported by the record as within defendant’s present or prospective capacity to pay. VI.COST OF IMPRISONMENT Defendant has not been completely forthcoming about his outstanding loans, but the evidence demonstrates that they are not significant. Defendant was a collector, not a principal. Compare United States v. Sasso, 59 F.3d 341, 352 (2d Cir.1995); United States v. Ferranti 928 F.Supp. 206, 220 (E.D.N.Y.1996); United States v. Sessa, 821 F.Supp. 870, 875 (E.D.N.Y.1993), aff'd, 41 F.3d 1501 (2d Cir.1994). In the present case the Fatico hearing, see United States v. Fatico, 458 F.Supp. 388 (E.D.N.Y.1978), aff'd, 603 F.2d 1053 (2d Cir.1979), cert. denied, 444 U.S. 1073, 100 S.Ct. 1018, 62 L.Ed.2d 755 (1980), established that defendant had sufficient assets to pay the restitution and the fine imposed, supra sections IV and V, while leaving modest assets just sufficient to support his wife and children while he is incarcerated. In view of his wife’s illness and the need to support their young children, payment for the cost of imprisonment cannot be supported by any current" }, { "docid": "20004744", "title": "", "text": "vast, the arguments deep, and each point of view has much to be said in its favor. A clear-cut Commission decision in favor of one of these approaches would diminish the chance that the guidelines would find the widespread acceptance they need for effective implementation. U.S.S.G. § 1A1.1, pt. A(3) (“The Basic Approach”); see also United States v. Blake, 89 F.Supp.2d 328, 340-46 (E.D.N.Y. 2000) (discussing the rehabilitative model); United States v. Blarek, 7 F.Supp.2d 192, 198-204 (E.D.N.Y.1998) (discussing section 3553(a) and traditional sentencing rationales). The Commission avoided the “philosophical problem” by “taking an empirical approach” and using averages of prior sentencing decisions to derive Guideline ranges for most offenses: Despite these policy-oriented departures from present practice, the guidelines represent an approach that begins with, and builds upon, empirical data. The guidelines will not please those who wish the Commission to adopt a single philosophical theory and then work deductively to establish a simple and perfect set of categorizations and distinctions .... After spending considerable time and resources exploring alternative approaches, the Commission has developed these guidelines as a practical effort toward the achievement of a more honest, uniform, equitable, and therefore effective, sentencing system. U.S.S.G. § 1A1.1, pt. A(3); see also Marvin E. Frankel, Sentencing Guidelines: A Need for a Creative Collaboration, 101 Yale L.J.2043, 2047 (1992) (“The Commissioners took up the direction to look at prior average sentences ‘as a starting point,’ but not to be bound by them. That meant starting with a tradition of criminal sanctions that ranks next to the American states as the harshest in the Western world. Then, instead of mitigating, as I think a rational and courageous stance should have dictated under the power to formulate guidelines ‘consistent with the purposes of sentencing described in section 3553(a)(2) of title 18,’ the Commission produced guidelines that actually increase the overall severity ... ”) (footnotes omitted). A departure from the Guidelines was permitted only if the sentencing court “finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in" }, { "docid": "20004747", "title": "", "text": "upward to increase fine, imposing costs of imprisonment, and ordering restitution in prosecution of wealthy landlord who burned an occupied building to collect on insurance policy, resulting in death of a firefighter); United States v. Tropiano, 898 F.Supp. 90 (E.D.N.Y.1995) (departing upwards where benign nature of convicted offense belied actual extent of criminal enterprise and Guidelines under-represented true criminal history); Note, A Trial Judge’s Reflections on Departures from the Federal Sentencing Guidelines, 5 Fed. Sent. Rep. 6 (1992). Congressional delegation of authority to the Commission survived delegation of power and separation of powers challenges. See Mistretta v. United States, 488 U.S. 361, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989). The Supreme Court held that congressional delegation of authority to the Commission was proper because the Sentencing Reform Act of 1984 provided “intelligible principiéis] ” required to delegate exactly “the sort of intricate, labor-intensive task for which delegation to an expert body is especially appropriate.” Id. at 379, 109 S.Ct. 647 (emphasis added). In light of our approval of ... broad delegations, we harbor no doubt that Congress’ delegation of authority to the Sentencing Commission is sufficiently specific and detailed to meet constitutional requirements. Congress charged the Commission with three goals: to “assure the meeting of the purposes of sentencing as set forth” in the Act; to “provide certainty and fairness in meeting the purposes of sentencing, avoiding unwarranted sentencing disparities among defendants with similar records [ ] while maintaining sufficient flexibility to permit individualized sentences,” where appropriate; and to “reflect, to the extent practicable, advancement in knowledge of human behavior as it relates to the criminal justice process.” 28 U.S.C. § 991(b)(1). Congress further specified four “purposes” of sentencing that the Commission must pursue in carrying out its mandate: “to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense”; “to afford adequate deterrence to criminal conduct”; “to protect the public from further crimes of the defendant”; and “to provide the defendant with needed [] correctional treatment.” 18 U.S.C. § 3553(a)(2). Id. at 374, 109 S.Ct. 647 (emphasis added). In" }, { "docid": "20004746", "title": "", "text": "formulating the guidelines that should result in a sentence different from that described.” 18 U.S.C. § 3553(b); Koon v. United States, 518 U.S. 81, 92-96, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996) (recognizing the importance of district court discretion to identify those cases that did not fall within the “heartland” of the Guidelines); United States v. Merritt, 988 F.2d 1298, 1311 (2d Cir.1993) (“consideration of a factor by the Commission does not bar departure”); see also, e.g., United States v. Hawkins, 380 F.Supp.2d 143 (E.D.N.Y. 2005) (granting downward departure on basis of extraordinary rehabilitation); United States v. Patterson, 281 F.Supp.2d 626 (E.D.N.Y.2003) (aberrant behavior); United States v. Liu, 267 F.Supp.2d 371 (E.D.N.Y.2003) (significantly reduced mental capacity); United States v. Blake, 89 F.Supp.2d 328 (E.D.N.Y.2000) (significantly reduced mental capacity, aberrant behavior, anticipated trauma to defendant’s infant child if separated from mother, and rehabilitation); United States v. Blarek, 7 F.Supp.2d 192 (E.D.N.Y.1998) (vulnerability in prison and HTV-positive status); United States v. Malpeso, 943 F.Supp. 254 (E.D.N.Y.1996) (family circumstances); United States v. Ferranti, 928 F.Supp. 206 (E.D.N.Y.1996) (departing upward to increase fine, imposing costs of imprisonment, and ordering restitution in prosecution of wealthy landlord who burned an occupied building to collect on insurance policy, resulting in death of a firefighter); United States v. Tropiano, 898 F.Supp. 90 (E.D.N.Y.1995) (departing upwards where benign nature of convicted offense belied actual extent of criminal enterprise and Guidelines under-represented true criminal history); Note, A Trial Judge’s Reflections on Departures from the Federal Sentencing Guidelines, 5 Fed. Sent. Rep. 6 (1992). Congressional delegation of authority to the Commission survived delegation of power and separation of powers challenges. See Mistretta v. United States, 488 U.S. 361, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989). The Supreme Court held that congressional delegation of authority to the Commission was proper because the Sentencing Reform Act of 1984 provided “intelligible principiéis] ” required to delegate exactly “the sort of intricate, labor-intensive task for which delegation to an expert body is especially appropriate.” Id. at 379, 109 S.Ct. 647 (emphasis added). In light of our approval of ... broad delegations, we harbor no doubt" } ]

[ { "docid": "16031398", "title": "", "text": "and 3, below), the Debtor asserts that the Proof of Claim included “no attachment ... demonstrating] where, how or when the original note was ever transferred from Allied ... to the Trust.” (Objection ¶ 8). Thus, the Debtor questions whether BNYM has presented sufficient evidence to support its right to enforce the Note under applicable principles of contract law. I begin with this argument, in part, because it is familiar. This type of objection has been raised with some frequency by debtors in recent years, particularly after the New Jersey bankruptcy court’s decision in In re Kemp, 440 B.R. 624 (Bankr. D.N.J.2010). In Kemp, the court sustained a debtor’s objection to a secured proof of claim filed by the trustee of a securitized trust because claimant failed to satisfy the indorsement element for negotiation of the underlying note under New Jersey’s version of Uniform Commercial Code and thus, did not attain the status as a “holder” entitled to enforce note. More recently, the relevant legal principles governing a purported note holder’s right to enforce a note and assert a claim in a bankruptcy case were analyzed in depth in the 9th Circuit Bankruptcy Appellate Panel decision in Veal. The following UCC principles may be distilled from Veal and Kemp: • the borrower’s obligation is to pay the person entitled to enforce the note (who need not be the “owner” of the note); • if the borrower pays a “person entitled to enforce” the note, the borrower’s obligations are discharged to the extent of the amount paid; • there are three ways in which a person may qualify as the person to enforce the note: • first, by being its holder (i.e., in possession of the note where the note is payable to the person or is payable to bearer); • second, by being a nonholder in possession who has the rights of a holder; • third, if the note has been destroyed or is lost or is in the wrongful possession of an unknown person or a person that cannot be found, by establishing that the person was formerly in" } ]

[ { "docid": "4826693", "title": "", "text": "loan’s servicer, BAC, to properly respond to the Khans’ request for information about the mortgage loan owner. Defendant relies upon the recent opinion issued in Holcomb v. Federal Home Loan Mortgage Corporation, 2011 WL 5080324 (S.D.Fla. Oct. 26, 2011). In Holcomb, the plaintiff served its request for information under § 1641(f)(2) on Wells Fargo Bank, N.A. (“Wells Fargo”) — the loan servicer— who failed to respond. Id. at *1. The plaintiff then sued Federal Home Loan Mortgage Corporation (“Freddie Mac”) as the creditor of the loan, arguing that Freddie Mac was liable for Wells Fargo’s failure as its agent. Id. at *5. The Holcomb court recognized that interpreting Congress’ assignment of liability under § 1641(f)(2) presents a difficult problem: “TILA presents an apparent conundrum by imposing an obligation on servicers to provide information on request but also absolving servicers of any liability under TILA where the servicers are not also the owners of the obligations.” Id. at *6. The court also noted that other courts have attempted to rectify this issue by imposing vicarious liability on the creditor for its servicer’s failure to comply with § 1642(f). See Consumer Solutions REO, LLC v. Hillery, 2010 WL 144988, at *3 (N.D.Cal. Jan. 8, 2010) (“[G]iven that the servicer cannot be held liable for damages for a § 1641(f)(2) violation, and the very nature of such a violation implies the debt- or will not know the identity of and contact information for the owner of the note, the debtor would be left essentially without a remedy absent some form of vicarious liability.”). Nonetheless, the Holcomb court decided that vicarious liability did not apply, “although the resulting difficulties in enforcing (f)(2) are alarming,” because it reasoned that Congress attempted to address the concerns by the May 2009 enactment of 15 U.S.C. § 1641(g), which requires a new creditor, within thirty (30) days following a transfer, sale, or assignment of a loan, to provide the borrower with relevant information regarding the new creditor. The court also explained that its chosen “approach ensures access to information without increasing the risk that some lenders would use" }, { "docid": "3282201", "title": "", "text": "judgment of foreclosure was entered. This determination is sufficient to establish PNC’s standing to seek relief from stay. Spencer’s initial argument is that PNC cannot rely on the foreclosure judgment to demonstrate its standing because an appeal of the judgment is pending. She argues this means it is not a final judgment for the purpose of relief from stay. She is in error. The appeal is irrelevant to the motion. The issue is not whether any form of res judicata, or collateral estoppel precludes Spencer from litigating who is entitled to payments or proceeds from a sale of the house. This Court need only determine whether PNC has demonstrated a colorable claim to property of the estate so that it can prosecute the claim elsewhere. Granting relief from stay does not preclude Spencer from proceeding in her state court appeal. Spencer also asserts PNC is not the real party in interest to seek relief from stay because “it is the admitted servicing agent for Freddie Mac and does not have the authority of its principal to bring prosecute this Motion.” Again, the Wood County Circuit Court has already determined PNC is entitled to enforce the Note and Mortgage. PNC is the holder of the original Note and the Mortgage. That there may be a beneficial interest holder does not obviate the findings of the state court. Further, as previously found by this Court, PNC is the holder of the original Note. It produced the original at the hearing in February of 2014 and> it was admitted into evidence. This Court concluded, as did the state court, that PNC was the holder of the Note and entitled to enforce it under Section 403.301, Wis. Stats. The Court need not determine whether a beneficial owner exists and, if so, who it is. Moreover, other courts have found that loan servicers are parties in interest under Rule 17 of the Federal Rules of Civil Procedure. See, e.g., In re Woodberry, 383 B.R. 373, 379 (Bankr.D.S.C.2008) (collecting cases). Such a finding would be especially appropriate in this case, where PNC proceeded in the foreclosure" }, { "docid": "3282195", "title": "", "text": "Bank. An amended foreclosure complaint was filed naming PNC as the plaintiff. It is undisputed that Federal Home Loan Mortgage Corporation (“Freddie Mac”) owns a beneficial interest in the Note and Mortgage and PNC is the servicer. In 2010, Spencer filed a Chapter 7 bankruptcy case. PNC moved for and was granted relief from stay. Spencer received a discharge of her personal liability on the Note. The foreclosure action continued. PNC was formally substituted as the plaintiff. PNC filed a motion for summary judgment. Spencer then began advancing the argument that is the theme of various theories in subsequent proceedings: PNC is not the real party in interest, Freddie Mac is the “true owner” of her Note, and PNC has no standing to enforce the Mortgage. She filed a motion for contempt in the bankruptcy court in 2012, claiming PNC and others continued in personam collection actions in the foreclosure proceeding in violation of the discharge order. That motion was denied. She then filed a motion to reopen the Chapter 7 ease. The bankruptcy court denied the motion and two motions for reconsideration. Spencer appealed, and the District Court affirmed. Having no success in the bankruptcy court, Spencer removed her foreclosure case to the District Court, which remanded and then denied two motions for reconsideration. Spencer appealed the District Court’s order to the Seventh Circuit Court of Appeals. The Court of Appeals affirmed and ordered Spencer’s attorney to show cause as to why she should not be sanctioned for pursuing a frivolous appeal. Spencer then filed her first Chapter 13 bankruptcy case. PNC filed a motion for relief from stay and a motion to dismiss. An evidentiary hearing was held in February of 2014. The original Note was produced at the hearing. The Court found PNC had standing, that it was not adequately protected, and granted PNC relief from stay. Spencer admitted the sole reason for the filing was to prevent the foreclosure from proceeding. The Court also dismissed the bankruptcy case for lack of good faith in filing the petition. Spencer appealed both orders. Back in state court, the" }, { "docid": "3282193", "title": "", "text": "MEMORANDUM DECISION Hon. Catherine J. Furay, U.S. Bankruptcy Judge I. Statement of Procedural History The Debtor, Sheila Marie Spencer (“Spencer”), filed this Chapter 13 bankruptcy case on April 3, 2015. PNC Bank, N.A. (“PNC”) filed a Motion for Relief from Stay with In Rem Relief for Real Property Located at 1222 W. Jefferson Street, Marshfield, Wisconsin 54449, on April 16, along with a memorandum in support of the motion. PNC requested relief pursuant to section 105(a) and sections 362(d)(1), (2), and (4) of the Bankruptcy Code. Spencer filed a Chapter 13 Plan and an offer of adequate protection on April 17, 2015. The adequate protection offer proposes to make monthly payments of $1,270.88 to “the Federal Home Loan Mortgage Corporation (Freddie Mac), in its own identity and capacity or as Trustee of an Unidentified Securitization Trust, or its successors or assigns (possibly the United States Treasury) to her attorney’s trust account, pending sale of her homestead. ...” Offer of Adequate Protection, Docket #24. Spencer’s Amended Chapter 13 Plan states a sale of her homestead will be to her son, “contingent upon Buyer obtaining financing at an interest rate not to exceed 5% per annum.” Offer to Purchase, Docket # 29, Exhibit A. The Court conducted an evidentiary hearing on May 11, 2015, and the parties submitted written argument. II. Background The relevant facts have been recited numerous times by this Court and other courts and will not be recited in detail here. A summary of the facts is sufficient to address the issues presented by the motion for relief from stay and the proffered adequate protection. Spencer borrowed $209,160 to purchase a home in 2005. She signed a Note for, that amount. The Note was secured by a mortgage on the home. No payments have been received and applied to the Note since late 2008. While the parties dispute the facts surrounding the failure of payments in 2008, Spencer concedes she has not tendered or made any payment in years. A foreclosure was commenced in April 2009 by FNMC, a division of National City Bank of Indiana n/k/a National City" }, { "docid": "20528321", "title": "", "text": "interest” is Freddie Mac, which is majority-owned by the federal government. (But that argument is peculiarly undermined by the notice of removal, which states that “[although Freddie Mac purchased the purported loan obligation, it neither owns nor holds the note and mortgage, which is the subject of these proceedings.”) Nora says that she learned of Freddie Mac’s interest in this case when her internet research disclosed that Freddie Mac had purchased the mortgage. Within 30 days of “discovering” Freddie Mac’s role, she removed the case. See 28 U.S.C. § 1446(b)(3). PNC moved to remand the case and sought an award of fees and costs because none of the purported grounds for removal was objectively reasonable. See id. § 1447(c). Nora responded that removal was appropriate because PNC had submitted “sham pleadings” in the state court to “fraudulently conceal” Freddie Mac’s role; she did not respond to PNC’s request for fees and costs. Finding no possible ground for removal, the district court remanded the case and awarded fees and costs to PNC. The court explained that the four-year wait to remove the case was “far too long” given the 30-day deadline for removal. See 28 U.S.C. § 1446(b)(1), (3). Acknowledging Nora’s “not entirely clear” argument that the 30-day clock began to run once she “discovered” Freddie Mac’s role, the court concluded that she did not explain how this “discovery” gave Spencer “the right to remove her case to federal court when [Freddie Mac] is not a named party to the suit.” The court also granted PNC’s request for attorney’s fees and costs, noting that Spencer had not opposed that request. Nora then filed a motion for reconsideration, expanding upon her arguments for removal and suggesting that the court had erroneously remanded the ease on “the equitable grounds of laches.” She devoted two sentences of her eight-page motion to challenging the fees and costs award, asserting that it “is completely inequitable for this court to order attorney’s fees and costs of a proper removal proceeding.” In opposition, PNC contended that the court lacked jurisdiction to reconsider its remand order and sought an" }, { "docid": "3282205", "title": "", "text": "and hazard insurance totaled $33,654.64 as of September 13, 2013. It has not been reimbursed and has subsequently advanced further amounts. PNC has also expended funds in litigating Spencer’s removal of the foreclosure proceeding to District Court and the resulting appeal. It continues to expend funds in this litigation. Spencer devotes a portion of her argument to an assertion that PNC’s witness did not have authority to refuse her offer of adequate protection. PNC’s refusal of the offer is irrelevant to the matter before the Court. A relief from stay movant is free to accept or reject an offer to settle its motion, and the Court’s role is not to second-guess why or how it made a decision not to accept an offer. If the offer is refused, the issue before this Court is simply whether PNC is adequately protected according to the terms of sections 361 and 362(d)(1). Spencer has the burden of proving PNC is adequately protected. See 11 U.S.C. § 362(g)(2). She proposes to make monthly adequate protection payments of $1,270.88 to “the Federal Home Loan Mortgage Corporation (Freddie Mac), in its own identity and capacity or as Trustee of an Unidentified Securitization Trust, or its successors or assigns (posáibly the United States Treasury) to her attorney’s trust account, pending sale of her homestead .... ” Offer of Adequate Protection, Docket #24. This is the amount of the principal and interest payment on the original mortgage amount. At the same time, she states she will seek to sell the property to her son and has commenced an adversary proceeding “to seek the Court’s determination of the identity of the entity with the right to receive her payments .... ” Id. Spencer introduced a declarations page showing an insurance policy in effect since August 9, 2014. The declarations page listed “Freddie Mac” as the mortgagee. Her brief indicates she has budgeted for real estate taxes, and the budget on her Schedule J does contain that as a line item. However, no evidence was presented by Spencer that she has paid real estate taxes. Neither has she taken action" }, { "docid": "277367", "title": "", "text": "particular person or entity, but instead in blank. Densmore v. Litton Loan Servicing, L.P. (In re Densmore), 445 B.R. 307, 310 (Bankr.D.Vt. 2011), citing In re Samuels, 415 B.R. 8, 20 (Bankr.D.Mass.2009) (Possession of the note with a blank endorsement creates standing because the bank was the holder); Wilson v. Countrywide Home Loans, Inc. (In re Wilson), 442 B.R. 10, 15 (Bankr.D.Mass.2010) (“By virtue of its possession of a note indorsed in blank, Deutsche Bank is the holder of the note.”). In addition, Ocwen can enforce the note because it acts as the agent for the Bank of New York Mellon. See Exhibit F. As the holder, for all the reasons explained, Bank of NY Mellon is the real party in interest. The Smoaks raise concern as to their payments on the Note going to the wrong entity and because “[a]ny challenge by an investor in the Trust assets will impinge or place a cloud on title as to the mortgage deed ...” and, therefore, “[t]heir rights will be affected by noncompliance by the parties identified as having responsibilities and duties under the Trust.” Brief of Robert K. and Patricia E. Smoak for Objection Hearing (doc. 93), pp. 4-5. However, because it has been established that Bank of NY Mellon is the holder of the Note, the Smoaks, as the maker of the Note, need not be concerned with who the owner of the Note is, but only that the payments are being delivered to a person with the right to enforce the Note. See Kemp v. Countrywide Home Loans, Inc. (In re Kemp), 440 B.R. 624, 631 (Bankr.D.N.J.2010), quoting Adams v. Madison Realty & Dev. Inc., 853 F.2d 163, 166 (3rd Cir.1988) (“From the maker’s standpoint, therefore, it becomes essential to establish that the person who demands payment of a negotiable note, or to whom payment is made, is the duly qualified holder.... Consequently, plaintiffs here, as makers of the notes, may properly press defendant to establish its holder status.”). See also Livonia Properties Holdings, L.L.C. v. 12840-12976 Farmington Road Holdings, L.L.C., 399 Fed.Appx. 97, 102, 2010 WL 4275305," }, { "docid": "19770158", "title": "", "text": "was created by statute for a government purpose and was controlled entirely by the United States. Amtrak’s board of directors consisted of nine members: the Secretary of Transportation, five appointed by the President, Amtrak’s president (appointed by the Board), and two elected by the holders of preferred stock (all of which was owned by the United States). Id. at 385, 115 S.Ct. 961. By way of comparison, the Court noted that the Communications Satellite Corporation (“Comsat”) was nongovernmental because only three of its fifteen directors were appointed by the President. Id. at 390, 115 S.Ct. 961. A. Pre Conservatorship Fannie Mae When Fannie Mae was created by Congress, the government did not retain the permanent authority to appoint the majority of its directors. Congress expressly designated Fannie Mae as a private corporation, see 12 U.S.C. § 1716b, controlled by a Board of Directors elected annually by Fannie Mae shareholders. See 12 U.S.C. § 1718(a) (providing that common shareholders have right to vote for directors); id. § 1723(b) (providing that Fannie Mae’s board is elected annually by common shareholders). Pre conservator-ship, Fannie Mae had 15 board members; of these 15, 5 were appointed by the President and 10 were elected by common shareholders. Northrip, 527 F.2d at 30 (6th Cir.1975). Pre conservatorship Fannie Mae, like Comsat, was a nongovernmental entity under the reasoning set forth in Lebrón. Since Lebron, no other court has been presented with the issue of whether preconservatorship Fannie Mae was a federal actor. However, the Ninth Circuit held that pre-conservatorship Freddie Mac, a similar entity, was not a government actor under Lebrón. In American Bankers Mortgage Corp. v. Federal Home Loan Mortgage Corp., 75 F.3d 1401, 1405 (9th Cir.1996), American Bankers brought suit asserting that Freddie Mac violated the Fifth Amendment due process clause when it terminated American Bankers’ status as a mortgage loan seller and servicer. Because the Fifth Amendment applies only the federal government, Freddie Mac could only be subject to its limitations if it were part of the federal government. The Ninth Circuit determined that it was not. Although Congress created Freddie Mac to" }, { "docid": "3282202", "title": "", "text": "to bring prosecute this Motion.” Again, the Wood County Circuit Court has already determined PNC is entitled to enforce the Note and Mortgage. PNC is the holder of the original Note and the Mortgage. That there may be a beneficial interest holder does not obviate the findings of the state court. Further, as previously found by this Court, PNC is the holder of the original Note. It produced the original at the hearing in February of 2014 and> it was admitted into evidence. This Court concluded, as did the state court, that PNC was the holder of the Note and entitled to enforce it under Section 403.301, Wis. Stats. The Court need not determine whether a beneficial owner exists and, if so, who it is. Moreover, other courts have found that loan servicers are parties in interest under Rule 17 of the Federal Rules of Civil Procedure. See, e.g., In re Woodberry, 383 B.R. 373, 379 (Bankr.D.S.C.2008) (collecting cases). Such a finding would be especially appropriate in this case, where PNC proceeded in the foreclosure action, obtained a foreclosure judgment, and also previously produced the original Note in this Court. PNC has demonstrated that it holds a colorable claim to the property and that is sufficient to confer standing. B. Relief from Stay 1. “Cause, ” Including Lack of Adequate Protection “Cause” as used in section 362(d) “has no clear definition and is determined on a case-by-case basis.” In re Fernstrom Storage & Van Co., 938 F.2d 731, 735 (7th Cir.1991), quoting In re Tucson Estates, Inc., 912 F.2d 1162, 1166 (9th Cir.1990). However, it specifically includes “lack of adequate protection.” Section 361 describes ways in which a party’s interests may be adequately protected, including periodic cash payments. Secured creditors cannot repossess or foreclose on their collateral while the automatic stay is in effect. Thus, the purpose of adequate protection is to compensate secured creditors for the decrease in value of their interest in collateral during the period of a bankruptcy case before a plan providing for payment is confirmed. One bankruptcy court observes, The determination of whether a creditor’s" }, { "docid": "3282206", "title": "", "text": "“the Federal Home Loan Mortgage Corporation (Freddie Mac), in its own identity and capacity or as Trustee of an Unidentified Securitization Trust, or its successors or assigns (posáibly the United States Treasury) to her attorney’s trust account, pending sale of her homestead .... ” Offer of Adequate Protection, Docket #24. This is the amount of the principal and interest payment on the original mortgage amount. At the same time, she states she will seek to sell the property to her son and has commenced an adversary proceeding “to seek the Court’s determination of the identity of the entity with the right to receive her payments .... ” Id. Spencer introduced a declarations page showing an insurance policy in effect since August 9, 2014. The declarations page listed “Freddie Mac” as the mortgagee. Her brief indicates she has budgeted for real estate taxes, and the budget on her Schedule J does contain that as a line item. However, no evidence was presented by Spencer that she has paid real estate taxes. Neither has she taken action to add PNC as a mortgagee or additional named insured on the insurance policy. Spencer’s “offer” cannot seriously be viewed as something that meets her burden to show the interests of PNC are adequately protected against a decrease in value resulting from a continuation of the automatic stay. Rather, Spencer’s offer continues to jeopardize the property interest. She proposes to make payments in the amount according to the original terms of the Note. Although she argues the property is not depreciating at a rate greater than her proposed payments, she presented no evidence to support this contention. The judgment of foreclosure is in an amount significantly higher than the original face amount of the Note. The proposed payment does not account for any increase in the debt. It does not address the real estate taxes that continue to accrue or the fact that PNC was required to pay them to protect its lien position. Spencer merely asserts she has “budgeted” for them. As for the issue of insurance on the property, PNC’s witness testified that" }, { "docid": "3282207", "title": "", "text": "to add PNC as a mortgagee or additional named insured on the insurance policy. Spencer’s “offer” cannot seriously be viewed as something that meets her burden to show the interests of PNC are adequately protected against a decrease in value resulting from a continuation of the automatic stay. Rather, Spencer’s offer continues to jeopardize the property interest. She proposes to make payments in the amount according to the original terms of the Note. Although she argues the property is not depreciating at a rate greater than her proposed payments, she presented no evidence to support this contention. The judgment of foreclosure is in an amount significantly higher than the original face amount of the Note. The proposed payment does not account for any increase in the debt. It does not address the real estate taxes that continue to accrue or the fact that PNC was required to pay them to protect its lien position. Spencer merely asserts she has “budgeted” for them. As for the issue of insurance on the property, PNC’s witness testified that the insurance payee should be PNC. To his knowledge, PNC had not been provided with anything indicating insurance coverage on the property that names PNC as an additional insured for a policy that has been paid for by Spencer. Spencer offered no evidence or argument as to whether or how a policy listing Freddie Mac as a secondary insured would protect PNC. It is also elementary that to adequately protect an entity through periodic cash payments, one must direct the payment appropriately. The terms of the offer do not contemplate payments to PNC. The written offer is a proposal to pay the Federal Home Loan Mortgage Corporation, or pay funds into Spencer’s attorney’s trust fund while litigation continues. Even if the Court took oblique comments made at the evidentiary hearing to constitute a proposal to pay PNC directly if the Court so ordered, Spencer has still not demonstrated the amount adequately protects PNC. The final component of the adequate protection offer is the abbreviated offer to purchase from Spencer’s son. While the amount is slightly" }, { "docid": "3282200", "title": "", "text": "determination that the creditor’s claim is sufficiently plausible to allow its prosecution elsewhere.” Id. Thus, a creditor need merely demonstrate a “color-able claim” to property of the estate. In re Vitreous Steel Prods. Co., 911 F.2d 1223, 1234 (7th Cir.1990); see also In re Rinaldi, 487 B.R. at 530. Here, PNC has demonstrated a col-orable claim to property of the estate. PNC obtained a judgment of foreclosure on August 20, 2014. The Wood County Circuit Court found PNC is entitled to enforce a mortgage securing Spencer’s performance of the terms of the Note executed by Spencer. Judgment of Foreclosure, Docket #36, Movant’s Exhibit 8 (finding “[t]hat the plaintiff is the holder of a Note dated July 29, 2005 and executed by defendant, (“the Note”) and is entitled to enforce a Mortgage dated July 29, 2005 and executed by defendant on the Premises (“the Mortgage”) which secured defendant’s performance of the terms of the Note.”) PNC’s witness, an Assistant Vice President and Manager of PNC’s Default Litigation Department, testified there has been no assignment since the judgment of foreclosure was entered. This determination is sufficient to establish PNC’s standing to seek relief from stay. Spencer’s initial argument is that PNC cannot rely on the foreclosure judgment to demonstrate its standing because an appeal of the judgment is pending. She argues this means it is not a final judgment for the purpose of relief from stay. She is in error. The appeal is irrelevant to the motion. The issue is not whether any form of res judicata, or collateral estoppel precludes Spencer from litigating who is entitled to payments or proceeds from a sale of the house. This Court need only determine whether PNC has demonstrated a colorable claim to property of the estate so that it can prosecute the claim elsewhere. Granting relief from stay does not preclude Spencer from proceeding in her state court appeal. Spencer also asserts PNC is not the real party in interest to seek relief from stay because “it is the admitted servicing agent for Freddie Mac and does not have the authority of its principal" }, { "docid": "4834984", "title": "", "text": "proceed with an Enforcement Action until the Subordinate Mortgagee has given the Senior Mortgagee an \"Enforcement Action Notice,” and “the Senior Mortgagee has delivered to the Subordinate Mortgagee the Senior Mortgagee's written consent to such Enforcement Action by the Subordinate Mortgagee.” Subordination Agreement, § 5(c). . It even provides that such permission can be withheld arbitrarily. \"The Subordinate Mortgagee acknowledges that the Senior Mortgagee may grant or refuse consent [with] ... sole and absolute discretion, and that such discretion may be exercised in an arbitrary manner.” Subordination Agreement, § 5(c). . The Preamble to the Subordination Agreement states, THIS SUBORDINATION AGREEMENT (this \"Agreement”) is entered into as of the 1st day of December, 2005, by and between (i) ... (\"Freddie Mac”) (ii) UMB BANK, N.A., a national banking association, as trustee (the \"Bond Trustee”) and together with Freddie Mac, the (\"Senior Mortgagee”), (iii) UMB BANK, N.A., a national banking association, as trustee for the Series B Bonds (as hereinafter defined) (the \"Subordinate Mortgagee”). Subordination Agreement, pmbl. (emphasis in original). The Definitions section also defines \"Subordinate Mortgagee” as the \"person or entity named as such in the first paragraph of this Agreement and any other person or entity who becomes the legal holder of the Subordinate Note after the date of this Agreement.” Id. at l(n)." }, { "docid": "18509852", "title": "", "text": "a Final Decree of the Debtor’s still-pending and substantially consummated Chapter 11 case, Case No. 81-00173, in accordance with its inherent power of case management as authorized by Code § 105(a). IT IS SO ORDERED. . There is no dispute as to the validity of the mortgages or the assignments, duly recorded in the office of the Clerk of Onondaga County. . The total proof of claim included estimated attorneys fees of $47,000.00 through November 21, 1988 and estimated costs and expenses of foreclosure of $2,000.00 premised upon no further opposition by the Debtor in state court. The parties stipulated that, if necessary, these estimates would be the subject of a separate hearing. Freddie Mac also claimed an administrative expense priority for post-petition interest. . The Court notes that the docket of the first Chapter 11, 81-00173, bears an entry on September 30, 1986 of document # 157 recited as “Petition By Debtor’s Attorney For Substantial Consummation Pursuant to FRCP [sic] 2015(6) —filed 6/2/86.\" However, the docket thereafter reflects neither the entry of an Order of Substantial Consummation nor a Final Decree. . The Court reaches this conclusion in light of the particular facts before it and need not comment on the generally imprudent and precarious posture of a substantially consummated Chapter 11 case that has never been closed upon a final decree. . The Court notes that Freddie Mac’s security interest in rents and other monies flowing from the leases does not appear to include income from the on-premises laundry machine[s]. Freddie Mac Exhibits R7 & R8. However, neither party addressed this issue so the Court will not disturb the within computation, secure in the knowledge that a $3,000.00 to $5,000.00 discrepancy is not significant in the overall calculations, nor should it be. . The Court treats the Debtor’s stipulating into evidence the Abstract of Title, Freddie Mac Exhibits Rll & R12, as resolving the inconsistency between the characterization of Dr. Elstein as an equity security holder in the Debtor’s Petition and then as a mortgagee in the Abstract in favor of the latter. Compare Freddie Mac Exhibit R15" }, { "docid": "277399", "title": "", "text": "Smoaks assert the PSA is governed by New York trust law. The court has no reason to dispute that assertion and it does not appear that Bank of NY Mellon disputes it. However, Ohio UCC law establishes standing and the real party in interest and the Note and Mortgage are governed by Ohio law. None of the cases cited by the Smoaks change this result. In Doble v. Deutsche Bank Nat'l Trust Co. (In re Doble), 2011 WL 1465559 (Bankr.S.D.Cal. April 14, 2011), cited by the Smoaks, that court found New York trust law did not apply to real estate investment trusts. The court does not express an opinion as to that conclusion; however, as to the relevance of the PSA in that case to standing, nothing in the decision contradicts this court's narrow finding that a valid blank endorsement of a negotiable instrument provides the holder with standing to file a proof of claim as the real party in interest. Nor do the other cases cited in the Smoaks’ brief (doc. 93) alter this court's conclusion. . UCC § 9-109(a)(3) provides that Article 9 “applies to ... a sale of ... promissory notes.” . See Ohio Revised Code § 1303.31(B) [UCC 3-301] (\"A person may be a 'person entitled to enforce’ the instrument even though the person is not the owner of the instrument or is in wrongful possession of the instrument.”). . For example, one could assume for argument's sake that the Note could be returned to the \"responsible party\" for failure to comply with the PSA, and the holder of the Note — at some undetermined future date— could change. However, from the Smoaks' perspective, all previous payments to the pri- or holder would reduce the balance on the Note and the secured claim of Bank of NY Mellon and payments would then be owed to the current holder. If the Smoaks had shown that the Note, with the endorsement in blank, had been transferred from the Trustee to the responsible party’s assignee, or some other entity, that transferee would become the holder. No such evidence was" }, { "docid": "20528320", "title": "", "text": "opposing counsel had inappropriately filed a “formal motion” for a hearing, rather than conferring via telephone; and that an opposing attorney’s appearance should be stricken because, Nora argued, the case 'caption improperly identified PNC as a party. Although the substantive theory of the case seemed to evolve with each filing, Nora’s core argument was that the party identified as the lender on the mortgage note was a “trade name,” not a legal entity, so neither PNC nor anyone else had standing to sue based on the note. Nora’s filings consisted of lengthy arguments unsupported by evidence. Despite Nora’s objections the case moved forward, and in December 2012 the court scheduled a summary judgment hearing for the next March. In January 2013, nearly four years after the suit was filed, Nora removed the case to federal court. She proposed various bases for removal, most of which she has abandoned on appeal. The only ground for removal she continues to stand behind is that federal jurisdiction existed under 28 U.S.C. § 1349 because the “real party in interest” is Freddie Mac, which is majority-owned by the federal government. (But that argument is peculiarly undermined by the notice of removal, which states that “[although Freddie Mac purchased the purported loan obligation, it neither owns nor holds the note and mortgage, which is the subject of these proceedings.”) Nora says that she learned of Freddie Mac’s interest in this case when her internet research disclosed that Freddie Mac had purchased the mortgage. Within 30 days of “discovering” Freddie Mac’s role, she removed the case. See 28 U.S.C. § 1446(b)(3). PNC moved to remand the case and sought an award of fees and costs because none of the purported grounds for removal was objectively reasonable. See id. § 1447(c). Nora responded that removal was appropriate because PNC had submitted “sham pleadings” in the state court to “fraudulently conceal” Freddie Mac’s role; she did not respond to PNC’s request for fees and costs. Finding no possible ground for removal, the district court remanded the case and awarded fees and costs to PNC. The court explained that" }, { "docid": "20528325", "title": "", "text": "Accordingly, we dismiss the appeal as to Nora. On the merits of Spencer’s appeal, Nora argues that it was reasonable to remove the case under 28 U.S.C. § 1349 because Freddie Mac was the “real party in interest,” so the district court should not have awarded fees and costs. This argument is baseless. As the court correctly concluded, Freddie Mac is not a party, so § 1349 — which refers to actions “by or against” a congressionally created corporation — does not create federal jurisdiction. Nora nonetheless insists that because Freddie Mac purchased the mortgage, it is the “real party in interest” and PNC’s suing in its own name was fraudulent. She offers no legal authority supporting this proposition, which is wrong for several reasons. First, since PNC is the holder of the mortgage note, PNC is entitled to enforce it. See Wis. Stat. § 403.301; PNC Bank, N.A. v. Bierbrauer, 346 Wis.2d 1, 827 N.W.2d 124, 126-27 (Wis.Ct.App.2012). Second, the Supreme Court has rejected the theory that the federal courts, when assessing their jurisdiction, should look beyond the pleadings to discover unnamed real parties in interest. See Lincoln Property Co. v. Roche, 546 U.S. 81, 92-93, 126 S.Ct. 606, 163 L.Ed.2d 415 (2005). Third, Nora effectively conceded that Freddie Mac could not have been a proper party when she acknowledged in the notice of removal that “Freddie Mac purchased the purported loan obligation [but] neither owns nor holds the note and mortgage.” Because there was no objectively reasonable basis for federal jurisdiction or for removal, the district court did not abuse its discretion in awarding fees and costs to PNC. See 28 U.S.C. § 1447(c); Martin v. Franklin Capital Corp., 546 U.S. 132, 139-41, 126 S.Ct. 704, 163 L.Ed.2d 547 (2005); Tenner v. Zurek, 168 F.3d 328, 329-30 (7th Cir.1999). Nora also raises a host of weak arguments about what she perceives as procedural problems with the district court’s award. She asserts, for example, that “a due process issue arises” when a party requests fees and costs in a motion to remand, rather than in a separate motion. But" }, { "docid": "18509853", "title": "", "text": "of Substantial Consummation nor a Final Decree. . The Court reaches this conclusion in light of the particular facts before it and need not comment on the generally imprudent and precarious posture of a substantially consummated Chapter 11 case that has never been closed upon a final decree. . The Court notes that Freddie Mac’s security interest in rents and other monies flowing from the leases does not appear to include income from the on-premises laundry machine[s]. Freddie Mac Exhibits R7 & R8. However, neither party addressed this issue so the Court will not disturb the within computation, secure in the knowledge that a $3,000.00 to $5,000.00 discrepancy is not significant in the overall calculations, nor should it be. . The Court treats the Debtor’s stipulating into evidence the Abstract of Title, Freddie Mac Exhibits Rll & R12, as resolving the inconsistency between the characterization of Dr. Elstein as an equity security holder in the Debtor’s Petition and then as a mortgagee in the Abstract in favor of the latter. Compare Freddie Mac Exhibit R15 with Freddie Mac Exhibits Rll, R12. . While cognizant of the parties’ stipulation at the start of the hearing on December 5, 1988 with regard to litigating the pre- and post-petition legal fees and costs in the foreclosure as estimated in Freddie Mac’s proof of claim, Freddie Mac Exhibit R16, if it became pertinent to the Court’s determination herein, the Court is of the opinion that said fees and costs are not so out of line that Freddie Mac would not be able to establish the amounts if put to the test. In addition, Freddie Mac’s $47,000.00 estimate is $2,176.72 more than the remaining \"equity”, thereby giving that estimate some play for unreasonableness. The Court also notes that the post-petition interest is accruing monthly over $1,200.00 in excess of the average net monthly rents collected by Bright. Freddie Mac Exhibits R16 & R22. Consequently, it could well be said that as of February 13, 1989, the Debtor’s \"equity in Yorkshire Manor was some $4,800.00 less, to wit, $40,000.00, from which Freddie Mac’s pre- and post-petition" }, { "docid": "3282194", "title": "", "text": "be to her son, “contingent upon Buyer obtaining financing at an interest rate not to exceed 5% per annum.” Offer to Purchase, Docket # 29, Exhibit A. The Court conducted an evidentiary hearing on May 11, 2015, and the parties submitted written argument. II. Background The relevant facts have been recited numerous times by this Court and other courts and will not be recited in detail here. A summary of the facts is sufficient to address the issues presented by the motion for relief from stay and the proffered adequate protection. Spencer borrowed $209,160 to purchase a home in 2005. She signed a Note for, that amount. The Note was secured by a mortgage on the home. No payments have been received and applied to the Note since late 2008. While the parties dispute the facts surrounding the failure of payments in 2008, Spencer concedes she has not tendered or made any payment in years. A foreclosure was commenced in April 2009 by FNMC, a division of National City Bank of Indiana n/k/a National City Bank. An amended foreclosure complaint was filed naming PNC as the plaintiff. It is undisputed that Federal Home Loan Mortgage Corporation (“Freddie Mac”) owns a beneficial interest in the Note and Mortgage and PNC is the servicer. In 2010, Spencer filed a Chapter 7 bankruptcy case. PNC moved for and was granted relief from stay. Spencer received a discharge of her personal liability on the Note. The foreclosure action continued. PNC was formally substituted as the plaintiff. PNC filed a motion for summary judgment. Spencer then began advancing the argument that is the theme of various theories in subsequent proceedings: PNC is not the real party in interest, Freddie Mac is the “true owner” of her Note, and PNC has no standing to enforce the Mortgage. She filed a motion for contempt in the bankruptcy court in 2012, claiming PNC and others continued in personam collection actions in the foreclosure proceeding in violation of the discharge order. That motion was denied. She then filed a motion to reopen the Chapter 7 ease. The bankruptcy court" }, { "docid": "20528324", "title": "", "text": "and $4,375 in attorney’s fees. II. We begin by discussing whether this court has jurisdiction over Nora’s appeal. We have jurisdiction over an appeal from a monetary award for an unreasonable removal, see 28 U.S.C. § 1447(c), even though we lack jurisdiction to review the remand itself, see id. § 1447(d); Garbie v. DaimlerChrysler Corp., 211 F.3d 407, 409-10 (7th Cir.2000). But we lack jurisdiction over Nora’s appeal because she has no standing personally to appeal; liability for the award rests only with Spencer, not her attorney. See Seymour v. Hug, 485 F.3d 926, 929 (7th Cir.2007). Nora contends in her jurisdictional memorandum that Judge Crabb “engaged in a campaign of libel against Attorney Nora which will be addressed to the appropriate fora,” but a judge’s criticism of a lawyer — absent some monetary sanction — does not permit a lawyer to take an appeal. See id. When pressed on this issue at oral argument, Nora suggested that she would “withdraw [her] name as co-appellant,” but she has not filed any motion to that effect. Accordingly, we dismiss the appeal as to Nora. On the merits of Spencer’s appeal, Nora argues that it was reasonable to remove the case under 28 U.S.C. § 1349 because Freddie Mac was the “real party in interest,” so the district court should not have awarded fees and costs. This argument is baseless. As the court correctly concluded, Freddie Mac is not a party, so § 1349 — which refers to actions “by or against” a congressionally created corporation — does not create federal jurisdiction. Nora nonetheless insists that because Freddie Mac purchased the mortgage, it is the “real party in interest” and PNC’s suing in its own name was fraudulent. She offers no legal authority supporting this proposition, which is wrong for several reasons. First, since PNC is the holder of the mortgage note, PNC is entitled to enforce it. See Wis. Stat. § 403.301; PNC Bank, N.A. v. Bierbrauer, 346 Wis.2d 1, 827 N.W.2d 124, 126-27 (Wis.Ct.App.2012). Second, the Supreme Court has rejected the theory that the federal courts, when assessing their jurisdiction," } ]

[ { "docid": "23527254", "title": "", "text": "command over the property taxed — the actual benefit for which the tax is paid.” Corliss v. Bowers, 281 U.S. 376, 378, 50 S.Ct. 336, 74 L.Ed. 916. It is the command over property and the enjoyment of its economic benefit which are recognized as a proper basis for taxation. Burnet v. Wells, 289 U.S. 670, 53 S.Ct. 761, 77 L.Ed. 1439; Helvering v. Horst, 311 U.S. 112, 61 S.Ct. 144, 85 L.Ed. 75. It is not necessary to go into the legality of the so-called distribution by appellant’s wholly owned corporation to himself, or his extraction of the cash from the corporation, as it clearly appears that through the fraudulent transactions in which he was engaged, he received the cash over which he had complete control, which he took as his own, treated as his own, which resulted in economic value to him, and for which he probably never would have been required to account, had it not been for the discovery of the fraud on the revenue which he was perpetrating. Briggs v. United States, 4 Cir., 214 F.2d 699. Nor was it necessary to prove that the cash appellant got from his corporation was taxable income of the corporation, as contended by appellant, under his theory that nothing he received was taxable unless it was taxable income of the corporation. If appellant had been doing business as an individual and retained a million dollars of receipts from his customers, as his own, using the cash for personal investments and expenditures, and concealing from the government, through false bookkeeping entries and fraudulent income tax returns, the fact that he had received and kept as his personal property such a huge sum, there is no doubt that he would be accountable for that money as income which is required to be reflected in his income tax return. What appellant did was to take funds, individually, from his wholly owned corporation, which he completely dominated and controlled. In other words, he merely took the funds from himself under a different name. Kann v. Commissioner, 3 Cir., 210 F.2d 247. He" } ]

[ { "docid": "23334755", "title": "", "text": "intention of the parties which was exactly the same instruction which the lower court gave to the jury and they determined, by their verdict, that they were borrowings. This view is pointed up in Davis v. United States, 6 Cir., 226 F.2d 331, 335, where it is stated: “It is not necessary to go into the legality of the so-called distribution by appellant’s wholly owned corporation to himself, or his extraction of the cash from the corporation, as it clearly appears that through the fraudulent transactions in which he was engaged, he received the cash over which he had complete control, which he took as his own, treated as his own, which resulted in economic value to him, and for which he probably never would have been required to account, had it not been for.the discovery of the fraud on the revenue which he was perpetrating. Briggs v. United States, 4 Cir., 214 F.2d 699. * * * Appellant makes much of the fact that the government has not fixed a label of some kind on the funds that he took from his corporation. It is not necessary to describe them as additional salary, illicit bonuses, or commissions, or anything more than wrongful diversions, since, as above mentioned, substance controls over form, and taxation is concerned with the actual command over the property taxed.” To the same effect is Cohen v. United States, 9 Cir., 297 F.2d 760, 768. Accordingly, we see no error in the court’s failure to instruct the jury concerning limitations on the taxability of coi'porate distributions. The next ground alleged as error is that the verdict on counts two and three and on counts four, five, seven, eight and nine are repugnant to one another and the evidence could not support the verdicts on the former and the latter. The contention of the appellant is that “ * * * the money coming from the suppressed sales was either income to the corporation or to Goldberg, but could not be income to both.” The argument runs that what appellant did constituted embezzlement and under the law" }, { "docid": "11936119", "title": "", "text": "report the withdrawals as income, but they were carried on the books of his corporation as accounts receivable. The finding of the board is therefore supported by substantial evidence. “Such a determination of fact is not to be set aside by a court even if upon examination of the evidence it might draw a different inference.” Palmer v. Helvering, Commissioner, 58 S.Ct. 67, 70, 82 L.Ed. —, decided November 8, 1937; Elmhurst Cemetery Company v. Commissioner, 300 U.S. 37, 40, 57 S.Ct. 324, 325, 81 L.Ed. 491; Helvering v. Rankin, 295 U.S. 123, 131, 132, 55 S.Ct. 732, 736, 79 L.Ed. 1343. The significant fact in the present case was the intent of the petitioner when he took the money, whether he took it for permanent use in lieu of dividends or whether he was then only borrowing. The intent must be inferred from the conduct of the petitioner, since there is no other evidence of it. The burden of proof was on him to show that the Commissioner was wrong. Fitch v. Helvering, 8 Cir., 70 F.2d 583; Cohen v. Commissioner, supra; J. & O. Altschul Tobacco Co. v. Commissioner, 5 Cir., 42 F.2d 609; cf. Reinecke v. Spalding, 280 U.S. 227, 50 S.Ct. 96, 74 L.Ed. 385. We can find in the stipulation no facts from which we can say that the Board of Tax Appeals should, as a matter of law, have inferred that the petitioner intended his withdrawals to be permanent at the time he made them. It is important that courts do not go too far in relieving the taxpayer of his burden of proof in cases such as this, where both the facts and the evidence are peculiarly subject to the control and knowledge of the taxpayer. If individuals should be allowed to take advantage of the government’s inability to recognize their unexpressed intentions the way would be open for one to say in retrospect when his income accrued, according to his own advantage. ’ * The decision of the Board of Tax Appeals is affirmed." }, { "docid": "12988929", "title": "", "text": "responsibility we must consider not only direct testimony of positive facts but also all inferences which the trial court might reasonably have drawn from those facts, Ah Ming Cheng v. United States, 5 Cir., 1962, 300 F.2d 202. The circumstances proven must lead to the conclusion with reasonable certainty and must be of such probative force as to create basis for legal inference and not mere suspicion, Wesson v. United States, 8 Cir., 1949, 172 F.2d 931. In the absence of direct proof, the circumstances relied upon to sustain a conviction must not only be consistent with guilt but inconsistent with every reasonable hypothesis of innocence, Barnes v. United States, 5 Cir., 1965, 341 F.2d 189. Upon mature reflection, without recapitulating in detail that which has already been stated of the circumstances of this case, we are inexorably compelled to the view that there was substantial evidence to support the findings of the trial court, especially when we consider that he observed the demeanor of the witnesses and expressly stated that he did not believe the testimony of the appellant that the money was paid to Rosenbaum and a true receipt obtained therefor. In general, this case is quite analogous to that of Woodner, supra, in which a conviction was affirmed in the Second Circuit, but the circumstances go much further in such particulars as: (1) the desire of the appellant, expressed from the beginning, to collect $60,000 of this commission in currency; (2) the refusal of his messenger to give a receipt for the money; (3) appellant’s expressed concern over the presence of witnesses at the delivery of the cash; (4) his inquiry as to how the payments were reflected on the books of the borrower; (5) his statement that this could not be allowed to stand; (6) his statement that such disbursements should be handled by making small withdrawals by checks and depositing the proceeds in a safe deposit box; (7) his efforts in 1961 to obtain a back-dated contract in writing which would support his position in the matter; (8) his inability to explain why he wanted" }, { "docid": "15226569", "title": "", "text": "of repayment as to time or amount, and the interest to be paid was not clearly set forth. (3) The petitioner’s advances to and expenditures for the corporation were necessary to meet its daily obligations. (4) The informality of several arrangements between the parties. (5) The repayments of the corporation were made when petitioner needed money rather than when it could afford to pay. No one of the foregoing circumstances was considered by the Tax Court as alone being decisive, but the total weight of them gave substantial support to its determination. Although the intention of the petitioner is weighed heavily in determining whether the advances are loans, Chism’s Estate v. Commissioner of Internal Revenue, 322 F.2d 956 (9th Cir. 1963), the intention of the petitioner “can appropriately be viewed with some diffidence unless supported by other facts which bring the transaction much closer to a normal arms-length loan.” Berthold v. Commissioner, supra. The petitioner’s contention is that in making these advances, his intention was to create a debt relationship and that the corporate resolution creating an open account for him fulfilled such intention without any need for added formality. This Court has recently stated that important proofs of such intent are the arrangements concerning the normal security, interest and repayment or efforts to secure the same. Berthold v. Commissioner, supra. In reviewing the entire record, we find that the petitioner’s evidence is lacking in regard to these three arrangements and that his proof has failed to overcome the presumption of the validity of the Commissioner’s determination respecting his alleged income tax deficiency. Bishop v. Commissioner of Internal Revenue, 342 F.2d 757, 759 (6th Cir. 1965); Hallabrin v. Commissioner of Internal Revenue, 325 F.2d 298, 305 (6th Cir. 1963). We accordingly hold that the Tax Court was not clearly erroneous in concluding that the advances to and expenditures for the corporation by Donisi were in the nature of equity, with the result that the corporate repayments to Donisi in 1960 constituted dividends. The judgment of the Tax Court is affirmed. . Janet Donisi is a party to the proceeding herein" }, { "docid": "23334753", "title": "", "text": "to be remembered, however, that while the court granted the appellant’s motion for arrest of judgment as to count one, it was after the verdict and has no bearing on the merits here discussed. The next error alleged by the appellant is that the trial judge failed to instruct the jury as to the limitations on the taxability of corporate distributions. The trial judge, during the course of his charge, had adverted to the inclusion of dividends in gross income, but later withdrew what had been said concerning it and told the jury to totally disregard it and that, in determining the ultimate taxable income, there was no necessity for the jury to consider the definition of dividends or the exceptions thereto. Here again, counsel repetitively urged that the credits received by the appellant when his Loan and Exchange Accounts were credited came to him as a corporate distribution in the nature of a dividend and that something necessarily had to be said with respect to the limitations of these distributions imposed under the Internal Revenue Code, 26 U.S.C. § 316. It can only be repeated again that the Government’s case, the indictment and the evidence introduced in proof of the charges had nothing to do with dividends, but that the income was only realizable to appellant when his indebtedness to the corporations, as shown in his Loans and Exchange Accounts, were repaid. It is contended by the appellant that some authorities, in civil cases, denominate withdrawals as loans, and treat them in fact as dividends which constitute taxable income to the recipient at the time of the withdrawal, strongly relying on Spheeries v. Commissioner, 7 Cir., 284 F.2d 928 and Roschuni v. Commissioner, 5 Cir., 271 F.2d 267. The appellant can find no support in these cases, for his contention merely buttresses the position of the Government. In these there were findings of fact that the withdrawals were not borrowings, but dividends. However, in Spheeries v. Commissioner, supra, 284 F.2d at p. 931, the court specifically stated that it used as a guide, in its determination thereof, the subjective" }, { "docid": "23334754", "title": "", "text": "Revenue Code, 26 U.S.C. § 316. It can only be repeated again that the Government’s case, the indictment and the evidence introduced in proof of the charges had nothing to do with dividends, but that the income was only realizable to appellant when his indebtedness to the corporations, as shown in his Loans and Exchange Accounts, were repaid. It is contended by the appellant that some authorities, in civil cases, denominate withdrawals as loans, and treat them in fact as dividends which constitute taxable income to the recipient at the time of the withdrawal, strongly relying on Spheeries v. Commissioner, 7 Cir., 284 F.2d 928 and Roschuni v. Commissioner, 5 Cir., 271 F.2d 267. The appellant can find no support in these cases, for his contention merely buttresses the position of the Government. In these there were findings of fact that the withdrawals were not borrowings, but dividends. However, in Spheeries v. Commissioner, supra, 284 F.2d at p. 931, the court specifically stated that it used as a guide, in its determination thereof, the subjective intention of the parties which was exactly the same instruction which the lower court gave to the jury and they determined, by their verdict, that they were borrowings. This view is pointed up in Davis v. United States, 6 Cir., 226 F.2d 331, 335, where it is stated: “It is not necessary to go into the legality of the so-called distribution by appellant’s wholly owned corporation to himself, or his extraction of the cash from the corporation, as it clearly appears that through the fraudulent transactions in which he was engaged, he received the cash over which he had complete control, which he took as his own, treated as his own, which resulted in economic value to him, and for which he probably never would have been required to account, had it not been for.the discovery of the fraud on the revenue which he was perpetrating. Briggs v. United States, 4 Cir., 214 F.2d 699. * * * Appellant makes much of the fact that the government has not fixed a label of some kind" }, { "docid": "17309276", "title": "", "text": "v. Loew’s Inc., 7 Cir., 1951, 190 F.2d 561. Further, the status of United Artists as a stockholder was in doubt, following notice given in 1954 by Towne demanding that United Artists return its Class B stock because of the latter’s alleged breach of contract. After notice by Towne to United Artists to return the Class B stock, the latter filed suit in 1954 against Towne charging that Spheeris and other officers had mismanaged the company and complaining of loans and advances made by Towne to Spheeris and other family stockholders. In answer to that complaint, filed prior to the instant proceedings, Spheeris and others admitted receiving loans fjrom Towne. In addition there was testimony before the Tax Court by Spheeris and S. J. Papas that the payments in question' were at all times considered by them as loans which were intended to be repaid. From 1952 to 1956, Towne had substantial earned surplus, and the withdrawals in question were taken from earnings and profits. After considering all the above facts and weighing the credibility of Spheeris and his witnesses in such circumstances, the Tax Court made its ultimate finding that the payments in question were not intended to be repaid as loans, but rather were dividends within the scope of the relevant statutes. In reviewing the Tax Court’s determination that the payments in question were taxable dividends, the problem before us involves “mixed questions of law and fact.” We may review the legal effect of the facts found by the trier of fact. Ortmayer v. C. I. R., 7 Cir., 1959, 265 F.2d 848, 854. The primary facts here are not in dispute, and we are not called upon to determine whether they find sufficient support in the record or are clearly erroneous as was the situation in Zeddies v. C. I. R., 7 Cir., 1959, 264 F.2d 120, 126. In cases involving payments to stockholders, subsequent to advances to their corporation, where it is disputed whether such advances were loans or capital contributions, we have held that the subjective intention of the parties is a major factor in" }, { "docid": "17309277", "title": "", "text": "of Spheeris and his witnesses in such circumstances, the Tax Court made its ultimate finding that the payments in question were not intended to be repaid as loans, but rather were dividends within the scope of the relevant statutes. In reviewing the Tax Court’s determination that the payments in question were taxable dividends, the problem before us involves “mixed questions of law and fact.” We may review the legal effect of the facts found by the trier of fact. Ortmayer v. C. I. R., 7 Cir., 1959, 265 F.2d 848, 854. The primary facts here are not in dispute, and we are not called upon to determine whether they find sufficient support in the record or are clearly erroneous as was the situation in Zeddies v. C. I. R., 7 Cir., 1959, 264 F.2d 120, 126. In cases involving payments to stockholders, subsequent to advances to their corporation, where it is disputed whether such advances were loans or capital contributions, we have held that the subjective intention of the parties is a major factor in determining the legal relationship for tax purposes. Jennings v. United States, 7 Cir., 1959, 272 F.2d 842. Ortmayer v. C. I. R., supra. Such intention may be ascertained from the testimony of witnesses and from objective manifestations of intent. No single indicium or criterion is conclusive. Arlington Park Jockey Club v. Sauber, 7 Cir., 1959, 262 F.2d 902. Similarly here, the legal relationship between the closely-held corporation and its stockholders as to these particular payments must be established by a consideration of all relevant factors indicating the true intent of the parties. After examination of the relevant facts, we agree with the Tax Court that the legal effect of the payments in question was to provide dividends to Spheeris. Numerous objective facts support this conclusion: none of the withdrawals was evidenced by promissory notes or secured by collateral; no interest was charged or paid; no dates for repayment were set and the single repayment came after the instant proceedings were initiated; no dividends were declared,- but withdrawals were taken from the closely-controlled corporation as Spheeris" }, { "docid": "8965541", "title": "", "text": "but were taxable distributions under Section 316 of the Internal Revenue Code. 26 U.S.C. § 316. The court found that Jaques failed to prove that the withdrawals were intended to be loans because he did not offer any “objective manifestations of contemporaneous intent to repay” other than his “own unsupported testimony.” Other factors which the tax court relied upon in reaching its conclusion were: (1) the withdrawals were not represented by interest-bearing notes; (2) Jaques did not periodically repay the principal or interest; (3) the withdrawals were unsecured and were not subject to a fixed repayment schedule; (4) the withdrawals were in proportion to his holdings as the sole shareholder; and (5) the corporation had substantial current earnings but did not pay any dividends during this period. Jaques argues that the tax court erred in finding that the withdrawals in question were constructive dividends and not loans. We may not disturb the tax court’s findings of fact unless they are clearly erroneous. Commissioner v. Duberstein, 363 U.S. 278, 80 S.Ct. 1190, 4 L.Ed.2d 1218 (1960); see also Rose v. Commissioner, 868 F.2d 851, 853 (6th Cir.1989) (citing cases). There is some dispute as to whether the loan verses dividend question is one of fact or law. See, e.g., Busch v. Commissioner, 728 F.2d 945 (7th Cir.1984) (whether shareholder’s withdrawals from corporation constituted loans or dividends is purely a question of fact); Dolese v. United States, 605 F.2d 1146 (10th Cir.1979) (question of debt or dividend normally a question of fact, but when there is no dispute in the evidence, whether the facts add up to debt or equity is a question of law), cert. denied, 445 U.S. 961, 100 S.Ct. 1647, 64 L.Ed.2d 236 (1980); Alterman Foods, Inc. v. United States, 505 F.2d 873 (5th Cir.1974) (whether operative facts add up to dividend or loan is a question of law). This court has held on a number of occasions that whether a payment is a loan or a dividend is a factual question. Dietrick v. Commissioner, 881 F.2d 336 (6th Cir.), cert. denied, — U.S. -, 110 S.Ct. 565, 107" }, { "docid": "2132209", "title": "", "text": "a party to a lawsuit, cannot expect the Tax Court to accept his personal testimony as the absolute fact. The statements of an interested party as to his own intentions are not necessarily conclusive, even when they are uncontradicted. Lerch v. Commissioner, supra at 631. See also Snyder v. Commissioner, 34 T.C. 400, 405-06 (1960), aff'd, 288 F.2d 36 (7th Cir.1961); and Busch v. Commissioner, supra, 728 F.2d at 948. His own explanation of why the loan document is the way it is and why therefore a bona fide loan exists is plausible, but it is not enough. In an effort to detect those persons who attempt to evade taxes, we have objective standards which distinguish the true loan and the false one. See Busch v. Commissioner, supra, and Spheeris v. Commissioner, 284 F.2d 928, 931 (7th Cir.1960). Given those standards, the Tax Court’s conclusion that the transaction was a prepayment and not a bona fide loan is not clearly erroneous. III. For the foregoing reasons, the decision of the Tax Court is Affirmed. . At oral argument we learned that the estate was finally closed in mid-1990." }, { "docid": "4021370", "title": "", "text": "cases. Bodoglau v. Commissioner, 7 Cir., 230 F.2d 336, 339. Another method is by using as a primary guide the amount of taxpayer’s expenditures during the year following each of the taxable years and substantiating the accuracy of the compilations by use of the net worth method. Bodoglau v. Commissioner of Internal Revenue, 7 Cir., 230 F.2d 336. This was the method used in the case at bar. There is substantial evidence in this record to sustain the Tax Court’s findings on the amount of taxpayer’s income in the taxable years. It is clear the taxpayer has not met the burden to show that such findings are clearly erroneous. We have been somewhat concerned with reference to the finding of fraud during the years 1942 through 1945. On this question there is no presumption of correctness attaching to the Commissioner’s findings. The Commissioner has the burden of proving fraud by clear and convincing evidence. Goldberg v. Commissioner of Internal Revenue, 5 Cir., 239 F.2d 316, 320. In making the finding that in each of the years 1942 through 1945 at least part of the deficiency was due to fraud with intent to evade tax, the Tax Court relied, in part, on the failure by taxpayer to report the receipt of certain dividends in the year 1944. The amounts of these payments were $675.00, $300.00, $100.00 and $5.00, respectively. Also for failing to report a capital gain of $416.19 on the sale of some stock. The finding might just as well have been that such omissions were due to negligence, for in the same period taxpayer reported the receipt of a $1,200.00, dividend which, apparently, was tax exempt. However, it was the function of the Tax Court, and not ours, to make the finding of whether at least part of the deficiency for 1942 through 1945 was due to fraud with intent to evade tax. Such a finding is one of fact, and the Tax Court’s determination with respect therewith must stand if supported by substantial evidence. Helvering v. Kehoe, 309 U.S. 277, 60 S.Ct. 549, 84 L.Ed. 751; Boehm v." }, { "docid": "21837536", "title": "", "text": "§ 115(b) provides: “For the purposes of this act every distribution is made out of earnings or profits to the extent thereof, and from the most recently accumulated earnings or profits.” Even if it should be assumed in petitioners’ favor that every shareholder, in withdrawing funds from his credit balance, had drawn against his dividends to the extent thereof before drawing against his credits from other sources, still the total of undistributed dividends transferred to paid-in surplus would have amounted to more than the $18,992.12 the taxability of which is here in question. Section 115(b) requires the assumption that the dividend was paid from the profits rather than from some other element of the paid-in surplus account. The Tax Court in its opinion stated that petitioners had not overcome that statutory presumption. They not only have not but could not overcome it. The statutory presumption is conclusive. Leland v. Commissioner of Internal Revenue, 1 Cir., 50 F.2d 523, 524, certiorari denied 284 U.S. 656, 52 S.Ct. 34, 76 L.Ed. 557. The Tax Court also stated in its opinion that petitioners had failed to overcome the presumption that respondent’s determination of their tax liability was correct. That presumption disappears when, as here, evidence is introduced which would he sufficient to sustain a contrary finding. Wiget v. Becker, 8 Cir., 84 F.2d 706, 707, 708; Co-operative Publishing Co. v. Commissioner of Internal Revenue, 9 Cir., 115 F.2d 1017, 1021, 1022; cf, New York Life Ins. Co. v. Gamer, 303 U.S. 161, 171, 58 S. Ct. 500, 82 L.Ed. 726, 114 A.L.R. 1218. If it appeared that the Tax Court had relied upon the presumption to sustain its finding it would be necessary for us to reverse the case. However, the Tax Court expressly enumerated the factors which led it to conclude that the dividends were not constructively received by the shareholders. Those factors were “the relationship of the stockholders, the way in which the business was conducted, and the cash position of the business.” It is apparent that the Tax Court, in stating that petitioners had not overcome the presumption in favor" }, { "docid": "14765164", "title": "", "text": "Tollefsen Manufacturing.” 52 T.C. 671, 678. Having made this factual finding, the court concluded that the amounts “were in substance distributions to Tollefsen Bros, from its subsidiary Tollefsen Manufacturing, with a resulting constructive dividend to petitioners, the sole shareholders of Tollef-sen Bros.” 52 T.C. 671, 681. It is an often repeated principle of tax law that the form into which a taxpayer casts a transaction will not obliterate the tax consequences that emerge from the substance of the transaction. This principle has been applied to situations wherein shareholders of a closely held corporation have made withdrawals in the form of “loans” which have been treated as a “distribution of property * * * made by a corpora tion to a shareholder with respect to its stock * * * ” for the purposes of section 301 of the Internal Revenue Code. E.g., Regensburg v. Commissioner of Internal Revenue, 144 F.2d 41 (2d Cir.), cert. denied, 323 U.S. 783, 65 S.Ct. 272, 89 L.Ed. 625 (1944); Oyster Shell Prods. Corp. v. Commissioner of Internal Revenue, 313 F.2d 449 (2d Cir. 1963). The controlling question in making such a determination, as recognized by the Tax Court, is whether there was an intent to make a loan, i. e., whether repayment was in fact contemplated by the parties. The courts have considered many factors to find outward manifestations of such an intent. See, Comment, Disguised Dividends: A Comprehensive Survey, 3 U.C.L.A.L.Rev. 207, 222-28 (1956); Werner, Stockholder Withdrawals — Loans or Dividends? 10 Tax L. Rev. 569 (1955). The determination of whether the withdrawal is a loan or a dividend is a question of fact which a circuit court of appeals cannot alter unless the determination is not supported by substantial evidence. Commissioner v. Scottish American Inv. Co., 323 U.S. 119, 123-124, 65 S.Ct. 169, 89 L.Ed. 113 (1944); Regensburg v. Commissioner of Internal Revenue, supra; Sala v. Commissioner of Internal Revenue, 146 F.2d 228 (2d Cir. 1944); cf. United States v. Stanton, 287 F.2d 876 (2d Cir. 1961) (review of district court). In the case at bar we cannot say that the Tax" }, { "docid": "8965543", "title": "", "text": "L.Ed.2d 559 (1989); Estate of DeNiro v. Commissioner, 746 F.2d 327 (6th Cir.1984); Wilkof v. Commissioner, 636 F.2d 1139 (6th Cir.1981) (per curiam); Berthold v. Commissioner, 404 F.2d 119 (6th Cir.1968). Thus, we review the tax court’s determination that the withdrawals made by Jaques were constructive dividends and not loans only for clear error. Whether the withdrawals made by Jaques from his professional corporation are treated for tax purposes as loans or dividends turns on the intention of the parties at the time the withdrawals were made. Dietrick, 881 F.2d at 340; Livernois Trust v. Commissioner, 433 F.2d 879 (6th Cir.1970); Berthold, 404 F.2d at 122. To determine whether the taxpayer intended to repay the withdrawals, courts have looked to a number of objective factors. See Alterman, 505 F.2d at 876 n. 6 (listing factors). The taxpayer’s testimony that he intended to repay is one factor which is considered, but such self-serving testimony “can appropriately be viewed with some diffidence unless supported by other facts which bring the transaction much closer to a normal arms-length loan.” Berthold, 404 F.2d at 122; Tyler v. Tomlinson, 414 F.2d 844, 850 (5th Cir.1969) (“We therefore look not to mere labels or to the self-serving declarations of the parties, but to more reliable criteria of the circumstances surrounding the transaction.”). Jaques argues that the tax court erroneously relied upon the fact that his corporation did not pay any dividends during the time in issue to support its finding that the withdrawals were not loans. Jaques argues that throughout this period his corporation was prohibited under Michigan law from declaring a dividend. The applicable statute states, “[dividends may be declared or paid and other distributions may be made out of surplus only.” Mich. Comp.Laws § 450.1351(2). The “surplus” referred to in § 450.1351 can be either earned surplus or capital surplus. Earned surplus is defined as “the portion of the surplus of a corporation that represents the accumulated net earnings, gains and profits, after deduction of all losses, that has not been distributed to shareholders as dividends or transferred to stated capital or capital surplus_”" }, { "docid": "14765165", "title": "", "text": "F.2d 449 (2d Cir. 1963). The controlling question in making such a determination, as recognized by the Tax Court, is whether there was an intent to make a loan, i. e., whether repayment was in fact contemplated by the parties. The courts have considered many factors to find outward manifestations of such an intent. See, Comment, Disguised Dividends: A Comprehensive Survey, 3 U.C.L.A.L.Rev. 207, 222-28 (1956); Werner, Stockholder Withdrawals — Loans or Dividends? 10 Tax L. Rev. 569 (1955). The determination of whether the withdrawal is a loan or a dividend is a question of fact which a circuit court of appeals cannot alter unless the determination is not supported by substantial evidence. Commissioner v. Scottish American Inv. Co., 323 U.S. 119, 123-124, 65 S.Ct. 169, 89 L.Ed. 113 (1944); Regensburg v. Commissioner of Internal Revenue, supra; Sala v. Commissioner of Internal Revenue, 146 F.2d 228 (2d Cir. 1944); cf. United States v. Stanton, 287 F.2d 876 (2d Cir. 1961) (review of district court). In the case at bar we cannot say that the Tax Court lacked a substantial basis in drawing the inference that there was no intent to repay. Support for the determination is found in the facts that there was no formal repayment until after the audit was begun, that the withdrawals were used to acquire personal interests in business ventures and the assignment of claims to Tollefsen Brothers was not intended to discharge the obligation to Tollefsen Manufacturing. In evaluating the demeanor of Tollefsen, whose testimony would be important in establishing the intent of the transaction, the court stated that its confidence was “greatly shook” by his statement that the withdrawals were to carry on the activities of Tollefsen Manufacturing during the period of competition restriction. 52 T. C. 671, 679. Such an explanation was “completely spurious” since Tollefsen himself was equally restrained by the covenant not to compete. Id. The court also rejected explanations offered by Tollefsen that his financial ability to repay the “loans” indicated an intention to do so and that this withdrawal was a part of a pattern of bona fide reciprocal" }, { "docid": "8525816", "title": "", "text": "two categories. In the first are cases such as Commissioner v. Makransky (3 Cir., 1963) 321 F.2d 598; Spheeris v. Commissioner (7 Cir., 1960) 284 F.2d 928; Clark v. Commissioner (9 Cir., 1959) 266 F.2d 698, 700, 711; Regensburg v. Commissioner (2 Cir., 1944) 144 F.2d 41, cert. den. 323 U.S. 783, 65 S.Ct. 272, 89 L.Ed. 625; Wiese v. Commissioner (8 Cir., 1938) 93 F.2d 921. This type of case is not authority here. These are insider cases, so called, where the recipient is a controlling or dominant officer or stockholder of the purported lender corporation, and where the issue to be determined is whether in fact the transaction between the two is a loan transaction. In such cases, circumstances surrounding the transaction are objectively considered, in order to determine the purported borrower’s intention to repay because his intention, because of his influence or control over the corporate lender, is simultaneously evidence and proof of the intention of the purported lender as well. Such factual determination need not be made, here, as the evidence clearly shows that the bankrupt’s lenders considered their separate transactions with the bankrupt as loan transactions, and the bankrupt, as conceded by the Government, considered such transactions as loan transactions, recognizing in each instance an obligation to repay its lender by the issuance and delivery of its promissory notes containing an unconditional promise to repay. In the second category are United States v. Rochelle (5 Cir., 1967) 384 F.2d 748, cert. den. 390 U.S. 946, 88 S.Ct. 1032, 19 L.Ed.2d 1135; In re Home and Mortgage Corp. et al, No. B-189-67, D.C., N.J., 1971, unreported decision of October 4, 1971; and Sidney W. Fairchild v. C. I. R. (1970) T.C. Memo 1970-329, 29 T.C.M. 1505. The Rochelle case, supra, deserves something more than passing consideration inasmuch as the Government principally relies upon its holding to support its Claim No. 6 and because the taxpayer’s activity there is similar, in certain respects, to the activity of bankrupt’s officers, here. In Rochelle, the Government filed a proof of income tax lien claim, based upon an assessment, and" }, { "docid": "2132208", "title": "", "text": "assurance. He asserts that there is no direct connection since the estate would owe fees to the law firm, not him. And while Ruth is the executrix of the estate and sole beneficiary, she does not personally owe the fees and thus they cannot be an “offset” for money personally owed to her. Nevertheless, the Tax Court concluded that this purposeful linkage between the estate fee, the loan, and its stated right to setoff, made the $100,000 “loan” an advance payment by the estate for legal services, permitting Frierdich to have tax-free use of $100,000 for what turned out to be many years. Based on the facts before us, we cannot say that the Tax Court’s conclusion was without foundation in fact or law. Fri-erdich has failed to conclusively demonstrate that his intent was to repay the loan. Frierdich insists that since the IRS cannot disprove any of his claims, his testimony relating to the Promissory Note and his intent to repay must be accepted as true by the Tax Court. We disagree. Frierdich, as a party to a lawsuit, cannot expect the Tax Court to accept his personal testimony as the absolute fact. The statements of an interested party as to his own intentions are not necessarily conclusive, even when they are uncontradicted. Lerch v. Commissioner, supra at 631. See also Snyder v. Commissioner, 34 T.C. 400, 405-06 (1960), aff'd, 288 F.2d 36 (7th Cir.1961); and Busch v. Commissioner, supra, 728 F.2d at 948. His own explanation of why the loan document is the way it is and why therefore a bona fide loan exists is plausible, but it is not enough. In an effort to detect those persons who attempt to evade taxes, we have objective standards which distinguish the true loan and the false one. See Busch v. Commissioner, supra, and Spheeris v. Commissioner, 284 F.2d 928, 931 (7th Cir.1960). Given those standards, the Tax Court’s conclusion that the transaction was a prepayment and not a bona fide loan is not clearly erroneous. III. For the foregoing reasons, the decision of the Tax Court is Affirmed. ." }, { "docid": "8525815", "title": "", "text": "circumstances surrounding the receipt-transaction reflect that the borrower could not repay and, thus, is said not to intend to repay. This the Government contends even though it concedes that bankrupt’s transactions with its lenders or noteholders not only take the form of loan transactions but, also, were considered by both parties to the transactions as a loan. The parties’ intentions, it is argued in substance, are to be ignored because bankrupt’s recognition of the transactions as loans, its agreement to repay, and its payments to its noteholders, all were parts of the scheme: a scheme which by its nature meant the greater its success the less able to repay its borrower became. Thus, the Government says, a loan which is a loan is not a loan for income tax purposes if it constitutes an integral part of a scheme by which a fraud is perpetrated upon the lender, and which, by reason of the success of the scheme, did not permit its borrower to repay. The authorities cited to support such contention fall generally in two categories. In the first are cases such as Commissioner v. Makransky (3 Cir., 1963) 321 F.2d 598; Spheeris v. Commissioner (7 Cir., 1960) 284 F.2d 928; Clark v. Commissioner (9 Cir., 1959) 266 F.2d 698, 700, 711; Regensburg v. Commissioner (2 Cir., 1944) 144 F.2d 41, cert. den. 323 U.S. 783, 65 S.Ct. 272, 89 L.Ed. 625; Wiese v. Commissioner (8 Cir., 1938) 93 F.2d 921. This type of case is not authority here. These are insider cases, so called, where the recipient is a controlling or dominant officer or stockholder of the purported lender corporation, and where the issue to be determined is whether in fact the transaction between the two is a loan transaction. In such cases, circumstances surrounding the transaction are objectively considered, in order to determine the purported borrower’s intention to repay because his intention, because of his influence or control over the corporate lender, is simultaneously evidence and proof of the intention of the purported lender as well. Such factual determination need not be made, here, as the evidence" }, { "docid": "8965542", "title": "", "text": "see also Rose v. Commissioner, 868 F.2d 851, 853 (6th Cir.1989) (citing cases). There is some dispute as to whether the loan verses dividend question is one of fact or law. See, e.g., Busch v. Commissioner, 728 F.2d 945 (7th Cir.1984) (whether shareholder’s withdrawals from corporation constituted loans or dividends is purely a question of fact); Dolese v. United States, 605 F.2d 1146 (10th Cir.1979) (question of debt or dividend normally a question of fact, but when there is no dispute in the evidence, whether the facts add up to debt or equity is a question of law), cert. denied, 445 U.S. 961, 100 S.Ct. 1647, 64 L.Ed.2d 236 (1980); Alterman Foods, Inc. v. United States, 505 F.2d 873 (5th Cir.1974) (whether operative facts add up to dividend or loan is a question of law). This court has held on a number of occasions that whether a payment is a loan or a dividend is a factual question. Dietrick v. Commissioner, 881 F.2d 336 (6th Cir.), cert. denied, — U.S. -, 110 S.Ct. 565, 107 L.Ed.2d 559 (1989); Estate of DeNiro v. Commissioner, 746 F.2d 327 (6th Cir.1984); Wilkof v. Commissioner, 636 F.2d 1139 (6th Cir.1981) (per curiam); Berthold v. Commissioner, 404 F.2d 119 (6th Cir.1968). Thus, we review the tax court’s determination that the withdrawals made by Jaques were constructive dividends and not loans only for clear error. Whether the withdrawals made by Jaques from his professional corporation are treated for tax purposes as loans or dividends turns on the intention of the parties at the time the withdrawals were made. Dietrick, 881 F.2d at 340; Livernois Trust v. Commissioner, 433 F.2d 879 (6th Cir.1970); Berthold, 404 F.2d at 122. To determine whether the taxpayer intended to repay the withdrawals, courts have looked to a number of objective factors. See Alterman, 505 F.2d at 876 n. 6 (listing factors). The taxpayer’s testimony that he intended to repay is one factor which is considered, but such self-serving testimony “can appropriately be viewed with some diffidence unless supported by other facts which bring the transaction much closer to a normal arms-length" }, { "docid": "17309278", "title": "", "text": "determining the legal relationship for tax purposes. Jennings v. United States, 7 Cir., 1959, 272 F.2d 842. Ortmayer v. C. I. R., supra. Such intention may be ascertained from the testimony of witnesses and from objective manifestations of intent. No single indicium or criterion is conclusive. Arlington Park Jockey Club v. Sauber, 7 Cir., 1959, 262 F.2d 902. Similarly here, the legal relationship between the closely-held corporation and its stockholders as to these particular payments must be established by a consideration of all relevant factors indicating the true intent of the parties. After examination of the relevant facts, we agree with the Tax Court that the legal effect of the payments in question was to provide dividends to Spheeris. Numerous objective facts support this conclusion: none of the withdrawals was evidenced by promissory notes or secured by collateral; no interest was charged or paid; no dates for repayment were set and the single repayment came after the instant proceedings were initiated; no dividends were declared,- but withdrawals were taken from the closely-controlled corporation as Spheeris and his family needed funds; and finally, prior loans made to Towne were evidenced by promissory notes and repaid with interest. Petitioners point to several factors they feel indicate a contrary result: the testimony of Spheeris and S. J. Papas, the accounting entries in Towne’s books, the fact that withdrawals were not made in proportion to stockholders’ proprietary interest, and the statement in Towne’s answer in the 1954 mismanagement suit that the payments were loans. However, in the particular circumstances here, such facts cannot overcome the proper inference that Spheeris was taking advantage of his position in a closely-held family corporation to provide himself with disguised dividends with nothing more than an accounting entry that such payments were loans and with no obligation to repay. The decision of the Tax Court is affirmed. Affirmed. . Internal Revenue Code of 1939, Sec. 115. Distributions by Corporations. “(a) Definition of Dividend. — The term ‘dividend’ when used in this chapter * * means any distribution made by a corporation to its shareholders, whether in money or in" } ]

[ { "docid": "7518927", "title": "", "text": "wide-ranging, practical experience in the radio industry. On the other hand, even apart from academic training, Mr. McLaughlin’s experience is limited to working with non-commercial radio equipment in the Air Force and the California Air National Guard, and his civilian experience with the plaintiff. Mr. McLaughlin seemed to be straining at times, and was forced to quibble or disagree with the definitions read to him. For example, he testified that a radio receiver must directly convert radio signals, rather than convert them indirectly as the paging receivers do. There is no support for this assertion in any of the sources cited. It is well established that conclusory statements by a witness which are based solely on his own opinion have little or no probative value. See, e.g., Keer, Maurer Co. v. United States, 46 CCPA 110, 115, C.A.D. 710 (1959); Schott Optical Glass, Inc. v. United States, 82 Cust.Ct. 11, 22-23, C.D. 4783, 468 F.Supp. 1318, 1325, affd, 67 CCPA 32, C.A.D. 1239, 612 F.2d 1283 (1979). Mr. LeBow was forthright and straightforward in his testimony, and his opinions were supported by lexicographic and scientific sources. In short, the defendant did not simply rely on the statutory presumption of correctness. Rather, it has submitted competent, reliable and credible affirmative evidence, which the court has found persuasive, to support the Customs Service’s classification of the imported merchandise. See Schott Optical Glass, Inc., supra, 82 Cust.Ct. at 24, 468 F.Supp. at 1326; Ameliotex, Inc. v. United States, 77 Cust.Ct. 72, 84, C.D. 4673, 426 F.Supp. 556, 564 (1976), affd, 65 CCPA 22, 565 F.2d 674 (1977). The court has considered the plaintiff’s contention that the merchandise should be classified under item 685.70, TSUS, which covers electrical “[b]ells, sirens, indicator panels, burglar and fire alarms, and other sound or visual signalling apparatus,” and finds it without merit. It is axiomatic that merchandise which constitutes more than a particular article is not classifiable as that article. E.g., United States v. Flex Track Equipment Ltd., 59 CCPA 97, 100, C.A.D. 1046, 458 F.2d 148, 151 (1972); E. Green & Son (New York), Inc. v. United" } ]

[ { "docid": "22310473", "title": "", "text": "endurance tests be waived with a corresponding reduction in the contract price. This request was denied in a letter to Maxwell, dated July 1,1959; but the G-overnment indicated therein that consideration would be given to “the 175 h.p. test requirements if requested by you, to the extent that the test be made with an engine coupled directly to the absorber unit and capable of developing 175 h.p. in lieu of vehicle.” In June 1959, Maxwell requested a contract extension. During the month of July of that year, such an extension of time for the testing of the preproduction sample and the submission of the test report was granted. Also, the contract was further modified by mutual agreement of the parties by a provision which permitted approval of the preproduction sample either on the basis of the test report “and/or by visual inspection,” whereas the original contract contemplated examination of the test report only. Throughout June and July 1959, Maxwell attempted to improve its sample dynamometer and to locate a commercial truck capable of delivering the stipulated 175 horsepower at 50 miles per hour, so that a test report taking the speed reading from the power roller could be furnished to the contracting officer. On July 28,1959, Maxwell transported its sample dynamometer to the Cummins Diesel Engines plant (Cummins) in Baltimore, Maryland, where it was coupled to a stationary 275 horsepower engine and tested. Since there could be no slippage problems, the sample dynamometer satisfactorily performed all its tests. Although advance notice of the tests had been given to the Government, none of its representatives were present at the time the tests were given. On July 31,1959, in the presence of several representatives of the Government, Maxwell attempted to perform the prescribed 1-hour endurance test on its sample dynamometer by the use of a White Motor Company 275 horsepower Diesel engine. The test was a failure, the vehicle being unable to transmit to the dynamometer the required 175 horsepower at 50 miles per hour. The speed was measured from the power roller during the test and again the Government representatives in" }, { "docid": "18897890", "title": "", "text": "20 years of experience primarily in commercial buying and selling of consumer electrical products. He testified that audio amplifiers are \"devices that amplify — a low level signal and increase the level to a point where it can drive a transducer — which could be a head-phone or a speaker system.” According to Mr. Miller, the equalizer/boosters are not audio amplifiers because their primary function is not to increase the level of an audio signal, but rather, to modify its shape. Plaintiffs second witness, Mr. Julian Hirsch, has 32 years experience testing and evaluating audio equipment. His reports on the equipment are published in Stereo Review, a consumer oriented hi-fidelity magazine. Mr. Hirsch testified that the primary function of an audio-frequency amplifier is to accept a low-level audio signal and to increase it to a higher level, either voltage level of power level depending on the application. In his opinion, the equalizer/boosters are not audio-amplifiers because they are designed to decrease as well as increase the level of various audio-frequency bands. Mr. Larry Klein, plaintiffs third witness, has been a writer specializing in the audio equipment field for a period of 20 years. He agreed with the testimony of Mr. Hirsch and Mr. Miller that the amplifying aspect of the equalizer/boosters is a '’subsidiary function that enables them to work as frequency equalizers in a system which they could not otherwise work in.” According to plaintiffs witnesses, the equalizer must initially reduce the normal high input level from the radio’s amplifier to a safer level so that the equalizing circuits can operate properly. The amplifier portion of the equalizer/boosters is necessary to increase the output in order to provide adequate listening volume. The plaintiffs witnesses testified that a frequency equalizer does not perform the same function as the tone controls of an amplifier because tone controls effect a broad range of frequency bands while an equalizer has the ability to increase or decrease the level of narrow or limited bands of frequencies. Rather than to rely merely on the statutory presumption of correctness that prevails in customs classification cases, the" }, { "docid": "10623166", "title": "", "text": "the T.D. 66-23(13) guidelines, and therefore could not be used as motor fuel and should have been classified as naphtha under TSUS 475.35. At trial the importer introduced test data obtained from samples taken in the ordinary course of doing business: (1) Just before the tanker left Aruba, and (2) after the merchandise had been unloaded into a storage tank in New Jersey. All these tests indicated that the product fell outside the ranges reported in T.D. 66-23(13). The importer theorized that the sample taken by Customs must have been contaminated. With regard to the 10-percent distillation temperature reported in the importer’s tests, the importer offered uncontroverted testimony that it would be difficult if not impossible to start a motor with a substance with such a high 10-percent distillation temperature. Customs Court Decision The Customs Court held that the presumption of correctness which attached to the Customs Service classification was rebutted. The court based this decision on the failure of the Government to test for each of the properties listed in T.D. 66-23(13). In support of this holding, the court noted that the Government’s own witness, the Government chemist who performed the testing for Customs, admitted that by themselves the four properties tested for were insufficient to support a determination that the imported product was motor fuel. Weighing the various test data before it, the Customs Court found that the preponderance of evidence supported the conclusion that the imported merchandise fell outside of the T.D. 66-23(13) standards for motor fuel. Since the imported product was only a blending agent used in motor fuel, the court held that it was not itself motor fuel. Accordingly, the Customs Court sustained the importer’s claim that the imported merchandise should have been properly classified as naphtha under TSUS 475.35. Issues Raised on Appeal Essentially the Government makes two arguments on appeal. First, it maintains that TSUS schedule 4, part 10, headnote 2(b) should be interpreted as covering within the definition of motor fuel a product which when combined with additives is chiefly used as motor fuel. Since the importer did not introduce evidence that" }, { "docid": "18897891", "title": "", "text": "third witness, has been a writer specializing in the audio equipment field for a period of 20 years. He agreed with the testimony of Mr. Hirsch and Mr. Miller that the amplifying aspect of the equalizer/boosters is a '’subsidiary function that enables them to work as frequency equalizers in a system which they could not otherwise work in.” According to plaintiffs witnesses, the equalizer must initially reduce the normal high input level from the radio’s amplifier to a safer level so that the equalizing circuits can operate properly. The amplifier portion of the equalizer/boosters is necessary to increase the output in order to provide adequate listening volume. The plaintiffs witnesses testified that a frequency equalizer does not perform the same function as the tone controls of an amplifier because tone controls effect a broad range of frequency bands while an equalizer has the ability to increase or decrease the level of narrow or limited bands of frequencies. Rather than to rely merely on the statutory presumption of correctness that prevails in customs classification cases, the defendant submitted credible and reliable evidence to support its contention that the merchandise was properly classified by Customs. See NEC America. Inc. v. United States, 8 CIT 184, 190-91, 596 F. Supp. 466, 471 (1984), aff’d, 760 F.2d 1295 (Fed. Cir. 1985). The government’s expert witness was Mr. Leonard Feldman, an experienced electrical engineer. In addition to a degree in electrical engineering, he has had over 30 years experience in the audio field, and has authored numerous articles and books on audio equipment. Mr. Feldman, who conducts a laboratory in which he evaluates audio and video equipment, testified that the primary purpose of an audio amplifier is \"to increase the level of a signal so that it might be processed or suitable for application to another device — such as a transducer * * *.” He hastened to add, \"but that’s only one kind of audio amplifier,” and later explained that the term amplifier also refers to integrated amplifiers which contain tone controls such as bass and treble in a preamplifier section. Mr. Feldman testified" }, { "docid": "10623165", "title": "", "text": "Penn, Judge. This appeal is from the judgment of the U.S. Customs Court, 81 Cust. Ct. 87, C.D. 4772, 462 F. Supp. 378 (1978), which sustained the importer-appellees’ claim that the imported product, a petroleum derivative, should have been classified as naphtha under item 475.35 of the Tariff Schedules of the United States [TSUS] rather than as motor fuel under TSUS item 475.25. We affirm. Background T.D. 66-23(13) (1966) describes the critical properties of materials chiefly used as motor fuel in internal combustion or other engines in the United States at the time of the importation in question. For aviation gasoline, one of the four categories of motor fuel in T.D. 66-23(13), seven characteristics are listed. Upon importation, the Customs Service tested a sample of the imported merchandise for four of these properties. Finding the imported product to fall within the T.D. 66-23(13) range for aviation gasoline for these four items, Customs classified the imported product as motor fuel under TSUS 475.25. The importer challenged this classification claiming that the imported product fell outside of the T.D. 66-23(13) guidelines, and therefore could not be used as motor fuel and should have been classified as naphtha under TSUS 475.35. At trial the importer introduced test data obtained from samples taken in the ordinary course of doing business: (1) Just before the tanker left Aruba, and (2) after the merchandise had been unloaded into a storage tank in New Jersey. All these tests indicated that the product fell outside the ranges reported in T.D. 66-23(13). The importer theorized that the sample taken by Customs must have been contaminated. With regard to the 10-percent distillation temperature reported in the importer’s tests, the importer offered uncontroverted testimony that it would be difficult if not impossible to start a motor with a substance with such a high 10-percent distillation temperature. Customs Court Decision The Customs Court held that the presumption of correctness which attached to the Customs Service classification was rebutted. The court based this decision on the failure of the Government to test for each of the properties listed in T.D. 66-23(13). In support" }, { "docid": "17948934", "title": "", "text": "samples. — Samples of items, when required, must be submitted within the time specified and at no expense to the Government; if not destroyed by testing, they will be returned at bidder’s request and expense, unless ' otherwise specified in the Schedule. H* H* H< H< ^ Hi Hi Hi ❖ H< INSTRUCTION SHEET #1 Item 1(1),3(1) and4(2) Bid sample must be furnished for test and evaluation. * * * H« H« Hi H« Hi (c) Item being furnished as same must conform in every respect to the item the facility intends supplying to meet the Government requirements. (d) Any sample failing in any portion of tests will be deemed sufficient basis for rejection. 7. Relevant portions of the specifications accompanying the invitation were as follows: I. SCOPE AND CLASSIFICATION 1.1 Scope. — This specification covers low voltage circuit testers used for indicating the electrical functioning of automotive and lite type generators, their control apparatuses, starting motors, and all other devices associ ated in tbe low-voltage circuit. This tester shall be capable of accomplishing the required tests on direct current systems of internal-combustion engines within its scope of a fraction of 1 volt up to a maximum of 100 volts and from 0 ampere to 1000 amperes. * * * >i! * 3. Requirements 3.1 Design and construction. 3.1.1 General. — All parts of the tester shall be new, of the latest approved design, and of the best commercial quality. The parts shall be of such size, material, and strength as to properly sustain the maximum allowable mechanical and electrical loads imposed upon them, with an adequate factor of safety, maximum working efficiency, and minimmn wear during operation. It shall be designed to eliminate all switches and rheostats. The external shunt shall be incorporated in the test lead specified in 3.1.14.2, so as to obviate the necessity for any open shunt connections or shunt switch blades. $ $ $ * * 3.1.5 Materials. — Materials shall be sound, of uniform quality and condition, and shall conform in composition and suitability to the standard practices of reputable manufacturers producing equipment of" }, { "docid": "15484313", "title": "", "text": "appeal as an important element in selling sausage. He said nutritious shank meat has tendons which are difficult to chop out. High protein material with visible spots of gristle were objectionable to customers. The industry shied away from cheap, nourishing, but tough beef cheeks. These were now usable. Fred Raymond Swanson testified to his extensive experience in the sausage business with various firms beginning in the mid 1920’s. He described similarly startling changes in operation following the Schnell discovery. He said that the John Morrell Company experienced savings of up to 4 cents per pound on some items. In developing his machine, Mr. Schnell made some structural changes to gain certain advantages, e. g. the shapes of the propelling knife and the obstructing and circulating surfaces that cooperate with it; the perforate plate and obstructing means. The evidence supports the finding that Schnell satisfied a long felt want and met with prompt commercial success: another point supporting validity. Copeman Laboratories Co. v. General Plastics Corp., 7 Cir., 1945, 149 F.2d 962, 964. In September of 1956, Griffith Laboratories, which was Mr. Schnell’s United States agent, first received his sealed, more powerfully motored Mince Master machine, which was later discovered to be capable of developing between 75 and 80 horsepower. This was sent to Sara-toga Meat Company in Chicago for testing. The machine was shown at the American Meat Institute Convention that same month. Also on display at the same Convention was a “Cutfix” machine which Carroll L. Griffith, president of the Griffith Laboratories, described as a copy, made in Europe by the Friess Company, of a Schnell machine without the seal which shut out air. Both machines were seen by representatives of The Allbright-Nell Company. Norman Allbright, then president of The Allbright-Nell Company, sought without success to make arrangements with Mr. Griffith to manufacture the Schnell Mince Master. Mr. Griffith testified that he warned Mr. Allbright that Mr. Schnell expected to be granted patents and that he would defend them. Allbright-Nell Company acquired a Friess Cutfix. According to the deposition of its chief engineer, Ralph W. 111-sley, Allbright-Nell reconstructed the" }, { "docid": "2110222", "title": "", "text": "meant that the commercially critical step of controlling the feed rate off the end of the trough could only be accomplished by varying the stiffness of the springs. This accounted for the presence in the Amplitrol feeder of pneumatic springs, rather than helical steel coils or other common type of spring. The stiffness of the springs, and hence the feed rate, of the Amplitrol feeder was' controlled by increasing or decreasing the compressed air pressure in the pneumatic springs. In August 1959, Conveyor sold two Amplitrol feeders to the American Tobacco Company (American Tobacco) for use in its Richmond, Virginia, plant. The squirrel cage motors in the feeders sold to American Tobacco had internal wiring connections that could be connected in such a way that the machine could operate on either 220 volts or 440 volts of electrical potential. Before being shipped to American Tobacco, the feeders had been tested at Conveyor’s plant, which had a 440-volt source in the testing area. Since American Tobacco’s order specified that the feeders should be wired for 220 volts, the necessary adjustments to the internal connections should have been made before the feeders left the Conveyor plant. Evidently only one of the feeders was properly wired. In late October 1959, soon after the feeders had been installed at American Tobacco, Conveyor received a complaint that one of the new feeders would not convey material properly. The complaint came to Westerman, who was in charge of customer service for Conveyor, and he spoke by telephone to an engineer at American Tobacco. Westerman first suggested some minor adjustments to the malfunctioning feeder. While these suggestions were being followed up, he studied Conveyor’s file on the American Tobacco order and noticed the 220-volt specification. Westerman later testified: “In trying to solve the problem, the thought came to me that possibly one feeder has been changed to 220 volt and the other feeder had not.” At this point he hypothesized that if the lower than designed voltage had decreased the speed of the squirrel cage motor, the normal and desirable feed rate could be obtained by making" }, { "docid": "12203549", "title": "", "text": "broker; William Bonar, sales and service manager of Gearmatic Co., Ltd., and Dwight Garrett, president and general manager of Garrett Enumclaw Company. Mr. Bonar has been with Gearmatic for 21 years and said that its business is chiefly the manufacture of winches. Prior to his association with Gearmatic, he had been logging manager for Beban Logging Company in British Columbia, and had previously been superintendent-manager with Crown Zellerbach of Canada. During that time he had operated all types of logging equipment including winches, hydraulic winches, tractor winches, tractors and trucks. Since his association with Gearmatic, he had sold winches and replacement parts all over the United States and in Canada. He sold winches designated as models 8A, 8G, and 9 principally to tractor manufacturers. T-Tis experience included making calls on customers and dealers, training the men who go into the field, assisting them to train the customers, in the service department, and in the field. He had also made inspections in the field where problems occur with machinery to determine whether the difficulty was caused by the job, or a design failure, or weakness in the material in the products. Mr. Garrett had been engaged in designing and manufacturing machinery, mostly logging machinery, since about 1938. His firm has manufactured rubber-tired logging arches that were used behind crawler tractors and rubber-tired skidders. It has put two tractors together to get more horsepower. At one time it put rubber tires on crawler tractors manufactured by International Harvester. In 1958 it manufactured the first “Tree Farmer” tractor, a rubber-tired tractor which has revolutionized the tractor industry. According to the witness, a few yeas ago 10 percent of the tractors used in log skidding were rubber-tired and 90 percent were crawler, but this has now been reversed. The witness had been active in the creation and design of the “Tree Farmer”, had supervised its sales in 5 Western States and Hawaii and Alaska, had observed its use, and had tested it himself. Mr. Liebei’t testified that he had prepared the entries before the court and also a list of the items involved herein" }, { "docid": "18160293", "title": "", "text": "Covert’s testimony that the motors, which were imported with each of the machines in question, were more than %o horsepower but less than 200 horsepower. There was received in evidence as plaintiff’s exhibit 2 a diagrammatic sketch, entitled “Floor Plan for Model No. 960 Ball Bearing SiNGle CYLINDER SuRfaoes,” and as defendant’s illustrative exhibit A there was received a pamphlet depicting various woodworking machines with the models presently in issue identified by the letters “A” through “E.” The witness, Covert, explained that the illustration on illustrative exhibit A which is identified by the letter “D” does not correctly depict machine model number 969, for the reason that the motor is not attached to said machine. The contention of plaintiff is that the electric motor accompanying each of the woodworking machines in issue is not “an essential feature” such as is required for classification of the machines and motors as entireties within the purview of paragraph 353 of the Tariff Act of 1930, as modified, supra, and that the machines and motors are separately dutiable. Reference is made in plaintiff’s brief to several cases in support of its contention, all of which have been considered by the court. Worthy of particular consideration is the case of Clarence S. Holmes v. United States, 37 Cust. Ct. 260, C.D. 1833, wherein certain blower and feeder assemblies with an accompanying electric motor were held not to be entireties and classifiable as electric articles in paragraph 353 of the tariff act, as modified by the General Agreement on Tariffs and Trade, 82 Treas. Dec. 305, T.D. 51802. In the course of its opinion in that case, the court stated— The test of whether an article is provided for in paragraph 363 of the Tariff Act of 1930, or as modified by subsequent trade agreement, has been stated to be that “The electrical feature must be an essential feature, without which the article will not function, normally, for the purposes intended.” United States v. Dryden Rubber Co., 22 C.C.P.A. (Customs) 51, T.D. 47050. If an article has been designed to be operated by electrical power, and" }, { "docid": "8562932", "title": "", "text": "by an equally divided en banc court, 89 F.3d 1269 (6th Cir.1996), cert. denied, — U.S. -, 117 S.Ct. 764, 136 L.Ed.2d 711 (1997). The Sixth Circuit ultimately affirmed the judgment of the district court by an equally divided en banc court. Because the Sixth Circuit was equally divided, its review of Stupak-Thrall I has resulted in no law of the circuit. On May 31, 1995, the Forest Service adopted Amendment No. 5 to the Land Resource Management Plan for the Ottawa National Forest. Amendment No. 5 restricts motorboat usage within the Sylvania Wilderness to those motorboats equipped with electric motors up to a maximum size of 24 volts or 48 pounds of thrust and a slow no-wake speed. Plaintiffs appealed Amendment No. 5 to the Regional Forester and to the Chief of the Forest Service. They objected to Amendment No. 5 because it affects their riparian right to continued use of the entire lake for fishing, gas powered motorboating, and other recreational purposes. Plaintiff Kathy Stupak-Thrall owns property on Crooked Lake that originally belonged to her grandfather. The property has been in her family since 1939. Her family has used gas powered motors ranging from 5 to 40 horsepower on Crooked Lake since the 1940’s for fishing and waterskiing. Stupak-Thrall also owns a 2-unit rental called Fox’s Den on Crooked Lake. Her renters come primarily for fishing. Potential renters have told Stupak-Thrall that they will not rent if they cannot use gas powered motor boats. Michael and Bodil Gajewski have owned property on Crooked Lake since 1980 when they purchased the Crooked Lake Resort. Michael Gajewski was a major in the United States Army. He was discharged in 1984 due to his disability from multiple sclerosis. Crooked Lake Resort is now their primary source of income. The Gajewski’s rent out 6 cabins at Crooked Lake Resort by the week. Fourteen foot aluminum fishing boats with 8 to 20 horsepower motors are provided with the cabins. Most of the resort customers are repeat customers who have been coming to the resort since the 1950’s primarily to fish. Some guests bring" }, { "docid": "17251986", "title": "", "text": "can hardly be presumed that the industry intended to mislead the Commissioner, knowing as it must have, that ac tual horsepower of a motor might vary from less to more than one horsepower depending on the particular motor and the test employed. The industry must, therefore, have made its recommendations on the rated horsepower which motor manufacturers were assigning to their motors at that time. It is clear, and the court below found, that it is the practice of the industry for air conditioner manufacturers to list the horsepower of a household-type unit as the rated horsepower assigned by the motor manufacturer and not the actual horsepower. That the Commissioner was thinking in terms of rated horsepower is borne out by the fact that in his letter of December 12, 1947 to York Corporation he suggested that units with a “rated capacity” of five horsepower or less be subject to the tax. While the rulings as finally promulgated omitted the reference to rated capacity, failure to set forth any other test or procedure for determining horsepower, although a test was carefully designated for determining the cooling capacity of absorption types, suggests the Commissioner intended to follow the recognized practice of the industry and apply the rated capacity test. The rated horsepower test gives the necessary uniformity which the industry and the Commissioner were seeking in order to facilitate and simplify administration of § 3405(c). It is obvious that the Commissioner accepted the nominal ratings used in the industry. He did not even solicit reports on tests which would reveal actual horsepower under existing engineering standards for each unit on the market. Neither was such information tendered to him by the manufacturers in the air-conditioning industry. This corroborates our conclusion that taxability was determined by horsepower ratings adopted by the manufacturers which appeared on the plates affixed to the units sold and was not determined by actual horsepower output. Moreover, prior to issuing the 1954 ruling which revised the 1948 ruling in respects not material here, the Commissioner held a conference with representatives of the Air Conditioning and Refrigeration Institute. We" }, { "docid": "17948940", "title": "", "text": "Performance. — The tester shall be capable of accurately testing the electrical functioning of automotive and like type generators, their control apparatuses, starting motors, and all other devices associated in the low voltage circuits. 3.3 Workmanship. — The low voltage circuit tester shall be free of characteristics or defects which affect appearance, serviceability, or render the tester unsuitable or inefficient for the intended purpose. 4. SAMPLING, INSPECTION, AND TEST PROCEDURES $ ‡ iH ‡ $ 4.2 Performance tests. — The acceptance sample shall be given such tests as may be necessary to determine compliance with this specification. * i}: * # * 6. NOTES 6.1 Intended use. — The low voltage circuit tester covered by this specification is intended for use in testing and maintaining the electrical systems of automotive vehicles. # >[: ‡ # 6.3Bid samples. — It is considered that this specification adequately describes the characteristics necessary to secure the desired materials and that normally no samples will be necessary prior to award to determine compliance with this specification. If, for any particular purpose, samples with bid are necessary, they should be specifically asked for in the invitation tor bids, and the particular purpose to be served by the bid sample should be definitely stated, the specification to apply in all other respects. ‡ ‡ Hi $ ‡ “Minor changes in design or dimensions required by this specification may be permitted after being approved by the procuring agency. The contractor shall be held responsible for full compliance of the item as modified.” 8. On March 14, 1952, Eyff, project engineer, prepared a laboratory work order and a test program for use in determining whether the sample testers submitted with bids would meet the performance requirements of the specifications. The laboratory work order and test program was approved by Newcomb and by Colonel H. G. Davisson, Division Chief, and was forwarded to the Chief, Components Laboratories Division, Ordnance Department, Detroit Arsenal. The electrical laboratory at the Detroit Arsenal then formulated a test program and test directive on the basis of Eyff’s work order and test program. Both documents were" }, { "docid": "18700169", "title": "", "text": "for: Other (except * * * )_11%% ad val. Parts, not specially provided for, wholly or in chief value of metal or porcelain, of any article provided for in any item 372 in this Part_ The rate for the ■article of which they are parts. Thomas F. Jarvis, chief engineer of the plaintiff company testified, among other things, that he installed the involved escalators, that the structural portions consisted of trusses, guides, tubing, runways for the steps, drive mechanisms, welded members (including the well at the bottom), support for the deck and steps, engine room, the steps, the balustrades, handrails, and other devices. Mr. Jarvis stated that the only items which are electrical in nature are the motors, wiring, brake, and some auxiliary switches, and he estimated these items to have a value of approximately 3.6 percent of the total value of the escalators. With respect to one of the involved installations, namely, an installation at the J. J. Newberry store in the College Grove Shopping Center in San Diego, the witness testified that he arranged for and supervised the installation of an 8 horsepower gasoline engine to drive the escalator for demonstration purposes, and that during the demonstration operation with the gasoline engine drive as many as 16 people rode on the escalator. Photographs placed in evidence as exhibits 3, 4, and 5, show the gasoline engine, respectively, in place in the engine room, coupled to the geardrive of the escalator, and, presumably, in operation with passengers standing on the escalator steps. Another photograph, received in evidence as exhibit 2, shows the electric drive motor imported with the escalator in place in the engine room and coupled to the drive mechanism of the escalator, with the small brake motor resting in position on the housing of the drive motor. It appears, however, that the demonstration operation served only as an attempt (for the benefit of customs officials) to illustrate the capability of an internal combus tion engine to drive the escalator. It was brought out in the testimony that the brake motor was not used in the demonstration operation," }, { "docid": "11616833", "title": "", "text": "been a member of the American Association for Contamination Control, the Woodworking Machinery Dealers Association of America, American Society of Testing Materials, and the American Tool Society. He has been a business administrator and executive for 20 years and has also served in an engineering capacity in his own firms. He is sole stockholder of Atwood Imports, Inc., the importer herein. On behalf of that firm the witness visits trade shows, factories and installations in Europe each year and imports woodworking machinery on the basis of its adaptability to American methods. He was familiar with the merchandise involved herein and stated that he had gone to training programs as comprehensive as actually tearing a machine down and rebuilding it, and that he had the sole responsibility in the United States to see that the equipment was kept operating. He not only purchased the merchandise but saw to it that repair parts were available so that no customer would be out of business for more than a few days. The witness said that the dimensions of the machines involved herein varied from 8 by 12 by 24 inches up to a floor coverage of 5 by 8 feet and standing 10 feet high. Two of the machines, the Rye PD/3 drilling unit and the Frommia electric feed unit are portable in the sense that they are easy to pick up and mount as an accessory. All of the machines were imported with electric motors, but Mr. Gray testified that they could have been purchased without them. For the sake of clarity, the different machines involved herein will be discussed separately. The Rye Type R-72 automatic shaping machines are made by the Rye Engineering Company in England,- and the two involved here differ only in that the shaping heads are of a different horsepower. They are used to shape things such as chair arms, seats, captains’ chairs, back rails, and anything which has a shape and has to be cut out. They are very fast, high production machines. Plaintiff’s exhibit 1 illustrates and describes one of them. It has a rotary table" }, { "docid": "18700170", "title": "", "text": "arranged for and supervised the installation of an 8 horsepower gasoline engine to drive the escalator for demonstration purposes, and that during the demonstration operation with the gasoline engine drive as many as 16 people rode on the escalator. Photographs placed in evidence as exhibits 3, 4, and 5, show the gasoline engine, respectively, in place in the engine room, coupled to the geardrive of the escalator, and, presumably, in operation with passengers standing on the escalator steps. Another photograph, received in evidence as exhibit 2, shows the electric drive motor imported with the escalator in place in the engine room and coupled to the drive mechanism of the escalator, with the small brake motor resting in position on the housing of the drive motor. It appears, however, that the demonstration operation served only as an attempt (for the benefit of customs officials) to illustrate the capability of an internal combus tion engine to drive the escalator. It was brought out in the testimony that the brake motor was not used in the demonstration operation, nor were the electrical supervisory systems employed in such operation. But Mr. J arvis stated that had he been asked to do so, he could have tied these electrical supervisory systems and the escalator brake in to function with the gasoline engine, and further, that with a 14 or 15 horsepower gasoline engine driving the escalator adequate braking could be obtained by means of engine compression alone. The witness explained that a number of other functions either handled by an electric motor installation or eliminated in its use, could be provided for in a gasoline engine installation, namely, the venting of exhaust gases and fumes to the outside, the supplying of fuel from the outside, reversing direction of the escalator motion, and the soundproofing or muffling of engine noise, giving details as to how these problematical situations could be handled or eliminated. He was of the opinion that the application of any particular power in the driving of an escalator is only a matter of connection of the power source with the escalator structure, and" }, { "docid": "18897892", "title": "", "text": "defendant submitted credible and reliable evidence to support its contention that the merchandise was properly classified by Customs. See NEC America. Inc. v. United States, 8 CIT 184, 190-91, 596 F. Supp. 466, 471 (1984), aff’d, 760 F.2d 1295 (Fed. Cir. 1985). The government’s expert witness was Mr. Leonard Feldman, an experienced electrical engineer. In addition to a degree in electrical engineering, he has had over 30 years experience in the audio field, and has authored numerous articles and books on audio equipment. Mr. Feldman, who conducts a laboratory in which he evaluates audio and video equipment, testified that the primary purpose of an audio amplifier is \"to increase the level of a signal so that it might be processed or suitable for application to another device — such as a transducer * * *.” He hastened to add, \"but that’s only one kind of audio amplifier,” and later explained that the term amplifier also refers to integrated amplifiers which contain tone controls such as bass and treble in a preamplifier section. Mr. Feldman testified that the equalizer section of the equalizer/boosters is merely a more sophisticated type of tone control. Defendant also introduced the deposition testimony of Mr. Edmund Legum, plaintiffs designated spokesman for purposes of its deposition, and a buyer for Radio Shack who has been employed by that company since 1974. Mr. Legum testified that a basic amplifier is not designed or intended to change or modify the shape of the audio signal, but merely increases the power of the signal. He added, however, that equalizer/boosters are integrated amplifiers, as opposed to basic ones, because the equalizer makes it possible to control certain sound frequencies. Mr. Legum agreed that the equalizer operates essentially in the same manner as the tone controls of an integrated amplifier, however, in a more refined fashion. Plaintiff contends that the equalizer/boosters, as part of their primary design, are intended to perform a function which is not encompassed by the generally accepted definition of \"audio amplifier.” In support of its contention plaintiff cites Fanon Electronic Industries, Inc. v. United States, 65 Cust. Ct." }, { "docid": "10623167", "title": "", "text": "of this holding, the court noted that the Government’s own witness, the Government chemist who performed the testing for Customs, admitted that by themselves the four properties tested for were insufficient to support a determination that the imported product was motor fuel. Weighing the various test data before it, the Customs Court found that the preponderance of evidence supported the conclusion that the imported merchandise fell outside of the T.D. 66-23(13) standards for motor fuel. Since the imported product was only a blending agent used in motor fuel, the court held that it was not itself motor fuel. Accordingly, the Customs Court sustained the importer’s claim that the imported merchandise should have been properly classified as naphtha under TSUS 475.35. Issues Raised on Appeal Essentially the Government makes two arguments on appeal. First, it maintains that TSUS schedule 4, part 10, headnote 2(b) should be interpreted as covering within the definition of motor fuel a product which when combined with additives is chiefly used as motor fuel. Since the importer did not introduce evidence that the imported merchandise with additives was not chiefly used as motor fuel, the Government contends that the importer did not rebut the presumption of correctness which attached to the Customs classification of the merchandise as motor fuel. The Government also argues that the Customs Court erred in holding that all the requirements of T.D. 66-23(13) had to be met in order for a petroleum product to be classified as motor fuel. In this regard the Government maintains that T.D. 66-23(13) was merely published for guidance and can neither expand nor constrict the scope of the statutory definition of motor fuel found in TSUS schedule 4, part 10, headnote 2(b). Opinion i In California Oil Co. v. United States, 29 Cust. Ct. 44, C.D. 1442 (1952), the Customs Court held, inter alia, that a blending component, use in gasoline motor fuel but not suitable for use as motor fuel, was not chiefly used as motor fuel. Since then Congress has added a definition of the term motor fuel in TSUS schedule 4, part 10, headnote 2(b)." }, { "docid": "17251985", "title": "", "text": "Association, referring “to the various conferences held with you and other representatives of the air-conditioning industry,” and stated that “the following definition has been formulated to indicate the position of the Bureau as to the type of units properly to be included within the scope of” § 3405(c): “A self-contained air-conditioning unit, * * * (3) has a total motor horsepower of less than one horsepower or a total cooling capacity of less than 10,000 BTU’s per hour at standard American Society of Refrigerating Engineers test conditions as set forth in ASRE Circular No. 16 dated June, 1940.” We are convinced that the foregoing facts established that the Commissioner had been given the assurance of the industry that a rated motor horsepower test of less-than-one-horsepower, to use the words of York, “is sufficiently broad in its scope to include without exception all self-contained air conditioning units which are not being manufactured”, since “it is not feasible from an engineering standpoint to employ a motor of greater horsepower capacity in a self-contained air conditioning unit.” It can hardly be presumed that the industry intended to mislead the Commissioner, knowing as it must have, that ac tual horsepower of a motor might vary from less to more than one horsepower depending on the particular motor and the test employed. The industry must, therefore, have made its recommendations on the rated horsepower which motor manufacturers were assigning to their motors at that time. It is clear, and the court below found, that it is the practice of the industry for air conditioner manufacturers to list the horsepower of a household-type unit as the rated horsepower assigned by the motor manufacturer and not the actual horsepower. That the Commissioner was thinking in terms of rated horsepower is borne out by the fact that in his letter of December 12, 1947 to York Corporation he suggested that units with a “rated capacity” of five horsepower or less be subject to the tax. While the rulings as finally promulgated omitted the reference to rated capacity, failure to set forth any other test or procedure for determining" }, { "docid": "8562933", "title": "", "text": "to her grandfather. The property has been in her family since 1939. Her family has used gas powered motors ranging from 5 to 40 horsepower on Crooked Lake since the 1940’s for fishing and waterskiing. Stupak-Thrall also owns a 2-unit rental called Fox’s Den on Crooked Lake. Her renters come primarily for fishing. Potential renters have told Stupak-Thrall that they will not rent if they cannot use gas powered motor boats. Michael and Bodil Gajewski have owned property on Crooked Lake since 1980 when they purchased the Crooked Lake Resort. Michael Gajewski was a major in the United States Army. He was discharged in 1984 due to his disability from multiple sclerosis. Crooked Lake Resort is now their primary source of income. The Gajewski’s rent out 6 cabins at Crooked Lake Resort by the week. Fourteen foot aluminum fishing boats with 8 to 20 horsepower motors are provided with the cabins. Most of the resort customers are repeat customers who have been coming to the resort since the 1950’s primarily to fish. Some guests bring their own boats. After news was received about the passage of Amendment No. 5 and the ban on gas motors, Mr. Gajewski noticed an immediate decline in reservations. Crooked Lake is approximately 3 miles from north to south, with numerous bays and inlets. Mr. Gajewski believes that if his customers are not allowed to use gas motors and are restricted to using electric trolling motors, they will not return to the resort and he fears his business will not survive. After their appeals to the Forest Service were denied, Plaintiffs filed the present action against the Secretary of Agriculture, the Chief of the United States Forest Service, the Regional Forester for Region IX of the United States Forest Service, the Forest Supervisor of the Ottawa National Forest and the United States Forest Service, contending that the Forest Service is without constitutional or statutory authority to regulate their use of gas powered motor boats on the entire surface of Crooked Lake. Plaintiffs raise two additional issues that are not part of Amendment No. 5 and which" } ]

[ { "docid": "3276342", "title": "", "text": "Circuit has repeatedly made clear, the focus of the inquiry is aimed at determining whether the party seeking to protect sealed judicial records has specifically demonstrated the need to keep the materials under seal. See, e.g., Leucadia, 998 F.2d at 167 (citing Republic of the Philippines v. Westinghouse Elec. Corp., 949 F.2d 653, 663 (3d Cir.1991)); see also Hotel Rittenhouse, 800 F.2d at 346 (recognizing that the party seeking protection must make a “particularized showing of the need for continued secrecy”). Obviously, once a party makes this showing, the sealed judicial records should remain shielded from public view (even if the party seeking access has a First Amendment or common law right in viewing the materials). Here, the special master concluded that the disclosure of the limited number of materials which the defendants had submitted for his review would cause them to suffer a clearly defined and serious injury. See Rept. & Rec. at 15-25, 25-30, 30-34, 34-35, 35-43. He, therefore, recommended that these materials be kept under seal. The court can find no legal error with this approach. Cf. Leucadia, 998 F.2d at 166-67 (directing the district court on remand to “conduct[ ] a document-by-document review” of the sealed materials in the case and “carefully weigh[ ] the factors for and against access,” including whether the defendants had demonstrated “good cause” for the protection of the documents because they contained “bona fide trade secrets”) (relying on Cipollone, 785 F.2d at 1121). Furthermore, after conducting an independent review of the materials submitted to the special master, the court cannot conclude that he clearly erred in finding that the overwhelming majority of these documents contained “legitimate trade secrets or other proprietary information which warrant their continued ‘confidential’ designation.” Most of the sealed materials contain vodka formulas, consumer research studies, strategic plans, potential advertising and marketing campaigns or financial information. See Rept. & Rec. at 15-25, 25-30, 30-34, 34-35. The federal courts have consistently held that this type of sensitive commercial information is entitled to confidential protection. See, e.g., Coca-Cola Bottling Co. of Shreveport, Inc. v. Coca-Cola Co., 107 F.R.D. 288, 294" } ]

[ { "docid": "8236026", "title": "", "text": "commercial information. See Baxter Int’l, 297 F.3d at 545 (“But those documents, usually a small subset of all discovery, that influence or underpin the judicial decision are open to public inspection unless they meet the definition of trade secrets or other categories of bona fide long-term confidentiality.”). As described by the Wisconsin Trade Secrets Act, “trade secret” means any information that: 1) derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and 2) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy. Wis. Stat. § 134.90. However, all commercially valuable information does not constitute a trade secret, but instead, trade secrets are a “subset of all commercially valuable information.” IDX Systems Corp. v. Epic Systems Corp., 285 F.3d 581, 583 (7th Cir. 2002). As an initial matter, GSK does not oppose the unsealing of Exhibits 8 and 17 attached to the “Declaration of Bijan Es-fandiari in Support of Plaintiffs’ Opposition to GSK’s Motion for Summary Judgment” (hereinafter, “Esfandiari Declaration”). Therefore, the court finds that no good cause exists to maintain confidentiality of this information and will unseal the exhibits. Further, Exhibits 1, 5, and 11 attached to the Esfandiari Declaration have been unsealed by the District Court for the Northern District of Indiana. See Cunningham v. Smithkline Beecham, 2008 WL 2572076 (N.D.Ind., June 25, 2008). Thus, good cause does not exist to maintain confidentiality of the documents in the instant action and the court will similarly unseal them. The court now turns to the remaining exhibits. GSK fails to establish that the individual documents at issue involve trade secrets or other similarly confidential commercial information. The court credits GSK’s argument that disclosure of confidential information will generate harm by granting competitor insight into GSK’s proprietary techniques and processes of analyzing data. However, GSK fails to specify how the documents in question and the information contained therein benefit its competitors. Further, after reviewing the subject documents, the court does not" }, { "docid": "23230986", "title": "", "text": "documents, is appropriately filed under seal”). To recapitulate, we hold there is a presumptive right to public access to all material filed in connection with nondiseovery pretrial motions, whether these motions are case dis-positive or not, but no such right as to discovery motions and their supporting documents. B. Countervailing Interests Of course, the fact that a presumption of openness attaches to the discovery documents filed with the pretrial motions in this case does not end our inquiry. Although “the right of access is firmly entrenched, so also is the correlative principle that the right ... is not absolute.” Bank of America, 800 F.2d at 344. Rather, “the strong common law presumption of access must be balanced against the factors militating against access. The burden is on the party who seeks.to overcome the presumption of access to show that the interest in secrecy outweighs the presumption.” Id. (citations omitted). Documents containing trade secrets or other confidential business information may be protected from disclosure. As the Supreme Court stated in Nixon v. Warner Communications, 435 U.S. at 598, 98 S.Ct. at 1312, “courts have refused to permit their files to serve as ... sources of business information that might harm a litigant’s competitive standing.” We too have explained that the presence of trade secrets in court records weighs against the right of access, although we have framed the inquiry as whether the need for secrecy outweighs the presumption of access that normally attaches to such documents. See Westinghouse, 949 F.2d at 663 (“ ‘[t]he potential effects of the disclosure of business information that might harm the litigant’s competitive standing may in some cases meet the burden of [justifying keeping] the judicial record under seal’ ”) (quoting district court opinion); see also Littlejohn, 851 F.2d at 685. Under Fed.R.Civ.P. 26(c)(7), the district court, for good cause shown, may grant a protective order requiring that “a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a designated way.” Fed.R.Civ.P. 26(c)(7). However, the Rules also explain that “courts have not given trade secrets automatic and" }, { "docid": "14434297", "title": "", "text": "Inc., 998 F.2d 157, 165 (3d Cir.1993); Joint Stock Soc’y v. UDV N. Am., Inc., 104 F.Supp.2d 390, 395-96 (D.Del.2000). The presumption of access is subject to a balancing of factors that militate against access, e.g., the interest in secrecy. Leucadia, 998 F.2d at 166. It is the burden of the party seeking to overcome the presumption of access to demonstrate the need to keep the materials under seal. See, e.g., Leucadia, 998 F.2d at 167 (citing Westinghouse, 949 F.2d at 663); Bank of America, 800 F.2d at 346. Specifically, that party must demonstrate that the material contains the type of information that courts will protect and that there is good cause for continued application of an existing order, Publicker, 733 F.2d at 1070-71 (citing Zenith Radio Corp. v. Matsushita Elec. Indus. Corp., 529 F.Supp. 866, 890 (E.D.Pa.1984)). Good cause is established if there is a showing that disclosure will result in a clearly defined and serious injury to the party seeking to overcome the presumption of access. Id. at 1071. Judicial records are to remain sealed upon such a showing, even if the party seeking access has a First Amendment or common law right to access the materials. In short, the public right of access to judicial records does not trump all other interests and may be limited where there are important overriding interests. A well-settled exception to the right of access is the “protection of a party’s interest in confidential commercial information, such as a trade secret, where there is a sufficient threat of irreparable harm.” Id. The presence of trade secrets or other confidential information weighs against public access and, accordingly, documents containing such information may be protected from disclosure. Leucadia, 998 F.2d at 165-66; see also Publicker, 733 F.2d at 1073 (“[A]n interest in safeguarding a trade secret may overcome a presumption of openness.”) (citing Zenith, 529 F.Supp. at 890). The Third Circuit has expressly recognized that “courts may deny access to judicial records ... where they are sources of business information that might harm a litigant’s competitive standing.” Westinghouse, 949 F.2d at 662 (quoting Littlejohn" }, { "docid": "18096566", "title": "", "text": "Claim To prove that Mr. Ward violated the ITSA, Triumph must show 1) the existence of a trade secret; and 2) misappropriation of that trade secret. PepsiCo, Inc. v. Redmond, 54 F.3d 1262, 1267 (7th Cir.1995). The ITSA defines a “trade secret” as information, including but not limited to, technical or non-technical data, a formula, pattern, compilation, program, device, method, technique, drawing, process, financial data, or list of actual or potential customers or suppliers, that: (1) is sufficiently secret to derive economic value, actual or potential, from not being generally known to other persons who can obtain economic value from its disclosure or use; and (2) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy or confidentiality. See 765 ILCS 1065/2(d). “Where an employer has invested substantial time, money, and effort to obtain a secret advantage, the secret should be protected from an employee who obtains it through improper means.” Mintel Int’l Grp., Ltd. v. Neergheen, No. 08-cv-3939, 2010 WL 145786, at *11 (N.D.Ill. Jan. 12, 2010) (citation omitted). In a competitive market, however, “an employee must be entitled to utilize the general knowledge and skills acquired through experience in pursuing his chosen occupation.” Id. (citing Serv. Ctrs. of Chicago, Inc. v. Minogue, 180 Ill.App.3d 447, 452, 129 Ill.Dec. 367, 535 N.E.2d 1132 (1989)). Trade secrets include “customer lists that are not readily ascertainable, pricing, distribution, and marketing plans, and sales data and market analysis information.” Id. (internal citations omitted). The ITSA defines “misappropriation” to include, among other things, “disclosure or use of a trade secret” without consent by a person who “at the time of disclosure or use, knew or had reason to know that knowledge of the trade secret was acquired under circumstances giving rise to a duty to maintain its secrecy or limit its use.” 765 ILCS § 1065/2(b)(2)(B)(II). Under the ITSA, a court may enjoin actual and threatened misappropriation of trade secrets. See 765 ILCS 1065/3(a). As the Seventh Circuit has explained, “[t]rade secret law serves to protect standards of commercial morality and encourage invention and innovation while maintaining the" }, { "docid": "22906508", "title": "", "text": "may in some cases meet the burden of the judicial record under seal.” Republic of the Philippines, 139 F.R.D. at 61 (citation omitted). Although the district court did discuss such information in relation to trade secrets, it did not state that only trade secrets could be protected, and we see no error of law. We have previously stated that such business information alleged to be confidential “is not entitled to the same level of protection from disclosure as trade secret information.” Littlejohn, 851 F.2d at 685. The district court, which had previously reviewed the summary judgment record in detail, made a specific finding that it found nothing of record that “would classify as confidential at this stage in the proceedings.” Hearing Transcript, Oct. 15, 1991, at 14. The district court noted that “it is likely that Westinghouse is concerned most about potential embarrassment and injury to reputation.” Republic of the Philippines, 139 F.R.D. at 62. Westinghouse’s memorandum on appeal, which fails to refer to any specific type of competitive harm, also suggests that it is the company’s public image that is at stake. That is not enough to rebut the presumption of access. Westinghouse has failed to offer evidence to counter this finding or to substantiate its claim that the disclosure of the summary judgment records at issue here would result in any type of competitive disadvantage. It relied entirely on its 1989 affidavits without any current evidence to show how public dissemination of the pertinent materials now would cause the competitive harm it claims. Without a more “particularized showing of the need for continued secrecy,” Bank of America, 800 F.2d at 346, Westinghouse has failed to meet its burden. In light of the applicability of the common law presumption in favor of public access to materials filed with the district court in connection with a motion for summary judgment and Westinghouse’s failure to present specific evidence showing how release of those materials would result in competitive harm at this time, we conclude that Westinghouse has not made a strong enough showing that it is likely to succeed on the" }, { "docid": "4269179", "title": "", "text": "whether Sun Media has proffered sufficient evidence to create a genuine issue of material fact on the question of whether Defendants misappropriated its “proprietary method for laying out mailers.” 1. Is Sun Media’s method of laying out mailers a “trade secret”? The first question the Court must address is whether Sun Media’s method for laying out mailers constitutes a trade secret. IUTSA defines a “trade secret” as follows: “Trade secret” means information, including but not limited to a formula, pattern, compilation, program, device, method, technique, or process that is both of the following: a. Derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by a person able to obtain economic value from its disclosure or use. b. Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy. Iowa Code § 550.2(4). The Iowa Supreme Court has specifically adopted Restatement (Third) of Unfair Competition as providing the appropriate scope of § 550.2(4): A trade secret can consist of a formula, pattern, compilation of data, computer program, device, method, technique, process, or other form or embodiment of economically valuable information. A trade secret can relate to technical matters such as the composition or design of a product, a method of manufacture, or the know-how necessary to perform a particular operation or service. A trade secret can also relate to other aspects of business operations such as pricing and marketing techniques or the identity and requirements of customers. Cemen Tech, Inc. v. Three D. Indus., L.L.C., 753 N.W.2d 1, 7 (Iowa 2008) (quoting Restatement (Third) of Unfair Competition § 39 cmt. d (1995)). Whether particular information constitutes a trade secret is “a mixed question of law and fact.” Economy Roofing & Insulating Co. v. Zumaris, 538 N.W.2d 641, 648 (Iowa 1995). “The ‘legal part of the question’ is whether the information in question ‘could constitute a trade secret under the first part of the definition of trade secret in § 550.2(4).” Interbake Foods, L.L.C. v. Tomasiello, 461 F.Supp.2d 943, 964 (N.D.Iowa 2006) (quoting Economy Roofing, 538" }, { "docid": "4968530", "title": "", "text": "definition at S.Rep.No. 92-838, 92d Cong., 2d Sess., pt.' 2 (1972) at 72, U.S.Code Cong. & Admin.News 1972, pp. 3993, 4091: (1) Information that constitutes a trade secret, financial information which is privileged or confidential, or commercial information the disclosure of which gives a competitor a competitive advantage with respect to the proprietor of the information should be protected from disclosure except under those circumstances enumerated in subsection (c)(1). General approval is given to the definition of “trade secret” as incorporated in the RESTATEMENT OF TORTS. [Emphasis supplied.] In determining whether given matter constitutes a trade secret, consideration shall be given to— (a) the extent to which the data is independently known to outsiders or is used by outsiders for similar purposes; (b) the extent to which it is known by insiders; (c) the extent of the measures taken by an owner to guard its secrecy; (d) value of the data to the owner and others, including the extent to which, if used in conduct of the business, it would confer a competitive advantage on said owner; (e) the amount of effort or money expended on developing the data; and (f) the ease or difficulty with which the data could properly be acquired or duplicated by others. Deliberation has been given to those circumstances under which it may be proper to release trade secrets. Those instances are set forth in subsection (c) of section 10. In all instances the disclosure shall be done in such a method as to guard the secrecy of the data as much as possible and insure it will not fall into the hands of a competitor. This construction, incorporating the Restatement definition, also is consistent with the fact that the notion of trade secrecy arises from the common law, and expressed .throughout the common law is the general view that the definition of “trade secret” is accurately set forth in Restatement of Torts. Kewanee Oil Co. v. Bicron Corp., 416 U.S. 470, 474, 94 S.Ct. 1879, 40 L.Ed.2d 315 (1974); Sandlin v. Johnson, 141 F.2d 660 (8th Cir. 1944); In re Consumers Union of United" }, { "docid": "127743", "title": "", "text": "of its materials. However, the Church’s contention that the disputed materials are “religious scripture” was not reconciled with the California statute’s reference to “economic value” as an element of a protectible trade secret. To be protectible as a trade secret under either Restatement section 757 or the new California statute, the confidential material must convey an actual or potential commercial advantage, presumably measurable in dollar terms. We do not accept that a trade secret can be based on the spiritual advantage the Church believes its adherents acquire over non-adherents by using the materials in the prescribed manner. Former Restatement § 757 defines trade secrets as information which is “used in one’s business, and which gives him an opportunity to obtain an advantage over competitors who do not know or use it.” (Emphasis added). See also 1 Milgrim § 2.02 (“An element common to the definitions [of trade secret] is actual use of the secret in a trade or business. ”) (emphasis added); Klitzke, Trade Secrets: Important Quasi-Property Rights, 41 Bus.Lawyer 555, 559 (1986) (“Information that can have no commercial value cannot be the subject of trade secret protection.”); Commissioners’ Comment to § 1 of Uniform Act, 14 U.L.A. at 543 (“The definition includes information that has commercial value from a negative viewpoint____ [A] trade secret need not be exclusive to confer a competitive advantage----”) (emphasis added). No published California decision has yet construed Civ.Code § 3426.1(d)’s definition of trade secret. In the only significant effort by any state court to construe the Uniform Act’s definitional reference to “independent economic value,” the Minnesota Supreme Court stated: “This statutory element carries forward the common law requirement of competitive advantage. ... This does not mean ... that the owner of the trade secret must be the only one in the market. ... If an outsider would obtain a valuable share of the market by gaining certain information, then that information may be a trade secret if it is not known or readily ascertainable.” Electro-Craft Corp. v. Controlled Motion, Inc., 332 N.W.2d 890, 900 (Minn.1983) (emphasis added). We think it probable that the California" }, { "docid": "4939434", "title": "", "text": "Trade secrets can range from customer information, to financial information, to information about manufacturing processes to the composition of products. There is virtually no category of information that cannot, as long as the information is protected from disclosure to the public, constitute a trade secret. We believe that a broad range of business data and facts which, if kept secret, provide the holder with an economic advantage over competitors or others, qualify as trade secrets. US West Communications, Inc. v. Office of Consumer Advocate, 498 N.W.2d 711, 714 (Iowa 1993) (citations omitted). Economy Roofing, 538 N.W.2d at 646-47 (emphasis in the original). The court, after reaffirming this broad interpretation of a “trade secret” under the act, noted that whether or not information in question constitutes a trade secret is “a mixed question of law and fact.” Id. at 648. The “legal part of the question” is whether the information in question “could constitute a trade secret under the first part of the definition of trade secret in section 550.2(4) (‘“Trade secret’ means information, including but not limited to a formula, pattern, compilation, program, device, method, technique, or process____”).” Id. The “fact part of the question,” on the other hand, arises from the remaining part of the statutory definition found in subdivisions (a) and (b) of § 550.2(4). Id. at 648-49. In other words, the factual question is whether the information is both of the following: a. Derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by a person able to obtain economic value from its disclosure or use[; and] b. Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy. Iowa Code § 550.2(4); Economy Roofing, 538 N.W.2d at 649. In 205 Carp., the Iowa Supreme Court further explained these two factual elements of a trade secret. 205 Corp., 517 N.W.2d at 550-51. The court noted that as to the first limitation, in § 550.2(4)(a), the plaintiff must “show it derived economic value because the [confidential pizza recipes] were unknown to, and not" }, { "docid": "8236025", "title": "", "text": "S.Ct. 2800, 61 L.Ed.2d 587 (1979) (quoting 8 C. Wright & A. Miller, Federal Practice and Procedure § 2043, at 300 (1970)). Courts frequently afford only a limited protection instead of an automatic and complete protection against disclosure. Id. Further, any protection afforded by the court must be substantially justified. Indeed, the Seventh Circuit stated that it will deny outright any motion to maintain the confidentiality of information that fails to “analyze in detail, document by document, the propriety of secrecy, providing reasons and legal citations.” Baxter Int’l, Inc. v. Abbott Labs., 297 F.3d 544, 548 (7th Cir. 2002). To establish “good cause” and protect confidential business information under Rule 26(c), the company seeking confidentiality must show a “clearly defined and very serious injury” that will result from disclosure. Andrew Corp. v. Rossi 180 F.R.D. 338, 341 (N.D.Ill.1998) (citing Culinary Foods, Inc. v. Raychem Corp., 151 F.R.D. 297, 300 n. 1 (N.D.Ill.1993)). To prevent disclosure, GSK must first go through document by document and establish that the exhibits at issue constitute trade secrets or confidential commercial information. See Baxter Int’l, 297 F.3d at 545 (“But those documents, usually a small subset of all discovery, that influence or underpin the judicial decision are open to public inspection unless they meet the definition of trade secrets or other categories of bona fide long-term confidentiality.”). As described by the Wisconsin Trade Secrets Act, “trade secret” means any information that: 1) derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and 2) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy. Wis. Stat. § 134.90. However, all commercially valuable information does not constitute a trade secret, but instead, trade secrets are a “subset of all commercially valuable information.” IDX Systems Corp. v. Epic Systems Corp., 285 F.3d 581, 583 (7th Cir. 2002). As an initial matter, GSK does not oppose the unsealing of Exhibits 8 and 17 attached to the “Declaration of Bijan" }, { "docid": "127744", "title": "", "text": "can have no commercial value cannot be the subject of trade secret protection.”); Commissioners’ Comment to § 1 of Uniform Act, 14 U.L.A. at 543 (“The definition includes information that has commercial value from a negative viewpoint____ [A] trade secret need not be exclusive to confer a competitive advantage----”) (emphasis added). No published California decision has yet construed Civ.Code § 3426.1(d)’s definition of trade secret. In the only significant effort by any state court to construe the Uniform Act’s definitional reference to “independent economic value,” the Minnesota Supreme Court stated: “This statutory element carries forward the common law requirement of competitive advantage. ... This does not mean ... that the owner of the trade secret must be the only one in the market. ... If an outsider would obtain a valuable share of the market by gaining certain information, then that information may be a trade secret if it is not known or readily ascertainable.” Electro-Craft Corp. v. Controlled Motion, Inc., 332 N.W.2d 890, 900 (Minn.1983) (emphasis added). We think it probable that the California courts will follow the Minnesota Supreme Court’s view because of the wording of the California criminal law equivalent of Civ.Code § 3426.1(d). Cal.Penal Code § 499c(a)(9) (West Supp.1986) states: “ ‘Trade secret’ means ... information ... which is secret and which is not generally available to the public, and which gives one who uses it an advantage over competitors who do not know of or use the trade secret.” (Emphasis added) See People v. Serrata, 62 Cal.App.3d 9, 22, 133 Cal.Rptr. 144, 152 (1976) (“The phrase ‘advantage over competitors’ [in Cal.Pen.Code § 499c] refers to any form of commercial advantage. ” (emphasis added)). In its supplementary findings of fact, the district court noted that the new church offers its services to its adherents at a price “substantially less than that charged by the Church.” However, the Church alleged no competitive market advantage from maintaining the secrecy of its higher level materials. Indeed, to do so would raise grave doubts about its claim as a religion and a not-for-profit corporation. Rather, the Church alleges that its" }, { "docid": "22906507", "title": "", "text": "expressly recognized that “courts may deny access to judicial records ... where they are sources of business information that might harm a litigant’s competitive standing,” Littlejohn, 851 F.2d at 678. Westinghouse asserts that the district court assumed that only trade secrets may be protected from public view and that the district court ruled as a matter of law that competitive injury, unrelated to improperly disclosed trade secrets, is insufficient to overcome the presumption of access. Our reading of the district court’s decision discloses no such assumption or holding. Although the district court referred to trade secrets in its oral decision denying Westinghouse’s emergency application for a stay, it did not limit its evaluation strictly to trade secrets. The court’s statement ivas made in the context of its ruling on irreparable injury, and it merely commented that this material was different from a trade secret which, once disclosed, is lost. In its written opinion, the district court expressly recognized that “[t]he potential effects of the disclosure of business information that might harm the litigant’s competitive standing may in some cases meet the burden of the judicial record under seal.” Republic of the Philippines, 139 F.R.D. at 61 (citation omitted). Although the district court did discuss such information in relation to trade secrets, it did not state that only trade secrets could be protected, and we see no error of law. We have previously stated that such business information alleged to be confidential “is not entitled to the same level of protection from disclosure as trade secret information.” Littlejohn, 851 F.2d at 685. The district court, which had previously reviewed the summary judgment record in detail, made a specific finding that it found nothing of record that “would classify as confidential at this stage in the proceedings.” Hearing Transcript, Oct. 15, 1991, at 14. The district court noted that “it is likely that Westinghouse is concerned most about potential embarrassment and injury to reputation.” Republic of the Philippines, 139 F.R.D. at 62. Westinghouse’s memorandum on appeal, which fails to refer to any specific type of competitive harm, also suggests that it is" }, { "docid": "23230987", "title": "", "text": "at 598, 98 S.Ct. at 1312, “courts have refused to permit their files to serve as ... sources of business information that might harm a litigant’s competitive standing.” We too have explained that the presence of trade secrets in court records weighs against the right of access, although we have framed the inquiry as whether the need for secrecy outweighs the presumption of access that normally attaches to such documents. See Westinghouse, 949 F.2d at 663 (“ ‘[t]he potential effects of the disclosure of business information that might harm the litigant’s competitive standing may in some cases meet the burden of [justifying keeping] the judicial record under seal’ ”) (quoting district court opinion); see also Littlejohn, 851 F.2d at 685. Under Fed.R.Civ.P. 26(c)(7), the district court, for good cause shown, may grant a protective order requiring that “a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a designated way.” Fed.R.Civ.P. 26(c)(7). However, the Rules also explain that “courts have not given trade secrets automatic and complete immunity against disclosure, but have in each ease weighed their claim to privacy against the need for disclosure.” Fed.R.Civ.P. 26(c) advisory committee’s note to 1970 amendment. As we explained in Cipollone v. Liggett Group, Inc., 785 F.2d 1108, 1121 (3d Cir.1986), “Rule 26(c) places the burden of persuasion on the party seeking the protective order. To overcome the presumption, the party seeking the protective order must show good cause by demonstrating a particular need for protection. Broad allegations of harm, unsubstantiated by specific examples or articulated reasoning, do not satisfy the Rule 26(c) test.” We emphasized that “the burden of justifying the confidentiality of each and every document sought to be covered by a protective order remains on the party seeking the protective order; any other conclusion would turn Rule 26(c) on its head.” Id. at 1122. Because of the benefits of umbrella protective orders in complex cases, the court may construct a broad “umbrella” protective order “upon a threshold showing by one party (the movant) of good cause.” Id. After delivery of the" }, { "docid": "16330478", "title": "", "text": "falls within the definition of “trade secret” set forth in Iowa Code § 550.2(4), the court must examine whether the information fits within the additional parts of the definition of “trade secret” articulated in subsections (a) and (b) of Iowa Code § 550.2(4). The court must decide, as a question of fact, whether the information: a. Derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by a person able to obtain economic value from its disclosure or use. b. Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy. Economy Roofing, 538 N.W.2d at 646 (quoting Iowa Code § 550.2(4)). In short, the court must decide the factual issues of whether the information at issue has independent economic value and whether the party claiming the information is a trade secret has taken reasonable efforts to maintain the secrecy of the information. APAC Teleservices, Inc. v. McRae, 985 F.Supp. 852, 864 (N.D.Iowa 1997). The Iowa Supreme Court has further defined the economic value prong of the analysis as “information kept secret that would be useful to a competitor and require cost, time and effort to duplicate....” US West, 498 N.W.2d at 714. Further, the Iowa Supreme Court has specified the key to the secrecy inquiry is whether the party seeking to protect the information has taken efforts that are reasonable under the circumstances to maintain the secrecy of the information. See 205 Corp. v. Brandow, 517 N.W.2d 548, 551 (Iowa 1994). AEFA’s misappropriation claim alleges AEFA has protectable confidential information in its client names, addresses, and data, including suitability information, investments and investment history, financial plans, and financial goal information, prospective client names, addresses, and data, and know-how concerning the methods of operation, client lists and other financial information. The court finds AEFA likely will be able to establish this information falls within the legal definition of the term “trade secret” set forth in Iowa Code § 550.2(4) as the information is a compilation of information about AEFA’s clients and their financial histories and" }, { "docid": "16330477", "title": "", "text": "formula, pattern, compilation, program, device, method, technique or process .... ” Iowa Code § 550.2(4). As the Iowa Supreme Court has explained: Under the plain language of [Iowa Code § 550.2(4) ], “trade secret” is defined as “information” and eight examples of this term are provided. Although these examples cover items normally associated with the production of goods, “trade secrets” are not limited to the listed examples .... One commentator explains: Trade secrets can range from customer information to financial information about manufacturing processes to the composition of products. There is virtually no category of information that cannot, as long as the information is protected from disclosure to the public, constitute a trade secret. We believe that a broad range of business data and facts which, if kept secret, provide the holder with an economic advantage over competitors or others, qualify as trade secrets. US West Communications, Inc. v. Office of Consumer Advocate, 498 N.W.2d 711, 714 (Iowa 1993). Economy Roofing, 538 N.W.2d at 646-47. Once the court has determined whether the information at issue falls within the definition of “trade secret” set forth in Iowa Code § 550.2(4), the court must examine whether the information fits within the additional parts of the definition of “trade secret” articulated in subsections (a) and (b) of Iowa Code § 550.2(4). The court must decide, as a question of fact, whether the information: a. Derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by a person able to obtain economic value from its disclosure or use. b. Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy. Economy Roofing, 538 N.W.2d at 646 (quoting Iowa Code § 550.2(4)). In short, the court must decide the factual issues of whether the information at issue has independent economic value and whether the party claiming the information is a trade secret has taken reasonable efforts to maintain the secrecy of the information. APAC Teleservices, Inc. v. McRae, 985 F.Supp. 852, 864 (N.D.Iowa 1997). The Iowa Supreme Court has further" }, { "docid": "127742", "title": "", "text": "B. Witkin, Summary of California Law, Equity § 82 (8th ed. 1974 and Supp.1984). The Restatement (Second) of Torts omitted section 757 and any reference to trade secrets. In response, a Uniform Trade Secrets Act was drafted. California adopted this uniform Act, with minor changes, in 1985. See 14 U.L.A. 537, 538-40 (1980 and 1985 Supp.); M. Jager, Trade Secrets Law, § 3.04 (1985); 3 R. Milgrim, Milgrim on Trade Secrets App. AA (1985). California law now defines a trade secret as: information, including a formula, pattern, compilation, program, devise, method, technique, or process, that: (1) Derives independent economic value, actual or potential, from not being generally known to the public or to other persons who can obtain economic value from its disclosure or use; and (2) Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy. Cal.Civ.Code § 3426.1(d) (West Supp.1986). The district court held that the Church’s higher level materials were a trade secret. The court relied heavily on the Church's concededly elaborate efforts to maintain the secrecy of its materials. However, the Church’s contention that the disputed materials are “religious scripture” was not reconciled with the California statute’s reference to “economic value” as an element of a protectible trade secret. To be protectible as a trade secret under either Restatement section 757 or the new California statute, the confidential material must convey an actual or potential commercial advantage, presumably measurable in dollar terms. We do not accept that a trade secret can be based on the spiritual advantage the Church believes its adherents acquire over non-adherents by using the materials in the prescribed manner. Former Restatement § 757 defines trade secrets as information which is “used in one’s business, and which gives him an opportunity to obtain an advantage over competitors who do not know or use it.” (Emphasis added). See also 1 Milgrim § 2.02 (“An element common to the definitions [of trade secret] is actual use of the secret in a trade or business. ”) (emphasis added); Klitzke, Trade Secrets: Important Quasi-Property Rights, 41 Bus.Lawyer 555, 559 (1986) (“Information that" }, { "docid": "91100", "title": "", "text": "formula, pattern, compilation, program, device, method, technique, or process that is both of the following: a. Derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by a person able to obtain economic value from its disclosure or use. b. Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy. Iowa Code § 550.2(4); see also Olson v. Nieman’s, Ltd., 579 N.W.2d 299, 313 (Iowa 1998) (quoting this definition); Economy Roofing, 538 N.W.2d at 646 (same). As the Iowa Supreme Court has explained, “trade secrets” are broadly defined under Iowa law: In a recent case we gave a broad interpretation of “information” that could legally constitute “trade secrets”: Under the plain language of [Iowa Code section 550.2(4)] “trade secret” is defined as “information” and eight examples of this term are provided. Although these examples cover items normally associated with the production of goods, “trade secrets” are not limited to the listed examples. Business information may also fall within the definition of a trade secret, including such matters as maintenance of data on customer lists and needs, source of supplies, confidential costs, price data and figures. One commentator explains: Trade secrets can range from customer information, to financial information, to information about manufacturing processes to the composition of products. There is virtually no category of information that cannot, as long as the information is protected from disclosure to the public, constitute a trade secret. We believe that a broad range of business data and facts which, if kept secret, provide the holder with an economic advantage over competitors or others, qualify as trade secrets. US West Communications, Inc. v. Office of Consumer Advocate, 498 N.W.2d 711, 714 (Iowa 1993) (citations omitted). Economy Roofing, 538 N.W.2d at 646-47 (emphasis in original omitted). The Iowa Supreme Court has also explained that whether or not something is a “trade secret” is “a mixed question of law and fact.” Id. at 649. The “legal part of the question” of whether or not something is a “trade secret” is embodied" }, { "docid": "20695970", "title": "", "text": "(processes, methods and formulas for manufacturing an anti-cancer drug). But the scope of the EEA is not limited to these categories and the EEA, by its terms, includes financial and business information. The EEA defines a trade secret as all forms and types of financial, business, scientific, technical, economic, or engineering information, including ... compilations ... if (A) the owner thereof has taken reasonable measures to keep such information secret; and (B) the information derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable through proper means by the public.... 18 U.S.C. § 1839(3). The thrust of Nosal’s argument is that the source lists are composed largely, if not entirely, of public information and therefore couldn’t possibly be trade secrets. But he overlooks the principle that a trade secret may consist of a compilation of data, public sources or a combination of proprietary and public sources. It is well recognized that it is the secrecy of the claimed trade secret as a whole that is determinative. The fact that some or all of the components of the trade secret are well-known does not preclude protection for a secret combination, compilation, or integration of the individual elements.... [T]he theoretical possibility of reconstructing the secret from published materials containing scattered references to portions of the information or of extracting it from public materials unlikely to come to the attention of the appropriator will not preclude relief against the wrongful conduct. ... Restatement (Third) of Unfair Competition § 39 cmt. f (1995); see also Computer Care v. Serv. Sys. Enters., Inc., 982 F.2d 1063, 1074 (7th Cir.1992) (“A trade secret can exist in a combination of characteristics and components, each of which, by itself, is in the public domain, but the unified process design and operation of which in unique combination affords a competitive advantage and is a protectable trade secret” (internal citation omitted)); Boeing Co. v. Sierracin Corp., 108 Wash.2d 38, 738 P.2d 665, 675 (1987) (holding that “trade secrets frequently contain elements that by themselves may be in the public domain but together" }, { "docid": "11708258", "title": "", "text": "There is virtually no category of information that cannot, as long as the information is protected from disclosure to the public, constitute a trade secret. We believe that a broad range of business data and facts which, if kept secret, provide the holder with an economic advantage over competitors or others, qualify as trade secrets. US West Communications, Inc. v. Office of Consumer Advocate, 498 N.W.2d 711, 714 (Iowa 1993) (citations omitted). Econ. Roofing, 538 N.W.2d at 646-47 (emphasis in the original). The court, after reaffirming this broad interpretation of a “trade secret” under the act, noted that whether or not information in question constitutes a trade secret is “a mixed question of law and fact.” Id. at 648. The “legal part of the question” is whether the information in question “could constitute a trade secret under the first part of the definition of trade secret in section 550.2(4) (“ ‘Trade secret’ means information, including but not limited to a formula, pattern, compilation, program, device, method, technique, or process.... ”).” Id. The “fact part of the question,” on the other hand, arises from the remaining part of the statutory definition found in subdivisions (a) and (b) of § 550.2(4). Id. at 648-49. In other words, the factual question is whether the information is both of the following: a. Derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by a person able to obtain economic value from its disclosure or use[; and] b. Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy. Iowa Code § 550.2(4); Econ. Roofing, 538 N.W.2d at 649. In 205 Corp., the Iowa Supreme Court further explained these two factual elements of a trade secret. 205 Corp., 517 N.W.2d at 550-51. The court noted that as to the first limitation, in § 550.2(4)(a), the plaintiff must “show it derived economic value because the [confidential pizza recipes] were unknown to, and not readily ascertainable by, a person who would profit from their disclosure and use.” 205 Corp., 517 N.W.2d at" }, { "docid": "21689166", "title": "", "text": "and is otherwise confidential and proprietary. Florida law controls what is a “trade secret” in this case. Trade secrets are defined by Florida statute as: [Information, including a formula, pattern, compilation, program, device, method, technique, or process that: (a) Derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use, and (b) Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy. Fla. Stat. § 688.002(4) (2002). Florida courts have held that the term “trade secrets” includes active customer lists. Seth-scot Collection v. Drbul, 669 So.2d 1076 (Fla. 3d DCA 1996). Tree of Life professes that its “stock-in-trade is its customer list and the relationships maintained with those customers” (Doc # 5, p. 6). Accordingly, the Court finds that the information requested in Schedule A, numbers 5-7 and Schedule B, number 1 of the contested subpoena are protected from disclosure as “trade secrets” under Fla. Stat. § 688.002(4). Once Tree of Life has shown the requested discovery to be trade secrets, Tree of Life must then demonstrate that disclosure might be harmful. R & D Business Sys. v. Xerox Corp., 152 F.R.D. 195 (D.Colo.1993). As noted above, courts have presumed that disclosure to a competitor is more harmful than disclosure to a noncompetitor. See, e.g., Coca-Cola Bottling Co. v. Coca-Cola Co., 107 F.R.D. 288 (D.Del.1985); United States v. United Fruit Co., 410 F.2d 553, 557 (5th Cir.1969) (holding that a company would be harmed by disclosure of financial and marketing data to competitors). This Court finds that since Tree of Life and the Defendant are competitors, Tree of Life has made the required showing that the discovery requested in Subpoena Schedule A, numbers 5-7 and Subpoena Schedule B, number 1 are confidential and that their disclosure is potentially harmful. The burden then shifts to the Defendant to show that this information is relevant and necessary in proving its counter-claim against the Plaintiff. Duracell, Inc. v. SW Consultants, Inc., 126 F.R.D. 576 (N.D.Ga." } ]

[ { "docid": "15306951", "title": "", "text": "of action * * * is joined with one or more otherwise non-removable claims * * * the entire case may be removed and the district court may determine all issues therein, or, in its discretion, may remand all matters not otherwise within its original jurisdiction.” Prior to the amendment of 1948, it was possible to remove a separable controversy to the District Courts of the United States. The new wording makes it clear that separable controversies are no longer removable. “In other words, the fragment of a cause of action can no longer furnish a basis for removal; one of two or more causes of action may do so.” Moore’s Commentary on the U. S. Judicial Code, Section 36 at page 238. Under the new wording, one of two or more defendants may remove the cause of action as to himself only if it is in fact a separate rather than a separable cause of action. The amendment has thus narrowed rather than broadened removal. This point was recently brought home in the case of Sequoyah Feed & Supply Co., Inc., v. Robinson, D.C.Ark.1951, 101 F.Supp. 680. See also Butler Mfg. Co. v. Wallace & Tiernan Sales Corp., D.C.W. D.Mo.1949, 82 F.Supp. 635, 638; Board of Directors of Crawford County Levee Dist. v. Whiteside, D.C.Ark.1949, 87 F.Supp. 69, 71, 72; and Nelson v. Camp Mfg. Co., D.C.S.C.1942, 44 F.Supp. 554. Defendant cites the case of Stangard Dickerson Corp. v. United Electrical Radio & Machine Workers, etc., D.C.N.J.1940, 33 F.Supp. 449. It will be noted that this case interpreted the then pertinent section of the Judicial Code before the amendment. It was clearly pointed out at page 451 of 33 F. Supp. of that case that although each defendant did not file a petition for removal, they did file their consents to join in the petition. No such consent was filed by Dade Brothers, Inc., in the instant case. Nor can it be said that the fact that Dade Brothers, Inc., filed a protective answer and cross-claim in this court can be construed as a consent to' joinder. Where the" } ]

[ { "docid": "15674487", "title": "", "text": "superior courts many years ago stated that in joint actions against several defendants, all defendants who have been served with process must join in the petition for removal except where there is a separable controversy. Chicago, R. I. & P. Ry. Co. v. Martin, 1900, 178 U.S. 245, 20 S.Ct. 854, 44 L.Ed. 1055; Wright v. Missouri Pac. R. Co., 8 Cir., 1938, 98 F.2d 34. However, here a question arises because it might 'plausably be held that the present suit involves separable controversies as that term has become known in the law of removal. Pullman Co. v. Jenkins, 1939, 305 U.S. 534, 59 S.Ct. 347, 83 L.Ed. 334; Fraser v. Jennison, 1882, 106 U.S. 191, 1 S.Ct. 171, 27 L.Ed. 131. If it were so held the defendant insurance company would have effected a valid removal under the removal law which was applicable prior to 1948. The pertinent statute is the third sentence of Section 71 of 28 U.S.C., 1946 ed., which states: “And when in any suit mentioned in this section there shall be a controversy which is wholly between citizens of different States, and which can be fully determined as between them, then either one or more of the defendants actually interested’ in such controversy may remove said suit into the district court of the United States for the proper district.” One feature of this part of the old Section 71 was to provide an exception to the general proposition, which was enunciated in the other parts of that section, that only the “defendant or defendants” could remove; for this was the only part of the removal statutes which allowed “one or more of the defendants” to remove. If there were no “separable controversy”, one of several defendants could not remove by himself. Chicago, R. I. & P. Ry. Co. v. Martin, supra [178 U.S. 245, 20 S.Ct. 855], One further feature of the “separable controversy” provision, of course, was to allow removal of an entire lawsuit even though it involved a defendant who was a citizen of the state in which the suit was brought, wherever" }, { "docid": "14028043", "title": "", "text": "from a State court shall file in the district court of the United States for the district and division within which such action is pending a notice of removal signed pursuant to Rule 11 of the Federal Rules of Civil Procedure and containing a short and plain statement of the grounds for removal, together with a copy of all process, pleadings, and orders served upon such defendant or defendants in such action. 28 U.S.C. § 1446(a). 28 U.S.C. § 1446(a) has been interpreted as requiring all defendants to join in a removal petition. See Lapides v. Bd. of Regents of the Univ. Sys. of Ga., 535 U.S. 613, 620, 122 S.Ct. 1640, 152 L.Ed.2d 806 (2002)(citing 28 U.S.C. § 1446(a) and Chicago, R.I. & P.R. Co. v. Martin, 178 U.S. 245, 248, 20 S.Ct. 854, 44 L.Ed. 1055 (1900)); Akin v. Ashland Chem. Co., 156 F.3d 1030, 1034-35 (10th Cir.1998); Cornwall v. Robinson, 654 F.2d 685, 686 (10th Cir.l981)(“A co-defendant ... did not join in the petition for removal and the petition was thus procedurally defective.”); 16 J. Moore, Moore’s Federal Practice, § 107.11[l][c], at 107-36-37 (3d ed. 2006)(“Because the right of removal is jointly held by all the defendants, the failure of one defendant to join in the notice precludes removal. This rule requires that there be some timely written indication from each served defendant ... that the defendant has actually consented to removal.”). Section 1446 specifies timing requirements for removal. See 28 U.S.C. § 1446(b). “In a case not originally removable, a defendant who receives a pleading or other paper indicating the postcommencement satisfaction of federal jurisdictional requirements — for example, by reason of the dismissal of a nondiverse party — may remove the case to federal court within 30 days of receiving such information. § 1446(b).” Caterpillar Inc. v. Lewis, 519 U.S. 61, 68-69, 117 S.Ct. 467, 136 L.Ed.2d 437 (1996). “Under § 1446(b), the removal period does not begin until the defendant is able ‘to intelligently ascertain removability so that in his petition for removal he can make a simple and short statement of the facts.’" }, { "docid": "16582742", "title": "", "text": "action. The Reviser’s Notes say that, “Subsection (c) permits the removal of a separate cause of action but not of a separable controversy unless it constitutes a separate and independent claim or cause of action within the original jurisdiction of United States District Courts. In this respect it will somewhat decrease the volume of Federal litigation.” (Emphasis supplied.) The comment in Federal Practice and Procedure, Vol. 1, pp. 186 and 187, by Barron and Holtzoff, is illuminating: “The emphasis placed upon ‘a separate and independent claim or cause of actidn’ is in accord with the cases which under the former statute held a separable controversy to mean a separate cause of action. The controversy -must be wholly between the plaintiff and the defendant seeking removal, and capable of being determined finally between them, with complete relief being afforded as to the separate cause of action, without the presence of others originally made parties to the action.” The following quotations from Professor Moore’s Commentary cast light on the meaning to be given the new section: At page 238: “In other words the fragment of a cause of action can no longer furnish a basis for removal; one of two or more causes of action may do so. So that the old separable controversy wine will not be served under the new label, courts must give a broad meaning to cause of action. Thus where a group of operative facts give rise to a claim on the part of the plaintiff, as where several persons contribute to his injury and he sues one or more of them in one action, the plaintiff is proceeding on one cause of action, and it is not removable under Section 1441(c).” At page 239: “The Revisers had two reasons for eliminating the separable controversy as a basis for removal. First, this ground for removal had been added following the Civil War in ah effort to protect a non-resident defendant, who had been joined with one or more local defendants under the relaxed and expanding state joinder provisions. Second, the confusion surrounding the concept of separability overshadowed" }, { "docid": "348540", "title": "", "text": "the defendant union being an unincorporated, voluntary association of more than seven members no one of whom is a resident of New Jersey, but all of whom are residents of New York. The other defendants filed their consents to j oin in this petition. The Court of Chancery of New Jersey denied the petition for removal and thereupon an exemplified copy of the proceedings was filed in this court together with defendant’s motion that this court order a removal.- Complainant moved that the cause should be remanded to the Court of Chancery of New Jersey. Complainant resists removal on the following grounds: 1. The petition for removal is defective because, only one of the defendants has applied for removal in a duly verified petition as required by statute. 28 U.S.C.A. § 72. 2. The petition for removal is unsupported by allegations of fact to show that $3,000, the jurisdictional prerequisite is involved. 3. A removal would deprive complainant of its substantive right under the law of New Jersey to an injunction, since such could not issue under the Norris-LaGuardia Act, 29 U.S.C.A. § 101 et seq. It is noted that only one defendant, Henry Heynick, filed the petition for removal in the state court. The remaining defendants filed their consents to join in that petition. It is claimed that it is, necessary for all the defendants to actually join in the petition for removal and verification thereof, and that the consent to joinder as filed does not suffice. The only case cited in this connection is Chicago, Rock Island & Pacific Ry. v. Martin, 178 U.S. 245, 20 S.Ct. 854, 44 L.Ed. 1055, which holds that all defendants must join in the petition. That case throws no light on the procedure adopted in this case, and we have been unable to find illuminating authority on the point. It seems to us that the procedure utilized is a simple and effective means to adequately satisfy the requirement of the removal statute. The first objection that the petition for removal is defective is, therefore, overruled. The petition for removal alleges that the" }, { "docid": "19986684", "title": "", "text": "v. Dairyland Ins. Co., 143 F.3d 1337, 1340 (10th Cir.1998): Building Erection Serv. Co. v. Ceco Corp., 760 F.Supp. 188, 189 (D.Kan.1991). Statutorily imposed penalties and damages may also be considered in assessing whether the amount-in-controversy threshold has been met. See St. Paul Reinsurance Co. v. Greenberg, 134 F.3d 1250, 1253 (5th Cir.1998). To remove a civil action, the defendant must also follow certain statutory procedures. See 28 U.S.C. § 1446. Because removal is entirely a statutory right, the relevant procedures to effect removal must be followed. See Lewis v. Rego Co., 757 F.2d 66, 68 (3rd Cir.1985). Pursuant to 28 U.S.C. § 1446(a), [a] defendant or defendants desiring to remove any civil action ... from a State court shall file in the district court of the United States for the district and division within which such action is pending a notice of removal signed pursuant to Rule 11 of the Federal Rules of Civil Procedure and containing a short and plain statement of the grounds for removal, together with a copy of all process, pleadings, and orders served upon such defendant or defendants in such action. 28 U.S.C. § 1446(a). 28 U.S.C. § 1446(a) has been interpreted as requiring all defendants to join in a removal petition. See Lapides v. Bd. of Regent’s of the Univ. Sys. of Ga., 535 U.S. 613, 620, 122 S.Ct. 1640, 152 L.Ed.2d 806 (2002)(citing 28 U.S.C. § 1446(a) and Chicago, R.I. & P.R. Co. v. Martin, 178 U.S. 245, 248, 20 S.Ct. 854, 44 L.Ed. 1055 (1900)); Akin v. Ashland Chem. Co., 156 F.3d 1030, 1034-35 (10th Cir.1998); Cornwall v. Robinson, 654 F.2d 685, 686 (10th Cir.1981)(“A co-defendant ... did not join in the petition for removal and the petition was thus procedurally defective.”); J. Moore, Moore’s Federal Practice, § 107.11[l][c], at 107-36-37 (3rd ed. 2006)(“Because the right of removal is jointly held by all the defendants, the failure of one defendant to join in the notice precludes removal. This rule requires that there be some timely written indication from each served defendant ... that the defendant has actually consented to removal.”). With" }, { "docid": "13547256", "title": "", "text": "3, 1999, Defendant removed the action to the United States District Court for the Central District of California — Eastern Division based on diversity jurisdiction pursuant to 28 U.S.C. § 1332, based on Defendant’s Notice of Removal which she filed on that date. Plaintiff now seeks to remand the action, arguing both that Defendant’s removal was untimely and that complete diversity does not exist because Lyons is a California resident. Defendant counters that removal was timely and that Lyons’ presence in the suit does not destroy diversity because he was fraudulently joined. II. ANALYSIS A defendant may remove a civil case from state to federal court if it there is diversity or federal question jurisdiction. See 28 U.S.C. § 1441(a) & (b). However, a defendant must comply with the procedural requirements for removal pursuant to 28 U.S.C. § 1446(b) (“section 1446(b)”). As set forth in paragraph one of section 1446(b), a defendant must file a notice of removal of the action within thirty 30 days after receipt of a complaint which reveals the presence of a substantial federal ques tion or the existence of diversity. See section 1446(b). Furthermore, where there are multiple defendants, all defendants must join in the petition for removal; this proposition is referred to as the “unanimity rule.” See Chicago, Rock Island & Pacific Railway Co. v. Martin, 178 U.S. 245, 248, 20 S.Ct. 854, 855, 44 L.Ed. 1055 (1900). Thus, any one defendant may prevent a case from being removed. If a defendant’s removal notice fails to meet the procedural requirements of section 1446(b), such as timeliness or unanimity, a court may remand the action upon a plaintiffs timely motion. See 28 U.S.C. § 1447(c) (“A motion to remand the case on any basis other than subject matter jurisdiction must be made within 30 days after the filing of the notice of removal under section 1446(a)” ....); see also Maniar v. Federal Deposit Ins. Corp., 979 F.2d 782, 785 (9th Cir.1992) (holding failure to remove timely is a procedural defect, rather than a jurisdictional defect). Removal statutes are strictly construed against removal jurisdiction. See Gaus" }, { "docid": "712469", "title": "", "text": "is established beyond peradventure that, by virtue of a fair reading of 28 U.S.C. § 1446(a), all defendants who have been served and who .are eligible to join the removal petition must so join. Chicago, Rock Island and Pacific Railway Co. v. Martin, 178 U.S. 245, 248, 20 S.Ct. 854, 855, 44 L.Ed. 1055 (1900); Tri-Cities Newspapers, Inc. v. TriCities Printing Pressmen and Assistants Local 349, 427 F.2d 325, 326-27 (5th Cir.1970); Bradford v. Harding, 284 F.2d 307, 309 (2nd Cir.1960); Friedrich, 467 F.Supp. at 1013. “In other words, unanimity among all defendants substantively entitled to remove is required for removal.” Id. There are three basic exceptions to this rule in a diversity case: (i) nominal or formal parties are not required to join in the removal petition, Albonetti v. GAF Corp.-Chemical Group, 520 F.Supp. 825, 827 (S.D.Tex.1981), (ii) defendants who have not yet been served with process at the time of the petition for removal are not required to conjoin, Pullman v. Jenkins, 305 U.S. 534, 540-41, 59 S.Ct. 347, 350, 85 L.Ed. 334 (1939), and (iii) distinct and independent claims or causes of action may be separately removable pursuant to 28 U.S.C. § 1441(c). Perrin, 385 F.Supp. at 947. The instant defendants have not urged the applicability of any of these exceptions to the case at bar. III. ISSUE PRESENTED Refined to their barest essence, the circumstances of this case reflect that the plaintiff sued out a removable complaint against Abbott; that Abbott forewent its right to transfer the case to a federal forum; that, when the other defendants were added, Merck and Merck alone filed a timely petition for removal; that the remaining defendants (including Abbott) joined in Merck’s petition after the motion to remand was filed (but before the expiration of thirty days from the date of service of the amended complaint); that none of the defendants is a nominal or formal party; and that the plaintiff’s claims against all of the defendants are so closely intertwined that the prophylaxis of 28 U.S.C. § 1446(c) is not available. The following questions emerge under § 1446(b): if" }, { "docid": "348541", "title": "", "text": "issue under the Norris-LaGuardia Act, 29 U.S.C.A. § 101 et seq. It is noted that only one defendant, Henry Heynick, filed the petition for removal in the state court. The remaining defendants filed their consents to join in that petition. It is claimed that it is, necessary for all the defendants to actually join in the petition for removal and verification thereof, and that the consent to joinder as filed does not suffice. The only case cited in this connection is Chicago, Rock Island & Pacific Ry. v. Martin, 178 U.S. 245, 20 S.Ct. 854, 44 L.Ed. 1055, which holds that all defendants must join in the petition. That case throws no light on the procedure adopted in this case, and we have been unable to find illuminating authority on the point. It seems to us that the procedure utilized is a simple and effective means to adequately satisfy the requirement of the removal statute. The first objection that the petition for removal is defective is, therefore, overruled. The petition for removal alleges that the value of the property complainant seeks to protect exceeds $3,000, and that the relief prayed for, if granted, would damage defendants in excess of $3,000. In support of their contention that this jurisdictional prerequisite is present the petitioners show that the Stangard Dickerson Corporation’s complaint in the Chancery Court action averred that it had an investment in plant and equipment at its premises in Newark, N. J., amounting to $29,000, and cite the cases of Union Premier Food Stores, Inc. et al. v. Retail Food Clerks and Managers Union, 3 Cir., 98 F.2d 821, and Tri-City Central Trades Council, et al. v. American Steel Foundries, 7 Cir., 238 F. 728; Id., 257 U.S. 184, 42 S.Ct. 72, 66 L.Ed. 189, 27 A.L.R. 360, both of which involve injunctions in labor disputes. They also cite the cases of James Heddon’s Sons v. Callender, D.C., 28 F.Supp. 643, and Campbell Baking Co. et al. v. City of Maryville, D.C., 31 F.2d 466. In the case of Union Premier Food Stores, Inc., et al. v. Retail Food Clerks" }, { "docid": "15674486", "title": "", "text": "Any civil action of which the district courts have original jurisdiction founded on a claim or right arising under the Constitution, trea ties or laws of the United States shall be removable without regard to the citizenship or residence of the parties. Any other such action shall be removable only if none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought. “(c) Whenever a separate and independent claim or cause of action, which would be removable if sued upon alone, is joined with one or more ' otherwise non-removable claims or causes of action,, the entire case may be removed and the district court may determine all issues therein, or, in its discretion, may remand all matters not otherwise within its original jurisdiction.” If this suit involved merely a simple claim of joint liability against the defendants, there could be little doubt but that the failure of one co-defendant to join in the petition for removal would be fatal; for our superior courts many years ago stated that in joint actions against several defendants, all defendants who have been served with process must join in the petition for removal except where there is a separable controversy. Chicago, R. I. & P. Ry. Co. v. Martin, 1900, 178 U.S. 245, 20 S.Ct. 854, 44 L.Ed. 1055; Wright v. Missouri Pac. R. Co., 8 Cir., 1938, 98 F.2d 34. However, here a question arises because it might 'plausably be held that the present suit involves separable controversies as that term has become known in the law of removal. Pullman Co. v. Jenkins, 1939, 305 U.S. 534, 59 S.Ct. 347, 83 L.Ed. 334; Fraser v. Jennison, 1882, 106 U.S. 191, 1 S.Ct. 171, 27 L.Ed. 131. If it were so held the defendant insurance company would have effected a valid removal under the removal law which was applicable prior to 1948. The pertinent statute is the third sentence of Section 71 of 28 U.S.C., 1946 ed., which states: “And when in any suit mentioned in this section there shall" }, { "docid": "22341086", "title": "", "text": "one thing in one brief and then swearing the opposite thing in a subsequent affidavit after it became clear that telling a new story might benefit his client. If we were to permit Shaw to get away with this, we would be allowing him to manipulate defendants in the very manner that is prohibited by the rule in St. Paul: once removal is perfected, the plaintiff cannot suddenly decide that, after all, the amount in controversy is less than the jurisdictional amount so that the case must go shuttling back to state court. Shaw’s second jurisdictional argument is that removal is defective because not all defendants consented, which they must. Chicago, Rock Island & Pac. Ry. Co. v. Martin, 178 U.S. 245, 248, 20 S.Ct. 854, 855, 44 L.Ed. 1055 (1900). In this instance, Shaw filed suit against four defendants and only one, Dow Brands, signed the removal petition. A petition is considered defective if it fails to explain why the other defendants have not consented to removal. Northern Ill. Gas Co. v. Airco Industrial Gases, a Division of Airco, Inc., 676 F.2d 270, 273 (7th Cir.1982). Dow Brands gave no such explanation; therefore, its petition was defective on its face, although neither the parties nor the district court raised the matter until our order shortly before oral argument. In the meantime, Dow Brands has submitted an affidavit that purports to explain the absence of Block, Wal-Mart and Dow Chemical. The affidavit raises two questions: should we allow this belated explanation, and is the explanation convincing? Removal petitions may be freely amended for thirty days after a defendant receives a copy of the state court complaint, or is served, whichever comes first. 28 U.S.C. § 1446(b). Of course, the thirty days elapsed long ago in this case. Although the time limit is said to be strictly applied, Northern Ill. Gas, 676 F.2d at 273, the time limit is not jurisdictional, Ryan v. State Bd. of Elections of the State of Ill., 661 F.2d 1130, 1134 (7th Cir.1981), and in fact amendments to correct “defective allegations of jurisdiction” are permitted under" }, { "docid": "22888219", "title": "", "text": "Insurance Co. of North America, 841 F.2d 1254, 1262 n. 11 (5th Cir.1988). A party may be able to establish that joinder is unnecessary — as it would be if, for example, the non-joining defendant were a nominal party or had not yet been served with process — but the Red Cross did not assert that any of the other defendants could be disregarded for this purpose. When opposing the motion to remand, the Red Cross contended that in light of 36 U.S.C. § 2 it may remove without obtaining other defendants’ consent. Only one court of appeals has addressed this question. Doe v. Kerwood, 969 F.2d 165 (5th Cir.1992), holds that § 2 does not exempt the Red Cross from complying with the rules ordinarily applicable to removal. We are not disposed to create a conflict among the circuits on this bit of jurisdictional esotérica — especially not in light of Chicago, Rock Island & Pacific Ry. v. Martin, 178 U.S. 245, 20 S.Ct. 854, 44 L.Ed. 1055 (1900), which applies the principle of Hanrick and Torrence, originally developed in diversity cases, to litigation in which one defendant seeks to remove under the federal-question jurisdiction. Kerwood does not lead to a remand, however, because all parties must follow statutory procedures. Just as defendants who want to remove need to act promptly and obtain support from other parties, so plaintiffs who want to remand need to act promptly. “A motion to remand the case on the basis of any defect in removal procedure must be made within 30 days after the filing of the notice of removal under section 1446(a).” 28 U.S.C. § 1447(c). Proceedings to determine where the litigation will occur ought to be conducted with dispatch, so that the case may proceed to disposition on the merits. The short deadlines for removal and motions to remand expedite the identification of the proper tribunal. The Red Cross removed the ease in March 1991, but not until September 1992 did Roe alert the district court to the lack of other defendants’ joinder and seek remand on this basis. True, Roe" }, { "docid": "6580286", "title": "", "text": "state corporation, did not join in the removal petition. Chicago, Rock Island & Pacific Railway Company v. Martin, 178 U.S. 245, 248, 20 S.Ct. 854, 855, 44 L.Ed. 1055 (1900) (construing “defendant or defendants” in the Judiciary Act of 1887-1888, a predecessor statute to § 1441, as prohibiting removal “unless all the parties on the same side of the controversy unite[ ] in the petition”); see also Matter of Dunn, 212 U.S. 374, 387, 29 S.Ct. 299, 303 (denying remand petition because, unlike Martin, “all of the defendants [ ] joined” in the application of their codefendant, a federally-chartered corporation). Thus, removal of this action requires that all defendants properly join in Amtrak’s petition. The remaining question is whether Amtrak’s submission of a stipulation reflecting its codefendants’ acquiescence in the removal petition satisfies the timeliness requirement of § 1446(b). Amtrak does not dispute that the stipulation was filed more than thirty days following defendants’ receipt of plaintiff’s initial pleading. Although § 1446(b)’s thirty-day requirement is not jurisdictional, “the time limitation is mandatory and must be strictly construed.” Fellhauer v. City of Geneva, 673 F.Supp. 1445, 1447 (N.D.Ill.1987). If all defendants do not join the removal petition within the thirty-day period, remand is the proper course. Id.; Stokes v. Victory Carriers, 577 F.Supp. 9, 10 (E.D.Pa.1983) (“28 U.S.C. § 1446(b) has consistently been interpreted to require all served defendants to join in the removal petition within thirty days of their receipt of the initial pleading.”). Amtrak offers no basis for departing from the presumption that § 1446(b)’s thirty-day filing period shall be enforced. Accordingly, plaintiff’s Motion to Remand will be granted in an accompanying Order. ORDER For the reasons stated in the accompanying Memorandum, plaintiffs Motion to Remand is GRANTED, and this action is hereby REMANDED to the Court of Common Pleas of Philadelphia County. On Motion To Reconsider Defendant Amtrak seeks reconsideration of this court’s April 28,1989 Order remanding this action to the Court of Common Pleas of Philadelphia County pursuant to 28 U.S.C. § 1447(c). Such Order, however, cannot be reconsidered “once [it] has been entered and a certified" }, { "docid": "16105450", "title": "", "text": "parties to the petition for removal. It is well settled that all defendants must join in the petition for removal. Chicago, Rock Island & Pac. Ry. v. Martin, 178 U.S. 245, 248, 20 S.Ct. 854, 44 L.Ed. 1055 (1900); Gableman v. Peoria D. & E. Ry., 179 U.S. 335, 337, 21 S.Ct. 171, 45 L.Ed. 220 (1900); Heatherington v. Allied Van Lines, Inc., 194 F.Supp. 6 (W.D.S.C.1961); 1A J. Moore, Federal Practice, ¶ 0.168 [3.-2], pp. 1171, 1175 (2d ed. 1961). But Nowell contends that under 28 U.S.C. § 1441(c) if a suit against several defendants contains an independent claim or cause of action of which a federal district court would have original jurisdiction which is joined with another claim or cause of action against other defendants, only the defendant involved in the removable claim need petition. See Board of Directors of Crawford County Levee Dist. v. Whiteside, 87 F.Supp. 69, 71-72 (W.D.Ark.1949); Heatherington v. Allied Van Lines, Inc., supra 194 F.Supp. at 7. 28 U.S.C. § 1441 (c) provides: “Whenever a separate and independent claim or cause of action, which would be removable if sued upon alone, is joined with one or more otherwise non-removable claims or causes of action, the entire case may be removed and the district court may determine all issues therein, or, in its discretion, may remand all matters not otherwise within it's original jurisdiction.” To be ¡removable, these conditions must be present. The claim against Nowell must b.e: (1) a separate and independent cause of action; (2) removable if sued upon alone; and (3) joined-with an otherwise nonremovable claim or cause of action. Let us look at each of these. II. Assuming arguendo the claim against him in his individual capacity is “separate and independent” from the creditors bill against the three co-trustees, reference to subsection (a) of § 1441 reveals that removability is keyed to original jurisdiction of the district courts. The applicable statute which confers original jurisdiction is § 1332. It requires that diversity of citizenship and more than $10,000 in controversy must be present. Even if the portion of the claim" }, { "docid": "13410894", "title": "", "text": "cannot represent CNA or vice versa, because it is in the best interest of each insurance company to spread any potential liability for defense and indemnity costs among as many insurance companies as possible. See Answer of Defendant National Union Fire Insurance Company of Pittsburgh, PA to Breach of Complaint for Declaratory Judgment and Breach of Contract, Sixth Defense at 5, filed April 27, 2010 (Doc. 5)(“The Plaintiffs claims as to National Union are barred based upon the availability and applicability of other insurance.”). Thus, the issue is whether one defense attorney can represent, under rule II, that another defendant that the attor ney does not represent consents to the transfer. Specifically, the issue is whether CNA can express its consent to removal only by either signing the notice of removal or by filing a separate document stating its consent or joinder, or if National Union’s representation is sufficient. Tresco maintains that, at an absolute minimum, the fact that “the overwhelming weight of authority” requires remand creates substantial doubt regarding the Defendants’ ability to remove this case to federal court. See Reply at 3. Tresco contends, therefore, that the principle that the removal statutes must be construed narrowly, with any doubts being resolved against removability, dictates that the Court must remand the case to state court. The Defendants ask the Court to not follow the authority which holds that each defendant must either sign the removal petition or submit a timely notice of consent in writing, and to deny Tresco’s motion to remand. That separate counsel represent CNA and National Union should not mean that CNA must file an independent notice of consent. The “rule of unanimity,” which the Supreme Court announced in Chicago, Rock Island, & Pacific Railway Co. v. Martin, 178 U.S. 245, 248, 20 S.Ct. 854, 44 L.Ed. 1055 (1900), as an interpretation of a predecessor removal statute, says only that “all the defendants must join in the application” for removal. 178 U.S. at 248, 20 S.Ct. 854. The Tenth Circuit has used the same language when discussing the requirements for removal. See Akin v. Ashland Chem." }, { "docid": "13410895", "title": "", "text": "this case to federal court. See Reply at 3. Tresco contends, therefore, that the principle that the removal statutes must be construed narrowly, with any doubts being resolved against removability, dictates that the Court must remand the case to state court. The Defendants ask the Court to not follow the authority which holds that each defendant must either sign the removal petition or submit a timely notice of consent in writing, and to deny Tresco’s motion to remand. That separate counsel represent CNA and National Union should not mean that CNA must file an independent notice of consent. The “rule of unanimity,” which the Supreme Court announced in Chicago, Rock Island, & Pacific Railway Co. v. Martin, 178 U.S. 245, 248, 20 S.Ct. 854, 44 L.Ed. 1055 (1900), as an interpretation of a predecessor removal statute, says only that “all the defendants must join in the application” for removal. 178 U.S. at 248, 20 S.Ct. 854. The Tenth Circuit has used the same language when discussing the requirements for removal. See Akin v. Ashland Chem. Co., 156 F.3d at 1034 (stating that the general removal rule “require[s] all defendants to join in the removal petition.”); Cornwall v. Robinson, 654 F.2d at 686 (“A co-defendant, Interstate Book Company, did not join in the petition for removal and the petition was thus procedurally defective.”). As the Ninth Circuit noted in Proctor v. Vishay Intertechnology Inc., there is no federal rule or statute requiring a particular manner of joinder or requiring separate written consent from each defendant. See 584 F.3d at 1225. As noted in the Court’s holding in Roybal v. City of Albuquerque, a separate notice of consent to removal would be a judicially imposed “special requirement” that Congress has not mandated. 2008 WL 5991063, at *1, 2008 U.S. Dist. LEXIS 108749, at *1. The Court will not create such “special requirement” in this case. Under 28 U.S.C. § 1446(a), “[a] defendant or defendants desiring to remove any civil action” must file a “notice of removal signed pursuant to Rule 11 of the Federal Rules of Civil Procedure.” Rule 11, in turn," }, { "docid": "22844277", "title": "", "text": "was unnecessary to effect removal. The court’s opinion did not address NI-Gas’ arguments that the initial petition was fatally defective for failure to allege the reason for non-joinder and that the amended petition’s untimeliness precluded it from curing the defect. The court also denied NI-Gas’ motion for a permanent stay of arbitration and dismissed the cause, directing the parties to submit their dispute to arbitration. Removal Jurisdiction NI-Gas argues that the district court erred in denying its motion to remand. NI-Gas does not appeal from the ruling below that the AAA is a nominal party; instead it contends that the initial removal petition was defective for its failure to allege the nominal party status of the AAA and that the amended petition was untimely. As a general rule, all defendants must join in a removal petition in order to effect removal. Chicago, Rock Island, & Pacific Railway Co. v. Martin, 178 U.S. 245, 248, 20 S.Ct. 854, 855, 44 L.Ed. 1055 (1900); P. P. Farmers Elevator Co. v. Farmers Elevator Mutual Insurance Co., 395 F.2d 546, 547 (7th Cir. 1968). Nominal parties, however, are disregarded for removal purposes and need not join in the petition. Ryan v. State Board of Elections of the State of Illinois, 661 F.2d 1130, 1134 (7th Cir. 1981); First National Bank of Chicago v. Mottola, 302 F.Supp. 785, 790-91 (N.D.II1.1969), aff’d sub nom., First National Bank of Chicago v. Ettilinger, 465 F.2d 343, 345 (7th Cir. 1972). See Salem Trust Co. v. Manufacturers Finance Co., 264 U.S. 182, 189, 44 S.Ct. 266, 267, 68 L.Ed. 628 (1924); The Removal Cases, 100 U.S. 457, 469, 25 L.Ed. 593 (1879). Because it is incumbent upon a party petitioning to remove a state court case to federal court to allege in the petition “a short and - plain statement of the facts which entitle” him to remove, 28 U.S.C. § 1446(a), a petition filed by less than all of the named defendants is considered defective if it fails to contain an explanation for the absence of co-defendants. Wright v. Missouri Pacific Railroad Co., 98 F.2d 34, 36 (8th" }, { "docid": "22844276", "title": "", "text": "petition unilaterally; the AAA neither joined in the petition nor otherwise consented to removal. The removal petition itself did not attempt to explain the reason for the AAA’s lack of joinder or consent. On February 3, 1981 NI-Gas moved to remand the cause to state court pursuant to 28 U.S.C. § 1447(c), arguing, Inter alia, that the removal petition was defective because the AAA had not joined in the petition and the petition did not explain the reason for the AAA’s absence. In the alternative, NI-Gas moved for a determination, ostensibly pursuant to Fed.R.Civ.P. 56, that the underlying dispute was not arbitrable under the arbitration clause. Aireo filed what was denominated an “amended petition” for removal on February 20, 1981 which contained a statement that the AAA had not joined in the petition because “it is a nominal party and its joinder is not necessary for removal.” NI-Gas argued that the amended petition was untimely. The district court, denying the motion to remand, held that the AAA was a nominal party and hence its joinder was unnecessary to effect removal. The court’s opinion did not address NI-Gas’ arguments that the initial petition was fatally defective for failure to allege the reason for non-joinder and that the amended petition’s untimeliness precluded it from curing the defect. The court also denied NI-Gas’ motion for a permanent stay of arbitration and dismissed the cause, directing the parties to submit their dispute to arbitration. Removal Jurisdiction NI-Gas argues that the district court erred in denying its motion to remand. NI-Gas does not appeal from the ruling below that the AAA is a nominal party; instead it contends that the initial removal petition was defective for its failure to allege the nominal party status of the AAA and that the amended petition was untimely. As a general rule, all defendants must join in a removal petition in order to effect removal. Chicago, Rock Island, & Pacific Railway Co. v. Martin, 178 U.S. 245, 248, 20 S.Ct. 854, 855, 44 L.Ed. 1055 (1900); P. P. Farmers Elevator Co. v. Farmers Elevator Mutual Insurance Co., 395 F.2d" }, { "docid": "16402808", "title": "", "text": "Hudler’s consent nor a brief statement explaining why such consent might be unnecessary. On June 29, 2000, the defendants moved to amend their notice of removal to include an explanation for the absence of Mr. Hudler’s consent. The motions have been fully briefed and are ready for resolution by the court. DISCUSSION “As a general rule, all defendants must join in a removal petition in order to effect removal.” Northern Illinois Gas Co. v. Airco Industrial Gases, Div. of Airco, Inc., 676 F.2d 270, 272 (7th Cir.1982)(citing Chicago, Rock Island & Pacific Ry. Co. v. Martin, 178 U.S. 245, 248, 20 S.Ct. 854, 855, 44 L.Ed. 1055 (1900)). In this case, correspondence among the parties suggest that despite the dismissal of plaintiffs’ claims against him, Mr. Hudler still remained in the case when plaintiffs’ first notice of removal was filed, at least as a third party defendant to the cross-claim of Quad/Graphics. See Affidavit accompanying defendants’ Motion to Amend Notice of Removal, Exhibit F; Affidavit accompanying plaintiffs’ Motion to Remand, Exhibits F and G. Mr. Hudler’s consent to removal was never sought, however, nor was it ever granted. The primary question faced by this court is whether, at the time the first notice of removal was filed, Mr. Hudler was a “defendant” for purposes of the removal statute. If he was, the notice was defective for failing to include either his consent, or an explanation why his consent was unnecessary. See Northern Illinois, 676 F.2d at 273 (“Because it is incumbent upon a party petitioning to remove a state court case to federal court to allege in the petition ‘a short and plain statement of the facts which entitle him to remove,’ 28 U.S.C. § 1446(a), a petition filed by less than all of the named defendants is considered defective if it fails to contain an explanation for the absence of co-defendants”). If he was not, his consent was not required, and the notice was not defective in this regard. Unfortunately, the parties have failed to direct the court to any cases addressing the issue of whether a defendant who" }, { "docid": "18317817", "title": "", "text": "of our jurisdiction is the Labor Management Act, 29 U.S.C. § 185, and there is no need for diversity of citizenship when the basis of jurisdiction is a federal question. Crawford v. East Asiatic Co., 156 F.Supp. 571 (N.D.Cal.1957). However, we agree with plaintiff that the Union was a party defendant at the time the removal petition was filed and its failure to join in the petition is fatal to removal. Section 1441(a) of 28 U.S.C. states that an action may be removed “by the defendant or the defendants.” This has generally been read to mean that where there are multiple defendants, all defendants must join in the removal petition. 1A Moore’s Federal Practice, ¶ 0.160 at p. 193, notes and cases cited therein (2nd ed. 1979). There appears to be a practical reason for the rule in diversity cases. It facilitates an early determination of whether there is in fact complete diversity of all defendants and, by requiring an affirmation of federal jurisdiction by all defendants, probably reduces the number of improvident removals. The rationale for requiring joinder of all defendants in a removal petition in federal question cases has rarely been discussed by the courts or the commentators. Chicago Rock Island & Pacific Ry. Co. v. Martin, 178 U.S. 245, 20 S.Ct. 854, 44 L.Ed. 1055 (1900); Tri-Cities Newspapers, Inc. v. Tri-Cities Printing Pressmen & Assistants, Local 349, 427 F.2d 325 (5th Cir. 1970); McKinney v. Rodney C. Hunt Co., 464 F.Supp. 59 (W.D.N.C.1978); Moore’s Federal Practice, supra, at ¶¶ 0.160, 0.168[3.—2], However, at least three arguments can be made for applying the rule to federal question cases. First, it eliminates the risk of inconsistent adjudications in state and federal court. The same thing could, of course, be accomplished by simply allowing the entire case to be removed upon the petition of any one defendant. However, this suggests the second argument for the requirement that all defendants join — the concern that one defendant not be permitted to impose his choice of forum upon other unwilling defendants and an unwilling plaintiff. Chicago, Rock Island & Pacific Ry. Co.," }, { "docid": "20787248", "title": "", "text": "OPINION AND ORDER FEIKENS, District Judge. Plaintiffs, Dawn and Clayton J. Van Slambrouck, bring a motion to remand this cause to state court. This suit was filed on October 24, 1972, in Wayne County Circuit Court. On November 10, 1972, defendant Employers Mutual Liability Insurance Company of Wisconsin [Employers] filed a petition to remove the case to this court. The other defendant, Black Brothers Company [Black Bros.], did not join in the removal petition until December 12, 1972. On December 13, 1972, plaintiffs brought this motion to remand saying the failure of both defendants to timely file is a defect fatal to removal. Employers resists remand, citing 28 U.S.C. § 1441(c). That section provides : “Whenever a separate and independent claim or cause of action, which would be removable if sued upon alone, is joined with one or more otherwise nonremovable claims or causes of action, the entire ease may be removed and the district court may determine all issues therein, or, in its discretion, may remand all matters not otherwise within its original jurisdiction.” Employers says that plaintiffs’ claims against it and Black Bros, are “separate and independent,” and since the claim against Black Bros, is not now removable, this court may remove “the entire case . . . and . . . determine all issues therein.” In approaching the instant matter this court takes note of some fundamental principles of the law of removal. Removal is a purely statutory right which is to be strictly construed in view of the congressional policy against removal. Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 61 S.Ct. 868, 85 L.Ed. 1214 (1941); Great Northern Ry. Co. v. Alexander, 246 U.S. 276, 38 S.Ct. 237, 62 L.Ed. 713 (1918). Section 1441(c) was the result of a 1948 amendment aimed at abridging the right of removal. American Fire & Casualty v. Finn, 341 U.S. 6, 71 S.Ct. 534, 95 L.Ed. 702 (1951). It is hornbook law that all defendants must join in a petition for removal. Chicago, Rock Island & Pac. Ry. v. Martin, 178 U.S. 245, 20 S.Ct. 854, 44" } ]

[ { "docid": "15158591", "title": "", "text": "of claims, she has not established an ERISA plan.” Id. In Weinstein, 15 F.Supp.2d at 558, the court considered whether the employer had established or maintained an ERISA plan. According to the court, the fact that the employer purchased multiple disability insurance policies for the plaintiff and other professional employees was substantial evidence that an ERISA plan had been established. Id. The court found that the employer assumed at least some responsibility for the administration of the program by providing an insurance broker to assist employees with the application process for the individual disability policies. Id. The court also found that the insurance broker acted as a sort of intermediary between the employees and the disability carrier. Id. The court concluded that the company, “by providing the insurance broker, assumed a role in the ongoing administration of the policy.” Id.See also Kuehl v. Provident Life and Accident Ins. Co., No. 97-1021, 2000 U.S. Dist. LEXIS 21625 (E.D.Wis.2000) (Despite the fact that individual disability policies were not listed as employee benefits by the employer, where the company provided for disability policies for certain employees, and the employees secured discounted premiums through statement billing, individual policies were part of ERISA plan as company intended to provide employees with benefits.) The evidence in the present case establishes that Stone Office supplied multiple individual disability policies to its shareholders. Stone Office’s insurance agent, Charles Rader (“Rader”), assisted the shareholders, including the plaintiff, with their applications. Rader also assisted the policy holders at Stone Office, particularly the plaintiff, with some of their disability policy and coverage questions, acting, more or less, as an intermediary. According to Rader’s testimony, he came to Stone Office to review the insurance they had in place and to make recommendations. See Defendants’ Exhibit “F”, at 18-21. Rader testified that he worked on the insurance offered to the shareholders first and then worked on the group insurance plans available to the other company employees. See id. at 24-25. In reviewing the disability insurance, he provided the shareholders with individual policies that had a 10 % premium discount. Id. at 24. The" } ]

[ { "docid": "4088648", "title": "", "text": "Modification of Orders, which repeated the above-quoted allegation from the April 1999 Motion for Modification and added that, since the time of the 1994 child support orders, Mr. Tilley “has concealed over $300,000 in income.” Mot. for Modification of Orders ¶ 2.B, 6/30/00 [Dkt. No. 68-24]. The plaintiff and Mr. Tilley resolved both June 2000 motions in a stipulated judgment on November 13, 2000. Stipulation, Docket No.: FA-92-0513362-S, Def. Ex. 25 [Dkt. No. 68-25]. C. Plaintiffs Bankruptcy Proceeding On June 8, 2000, shortly before Attorney Muchinsky filed the motions for contempt and modification, the plaintiff filed for Chapter 7 bankruptcy in U.S. Bankruptcy Court for the District of Connecticut. S. Tilley Bankruptcy Pet., 6/8/00, Def. Ex. 31 [Dkt. No. 68-26]. On the list of personal property on the bankruptcy petition (“Schedule B”), she included “Claim against ex-husband and ex-husband’s employer for back child support.” Id. at 965. She did not include any other causes of action. Id. She included the same language on the list of property claimed as exempt (“Schedule C”), and cited to 11 U.S.C. § 522(d)(10)(D) as the law providing for this exemption. The plaintiff did not amend her list of personal property at any time during the bankruptcy proceeding. S. Tilley Dep. 10/6/04 at 125. In July 2000, her bankruptcy trustee submitted a “no asset report.” It stated that he had “neither received any property nor paid any money on account of [the plaintiffs] estate except exempt property,” and that he found no property available for distribution to creditors. Trustee’s Report of No Distribution, 7/18/00 [Dkt. No. 68-28]. Plaintiffs bankruptcy case was closed on October 11, 2000. Docket Report for Bankruptcy Petition No. 00-21630 [Dkt. No. 68-27], IV. DISCUSSION As a preliminary matter, the court grants Mr. Tilley’s Motion to Join in the Corporate Defendants’ Motion for Summary Judgment on all grounds except the third [Dkt. No. 69]. A. Defendants’ Motion for Summary Judgment The defendants argue that the plaintiff lacks standing to pursue the present action because the tort claim for intentional infliction of emotional distress is the property of her bankruptcy estate. A debtor" }, { "docid": "20293724", "title": "", "text": "reasonable person can ascertain the source of funding for this plan. Although Plaintiff maintains that she paid all of the premiums herself, she acknowledges that Secón withheld the funds for same from her paychecks. (Docket No. 11 at 2). Secón then paid Provident directly for the disability insurance premiums. (Docket No. 1-1 at 51-52; Docket No. 5-2 at ¶ 7). That said, the source of funding for an ERISA plan may consist of the employer, the employee, or a combination of both the employer and employee. Tannenbaum, 2006 WL 2671405, at *4. Accordingly, this requirement is also satisfied. b. Established or Maintained by Employer The next question for the Court is whether Secón established or maintained the plan, fund or program. See Spillane, 648 F.Supp.2d at 698. “The disjunctive nature of the ‘established or maintained’ language appearing in the statute suggests that a showing of either one is sufficient to give rise to ERISA’s application.” Id. (quoting Cowart v. Metro. Life Ins. Co., 444 F.Supp.2d 1282, 1293 (M.D.Ga.2006)). “Courts should focus on the employer and its involvement with the administration of the plan.” Id. (citing Stone, 288 F.Supp.2d at 690 (citing Hansen v. Cont’l Ins. Co., 940 F.2d 971, 978 (5th Cir.1991))). The evidence presented by Defendants is sufficient to demonstrate that Secón established or maintained the plan, fund or program in question. As noted above, Secón afforded Anguilli the opportunity to meet with Secón employees and offer them an opportunity to purchase long-term disability policies from Provident. (Docket Nos. 11-1 at 2, 7; 15-1 at 9, 27). Plaintiff and a number of other Secón employees purchased such policies. (Def. Ex. 2, Docket No. 5-2 at ¶5; Def. Ex. “2-C”, Docket No. 5-5). Anguilli apparently was permitted to continue to actively market the policies to Secón employees as a number of Secón employees later purchased long-term disability policies and were added to the risk group. (Def. Ex. 2, Docket No. 5-2 at ¶ 8, Def. Ex. “2-E”). Secón accepted monthly premium notices directly from Provident on behalf of these employees. (Def. Ex. 2, Docket No. 5-2 at ¶ 5; Def." }, { "docid": "13958650", "title": "", "text": "KELLY, Circuit Judge. Plaintiff-Appellant Sandy Callery appeals from a judgment on the pleadings in favor of Defendant-Appellee Star Buffet. The district court held that the monetary award sought by Ms. Callery did not constitute “appropriate equitable relief’ under § 502(a)(3) of ERISA. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm. Background In 1994, Plaintiff-Appellant Sandy Call-ery filled out an application for life insurance with The United States Life Insurance Company in the City of New York. (“U.S.Life”). The group insurance was sponsored by her employer. In addition to her own coverage and coverage for children, she selected “Life insurance for spouse” in the amount of $100,000. On August 29, 1997, Mr. and Mrs. Callery divorced, but she continued to pay life insurance premiums for Mr. Callery’s coverage until his death on February 28, 2000. Ms. Callery applied for the benefits, and U.S. Life denied coverage based upon a policy exclusion providing for termination of a spouse’s eligibility for life insurance upon divorce. U.S. Life provided her a copy of the policy, and refunded the premiums she had paid. Ms. Callery filed suit against U.S. Life and her employers, J.B.’s Restaurants, Inc., J.B.’s Family Restaurants, Inc., -and Star Buffet, Inc., claiming that Defendants violated ERISA’s notice requirements, 29 U.S.C. § 1021, and breached their fiduciary duties, Id. § 1104(a)(1), by failing to provide her copy of the summary plan description (“SPD”). Aplt.App. 8-9. Her complaint sought a judgment in her favor of $100,000, plus prejudgment interest, and attorney’s fees and costs, though one claim referred to this relief as “equitable relief.” Id. at 9. As the litigation progressed, it became clear that Ms. Callery sought a remedy under ERISA § 502(a)(3), 29 U.S.C. § 1132(a)(3), contending that “appropriate equitable relief’ would include the face value of the life insurance policy. Following dismissal of all other defendants without prejudice, Star Buffet moved for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c), arguing “appropriate equitable relief’ under § 502(a)(3) does not include the payment of $100,000, which would be the equivalent of the life insurance proceeds. In an oral" }, { "docid": "15158590", "title": "", "text": "1082. As in Wickman, the evidence in the present case demonstrates that multiple policies were purchased covering a class of employees. We find that the purchase of disability insurance for each shareholder is substantial evidence that an ERISA plan had been established. Consequently, we conclude that there was a “plan” as required by the definition of “employee welfare benefit plan.” 29 U.S.C. § 1002(1). B. Established or Maintained by an Employer The Court must determine whether Stone Office established or maintained the plan. “To determine whether an employer ‘established or maintained’ an employee benefit plan, ‘the court should [focus] on the employer ... and [its] involvement with the administration of the plan.’ ” Hansen v. Cont’l Ins. Co., 940 F.2d 971, 978 (5th Cir.1991). “No single act in itself necessarily constitutes the establishment of a plan, fund or program.” Donovan, 688 F.2d at 1373 (11th Cir.1982). “Thus, if an employer does no more than purchase insurance for her employees, and has no further involvement with the collection of premiums, administration of the policy, or submission of claims, she has not established an ERISA plan.” Id. In Weinstein, 15 F.Supp.2d at 558, the court considered whether the employer had established or maintained an ERISA plan. According to the court, the fact that the employer purchased multiple disability insurance policies for the plaintiff and other professional employees was substantial evidence that an ERISA plan had been established. Id. The court found that the employer assumed at least some responsibility for the administration of the program by providing an insurance broker to assist employees with the application process for the individual disability policies. Id. The court also found that the insurance broker acted as a sort of intermediary between the employees and the disability carrier. Id. The court concluded that the company, “by providing the insurance broker, assumed a role in the ongoing administration of the policy.” Id.See also Kuehl v. Provident Life and Accident Ins. Co., No. 97-1021, 2000 U.S. Dist. LEXIS 21625 (E.D.Wis.2000) (Despite the fact that individual disability policies were not listed as employee benefits by the employer, where the" }, { "docid": "20293723", "title": "", "text": "presentation to all of its employees in an effort to sell them long-term disability policies. (Docket Nos. 11-1 at 2; 15-1 at 9, 27). Along with Plaintiff, at least seven (7) other employees purchased a Provident long-term disability policy around that time and the evidence shows that additional employees were added to the group at a later date. (Docket No. 5-4). Anguilli identified these individuals as a “risk group” in correspondence with Provident and Secón. (Docket No. 5-7 at 2). And, the Secón employees who purchased long-term disability policies, including Plaintiff, were given a group discount for purchasing the policies together and through Anguilli. (Sevick Letter 5/3/11, Docket Nos. 11-1 at 6; 15-1 at 13; Kotel Affidavit, Docket No. 5-2 at ¶¶ 1, 4). To this end, Plaintiffs Policy specifically states that a group discount of twenty percent (20%) was applied to lower her monthly premium payments. (Docket No. 1-1 at 14). Given this evidence, a reasonable person would conclude that a class of beneficiaries — the Secón risk group — is present. Third, a reasonable person can ascertain the source of funding for this plan. Although Plaintiff maintains that she paid all of the premiums herself, she acknowledges that Secón withheld the funds for same from her paychecks. (Docket No. 11 at 2). Secón then paid Provident directly for the disability insurance premiums. (Docket No. 1-1 at 51-52; Docket No. 5-2 at ¶ 7). That said, the source of funding for an ERISA plan may consist of the employer, the employee, or a combination of both the employer and employee. Tannenbaum, 2006 WL 2671405, at *4. Accordingly, this requirement is also satisfied. b. Established or Maintained by Employer The next question for the Court is whether Secón established or maintained the plan, fund or program. See Spillane, 648 F.Supp.2d at 698. “The disjunctive nature of the ‘established or maintained’ language appearing in the statute suggests that a showing of either one is sufficient to give rise to ERISA’s application.” Id. (quoting Cowart v. Metro. Life Ins. Co., 444 F.Supp.2d 1282, 1293 (M.D.Ga.2006)). “Courts should focus on the employer and" }, { "docid": "10601505", "title": "", "text": "Marine, Inc., 932 F.2d 347, 353 (5th Cir.1991), that an employee benefit plan purchased by the employer for all of its employees was an ERISA plan. In Hansen, we reaffirmed our rule that the purchase of insurance alone is insufficient to demonstrate an ERISA plan, but held that other evidence in that case, such as the employment of a benefits administrator and the issuance of a booklet regarding the plan endorsed by the employer, satisfied the burden of demonstrating the employer’s intent to establish an ERISA plan. 940 F.2d at 978. Here, the evidence before the district court demonstrated that IMMI paid the premiums on Shearer’s policy and that IMMI paid the premiums on a separate policy from a different insurance company for Ms. Shearer. IMMI, however, did not pay for insurance for any of IMMI’s other employees. The facts of this case, therefore, fall somewhere between Taggart and the other cases described above. Considering all of the facts and our precedent, we conclude that IMMI’s payment of premiums on two separate policies for two different employees, while not providing insurance for any other employees, is not sufficient evidence of IMMI’s intent to establish or maintain an ERISA plan. The plans in Memorial Hospital and Kidder were purchased for all of the company’s employees, which lends greater support to the argument that a plan existed. Here, however, the alleged plan covered Shearer, with a different policy covering his mother. This is not sufficient to demonstrate that IMMI intended to establish and maintain a plan to benefit its employees. Consequently, there was no ERISA plan at issue, and the district court lacked jurisdiction over this case. Defendants incorrectly assert that Provident Life & Accident Insurance Co. v. Sharpless, 364 F.3d 634 (5th Cir.2004), is binding in this situation. The issue in Sharpless was not whether the employer established or maintained an ERISA plan. Instead, the court in Sharpless was concerned with whether shareholding doctors could be considered “employees” for purposes of establishing and maintaining an ERISA plan “for the benefit of employees.” Id. at 638. The court held that the shareholders" }, { "docid": "23404517", "title": "", "text": "also Memorial Hosp. Sys. v. Northbrook Life Ins. Co., 904 F.2d 236, 240 (5th Cir.1990). Under this statutory definition, employers may easily establish ERISA plans by purchasing insurance for their employees. See Libbey-Owens-Ford v. Blue Cross & Blue Shield Mutual of Ohio, 982 F.2d 1031, 1034 (6th Cir.1993); see also Fugarino v. Hartford Life & Accident Ins. Co., 969 F.2d 178, 184 (6th Cir.1992) (stating that “the bare purchase of insurance ... may be evidence of the existence of an ERISA plan”); Brundage-Peterson v. Compcare Health Servs. Ins. Corp., 877 F.2d 509, 511 (7th Cir.1989) (noting that a “barebones plan” under which the employer merely arranges and pays for insurance plans invokes ERISA protection); Credit Managers Assoc. v. Kennesaw Life & Accident Ins. Co., 809 F.2d 617, 625 (9th Cir.1987) (same). In recognition of this statutory language, the Fifth and Eleventh Circuits have retreated from Taggart and, instead, adopted the well-established rule that “payment of premiums on behalf of ... employees is ‘substantial evidence that a plan, fund or program (was) established.’ ” Kidder v. H & B Marine, Inc., 932 F.2d 347, 353 (5th Cir.1991) (quoting Donovan, 688 F.2d at 1373). Under that standard, MNA’s actions are more than sufficient to show the “establishment” of a plan. MNA paid all of Dr. Madonia’s premiums. MNA also made direct payments to BC/BS for Ms. Martin’s premiums and then deducted only one-third of the insurance cost from Ms. Martin’s pay. In addition, MNA provided Ms. Anglin with an interest-free loan and a salary increase so that she could pay her health insurance premiums. This arrangement not only required MNA to spend its corporate funds on employee insurance, but also involved additional administrative tasks: adjusting salaries, making payroll deductions, and taking corporate tax deductions to reflect these employee fringe benefits. Other circuits facing similar facts have found the “establishment or maintenance” of an ERISA plan. See, e.g., Memorial Hosp., 904 F.2d at 241 (finding that an employer “established” a plan by paying insurance premiums for its employees and then seeking reimbursement through payroll deductions). MNA’s actions here are well within the ambit" }, { "docid": "2268754", "title": "", "text": "Id. Ex, C. The billing amounts of Dr. Saleem Choudhry of $654.55 and LabCorp of $1,466 are also evidenced by invoices. Id. Ex. C. Audet also provides copies of checks evidencing payments to his medical providers. However, the checks for doctor’s visits on February 24, 2005, and March 14, 2005, of $40.80 and $30, respectively, are dated, on the checks, “2/24/04” and “3/14/04.” Id. Ex. C (emphases added). Because those checks bear numbers subsequent to the check paid on January 3, 2005, to LaGrange Physical Therapy, the Court assumes Audet simply misdated these two checks. In all, Audet incurred medical expenses of $2,794.28. Accordingly, based on the evidence presented to the Court, I conclude, and respectfully recommend that Your Honor should conclude, that Audet should be awarded damages in the amount of $2,794.28, plus an additional $1,000, see footnote 19, supra, or a total of $3,794.28, from Defendant FleetCare Group LLC. Susan E. Hoyt Hoyt, who at all relevant times was self-employed as a real estate broker, procured medical insurance through the FleetCare Plan offered by CAG. Hoyt Aff. (8/13/13, Docket # 161) ¶¶ 2-3. Hoyt states that she joined the FleetCare Plan in September, 2004, and that she made premium payments to CAG on a quarterly basis of $942. Id. ¶ 4. Hoyt states that she remained a member of the FleetCare Plan “without interruption” through December, 2005. Id. Hoyt also seeks to recover amounts that she had to pay to her medical providers when the FleetCare Plan failed to provide her with healthcare coverage. Id. ¶¶ 5-6. Hoyt lists checks, including the dates of the checks and the check numbers, that she paid to medical providers for office visits, as well as to CAG for premiums, and provides a copy of bank statements “showing proof of payment,” although the “statements provided do not reflect an actual copy of the check or to whom the check is made payable to [sic].” Id. ¶ 5 & Ex. A. She avers that these amounts “were actually submitted to the Defendants under the terms of the Fleetcare health insurance plan paid through" }, { "docid": "21123397", "title": "", "text": "claim of fraud or mistake is ■alleged, the “short and plain statement” requirement of Rule 8(a) is joined by the “particularized” pleading standards of Rule 9. Federal Rule of Civil Procedure 9(b) requires that, “[i]n alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake.” Fed. R. Civ. P. 9(b). The complaint must therefore “state the time, place and content of the false misrepresentations, the fact misrepresented and what was retained or given up as a consequence of the fraud.” Kowal v. MCI Commc’ns Corp., 16 F.3d 1271, 1278 (D.C.Cir.1994) (quoting United States ex rel. Joseph v. Cannon, 642 F.2d 1373, 1385 (D.C.Cir.1981)). Rule 9(b), in other words, “requires that the pleader provide the ‘who, what, when, where, and how’ with respect to the circumstances of the fraud.” Anderson v. USAA Cas. Ins. Co., 221 F.R.D. 250, 253 (D.D.C.2004) (quoting Di-Leo v. Ernst & Young, 901 F.2d 624, 627 (7th Cir.1990)), IV. ANALYSIS A. Motion to Dismiss Pursuant tp Rule 12(b)(1) ■ Defendants first argue that this -matter must be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(1) because Ms. Campbell “fails to allege an injury-infaet to support Article III standing.” Catamaran’s Mot. Dismiss at 1-2, ECF No. 36. In short, Defendants claim that Ms. Campbell’s suit is premised on the hypothesis “that if she had become disabled and submitted a covered claim for benefits, Defendants would have wronged her by denying it.” Catamaran’s Mem. Supp. Mot. Dismiss at 14, ECF No. 36-1. Defendants argue that such “speculative, counterfactual” claims are insufficient to establish standing. Id. In response, Ms. Campbell asserts that she has adequately alleged three injuries in fact sufficient to establish standing: (1) she paid premiums for insurance that she would not have purchased “had she known that Defendants had no present intention to pay claims covered by such insurance,” (2)- she was debited “premiums higher than contractually permitted for the insurance product,” and (3) as to her CPPA claim, Defendants violated her statutory right’ “to truthful information from merchants about consumer goods and services that' are or would be purchased," }, { "docid": "21123418", "title": "", "text": "knowledge that the purchased coverage was illegal and void”). In effect, she argues that she paid for valid and enforceable insurance coverage that she did not receive. But as Defendants aptly point out, even assuming that Ms. Campbell is correct in alleging that Defendants’ issuance or renewal of her policy violated the requirements of § 31-4712, her conclusion that this rendered her policy void arid worthless such that her contracted-for payment's should be returned to ' her is foreclosed by the plain language of § 31-4712(d)(2), which states that policies issued in violation of the provision are valid and enforceable. ■ Accordingly, the Court finds that, to the extent that Ms. Campbell claims' that Defendants unjustly retained her premium payments because the policy they sold her was void, illegal, or unenforceable, she has failed to state a plausible claim for relief. Ms. Campbell also argues, however, that Defendants were unjustly enriched on two occasions when they received and detained higher-than-authorized premium payments. PL’s Opp’n at 25., She alleges — albeit vaguely — that on two occasions, Defendants charged her credit card ■ for premium payments in excess of the authorized amount. Affiant Services argues that Ms. Campbell’s failure to allege that she made a direct payment to Affiant Services constitutes a failure to state a claim, but neither of the cases it cites in support of this assertion holds that a benefit unjustly retained must have been directly conferred to state a claim of unjust enrichment. See Edwards v. Ocwen Loan Servicing, LLC, 24 F.Supp.3d 21, 29 (D.D.C.2014) (holding that where complaint did not clearly allege the benefit wrongfully retained, and where allegations of retention lacked factual support and were premised on the existence of a contractual agreement that foreclosed an unjust enrichment claim, the claim must be dismissed); Minebea Co. v. Papst, 444 F.Supp.2d 68, 186 (D.D.C.2006) (holding that unjust enrichment claim premised on the paid-for purchase of a patent portfolio failed where all parties consented to the purchase, substantial consideration was paid, and no direct benefit was ccinferred to the purchaser). To the contrary, a number of decisions" }, { "docid": "21342112", "title": "", "text": "case of disability discrimination at the first McDonnell Douglas stage, Plaintiff has the burden of showing “that (1) [she] suffers from a disability or handicap, as defined by the ADA and Chapter 151B, that (2) [she] was nevertheless able to perform the essential functions of [her] job, either with or without reasonable accommodation, and that (3) [her employer] took an adverse [employment] action against [her] because of, in whole or in part, [her] protected disability.” Tobin v. Liberty Mut. Ins. Co., 433 F.3d 100, 104 (1st Cir. 2005) (citing McDonnell Douglas Corp., 411 U.S. at 802, 93 S.Ct. 1817). The parties acknowledge evidence of the first two elements, but dispute the third. Specifically, they contest Defendants’ knowledge of Plaintiffs disability on April 22, 2013, when they enforced their call-in policy and determined that Plaintiff had abandoned her job (Dkt. No. 58 ¶ 16; Dkt. No. 65 at 16 ¶ 53; Dkt. No: 70 ¶53). Defendants argue that they are entitled-to summary judgment because they were unaware of Plaintiffs disability on that date (Dkt. No. 59 at 4-8). Plaintiff responds that the information Takyi supplied to Pennington, Thomas, and Ochrymowicz before April 22 provided Defendants with sufficient knowledge of Plaintiffs disability and, in any event, CHD knew about it on April 25 when Plaintiff submitted her physician’s certificate (Dkt. No. 64 at 13). After thorough consideration of the record, the court concludes that: (1) there is no evidence that shows, or tends to show, that Defendants knew that Plaintiff was disabled on or before April 22, 2013, when Fitzgerald drafted the termination letter to Plaintiff and Trant signed it; and (2) Plaintiff was no longer a CHD employee on April 25. a. Defendants lacked knowledge of Plaintiffs disability from April 15 to April 24, 2013. “Many courts have determined that a plaintiff cannot sustain a prima facie case of disability discrimination without show ing that an employer had actual or constructive knowledge of the plaintiffs disability.” Rivera Concepcion v. Puerto Rico, 682 F.Supp.2d 164, 174-75 (D.P.R. 2010). See Hedberg v. Ind. Bell Tel. Co., 47 F.8d 928, 982 (7th Cir. 1995)" }, { "docid": "4222523", "title": "", "text": "unavailable under the statute as a matter of law. We vacate the district court’s summary judgment order awarding McCravy a return of her premiums only, an order entered based upon the district court’s earlier, erroneous decision. And we remand this case for further proceedings. No. 10-1074 REVERSED AND REMANDED No. 10-1131 VACATED . McCravy does not challenge the district court’s ruling on her state law claims or her Section 1132(a)(2) claim. . MetLife attempts to downplay Amara's impact by arguing that the portion of the opinion addressing remedies available under Section 1132(a)(3) is merely dictum. Even assuming for the sake of argument that it is, we cannot simply override a legal pro nouncement endorsed just last year by a majority of the Supreme Court. See United States v. Fareed, 296 F.3d 243, 246 (4th Cir. 2002) (following \"dictum endorsed by six justices” of the Supreme Court and citing Gaylor v. United States, 74 F.3d 214, 217 (10th Cir. 1996) (stating that federal court of appeals \"is bound by Supreme Court dicta almost as firmly as by the Court's outright holdings, particularly when the dicta is recent and not enfeebled by later statements”)). . A dependent, such as Leslie, who loses coverage because she \"is no longer an eligible dependent^]” has a right to convert and continue coverage through an individual policy “within 31 days following the termination of the group dependent life coverage.” J.A. 47-48. . We recognize that this Court had previously indicated, e.g., in Coleman v. Nationwide Life Insurance Co., that equitable estoppel is of limited applicability in ERISA cases. 969 F.2d 54 (4th Cir.1992). This matter is, however, easily distinguishable from Coleman. In Coleman, the Court addressed a situation in which premiums for an ERISA plan had not been paid and alleged oral modifications to the written terms of the benefit plan indicating coverage despite the failure to pay premiums. Id. at 58. Neither of those circumstances is before us here. .We note that, per Amara, \"summary documents, important as they are, provide communication with beneficiaries about the plan, but that their statements do not themselves constitute" }, { "docid": "2477045", "title": "", "text": "law could possibly constitute an adverse employment action.” Dfts.’ Br., dkt. # 24, at 30. However, it is not difficult to imagine circumstances in which the release of private and potentially damaging information about an employee could deter her from exercising her rights under Title VII. Perhaps what defendants meant to ask is how a reasonable jury could find that the City complied with the law for a retaliatory reason. This would be a heavy burden and plaintiff has not come close to showing that the City was motivated by her complaints when it complied with the open records request. Although plaintiff argues in her brief that she was singled out for negative treatment, she has not submitted any evidence that the City analyzed requests for documents with her name any differently from documents with others’ names. She proposes a fact that “the City redacted the names of all witnesses who came forward and provided information during the [City’s] investigation, except Ms. Thomas’ name.” Plt.’s PFOF, dkt. # 33, at ¶ 388. However, the evidence cited does not support her proposal. The facts do show that plaintiffs name was not redacted from all of the released documents, but it is undisputed that those documents were already available to the public in unredacted form. Plaintiff has adduced no evidence that other witnesses were or would have been treated any differently. Defendants’ motion for summary judgment will be granted with respect to plaintiffs claim that the City violated Title VII by failing to redact her name from records released to the public. D. Qualified Immunity Defendants’ argument on qualified immunity mixes up the law with the facts. In actions asserting constitutional violations, government officials are entitled to qualified immunity unless their conduct violated “clearly established” rights. Hope v. Pelzer, 536 U.S. 730, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002). Defendants do not deny that case law clearly establishes that it is unconstitutional to retaliate against public employees for speaking out on matters of public concern. Gustafson v. Jones, 290 F.3d 895 (7th Cir.2002) (“[T]he key elements of this case have been clear" }, { "docid": "21837471", "title": "", "text": "‘unlawful employment practice’ therefore cannot be said to occur on any particular day. It occurs over a series of days or perhaps years and, in direct contrast to discrete acts, a single act of harassment may not be actionable on its own.” (quoting Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 115, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002)). But Plaintiff alleges no repeated conduct, only discrete acts. Plaintiff complains of particular statements, made in a single document, recommending denial of tenure. She also complains that she was denied tenure discriminatorily. These actions, viewed in the aggregate, do not state a plausible claim that Plaintiff was subject to a hostile work environment. Indeed, no reasonable view of the March 25, 2015, letter could justify construing it as rising to actionable severe or pervasive conduct necessary to state a claim for a hostile work environment. (See Dkt. 15-2 at 69-74). Thus, Plaintiff has failed to allege a hostile work environment claim. CONCLUSION For the foregoing reasons, Plaintiffs motion to amend (Dkt. 16) is granted. Defendants’ motion to dismiss (Dkt. 12) is granted in part and denied in part. Plaintiffs Title VII and hostile work environment causes of action are hereby dismissed. Plaintiff shall file the proposed amended complaint (Dkt. 16-1) as the second amended complaint within seven days of the entry of this Decision and Order. Once filed, the second amended complaint will be the operative complaint in this action, but, as described above, the Title VII and hostile work environment causes of action have been dismissed. SO ORDERED. . The- facts here are as alleged in the proposed amended complaint. . For example, Defendants argue that Plaintiff failed to sufficiently allege intent to discriminate through statements as to her speaking style or accent. (Dkt. 21-2 at 12). Defendants cite two cases—Bina v. Providence Coll., 39 F.3d 21 (1st Cir. 1994) and Lolonga-Gedeon v. Child & Family Servs., 106 F.Supp.3d 331 (W.D.N.Y. 2015) (Wolford, J.)—for the proposition that criticism by Forestell of Plaintiff’s speaking style cannot be interpreted as plausibly alleging discriminatory intent. Neither case dictates the outcome here because," }, { "docid": "2268755", "title": "", "text": "by CAG. Hoyt Aff. (8/13/13, Docket # 161) ¶¶ 2-3. Hoyt states that she joined the FleetCare Plan in September, 2004, and that she made premium payments to CAG on a quarterly basis of $942. Id. ¶ 4. Hoyt states that she remained a member of the FleetCare Plan “without interruption” through December, 2005. Id. Hoyt also seeks to recover amounts that she had to pay to her medical providers when the FleetCare Plan failed to provide her with healthcare coverage. Id. ¶¶ 5-6. Hoyt lists checks, including the dates of the checks and the check numbers, that she paid to medical providers for office visits, as well as to CAG for premiums, and provides a copy of bank statements “showing proof of payment,” although the “statements provided do not reflect an actual copy of the check or to whom the check is made payable to [sic].” Id. ¶ 5 & Ex. A. She avers that these amounts “were actually submitted to the Defendants under the terms of the Fleetcare health insurance plan paid through CAG to Fleetcare,” and they “demonstrate the medical expenses actually incurred during the time I was an insured of the Fleetcare plan provided by the Defendants and the medical expenses above were in fact paid by me on or about the above dates.” Id. ¶ 7. The bank statements, for the most part, reflect the month and day (but not the year) and the numbers of the checks, as well as their dollar amounts, as listed in Hoyt’s affidavit. Id. ¶ 5 & Ex. A. In addition, there is one entry in the bank statements reflecting a debit transaction listed next to the date 10/18, without stating the year (which the affidavit states was 2004), and noting that the amount of $116 was charged to the account on October 15 to pay Mid Hudson Medical Group, Fishkill, NY. Id. Ex. A. However, to the extent that the checks were for payment of premiums to CAG, there is no basis for Hoyt to recover these monies from Defendant FleetCare Group LLC given the absence of proof" }, { "docid": "2433909", "title": "", "text": "Defendants produced the Husband’s medical application for insurance and a copy of a letter informing him that his application was approved. Since it is not disputed that the Morans made monthly premium payments between 1988 and 1995, the parties clearly entered a valid contract for insurance which was in effect for that peri od. However, because the terms of the policy do not explicitly require delivery for it to be effective, the Court finds delivery was not required to create a contract binding the parties under at least certain to its terms. 2. Despite the Absence of Delivery of the Policy, the Debtor Must Be Bound to Such Terms As One Would Reasonably Expect to Find in a Life Insurance Contract. The Debtor does not allege that the Policy contract is invalid in its entirety because she was not aware of its express terms. Indeed, it has been held that “ ‘one who signs an application for insurance without reading it, when [she] might have done so, will be held to have read it.’ ” Equitable Life Assurance Society v. McCausland, 331 Pa. 107, 109, 200 A. 85, 86 (1938), quoting Applebaum v. Empire State Life Assurance Society, 311 Pa. 221, 224, 166 A. 768, 769 (1933). Moreover, the payment of premiums is of the very essence of an insurance contract. Kehoe v. Automobile Underwriters, Inc., 12 F.Supp. 14, 15 (M.D.Pa.1935). Premium payments are “a condition precedent to or at least concurrent with the assuming of any liability by an^insurance company.” Id. at 16. Thus, an insured is charged with notice of policy terms regarding cancellation for nonpayment of premiums. Id. In the instant case, we disagree with the Debtor’s implicit assertion that it was reasonable for her to believe that a life insurance policy was in effect when no premium payments were made between 1995 and her husband’s death in 1998. The cancellation provision for nonpayment of premiums was neither ambiguous nor inconspicuous, nor did the Debtor argue that she was not given the opportunity to read the insurance documents signed at the mortgage closing. We need not now" }, { "docid": "14946348", "title": "", "text": "2011, both parties filed a joint statement on Wal-Mart Stores, Inc. v. Dukes, — U.S.-, 131 S.Ct. 2541, 2553- 54, 180 L.Ed.2d 374 (2011). (Dkt. Nos. 86, 87.) Factual Background Defendant Millard Mall Services, Inc. (“Millard”) is a major corporation providing janitorial services to shopping malls and other commercial facilities. Millard is based in Lincolnwood, Illinois and employs more than 4,000 workers in 32 states, including California. Individually named Plaintiffs are two former janitorial employees of Defendant. Plaintiff Guadalupe Gonzalez performed janitorial services from November 2007 to September 2008. (Joseph Decl. ¶ 3.) Plaintiff Normal Lopez Juan performed janitorial services from April 2005 to July 2008.(Id.) They were both terminated after failing to report to work for several consecutive days. (Id.) Gonzalez’ last day worked was September 10, 2008 and she was terminated on September 18, 2008. (Joseph Decl., Ex. 1.) Juan’s last day worked was July 10 or 19th, 2008 and she was terminated on August 11, 2008. (Id.) They allege that Defendants regularly scheduled them to work a split-shift and were never paid the premium of one hour’s pay at the minimum wage; Defendants regularly failed to provide them with a 30 minute, uninterrupted meal period for work of more than five hours and failed to pay them an additional hour’s pay; Defendants regularly failed to provide a 10 minute rest period per four hours of work and failed to pay them an additional hour’s pay; Defendants failed to provide a paycheck with an address of a California bank and Defendants failed to issue them final paychecks according to applicable law and the paychecks did not include any unpaid wages for failure to provide meal and/or rest periods and unpaid split shift pay. (SAC ¶¶ 4, 5.) From April 1, 2005 through November 16, 2011, Millard Mall employed 2,624 hourly-paid janitorial/housekeeping employees (315 current employees and 2,015 former employees) in California. (Dkt. No. 68-6, Joseph Decl. filed 1/31/11 ¶2.) The company’s employment policies and procedure originate from the corporate offices in Lincolnwood Illinois. Payroll is handled centrally in Lincolnwood, Illinois and all payroll checks are cut there. Pay" }, { "docid": "6894497", "title": "", "text": "rescinded the policy and refunded to Graphic the premium payments that were made on behalf of Morstein. Morstein claims that Hankins and the Shaw Agency fraudulently induced her to purchase a policy of major medical insurance and, therefore, that she allowed a separate full-coverage insurance policy to lapse. She further alleges that Hankins and the Shaw Agency were negligent in processing her application for insurance and that she has state law claims against them for negligence and fraud. Morstein filed an action in state court and alleged negligence, malfeasance, misrepresentations, and breach of contract. Defendants removed the action to federal court on the basis that Morstein’s claims were governed by ERISA. The district court denied Morstein’s motion to remand and found that defendants were entitled to summary judgment as to the state law claims against them. The district court concluded that Morstein’s claims “clearly relate to the employee benefit plan established by Graphic Promotions; therefore, those claims are preempted by ERISA.” R2-29-3. Morstein appealed the district court’s grant of summary judgment, and the original appellate panel in this case reluctantly affirmed the district court’s grant of summary judgment and held that it was bound by our decision in Farlow v. Union Cent. Life Ins. Co., 874 F.2d 791 (11th Cir. 1989). Morstein v. National Ins. Servs., Inc., 74 F.3d 1135, 1138-39 (11th Cir.), vacated and reh’g en banc granted, 81 F.3d 1031 (11th Cir.1996). The original panel found the facts in this case to be duplicative of the facts in Farlow Id. at 1137. The panel, therefore, was bound to adhere to the holding of Farlow that ERISA preempted a designated beneficiary’s state law misrepresentation and negligence claims against an insurance company and its agent. Following our decision in Farlow, several district courts in our circuit were faced with similar state law claims and attempted to distinguish their cases from Farlow. See Wiesenberg v. Paul Revere Life Ins. Co., 887 F.Supp. 1529, 1532-33 (S.D.Fla.1995) (reasoning that the decision in Farlow was ambiguous with regard to whether its holding applied to independent insurance agent as well as the insurance company, and" }, { "docid": "15158595", "title": "", "text": "whether a “contribution” was made by Stone Office; and (3) whether Stone Office “endorsed” the policy. 1. Employer Contribution Although the Court of Appeals for the Third Circuit has not decided the meaning of “no contributions are made by an employer,” district courts in the Circuit have addressed the issue. In a well-reasoned opinion, Judge Stephen Orlofsky held that “contribution” should be given its clear meaning. Morris v. The Paul Revere Insurance Group, 986 F.Supp. 872, 880 (D.N.J.1997). If an employer pays for a premium, then it has contributed. Id. (“[Pjayments by the employer are inconsistent with the unambiguous language of the regulation.”) To determine whether an employer has paid, the court considered the behavior of the parties at the time of the payment, not later, self-serving allegations. Id. at 880-81. “Where an employer provides its employees benefits that they cannot receive as individuals, it has contributed to an ERISA plan.” Brown v. The Paul Revere Life Ins. Co., No. CIV.A.01-1981, 2002 WL 1019021, at *7 (E.D.Pa. May 20, 2002). In Brown, a 15% discount was only available to the plaintiff because he purchased the insurance together with other employees. Id. at *7. There, the court concluded that the safe harbor’s first provision was not satisfied “because [the employer] made a ‘contribution’ to the Policy by providing Brown a benefit he could not have received as a non-employee.” Id. See, also, Kuehl, 2000 U.S. Dist. LEXIS 21625, at *10 (contribution exists where 10% discount available only to employees in group plans). In the present ease, Charles Rad-er, the insurance agent for Stone Office, testified that the plaintiff and other shareholders of Stone Office received a 10% discount on their disability policy premiums, and that the discount was only available because three Stone Office employees were grouped together on one statement bill. See Defendants’ Exhibit “F” at 39. They had to “have it billed through the employer.” Id. Plaintiff also testified that he knew that the application and billing forms were set up so that he and his fellow shareholders would receive a 10% discount. See Defendants’ Exhibit “I” at 75-76." }, { "docid": "9793849", "title": "", "text": "a year for an extended period of time did not contradict the representations of “vanishing premiums” made to induce the sale); Asad v. Hartford Life Ins. Co., 116 F.Supp.2d 960, 965 (N.D.Ill.2000) (“While Hartford correctly states that the policy reveals that premiums are to be paid for 46 years, ‘[t]he crux of the dispute between the parties is not whether the premiums are payable [for 46 years], but from what source the premiums should be derived.’ ”). We recently endorsed this approach in Tran v. Metropolitan Life Insurance Company, 408 F.3d 130, 139 (3d Cir.2005). We noted in Tran that: [E]ven if Tran had read his policy or had it read to him, an examination of the policy terms would not necessarily have revealed that [the agent’s] alleged statements were false as to when premium payments would cease. The policy states that dividends may be used to pay premiums. Thus the policy term providing that premiums would be payable for fifty-nine years does not unambiguously mean that Tran would be required to pay those premiums out-of-pocket for that entire period of time. We agree with the courts in the above cited cases and believe that even if Dil-worth had made a cursory examination of her policy, the information that she could have gleaned from making such an examination would not, as a matter of law, have put her on notice of her injury because reasonable minds could disagree as to whether the information in the policy re vealed that the premium payments did not “vanish.” When the minimal information that a reasonable person can be expected to glean from a “cursory” review of an insurance policy is combined with the summary judgment standard, there clearly exists a genuine issue of material fact as to whether the exercise of reasonable diligence even if it included a cursory examination of the policy would have uncovered the underlying injury in this case. Overall, we believe that the situation here is similar to that in Drelles where the court said that even if the plaintiffs “were required to scrutinize the policies, the policies themselves" } ]

[ { "docid": "20471204", "title": "", "text": "quash a subpoena if it “requires disclosure of privileged or other protected matter.” Fed.R.Civ.P. 45(c)(3)(A)(iii). This rule, however, does not apply here. The Court recognizes that Ms. McDonald’s First Amendment right to anonymous speech is implicated by disclosure of her identifying information. See Sony Music Entm’t, Inc. v. Does, 1-40, 326 F.Supp.2d 556, 564 (S.D.N.Y.2004) (“the file sharer may be expressing himself or herself through the music selected and made available to others.”); see also London-Sire Records, Inc. v. Doe 1, 542 F.Supp.2d 153, 163 (D.Mass.2008). Nevertheless, whatever asserted First Amendment right to anonymity the putative defendant may have in this context does not shield her from allegations of copyright infringement. See Arista Records LLC v. Does 1-19, 551 F.Supp.2d 1, 8 (D.D.C. 2008) (“First Amendment privacy interests are exceedingly small where the ‘speech’ is the alleged infringement of copyrights.”); Achte/Neunte, 736 F.Supp.2d at 216 n. 2 (“the protection afforded to such speech is limited and gives way in the face of a prima facie showing of copyright infringement”); West Bay One, Inc. v. Does 1-1653, 270 F.R.D. 13, 16 n. 4 (D.D.C.2010) (same); Sony, 326 F.Supp.2d at 567 (First Amendment right of alleged file-sharers to remain anonymous “must give way to the plaintiffs’ right to use the judicial process to pursue what appear to be meritorious copyright infringement claims.”); Elektra Entm’t Grp., Inc. v. Does 1-9, No. 04-2289, 2004 WL 2095581, at *4-5 (S.D.N.Y. Sept. 8, 2004) (finding that First Amendment right to anonymity is overridden by plaintiffs right to protect copyright). The plaintiffs subpoena requesting the putative defendant’s identifying information from Comcast does not subject her to an undue burden nor is the plaintiffs request for the information outweighed by any privacy interest or First Amendment right to anonymity. Moreover, a general denial of liability is not a proper basis to quash the plaintiffs subpoena. Accordingly, Ms. McDonald’s motion, under Federal Rule of Civil Procedure 45(c)(3), to quash the subpoena is denied. III. MOTION FOR A PROTECTIVE ORDER The putative defendant has also filed a motion for a protective order seeking to protect her identity from being disclosed" } ]

[ { "docid": "14797690", "title": "", "text": "and gives way in the face of a prima facie showing of copyright infringement”); West Bay One, Inc. v. Does 1-1,653, 270 F.R.D. 13, 16 n. 4 (D.D.C.2010) (utilizing same language as Achte/Neunte, 736 F.Supp.2d at 216 n. 2); Sony, 326 F.Supp.2d at 567 (First Amendment right of alleged file-sharers to remain anonymous “must give way to the plaintiffs’ right to use the judicial process to pursue what appear to be meritorious copyright infringement claims.”); Elektra Entm’t Group, Inc. v. Does 1-9, No. 04-2289, 2004 WL 2095581, at *4-5 (S.D.N.Y. Sept. 8, 2004) (finding that First Amendment right to anonymity overridden by plaintiffs right to protect copyright). Nevertheless, file-sharers are engaged in expressive activity, on some level, when they share files on BitTorrent, and their First Amendment rights must be considered before the Court allows the plaintiffs to override the putative defendants’ anonymity by compelling the production of these defendants’ identifying information. See Sony, 326 F.Supp.2d at 564 (“Although this is not political expression entitled to the broadest protection of the First Amendment, the file sharer’s speech is still entitled to some level of First Amendment protection.”) (internal quotations omitted). B. PLAINTIFFS’ NEED TO OVERRIDE FIRST AMENDMENT PROTECTIONS AND IDENTIFY THE PUTATIVE DEFENDANTS To assess whether the plaintiffs’ subpoena should override the putative defendants’ First Amendment rights, the Court uses the five-part test originally explicated in Sony Music Entertainment v. Does 1-10, 326 F.Supp.2d at 564-65. This test has been applied by numerous courts across the country and in this district to similar file-sharing copyright infringement actions. See, e.g., Arista Records, 551 F.Supp.2d at 8 (D.D.C.2008) (Kollar-Kotelly, J.); Achte/Neunte, 736 F.Supp.2d at 216 n. 2 (D.D.C.2010) (Collyer, J.); West Bay One, 270 F.R.D. at 16 n. 4 (D.D.C. 2010) (Collyer, J.); London-Sire, 542 F.Supp.2d at 164 (D.Mass.2008); Arista Records, LLC v. Doe 3, 604 F.3d 110 (2d Cir.2010); Virgin Records v. Doe, No. 5:08-ev-389, 2009 WL 700207, 2009 U.S. Dist. LEXIS 21701 (E.D.N.C. Mar. 16, 2009); Elektra Entm’t Group Inc. v. Does 1-9, No. 04-cv-2289, 2004 WL 2095581, at *3-4 (S.D.N.Y. Sept. 8, 2004). The Sony test calls for the" }, { "docid": "19986453", "title": "", "text": "a different standard in this case. See Def.’s Mot. at 10-13. Defendant argues that “[a] plaintiff in a copyright infringement case who seeks expedited discovery to uncover the identity of an unknown ‘John Doe’ defendant must [ ] make ‘a concrete showing of a prima facie claim of copyright infringement.’ ” Id. at 11 (quoting Sony Music Entm’t Inc., v. Does 1-40, 326 F.Supp.2d. 556, 564-565 (S.D.N.Y.2004)). Defendant appears to be arguing that Plaintiffs have not made this showing and, thus, Plaintiffs’ subpoena must be quashed. Id. The Court is unpersuaded by Defendant’s argument. Defendant’s argument fails to distinguish the overwhelming number of cases where courts have routinely applied the “good cause” standard and permitted expedited discovery in circumstances similar to the present. See, e.g., Laface Records, LLC v. Atlantic Recording Corp., Civ. A. No. 07-187, 2007 WL 4286189, **1-2, 2007 U.S. Dist. LEXIS 72225 at * 4-*5 (W-D.Mich. Sept. 27, 2007) (collecting cases, applying the “good cause” standard, and holding that “discovery to allow the [identification] of ‘Doe’ defendants is ‘routine’ ”); Arista Records LLC v. Does 1-15, Civ. A. No. 07-450 (S.D.Ohio Nov. 5, 2007) (Opinion and Order finding good cause where plaintiffs alleged copyright infringement, only the University could identify the defendants, the log files identifying the defendants were available only for a limited time, and the scope of the requested discovery was narrow). Defendant’s argument also fails to account for the language of Federal Rule of Civil Procedure 45(c)(3)(A), which describes the various justifications for quashing a subpoena, none of which form the basis of Defendant’s instant motion to quash based on the standard applied by the Court. See Fonovisa, Inc. v. Does 1-9, Civ. A. No. 07-1515, 2008 WL 919701, **8-9, 2008 U.S. Dist. LEXIS 27170 at *27-*28 (W.D.Pa. Apr. 3, 2008) (holding that none of defendant’s objections “provides a basis under Rule 45(c)(3)(A) for quashing the subpoena served on [Carnegie-Mellon University] regarding Doe # 3”). Defendant’s reliance on Sony Music Entertainment Inc. as support for a different standard is puzzling, as the court in that case denied the defendant’s motion to quash in a" }, { "docid": "20471231", "title": "", "text": "any party. M.K. v. Tenet, 216 F.R.D. 133, 138 (D.D.C.2002); see also Fed. R.Civ.P. 42(b) (\"For convenience, to avoid prejudice, or to expedite and economize, the court may order a separate trial of one or more separate issues, claims, crossclaims, counterclaims, or third-party claims.”). In addition to the two requirements of Rule 20(a)(2), courts therefore also consider whether joinder would prejudice any party or result in needless delay. See Lane v. Tschetter, No. 05-1414, 2007 WL 2007493, at *7 (D.D.C. July 10, 2007); Tenet, 216 F.R.D. at 138. . For a more expansive discussion regarding the propriety of joining the putative defendants in this case, see the Court's Memorandum Opinion filed March 22, 2011 addressing amici Electronic Frontier Foundation, Public Citizen, American Civil Liberties Union Foundation, American Civil Liberties Union of the Nation’s Capital’s contention that joinder of file putative defendants is inappropriate in this case. Call of the Wild Movie, LLC v. Does 1-1,062, No. 10-cv-455, 770 F.Supp.2d 332, 342-45, 2011 WL 996786 at *4-7 (D.D.C. Mar. 22, 2011) (consolidated opinion also addressing motions filed in Donkeyball Movie, LLC v. Does 1-171, No. 10-cv-1520). . Putative defendants in this case may argue that the plaintiff should have used freely available tools that extract the geolocation information embedded in each IP address in order to verify the putative defendants? location pri- or to filing claims in the District of Columbia. While it may behoove the plaintiff to utilize tools to ascertain the general location of the putative defendants prior to filing its case, these lookup tools are not completely accurate and it does not resolve for the Court the question of whether personal jurisdiction would be proper. Ultimately, the Court would still be unable to evaluate properly jurisdictional arguments until the putative defendants are identified and named. See Sony, 326 F.Supp.2d at 567-68 (“Assuming personal jurisdiction were proper to consider at this juncture, the [publicly available IP lookup] techniques suggested by amici, at best, suggest the mere 'likelihood' that a number of defendants are located [outside this jurisdiction]. This, however, does not resolve whether personal jurisdiction would be proper.”). ." }, { "docid": "14797731", "title": "", "text": "See, e.g., London-Sire, 542 F.Supp.2d at 164 n. 2 (“Dendrite, like many other cases involving internet speech, is not directly applicable to [file-sharing cases]. In that case, the plaintiff asserted that the anonymous defendant had defamed it on an internet bulletin board-an act much more clearly in the wheelhouse of the First Amendment's protections.”); Sony BMG Music Entm’t v. Doe, No. 5:08-109, 2009 WL 5252606, at *7 n. 14 (E.D.N.C. Oct. 21, 2009)(''The protected speech at issue in Dendrite was allegedly defamatory comments posted on an internet bulletin, not the less expressive act of distributing music over the internet. In addition, the claim in Dendrite was for defamation, not copyright infringement, a unique area of particular federal concern.”). The First Amendment interests implicated in defamation actions, where expressive communication is the key issue, is considerably greater than in file-sharing cases. The Court therefore believes that the Sony test is more applicable to the present case. . During oral argument, Amici noted that the declarations of Messrs. Perino and Achache submitted by plaintiffs in support of their motions for leave to take expedited discovery in Wild and Maverick are dated December 31, 2009, even though a number of the putative defendants are alleged to have engaged in infringing activity after that date. Transcript of Mot. Hearing, at 46-47, Call of the Wild Movie LLC v. Does 1-1,063, No. 10-cv-455 (Mar. 1, 2011); see also PL’s Mot. Leave to Take Expedited Disc., Maverick, ECF No. 4, Benjamin Perino Decl., ¶ 11; Pl.’s Mot. Leave to Take Expedited Disc., Donkeyball, ECF No. 4, Benjamin Perino Decl., ¶ 11. These declarations only purport to describe the procedures used to identify those accused of illegally distributing plaintiffs’ motion pictures and, thus, the date of that description does not undercut the claims against the putative defendants, as Amici appear to imply. . Time Warner notes that another judge in this district also denied Time Warner’s motions to quash in two file-sharing cases, but granted a protective order limiting Time Warner's subpoena production obligations in those cases to only 28 IP addresses a month. See Achte/Neunte Boll" }, { "docid": "14797688", "title": "", "text": "putative defendants are engaging in any expressive communication when they share files through BitTorrent that is entitled to some First Amendment protection of their anonymity. While copyright infringement is not afforded First Amendment protection, file-sharing does involve aspects of expressive communication. See Sony, 326 F.Supp.2d at 564 (“the file sharer may be expressing himself or herself through the music selected and made available to others.”); see also London-Sire, 542 F.Supp.2d at 163 (“there are some creative aspects of downloading music or making it available to others to copy: the value judgment of what is worthy of being copied; the association of one recording with another by placing them together in the same library; the self-expressive act of identification with a particular recording; the affirmation of joining others listening to the same recording or expressing the same idea.... [Wjhile the aspect of a file-sharer’s act that is infringing is not entitled to First Amendment protection, other aspects of it are.”). File-sharers, for example, indicate the artistic works they prefer when they decide to share or download a particular file. This expression can be noticed by other BitTorrent users and can indicate the relative popularity of particular files among a group of individuals. File-sharers therefore do engage in expressive activity when they interact with other users on BitTorrent. The First Amendment interest implicated by their activity, however, is minimal given that file-sharers’ ultimate aim “is not to communicate a thought or convey an idea” but to obtain movies and music for free. Sony, 326 F.Supp.2d at 564. Even if expression were an ancillary aim, the underlying method of the users’ communication is illegal. This Court therefore joins a number of other jurisdictions who have deemed that a file sharer’s First Amendment right to anonymity is “exceedingly small.” Arista Records LLC v. Does 1-19, 551 F.Supp.2d 1, 8 (D.D.C.2008) (“First Amendment privacy interests are exceedingly small where the ‘speech’ is the alleged infringement of copyrights.”); see also Achte/Neunte Boll Kino Beteiligungs Gmbh & Co, KG v. DOES 1-4,577, 736 F.Supp.2d 212, 216 n. 2 (D.D.C.2010) (“the protection afforded to such speech is limited" }, { "docid": "18201378", "title": "", "text": "of the relevant evidence usually comes from the accused infringer. Consequently, the place where the defendant’s documents are kept weighs in favor of transfer to that location.” In re Genentech, 566 F.3d 1338, 1345 (Fed.Cir.2009) (internal quotations omitted). However, because the sources of proof originate from varied locations, this factor is neutral. An action in the Eastern District of Arkansas is not “clearly more convenient” for transporting documents that are located in the Eastern District of Texas and potentially Missouri. See, e.g., Konami Dig. Ent. Co. Ltd. v. Harmonix Music Sys., No. 6:08-CV-286-LED-JEL, 2009 WL 781134, at *4 (E.D.Tex. Mar. 23, 2009) (“While Defendants point to [the transferee district] as the location of significant sources of proof, they ignore the remaining sources of proof which originate from other locations.”); Perritt v. Jenkins, No. 4:11-CV-23-MHS-ALM, 2011 WL 3511468, at *3 (E.D.Tex. July 18, 2011) (“Because the sources of proof originate from varied locations, this factor is neutral.”). Further, “a case should not be transferred if the only practical effect is to shift inconvenience from the moving party to the nonmoving party.” Goodman Co. v. A & H Supply, Inc., 396 F.Supp.2d 766, 776 (S.D.Tex.2005). Therefore, the Court finds this factor is neutral. (2) The Availability of Compulsory Process Federal Rule of Civil Procedure 45(b)(2) allows a federal court to compel a witness’ attendance at a trial or hearing by subpoena; however, the Court’s subpoena power is limited by Federal Rule of Civil Procedure 45(c)(3), to those witnesses who work or reside less than 100 miles from the courthouse. See Volkswagen II, 545 F.3d at 316. Defendants contend that numerous WalMart employees, who will be necessary witnesses with respect to the trademark issues in this case, will be outside the subpoena power of this Court since they will have to travel (1) more than 100 miles and (2) from another state. MOTION at 19. Plaintiff argues that Defendants have not shown why they will need testimony from Wal-Mart employees, when Medallion is the manufacturer of the allegedly infringing chips. SUR-REPLY at 9. Plaintiff asserts that it does not anticipate significant documents or" }, { "docid": "5701279", "title": "", "text": "to expedite the proceedings, the Court will shorten the time for service on the moving John Does. . This document was also filed in Civil Action No. 12-2084, but not in support of any motion. See Malibu Media, LLC v. John Does 1— 14, No. 12-cv-2084, ECF No. 9 (June 5, 2012). In this document, the declarant proclaims to be the operator of the website, DieTrollDie, http://dietrolldie.com (last visited Oct. 3, 2012), which provides resources to help John Doe defendants named in mass copyright infringement actions defend themselves. Other websites provide similar resources. See, e.g., Fight Copyright Trolls, http://fight copyrighttrolls.com (last visited Oct. 3, 2012). . Plaintiffs counsel did indicate, however, that pretrial discovery was actively being pursued in one case in Colorado. . The Court allowed defense counsel present at the hearing time to consult with their clients as to whether they could accept service of the Complaints on their clients' behalf so that the cases could proceed to discovery. All three defense counsel have since advised the Court that their clients did not authorize them to accept service of the Complaints. . Other judges in this District have similarly followed Judge McLaughlin’s general approach to these issues. See, e.g., Malibu Media, LLC v. John Does 1-18, No. 12-2095, ECF No. 25 (E.D.Pa. Sept. 27, 2012) (Davis, J.); Malibu Media, LLC v. John Does 1-15, No. 12-2077, 2012 WL 3089383 (E.D.Pa. July 30, 2012) (Kelly, J.). . Plaintiff, however, does not object to the John Does’ contention that they have standing to challenge the third-party subpoenas served on the ISPs. . The Court notes that certain judges in this District have reached different conclusions as to whether joinder is proper in different Bit-Torrent cases before them. Compare, e.g., K-Beech, Inc. v. John Does 1-36, No. 11-cv- 5058, ECF No. 30 (E.D.Pa. Oct. 21, 2011) (Kelly, J.) (finding joinder improper), and K-Beech, Inc. v. John Does 1-78, No. 11-cv-5060, ECF No. 13 (E.D.Pa. Oct. 3, 2011) (Schiller, J.) (same), with Malibu Media, LLC v. John Does 1-15, No. 12-cv-2077, 2012 WL 3089383 (E.D.Pa. July 30, 2012) (Kelly, J.) (finding joinder" }, { "docid": "20471229", "title": "", "text": "IP addresses. Pl.’s Mot. for an Extension of Time to Name and Serve, ECF No. 17. The Court granted this request and extended plaintiff's time to name and serve the putative defendants until June 13, 2011. Minute Order, Jan. 14, 2011 (Sullivan, J.). . Any reliance the putative defendant may have placed on Federal Rule of Civil Procedure 45(c)(3)(A)(ii) as an alternate basis to quash the plaintiffs subpoena is therefore also misplaced. Rule 45(c)(3)(A)(ii) requires the Court to quash a subpoena when the subpoena \"requires a person who is neither a party nor a party's officer to travel more than 100 miles from where that person resides, is employed, or regularly transacts business in person....\" Ms. McDonald is not required to respond to the plaintiff's subpoena or otherwise travel away from her home or place of employment. . A more expansive discussion of the putative defendants’ First Amendment rights in this case is contained in the Court's Memorandum Opinion filed March 22, 2011, which addresses amici Electronic Frontier Foundation, Public Citizen, American Civil Liberties Union Foundation, American Civil Liberties Union of the Nation's Capital’s contention that the putative defendants' First Amendment rights protect against disclosure of the putative defendants’ identifying information. Call of the Wild Movie, LLC v. Does 1-1,062, No. 10-cv-455, 770 F.Supp.2d 332, 347-55, 2011 WL 996786 at *10-15 (D.D.C. Mar. 22, 2011) (consolidated opinion also addressing motions filed in Donkeyball Movie, LLC v. Does 1-171, No. 10-cv-1520). . The putative defendant states that she seeks a protective order pursuant to Federal Rule of Civil Procedure 37. The Court assumes, however, that she seeks a protective order under Federal Rule of Civil Procedure 26(c), and construes her motion accordingly. . Rule 21 does not set forth what constitutes misjoinder, but \"it is well-settled that parties are misjoined when the preconditions of permissive joinder set forth in Rule 20(a) have not been satisfied.\" Disparte v. Corporate Exec. Bd., 223 F.R.D. 7, 12 (D.D.C.2004) (citation omitted). Courts have also read Rule 21 in conjunction with Rule 42(b), which allows the court to sever claims in order to avoid prejudice to" }, { "docid": "20471206", "title": "", "text": "to the plaintiff. Rule 26(c) provides that a court may “issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.” Fed.R.Civ.P. 26(c)(1). Such protective orders may forbid disclosure altogether, or, among other measures, “limit[ ] the scope of disclosure or discovery to certain matters.” Fed.R.Civ.P. 26(c)(1)(A) and (D). “[A]lthough Rule 26(c) contains no specific reference to privacy or to other rights or interests that may be implicated, such matters are implicit in the broad purpose and language of the Rule.” In re Sealed Case (Medical Records), 381 F.3d 1205, 1215 (D.C.Cir.2004) (quoting Seattle Times Co. v. Rhinehart, 467 U.S. 20, 35 n. 21, 104 S.Ct. 2199, 81 L.Ed.2d 17 (1984)). As elaborated above, the putative defendant is not subject to the plaintiffs subpoena, and therefore does not face any “annoyance, embarrassment, oppression, or undue burden or expense” from the plaintiff’s discovery request. See Fed. R.CivP. 26(c)(1). To the extent that Ms. McDonald seeks a protective order to prevent disclosure of private identifying information, the Court has held that the putative defendant’s First Amendment right to anonymity in the context of her BitTorrent activity is minimal and outweighed by the plaintiffs need for putative defendants’ identifying information in order to protect its copyrights. See Call of the Wild Movie, LLC v. Does 1-1,062, No. 10-cv-455, 770 F.Supp.2d 332, 347-55, 2011 WL 996786 at *10-15 (D.D.C. Mar. 22, 2011). The putative defendant’s request for a protective order is therefore denied. IV. MOTION TO DISMISS BASED ON IMPROPER JOINDER The putative defendant argues that she should be dismissed from the lawsuit because the plaintiff has improperly joined her with other putative defendants. McDonald’s Mot. Dismiss, ECF No. 31, at 3-4. The putative defendant’s argument that she is improperly joined may be meritorious should she be named as a defendant in this action. At this stage in the litigation, however, when discovery is underway to learn identifying facts necessary to permit service on Doe defendants, joinder, under Federal Rule of Civil Procedure 20(a)(2), of unknown parties identified only by IP addresses is proper. As discussed below," }, { "docid": "14797691", "title": "", "text": "sharer’s speech is still entitled to some level of First Amendment protection.”) (internal quotations omitted). B. PLAINTIFFS’ NEED TO OVERRIDE FIRST AMENDMENT PROTECTIONS AND IDENTIFY THE PUTATIVE DEFENDANTS To assess whether the plaintiffs’ subpoena should override the putative defendants’ First Amendment rights, the Court uses the five-part test originally explicated in Sony Music Entertainment v. Does 1-10, 326 F.Supp.2d at 564-65. This test has been applied by numerous courts across the country and in this district to similar file-sharing copyright infringement actions. See, e.g., Arista Records, 551 F.Supp.2d at 8 (D.D.C.2008) (Kollar-Kotelly, J.); Achte/Neunte, 736 F.Supp.2d at 216 n. 2 (D.D.C.2010) (Collyer, J.); West Bay One, 270 F.R.D. at 16 n. 4 (D.D.C. 2010) (Collyer, J.); London-Sire, 542 F.Supp.2d at 164 (D.Mass.2008); Arista Records, LLC v. Doe 3, 604 F.3d 110 (2d Cir.2010); Virgin Records v. Doe, No. 5:08-ev-389, 2009 WL 700207, 2009 U.S. Dist. LEXIS 21701 (E.D.N.C. Mar. 16, 2009); Elektra Entm’t Group Inc. v. Does 1-9, No. 04-cv-2289, 2004 WL 2095581, at *3-4 (S.D.N.Y. Sept. 8, 2004). The Sony test calls for the court to assess whether the plaintiffs’ need for identifying information outweighs the putative defendants’ right to First Amendment anonymity by balancing: (1) the concreteness of the plaintiffs’ showing of a prima facie claim of actionable harm; (2) the specificity of the plaintiffs’ discovery request; (3) alternative means to get the information the plaintiffs seek; (4) the need for the information to advance the plaintiffs’ claim; and (5) the objecting party’s expectation of privacy. Sony, 326 F.Supp.2d at 564-65. 1. Plaintiffs’ Showing of a Prima Facie Claim The first factor of the Sony analysis seeks to protect against gratuitous disclosure of identifying information when an individual’s First Amendment anonymity rights are implicated. As one court noted, “people who have committed no wrong should be able to participate online without fear that someone who wishes to harass or embarrass them can file a frivolous lawsuit and thereby gain the power of the court’s order to discover their identity.” Columbia Ins. Co. v. sees-candy.com, 185 F.R.D. 573, 578 (N.D.Cal. 1999) (pre-dating the Sony test, but recognizing the difficulty" }, { "docid": "20471232", "title": "", "text": "filed in Donkeyball Movie, LLC v. Does 1-171, No. 10-cv-1520). . Putative defendants in this case may argue that the plaintiff should have used freely available tools that extract the geolocation information embedded in each IP address in order to verify the putative defendants? location pri- or to filing claims in the District of Columbia. While it may behoove the plaintiff to utilize tools to ascertain the general location of the putative defendants prior to filing its case, these lookup tools are not completely accurate and it does not resolve for the Court the question of whether personal jurisdiction would be proper. Ultimately, the Court would still be unable to evaluate properly jurisdictional arguments until the putative defendants are identified and named. See Sony, 326 F.Supp.2d at 567-68 (“Assuming personal jurisdiction were proper to consider at this juncture, the [publicly available IP lookup] techniques suggested by amici, at best, suggest the mere 'likelihood' that a number of defendants are located [outside this jurisdiction]. This, however, does not resolve whether personal jurisdiction would be proper.”). . A more expansive discussion regarding the personal jurisdiction issues involved in this case is contained in the Court’s Memorandum Opinion filed March 22, 2011 in a similar case involving putative defendants accused of using the BitTorrent file-sharing technology to download and distribute illegally copyright works. See Call of the Wild Movie, LLC v. Does 1-1,062, No. 10-cv-455, 2011 WL 996786 at *7-10 (D.D.C. Mar. 22, 2011) (consolidated opinion also addressing motions filed in Donkeyball Movie, LLC v. Does 1-171, No. 10-cv-1520)." }, { "docid": "5701258", "title": "", "text": "those at issue here for the reasons advanced by the John Does. Indeed, it appears that those judges in this District who have quashed such subpoenas have done so simply to facilitate the severance of John Doe defendants without ruling on the merits of the motions to quash. See, e.g., K-Beech, Inc. v. John Does 1-86, No. 11-cv-5058, ECF No. 30 (E.D.Pa. Oct. 21, 2011) (Kelly, J.) (granting motions to quash filed by all severed John Doe defendants, but denying motion to quash filed by remaining John Doe defendant); K-Beech, Inc. v. John Does 1-78, No. 11-cv-5060, ECF No. 13 (E.D.Pa. Oct. 3, 2011) (Schiller, J.) (same). But cf. Patrick Collins, Inc. v. John Does 1-26, 843 F.Supp.2d 565 (E.D.Pa.2011) (granting motion to quash where plaintiff did not hold a valid copyright in the motion picture at issue). However, judges in other districts have found it appropriate to quash third-party subpoenas for the reasons advanced by the John Does here. See, e.g., In re BitTorrent Adult Film Copyright Infringement Cases, Nos. 11-cv-3995, 12-cv1147, 12-cv-1150, 12-cv-1154, 2012 WL 1570765 (E.D.N.Y. May 1, 2012). 1. Undue Burden Rule 45(c) of the Federal Rules of Civil Procedure provides that a court must quash or modify a subpoena under certain circumstances, including when it “subjects a person to undue burden.” Fed.R.Civ.P. 45(c)(3). “Proceeding with discovery to obtain the identity of Doe defendants so that they may be served is proper and within the scope of permissible discovery.” Raw Films, 2012 WL 1019067, at *6; see also Blakeslee v. Clinton Cnty., 336 Fed.Appx. 248, 250 (3d Cir.2009) (“Use of John Doe defendants is permissible in certain situations until reasonable discovery permits the true defendants to be identified. If reasonable discovery does not unveil the proper identities, however, the John Doe defendants must be dismissed.” (citations omitted)). The Court rejects the assertion that the third-party subpoenas served on the ISPs would subject the John Does to undue burden. Notably, the subpoenas are addressed to third parties — the ISPs, not the John Does. The ISPs have not objected to the subpoenas, nor would any objection by" }, { "docid": "5701257", "title": "", "text": "proceed against them individually. See, e.g., Malbu Media, LLC v. John Does 1-22, No. 12-cv-3139, ECF No. 17 (E.D.Pa. Aug. 28, 2012) (Savage, J.); K-Beech, Inc. v. John Does 1-86, No. 11-cv-5058, ECF No. 30 (E.D.Pa. Oct. 21, 2011) (Kelly, J.); K-Beech, Inc. v. John Does 1-78, No. 11-cv-5060, ECF No. 13 (E.D.Pa. Oct. 3, 2011) (Schiller, J.). Such decisions are within the discretion of a trial judge and do not involve the determination of substantive issues in a given case. A. Motions to Quash Third-Party Subpoenas In the instant cases, those John Does who have moved to quash the third-party subpoenas served on the ISPs raise one or both of the following contentions: (i) that the third-party subpoenas subject them to undue burden, and (ii) that their right to remain anonymous outweighs any potential proprietary interest that Plaintiff may have in the copyrights at issue and, thus, its right to discovery. The Court is unaware of any judge in this District that has gone so far as to quash a third-party subpoena similar to those at issue here for the reasons advanced by the John Does. Indeed, it appears that those judges in this District who have quashed such subpoenas have done so simply to facilitate the severance of John Doe defendants without ruling on the merits of the motions to quash. See, e.g., K-Beech, Inc. v. John Does 1-86, No. 11-cv-5058, ECF No. 30 (E.D.Pa. Oct. 21, 2011) (Kelly, J.) (granting motions to quash filed by all severed John Doe defendants, but denying motion to quash filed by remaining John Doe defendant); K-Beech, Inc. v. John Does 1-78, No. 11-cv-5060, ECF No. 13 (E.D.Pa. Oct. 3, 2011) (Schiller, J.) (same). But cf. Patrick Collins, Inc. v. John Does 1-26, 843 F.Supp.2d 565 (E.D.Pa.2011) (granting motion to quash where plaintiff did not hold a valid copyright in the motion picture at issue). However, judges in other districts have found it appropriate to quash third-party subpoenas for the reasons advanced by the John Does here. See, e.g., In re BitTorrent Adult Film Copyright Infringement Cases, Nos. 11-cv-3995, 12-cv1147, 12-cv-1150, 12-cv-1154," }, { "docid": "14797689", "title": "", "text": "a particular file. This expression can be noticed by other BitTorrent users and can indicate the relative popularity of particular files among a group of individuals. File-sharers therefore do engage in expressive activity when they interact with other users on BitTorrent. The First Amendment interest implicated by their activity, however, is minimal given that file-sharers’ ultimate aim “is not to communicate a thought or convey an idea” but to obtain movies and music for free. Sony, 326 F.Supp.2d at 564. Even if expression were an ancillary aim, the underlying method of the users’ communication is illegal. This Court therefore joins a number of other jurisdictions who have deemed that a file sharer’s First Amendment right to anonymity is “exceedingly small.” Arista Records LLC v. Does 1-19, 551 F.Supp.2d 1, 8 (D.D.C.2008) (“First Amendment privacy interests are exceedingly small where the ‘speech’ is the alleged infringement of copyrights.”); see also Achte/Neunte Boll Kino Beteiligungs Gmbh & Co, KG v. DOES 1-4,577, 736 F.Supp.2d 212, 216 n. 2 (D.D.C.2010) (“the protection afforded to such speech is limited and gives way in the face of a prima facie showing of copyright infringement”); West Bay One, Inc. v. Does 1-1,653, 270 F.R.D. 13, 16 n. 4 (D.D.C.2010) (utilizing same language as Achte/Neunte, 736 F.Supp.2d at 216 n. 2); Sony, 326 F.Supp.2d at 567 (First Amendment right of alleged file-sharers to remain anonymous “must give way to the plaintiffs’ right to use the judicial process to pursue what appear to be meritorious copyright infringement claims.”); Elektra Entm’t Group, Inc. v. Does 1-9, No. 04-2289, 2004 WL 2095581, at *4-5 (S.D.N.Y. Sept. 8, 2004) (finding that First Amendment right to anonymity overridden by plaintiffs right to protect copyright). Nevertheless, file-sharers are engaged in expressive activity, on some level, when they share files on BitTorrent, and their First Amendment rights must be considered before the Court allows the plaintiffs to override the putative defendants’ anonymity by compelling the production of these defendants’ identifying information. See Sony, 326 F.Supp.2d at 564 (“Although this is not political expression entitled to the broadest protection of the First Amendment, the file" }, { "docid": "19137966", "title": "", "text": "that span a period of nearly five months. Two individuals who downloaded the same file five months apart are exceedingly unlikely to have had any interaction with one another whatsoever. Their only relationship is that they used the same protocol to access the same work. To paraphrase an analogy offered by amicus counsel at oral argument, two BitTorrent users who download the same file months apart are like two individuals who play at the same blackjack table at different times. They may have won the same amount of money, employed the same strategy, and perhaps even played with the same dealer, but they have still engaged in entirely separate transactions. And “[sjimply committing the same type of violation in the same way does not link defendants together for the purposes of joinder.” Hard Drive Productions, Inc. v. Does 1-30, No. 2:11cv345, 2011 WL 4915551, at *3, 2011 U.S. Dist. LEXIS 119333, at *7 (E.D.Va.2011) (internal quotation marks omitted). We therefore agree with those district courts that have concluded that the mere fact that two defendants accessed the same file through BitTorrent provides an insufficient basis for joinder. See Malibu Media LLC v. Does 1-11, 286 F.R.D. 113, 116 (D.D.C. 2012) (“ ‘Nothing in the complaint negates the inference that the downloads by the various [Doe] defendants were discrete and separate acts that took place at different times.’ ”) (quoting Digital Sins, Inc. v. Does 1-245, No. 11 Civ. 8170, 2012 WL 1744838, at *2, 2012 U.S. Dist. LEXIS 69286, at *6 (S.D.N.Y.2012)); accord, e.g., Patrick Collins, Inc. v. Does 1-44, No. 8:12-cv-00020, 2012 WL 1144854, at *5, 2012 U.S. Dist. LEXIS 47686, at *18 (D.Md. Apr. 4, 2012) (“A majority of courts ... have specifically held that the properties of BitTorrent are insufficient to support joinder.”); In re BitTorrent Adult Film Copyright Infringement Cases, 296 F.R.D. 80, 90-91 (E.D.N.Y.2012). As with personal jurisdiction and venue, AF Holdings could have brought a suit for which it had some reasonable basis for believing that the requirements for joinder would be satisfied. But given its decision to instead name and seek discovery regarding" }, { "docid": "14797728", "title": "", "text": "its subscribers’ identifying information due to the putative defendants’ First Amendment right to anonymity. The Court addresses these issues sua sponte under its duty to supervise discovery in these cases. See FED. R. CIV. P. 26(b)(2)(C) (\"On motion or on its own, the court must limit the frequency or extent of discovery otherwise allowed by these rules ... ”)(emphasis added). . Amici also urge the Court to \"set an example of what appropriate procedures must be followed before individuals’ identities can be disclosed,” including that notice be required to be sent to a customer before identifying information is provided in response to the subpoenas. Amici Mem., Wild, ECF No. 18, at 14-19. Such notices are already provided. Transcript of Mot. Hearing at 51, Call of the Wild Movie LLC v. Does 1-1,063, No. 10-cv-455 (Mar. 1, 2011) (plaintiffs' counsel: \"Every single subpoena we sent to an ISP has [Amici’s suggested] notice attached to it. And Time Warner, I believe, reached an agreement on the form of that notice ... and every single subpoena we sent since that date in every new case has that notice.”). . Amici provide a declaration from Seth Schoen, in which Mr. Schoen states: ''BitTorrent provides users with less ability to identify and communicate with the peers with whom they exchange files than other technologies do.... There is no easy way for the various BitTorrent users who have uploaded or downloaded parts of a file to recognize, name, or communicate with one another.” Amici Reply Brief, Seth Schoen Decl. in Support of Reply Brief ¶ 9, Wild, ECF No. 22. Although this information was supplied to support Amici’s contention that the putative defendants are improperly joined, it demonstrates rather that the putative defendants’ BitTorrent activities deserve even less First Amendment protection because BitTorrent allows for less communication between users than other file-sharing programs. . Amici urge the Court to adopt a more rigorous five-part balancing test that was originally set forth in Dendrite International v. Doe, a New Jersey state case that required: \"(1) that the plaintiff undertake to notify the anonymous posters that they are" }, { "docid": "20471203", "title": "", "text": "she should not be subject to personal jurisdiction, which causes her hardship. As explained more fully infra, the putative defendant’s personal jurisdiction arguments are premature at this time because she has not been named as a party to this lawsuit. Given that she is not a named party, Ms. McDonald is not required to respond to the allegations presented in the plaintiffs Complaint or otherwise litigate in this district. The plaintiff has issued a subpoena to Comcast, the putative defendant’s ISP, not to the putative defendant herself. Consequently, Ms. McDonald faces no obligation to produce any information under the subpoena issued to Comcast and cannot claim any hardship, let alone undue hardship. The putative defendant raises an additional argument in support of her motion to quash based upon her privacy interests. Although the plaintiffs subpoena was not issued to her, she seeks to quash the plaintiffs subpoena “pursuant to the personal right and privilege of protection of information.” McDonald Mot. Quash and/or Vacate Subpoena, ECF No. 31, at 1. Rule 45(c)(3)(A)(iii) instructs a Court to quash a subpoena if it “requires disclosure of privileged or other protected matter.” Fed.R.Civ.P. 45(c)(3)(A)(iii). This rule, however, does not apply here. The Court recognizes that Ms. McDonald’s First Amendment right to anonymous speech is implicated by disclosure of her identifying information. See Sony Music Entm’t, Inc. v. Does, 1-40, 326 F.Supp.2d 556, 564 (S.D.N.Y.2004) (“the file sharer may be expressing himself or herself through the music selected and made available to others.”); see also London-Sire Records, Inc. v. Doe 1, 542 F.Supp.2d 153, 163 (D.Mass.2008). Nevertheless, whatever asserted First Amendment right to anonymity the putative defendant may have in this context does not shield her from allegations of copyright infringement. See Arista Records LLC v. Does 1-19, 551 F.Supp.2d 1, 8 (D.D.C. 2008) (“First Amendment privacy interests are exceedingly small where the ‘speech’ is the alleged infringement of copyrights.”); Achte/Neunte, 736 F.Supp.2d at 216 n. 2 (“the protection afforded to such speech is limited and gives way in the face of a prima facie showing of copyright infringement”); West Bay One, Inc. v. Does" }, { "docid": "20471227", "title": "", "text": "to evaluate her personal jurisdiction defense and consider dismissal. Until that time, however, dismissal under Rule 12(b)(2) is inappropriate. See London-Sire Records, 542 F.Supp.2d at 180-181 (“premature to adjudicate personal jurisdiction” and permitting plaintiff to engage in jurisdictional discovery); Sony, 326 F.Supp.2d at 567-68 (same); Virgin Records, 2006 WL 1028956, at *3 (“Defendant’s Motion to Quash is without merit [ ] because it is premature to consider the question of personal jurisdiction in the context of a subpoena directed at determining the identity of the Defendant,” citing Elektra Entm’t Grp., Inc. v. Does 1-9, No. 04-2289, 2004 WL 2095581, at *5 (S.D.N.Y. Sept. 8, 2004); UMG Recordings v. Does 1-199, No. 04-0093, slip op. at 2 (D.D.C. Mar. 10, 2004)). Accordingly, the putative defendant’s motion to dismiss based on a purported lack of personal jurisdiction is denied at this time. VI. CONCLUSION For the reasons stated above, the putative defendant has failed to demonstrate that the plaintiffs subpoena issued to Comcast, her ISP, should be quashed, that a protective order is warranted, or that she should otherwise be dismissed from this case for improper joinder or a lack of personal jurisdiction. Accordingly, Ms. McDonald’s motion to quash the plaintiffs subpoena, motion to be dismissed from the lawsuit, and motion for a protective order are denied. An Order consistent with this Memorandum Opinion will be entered. . Ms. McDonald has filed motions representing that she is a putative defendant in this lawsuit, but has not provided the IP address listed in the plaintiff's Complaint that is allegedly associated with her computer use. The Court therefore has no way of verifying that she is indeed a potential party in this lawsuit. Regardless, however, the court considers her defenses and arguments. . Pursuant to Federal Rule of Civil Procedure 4(m), the plaintiff was required to name and serve defendants by January 6, 2011, which is the date within 120 days of filing its Complaint. On January 11, 2011, the plaintiff requested an additional 180 days to name and serve the defendants because the plaintiff had yet to receive identifying information for all 171" }, { "docid": "19137965", "title": "", "text": "at *4 (S.D.N.Y. Sept. 3, 2012). AF Holdings argues that because BitTorrent users who download the same file are part of the same “swarm,” they have all participated in the same series of transactions. See, e.g., Digital Sin, Inc. v. Does 1-176, 279 F.R.D. 239, 244 (S.D.N.Y.2012) (accepting a version of this argument). We are unconvinced. For purposes of this case, we may assume that two individuals who participate in the same swarm at the same time are part of the same series of transactions within the meaning of Rule 20(a)(2). In that circumstance, the individuals might well be actively sharing a file with one another, uploading and downloading pieces of the copyrighted work from the other members of the swarm. But AF Holdings has provided no reason to think that the Doe defendants it named in this lawsuit were ever participating in the same swarm at the same time. Instead, it has simply set forth snapshots of a precise moment in which each of these 1,058 Does allegedly shared the copyrighted work — snapshots that span a period of nearly five months. Two individuals who downloaded the same file five months apart are exceedingly unlikely to have had any interaction with one another whatsoever. Their only relationship is that they used the same protocol to access the same work. To paraphrase an analogy offered by amicus counsel at oral argument, two BitTorrent users who download the same file months apart are like two individuals who play at the same blackjack table at different times. They may have won the same amount of money, employed the same strategy, and perhaps even played with the same dealer, but they have still engaged in entirely separate transactions. And “[sjimply committing the same type of violation in the same way does not link defendants together for the purposes of joinder.” Hard Drive Productions, Inc. v. Does 1-30, No. 2:11cv345, 2011 WL 4915551, at *3, 2011 U.S. Dist. LEXIS 119333, at *7 (E.D.Va.2011) (internal quotation marks omitted). We therefore agree with those district courts that have concluded that the mere fact that two defendants" }, { "docid": "20471230", "title": "", "text": "Foundation, American Civil Liberties Union of the Nation's Capital’s contention that the putative defendants' First Amendment rights protect against disclosure of the putative defendants’ identifying information. Call of the Wild Movie, LLC v. Does 1-1,062, No. 10-cv-455, 770 F.Supp.2d 332, 347-55, 2011 WL 996786 at *10-15 (D.D.C. Mar. 22, 2011) (consolidated opinion also addressing motions filed in Donkeyball Movie, LLC v. Does 1-171, No. 10-cv-1520). . The putative defendant states that she seeks a protective order pursuant to Federal Rule of Civil Procedure 37. The Court assumes, however, that she seeks a protective order under Federal Rule of Civil Procedure 26(c), and construes her motion accordingly. . Rule 21 does not set forth what constitutes misjoinder, but \"it is well-settled that parties are misjoined when the preconditions of permissive joinder set forth in Rule 20(a) have not been satisfied.\" Disparte v. Corporate Exec. Bd., 223 F.R.D. 7, 12 (D.D.C.2004) (citation omitted). Courts have also read Rule 21 in conjunction with Rule 42(b), which allows the court to sever claims in order to avoid prejudice to any party. M.K. v. Tenet, 216 F.R.D. 133, 138 (D.D.C.2002); see also Fed. R.Civ.P. 42(b) (\"For convenience, to avoid prejudice, or to expedite and economize, the court may order a separate trial of one or more separate issues, claims, crossclaims, counterclaims, or third-party claims.”). In addition to the two requirements of Rule 20(a)(2), courts therefore also consider whether joinder would prejudice any party or result in needless delay. See Lane v. Tschetter, No. 05-1414, 2007 WL 2007493, at *7 (D.D.C. July 10, 2007); Tenet, 216 F.R.D. at 138. . For a more expansive discussion regarding the propriety of joining the putative defendants in this case, see the Court's Memorandum Opinion filed March 22, 2011 addressing amici Electronic Frontier Foundation, Public Citizen, American Civil Liberties Union Foundation, American Civil Liberties Union of the Nation’s Capital’s contention that joinder of file putative defendants is inappropriate in this case. Call of the Wild Movie, LLC v. Does 1-1,062, No. 10-cv-455, 770 F.Supp.2d 332, 342-45, 2011 WL 996786 at *4-7 (D.D.C. Mar. 22, 2011) (consolidated opinion also addressing motions" } ]

[ { "docid": "23484147", "title": "", "text": "the non-moving party must present “significant probative evidence” to show that “there is [more than] some metaphysical doubt as to the material facts.” Moore v. Philip Morris Cos., 8 F.3d 335, 339—40 (6th Cir.1993). “[S]ummary judgment will not lie if the dispute is about a material fact that is ‘genuine,’ that is, if the evidence is such that a reasonable jury could return a verdict for the non-moving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (concluding that summary judgment is appropriate when the evidence could not lead the trier of fact to find for the non-moving party). In evaluating a motion for summary judgment, the evidence must be viewed in the light most favorable to the non-moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). The non-moving party, however, “may not rest upon its mere allegations ... but ... must set forth specific facts showing that there is a genuine issue for trial.” Fed.R.Civ.P. 56(e); see Celotex, 477 U.S. at 324, 106 S.Ct. 2548; Searcy v. City of Dayton, 38 F.3d 282, 286 (6th Cir.1994). Furthermore, the mere existence of a scintilla of evidence in support of the nón-moving party’s position will not be sufficient; there must be evidence on which the jury could reasonably find for the non-moving party. Anderson, 477 U.S. at 251, 106 S.Ct. 2505; Copeland v. Machulis, 57 F.3d 476, 479 (6th Cir.1995). III. DISCUSSION On-appeal, Hopson does not challenge the district court’s ruling with respect to two of the seven allegedly discriminatory employment actions that were brought before the district court, nor does he challenge the district court’s ruling with respect to his retaliation claim. Thus, those claims are deemed abandoned. See Boyd v. Ford Motor Co., 948 F.2d 283, 284 (6th Cir.1991) (concluding that any issues not raised by the appellant with respect to the district court’s ruling are considered abandoned on appeal" } ]

[ { "docid": "2078005", "title": "", "text": "251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). After adequate time for discovery and upon motion, Rule 56(c) mandates summary judgment against a party who fails to establish the existence of an element essential to that party’s case and on which that party bears the burden of proof at trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The movant has an initial burden of showing “the absence of a genuine issue of material fact.” Id. at 323, 106 S.Ct. 2548. Once the movant meets this burden, the non-movant must' come forward with specific facts showing that there is a genuine issue for trial. See Matsushita Electric Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). To demonstrate a genuine issue, the non-movant must present sufficient evidence upon which a jury could reasonably find for the non-movant; a “scintilla of evidence” is insufficient. See Liberty Lobby, 477 U.S. at 252, 106 S.Ct. 2505. The court must believe the non-movant’s evidence and draw “all justifiable inferences” in the non-movant’s favor. See id. at 255, 106 S.Ct. 2505. The inquiry is whether the evidence presented is such that a jury applying the relevant evidentia-ry standard could “reasonably find for either the plaintiff or the defendant.” See id. III. Applicable Law and Analysis The FMLA grants eligible employees as many as twelve weeks of leave during a one-year period if, among other things, they have a “serious health condition that makes the employee unable to perform the functions of the position of such employee.” 29 U.S.C. § 2612(a)(1)(D). The Act prohibits an employer from interfering with an employee’s right to take medical leave, 29 U.S.C. § 2615(a)(1); and it prohibits an employer from retaliating against an employee for exercising his or her rights under the Act. 29 U.S.C. § 2615(a)(2). Miller moves for summary judgment on her interference and retaliation claims arguing that there are no genuine factual disputes and that she is entitled to judgment as a matter of law. GB seeks summary dismissal of Miller’s" }, { "docid": "6936558", "title": "", "text": "and identifying those portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,’ which [he] believes demonstrate the absence of a genuine issue of material fact.” Id. at 323, 106 S.Ct. 2548, (quoting Fed.R.Civ.P. 56(c)). However, the moving defendant is under no “express or.implied” duty to “support [his] motion with affidavits or other similar materials negating the opponent’s claim.” Id. Once the moving defendant satisfies his burden, the burden shifts to the nonmoving plaintiff to set forth specific facts showing a triable issue. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The nonmoving plaintiff may not defeat the summary judgment motion merely by showing some existence of doubt as to the material facts. See id. at 586, 106 S.Ct. 1348. Nor can the nonmoving plaintiff rely upon the mere allegations or denials of her pleadings. Fed.R.Civ.P. 56(e). In deciding a motion for summary judgment, the Court views the factual evidence and draws all reasonable inferences in favor of the nonmoving plaintiff. Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). To be sure, the Court need not conclusively resolve an allegedly disputed issue in favor of the nonmoving plaintiff; rather, the plaintiff must present “sufficient evidence supporting the claimed factual dispute ... to require a jury or judge to resolve the parties’ differing versions of the truth at trial.” First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 289, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968). Ultimately the Court must decide “whether the evidence presents sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). III. Constitutional Claims Counts I and III charge violations of Plaintiffs constitutionally protected liberty interests. Termination of a public employee may impair the employee’s liberty interest in pursuing a chosen career. See Bd. of" }, { "docid": "3530752", "title": "", "text": "that have been upheld in similar cases) (citations omitted); Miller v. Alldata Corp., 14 Fed.Appx. 457, 467 (6th Cir. July 6, 2001) (affirming district court’s denial of motion for remittitur of $300,000 award for emotional distress where the plaintiff recovered only $16,000 in economic damages for gender discrimination claim). Accordingly, we affirm the award. IV. FMLA Claim A. Standard of Review This Court reviews de novo a district court’s decision to grant summary judgment. Cockrel v. Shelby County Sch. Dist., 270 F.3d 1036, 1048 (6th Cir.2001). Summary judgment must be granted if the pleadings and evidence “show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). A dispute over a material fact is only a “genuine issue” if a reasonable jury could find for the nonmoving party on that issue. Cockrel, 270 F.3d at 1048 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). In reviewing the district court’s grant of summary judgment, this Court must view all the facts and the inferences drawn therefrom in the light most favorable to the nonmoving party. Id. (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). B. Analysis The FMLA entitles an eligible employee to take up to a total of 12 workweeks of leave during any 12-month period “[b]e-cause of a serious health condition that makes the employee unable to perform the functions of the position of such employee.” 29 U.S.C. § 2612(a)(1)(D). “The term ‘serious health condition’ means an illness, injury, impairment, or physical or mental condition that involves... inpatient care in a hospital, hospice, or residential medical care facility.” Id. § 2611(11)(A). An eligible employee who takes FMLA leave is entitled, on return from such leave, “to be restored by the employer to the position of employment held by the employee when the leave commenced” or “to be restored to an equivalent position with equivalent employment benefits, pay," }, { "docid": "6280695", "title": "", "text": "evidence in the light most favorable to the party against whom summary judgment is sought and must draw all reasonable inferences in [its] favor.” Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Whether any disputed issue of fact exists is for the court to determine. Balderman v. United States Veterans Admin., 870 F.2d 57, 60 (2d Cir.1989). The moving party has the initial burden of demonstrating the absence of a disputed issue of material fact. Celotex v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once such a showing has been made, the non-moving party must present “specific facts showing that there is a genuine issue for trial.” Fed.R.Civ.P. 56(e). The party opposing summary judgment “may not rely on conclusory allegations or unsubstantiated speculation.” Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir.1998). Moreover, not every disputed factual issue is material in light of the substantive law that governs the case. “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude summary judgment.” Anderson, 477 U.S. at 248, 106 S.Ct. 2505. Finally, the nonmoving party “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita, 475 U.S. at 586, 106 S.Ct. 1348. To withstand a summary judgment motion, sufficient evidence must exist upon which a reasonable jury could return a verdict for the nonmovant. B. FMLA Claims FMLA gives eligible employees an “entitlement” to twelve work weeks of unpaid leave per year. 29 U.S.C. § 2612(a)(1). While an employee is on FMLA leave it is “unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided” by the FMLA. 29 U.S.C. § 2615(a)(1). FMLA leave is triggered by, inter alia, “the birth of a son or daughter and in order to care for such son or daughter” and “a serious health condition that makes the employee unable to perform functions of his or her position.” 29 U.S.C." }, { "docid": "23497304", "title": "", "text": "that UPMC had impermissibly considered this absence in terminating her employment. The District Court granted UPMC’s motion for summary judgment and Lichtenstein filed this timely appeal. III. LEGAL BACKGROUND A. Standard of Review We review the District Court’s grant of summary judgment de novo. Sempier v. Johnson & Higgins, 45 F.3d 724, 727 (3d Cir.1995). Summary judgment should only be granted if “there is no genuine dispute as to any material fact.” Fed.R.Civ.P. 56(a). A dispute is genuine if a reasonable trier-of-fact could find in favor of the non-movant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute is material if it could affect the outcome of the case. Id. In considering the record, we must draw all reasonable inferences in favor of the non-moving party, which in this case, is Lichtenstein. Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). B. Family Medical Leave Act (FMLA) Congress passed the FMLA in 1993 in an attempt “to balance the demands of the workplace with the needs of families.” 29 U.S.C. § 2601(b)(1). Accordingly, the FMLA “entitle[s] employees to take reasonable leave for medical reasons,” 29 U.S.C. § 2601(b)(2), but employees must do so “in a manner that accommodates the legitimate interests of employers,” 29 U.S.C. § 2601(b)(3). Eligible employees are entitled to “12 workweeks of leave during any twelve-month period ... [i]n order to care for the ... parent of the employee, if such ... parent has a serious health condition.” 29 U.S.C. § 2612(a)(1); see also 29 C.F.R. § 825.101(b) (“When a family emergency arises, ... workers need reassurance that they will not be asked to choose between continuing their employment, and meeting their ... family obligations.”). As indicated, eligible employees are entitled to take FMLA if they “care for” a family member with a “serious health condition.” A “serious health condition” is defined as “an illness, injury, impairment, or physical or mental condition that involves (A) inpatient care in a hospital, ... or (B) continuing treatment by" }, { "docid": "23330986", "title": "", "text": "from a temporary agency, who are given no FMLA training. II. We turn now to Walton’s primary contention on appeal, which is that the district court erred by granting Visteon’s motion for summary judgment. We review a district court’s grant of summary judgment de novo. Williams v. Mehra, 186 F.3d 685, 689 (6th Cir.1999) (en banc). Summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” FED. R. CIV. P. 56(c). We view the evidence, all facts, and any inferences that may be drawn from the facts in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Entry of summary judgment is appropriate “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The FMLA entitles qualifying employees to up to twelve weeks of unpaid leave each year if, among other things, an employee has a “serious health condition that makes the employee unable to perform the functions of the position of such employee.” 29 U.S.C. § 2612(a)(1)(D). A “serious health condition” is defined as “an illness, injury, impairment, or physical or mental condition that involves(A) inpatient care in a hospital, hospice, or residential medical care facility; or (B) continuing treatment by a health care provider.” 29 U.S.C. § 2611(11). It is unlawful “for any employer to interfere with, restrain, or deny the exercise of or attempt to exercise, any right provided under [the FMLA].” 29 U.S.C. § 2615(a)(1). Employers who violate § 2615 are “liable to any eligible employee affected” for damages and appropriate equitable relief. 29 U.S.C. § 2617(a)(1). Walton argues on" }, { "docid": "7191626", "title": "", "text": "the burden of establishing that there are no genuine issues of material fact, which may be accomplished by demonstrating that the nonmov-ing party lacks evidence to support an essential element of its case. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Barnhart v. Pickrel, Schaeffer & Ebeling Co., 12 F.3d 1382, 1388-89 (6th Cir.1993). In response, the nonmoving party must present “significant probative evidence” to show that “there is [more than] some metaphysical doubt as to the material facts.” Moore v. Philip Moms Cos., 8 F.3d 335, 339-40 (6th Cir.1993). “[SJummary judgment will not lie if the dispute is about a material fact that is ‘genuine,’ that is, if the evidence is such that a reasonable jury could return a verdict for the non-moving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (concluding that summary judgment is appropriate when the evidence could not lead the trier of fact to find for the non-moving party). In evaluating a motion for summary judgment the evidence must be viewed in the light most favorable to the non-moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). In responding to a motion for summary judgment, however, the non-moving party “may not rest upon its mere allegations ... but ... must set forth specific facts showing that there is a genuine issue for trial.” Fed. R. Civ. P. 56(e); see Celotex, 477 U.S. at 324, 106 S.Ct. 2548; Searcy v. City of Dayton, 38 F.3d 282, 286 (6th Cir.1994). Furthermore, the existence of a mere scintilla of evidence in support of the non-moving party’s position will not be sufficient; there must be evidence on which the jury could reasonably find for the non-moving party. Anderson, 477 U.S. at 251, 106 S.Ct. 2505; see Copeland v. Machulis, 57 F.3d 476, 479 (6th Cir.1995). IV. ANALYSIS The Plaintiff has alleged claims" }, { "docid": "317289", "title": "", "text": "Judge Cook decided to terminate her. Judge Cook formally terminated Horen on December 16, 2009. Standard of Review Summary judgment must be entered “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The moving party must provide the basis for its motion, and identify those portions of the record that demonstrate the absence of a genuine issue of material fact. Id. at 323, 106 S.Ct. 2548. The burden then shifts to the non-moving party to “set forth specific facts showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); see also Fed.R.Civ.P. 56(e). After the burden of production shifts, the party opposing summary judgment cannot rest on its pleadings or merely reassert its previous allegations. It is insufficient “simply [to] show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Rather, Rule 56(e) “requires the nonmoving party to go beyond the [unverified] pleadings” and present some evidentiary material in support of its position. Celotex, supra, 477 U.S. at 324, 106 S.Ct. 2548. In deciding the motion for summary judgment, the non-moving party’s evidence will be accepted as true and all reasonable inferences will be drawn in the non-moving party’s favor. Eastman Kodak Co. v. Image Technical Servs., Inc., 504 U.S. 451, 456, 112 S.Ct. 2072, 119 L.Ed.2d 265 (1992). Summary judgment shall be granted if the pleadings, discovery, and 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). Discussion Horen claims Judge Cook terminated her in violation of the FMLA, which requires an employer to reinstate an employee after she takes FMLA leave and" }, { "docid": "16256517", "title": "", "text": "2548, 91 L.Ed.2d 265 (1986). In considering a motion for summary judgment, a court must view all facts and inferences' in the light most favorable to the nonmoving party. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Nevertheless, the nonmoving party cannot rest on its pleadings, but must come forward with specific facts demonstrating that there is a genuine issue for trial. Id.; Fed.R.Civ.P. 56(e). There is a genuine dispute about a material fact only if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Thus, the nonmoving party cannot survive summary judgment with only allegations and expert affidavits that are merely conelusory assertions about ultimate legal issues. See Wade v. Knoxville Utilities Board, 259 F.3d 452, 463 (6th Cir.2001); Williams v. Ford Motor Co., 187 F.3d 533, 543-44 (6th Cir.1999). III. DISCUSSION A. The Family Medical Leave Act Claim (1) The Family Medical Leave Act and 29 C.F.R. § 825.208 The FMLA entitles eligible employees to a total of twelve workweeks of leave during any twelve-month period for several reasons, including “because of a serious health condition that makes the employee unable to perform the functions of the position of such employee.” 29 U.S.C. § 2612(a)(1) (2002). The parties do not dispute that Plaintiff is an eligible employee, and that she took leave for a serious health condition. The only dispute is over when the twelve weeks began and ended. Plaintiff cites 29 C.F.R. § 825.208, which states: “In all circumstances it is the employer’s responsibility to designate leave, paid or unpaid, as FMLA-qualifying, and to give notice of the designation to the employee ... based only on information received from the employee.” 29 C.F.R. § 825.208(a). If the employer does not have sufficient information about the rea son for the employee’s leave, “the employer should inquire further of the employee or the spokesperson to ascertain whether the paid leave is potentially FMLA-quali-fying.”" }, { "docid": "19084650", "title": "", "text": "reaching a compromise. Sometime around August 2004, defendant proposed, and plaintiff refused to accept, the following terms: (1) that plaintiff acknowledge that his absenteeism record justified his discharge; (2) that plaintiff “agree[] to release [defendant] from any legal claims known or unknown arising on or before the date of this agreement”; and (3) that plaintiff would receive no back pay or benefits for the period he was out of the plant. II. STANDARDS FOR JUDGMENT Summary judgment is appropriate if the moving party demonstrates that there is “no genuine issue as to any material fact” and that it is “entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). In applying this standard, the court views the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir.1998) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). III. DISCUSSION A. FMLA Claims Plaintiff brings two separate claims for violation of his FMLA rights: (1) that defendant interfered with his FMLA rights by improperly denying plaintiff FMLA leave for absences in January/February 2002 and April/May 2002, and by considering those absences in its decision to terminate plaintiffs employment (Count One); and (2) that defendant interfered with his FMLA rights and retaliated against him by proposing a settlement of claims which included a waiver of his FMLA rights (Count Five). The court finds that there is a genuine issue of material fact with respect to Count One, but that there is no issue for the jury with respect to Count Five. The FMLA provides eligible employees up to twelve weeks of leave during any twelve-month period “because of a serious health condition,” in addition to other reasons. 29 U.S.C. § 2612(a)(l)(A)-(D). The FMLA also contains substantive protections for employees who request FMLA leave or otherwise assert a right under the FMLA. Specifically, § 2615(a)(1) prohibits employers from interfering with, restraining, or denying an employee’s exercise or attempted exercise of his or her FMLA rights, and" }, { "docid": "9751823", "title": "", "text": "of law.’” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (quoting Fed.R.Civ.P. 56(c)). In deciding a motion for summary judgment, the Court must construe the facts and inferences in a light most favorable to the non-moving party. Pollock v. American Tel. & Tel. Long Lines, 794 F.2d 860, 864 (3d Cir.1986). The role of the court is not “to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). However, “a party opposing a properly supported motion for summary judgment may not rest upon the mere allegations or denials of his pleading, but ... must set forth specific facts showing that there is a genuine issue for trial.” Id. at 248, 106 S.Ct. 2505 (citation omitted). III. Plaintiff contends that she was suffering from a “serious health condition” when she left work in June, 2000 and that because her subsequent absences were protected by the FMLA, the Defendants violated the Act by discharging her for excessive absenteeism during that period. Defendants respond that, regardless of whether her absence was protected by the FMLA, Plaintiff had an “independent” obligation to comply with the Board’s own sick leave notification procedures and that her failure to do so constituted a “legitimate nondiscriminatory reason for terminating plaintiffs employment.” (Def. Reply at 4). A. Congress enacted the Family and Medical Leave Act of 1993 “to balance the demands of the workplace with the needs of families, to promote the stability and economic security of families, and to promote national interests in preserving family integrity.” 29 U.S.C. § 2601(b)(1); 29 C.F.R. § 825.101. The Act entitles eligible employees to twelve unpaid workweeks of leave during “any 12-month period.” 29 U.S.C. § 2612(a)(1). As it concerns this case, the Act provides leave for an employee suffering from a “serious health condition” that “makes the employee unable to perform the functions of [his or her] position,” and entitles such employees to reinstatement upon their" }, { "docid": "9482579", "title": "", "text": "Lobby, Inc., 477 U.S. 242, 247-50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A genuine issue for trial exists if, based on the record as a whole, a reasonable jury could find in favor of the non-movant. See Liberty Lobby, 477 U.S. at 248, 106 S.Ct. 2505. In making its determination, the court must resolve all ambiguities and draw all reasonable inferences in favor of the non-movant. See id. at 255, 106 S.Ct. 2505. To defeat summary judgment, the non-moving party must go beyond the pleadings and “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1848, 89 L.Ed.2d 538 (1986). For a plaintiff in a discrimination case to survive a motion for summary judgment, he or she must offer “concrete particulars” to substantiate the claim. See Meiri v. Dacon, 759 F.2d 989 (2d Cir.1985), cert. denied, 474 U.S. 829, 106 S.Ct. 91, 88 L.Ed.2d 74 (1985). FMLA Claim Revere first argues that Barnett’s FMLA claim fails because he has failed to make the required showing that his condition is covered by the Act. The FMLA provides that it is “unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under ... subchapter [I of the Act].” 29 U.S.C. § 2615(a)(1) (1994). Barnett’s claim falls under a provision of the FMLA that entitles an eligible employee to up to 12 weeks of unpaid leave during any 12-month period “[bjecause of a serious health condition that makes the employee unable to perform the functions of the position of such employee.” § 2612(a)(1)(D). The Act defines “serious medical condition” as an “illness, injury, impairment, or physical or mental condition that involves (A) inpatient care in a hospital ... or (B) continuing treatment by a health care provider.” § 2611(11). As Barnett has never received inpatient care for his heart ailment, his condition can only fall under subsection (B) of this definition. Department of Labor regulations provide guidance as to" }, { "docid": "22279317", "title": "", "text": "FMLA.” In so ruling, the district court relied on this court’s opinion in Cehrs v. Northeast Ohio Alzheimer’s Research Center, 155 F.3d 775 (6th Cir.1998), and two district court opinions. Edgar’s timely appeal followed. II. ANALYSIS A. Standard of review The district court’s grant of summary judgment is reviewed de novo. Int’l Union v. Cummins, Inc., 434 F.3d 478, 483 (6th Cir.2006). Summary judgment is proper where there exists no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. -56(c). In considering a motion for summary judgment, the district court must construe the evidence and draw all reasonable inferences in favor of the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The central issue is “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). B. Statutory and legal framework “The FMLA entitles qualifying employees to up to twelve weeks of unpaid leave each year if, among other things, an employee has a ‘serious health condition that makes the employee unable to perform the functions of the position of such employee.’ ” Walton v. Ford Motor Co., 424 F.3d 481, 485 (6th Cir.2005) (quoting 29 U.S.C. § 2612(a)(1)(D)). A “serious health condition,” in turn, is defined as “an illness, injury, impairment, or physical or mental condition that involves (A) inpatient care in a hospital, hospice, or residential medical care facility; or (B) continuing treatment by a health care provider.” 29 U.S.C. § 2611(11). Employees claiming that they suffer from such a condition may be required by their employer to support their contention with a written certification from a healthcare provider. 29 U.S.C. § 2613(a). That certification form, according to the Department of Labor (DOL) regulations, must be submitted “within the time frame requested by the employer (which must allow at least 15" }, { "docid": "1730172", "title": "", "text": "JUDGMENT STANDARD [¶ 13] Under Rule 56(c) of the Federal Rules of Civil Procedure, a movant is entitled to summary judgment if the movant can “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.” In determining whether summary judgment should issue, the facts and inferences from those facts are viewed in the light most favorable to the nonmoving party, and the burden is placed on the moving party to establish both the absence of a genuine issue of material fact and that such party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 1356-57, 89 L.Ed.2d 538 (1986). Once the moving party has met this burden, the nonmoving party may not rest on the allegations in the pleadings, but by affidavit or other evidence must set forth specific facts showing that a genuine issue of material fact exists. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 2514, 91 L.Ed.2d 202 (1986). In determining whether a genuine issue of material fact exists, the court views the evidence presented based upon which party has the burden of proof under the underlying substantive law. See Anderson, 106 S.Ct. at 2513, 106 S.Ct. 2505. [¶ 14] 1. Family Medical Leave Act (FMLA) [¶ 15] Lau claims that Behr violated the FMLA when it failed to provide him with unpaid leave after being notified that he was hospitalized for a serious health condition. The FMLA entitles eligible employees to a maximum of twelve work weeks of unpaid leave if the employee suffers from “a serious health condition that makes the employee unable to perform the functions of the position of such employee.” 29 U.S.C. § 2612(a)(1). An eligible employee is one “who has been employed for at least 12 months by the employee with respect to whom leave is requested[.]\" 29 U.S.C. § 2611(2)(A)(i). A serious health condition is an “illness, injury, impairment, or physical or mental" }, { "docid": "22998826", "title": "", "text": "“substantial questions” concerning whether Donald established a prima facie case for FMLA interference and retaliation, it was unnecessary to discuss those issues because Donald failed to demonstrate that Sybra’s justification for her termination was pretextual. The district court also denied relief on the ADA and PWDCRA claims, finding that there was “insufficient evidence connecting the alleged disability to the decision to end her employment....” Donald filed a timely notice of appeal. II. ANALYSIS A. Standard of Review We review the district court’s grant of summary judgment de novo. Blackmore v. Kalamazoo Cnty., 390 F.3d 890, 894-95 (6th Cir.2004). Summary judgment is proper when there is no genuine issue of material fact and the moving party, Sybra, is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). Sybra bears the initial burden of demonstrating the absence of genuine issues of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Sybra may satisfy this burden by offering affirmative evidence that negates an element of Donald’s claim or, as it attempts to do here, by pointing to an absence of evidence to support the non-moving party’s claim. If Sybra satisfies its burden, Donald must then set forth the specific facts showing that there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256-57,106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In evaluating the evidence, we draw all reasonable inferences in favor of Donald. Blackmore, 390 F.3d at 895 (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587,106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). A mere scintilla of evidence in support of Donald’s position will be insufficient for her claim to survive summary judgment. Rather, there must be enough evidence such that the jury could reasonably find for her. Anderson, 477 U.S. at 251,106 S.Ct. 2505. B. FMLA Claims Donald argues that Sybra’s actions give rise to two causes of action under the FMLA. Donald first argues that because she was terminated while on leave, Sybra violated 29 U.S.C. § 2615(a)(1), which makes it “unlawful for any" }, { "docid": "5835265", "title": "", "text": "on the EEOC letter expired on January 1999. Ms. Kosakow failed to file such an action. Ms. Kosakow also chose not to appeal the SDHR’s decision by bringing an Article 78 proceeding in New York State Supreme Court. After the time to file a disability suit under the EEOC “right to sue” letter and to file an appeal under Article 78 had expired, Ms. Kosakow commenced the instant action, alleging that her termination violated FMLA and ERISA. (Id. at Exh. 8). II Discussion of the Law Plaintiff brings a claim against the Practice for its failure to return her to her same, or an equivalent, position following her protected medical leave of absence, in violation of Section 102 of FMLA, 29 U.S.C. § 2615. In the alternative, Ms. Kosakow alleges that the Practice failed to pay her severance benefits in violation of ERISA, 29 U.S.C. § 1132(a)(1)(B). She seeks injunctive relief in the form of reinstatement of her job and/or damages. Summary judgment is appropriate where there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. See Fed. R.Civ.P. 56(c); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A genuine issue for trial exists if, based on the record as a whole, a reasonable jury could find in favor of the non-movant. See Liberty Lobby, 477 U.S. at 248, 106 S.Ct. 2505. In making its determination, the court must resolve all ambiguities and draw all reasonable inferences in favor of the non-movant. See id. at 255, 106 S.Ct. 2505. However, to defeat summary judgment, the non-moving party must go beyond the pleadings and “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). A. Plaintiffs FMLA Claim The FMLA was enacted because Congress believed “there is inadequate job security for employees who have serious health conditions that prevent them from working for temporary periods.... ”" }, { "docid": "21342089", "title": "", "text": "genuine issue as to any material fact.” Id. (citing Celotex, 477 U.S. at 325, 106 S.Ct. 2548). “This burden may also be discharged by showing there is insufficient evidence to support the non-moving party’s case.” Id. If the moving party meets its burden, then the nonmoving party must “set forth specific facts showing that there is a genuine issue for trial.” Fed. R. Civ. P. 56(e). “If the court finds that some genuine factual issue remains, the resolution of which could affect the outcome of the case, then the court must deny summary judgment.” Pagan-Colon, 2010 WL 1849907, at *1. See Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). “When considering a motion for summary judgment, the court must view the evidence in the light most favorable to the non-moving party (here, the plaintiff) and give that party the benefit of any and all reasonable inferences.” Pagan-Colon, 2010 WL 1849907, at *1 (citing Anderson, 477 U.S. at 255, 106 S.Ct. 2505). “Moreover, at the summary judgment stage, the court does not make credibility determinations or weigh the evidence.” Id. B. The FMLA Claim (Count I) 1. Violation of the FMLA The FMLA of 1993 was enacted “to balance the demands of the workplace with the needs of families.” 29 U.S.C. § 2601(b)(1). It enables an “eligible employee” to take up to twelve weeks of unpaid leave in one year for “a serious health condition that makes the employee unable to perform the functions” or his or her position. 29 U.S.C. § 2612(a)(1)(D), (c). “The term ‘serious health condition’ means an illness, injury, impairment, or physical or mental condition that involves [either] ... inpatient care in a hospital, hospice, or residential medical care facility; or ... continuing treatment by a health care provider.” 29 U.S.C. § 2611(11). An employee who takes FMLA leave and returns to work is entitled to be restored to either her prior position or “an equivalent position with equivalent employment benefits, pay, and other terms and conditions of employment.” 29 U.S.C. § 2614(a)(1). The First Circuit recognizes two distinct" }, { "docid": "22866795", "title": "", "text": "the moving party is entitled to judgment as a matter of law. Fed. R.Civ.P. 56(c). In deciding a motion for summary judgment, the court must view the evidence and draw all reasonable inferences in favor of the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The judge is not to “weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A genuine issue for trial exists only when there is sufficient “evidence on which the jury could reasonably find for the plaintiff.” Id. at 252, 106 S.Ct. 2505. B. The district court correctly concluded that Skrjanc presented a prima facie case of retaliatory discharge The FMLA entitles an eligible employee to as many as twelve weeks of leave during any twelve-month period if he or she has a “serious health condition that makes the employee unable to perform the functions of the position of such employee.” 29 U.S.C. § 2612(a)(1)(D). Skrjanc’s foot injury was such a “serious health condition.” The district court properly concluded that Skrjanc presented a prima facie case of retaliatory discharge by showing that (1) he availed himself of a protected right under the FMLA by notifying Great Lakes Service of his intent to take leave, (2) he was adversely affected by an employment decision when he was discharged, and (3) the proximity in time between Skrjanc’s request for leave and his discharge constitutes indirect evidence of a causal connection between his exercise of a right under the FMLA and the adverse employment decision. See Canitia v. Yellow Freight Sys., Inc., 903 F.2d 1064, 1066 (6th Cir.1990) (listing the elements of a prima facie case for a retaliatory discharge claim). Great Lakes Service contests the district court’s conclusion that Skrjanc presented a prima facie case, arguing that Skrjanc did not have a protected right under the FMLA. The FMLA protects an employee for up to twelve weeks" }, { "docid": "22142581", "title": "", "text": "King was not a qualified individual with a disability under the ADA and that she failed to present sufficient evidence that the termination of her employment was in retaliation for the exercise of her rights under the FMLA. Accordingly, the District Court granted PTG’s motion for summary judgment on King’s ADA and FMLA claims. On appeal, King challenges only the District Court’s grant of summary judgment on the FMLA claim. Analysis A. Summary Judgment Standard We review a district court’s grant of summary judgment de novo, drawing our own conclusions of law and fact from the record before us. See Thiele v. Norfolk & Western Ry. Co., 68 F.3d 179, 181 (7th Cir.1995). Summary judgment is proper when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). We must bear in mind that “[t]his standard is applied with added rigor in employment discrimination cases, where intent and credibility are crucial issues.” Sarsha v. Sears, Roebuck & Co., 3 F.3d 1035, 1038 (7th Cir.1993). In determining whether a genuine issue of material fact exists, courts must construe all facts in the light most favorable to the non-moving party and draw all reasonable and justifiable inferences in favor of that party. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). B. The FMLA Claim 1. The FMLA establishes two categories of broad protections for employees. First, the FMLA contains prescriptive protections that are expressed as substantive statutory rights. The Act provides eligible employees of a covered employer the right to take unpaid leave for a period of up to twelve work weeks in any twelve-month period for a serious health condition as defined by" }, { "docid": "15808471", "title": "", "text": "which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In responding to a summary judgment motion, the non-moving party “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec, Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Accordingly, the non-moving party must not rely on “mere allegations or denials ... but must set forth specific facts showing that there [are] genuine issue[s] for trial.” Anderson, 477 U.S. at 248, 106 S.Ct. 2505 (one ellipsis omitted) (quoting First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968)). “The mere existence of a scintilla of evidence in support of the [non-moving party’s] position [is] insufficient” to defeat a motion for summary judgment, as “there must be [some] evidence on which the jury could reasonably find for the [non-mov-ant].” Id. at 252,106 S.Ct. 2505. III. ANALYSIS “The [FMLA] entitles eligible employees to take up to [twelve] work weeks of unpaid leave annually for any of several reasons, including the onset of a ‘serious health condition’ in an employee’s spouse, child, or parent.” Nev. Dep’t of Human Res. v. Hibbs, 538 U.S. 721, 724, 123 S.Ct. 1972, 155 L.Ed.2d 953 (2003) (quoting 29 U.S.C. § 2612(a)(1)(C)). It “creates a private right of action to seek both equitable relief and money damages ‘against any employer ..,should that employer ‘interfere with, restrain, or deny the - exercise of FMLA rights[.]” Id at 724-25, 123 S.Ct. 1972 (first quoting 29 U.S.C. § 2617(a)(2); and then quoting 29 U.S.C. § 2615(a)(1)). “An employer may be held liable for violating the FMLA under two distinct claims: (1) interference, if the employer restrained, denied, or interfered with the employee’s FMLA -rights, and (2) retaliation, if the employer took adverse action against the employee because the employee took leave or otherwise engaged in activity protected by the Act.” Holloway v. District of Columbia, 9 F.Supp.3d 1," } ]

[ { "docid": "16868106", "title": "", "text": "engages through a technological process initiated by another without the knowledge of the service provider. H.R. Conf. Rep. No. 105-796, at 72 (1998), reprinted in 1998 U.S.C.C.A.N. 649; H.R.Rep. No. 105-551(1), at 11 (1998). This immunity, however, is not presumptive, but granted only to “innocent” service providers who can prove they do not have actual or constructive knowledge of the infringement, as defined under any of the three prongs of 17 U.S.C. § 512(c)(1). The DMCA’s protection of an innocent service provider disappears at the moment the service provider loses its innocence, i.e., at the moment it becomes aware that a third party is using its system to infringe. At that point, the Act shifts responsibility to the service provider to disable the infringing matter, “preserv[ing] the strong incentives for service providers and copyright owners to cooperate to detect and deal with copyright infringements that take place in the digital networked environment.” H.R. Conf. Rep. No. 105-796, at 72 (1998), reprinted in 1998 U.S.C.C.A.N. 649. In the spirit of achieving a balance between the responsibilities of the service provider and the copyright owner, the DMCA requires that a copyright owner put the service provider on notice in a detailed manner but allows notice by means that comport with the prescribed format only “substantially,” rather than perfectly. The Act states: “To be effective under this subsection, a notification of claimed infringement must be a written communication provided to the designated agent of a seiwice provider that includes substantially the following. ...” 17 U.S.C. § 512(c)(3)(A) (emphasis added). In addition to substantial compliance, the notification requirements are relaxed to the extent that, with respect to multiple works, not all must be identified — only a “representative” list. See id. § 512(c)(3)(A)(ii). And with respect to location information, the copyright holder must provide information that is “reasonably sufficient” to permit the service provider to “locate” this material. Id. § 512(c)(3)(A)(iii) (emphasis added). This subsection specifying the requirements of a notification does not seek to burden copyright holders with the responsibility of identifying every infringing work — or even most of them — when" } ]

[ { "docid": "4348985", "title": "", "text": "the plaintiff in that case was not DMCA-compliant because it was not under oath, did not attest to a good faith belief of the alleged infringements, and did not attest to the accuracy of the allegations. Id. The Court did not state that the discovery response was insufficient because it was provided after the complaint was filed. Id. Therefore, Internet Key’s reading of the case is incorrect. Under § 512(c)(3)(A)(ii), DMCA-compliant notification requires that the accusing party identify the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, provide a representative list of such works at that site. The notification requirements also require that the notification contain a statement that the information in the notification is accurate, under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. § 512(c)(3)(A)(vi). -Perfect 10’s letter states that the document production contains infringements by Internet Key and the other defendants in this case of Perfect 10’s copyrights and the copyrights of third parties. However, the letter accompanying the document production does not identify which documents were found on Internet Key’s Affiliate Websites. The letter also does not contain a statement that the information in the notification is accurate. The letter also does not state that the author has a good faith belief that the information in the letter is accurate nor is there a declaration under penalty of perjury. The letter does state that the enlarged images are Perfect 10’s images and include the specific URLs of the images. Therefore the letter identifies which images are infringements of Perfect 10’s copyrights; however, the letter does not identify Perfect 10’s copyrights themselves, only the infringing images. Under § 512(c)(3)(A)(ii) & (iii), the notification is required to identify both the.eopyrighted image and the infringing image. The purpose behind the notice requirement under the DMCA is to provide the internet service provider with adequate information to find and examine the allegedly infringing material expeditiously. Hendrickson v. Amazon.Com, Inc.," }, { "docid": "4348984", "title": "", "text": "submitted evidence that despite its notification of these infringements, the websites that contained the images were still active in October 2003. I Zadeh Deck, ¶ 46, Exh. 35. For example, in October 2002, Perfect 10 produced an image of Perfect 10 model Genevieve Maylam printed from the website cpics.adultmas-ters.net. I Zadeh Deck, ¶ 14, Exh. 14, at 40. In October 2003, the same image was still available on the same website. I Za-deh Decl., ¶ 46, Exh. 35, at 1041. The issue before the Court, therefore, is whether the notice provided by Perfect 10 is substantially DMCA-compliant. If the notice is substantially DMCA-compliant, then Perfect 10 has raised a genuine issue of material fact that Internet Key has not reasonably implemented its termination policy. First, Internet Key objects to this evidence because it argues that post-litigation notices cannot be considered for purposes of the DMCA. To support its argument, Internet Key relies on Hendrickson v. Ebay, Inc., 165 F.Supp.2d 1082, 1092 n. 12(C.D.Cal.2001). However, in that case, the Court found that a discovery response by the plaintiff in that case was not DMCA-compliant because it was not under oath, did not attest to a good faith belief of the alleged infringements, and did not attest to the accuracy of the allegations. Id. The Court did not state that the discovery response was insufficient because it was provided after the complaint was filed. Id. Therefore, Internet Key’s reading of the case is incorrect. Under § 512(c)(3)(A)(ii), DMCA-compliant notification requires that the accusing party identify the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, provide a representative list of such works at that site. The notification requirements also require that the notification contain a statement that the information in the notification is accurate, under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. § 512(c)(3)(A)(vi). -Perfect 10’s letter states that the document production contains infringements by Internet Key and the other defendants" }, { "docid": "15672034", "title": "", "text": "required elements are entirely absent. See Perfect 10, Inc. v. CCBill, LLC, 340 F.Supp.2d 1077, 1100-01 (C.D.Cal.2004) (“Order”). In order to substantially comply with § 512(c)(3)’s requirements, a notification must do more than identify infringing files. The DMCA requires a complainant to declare, under penalty of perjury, that he is authorized to represent the copyright holder, and that he has a good-faith belief that the use is infringing. This requirement is not superfluous. Accusations of alleged infringement have drastic consequences: A user could have content removed, or may have his access terminated entirely. If the content infringes, justice has been done. But if it does not, speech protected under the First Amendment could be removed. We therefore do not require a service provider to start potentially invasive proceedings if the complainant is unwilling to state under penalty of perjury that he is an authorized representative of the copyright owner, and that he has a good-faith belief that the material is unlicensed. Permitting a copyright holder to cobble together adequate notice from separately defective notices also unduly burdens service providers. Indeed, the text of § 512(c)(3) requires that the notice be “a written communication.” (Emphasis added). Again, this requirement is not a mere technicality. It would have taken Fisher substantial time to piece together the relevant information for each instance of claimed infringement. To do so, Fisher would have to first find the relevant line in the spreadsheet indicating ownership information, then comb the 22,185 pages provided by Perfect 10 in order to find the appropriate image, and finally copy into a browser the location printed at the top of the page—a location which was, in some instances, truncated. The DMCA notification procedures place the burden of policing copyright infringement—identifying the potentially infringing material and adequately documenting infringement— squarely on the owners of the copyright. We decline to shift a substantial burden from the copyright owner to the provider; Perfect 10’s separate communications are inadequate. Since Perfect 10 did not provide effective notice, knowledge of infringement may not be imputed to CCBill or CWIE based on Perfect 10’s communications. Perfect 10’s" }, { "docid": "15672032", "title": "", "text": "of § 512(c)(3), and thus did not raise a genuine issue of material fact as to whether CCBill and CWIE reasonably imple- merited their repeat infringer policy. We agree. Compliance is not “substantial” if the notice provided complies with only some of the requirements of § 512(c)(3)(A). Section 512(c)(3)(B)(ii) explains that a service provider will not be deemed to have notice of infringement when “the notification that is provided to the service provider’s designated agent fails to comply substantially with all the provisions of subparagraph (A) but substantially complies with clauses (ii), (iii), and (iv) of subparagraph (A)” so long as the service provider responds to the inadequate notice and explains the requirements for substantial compliance. The statute thus signals that substantial compliance means substantial compliance with all of § 512(c)(3)’s clauses, not just some of them. See H.R. Rep., at 56 (A communication substantially complies even if it contains technical errors such as misspellings or outdated information.). See also Recording Indus. Ass’n of Am., Inc. v. Verizon Internet Servs., Inc., 351 F.3d 1229, 1236 (D.C.Cir.2003) (citing H.R. Rep., at 56). Perfect 10 claims that it met the requirements of § 512(c)(3) through a combination of three sets of documents. The first set of documents is a 22,185 page bates-stamped production on October 16, 2002 that includes pictures with URLs of Perfect 10 models allegedly posted on CCBill or CWIE client websites. The October 16, 2002 production did not contain a statement under penalty of perjury that the complaining party was authorized to act, as required by § 512(c)(3)(A)(vi). The second set of documents was also not sworn to, and consisted of a spreadsheet emailed to Fisher on July 14, 2003 identifying the Perfect 10 models in the October 16, 2002 production by bates number. On December 2, 2003, Perfect 10 completed interrogatory responses which were signed under penalty of perjury. These responses incorporated the July 14, 2003 spreadsheet by reference. Taken individually, Perfect 10’s communications do not substantially comply with the requirements of § 512(c)(3). Each communication contains more than mere technical errors; often one or more of the" }, { "docid": "19455195", "title": "", "text": "Wash. 2004), overruled on other grounds , Cosmetic Ideas, Inc. v. IAC/Interactivecorp , 606 F.3d 612 (9th Cir. 2010) ; Nimmer § 12B.10[F], at 12B-195 n.195. 17 U.S.C. § 512(c)(3)(A) lists out the requirements for a notice of infringement. The subsection reads as follows: Elements of Notification .- (A) To be effective under this subsection, a notification of claimed infringement must be a written communication provided to the designated agent of a service provider that includes substantially the following: (i) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. (ii) Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site. (iii) Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material. (iv) Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted. (v) A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law. (vi) A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. 488 F.3d 1102, 1109 (9th Cir. 2007). Id. Id. at 1110. Id. Id. at 1112-13. Id. at 1113. See Io Grp., Inc. v. Veoh Networks, Inc. , 586 F.Supp.2d 1132, 1143-44 (N.D. Cal. 2008). See Capitol Records, LLC v. Vimeo, LLC , 972 F.Supp.2d 500, 514-16 (S.D.N.Y. 2013), overruled in part on other grounds , 826 F.3d 78" }, { "docid": "15672059", "title": "", "text": "online site are covered by a single notification, a representative list of such works at that site. (iii) Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material. (iv) Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted. (v) A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law. (vi) A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. . We do not read the Fourth Circuit's holding in ALS Scan, Inc. v. RemarQ Communities, Inc., 239 F.3d 619, 625 (4th Cir.2001), as holding that only location information is required for substantial compliance with the terms of § 512(c)(3). . Perfect 10’s argument that its initial notice substantially complied with the DMCA’s notice requirements because Fisher, the recipient of that notice, admitted that he could have found the infringing photographs on the basis of the October 16, 2002, bates-stamped production, is thus beside the point. Without the predicate certification under penalty of perjury, Fisher would have had no reason to go looking for the photographs. . In its petition for rehearing, Perfect 10 claims that our decision on this point conflicts with Universal Communication Systems, Inc. v. Lycos, Inc., 478 F.3d 413 (1st Cir.2007). But neither party in that case raised the question of whether state law counts as \"intellectual property” for purposes of § 230 and the court seems to simply have assumed that it does. We thus create no conflict with Universal Communication. We note that Universal Communication" }, { "docid": "4348953", "title": "", "text": "financial activities processed for them through CCBill’s online Internet automated transaction processing system. Id. Consumers who have joined a client’s venue may cancel their subscription via an email or telephone call directed to CCBill. Id. CCBill has a repeat infringer policy, adopted in 1999, which states: As an ISP, CCBill follows the procedures prescribed by the Digital Milleni-um Copyright Act (DMCA) for notification, takedown, and counter-notification. If you believe that a CCBill client has something on a website that constitutes a [violation] of your copyrights, or if any of your other intellectual property rights [have been] violated, please provide the following information to CCBill’s Registered [DMCA Agent], 1. Your electronic or physical signature. 2. A description of the copyrighted work and where the original work [is located]. 3. A description of where the infringement is located. 4. Your address, telephone number, and email address. 5. A statement by you that you have a good faith belief that the use is not authorized by the copyright owner, agent, or the law. 6. A statement by you, that under penalty of perjury, that the [above] is accurate and that you are the copyright owner or authorized [to act] on the owner’s behalf. Please send all legal notices to ... Id., ¶ 9, Exh. D. B. Procedural History Plaintiff Perfect 10 filed its Complaint against Defendants CCBill, IBill, Paycom Billing Services, Inc., IMA Enterprises, Inc., Clarence Coogan, U. Berger, Cyber-tech Communications, NV, Celebskank, Network Authentication Systems Corporation, CWIE, Netpass Systems, Inc., and Internet Key on September 30, 2002. The Complaint alleges the following claims against all of the Defendants: Claim 1: federal copyright infringement; Claim 2: federal trademark infringement; Claim 3: federal trademark disparagement; Claim 4: wrongful use of registered mark under California state law; Claim 5: violation of right of publicity under California state law; Claim 6: unfair competition under California Business & Professions Code §§ 17200 and under the Lanham Act § 43(a); Claim 7: false and misleading advertising pursuant to California Business & Professions Code §§ 17500 and the common law; Claim 8: RICO (investment of proceeds); and Claim 9:" }, { "docid": "15672058", "title": "", "text": "under state or federal law for its operation. The district court’s decision regarding CDA immunity is affirmed as to the unfair competition and false advertising claims, and reversed as to the right of publicity claim. We affirm the district court’s decision to deny an award of attorney’s fees and costs to defendants. Each party shall bear its own costs on appeal. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED . The relevant portions of H.R. Rep. 105— 551(11) (1998) and S. Rep. 105-190 (1998) are largely identical. We cite to H.R. Rep. for purposes of consistency. . Section 512(c)(3) reads: (A) To be effective under this subsection, a notification of claimed infringement must be a written communication provided to the designated agent of a service provider that includes substantially the following: (i) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. (ii) Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site. (iii) Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material. (iv) Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted. (v) A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law. (vi) A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. . We do not read the" }, { "docid": "4348996", "title": "", "text": "within the safe harbors provided by the DMCA under § 512. a. Threshold Requirements Under § 512(i) Perfect 10 argues that CWIE and CCBill do not reasonably implement their repeat infringer policies under § 512(i). Perfect 10 cites to CWIE and CCBill’s DMCA notice spreadsheet and argues that many of the webmaster names are not included in the spreadsheet. Ill Fisher Deck, Exh. C. Perfect 10 contends that CWIE and CCBill do not track the actual webmasters of the websites for which they receive notifications. The Court has reviewed the spreadsheet and finds that a few of the webmaster names are missing from notifications that were either resolved by the copyright owner and the webmaster or were not DMCA-compliant. The Court finds that the fact that a few of the webmaster names are missing from the spreadsheet in instances where the notice was deficient or the issue was resolved is not sufficient to raise a genuine issue of material fact that CWIE and CCBill do not reasonably implement their repeat infringer policies. Perfect 10 has submitted notifications of infringement of Perfect 10’s copyrights that it sent to CCBill and CWIE which it claims are DMCA-compliant. The first is a letter from Perfect 10’s counsel to Fisher dated August 10, 2001. Ill Zadeh Decl., Exh. 14. The letter identifies several websites which Perfect 10 claims contain infringements of Perfect 10’s copyrights. Id. at 144. The letter only identifies the websites that contain the allegedly infringing material, it does not identify the URLs of the images nor does it identify which of Perfect 10’s images are being infringed. Under § 512(c)(3)(A)(ii) and (iii), DMCA-compli-ant notification must identify the copyrighted work claimed to have been infringed and the material that is claimed to be infringing with “information reasonably sufficient to permit the service provider to locate the material.” This notification does not fulfill either of those requirements because it does not identify Perfect 10’s images or give CCBill and CWIE sufficient information to locate the infringing material. These websites may contain more than one hundred images at different URLs; it is Perfect 10’s" }, { "docid": "3495356", "title": "", "text": "or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material, (vi) Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted. (iv) A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law. (v) A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. (B)(i) Subject to clause (ii), a notification from a copyright owner or from a person authorized to act on behalf of the copyright owner that fails to comply substantially with the provisions of sub- paragraph (A) shall not be considered under paragraph (1)(A) in determining whether a service provider has actual knowledge or is aware of facts or circumstances from which infringing activity is apparent. (ii) In a case in which the notification that is provided to the service provider’s designated agent fails to comply substantially with all the provisions of sub-paragraph (A) but substantially complies with clauses (ii), (iii), and (iv) of subparagraph (A), clause (i) of this sub-paragraph applies only if the service provider promptly attempts to contact the person making the notification or takes other reasonable steps to assist in the receipt of notification that substantially complies with all the provisions of subparagraph (A). (i) Conditions for Eligibility.— (1) Accommodation of technology.—The limitations on liability established by this section shall apply to a service provider only if the service provider— (A) has adopted and reasonably implemented, and informs subscribers and account holders of the service provider’s system or network of, a policy that provides for the termination in appropriate circumstances of subscribers and account holders of the service provider’s system or network who are repeat infringers; and (B) accommodates and" }, { "docid": "9765221", "title": "", "text": "subpoena. So ordered. The district court's jurisdiction to issue the orders here under review is not drawn into question by Verizon's Article III argument. See Interstate Commerce Comm'n v. Brimson, 154 U.S. 447, 476-78, 14 S.Ct. 1125, 1132-34, 38 L.Ed. 1047 (1894) (application of ICC to enforce subpoena issued by agency in furtherance of investigation presents \"case or controversy” subject to judicial resolution). Subsection 512(c)(3)(A) provides that \"[t]o be effective under this subsection, a notification of claimed infringement must be a written communication ... that includes substantially the following”: (i) A physical or electronic signature of a person authorized to act on behalf of die owner of an exclusive right that is allegedly infringed. (ii) Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site. (iii) Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material. (iv) Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted. (v) A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law. (vi) A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. 17 U.S.C. § 512(c)(3)(A)." }, { "docid": "4349037", "title": "", "text": "information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. . During oral argument, Perfect 10 argued that notifications of repeat infringers under § 512(i) did not have to meet the requirements of § 512(c)(3)(A) based on In re Aimster Copyright Litigation, 252 F.Supp.2d 634, 659 (N.D.Ill.2002). In Aimster, the district court found that the DMCA did not require that a copyright holder provide Aimster with the internet protocol address of the infringement on the Aimster system. Id. An internet protocol address is the numeric address given to servers and users connected to the Internet. The district court did not, however, hold that DMCA notifications under § 512(i) do not need to meet the requirements of § 512(c)(3)(A). Therefore, Perfect 10’s reliance Aimster to support its argument is misplaced. . There is no dispute between the parties that IBill is an internet service provider under the DMCA. There is also no dispute between the parties that IBill adopted its termination policy before the alleged infringements occurred. . Perfect 10 has also submitted a letter to IBH that accompanied a 22,000 page document production to IBill as notification. The letter is almost identical to the letters sent to Internet Key, CCBill, and CWIE. The letter is discussed in Sections III.A.2.b.ii, infra. . Perfect 10 has also submitted documents referring to alleged violations of the rights of publicity of celebrities on IBill’s clients’ websites and violations of third-party copyrights. IBill is asserting the safe harbor provision under § 512(a) as a defense to Perfect 10’s Claim 1 for copyright infringement. Perfect 10’s Claim 1 for copyright infringement alleges violations of Perfect 10’s copyrights. Evidence of infringements of third-party copy rights and violations of the right of publicity are not relevant to Perfect 10’s claim for copyright infringement. During oral argument, Perfect 10 argued that notices of third-party copyrights should be considered by the Court in determining whether. IBill reasonably implements its termination policy. To support its argument, Perfect 10 relies" }, { "docid": "15672033", "title": "", "text": "(D.C.Cir.2003) (citing H.R. Rep., at 56). Perfect 10 claims that it met the requirements of § 512(c)(3) through a combination of three sets of documents. The first set of documents is a 22,185 page bates-stamped production on October 16, 2002 that includes pictures with URLs of Perfect 10 models allegedly posted on CCBill or CWIE client websites. The October 16, 2002 production did not contain a statement under penalty of perjury that the complaining party was authorized to act, as required by § 512(c)(3)(A)(vi). The second set of documents was also not sworn to, and consisted of a spreadsheet emailed to Fisher on July 14, 2003 identifying the Perfect 10 models in the October 16, 2002 production by bates number. On December 2, 2003, Perfect 10 completed interrogatory responses which were signed under penalty of perjury. These responses incorporated the July 14, 2003 spreadsheet by reference. Taken individually, Perfect 10’s communications do not substantially comply with the requirements of § 512(c)(3). Each communication contains more than mere technical errors; often one or more of the required elements are entirely absent. See Perfect 10, Inc. v. CCBill, LLC, 340 F.Supp.2d 1077, 1100-01 (C.D.Cal.2004) (“Order”). In order to substantially comply with § 512(c)(3)’s requirements, a notification must do more than identify infringing files. The DMCA requires a complainant to declare, under penalty of perjury, that he is authorized to represent the copyright holder, and that he has a good-faith belief that the use is infringing. This requirement is not superfluous. Accusations of alleged infringement have drastic consequences: A user could have content removed, or may have his access terminated entirely. If the content infringes, justice has been done. But if it does not, speech protected under the First Amendment could be removed. We therefore do not require a service provider to start potentially invasive proceedings if the complainant is unwilling to state under penalty of perjury that he is an authorized representative of the copyright owner, and that he has a good-faith belief that the material is unlicensed. Permitting a copyright holder to cobble together adequate notice from separately defective notices also" }, { "docid": "3727262", "title": "", "text": "does not affect the elements of copyright liability. Instead, it affects the remedies available for any infringement which might be found. The Court will nevertheless address why it believes Cybernet does not comply with the explicit substantive requirements of the DMCA or qualify for either the section 512(c) (“information storage”) or (d) (“information location tool”) safe harbors. 1. Deficiencies In Notice Procedures Both the section 512(c) and (d) safe harbors governing information storage and connecting activity, such as link and search engines, respectively, contain parallel notification and counter-notification requirements in an attempt to balance the duties of service providers, the rights of copyright owners and the rights of other users. In general outline, the notice and take-down provisions work as follows: 1) A copyright owner must contact the service provider and provide written notice meeting certain criteria, see 17 U.S.C. § 512(c)(3); 2) If the notice fails to fully comply with the stated notice requirements, but substantially complies with three requirements aimed at identifying infringing sites, works and users, the service provider must promptly attempt to contact the person complaining or takes other reasonable steps to assist in the receipt of notification that complies with the requirements, see 17 U.S.C. § 512(c)(3)(B); 3) Once notice is received, the service provider must expeditiously remove or disable access to the material and must notify the affected user promptly, see 17 U.S.C. § 512(c)(1)(B); 4) The affected user may then submit a counter-notification consisting of a statement, under penalty of perjury, that the user had a good faith belief that the material was removed as a result of a mistake or misidentification of the material, see 17 U.S.C. § 512(g)(3); and 5) Upon receiving a counter-notification, the service provider has 10-14 days to replace the material unless the provider’s designated agent receives notice that the complaining party has filed a court action, see 17 U.S.C. § 512(2)(C). i. Deviations From Notice Requirements Cybernet’s procedures depart from this statutory scheme in several quite significant ways. First, Cybernet’s policy states that it requires a complaint to meet all its stated notice requirements and there is" }, { "docid": "19455196", "title": "", "text": "reasonably sufficient to permit the service provider to locate the material. (iv) Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted. (v) A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law. (vi) A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. 488 F.3d 1102, 1109 (9th Cir. 2007). Id. Id. at 1110. Id. Id. at 1112-13. Id. at 1113. See Io Grp., Inc. v. Veoh Networks, Inc. , 586 F.Supp.2d 1132, 1143-44 (N.D. Cal. 2008). See Capitol Records, LLC v. Vimeo, LLC , 972 F.Supp.2d 500, 514-16 (S.D.N.Y. 2013), overruled in part on other grounds , 826 F.3d 78 (2d Cir. 2016). Corbis Corp. v. Amazon.com, Inc. , 351 F.Supp.2d 1090, 1103-04 (W.D. Wash. 2004). See Ellison v. Robertson , 357 F.3d 1072, 1080 (9th Cir. 2004). See EMI Christian Music Grp., Inc. v. MP3tunes, LLC , 844 F.3d 79, 90 (2d Cir. 2016). See BMG Rights Mgmt. (US) LLC v. Cox Commc'ns, Inc. , 149 F.Supp.3d 634, 656-58 (E.D. Va. 2015). See id. at 659-62. See Nimmer § 12B.10[C][1], at 12B-178 (defining \"repeat infringer\"). See Io Grp., Inc. v. Veoh Networks, Inc. , 586 F.Supp.2d 1132, 1144 (N.D. Cal. 2008) ; Corbis Corp. v. Amazon.com, Inc. , 351 F.Supp.2d 1090, 1104 (W.D. Wash. 2004). See Columbia Pictures Indus., Inc. v. Fung , 710 F.3d 1020, 1039 (9th Cir. 2013). Bahrampour v. Lampert , 356 F.3d 969, 978 (9th Cir. 2004). Davis v. HSBC Bank Nev., N.A. , 691 F.3d 1152, 1168 (9th Cir. 2012) (quoting Cel-Tech Commc'ns, Inc. v. L.A. Cellular Tel. Co. , 20 Cal.4th 163, 83 Cal.Rptr.2d 548, 973 P.2d 527, 539-40 (1999) ). See 18 U.S.C. § 2257(a) (requiring producers" }, { "docid": "3495355", "title": "", "text": "of the agent. (B) other contact information which the Register of Copyrights may deem appropriate. The Register of Copyrights shall maintain a current directory of agents available to the public for inspection, including through the Internet, and may require payment of a fee by service providers to cover the costs of maintaining the directory. (3) Elements of notification.— (A) To be effective under this subsection, a notification of claimed infringement must be a written communication provided to the designated agent of a service provider that includes substantially the following: (i) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. (ii) Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site. (iii) Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material, (vi) Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted. (iv) A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law. (v) A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. (B)(i) Subject to clause (ii), a notification from a copyright owner or from a person authorized to act on behalf of the copyright owner that fails to comply substantially with the provisions of sub- paragraph (A) shall not be considered under paragraph (1)(A) in determining whether a service" }, { "docid": "15672060", "title": "", "text": "Fourth Circuit's holding in ALS Scan, Inc. v. RemarQ Communities, Inc., 239 F.3d 619, 625 (4th Cir.2001), as holding that only location information is required for substantial compliance with the terms of § 512(c)(3). . Perfect 10’s argument that its initial notice substantially complied with the DMCA’s notice requirements because Fisher, the recipient of that notice, admitted that he could have found the infringing photographs on the basis of the October 16, 2002, bates-stamped production, is thus beside the point. Without the predicate certification under penalty of perjury, Fisher would have had no reason to go looking for the photographs. . In its petition for rehearing, Perfect 10 claims that our decision on this point conflicts with Universal Communication Systems, Inc. v. Lycos, Inc., 478 F.3d 413 (1st Cir.2007). But neither party in that case raised the question of whether state law counts as \"intellectual property” for purposes of § 230 and the court seems to simply have assumed that it does. We thus create no conflict with Universal Communication. We note that Universal Communication demonstrates the difficulties inherent in allowing state laws to count as intellectual property for CDA purposes. In that case, the district court struggled with the question of whether the \"trademark dilution” claim brought under Florida Law counted as intellectual property for purposes of the CDA, and concluded that it was more like a defamation claim than a trademark claim. Id. at 423 n. 7. Rather than decide how to draw the line between defamation and trademark, the First Circuit held that \"because of the serious First Amendment issues that would be raised” if Lycos were found liable, defendant had not violated the Florida statute. Id. at 423. The First Circuit was able to sidestep the question of what counted as intellectual property on First Amendment grounds. But we cannot do so here. States have any number of laws that could be characterized as intellectual property laws: trademark, unfair competition, dilution, right of publicity and trade defamation, to name just a few. Because such laws vary widely from state to state, no litigant will know if" }, { "docid": "4349036", "title": "", "text": "of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. (ii) Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site. (iii) Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material. (iv) Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted. (v) A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law. (vi) A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. . During oral argument, Perfect 10 argued that notifications of repeat infringers under § 512(i) did not have to meet the requirements of § 512(c)(3)(A) based on In re Aimster Copyright Litigation, 252 F.Supp.2d 634, 659 (N.D.Ill.2002). In Aimster, the district court found that the DMCA did not require that a copyright holder provide Aimster with the internet protocol address of the infringement on the Aimster system. Id. An internet protocol address is the numeric address given to servers and users connected to the Internet. The district court did not, however, hold that DMCA notifications under § 512(i) do not need to meet the requirements of § 512(c)(3)(A). Therefore, Perfect 10’s reliance Aimster to support its argument is misplaced. . There is no dispute between the parties that IBill is an internet service provider under the DMCA. There is also no dispute between" }, { "docid": "4348964", "title": "", "text": "1146, 1177 (C.D.Cal.2002); see also Costar Group, Inc. v. LoopNet, Inc., 164 F.Supp.2d 688, 704 (D.Md.2001). Therefore, an internet service provider that seeks to fall within the safe harbors provided by the DMCA, must adopt a policy that terminates the infringing user, not just the content. IBill has submitted several versions of its infringement policy, the most recent of which states: IBill may, its discretion (sic), disable and/or terminate the accounts of any IBill client who is accused of infringing the rights of others. If you believe that your work has been copied in a way that constitutes copyright infringement, or your intellectual property rights have been otherwise violated, please provide IBill’s Copyright Agent the following information: 1. an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright; 2. a description of the copyrighted work, and a description of where the work is located; 3. your address, telephone number, and email address; 4. a statement by you that you have a good faith belief that the use of the work is not authorized by the copyright owner, agent, or the law; 5. a statement by you, that under penalty of perjury, that the above information is accurate and that you are the copyright owner or authorized to act on the owners’s behalf. Please send such notice to ... II Devito Decl., Exh. B, at 40 (Copyright Policy, 12/9/03). The Court notes that this policy states that it will terminate or disable the accounts of IBill clients who are accused of infringing third-party copyrights. Therefore, there is no genuine issue of material fact that IBill has adopted a policy that terminates repeat infringers in appropriate circumstances. ii. Reasonable Policy Implementation Perfect 10 contends that IBill has not reasonably implemented its policy. IBill replies that its DMCA immunity cannot be defeated by individual instances of non-enforcement because Congress requires reasonable implementation of the policy rather than perfect implementation. IBill also argues that it had no legal obligation under § 512(i) unless the notices of in- fringement were substantially DMCA compliant. IBill is correct" }, { "docid": "4349035", "title": "", "text": "10 shall be preceded by an \"HI.” . The deposition contains two different sets of page numbers. The Court will refer to the original deposition pages found on the bottom right-hand side of the pages, not the exhibit page numbers found at the bottom middle of the pages. . Perfect 10 has not alleged any infringements on www.sksignature.com. Id. .Perfect 10 contends that CWIE and CCBill are both owned by CWIE Holdings, LLC. Ill Zadeh Deck, ¶ 233, Exh. 202. Perfect 10 has submitted a chart that it received from CCBill or CWIE that does not identify, in any manner, common corporate ownership. Therefore, this contention is not supported by the evidence presented. . There is no dispute between the parties that the Defendants fulfill the requirements of subsection (B). . § 512(c)(3) states: (3) Elements of notification. (A) To be effective under this subsection, a notification of claimed infringement must be a written communication provided to the designated agent of a service provider that includes substantially the following: (i) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. (ii) Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site. (iii) Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material. (iv) Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted. (v) A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law. (vi) A statement that the" } ]

[ { "docid": "22720619", "title": "", "text": "conceded that Elstad had been in custody when he made his statement, “I was there,” and accordingly agreed that this statement was inadmissible as having been given without the prescribed Miranda warnings. But the State maintained that any conceivable “taint” had been dissipated prior to the respondent’s written confession by McAllister’s careful administration of the requisite warnings. The Court of Appeals reversed respondent’s conviction, identifying the crucial constitutional inquiry as “whether there was a sufficient break in the stream of events between [the] inadmissible statement and the written confession to insulate the latter statement from the effect of what went before.” 61 Ore. App. 673, 676, 658 P. 2d 552, 554 (1983). The Oregon court concluded: “Regardless of the absence of actual compulsion, the coercive impact of the unconstitutionally obtained statement remains, because in a defendant’s mind it has sealed his fate. It is this impact that must be dissipated in order to make a subsequent confession admissible. In determining whether it has been dissipated, lapse of time, and change of place from the original surroundings are the most important considerations.” Id., at 677, 658 P. 2d, at 554. Because of the brief period separating the two incidents, the “cat was sufficiently out of the bag to exert a coercive impact on [respondent’s] later admissions.” Id., at 678, 658 P. 2d, at 555. The State of Oregon petitioned the Oregon Supreme Court for review, and review was declined. This Court granted certiorari to consider the question whether the Self-Incrimination Clause of the Fifth Amendment requires the suppression of a confession, made after proper Miranda warnings and a valid waiver of rights, solely because the police had obtained an earlier voluntary but unwarned admission from the defendant. II The arguments advanced in favor of; suppression of respondent’s written confession rely heavily on metaphor. One metaphor, familiar from the Fourth Amendment context, would require that respondent’s confession, regardless of its integrity, voluntariness, and probative value, be suppressed as the “tainted fruit of the poisonous tree” of the Miranda, violation. A second metaphor questions whether a confession can be truly voluntary once the" } ]

[ { "docid": "12683586", "title": "", "text": "confession, Chief McNeill gave the defendant Miranda warnings, and Mr. Ollie then wrote out a brief statement detailing how he came to possess the gun. Mr. Ollie moved to suppress this second statement in the district court, arguing that Chief McNeill’s belated Miranda warnings were a deliberate tactic employed to maximize the chances of eliciting a confession. The district court did not decide if the chiefs conduct was a deliberate attempt to avoid Miranda because it held that Miranda did not apply since Mr. Ollie was never in custody. Since we have held that Mr. Ollie was in custody, we must decide whether the chiefs tardy administration of Miranda warnings requires suppression of Mr. Ollie’s post-warning statement. In Oregon v. Elstad, 470 U.S. 298, 300, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985), police went to the defendant’s home to arrest him on a burglary charge. After they entered the house and arrested the defendant, but before they gave him Miranda warnings, he incriminated himself in response to police questioning. Approximately one hour later at the police station, the arresting officers provided the defendant with Miranda warnings. Indicating that he understood his rights and wished to speak to the officers, the defendant once again confessed. After being convicted of robbery, the defendant argued that the confession that he gave at the police station should have been suppressed. Id. at 300-03, 105 S.Ct. 1285. The Supreme Court held in Elstad, 470 U.S. at 318, 105 S.Ct. 1285, that “a suspect who has once responded to unwarned yet uncoercive questioning is not thereby disabled from waiving his rights and confessing after he has been given the requisite Miranda warnings.” The “subsequent administration of Miranda warnings,” said the Court, “ordinarily should suffice to remove the conditions that precluded admission of the earlier statement.” Id. at 314, 105 S.Ct. 1285. The Court rejected the argument that the fruit-of-the-poisonous-tree doctrine required suppression of the subsequent statement. Id. at 308, 105 S.Ct. 1285. The later statement was admissible so long as it was made voluntarily, and its voluntariness was not undercut by the suspect’s ignorance that his" }, { "docid": "22280925", "title": "", "text": "(1987) (interrogation refers to direct questioning by law enforcement officers and “its functional equivalent”); Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980) (same). “When police ask questions of a suspect in custody without administering the required warnings, Miranda dictates that the answers received be presumed compelled and that they be excluded from evidence at trial in the [government’s] case in chief.” Oregon v. Elstad, 470 U.S. 298, 317, 105 S.Ct. 1285, 1297, 84 L.Ed.2d 222 (1985). Indeed, this “bright-line rule” applies even if the pre-warning statements are voluntary. Id. at 304, 317, 105 S.Ct. at 1297. Thus, Sangineto’s statement concerning the existence and whereabouts of his truck should have been suppressed. We disagree with the lower court that Sangineto’s statement was not incriminating. The statement enabled the police to locate the truck and eventually the cocaine hidden inside. It also served to connect Sangineto to the truck and the narcotics. The more troublesome issue is whether the Miranda violation requires suppression of the narcotics found in the truck. We frame the issue as follows: whether non-testimonial physical evidence proximately derived from a Miranda violation is inadmissible as “fruit of the poisonous tree.” For the reasons discussed below, we conclude that the cocaine should not be suppressed. The Supreme Court in Oregon v. Elstad, 470 U.S. 298, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985), has charted the analytical course. In Elstad, police officers came to Elstad’s house armed with an arrest warrant. El-stad, who was a suspect in a burglary of a neighbor’s residence, made an incriminating statement to police without having been given the warnings required by Miranda v. Arizona. After Elstad was taken to police headquarters, he was advised of his Miranda rights. Elstad indicated that he understood his rights, but wished to speak to police. He then gave a written statement describing his involvement in the burglary. Elstad was charged with first degree burglary. He moved to suppress his initial oral statement and the signed confession, arguing that “the statement he made in response to questioning at his house ‘let the cat" }, { "docid": "19795928", "title": "", "text": "suppressing Moore’s subsequent confession, provided after he was Mirandized. Moore argues that police improperly engaged in a deliberate two-step interrogation technique designed to subvert his Fifth Amendment rights by getting him to incriminate himself before being advised of his rights, then reading him his rights and getting him to incriminate himself again while still disarmed by the original incrimination. Under these circumstances, Moore argues, both the initial, unwarned statement and the later, post-warning statement must be suppressed. The Supreme Court has twice considered whether a post-warning inculpatory statement must be suppressed if the defendant was previously interrogated without being warned. First, in Oregon v. Elstad, 470 U.S. 298, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985), police executed a warrant for the arrest of the 18-year old Elstad on a burglary charge. Id. at 300, 105 S.Ct. 1285. At his house, Elstad’s mother allowed the police to go upstairs, where they arrested her son. Id. As the police were removing him from the home, they took his mother aside to explain the situation. Id. at 300-01, 105 S.Ct. 1285. In that interval, an officer questioned Elstad without advising him of his Miranda rights, and Elstad implicated himself. Id. at 301, 105 S.Ct. 1285. Later, at the police station, Elstad was “Mirandized” and interrogated, and gave a complete confession. Id. at 301-02, 105 S.Ct. 1285. Elstad argued for suppression of the warned confession on the ground that the initial statement “let the cat out of the bag” and “tainted” his subsequent confession. Id. at 303-04, 105 S.Ct. 1285 (internal quotation marks omitted). “Though Miranda requires that the unwarned admission must be suppressed,” the Supreme Court ruled that “the admissibility of any subsequent statement should turn in these circumstances solely on whether it is knowingly and voluntarily made.” Id. at 309, 105 S.Ct. 1285. The “subsequent administration of Miranda warnings to a suspect who has given a voluntary but unwarned statement ordinarily should suffice to remove the conditions that precluded admission of the earlier statement,” because “the finder of fact may reasonably conclude that the suspect made a rational and intelligent choice whether" }, { "docid": "12683590", "title": "", "text": "to reaffirm and memorialize his confession in writing. It was' only once Mr. Ollie agreed to that request that the police gave the Miranda warnings. And although Mr. Ollie gave more detail in his written confession, both statements concerned the same subject matter. As was the case with the defendant in Seibert, we believe that Mr. Ollie would have had to see the two sessions “as parts of a continuum, in which it would have been unnatural to refuse to repeat at the second stage what had been said before.” Id. at 616-17, 124 S.Ct. 2601. Justice Kennedy concurred in the judgment in Seibert, thereby providing the Court with its fifth vote. Unlike the plurality, Justice Kennedy would not have courts inquire as to whether midstream Miranda warnings were effective every time a suspect in custody gave an unwarned confession, was given the warn ings, and then confessed again. Such situations would continue to be governed by Elstad. Justice Kennedy would suppress post-warning statements only where the police intentionally used the two-step interrogation technique to render Miranda warnings ineffective. Such statements would be inadmissible unless the police took curative measures that would ensure that a reasonable person would understand his or her rights. Id. at 621-22, 124 S.Ct. 2601 (Kennedy, J., concurring in the judgment). Although our court has sometimes invoked the Seibert plurality’s criteria in determining the effectiveness of midstream Miranda warnings, see, e.g., United States v. Fellers, 397 F.3d 1090, 1098 (8th Cir.2005), cert. denied, — U.S. -, 126 S.Ct. 415, 163 L.Ed.2d 317 (2005), it is Justice Kennedy’s concurrence that is “of special significance,” United States v. Briones, 390 F.3d 610, 613 (8th Cir.2004), cert. denied, — U.S. -, 125 S.Ct. 2925, 162 L.Ed.2d 308 (2005); see United States v. Black Bear, 422 F.3d 658, 664 (8th Cir.2005). Because Justice Kennedy provided the fifth vote and his concurrence resolved the case on narrower grounds than did the plurality, it is his reasoning that miles the present case. See Marks v. United States, 430 U.S. 188, 193, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977); Black Bear, 422 F.3d" }, { "docid": "12683585", "title": "", "text": "all of the circumstances. That assessment leads us to believe that Mr. Ollie was in custody at the time that he made his incul-patory statements to Chief McNeill. Above all else, we think that it is the parole officer’s order that Mr. Ollie meet with Chief McNeill that quite clearly tips the balance. Faced with such an order, we think that a reasonable person in Mr. Ollie’s position would have been extremely reluctant either to refuse the interview or to terminate it once it began. In the words of the parole officer, had Mr. Ollie refused to attend the interview “it would have been a violation of his parole and [a revocation of his parole status] very well could have happened.” Had Mr. Ollie attempted to leave the interview, he could have reasonably expected the same reaction. We therefore disagree with the district court and hold that the failure to advise Mr. Ollie of his rights pursuant to Miranda requires the suppression of his initial oral confession to Chief McNeill. III. Following Mr. Ollie’s initial confession, Chief McNeill gave the defendant Miranda warnings, and Mr. Ollie then wrote out a brief statement detailing how he came to possess the gun. Mr. Ollie moved to suppress this second statement in the district court, arguing that Chief McNeill’s belated Miranda warnings were a deliberate tactic employed to maximize the chances of eliciting a confession. The district court did not decide if the chiefs conduct was a deliberate attempt to avoid Miranda because it held that Miranda did not apply since Mr. Ollie was never in custody. Since we have held that Mr. Ollie was in custody, we must decide whether the chiefs tardy administration of Miranda warnings requires suppression of Mr. Ollie’s post-warning statement. In Oregon v. Elstad, 470 U.S. 298, 300, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985), police went to the defendant’s home to arrest him on a burglary charge. After they entered the house and arrested the defendant, but before they gave him Miranda warnings, he incriminated himself in response to police questioning. Approximately one hour later at the" }, { "docid": "12683581", "title": "", "text": "find that the interview took place in a police-dominated atmosphere and that this atmosphere would have restrained a reasonable person’s movements. In contrast to Axsom, where the suspect was interviewed at home, in this case the police questioned Mr. Ollie at the police station. It is true that an interview is not custodial simply because it occurs at the station house. Mathiason, 429 U.S. at 495, 97 S.Ct. 711. But if the fact that questioning taking place on a suspect’s “home turf’ cuts against a finding of custody, see United States v. Rorex, 737 F.2d 753, 756 (8th Cir.1984), then the converse must also be true: Interviews taking place on the police officers’ “home turf’ are more likely to be police-dominated. Here, Mr. Ollie’s parole officer ordered him to meet with Chief McNeill. Once he arrived, Mr. Ollie was led to a small conference room where he sat alone with the police chief, a man considerably larger than himself. And, as we have already said, Mr. Ollie testified that he felt obligated to follow his parole officer’s order to meet with Chief McNeill. The district court, in denying the motion to suppress, held that any fear that Mr. Ollie had that his parole would be in jeopardy if he failed to cooperate was unreasonable. The district court cited United States v. Cranley, 350 F.3d 617, 622 (7th Cir.2003), for the proposition that a statement is not compelled merely because a suspect has a subjective fear of such punishment. The Supreme Court has said that such fears are unreasonable because it has repeatedly held “that the State could not constitutionally carry out a threat to revoke probation for the legitimate exercise of the Fifth Amendment privilege.” Minnesota v. Murphy, 465 U.S. 420, 438, 104 S.Ct. 1136, 79 L.Ed.2d 409 (1984). A statement is compelled only when the authorities expressly or implicitly threaten to punish the suspect unless he or she speaks. Id. at 435-38, 104 S.Ct. 1136. But the matter at issue here is whether Mr. Ollie was in custody and therefore entitled to Miranda warnings, not whether his statements were" }, { "docid": "12683574", "title": "", "text": "court denied the motion, holding that Mr. Ollie was not in custody when he confessed and therefore Chief McNeill had no obligation to give Mr. Ollie those warnings. After a brief trial, Mr. Ollie was convicted of being a felon in possession of a firearm and a felon in possession of ammunition. He was sentenced to ten years in prison. II. When a suspect is interrogated in a custodial setting, the police must advise him of his right not to answer questions and to have an attorney present during questioning. Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The clearest example of custody is when a suspect is placed under formal arrest. Absent a formal arrest, the police must give Miranda warnings when the suspect’s freedom of movement is restricted to a degree akin to a formal arrest. California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 77 L.Ed.2d 1275 (1983) (per curiam); United States v. LeBrun, 363 F.3d 715, 720 (8th Cir.2004) (en banc), cert. denied, 543 U.S. 1145, 125 S.Ct. 1292, 161 L.Ed.2d 105 (2005). Whether Mr. Ollie was in custody is not a matter of his own subjective belief, but turns on whether a reasonable person in his shoes would have felt free to end the interview. See Berkemer v. McCarty, 468 U.S. 420, 442, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984). In deciding whether a person is in custody, we consider all the circumstances confronting the person when he or she was questioned. We review the district court’s factual findings for clear error and its legal conclusions, including the ultimate question of custody, de novo. LeBrun, 363 F.3d at 719. We have identified several matters that are relevant to a determination of whether an interview is custodial. See United States v. Axsom, 289 F.3d 496, 500 (8th Cir.2002); United States v. Griffin, 922 F.2d 1343, 1349 (8th Cir.1990). Some considerations generally act to mitigate the custodial atmosphere: These are, for instance, whether the police told the suspect that he or she was free to leave, was free to refuse" }, { "docid": "15232043", "title": "", "text": "a gate revealed that Ivon’s car had returned at 2:30 a.m. with two occupants. Accordingly, the failure to suppress evidence obtained during the June 2 interview was harmless under any standard. Brosius, however, contends that, because warnings were improperly withheld on June 2, his subsequent confession on June 4 and 5 must be suppressed. We cannot agree. In Oregon v. Elstad, 470 U.S. 298, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985), the Supreme Court considered the appropriate remedy when a suspect in custody is first interviewed without Miranda warnings and is later given proper warnings and interviewed again. In Elstad, the defendant was taken into custody for committing a burglary. Id. at 300-01, 105 S.Ct. 1285. He was initially questioned at the scene of the arrest and made an incriminating admission. Id. After he was taken to the police station, Miranda warnings were given, he signed a written waiver, and confessed to the crime. Id. at 301-02, 105 S.Ct. 1285. The state appellate court held that, even if the confession had not resulted from actual compulsion, the defendant’s initial statement had a coercive impact because it had let the “ ‘cat ... out of the bag.’ ” Id, at 303, 105 S.Ct. 1285 (citation omitted). The state appellate court consequently held that the later statement had to be suppressed. Id. The Supreme Court reversed, holding that “absent deliberately coercive or improper tactics in obtaining the initial statement, the mere fact that a suspect has made an unwarned admission does not warrant a presumption of compulsion.” Id. at 314, 105 S.Ct. 1285. The Court added that “[a] subsequent administration of Miranda warnings to a suspect who has given a voluntary but unwarned statement ordinarily should suffice to remove the conditions that precluded admission of the earlier statement.” Id. at 314, 105 S.Ct. 1285. That is precisely what occurred here. Brosius made unwarned statements on June 2. He went home, and two days passed. On June 4th, he was called back for a second interview. He was then given proper warnings, and he subsequently confessed. There is no reason to believe that" }, { "docid": "12683588", "title": "", "text": "initial statement could not be used against him. Id. at 316-17, 105 S.Ct. 1285. In response to Elstad, some police officers began to conduct “question-first” interrogations, where officers would intentionally refrain from giving the Miranda warnings to suspects in custody. Once the police elicited a confession (which they knew to be inadmissible), they would then give the warnings. The suspect would generally confess again. If those confessions were then challenged, courts relying on Elstad would often uphold their admissibility. See Missouri v. Seibert, 542 U.S. 600, 609-611, 124 S.Ct. 2601, 159 L.Ed.2d 643 (2004). In Seibert, the Supreme Court reconsidered the permissibility of a two-step interrogation technique. The Court was sharply divided. A plurality of four justices questioned whether Miranda warnings, when given immediately following a confession, could effectively advise a suspect of his or her rights. If they could not, then providing Miranda warnings meant effectively nothing, and there was no reason to admit the later statement while simultaneously suppressing the first. See id. at 612-14, 124 S.Ct. 2601 (plurality opinion). To determine whether the midstream warnings could be effective in advising the suspect of his or her rights, the plurality suggested that courts consider five criteria: “the completeness and detail of the questions and answers in the first round of interrogation, the overlapping content of the two statements, the timing and setting of the first and the second, the continuity of police personnel, and the degree to which the interrogator’s questions treated the second round as continuous with the first.” Id. at 615, 124 S.Ct. 2601. Applying these criteria to the police interrogation in Seibert, the plurality concluded that the Miranda warnings had not sufficiently apprised the defendant of her rights. Id. at 616-17, 124 S.Ct. 2601. We believe that faced with the present record, the Seibert plurality would conclude that Mr. Ollie’s written statement should be suppressed. In the first round of questioning, Chief McNeill repeatedly asked Mr. Ollie if he owned or possessed the weapon. That questioning ceased only when Mr. Ollie orally confessed to having handled the gun. Chief McNeill then immediately asked Mr. Ollie" }, { "docid": "12683580", "title": "", "text": "that the police had matched Mr. Ollie’s fingerprints to the weapon. In fact, his fingerprints had not been matched, and the chief acknowledged that his deceptive question was intended to elicit a confession from Mr. Ollie. In LeBrun, 363 F.3d at 721, however, we stated “that the coercive aspects of a police interview are largely irrelevant to the custody determination except where a reasonable person would perceive the coercion as restricting his or her freedom to depart,” and the Supreme Court has held that an officer’s false statement to a defendant that his fingerprints were found at the scene of the crime had “nothing to do with whether [the defendant] was in custody for purposes of the Miranda rule,” Oregon v. Mathiason, 429 U.S. 492, 495-96, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977) (per curiam). Here the chief falsely implied that Mr. Ollie’s fingerprints were on the gun. Since this kind of deceit would not have acted to prevent a reasonable person from terminating the interview, it cannot affect our custody determination. But we do find that the interview took place in a police-dominated atmosphere and that this atmosphere would have restrained a reasonable person’s movements. In contrast to Axsom, where the suspect was interviewed at home, in this case the police questioned Mr. Ollie at the police station. It is true that an interview is not custodial simply because it occurs at the station house. Mathiason, 429 U.S. at 495, 97 S.Ct. 711. But if the fact that questioning taking place on a suspect’s “home turf’ cuts against a finding of custody, see United States v. Rorex, 737 F.2d 753, 756 (8th Cir.1984), then the converse must also be true: Interviews taking place on the police officers’ “home turf’ are more likely to be police-dominated. Here, Mr. Ollie’s parole officer ordered him to meet with Chief McNeill. Once he arrived, Mr. Ollie was led to a small conference room where he sat alone with the police chief, a man considerably larger than himself. And, as we have already said, Mr. Ollie testified that he felt obligated to follow his" }, { "docid": "3013003", "title": "", "text": "that, even though he made no statements in response to the initial, pr e-Miranda interrogation by the detectives, the statements he made after he was given the warnings should be suppressed because they were tainted by the initial pr e-Miranda questioning. This contention is without merit. In Oregon v. Elstad, 470 U.S. 298, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985), the United States Supreme Court considered virtually this identical issue and held that a confession made after Miranda warnings are given is not automatically suppressible merely because such a confession is preceded by an earlier confession that was made prior to the administration of Miranda warnings. Id. at 309, 105 S.Ct. 1285. There, the defendant, a burglary suspect, had made incriminating statements to police officers when apprehended in his home before the officers administered Miranda warnings. The officers subsequently escorted the defendant to the Sheriffs headquarters and, approximately one hour later, advised of defendant of his Miranda rights for the first time. The defendant indicated that he understood his rights, but then expressly waived them and spoke to the officers. At that time, the defendant gave a full statement implicating himself in the burglary. Id. at 300-02, 105 S.Ct. 1285. The defendant moved to suppress both the pre- and post-Miranda statements pri- or to trial. The motion was granted as to the pre-Miranda statements, but denied as to the post-Miranda statements. Id. at 302, 105 S.Ct. 1285. Upon review, the Supreme Court held that, while Miranda required that the unwarned statements be suppressed, the admissibility of the statements elicited after Miranda warnings were administered turned not on whether they were the unlawful “fruit” of the earlier, unwarned interrogation, but rather, on whether the initial statements were elicited through coercive means, thereby rendering the subsequent, post-Miranda statements involuntary. Id. at 309, 105 S.Ct. 1285. The Court stated as follows: It is an unwarranted extension of Miranda to hold that a simple failure to administer the warnings, unaccompanied by any actual coercion or other circumstances calculated to undermine the suspect’s ability to exercise his free will, so taints the investigatory process that" }, { "docid": "12683589", "title": "", "text": "the midstream warnings could be effective in advising the suspect of his or her rights, the plurality suggested that courts consider five criteria: “the completeness and detail of the questions and answers in the first round of interrogation, the overlapping content of the two statements, the timing and setting of the first and the second, the continuity of police personnel, and the degree to which the interrogator’s questions treated the second round as continuous with the first.” Id. at 615, 124 S.Ct. 2601. Applying these criteria to the police interrogation in Seibert, the plurality concluded that the Miranda warnings had not sufficiently apprised the defendant of her rights. Id. at 616-17, 124 S.Ct. 2601. We believe that faced with the present record, the Seibert plurality would conclude that Mr. Ollie’s written statement should be suppressed. In the first round of questioning, Chief McNeill repeatedly asked Mr. Ollie if he owned or possessed the weapon. That questioning ceased only when Mr. Ollie orally confessed to having handled the gun. Chief McNeill then immediately asked Mr. Ollie to reaffirm and memorialize his confession in writing. It was' only once Mr. Ollie agreed to that request that the police gave the Miranda warnings. And although Mr. Ollie gave more detail in his written confession, both statements concerned the same subject matter. As was the case with the defendant in Seibert, we believe that Mr. Ollie would have had to see the two sessions “as parts of a continuum, in which it would have been unnatural to refuse to repeat at the second stage what had been said before.” Id. at 616-17, 124 S.Ct. 2601. Justice Kennedy concurred in the judgment in Seibert, thereby providing the Court with its fifth vote. Unlike the plurality, Justice Kennedy would not have courts inquire as to whether midstream Miranda warnings were effective every time a suspect in custody gave an unwarned confession, was given the warn ings, and then confessed again. Such situations would continue to be governed by Elstad. Justice Kennedy would suppress post-warning statements only where the police intentionally used the two-step interrogation technique to" }, { "docid": "316208", "title": "", "text": "— U.S. at -, 124 S.Ct. at 2605. The plurality held that the police interrogation technique known as “question first” did not serve Miranda’s purpose of informing suspects about their constitutional rights: “[t]he object of question-first is to render Miranda warnings ineffective by waiting for a particularly opportune time to give them, after the suspect has already confessed.” Seibert, — U.S. at -, 124 S.Ct. at 2610. When police question first and warn later, the threshold inquiry, according to the plurality, is “whether it would be reasonable to find that in these circumstances the warnings could function ‘effectively’ as Miranda requires.” Id. The plurality was skeptical: “[I]t is likely that if the interrogators employ the technique of withholding warnings until after interrogation succeeds in eliciting a confession, the warnings will be ineffective in preparing the suspect for successive interrogation, close in time and similar in content.” Id. This is because a suspect who had just admitted guilt “would hardly think he had a genuine right to remain silent.” Id. at 2611. The plurality distinguished Oregon v. Elstad, 470 U.S. 298, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985), essentially limiting it to its facts. Id. at 2611-12. Elstad addressed the admissibility of a Mirandized station-house confession that was preceded by an earlier, unwarned inculpatory remark by the defendant at the scene of his arrest. The defendant in Elstad was arrested at his home in connection with a recent neighborhood burglary. As police were executing the arrest warrant, and while still in the defendant’s living room, one of the officers explained to the defendant that he was suspected of being involved in burglarizing his neighbor’s home. Elstad, 470 U.S. at 301, 105 S.Ct. 1285. The defendant told the officer, “Yes, I was there.” Id. He had not yet received Miranda warnings. Later, at the sheriffs headquarters, the defendant was fully Mirandized, waived his rights, and gave an incriminating statement. Id. The Supreme Court held in Elstad that the failure to administer Miranda warnings prior to the defendant’s initial inculpa-tory statement did not require suppression of his subsequent Mirandized confession. Elstad, 470 U.S." }, { "docid": "12683587", "title": "", "text": "police station, the arresting officers provided the defendant with Miranda warnings. Indicating that he understood his rights and wished to speak to the officers, the defendant once again confessed. After being convicted of robbery, the defendant argued that the confession that he gave at the police station should have been suppressed. Id. at 300-03, 105 S.Ct. 1285. The Supreme Court held in Elstad, 470 U.S. at 318, 105 S.Ct. 1285, that “a suspect who has once responded to unwarned yet uncoercive questioning is not thereby disabled from waiving his rights and confessing after he has been given the requisite Miranda warnings.” The “subsequent administration of Miranda warnings,” said the Court, “ordinarily should suffice to remove the conditions that precluded admission of the earlier statement.” Id. at 314, 105 S.Ct. 1285. The Court rejected the argument that the fruit-of-the-poisonous-tree doctrine required suppression of the subsequent statement. Id. at 308, 105 S.Ct. 1285. The later statement was admissible so long as it was made voluntarily, and its voluntariness was not undercut by the suspect’s ignorance that his initial statement could not be used against him. Id. at 316-17, 105 S.Ct. 1285. In response to Elstad, some police officers began to conduct “question-first” interrogations, where officers would intentionally refrain from giving the Miranda warnings to suspects in custody. Once the police elicited a confession (which they knew to be inadmissible), they would then give the warnings. The suspect would generally confess again. If those confessions were then challenged, courts relying on Elstad would often uphold their admissibility. See Missouri v. Seibert, 542 U.S. 600, 609-611, 124 S.Ct. 2601, 159 L.Ed.2d 643 (2004). In Seibert, the Supreme Court reconsidered the permissibility of a two-step interrogation technique. The Court was sharply divided. A plurality of four justices questioned whether Miranda warnings, when given immediately following a confession, could effectively advise a suspect of his or her rights. If they could not, then providing Miranda warnings meant effectively nothing, and there was no reason to admit the later statement while simultaneously suppressing the first. See id. at 612-14, 124 S.Ct. 2601 (plurality opinion). To determine whether" }, { "docid": "12683573", "title": "", "text": "police station, and Chief McNeill escorted him to an interview room. Chief McNeill did not give Miranda warnings to Mr. Ollie before beginning an interview. In response to Chief McNeill’s questioning, Mr. Ollie twice said that he did not own or possess a gun, but when the chief asked if Mr. Ollie would continue to deny ownership if the police found fingerprints on the weapon that matched Mr. Olhe’s, Mr. Ollie admitted that he had handled the gun. Chief McNeill then asked Mr. Ollie if he would be willing to give a written statement. He agreed, and Chief McNeill gave him Miranda warnings. Mr. Ollie then completed a brief written statement, which indicated that he had received the gun in exchange for driving two people to a liquor store. Before trial, Mr. Ollie moved to suppress statements that he made during his interview with Chief McNeill and his subsequent written statement, arguing that Chief McNeill’s failure to give him Miranda warnings at the outset of the interview made all of his statements inadmissible. The district court denied the motion, holding that Mr. Ollie was not in custody when he confessed and therefore Chief McNeill had no obligation to give Mr. Ollie those warnings. After a brief trial, Mr. Ollie was convicted of being a felon in possession of a firearm and a felon in possession of ammunition. He was sentenced to ten years in prison. II. When a suspect is interrogated in a custodial setting, the police must advise him of his right not to answer questions and to have an attorney present during questioning. Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The clearest example of custody is when a suspect is placed under formal arrest. Absent a formal arrest, the police must give Miranda warnings when the suspect’s freedom of movement is restricted to a degree akin to a formal arrest. California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 77 L.Ed.2d 1275 (1983) (per curiam); United States v. LeBrun, 363 F.3d 715, 720 (8th Cir.2004) (en banc), cert. denied, 543" }, { "docid": "12683572", "title": "", "text": "ARNOLD, Circuit Judge. Johnny Lee Ollie appeals the district court’s denial of his motion to suppress statements that he made to the police. We reverse. I. Adel, Iowa, police chief James McNeill responded to a call asking for certain property to be removed from an apartment. When he arrived, Nicola Teed escorted him to a bedroom and directed him to a dresser behind which he discovered a loaded .22 revolver and a holster. Ms. Teed said that neither she nor her boyfriend, Mr. Ollie, owned the gun. During that conversation, she also told Chief McNeill that Mr. Ollie was on parole. Upon returning to his office, Chief McNeill telephoned Roy Klobnak, Mr. Ollie’s parole officer. In their conversation, Chief McNeill stated that he wanted to talk with Mr. Ollie concerning the handgun. Mr. Klobnak had a regularly scheduled meeting with Mr. Ollie the following day and told Chief McNeill that he would order Mr. Ollie to meet the chief at the police station. The next day, following his parole meeting, Mr. Ollie arrived at the police station, and Chief McNeill escorted him to an interview room. Chief McNeill did not give Miranda warnings to Mr. Ollie before beginning an interview. In response to Chief McNeill’s questioning, Mr. Ollie twice said that he did not own or possess a gun, but when the chief asked if Mr. Ollie would continue to deny ownership if the police found fingerprints on the weapon that matched Mr. Olhe’s, Mr. Ollie admitted that he had handled the gun. Chief McNeill then asked Mr. Ollie if he would be willing to give a written statement. He agreed, and Chief McNeill gave him Miranda warnings. Mr. Ollie then completed a brief written statement, which indicated that he had received the gun in exchange for driving two people to a liquor store. Before trial, Mr. Ollie moved to suppress statements that he made during his interview with Chief McNeill and his subsequent written statement, arguing that Chief McNeill’s failure to give him Miranda warnings at the outset of the interview made all of his statements inadmissible. The district" }, { "docid": "15623890", "title": "", "text": "Miranda warning, and then confessed again. Elstad involved a situation in which a suspect made a self-incriminating statement while two police officers were at his home investigating a robbery. At the time he had not received a Miranda warning. Elstad, 470 U.S. at 300-01, 105 S.Ct. 1285. The officers transported the suspect to a police station where they gave him a Miranda warning prior to obtaining both an oral and written confession. Id. at 301, 105 S.Ct. 1285. At trial, the defendant moved to suppress the postwarning confessions on the ground that the statements made at the police station only came about as a result of the first inadmissable statement made at his house. Id. at 302, 105 S.Ct. 1285. The Supreme Court ultimately rejected the “fruit of the poisonous tree” argument, see Wong Sun v. United States, 371 U.S. 471, 487-88, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), and held that “[tjhough Miranda requires that the unwarned admission must be suppressed, the admissibility of any subsequent statement should turn in these circumstances solely on whether it is knowingly and voluntarily made,” Elstad, 470 U.S. at 309, 105 S.Ct. 1285. The Court reasoned that the police did not employ any coercive tactics to elicit either confession and that the defendant made his postwarning confession voluntarily. Id. at 316, 105 S.Ct. 1285. The Court concluded that “the dictates of Miranda and the goals of the Fifth Amendment proscription against use of compelled testimony are fully satisfied in the circumstances of this case.” Id. at 318, 105 S.Ct. 1285. Whereas Elstad involved a good-faith effort by the police to administer a proper Miranda warning, Seibert addressed the use of a two-step interrogation strategy designed to elicit a post-Miranda waiver and confession after the defendant had already confessed before he was given Miranda warnings. In Seibert, the police department had a policy of withholding Miranda warnings until an arrestee confessed and then reading the arrestee Miranda warnings and asking for a waiver prior to eliciting a second confession. Seibert, 542 U.S. at 609-10, 124 S.Ct. 2601 (plurality opinion). The police in Seibert employed" }, { "docid": "22280926", "title": "", "text": "frame the issue as follows: whether non-testimonial physical evidence proximately derived from a Miranda violation is inadmissible as “fruit of the poisonous tree.” For the reasons discussed below, we conclude that the cocaine should not be suppressed. The Supreme Court in Oregon v. Elstad, 470 U.S. 298, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985), has charted the analytical course. In Elstad, police officers came to Elstad’s house armed with an arrest warrant. El-stad, who was a suspect in a burglary of a neighbor’s residence, made an incriminating statement to police without having been given the warnings required by Miranda v. Arizona. After Elstad was taken to police headquarters, he was advised of his Miranda rights. Elstad indicated that he understood his rights, but wished to speak to police. He then gave a written statement describing his involvement in the burglary. Elstad was charged with first degree burglary. He moved to suppress his initial oral statement and the signed confession, arguing that “the statement he made in response to questioning at his house ‘let the cat out of the bag’ and tainted the subsequent confession as ‘fruit of the poisonous tree,’ citing Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).” Elstad, 470 U.S. at 302, 105 S.Ct. at 1289 (citation omitted). The trial court excluded Elstad’s first incriminating statement to police because he had not been given Miranda warnings, but admitted the written confession. Elstad was convicted, but the Oregon Court of Appeals reversed, holding that the confession should also have been excluded. The Oregon Supreme Court denied review. The Supreme Court granted certiorari to decide “whether the Self-Incrimination Clause of the Fifth Amendment requires the suppression of a confession, made after proper Miranda warnings and a valid waiver of rights, solely because the police had obtained an earlier voluntary but unwarned admission from the defendant.” Id. at 303, 105 S.Ct. at 1290. The Court ruled that “a suspect who has once responded to unwarned yet uncoercive questioning is not thereby disabled from waiving his rights and confessing after he has been given the" }, { "docid": "12683579", "title": "", "text": "that because of this order he felt that he had no choice but to meet with Chief McNeill. Faced with such pressures, we think that Mr. Ollie had little choice but to comply. Unlike the suspect in Axsom, 289 F.3d at 498, 502, who (after an officer expressed interest in talking with him “if he would like to speak with her”) was “extremely friendly and cooperative” and pointed out incriminating evidence to law enforcement, Mr. Ollie’s conduct revealed little more than an absence of resistance. While a defendant does not need to be enthusiastic about an interview for us to conclude that he voluntarily acquiesced, we think it clear here that Mr. Ollie was responding to pressure. Although Chief McNeill used some deceptive tactics during his interview with Mr. Ollie, we do not believe that the type of deception that he used is relevant to the present inquiry. When the chief asked Mr. Ollie whether his story would change if his fingerprints had been found on the gun, his question contained an implicit factual assertion that the police had matched Mr. Ollie’s fingerprints to the weapon. In fact, his fingerprints had not been matched, and the chief acknowledged that his deceptive question was intended to elicit a confession from Mr. Ollie. In LeBrun, 363 F.3d at 721, however, we stated “that the coercive aspects of a police interview are largely irrelevant to the custody determination except where a reasonable person would perceive the coercion as restricting his or her freedom to depart,” and the Supreme Court has held that an officer’s false statement to a defendant that his fingerprints were found at the scene of the crime had “nothing to do with whether [the defendant] was in custody for purposes of the Miranda rule,” Oregon v. Mathiason, 429 U.S. 492, 495-96, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977) (per curiam). Here the chief falsely implied that Mr. Ollie’s fingerprints were on the gun. Since this kind of deceit would not have acted to prevent a reasonable person from terminating the interview, it cannot affect our custody determination. But we do" }, { "docid": "15623889", "title": "", "text": "was given an effective Miranda warning prior to making voluntary inculpatory statements, and therefore the statements he made following the warning should not have been suppressed by the district court. Capers argues that the rule that the Supreme Court announced in Missouri v. Seibert, 542 U.S. 600, 124 S.Ct. 2601, 159 L.Ed.2d 643 (2004), and that this Court further clarified in Carter, requires us to conclude that the postal inspectors’ two-step interrogation in this case constituted a deliberate violation of Capers’ Miranda rights. “The purpose of the Miranda warning is to ensure that the person in custody has sufficient knowledge of his or her constitutional rights relating to the interrogation and that any waiver of such rights is knowing, intelligent, and voluntary.” Carter, 489 F.3d at 534. The Supreme Court, in Oregon v. Elstad, 470 U.S. 298, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985), and Seibert, 542 U.S. 600, 124 S.Ct. 2601, has twice addressed situations like this one in which a suspect in custody confessed without having received a Miranda warning, subsequently received a Miranda warning, and then confessed again. Elstad involved a situation in which a suspect made a self-incriminating statement while two police officers were at his home investigating a robbery. At the time he had not received a Miranda warning. Elstad, 470 U.S. at 300-01, 105 S.Ct. 1285. The officers transported the suspect to a police station where they gave him a Miranda warning prior to obtaining both an oral and written confession. Id. at 301, 105 S.Ct. 1285. At trial, the defendant moved to suppress the postwarning confessions on the ground that the statements made at the police station only came about as a result of the first inadmissable statement made at his house. Id. at 302, 105 S.Ct. 1285. The Supreme Court ultimately rejected the “fruit of the poisonous tree” argument, see Wong Sun v. United States, 371 U.S. 471, 487-88, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), and held that “[tjhough Miranda requires that the unwarned admission must be suppressed, the admissibility of any subsequent statement should turn in these circumstances solely on" } ]

[ { "docid": "14836629", "title": "", "text": "item. It follows that the defenses of sections 305 and 306 are not available when such defenses are based on knowledge that is received after the bank has accepted the item. In such circumstances — because a cashier’s check is an accepted item — the bank may not dishonor a cashier’s check. We believe that this interpretation of UCC § 4-303 adheres to the UCC rules of construction. UCC § 1-102 states that the Code “shall be liberally construed and applied to promote its underlying purposes and policies.” One such underlying purpose and policy is “to permit the continued expansion of commercial practices through custom [and] usage ____” UCC § 1-102(2)(b). Cashier’s checks have always played a significant role in commercial practices. People and businesses have come to view cashier’s checks as cash because such treatment furthers certainty in commercial transactions. As one New Jersey court elaborated: A cashier’s check circulates in the commercial world as the equivalent of cash____ People accept a cashier’s check as a substitute for cash because the bank stands behind it, rather than an individual. In effect the bank becomes a guarantor of the value of the check and pledges its resources to the payment of the amount represented upon presentation. To allow the bank to stop payment on such an instrument would be inconsistent with the representation it makes in issuing the check. Such a rule would undermine the public confidence in the bank and its checks and thereby deprive the cashier’s check of the essential incident which makes it useful. People would no longer be willing to accept it as a substitute for cash if they could not be sure that there would be no difficulty in converting it into cash. National Newark & Sussex Bank v. Giordano, 111 N.J.Super. 347, 268 A.2d 327, 329 (1970). Because certainty promotes the expansion of commercial practices, we believe our interpretation of UCC § 4-303 heeds to the mandate of UCC § 1-102. See State ex rel. Chan Siew v. Powell, 536 S.W.2d 14, 16 (Mo.1976) (en banc) (“The nature and usage of cashier’s checks in" } ]

[ { "docid": "15251282", "title": "", "text": "only to lending activities). 2. A stop payment request on a bank check is an “application” or “commitment.” This, then, leads us to the final question we must consider: Whether a false statement made to influence a bank to stop payment of a bank check relates to an “application,” “commitment,” or one of the other transactions enumerated in 18 U.S.C. § 1014. We hold that it does. The bank is the drawer of a bank cheek or a cashier’s check. U.C.C. § 3-104(g)-(h). Unlike a personal check drawn by a depositor on his own account, bank checks and cashier’s checks carry the promise of the bank itself. See 2 James J. White & Robert S. Summers, Uniform Commercial Code 390 (4th ed.1995); see also United States v. Riley, 550 F.2d 233, 235 (5th Cir.1977) (“The cashier’s check is a commitment by the bank to deliver cash to the payee.”). When a customer requests a bank to stop payment of a bank check or a cashier’s check, “the customer is asking the bank to break the bank’s own ... contract” under Uniform Commercial Code § 3-414 or § 3-412 — namely, its promise to a holder of the check that the instrument will be paid. 2 White & Summers, supra, at 390. It follows that a statement made to induce a bank to dishonor a bank check seeks to influence the bank’s “commitment” to a holder of the bank check. Likewise, a stop payment request, whether made orally or in writing, is an “application” to the bank to dishonor the check when it is presented. Under Uniform Commercial Code § 4-408, a customer does not have the right to stop payment of a bank check. Because a bank check is not drawn on the customer’s account but rather on the bank’s own account, the bank is not required to impair its credit or incur liability by refusing payment for the convenience of the customer. U.C.C. § 4-403 Official Comment 4. The best the customer can do is ask. A customer’s request that a bank stop payment of a check drawn by" }, { "docid": "11513366", "title": "", "text": "the recipient. The Service Guide clearly states that no such agency relationship exists.”). ■ Federal Express’s only duty under this contract was to collect a facially valid cashier’s check. See, e.g., National Diamond Syndicate, Inc. v. United Parcel Serv., Inc., 897 F.2d 253, 264 (7th Cir.1990) (where it was established that carrier was acting as shipper’s agent in collecting a C.O.D. payment, carrier did not breach its duty of reasonable care by not verifying facially valid cashier’s checks in the absence of suspicious circumstances); Comark, Inc. v. United Parcel Serv., Inc., 701 F.Supp. 641 (N.D.Ill.1988) (in case decided on other grounds,' court observed that carrier which accepted what appeared to be a cashier’s check, later determined to be forged, would be within its authority; “to hold otherwise would call on UPS drivers to be moonlighting law stu-' dents, skilled in the arcane mysteries of the UCC”). The check in this case appeared to fit the definition of a cashier’s check: its drawer was a bank and the check was drawn upon the bank’s own account. See Ross v. Peck Iron & Metal Co., 264 F.2d 262, 269 (4th Cir.1959). McCall-Thomas assumed all risk of fraud in connection with Federal Express’s C.O.D. service. The Restatement of Agency’s rule that “[ujnless otherwise agreed, an agent employed to collect ... has a duty of using reasonable care and skill,” Restatement 2d of Agency § 426 (1957), does not apply because Federal Express expressly declined to act as McCall-Thomas’s agent for the purpose of this C.O.D. delivery. See Littleton Stamp & Coin Co. v. Delta Airlines, Inc., 778 F.2d 53, 57 (1st Cir.1985) (“A shipper which decides to gamble by accepting other than cash should not be able to simply shift the increased risk to the carrier — particularly if the evidence shows that the carrier specifically declined such a burden.”). Even if some duty were found to exist, Federal Express satisfied that duty by collecting a facially valid cashier’s check. We do not believe that the nonexistence of the bank on which the cashier’s check was supposedly drawn and the fact that the" }, { "docid": "14836628", "title": "", "text": "customer when it issues a cashier’s check, it is nonsensical, the critics argue, to speak of the bank’s liability to itself for failing to stop payment on its own cashier’s check. See, e.g., Rezapolvi v. First National Bank of Maryland, 296 Md. 1, 459 A.2d 183, 188 n. 7 (1983); Santos v. First National State Bank, 186 N.J.Super. 52, 451 A.2d 401, 408 (1982); J. McDonnell, Freedom From Claims and Defenses: A Study In Judicial Activism Under the Uniform Commercial Code, 17 Ga.L.Rev. 569, 615 (1983); Lawrence, Cashier’s Checks, at 292 n. 59. But we believe the foregoing reading of UCC § 4-303 may be unjustifiably narrow. Although the concept of a stop-order may necessitate both a bank and a bank customer, the application of UCC § 4-303 is not restricted to stop-orders. UCC § 4-303 also includes “any knowledge ... received by a payor bank.” Accordingly, as we read UCC § 4-303, a bank may not dishonor any accepted item when it receives later knowledge that would otherwise terminate its duty to honor that item. It follows that the defenses of sections 305 and 306 are not available when such defenses are based on knowledge that is received after the bank has accepted the item. In such circumstances — because a cashier’s check is an accepted item — the bank may not dishonor a cashier’s check. We believe that this interpretation of UCC § 4-303 adheres to the UCC rules of construction. UCC § 1-102 states that the Code “shall be liberally construed and applied to promote its underlying purposes and policies.” One such underlying purpose and policy is “to permit the continued expansion of commercial practices through custom [and] usage ____” UCC § 1-102(2)(b). Cashier’s checks have always played a significant role in commercial practices. People and businesses have come to view cashier’s checks as cash because such treatment furthers certainty in commercial transactions. As one New Jersey court elaborated: A cashier’s check circulates in the commercial world as the equivalent of cash____ People accept a cashier’s check as a substitute for cash because the bank stands behind" }, { "docid": "14836625", "title": "", "text": "cashier’s check is a draft of the issuing bank that the bank accepts by the act of issuance. However, they point out that — pursuant to UCC § 3-413(1) — the acceptor’s contract is identical to the maker’s contract. Because makers are subject to the provisions of UCC §§ 3-305 and 3-306, these courts argue that sections 305 and 306 should also govern cashier’s checks. See, e.g., Rezapolvi v. First National Bank of Maryland, 296 Md. 1, 459 A.2d 183, 187-88 (1983); Santos v. First National State Bank, 186 N.J.Super. 52, 451 A.2d 401, 407 (1982). We believe, as does Professor Lawrence, that the Group A courts misconstrue the application of UCC § 3-118(a) and § 3-413(1). Professor Lawrence explains: UCC § 3-118(a) “was intended simply to eliminate the need for a holder of a note or accepted draft to protest or give notice of dishonor to the instrument’s maker or acceptor. The draftsmen of the Code recognized that requiring these parties to protest or give notice of dishonor would serve no function, since presumably they should already be aware of their own refusal to pay.” Lawrence, Cashier’s Checks at 288. Similarly, UCC § 3-413(1) “was designed to deal with the effect of alteration, and to set out the procedural conditions precedent to the liability of the instrument’s acceptor or maker. Neither sections 3-118(a) nor 3-413 were drafted with the aim of specifying the defenses available to obligors.” Id. Accordingly, we look to the Group B courts for guidance. b. Group B: The Cash Equivalent Approach A majority of Group B courts which treat cashier’s checks as cash equivalents have cited UCC § 4-303 for support. That provision reads in part: Any knowledge ... or stop-order received by ... a payor bank, whether or not effective under rules of law to terminate ... the bank’s ... duty to pay an item ... comes too late to so terminate ... such ... duty if the knowledge ... [or] stop-order ... is received ... and ... the setoff is exercised after the bank has ... accepted ... the item____ These courts reason" }, { "docid": "23462701", "title": "", "text": "rationale of these cases is that a check simply presents an order to the drawee bank to make payment and does not vest in the payee any title to or interest in the funds of the drawee bank until the check is honored. See § 3-409(1) of the Uniform Commercial Code as adopted in M.C.L.A. § 440.3409. Prior to this date, third party creditors may prevent collection on the check through garnishment on the bank account or the payor can stop payment on the check. Additionally there may be insufficient funds to cover payment on the check. An ordinary check is distinguishable from a certified check or cashier’s check which becomes the primary obligation of the issuing bank and is the legal equivalent of currency transferred upon delivery. See In re Mailbag International, Inc., 28 B.R. 905 (Bankr.D.Conn.1983). This Court finds the majority view persuasive. Check # 1 was therefore transferred on February 16, 1982, clearly within the 90 day period prescribed by § 547(b)(4)(A). II. Is A Check “Transferred” For The Purposes Of Section 547(c)(1), (c)(2) and (c)(4) On The Date It Is Delivered Or The Date It Is Honored By The Drawee Bank? Unlike the situation under § 547(b), legislative history to § 547(c)(1) directs when a transfer occurs by check. Normally, a check is a credit transaction. However, for purposes of this paragraph, a transfer involving a check is considered to be “intended to be contemporaneous,” and if the check is presented for payment in the normal course of affairs, which the Uniform Commercial Code specifies as 30 days, U.C.C. § 3-503(2)(a), that will amount to a transfer that is “in fact substantially contemporaneous.” H.R.Rep. No. 595, 95th Cong., 1st Sess. 373 (1977). “In enacting the ‘contemporaneous exchange’ exception, Congress intended to codify decisions under the old bankruptcy act which had held that, when a cash sale was intended, acceptance of a check instead of cash did not change the character of the transaction, so long as the check was cashed within a reasonable period of time.” In re Arnett, 731 F.2d 358, 361 (6th Cir.1984). Thus," }, { "docid": "14836622", "title": "", "text": "Swiss Credit Bank v. Virginia National. Bank, 538 F.2d 587, 588 (4th Cir.1976); Munson v. American National Bank & Trust Co., 484 F.2d 620, 624 (7th Cir.1973); Michie on Banks and Banking, ch. 12, § 13 at 359 (1984). Although the common belief is that cashier’s checks are the same as cash, the provisions of the Uniform Commercial Code (UCC) give no indication as to how the courts should treat them, and, since the enactment of the UCC in 1965, the District of Columbia courts have offered no guidance. Consequently, we examine how other jurisdictions have construed the statutory language of the UCC and what role equity plays in determining whether banks may dishonor their cashier’s checks. 1. The Two Statutory Approaches Courts in other jurisdictions have divided sharply as to when a bank has a defense which arises from the purchase of a cashier’s check. See generally L. Lawrence, Making Cashier’s Checks and Other Bank Checks Cost Effective: A Plea For Revision of Articles 3 and 4 of the Uniform Commercial Code, 64 Minn.L.Rev. 275, 285-320 (1980) [hereinafter cited as Lawrence, Cashier’s Checks ]. One group considers cashier’s checks as ordinary negotiable instruments and treats them as such under the UCC. Id. at 286. According to these courts, if the payee of the cashier’s check is a holder in due course, the bank may only raise real defenses before dishonoring its cashier’s check. D.C.Code Ann. § 28:3-305. However, if the payee is not a holder in due course, the bank may dishonor a cashier’s check by simply asserting personal defenses, including lack of consideration and fraud in the inducement. Id. at § 28:3-306. The other group of courts treats cashier’s checks as cash equivalents and disallows banks from asserting those defenses that drawers of ordinary negotiable instruments may raise pursuant to sections 305 and 306. Lawrence, Cashier’s Checks, at 286. In sum, these courts focus less on the status of the payee and more on the fact that the bank backs its cashier’s checks with its own credit. Below we summarize and examine the statutory arguments of these courts." }, { "docid": "23600884", "title": "", "text": "Polotsky v. Artisans Savings Bank, 37 Del. 151, 188 A. 63. The latter case, however, explained the lack of authority to countermand by saying: “The instrument therefore being one of primary obligation on the part of the bank, there can be no countermand by it such as exists where the document constitutes a mere direction or order to pay.” (emphasis supplied) Whether “acceptance” in the definition of a cashier’s check has validity today is disputed by the authors of Willier and Hart, 6C Bender’s Uniform Commercial Code Reporter-Digest, 2-1194: “A bank may draw a cashier’s check either on itself or on another bank. When drawn on another bank, the check is governed by the same rules as any other check; when — as here— drawn by the bank on itself, the check is effective as a note under Section 3-118(a), with the bank as maker. Thus the court erred in referring to the instrument as a draft which had been accepted. '. . .” In any event, while a cashier’s cheek is equivalent to a negotiable promissory note of a bank, it is not the same as cash as has been loosely asserted, and the cases discussing this particular type of instrument must be carefully analyzed. It is important, also, to note that discussions about a customer’s right to stop payment on a check under § 4-403 are not helpful but only tend to confuse the issue presented here. State of Pennsylvania v. Curtiss National Bank, supra, was concerned with a situation where a series of transactions, separate and apart from the issuance of the cashier’s check, was involved. The Court made it clear that it required the bank to honor the cashier’s check because the payee was not a party to the specific agreement in which the issuance of the cashier’s check played a part. The Court of Appeals recognized the possibility of a defense on the ground of failure of consideration if the payee were not a holder in due course but concluded: “. . . Bankers Allied [payee] was not in any way a party to this" }, { "docid": "14836631", "title": "", "text": "the commercial world is such that public policy does not favor a rule that would permit stopping payment of them.”); White & Summers, Uniform Commercial Code § 17-6, at 681 n. 110 (2d ed. 1980). (The public treats cashier’s checks as the equivalent of cash, and the draftsmen did not intend to overturn this public expectation.); cf. Bristol Associates, Inc. v. Girard Trust Bank, 505 F.2d 1056, 1062 (3d Cir.1974) (“Where language is susceptible of two reasonable meanings, a court, in the commercial field, should choose that interpretation which comports with current universal practice in the business world.”). Here, NBW ultimately discovered that its cashier’s check had been issued due to fraud and for no consideration. However, NBW received this knowledge only after NBW had accepted the cashier’s check through issuance. NBW cannot now rely on UCC §§ 3-305 and 3-306 to dishonor its cashier’s check because knowledge of the fraud and lack of consideration comes too late under UCC § 4-303. NBW has no choice but to pay. .2. Principles of Equity Equity also requires the bank to honor its cashier’s checks with respect to innocent third parties. D.C.Code Ann. § 28:1-103 (principles of equity supplement the UCC). In a pre-UCC case from the Court of Appeals for the District of Columbia Circuit, a bank refused to honor its cashier’s check because the payee was not a holder in due course. Whitehead v. American Security and Trust Company, 285 F.2d 282, 283 (D.C.Cir.1960) (en banc). The bank claimed that it had issued the cashier’s check due to a third-party fraud on the bank, though the payee herself was an innocent party to that fraud. The Court of Appeals noted that the payee was without opportunity to protect herself from fraud, while the bank could protect itself by requiring an indemnity bond. Id. at 283-84. Ordering the bank to honor its cashier’s check, the court held: “Since the obligation of the bank to appellant as owner of the [cashier’s check] was not discharged by this [fraud], with the consequence that one of the two innocent parties, the payee and the" }, { "docid": "14836626", "title": "", "text": "they should already be aware of their own refusal to pay.” Lawrence, Cashier’s Checks at 288. Similarly, UCC § 3-413(1) “was designed to deal with the effect of alteration, and to set out the procedural conditions precedent to the liability of the instrument’s acceptor or maker. Neither sections 3-118(a) nor 3-413 were drafted with the aim of specifying the defenses available to obligors.” Id. Accordingly, we look to the Group B courts for guidance. b. Group B: The Cash Equivalent Approach A majority of Group B courts which treat cashier’s checks as cash equivalents have cited UCC § 4-303 for support. That provision reads in part: Any knowledge ... or stop-order received by ... a payor bank, whether or not effective under rules of law to terminate ... the bank’s ... duty to pay an item ... comes too late to so terminate ... such ... duty if the knowledge ... [or] stop-order ... is received ... and ... the setoff is exercised after the bank has ... accepted ... the item____ These courts reason that a bank accepts a cashier’s check as soon as the bank issues the check. Accordingly, the bank cannot refuse payment of a cashier’s check under sections 305 or 306 because such refusal is, in effect, a stop-order, and UCC § 4-303 disallows stop-orders on accepted items. See, e.g., Swiss Credit Bank v. Virginia National Bank, 538 F.2d 587, 588 (4th Cir.1976); Munson v. American National Bank & Trust Co., 484 F.2d 620, 623-24 (7th Cir.1973); State ex rel. Chan Siew Lai v. Powell, 536 S.W.2d 14, 16 (Mo.1976) (en banc); Wertz v. Richardson Heights Bank and Trust, 495 S.W.2d 572, 574 (Tex.1973). Several courts and commentators have criticized this application of UCC § 4-303. They state that the concept of stopping payment has relevance only to relations between a bank and its customer who draws a check against the bank. A personal check is an order to pay, and a customer has the right to revoke the order before it is carried out. But, since the bank, as drawer and drawee, is its own" }, { "docid": "14836621", "title": "", "text": "the personal check had been stolen or forged. Further investigation showed that Homestead had closed shop and left town. Consequently, NBW refused to honor its cashier’s check, claiming fraud and lack of consideration. In turn, SBA attempted to regain its secured position on plaintiffs’ residence through the local deeds office and refused to credit plaintiffs’ records for any amount covered by the cashier’s check. On October 4, 1983, the plaintiffs filed a complaint against the SBA alleging breach of contract and fiduciary duty. On January 17, 1984, the SBA cross-claimed against the NBW for wrongful dishonor of the cashier’s check. Both SBA and NBW have moved for summary judgment. We find no genuine issue of material fact. Accordingly, we must decide whether the Uniform Commercial Code in the District of Columbia allows the NBW to dishonor its cashier’s check because of fraud or lack of consideration, notwithstanding that the payee of the cashier’s check, the SBA, is an innocent party. B. Discussion A cashier’s check is a negotiable instrument drawn by a bank upon itself. Swiss Credit Bank v. Virginia National. Bank, 538 F.2d 587, 588 (4th Cir.1976); Munson v. American National Bank & Trust Co., 484 F.2d 620, 624 (7th Cir.1973); Michie on Banks and Banking, ch. 12, § 13 at 359 (1984). Although the common belief is that cashier’s checks are the same as cash, the provisions of the Uniform Commercial Code (UCC) give no indication as to how the courts should treat them, and, since the enactment of the UCC in 1965, the District of Columbia courts have offered no guidance. Consequently, we examine how other jurisdictions have construed the statutory language of the UCC and what role equity plays in determining whether banks may dishonor their cashier’s checks. 1. The Two Statutory Approaches Courts in other jurisdictions have divided sharply as to when a bank has a defense which arises from the purchase of a cashier’s check. See generally L. Lawrence, Making Cashier’s Checks and Other Bank Checks Cost Effective: A Plea For Revision of Articles 3 and 4 of the Uniform Commercial Code, 64 Minn.L.Rev." }, { "docid": "23600883", "title": "", "text": "* * * » The District Court also relied upon two cases, State of Pennsylvania v. Cur-tiss National Bank, 427 F.2d 395 (5th Cir. 1970), and National Newark & Essex Bank v. Giordano, 111 N.J.Super. 347, 268 A.2d 327 (Law Div.1970). Both are distinguishable in. that they involve third parties and part of the reasoning included in the opinions is not applicable here. A logical beginning for discussion is a consideration of the nature of a cashier’s check. State of Pennsylvania v. Curtiss National Bank, supra, describes the instrument as follows: “The cashier’s check, purchased for adequate consideration, unlike an ordinary cheek, stands on its own foundation as an independent, unconditional and primary obligation of the Bank.” (427 F.2d at 400). Earlier in the opinion the Court had said: “A cashier’s check is defined as a bill of exchange drawn by a bank upon itself and accepted in advance by the act of its issuance and not subject to countermand by either its purchaser or the issuing bank.” and listed a number of citations, including Polotsky v. Artisans Savings Bank, 37 Del. 151, 188 A. 63. The latter case, however, explained the lack of authority to countermand by saying: “The instrument therefore being one of primary obligation on the part of the bank, there can be no countermand by it such as exists where the document constitutes a mere direction or order to pay.” (emphasis supplied) Whether “acceptance” in the definition of a cashier’s check has validity today is disputed by the authors of Willier and Hart, 6C Bender’s Uniform Commercial Code Reporter-Digest, 2-1194: “A bank may draw a cashier’s check either on itself or on another bank. When drawn on another bank, the check is governed by the same rules as any other check; when — as here— drawn by the bank on itself, the check is effective as a note under Section 3-118(a), with the bank as maker. Thus the court erred in referring to the instrument as a draft which had been accepted. '. . .” In any event, while a cashier’s cheek is equivalent to a" }, { "docid": "14836624", "title": "", "text": "In our discussion, we label as Group A those courts that treat cashier’s checks like ordinary negotiable instruments and as Group B the courts that view cashier’s checks as cash equivalents. a. Group A: The Ordinary Negotiable Instrument Approach The Group A courts offer two different analyses in their treatment of cashier’s checks as ordinary negotiable instruments. Some rely on UCC § 3-118(a) which states that “[a] draft drawn on the drawer is effective as a note.” Because the bank draws on itself when it issues a cashier’s cheek, these courts treat the cashier’s check as a note and the bank as the note’s maker. Hence, they argue that, because a cashier’s check is nothing more than a note, the defenses of sections 305 and 306 are available. See, e.g., TPO Inc. v. Federal Deposit Insurance Corp., 487 F.2d 131, 135-36 (3d Cir.1973); Banco Ganadero y Agricola v. Society National Bank, 418 F.Supp. 520, 524 (N.D.Ohio 1976). Other Group A courts look to the acceptor’s contract in UCC § 3-413(1). These courts argue that a cashier’s check is a draft of the issuing bank that the bank accepts by the act of issuance. However, they point out that — pursuant to UCC § 3-413(1) — the acceptor’s contract is identical to the maker’s contract. Because makers are subject to the provisions of UCC §§ 3-305 and 3-306, these courts argue that sections 305 and 306 should also govern cashier’s checks. See, e.g., Rezapolvi v. First National Bank of Maryland, 296 Md. 1, 459 A.2d 183, 187-88 (1983); Santos v. First National State Bank, 186 N.J.Super. 52, 451 A.2d 401, 407 (1982). We believe, as does Professor Lawrence, that the Group A courts misconstrue the application of UCC § 3-118(a) and § 3-413(1). Professor Lawrence explains: UCC § 3-118(a) “was intended simply to eliminate the need for a holder of a note or accepted draft to protest or give notice of dishonor to the instrument’s maker or acceptor. The draftsmen of the Code recognized that requiring these parties to protest or give notice of dishonor would serve no function, since presumably" }, { "docid": "2791921", "title": "", "text": "requiring such reports.” Id. The definition under 31 C.F.R. § 103.-11(3) is broad enough to include private individuals and money launderers. Dela Espriella, 781 F.2d at 1437; United States v. Goldberg, 756 F.2d 949 (2d Cir.1985). The government contends that the evidence shows that the appellant is, indeed, a financial institution. Before he began dealing with the government agents, he cashed a check and gave a customer more than $10,000 in cash without filing a CTR. Furthermore, over a two month period in 1985, the appellant converted $175,-000 in currency into cashier’s checks or wire transfers without filing CTRs. The evidence, the government contends, also discloses the appellant’s willingness to convert up to $3 million per month in narcotics money into cashier’s checks and wire transfers. The government also points to evidence that the appellant, in 1987, converted approximately $155,000 in cash into a cashier’s check. Moreover, he converted $15,-000 in cash into cashier’s checks for agent McKnight. The appellant, on the other hand, contends that he does not fit the definition of a financial institution. The appellant states that he was just a courier for the agents who brought their money to the various banks to get the cashier’s checks. He claims that he had no reserve of cash or cashier’s checks to complete the transactions himself; rather, he claims to have simply gone to the banks to exchange cash for the agents. The appellant cites United States v. Murphy, 809 F.2d 1427 (9th Cir.1987) as controlling. In that case, the defendants laundered $4 million for two undercover agents by depositing the money in a domes tic bank in such a manner as to conceal the true source and ownership of the money from the Internal Revenue Service. The defendants were charged with conspiring to conceal and falsify material facts within the jurisdiction of the Internal Revenue Service and with conspiring to defraud it in its collection of information. The court held that there was a duty of disclosure, but there was no duty to disclose the source of the funds. Id. at 1431. Therefore, the court held that" }, { "docid": "14836627", "title": "", "text": "that a bank accepts a cashier’s check as soon as the bank issues the check. Accordingly, the bank cannot refuse payment of a cashier’s check under sections 305 or 306 because such refusal is, in effect, a stop-order, and UCC § 4-303 disallows stop-orders on accepted items. See, e.g., Swiss Credit Bank v. Virginia National Bank, 538 F.2d 587, 588 (4th Cir.1976); Munson v. American National Bank & Trust Co., 484 F.2d 620, 623-24 (7th Cir.1973); State ex rel. Chan Siew Lai v. Powell, 536 S.W.2d 14, 16 (Mo.1976) (en banc); Wertz v. Richardson Heights Bank and Trust, 495 S.W.2d 572, 574 (Tex.1973). Several courts and commentators have criticized this application of UCC § 4-303. They state that the concept of stopping payment has relevance only to relations between a bank and its customer who draws a check against the bank. A personal check is an order to pay, and a customer has the right to revoke the order before it is carried out. But, since the bank, as drawer and drawee, is its own customer when it issues a cashier’s check, it is nonsensical, the critics argue, to speak of the bank’s liability to itself for failing to stop payment on its own cashier’s check. See, e.g., Rezapolvi v. First National Bank of Maryland, 296 Md. 1, 459 A.2d 183, 188 n. 7 (1983); Santos v. First National State Bank, 186 N.J.Super. 52, 451 A.2d 401, 408 (1982); J. McDonnell, Freedom From Claims and Defenses: A Study In Judicial Activism Under the Uniform Commercial Code, 17 Ga.L.Rev. 569, 615 (1983); Lawrence, Cashier’s Checks, at 292 n. 59. But we believe the foregoing reading of UCC § 4-303 may be unjustifiably narrow. Although the concept of a stop-order may necessitate both a bank and a bank customer, the application of UCC § 4-303 is not restricted to stop-orders. UCC § 4-303 also includes “any knowledge ... received by a payor bank.” Accordingly, as we read UCC § 4-303, a bank may not dishonor any accepted item when it receives later knowledge that would otherwise terminate its duty to honor that" }, { "docid": "23600882", "title": "", "text": "part: “§ 4-303. When Items Subject to Notice, Stop-Order, Legal Process or Set-off; Order in Which Items May Be Charged or Certified.— (1) Any knowledge, notice or stop-order received by, legal process served upon or set-off exercised by a payor bank, whether or not effective under other rules of law to terminate, suspend or modify the bank’s right or duty to pay an item or to charge its customer’s account for the item, comes too late to so terminate, suspend or modify such right or duty if the knowledge, notice, stop-order or legal process is received or served and a reasonable time for the bank to act thereon expires or the set-off is exercised after the bank has done any of the following: (a) accepted or certified the item; * * *» “§ 3-410. Definition and Operation of Acceptance.— (1) Acceptance is the drawee’s signed engagement to honor the draft as presented. It must be written on the draft, and may consist of his signature alone. It becomes operative when completed by delivery or notification. * * * » The District Court also relied upon two cases, State of Pennsylvania v. Cur-tiss National Bank, 427 F.2d 395 (5th Cir. 1970), and National Newark & Essex Bank v. Giordano, 111 N.J.Super. 347, 268 A.2d 327 (Law Div.1970). Both are distinguishable in. that they involve third parties and part of the reasoning included in the opinions is not applicable here. A logical beginning for discussion is a consideration of the nature of a cashier’s check. State of Pennsylvania v. Curtiss National Bank, supra, describes the instrument as follows: “The cashier’s check, purchased for adequate consideration, unlike an ordinary cheek, stands on its own foundation as an independent, unconditional and primary obligation of the Bank.” (427 F.2d at 400). Earlier in the opinion the Court had said: “A cashier’s check is defined as a bill of exchange drawn by a bank upon itself and accepted in advance by the act of its issuance and not subject to countermand by either its purchaser or the issuing bank.” and listed a number of citations, including" }, { "docid": "3721529", "title": "", "text": "procedure used before July 1, which was that the transfers were irrevocable. The fact that final settling of the accounts was not done until 9:00 p. m. is irrelevant. That was a mere bookkeeping entry. As Manufacturers asserts, a cash payment or a cashier’s check would not have been formally entered on Chase’s books until 9:00 p. m. and even Delbrueck agrees that cash or a cashier’s check would be irrevocable when transferred. The practices associated with banking transactions can be conclusive evidence of the legal effect of those transactions. Indianapolis Morris Plan Corp. v. Karlen, 28 N.Y.2d 30, 36, 319 N.Y.S.2d 831, 268 N.E.2d 632 (1971); Hanlon v. Union Bank of Medina, 247 N.Y. 389, 391,160 N.E. 650 (1928). Based on the nature of the CHIPS system, and the fact that the member banks viewed the transactions as irrevocable (as evidenced by the short term change instituted after the Herstatt failure) we hold that the CHIPS transfers were irrevocable when made. The Uniform Commercial Code (“UCC”) is not applicable to this case because the UCC does not specifically address the problems of electronic funds transfer. However, analogous use of concepts such as the finality of checks once “accepted” (§§ 3-410, 4-303) would support the irrevocability of these transfers. The common law supports the view that these transfers were irrevocable. Delbrueck’s deposits with Manufacturers were choses in action and as such were assignable. Miller v. Wells Fargo Bank International Corp., 406 F.Supp. 452 (S.D.N.Y. 1975), affirmed, 540 F.2d 548 (2d Cir. 1976); Paragon International, N. V. v. Standard Plastics, Inc., 353 F.Supp. 88, 93 (S.D.N.Y. 1973). In order for there to be a valid assignment of a chose in action, there must be a specific direction to transfer by the assignor and notice to the assignee. As the Miller court stated: “In sum, an assignment requires an agreement whereby the assignor agrees to transfer presently all right, title and control over the subject matter of the assignment to the assignee. Such an agreement may be manifested by conduct, writing or parol, and in particular it exists where the assignor instructs" }, { "docid": "11513365", "title": "", "text": "F.2d 1126, 1127-28 (4th Cir.1987). Summary judgment is appropriate in eases in which “there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law.” Fed. R.Civ.P. 56(c); see Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970). Both parties agree that forms such as Federal Express’s Airbill may constitute the contract between the shipper and the carrier. See Southern Pac. Transp. Co. v. Commercial Metals Co., 456 U.S. 336, 342-43, 102 S.Ct. 1815, 1820-21, 72 L.Ed.2d 114 (1982). McCall-Thomas argues that Federal Express breached the contract by collecting an invalid cashier’s cheek and failing to verify the check in light of suspicious circumstances. We do not believe the contract imposes any such duty. See, e.g., Caporicci Footwear, Ltd. v. Federal Express Corp., 894 F.Supp. 258, 261 (E.D.Va.1995) (“To impose such a requirement [of investigating suspicious circumstances surrounding delivery] would make Federal Express plaintiff’s agent for purpose of completing the transaction between it and the recipient. The Service Guide clearly states that no such agency relationship exists.”). ■ Federal Express’s only duty under this contract was to collect a facially valid cashier’s check. See, e.g., National Diamond Syndicate, Inc. v. United Parcel Serv., Inc., 897 F.2d 253, 264 (7th Cir.1990) (where it was established that carrier was acting as shipper’s agent in collecting a C.O.D. payment, carrier did not breach its duty of reasonable care by not verifying facially valid cashier’s checks in the absence of suspicious circumstances); Comark, Inc. v. United Parcel Serv., Inc., 701 F.Supp. 641 (N.D.Ill.1988) (in case decided on other grounds,' court observed that carrier which accepted what appeared to be a cashier’s check, later determined to be forged, would be within its authority; “to hold otherwise would call on UPS drivers to be moonlighting law stu-' dents, skilled in the arcane mysteries of the UCC”). The check in this case appeared to fit the definition of a cashier’s check: its drawer was a bank and the check was drawn upon the bank’s own account." }, { "docid": "1576386", "title": "", "text": "pro tanto when the Indyks accepted the Habib check. See N.Y.U.C.C. § 3-802(l)(a) (McKinney 1964). To invoke equity requires the indispensable ingredient that between the two parties involved there must be an injustice. If there be any injustice here, it has been inflicted upon the Indyks by Habib rather than the other way around. Thus, the set-off claim fails. Having disposed of the equitable argument advanced to obtain an offset, we further observe that by issuing the cashier’s check the Bank established a direct debtor-creditor relationship with the Indyks, Myers v. First National Bank of Scotia, 42 A.D.2d 657, 658, 345 N.Y.S.2d 204 (3d Dep’t 1973), Manhattan Imported Cars, Inc. v. Dime Savings Bank of New York, 70 Misc.2d 889, 890, 335 N.Y.S.2d 356 (App.Term, 1st Dep’t 1972), and, as noted, unconditionally contracted to pay the instrument according to its original tenor, see N.Y.U.C.C. § 3-413(1). Since the cashier’s check represented Habib’s own direct and unconditional promise to pay, see International Firearms Co. v. Kingston Trust Co., 6 N.Y.2d 406, 411, 189 N.Y.S.2d 911, 160 N.E.2d 656 (1959), Habib cannot resist such payment by claiming a setoff potentially available to Dome, if the Indyks were to sue Dome on the contract of sale, Manhattan Imported Cars, 70 Misc.2d at 890, 335 N.Y.S.2d 356. For the same reason Habib may not assert an offset that also might be available to Dome in a putative action by the Indyks based on the second agreement. To permit a bank to assert such offsets would undermine the usage and wide acceptance of cashier’s checks which circulate in commerce as the equivalent of cash. See International Firearms Co., 6 N.Y.2d at 411, 189 N.Y.S.2d 911, 160 N.E.2d 656. It was error therefore for the trial court to offset in Habib’s favor the $171,067 paid to the Indyks by Dome. The Habib Bank must pay the full amount of its cashier’s check, or $842,243.83. The judgment of the district court is modified accordingly. . There is testimony that Mr. Indyk was called by Mr. James, one of Dome’s principals, on the evening of June 3rd —" }, { "docid": "14836623", "title": "", "text": "275, 285-320 (1980) [hereinafter cited as Lawrence, Cashier’s Checks ]. One group considers cashier’s checks as ordinary negotiable instruments and treats them as such under the UCC. Id. at 286. According to these courts, if the payee of the cashier’s check is a holder in due course, the bank may only raise real defenses before dishonoring its cashier’s check. D.C.Code Ann. § 28:3-305. However, if the payee is not a holder in due course, the bank may dishonor a cashier’s check by simply asserting personal defenses, including lack of consideration and fraud in the inducement. Id. at § 28:3-306. The other group of courts treats cashier’s checks as cash equivalents and disallows banks from asserting those defenses that drawers of ordinary negotiable instruments may raise pursuant to sections 305 and 306. Lawrence, Cashier’s Checks, at 286. In sum, these courts focus less on the status of the payee and more on the fact that the bank backs its cashier’s checks with its own credit. Below we summarize and examine the statutory arguments of these courts. In our discussion, we label as Group A those courts that treat cashier’s checks like ordinary negotiable instruments and as Group B the courts that view cashier’s checks as cash equivalents. a. Group A: The Ordinary Negotiable Instrument Approach The Group A courts offer two different analyses in their treatment of cashier’s checks as ordinary negotiable instruments. Some rely on UCC § 3-118(a) which states that “[a] draft drawn on the drawer is effective as a note.” Because the bank draws on itself when it issues a cashier’s cheek, these courts treat the cashier’s check as a note and the bank as the note’s maker. Hence, they argue that, because a cashier’s check is nothing more than a note, the defenses of sections 305 and 306 are available. See, e.g., TPO Inc. v. Federal Deposit Insurance Corp., 487 F.2d 131, 135-36 (3d Cir.1973); Banco Ganadero y Agricola v. Society National Bank, 418 F.Supp. 520, 524 (N.D.Ohio 1976). Other Group A courts look to the acceptor’s contract in UCC § 3-413(1). These courts argue that a" }, { "docid": "20921500", "title": "", "text": "Cal. v. First Pac. Bank, 186 Cal.App.3d 1664, 231 Cal.Rptr. 503, 504 (1986). Technically, the bank cannot “stop payment” from itself. Nevertheless, it can refuse to pay the cashier’s check, i.e., “dishonor” the cashier’s check, and can seek to recover payment made via equitable defenses. See Cal.Com.Code §§ 3411, 3418 (West 1994); Farmers & Merchants State Bank, 841 F.2d at 1438-41. In Farmers & Merchants State Bank, the Ninth Circuit examined a bank’s right to assert its § 3 — 418 remedies without being limited by stop-payment provisions of § 4-303, under the Uniform Commercial Code: Neither § 4-303 nor its accompanying comments mention cashier’s checks or suggest that the section was intended to alter the status of such instruments under pre-Code law. Our research reveals a number of pre-Code cases holding that there are circumstances under which a bank may dishonor a cashier’s check issued in exchange for a customer’s cheek presented for payment. 841 F.2d at 1439-40. The bank can also refuse to pay a cashier’s check as an accommodation to its customer. See Cal.Com.Code § 3411, 1992 U.C.C. Comment (West 1994). However, a purchaser of the cashier’s check has no practical ability to stop payment on it. See Cal.Com.Code § 4303 (West 1994) (any stop-payment order expires after the bank accepts the item.) California law obligates the issuer of a cashier’s check as the maker of a note, “obliged to pay the instrument according to its terms at the time it was issued ...” Cal.Com.Code § 3412 West 1994), but at the same time it treats the cashier’s check as a “draft.” Cal.Com.Code § 3412, 1992 U.C.C. Comment (West 1994). Whether treated as an accepted draft or a promissory note, a cashier’s check should not be treated differently from any other instrument subject to the Uniform Commercial Code, notwithstanding the “public perception of cashier’s checks as the equivalent of cash.” Farmers & Merchants State Bank, 841 F.2d at 1440-42. Therefore, acceptance of a cashier’s check does not preclude a bank in California from refusing to pay under certain circumstances. B. When Did the Transfer Occur? The bankruptcy" } ]

[ { "docid": "11628730", "title": "", "text": "unless an item is under a sole sales agreement, Lobster “offers it’s merchandise freely to all who care to buy for exportation to the United States without restrictions”; that hand tools sold to plaintiff in 1965 and 1966 were sold at ex-factory prices, with delivery at the factory; and that these sales were not subject to a sole sales agreement and were freely offered to all who cared to buy. This uncontradicted evidence — 'based upon the personal knowledge of a well-qualified witness — is persuasive in showing that all purchasers are free to buy at the ex-factory prices in the same manner as plaintiff always bought such merchandise. Emphasizing this is the further fact shown by the affidavit that Lobster requires those of its purchasers who choose to buy on an ex-go-down, f.o.b. or c.i.f. basis rather than on an ex-factory basis to reimburse it specifically for all charges in excess of the ex-factory price that it incurs in getting the merchandise to the purchaser’s selected place of delivery. Defendant, however, argues that the essential statements in the affidavit are merely conclusory and hence without probative force. The argument lacks merit. For testimony by a qualified witness that his firm sells its merchandise for delivery at the factory, ex-go-down, or at the vessel, at the option of the purchaser, is not dependent upon interpretation of facts or evaluation of sales; on the contrary, such testimony “is itself a fact, not a conclusion, to which a qualified witness is competent to attest, without the necessity of providing corroborative evidence.” Luria Steel & Trading Corp., et al. v. United States, 42 Cust. Ct. 480, 485, R.D. 9311 (1959), modified on other grounds, 42 Cust. Ct. 558, R.D. 9345 (1959). See also, e.g., General Wool Co., Inc., et al. v. United States, 56 Cust. Ct. 730, 735-36, R.D. 11177 (1966), aff'd, 60 Cust. Ct. 970, A.R.D. 240 (1968); Fashion Ribbon Co. v. United States, 58 Cust. Ct. 737, 740, R.D. 11314 (1967), aff’d, United States v. Fashion Ribbon Co., Inc., 62 Cust. Ct. 1015, 296 F. Supp. 337, A.R.D. 252 (1969); Mannesmann-Meer," } ]

[ { "docid": "12198950", "title": "", "text": "charged by the factory were the same for comparable merchandise to all importers who purchased from the factory. In its brief plaintiff argues that the appraisement is separable so as to permit challenge of only the inspection fee; and that since this fee is in the nature of a buying commission, it is not part of the dutiable value. Defendant argues that the appraisement is not separable, but that even if it is separable the separability doctrine is not available since plaintiff failed to prove that the merchandise was freely sold or offered for sale to all purchasers for exportation to the United States at prices which did not include the disputed fee. Defendant also argues that plaintiff failed to establish that the disputed charge is not part of the price of the merchandise. Although the doctrine of separability extends to cases such as that at bar where the appraisement involves an f.o.b. price rather than an ex-factory price, see United States v. Knit Wits (Wiley) et al., 62 Cust. Ct. 1008, A.R.D. 251, 296 F. Supp. 949 (1969), the application of the doctrine is conditioned upon a showing that the merchandise is freely sold or offered for sale to all purchasers for exportation to the United States at a price which does not include the disputed item or items. United States v. Pan American Import Corp. et al., 57 CCPA 134 C.A.D. 993, 428 F.2d 848 (1970). Bearing in mind that the imported merchandise in this case involves “quality controlled” knitwear, the only evidence in the record as to prices for merchandise other than that imported herein is the aforementioned statement in the Cheung affidavit. And the court agrees with defendant that this statement does not constitute evidence of statutory export value equal to invoice unit prices which do not include inspection charges, or without a separate payment for inspection charges. In fact, if the term “comparable merchandise” in the Cheung affidavit can be said to be the equivalent of the quality controlled knitwear involved in this case, it would appear, according to the Cheung affidavit, that other sales" }, { "docid": "11628727", "title": "", "text": "713, 716-17, R.D. 11720 (1970), application for review pending. For “the separability rule will give rise to a presumption that the ex-factory pnce which the appraiser found was the price at which the merchandise was freely sold or offered to all.” United States v. Pan American Import Corp., et al., 57 CCPA 134, C.A.D. 993, slip op. July 23, 1970, p. 8. [Emphasis in original.] See also, e.g., United States v. Chadwick-Miller Importers, Inc., et al., supra, 54 CCPA at 95; United States v. Bud Berman Sportswear, Inc., supra, 55 CCPA at 29. However, as empha sized in the recent decision of the appellate court in Pan American, before separability may be invoked, it is first necessary for the importer to show that such or similar merchandise was freely sold or offered for sale to all purchasers on an ex-factory basis. United States v. Pan American Import Corp., et al., supra, slip op. pp. 8-9. Thus, “[i]f it be contended that the disputed charges formed no part of the value of the imported merchandise because they were incurred subsequent to the time when it was packed, ready for shipment to the United States, in the principal market of the country of exportation, all that need be proven is that such or similar merchandise was freely sold or offered for sale upon an ex-factory basis.” Hub Floral Manufacturing Company v. United States, 62 Cust. Ct. 979, 983, 296 F. Supp. 355 A.R.D. 249 (1969), aff'd, United States v. Hub Floral Manufacturing Company, 57 CCPA 134, C.A.D. 993 (1970). From what has been said it follows that if plaintiff has proven that the imports were freely sold or offered for sale upon an ex-factory basis, the inland charges here in question — for storage, hauling and lighterage, inland insurance premiums and inland freight — would not form part of dutiable value. We now turn to the record to determine whether this burden of proof has been met. On this phase, the record includes an affidavit of an individual who has been, since 1960, a director and export manager of the manufacturer-exporter —" }, { "docid": "8199745", "title": "", "text": "was packed, ready for shipment to the United States, in the principal market of the country of exportation, all that need be proven is that such or similar merchandise was freely sold or offered for sale upon an ex-factory basis.” Hub Floral Manufacturing Company v. United States, 62 Cust.Ct. 979, 983, 296 F.Supp. 355, 358, A.R.D. 249 (1969), aff’d, United States v. Hub Floral Manufacturing Company, 428 F.2d 848, 57 CCPA,C.A.D. 993 (1970). From what has been said it follows that if plaintiff has proven that the imports were freely sold or offered for sale upon an ex-factory basis, the inland charges here in question — for storage, hauling and lighterage, inland insurance premiums and inland freight— would not form part of dutiable value. We now turn to the record to determine whether this burden of proof has been met. On this phase, the record includes an affidavit of an individual who has been, since 1960, a director and export manager of the manufacturer-exporter — Lobster- — in which capacity he has personal knowledge of the selling practices and prices of the merchandise sold by his company for export. The affidavit— which is uncontradicted — is to the following effect: Lobster’s main business is the sale of hand tools, hand-tool kits and hardware. In selling for export to the United States, it “delivers its merchandise to the purchaser or the purchaser’s agent either at the factory, the go-down, or free on board the vessel, or with cost insurance and freight depending upon the choice of the purchaser.” The company “has made sales at ex-factory prices, ex-go-down prices, F.O.B. prices and c.i.f. prices. The difference in each of the above prices is that the purchaser must pay * * * [Lobster] the charges of getting the merchandise to the place of delivery. * * * The price at the same place of delivery is the same to all who care to buy at any given time, and the price does not vary because of quantity purchased.” The affidavit further points out that unless an item is under a sole sales agreement," }, { "docid": "14136905", "title": "", "text": "was not a part of export value. In both of these cases, the commissionaire was not the same legal entity as the seller. The deciding factor was not the relationship of the parties but the fact that it was clearly established that the merchandise was freely sold, or offered for sale, at ex-factory prices and could have been obtained without the services of the commissionaire. That factor has not been established in the instant case. Appellant claims that it has shown that the merchandise was freely sold or offered ex-factory by proof of a “climate of sales” by many different makers of a variety of merchandise at ex-factory prices. The term “climate of sales” has been nsed by the courts in Hub Floral Manufacturing Company v. United States, 62 Cust. Ct. 979, 985, A.R.D. 249, 296 F. Supp. 355 (1969), aff’d United States v. Pan American Import Corp. et al., 57 CCPA 134, 139, C.A.D. 993, 428 F. 2d 848 (1970), and in Karl Schroff & Associates, Inc., et al. v. United States, 66 Cust. Ct. 621, A.R.D. 286 (1971). In Hub Floral, it appeared that a great variety of merchandise'was purchased over a period of 3 years from many different manufacturers through three buying agents always at ex-factory prices. The buying agents stated that they also acted for other American importers, for whom they purchased from the same manufacturers on an ex-factory basis. On the record presented, it was held a reasonable inference that the importer was not the only purchaser able to buy at ex-factory prices or that any special accommodation was made to it. In the Schroff case there was evidence that the importer had negotiated with nine different manufacturers on an ex-factory or ex-warehouse basis; that the method of doing business was utilized by various other American purchasers, and that manufacturers other than the nine mentioned, sold on the same basis. In support of the alleged “climate of sales” in the instant case, there is a stipulation made at the trial that the freely offered price of merchandise described as “Eagle 100 pcs. of ‘Bushnell’ 7" }, { "docid": "8501187", "title": "", "text": "the company as Ming Ta Company of Miao Li Hsien. No evidence was presented to show whether the same company was involved. In support of their claim that this evidence is sufficient to establish a prima, facie case, appellants cite Standard Brands Paint Co., Inc. v. United States, 59 Cust.Ct. 616, R.D. 11345 (1967); Standard Brands Paint Co., Inc., v. United States, 62 Cust.Ct. 808, R.D. 11628, 295 F.Supp. 1096 (1969), and Rattancraft of California et al. v. United States, 64 Cust.Ct. 749, R.D. 11711 (1970), application for review pending. In those cases the evidence presented was uncontradicted. Furthermore, in the first Standard Brands case, there was testimony by the export manager of the seller, thus affording the defendant an opportunity to cross-examine. In that situation, conclusory statements are acceptable. Kobe Import Co. v. United States, 43 CCPA 136, C.A.D. 620 (1956). The affidavit in the second Standard Brands case contained a list of typical sales and more documentary evidence than was presented in the instant case. In Norco Sales Company v. United States, 65 Cust.Ct. 778, R.D. 11732, 319 F.Supp. 1399 (1970), the court held that an affidavit based upon the personal knowledge of a well-qualified witness was persuasive in showing that all purchasers were free to buy at ex-factory prices in the same manner as the plaintiff. The court emphasized the fact “shown by the affidavit that Lobster requires those of its purchasers who choose to buy on an ex-go-down, f. o. b. or c. i. f. basis rather than on an ex-factory basis to reimburse it specifically for all charges in excess of the ex-factory price that it incurs in getting the merchandise to the purchaser’s selected place of delivery.” In another recent case, Haruta & Co., Inc. v. United States, 65 Cust.Ct. 785, R.D. 11724 (1970), the court pointed out that testimony that the plaintiff purchased at ex-factory prices was not probative of the more basic issue of whether the articles were freely sold to all purchasers on an ex-factory basis. The court gave little, if any weight, to 31 affidavits of manufacturers, run off the" }, { "docid": "8501186", "title": "", "text": "of California. That the firm offered and sold its merchandise for exportation either at an ex-factory price or at an F.O.B. vessel price depending on the wishes of the buyer. That in selling to Rattancraft of California, the delivery was made to their agent at the factory. That the only difference between the ex-factory prices and the F.O.B. vessel prices was the inland freight and shipping charges which my firm included in the latter price, because only when sales were made F.O.B. vessel, had my firm to pay for such charges. The other two affidavits contain similar statements. No allegations were made that the statements were obtained from a review of the company books and records prepared and maintained by the affiant or kept under his supervision. No lists of sales were appended nor was there any reference to any specific sales by date, order number, type of merchandise, or otherwise. The special customs invoice in R67/522 shows the seller as Ming Ta Company of Chu Nan Chen, but the affidavit (exhibit 2) refers to the company as Ming Ta Company of Miao Li Hsien. No evidence was presented to show whether the same company was involved. In support of their claim that this evidence is sufficient to establish a prima, facie case, appellants cite Standard Brands Paint Co., Inc. v. United States, 59 Cust.Ct. 616, R.D. 11345 (1967); Standard Brands Paint Co., Inc., v. United States, 62 Cust.Ct. 808, R.D. 11628, 295 F.Supp. 1096 (1969), and Rattancraft of California et al. v. United States, 64 Cust.Ct. 749, R.D. 11711 (1970), application for review pending. In those cases the evidence presented was uncontradicted. Furthermore, in the first Standard Brands case, there was testimony by the export manager of the seller, thus affording the defendant an opportunity to cross-examine. In that situation, conclusory statements are acceptable. Kobe Import Co. v. United States, 43 CCPA 136, C.A.D. 620 (1956). The affidavit in the second Standard Brands case contained a list of typical sales and more documentary evidence than was presented in the instant case. In Norco Sales Company v. United States, 65" }, { "docid": "8501188", "title": "", "text": "Cust.Ct. 778, R.D. 11732, 319 F.Supp. 1399 (1970), the court held that an affidavit based upon the personal knowledge of a well-qualified witness was persuasive in showing that all purchasers were free to buy at ex-factory prices in the same manner as the plaintiff. The court emphasized the fact “shown by the affidavit that Lobster requires those of its purchasers who choose to buy on an ex-go-down, f. o. b. or c. i. f. basis rather than on an ex-factory basis to reimburse it specifically for all charges in excess of the ex-factory price that it incurs in getting the merchandise to the purchaser’s selected place of delivery.” In another recent case, Haruta & Co., Inc. v. United States, 65 Cust.Ct. 785, R.D. 11724 (1970), the court pointed out that testimony that the plaintiff purchased at ex-factory prices was not probative of the more basic issue of whether the articles were freely sold to all purchasers on an ex-factory basis. The court gave little, if any weight, to 31 affidavits of manufacturers, run off the same form with blank spaces to be filled in by the affiant, which contained statements that all sales to plaintiff were on an ex-factory basis and that at all times the merchandise was freely available on the same basis to anyone wishing to buy. The court noted that there was no reference in the affidavits to the dates of sales, or the merchandise sold, and that there were no commercial invoices to corroborate that, on the dates of exportation, such or similar merchandise was freely offered or sold to all purchasers on an ex-factory basis. In the instant case, as appellants admit, there is nothing more than the bare statements of the affiants that the merchandise was freely sold or offered for sale to all purchasers on an ex-factory basis. While courts are disposed to adopt a lenient view toward the quantum of proof requisite to establish dutiable value on the basis of ex-factory prices exclusive of disputed charges (Hub Floral Manufacturing Company v. United States, 62 Cust.Ct. 979, 984-985, A.R.D. 249, 296 F.Supp. 355" }, { "docid": "11628726", "title": "", "text": "proceeding may challenge one or more of the elements entering into an appraisement, while relying upon the presumption of correctness of the appraiser’s return as to all other elements, whenever the challenged items do not disturb the effect of the remainder of the appraisement. Such is the case in the instance of an appraisement at ex-factory-plus-charges value, and the charges may be disputed without the necessity of proof that the ex-factory prices comply with the statutory definition of export value.” United States v. Supreme Merchandise Company, 48 Cust. Ct. 714, 716-17, A.R.D. 145 (1962). See also e.g., United States v. Chadwick-Miller Importers, Inc., et al., 54 CCPA 98, C.A.D. 914 (1967); United States v. Bud Berman Sportswear, Inc., 55 CCPA 28, C.A.D. 929 (1967). “An additional consideration important to note is that if separability is applicable, it is not necessary for the importer to show that other purchasers could have bought the merchandise at the same ex-factory prices paid by that importer.” Karl Schroff & Associates, Inc., et al. v. United States, 65 Cust. Ct. 713, 716-17, R.D. 11720 (1970), application for review pending. For “the separability rule will give rise to a presumption that the ex-factory pnce which the appraiser found was the price at which the merchandise was freely sold or offered to all.” United States v. Pan American Import Corp., et al., 57 CCPA 134, C.A.D. 993, slip op. July 23, 1970, p. 8. [Emphasis in original.] See also, e.g., United States v. Chadwick-Miller Importers, Inc., et al., supra, 54 CCPA at 95; United States v. Bud Berman Sportswear, Inc., supra, 55 CCPA at 29. However, as empha sized in the recent decision of the appellate court in Pan American, before separability may be invoked, it is first necessary for the importer to show that such or similar merchandise was freely sold or offered for sale to all purchasers on an ex-factory basis. United States v. Pan American Import Corp., et al., supra, slip op. pp. 8-9. Thus, “[i]f it be contended that the disputed charges formed no part of the value of the imported merchandise because" }, { "docid": "8199746", "title": "", "text": "the selling practices and prices of the merchandise sold by his company for export. The affidavit— which is uncontradicted — is to the following effect: Lobster’s main business is the sale of hand tools, hand-tool kits and hardware. In selling for export to the United States, it “delivers its merchandise to the purchaser or the purchaser’s agent either at the factory, the go-down, or free on board the vessel, or with cost insurance and freight depending upon the choice of the purchaser.” The company “has made sales at ex-factory prices, ex-go-down prices, F.O.B. prices and c.i.f. prices. The difference in each of the above prices is that the purchaser must pay * * * [Lobster] the charges of getting the merchandise to the place of delivery. * * * The price at the same place of delivery is the same to all who care to buy at any given time, and the price does not vary because of quantity purchased.” The affidavit further points out that unless an item is under a sole sales agreement, Lobster “offers it’s merchandise freely to all who care to buy for exportation to the United States without restrictions”; that hand tools sold to plaintiff in 1965 and 1966 were sold at ex-factory prices, with delivery at the factory; and that these sales were not subject to a sole sales agreement and were freely offered to all who cared to buy. This uncontradicted evidence— based upon the personal knowledge of a well-qualified witness — is persuasive in showing that all purchasers are free to buy at the ex-factory prices in the same manner as plaintiff always bought such merchandise. Emphasizing this is the further fact shown by the affidavit that Lobster requires those of its purchasers who choose to buy on an ex-godown, f.o. b. or c i.f. basis rather than on an ex-factory basis to reimburse it specifically for all cnarges in excess of the ex-factory price that it incurs in getting the merchandise to the purchaser’s selected place of delivery. Defendant, however, argues that the essential statements in the affidavit are merely conclusory" }, { "docid": "5128448", "title": "", "text": "presents the question of the quantum of proof required where the appraiser calculates value of adding inland and handling charges to an invoiced ex-factory price. Such an appraisement is separable, and plaintiff may challenge the propriety of including the charges while relying on the presumption of correctness of the other elements of value. United States v. Fritzsche Bros., Inc., 35 CCPA 60, C.A.D. 371 (1947); United States v. Schroeder & Tremayne, Inc., et al., 41 CCPA 243, C.A.D. 558 (1954); United States v. Dan Brechner et al., 38 Cust. Ct. 719, A.R.D. 71 (1957); United States v. Knit Wits (Wiley) et al., 62 Cust. Ct. 1008, A.R.D. 251, 296 F. Supp. 949 (1969). In view of this doctrine, it has been held in such cases that plaintiff need show only that the merchandise was in fact sold or offered for sale ex-factory, it being presumed that the ex-factory prices used by the appraiser were those offered to all. United States v. Chadwick-Miller Importers, Inc., et al., 54 CCPA 93, C.A.D. 914 (1967); United States v. Bud Berman Sportswear, Inc., 55 CCPA 28, C.A.D. 929 (1967); Pan American Import Corp. et al. v. United States, 61 Cust. Ct. 619, A.R.D. 248 (appeal pending), 292 F. Supp. 718 (1968). In the Chadwick-Miller case, the court pointed out (p. 95) : The statute requires an appraisement be made at the price at which such merchandise is freely sold or offered for sale in the principal markets of the country of exportation. In the present case it is apparent that the appraiser concluded that the principal market was the port of shipment. He must necessarily have found that the merchandise was freely offered for sale at the appraised prices at that port. The appellees do not argue that the appraised f.o.b. prices are inaccurate but contend that they are not the proper export values since the evidence clearly shows that the merchandise was available to all purchasers on an ex-factory basis. Kurt Orban Co., Inc. v. United States, 52 CCPA 20, C.A.D. 851. Although there is no evidence to show that other purchasers could" }, { "docid": "4801942", "title": "", "text": "28, 31, C.A.D. 929 (1967). Recently, the rule has had most frequent application to appraisements which, as expressed in Haddad & Sons, Inc. v. United States, 54 Cust. Ct. 600, 602, R.D. 10942 (1965), affirmed, Id. v. Id. 56 Cust. Ct. 792, A.R.D. 205 (1966), cited 'by appellant, are “in terms of a first cost or ex-factory price, plus the disputed charges.” Appellant postures that the rule is limited to appraisements at “first cost, ex-factory or per se price,” and argues that the record is void of any evidence that the flight simulator was appraised at a first cost £218,005, ex-factory. Notwithstanding that the separability rule, as appellee cites, is not necessarily limited to appraisements ex-factory, of. United States v. Fritzsche Bros., Inc., 35 CCPA 60, C.A.D. 371 (1947); United States v. Freedman & Slater, Inc., 39 Cust. Ct. 717, A.R.D. 77 (1957) ; The A. W. Fenton Co., Inc. v. United States, 52 Cust. Ct. 405, R.D. 10660 (1964) ; Cleveland Twist Drill Co. et al. v. United States, 60 Cust. Ct. 893, R.D. 11542 (1968); Shalom Baby Wear, Inc. v. United States, 62 Cust. Ct. 856, R.D. 11641 (1969); Castle & Cooke, Inc., et al. v. United States, 64 Cust. Ct. 628, R.D. 11693 (1970), decided onrehearing, Id. v. Id., 67 Cust. Ct. 536, R.D. 11757 (1971); H. M. Young Associates, Inc. v. United States, 64 Cust. Ct. 642, R.D. 11695 (1970), we find substantial evidence that the appraisement at £218,005, plus 10 percent, plus cost of packing and other necessary costs of £2,000, is of the form and substance intended to reflect that £218,005 represented a first cost, or ex- factory price. The intention is clearly evident from the appraiser’s notice of action and increased duties to the importer (C.F. 5555, attached to the official papers) explaining that the appraised figure of £218,005, in essence, represented the invoice value, ex-factory. Castle & Cooke, Inc., et al. v. United States, 67 Cust. Ct. 536, K.D. 11757 (1971); of. Dominick Butti v. United States, 44 Cust. Ct. 773, 777, 778, A.R.D. 119 (1960), affirmed, Id. v. Id., 49 CCPA" }, { "docid": "14136897", "title": "", "text": "also made directly by Kugahara Factory to purchasers from other countries who had export agents in J apan. * * * Attached to the affidavit is a quotation given to Iiuni Tsusho Co., Ltd., in May, 1964, setting forth unit prices for several types of binoculars and a bill to the same firm. According to an affidavit of K. Endo, president, Kuni Tsusho Co., Ltd., serves as a buying agent for American importers, had received ex-factory offers from Tbyo Jitsugyo KK in June, 1964, and had made one purchase, for exportation to West Germany. (Exhibit!.) Commissions paid to agents for services rendered in procuring merchandise, inspecting and packing goods, arranging shipment, and making payments for the account of the buyer, no 'part of which inure to the benefit of the seller, are buying commissions and are not part of dutiable value, provided the agency is bona fide. United States v. Nelson Bead Co., 42 CCPA 175, 183, C.A.D. 590 (1955); United States v. Randbur Co., 48 Cust. Ct. 721, A.R.D. 146 (1962); Lollytogs, Ltd. v. United States, 55 Cust. Ct. 608, Reap. Dec. 11073 (1965); Reliance International Corp. v. United States, 62 Cust. Ct. 845, R.D. 11639, 305 F. Supp. 20 (1969); Carolina Mfg. Co. v. United States, 62 Cust. Ct. 850, R.D. 11640 (1969); Chadwick-Miller Importers, Inc., et al. v. United States, 66 Cust. Ct. 573, R.D. 11743 (1971). However, where the relationship between the parties is that of buyer and seller rather than principal and agent, air item claimed to be a “buying commission” is not deductible. B & W Wholesale Co., Inc. v. United States, 58 CCPA 92, C.A.D. 1010 (1971); Morris Friedman v. United States, 52 Cust. Ct. 660, A.R.D. 178 (1964); Pan Pacific Importers, Ltd. v. United States, 10 Cust. Ct. 530, Reap. Dec. 5804 (1943); Samuel S. Perry v. United States, 24 Cust. Ct. 546, Reap. Dec. 7794 (1950); Fine Arts Bag Co. v. United States, 57 Cust. Ct. 625, R.D. 11224 (1966). Profit, as distinguished from a purchasing commission, is an essential element of export value. United States v. S. S. Kresge Co.," }, { "docid": "8199747", "title": "", "text": "Lobster “offers it’s merchandise freely to all who care to buy for exportation to the United States without restrictions”; that hand tools sold to plaintiff in 1965 and 1966 were sold at ex-factory prices, with delivery at the factory; and that these sales were not subject to a sole sales agreement and were freely offered to all who cared to buy. This uncontradicted evidence— based upon the personal knowledge of a well-qualified witness — is persuasive in showing that all purchasers are free to buy at the ex-factory prices in the same manner as plaintiff always bought such merchandise. Emphasizing this is the further fact shown by the affidavit that Lobster requires those of its purchasers who choose to buy on an ex-godown, f.o. b. or c i.f. basis rather than on an ex-factory basis to reimburse it specifically for all cnarges in excess of the ex-factory price that it incurs in getting the merchandise to the purchaser’s selected place of delivery. Defendant, however, argues that the essential statements in the affidavit are merely conclusory and hence without probative force. The argument lacks merit. For testimony by a qualified witness that his firm sells it merchandise for delivery at the factory, ex-go-down, or at the vessel, at the option of the purchaser, is not dependent upon interpretation of facts or evaluation of sales; on the contrary, such testimony “is itself a fact, not a conclusion, to which a qualified witness is competent to attest, without the necessity of providing corroborative evidence.” Luria Steel & Trading Corp., et al. v. United States, 42 Cust.Ct. 480, 485, R.D. 9311 (1959), modified on other grounds, 42 Cust.Ct. 558, R.D. 9345 (1959). See also e.g., General Wool Co., Inc., et al. v. United States, 56 Cust.Ct. 730, 735-36, R.D. 11177 (1966), aff’d. 60 Cust.Ct. 970, A.R.D. 240 (1968); Fashion Ribbon Co. v. United States, 58 Cust.Ct. 737, 740, R.D. 11314 (1967), aff’d, United States v. Fashion Ribbon Co., Inc., 62 Cust.Ct. 1015, 296 F.Supp. 337, A.R.D. 252 (1969); Mannesmann-Meer, Inc. v. United States, 433 F.2d 829, 58 CCPA, C.A.D. 995 (1970). The record, in" }, { "docid": "8199748", "title": "", "text": "and hence without probative force. The argument lacks merit. For testimony by a qualified witness that his firm sells it merchandise for delivery at the factory, ex-go-down, or at the vessel, at the option of the purchaser, is not dependent upon interpretation of facts or evaluation of sales; on the contrary, such testimony “is itself a fact, not a conclusion, to which a qualified witness is competent to attest, without the necessity of providing corroborative evidence.” Luria Steel & Trading Corp., et al. v. United States, 42 Cust.Ct. 480, 485, R.D. 9311 (1959), modified on other grounds, 42 Cust.Ct. 558, R.D. 9345 (1959). See also e.g., General Wool Co., Inc., et al. v. United States, 56 Cust.Ct. 730, 735-36, R.D. 11177 (1966), aff’d. 60 Cust.Ct. 970, A.R.D. 240 (1968); Fashion Ribbon Co. v. United States, 58 Cust.Ct. 737, 740, R.D. 11314 (1967), aff’d, United States v. Fashion Ribbon Co., Inc., 62 Cust.Ct. 1015, 296 F.Supp. 337, A.R.D. 252 (1969); Mannesmann-Meer, Inc. v. United States, 433 F.2d 829, 58 CCPA, C.A.D. 995 (1970). The record, in short, is clear that the importations were freely sold and offered for sale to all purchasers at the invoiced ex-factory prices exclusive of the disputed inland charges. Accordingly, such charges do not form part of the export value of the importations in question. We turn next to the question of whether the “handling commissions” comprise part of the dutiable value. As to this, the testimony of the president and general manager of plaintiff indi cates that such “commissions” represented reimbursements to Lobster by the plaintiff for the traveling expenses incurred both by Henry Moro, plaintiff’s full-time resident manager in Japan, and by Lobster’s own officials and inspectors in visiting various Lobster subcontractors throughout Japan. The purpose of such visits was “to coordinate the manufacturers [subcontractors] and get the delivery straight to the factory for packaging and assembly * * As' explained by the witness (R.ll): Q. I direct your attention to that part of the invoice which shows a handling commission. Who gets that? A. The manufacturer would have to spend this money to have" }, { "docid": "14136898", "title": "", "text": "United States, 55 Cust. Ct. 608, Reap. Dec. 11073 (1965); Reliance International Corp. v. United States, 62 Cust. Ct. 845, R.D. 11639, 305 F. Supp. 20 (1969); Carolina Mfg. Co. v. United States, 62 Cust. Ct. 850, R.D. 11640 (1969); Chadwick-Miller Importers, Inc., et al. v. United States, 66 Cust. Ct. 573, R.D. 11743 (1971). However, where the relationship between the parties is that of buyer and seller rather than principal and agent, air item claimed to be a “buying commission” is not deductible. B & W Wholesale Co., Inc. v. United States, 58 CCPA 92, C.A.D. 1010 (1971); Morris Friedman v. United States, 52 Cust. Ct. 660, A.R.D. 178 (1964); Pan Pacific Importers, Ltd. v. United States, 10 Cust. Ct. 530, Reap. Dec. 5804 (1943); Samuel S. Perry v. United States, 24 Cust. Ct. 546, Reap. Dec. 7794 (1950); Fine Arts Bag Co. v. United States, 57 Cust. Ct. 625, R.D. 11224 (1966). Profit, as distinguished from a purchasing commission, is an essential element of export value. United States v. S. S. Kresge Co., et al., 26 CCPA 349, C.A.D. 39 (1939). Where the commissionaire and the manufacturer (both partnerships) were under common control of members of the same family and part of any commission would inure to the partners of the manufacturer, it was held that the buying agency was not bona fide, and the so-called commission was properly a part of dutiable value. Fine Arts Bag Co. v. United States, supra. See also Paul Morris v. United States, 57 Cust. Ct. 585, R.D. 11207 (1966), application for review dismissed 58 Cust. Ct. 821, A.R.D. 221 (1967), holding that the agency was not bona fide, where at times the commissionaire supplied the basic materials for fabrication and the ex-factory price went to it, and where, after making payment for fabrication costs, it retained the profit or suffered the loss. In Park Avenue Imports v. United States, 62 Cust. Ct. 1035, A.R.D. 255, 299 F. Supp. 528 (1969), the court held that common control oí tlie importer and the commissionaire did not preclude a finding of a Iona fide" }, { "docid": "14136904", "title": "", "text": "Kurt Orban case, an organization known as SAPET was an exclusive export sales agent for six wire manufacturers and a nonexclusive agent for at least four others. It received orders from the purchasers and placed them with the particular mill designated by the buyer. The mill prices were ex-factory but it was customary for SAPET to arrange transportation from factory to ship and the charges were added to the invoiced amount. However, purchasers could take delivery at the factory and arrange for transportation themselves. It was therefore held that the ex-factory price represented the export value. In Tapetes Luxor, merchandise was usually sold at f.o.b. Laredo prices, but it could be purchased f.o.b. Texcoco, the place of manufacture. When it was bought f.o.b. Laredo, Export Shipping Company, a subsidiary of the manufacturer, arranged transportation, paid duty and incidental expenses, and charged a 5 percent commission for its services. The courts held that since the merchandise was available f.o.b. Texcoco and since purchasers could take delivery at the factory and arrange their own transportation, the commission was not a part of export value. In both of these cases, the commissionaire was not the same legal entity as the seller. The deciding factor was not the relationship of the parties but the fact that it was clearly established that the merchandise was freely sold, or offered for sale, at ex-factory prices and could have been obtained without the services of the commissionaire. That factor has not been established in the instant case. Appellant claims that it has shown that the merchandise was freely sold or offered ex-factory by proof of a “climate of sales” by many different makers of a variety of merchandise at ex-factory prices. The term “climate of sales” has been nsed by the courts in Hub Floral Manufacturing Company v. United States, 62 Cust. Ct. 979, 985, A.R.D. 249, 296 F. Supp. 355 (1969), aff’d United States v. Pan American Import Corp. et al., 57 CCPA 134, 139, C.A.D. 993, 428 F. 2d 848 (1970), and in Karl Schroff & Associates, Inc., et al. v. United States, 66 Cust." }, { "docid": "11628734", "title": "", "text": "the surrounding areas where these tools are manufactured by many small, little manufacturers. He must visit these factories with their inspector, but he can’t override their inspection. Yet he can say, “I want this done,” or “I want that packaged a certain way.” Generally, between both of them, this cost is incurred by traveling to all these different areas and having to inspect these particular tools and packaging, and so forth. It is of course established that costs to a manufacturer in producing and marketing its product are part of the selling price and hence dutiable. E.g., Erb & Gray Scientific, Inc. v. United States, 53 CCPA 46, C.A.D. 875 (1966); Albert Mottola v. United States, 46 CCPA 17, C.A.D. 689 (1958). Conversely, “a charge for services associated with the purchase of merchandise in the foreign market, and which is not an amount that inures to the benefit of the seller, is a buying commission, which, although affecting the cost of goods to the importer, is not part of the market value of the merchandise.” United States v. Supreme Merchandise Company, 48 Cust. Ct. 714, 717, A.R.D. 145 (1962). In this context, the testimony is clear that the amounts labeled “handling commissions” were simply payments for travel expenses that were incurred on behalf of Lobster by Moro and Lobster’s personnel in coordinating and inspecting the work of Lobster’s subcontractors and in arranging for the packaging and shipment of the subcontractors’ work products to the Lobster factory in Osaka for assembly. Such travel expenses were obviously costs incurred by Lobster in the production of its goods; they were scarcely the kind of Commission an agent receives for performing services on behalf of a buyer in connection with the purchase of merchandise. Quite distinguishable is Styles for Boys, Inc., et al. v. United States, 62 Cust. Ct. 772, 295 F. Supp. 282, R.D. 11617 (1969), aff'd, 64 Cust. Ct. 857, A.R.D. 272 (1970). There plaintiffs contended that constructed value — which both parties agreed was the proper basis of appraisement — should have been higher than the appraised value. The basis of" }, { "docid": "3584333", "title": "", "text": "the merchandise as $2.90 per dozen and lists as export charges: carton and packing, cost of label, inland freight from Hiyogo to Kobe, storage, insurance premium from godown to on board, hauling and lighterage, and buying commission. The total ex-factory price and charges for 600 dozen is given as $1,923. Written in red ink on the invoice are the words “Appd at $3.205 per doz. net pkd.” At the trial, Harry Fichtenbaum, customs examiner, testified that he examined the merchandise involved herein and that at that time he had the official invoice documents before him. He noted the various items stated on them, including the invoiced unit price ex-factory, the total invoiced unit price ex-factory, all the various charges and items listed thereon, the grand total, and the quantity of merchandise involved. He stated that he appraised the merchandise at an f.o.b. price, net, packed. He noted that the importer had entered the merchandise at the invoiced grand total less the itemized charges. In making his appraisement, he had added back the charges which the importer had deducted. It was stipulated that the advisory appraisement by the examiner was adopted by the appraiser as the official aj>praised value. There was received in evidence as exhibit 1 in this case an affidavit of Yasuo Namekawa, president of The Tosho Co., Ltd. (hereinafter called Tosho). This was also received in evidence in Reliance Intercontinental Corp. v. United States, R63/3235, 62 Cust. Ct. 845, R.D. 11639, and Carolina Mfg. Co. v. United States, R63/5931, 62 Cust. Ct. 850, R.D. 11640. It is stated therein that Mr. Namekawa has been president of Tosho for 15 years and has personal knowledge of all its business affairs. As chief managing officer, it was his duty to supervise the business and commercial relationships and affairs of the company. He stated that Tosho has been engaged in the export and import business in Japan for many years; that it makes purchases of Japanese products and sells them for export to the 'United States, and that it also acts as agent on behalf of United States ’buyers for the" }, { "docid": "11628729", "title": "", "text": "Lobster—in which capacity he has personal knowledge of the selling practices and prices of the merchandise sold by his company for export. The affidavit — which is uncontradicted — is to the following effect: Lobster’s main business is the sale of hand tools, hand-tool kits and hardware. In selling for export to the United States, it “delivers its merchandise to the purchaser or the purchaser’s agent either at the factory, the go-down, or free on board the vessel, or with cost insurance and freight depending upon the choice of the purchaser.” The company “has made sales at ex-factory prices, ex-go-down prices, F.O.B. prices and c.i.f. prices. The difference in each of the above prices is that the purchaser must pay * * * [Lobster] the charges of getting the merchandise to the place of delivery. * * * The price at the same place of delivery is the same to all who care to buy at any given time, and the price does not vary because of quantity purchased.” The affidavit further points out that unless an item is under a sole sales agreement, Lobster “offers it’s merchandise freely to all who care to buy for exportation to the United States without restrictions”; that hand tools sold to plaintiff in 1965 and 1966 were sold at ex-factory prices, with delivery at the factory; and that these sales were not subject to a sole sales agreement and were freely offered to all who cared to buy. This uncontradicted evidence — 'based upon the personal knowledge of a well-qualified witness — is persuasive in showing that all purchasers are free to buy at the ex-factory prices in the same manner as plaintiff always bought such merchandise. Emphasizing this is the further fact shown by the affidavit that Lobster requires those of its purchasers who choose to buy on an ex-go-down, f.o.b. or c.i.f. basis rather than on an ex-factory basis to reimburse it specifically for all charges in excess of the ex-factory price that it incurs in getting the merchandise to the purchaser’s selected place of delivery. Defendant, however, argues that the" }, { "docid": "11628728", "title": "", "text": "they were incurred subsequent to the time when it was packed, ready for shipment to the United States, in the principal market of the country of exportation, all that need be proven is that such or similar merchandise was freely sold or offered for sale upon an ex-factory basis.” Hub Floral Manufacturing Company v. United States, 62 Cust. Ct. 979, 983, 296 F. Supp. 355 A.R.D. 249 (1969), aff'd, United States v. Hub Floral Manufacturing Company, 57 CCPA 134, C.A.D. 993 (1970). From what has been said it follows that if plaintiff has proven that the imports were freely sold or offered for sale upon an ex-factory basis, the inland charges here in question — for storage, hauling and lighterage, inland insurance premiums and inland freight — would not form part of dutiable value. We now turn to the record to determine whether this burden of proof has been met. On this phase, the record includes an affidavit of an individual who has been, since 1960, a director and export manager of the manufacturer-exporter — Lobster—in which capacity he has personal knowledge of the selling practices and prices of the merchandise sold by his company for export. The affidavit — which is uncontradicted — is to the following effect: Lobster’s main business is the sale of hand tools, hand-tool kits and hardware. In selling for export to the United States, it “delivers its merchandise to the purchaser or the purchaser’s agent either at the factory, the go-down, or free on board the vessel, or with cost insurance and freight depending upon the choice of the purchaser.” The company “has made sales at ex-factory prices, ex-go-down prices, F.O.B. prices and c.i.f. prices. The difference in each of the above prices is that the purchaser must pay * * * [Lobster] the charges of getting the merchandise to the place of delivery. * * * The price at the same place of delivery is the same to all who care to buy at any given time, and the price does not vary because of quantity purchased.” The affidavit further points out that" } ]

[ { "docid": "23625165", "title": "", "text": "for loss of society? A. Torregano’s estate seeks to recover the earnings that would, but for his death, have been income to him during his life expectancy. Apex first asserts that this issue cannot be raised on appeal because Miles did not sue on behalf of the estate, and because the claim for future losses was not raised in the trial court. Both contentions are incorrect. Miles appeared in her initial pleading “individually and in her capacity as administratrix of the succession of Ludwick A. Torregano.” On the third day of trial, she raised the issue whether the estate is entitled to recover the future economic loss of the decedent. Since the district court held that the Fifth Circuit does not allow such damages, the merits of the issue are properly before us. In a survival action, the estate or successors of a deceased person are allowed to prosecute a claim for personal injury that the deceased himself would have had but for his death. In a wrongful death action, the victim’s dependents, not the victim, are allowed to recover for the harms they personally suffered as a result of the death, independent of any action the decedent may have had for his own personal injuries. Neither cause of action was permitted at common law, which followed the rule that personal tort actions died with the plaintiff. Until the Supreme Court’s decision almost twenty years ago in Moragne v. States Marine Lines, Inc., the general maritime law followed the common law rule barring survival and wrongful death actions. In Moragne, the Supreme Court recognized a wrongful death action for negligence and unseaworthiness under the general maritime law. The Court, noting that every state and many federal statutes included wrongful death provisions, concluded that such actions have become part of our general law. In recognizing the action, the Court stated that the general maritime law would be guided, but not bound, by the wrongful death statutes already in force. It explained, “If ... subsidiary issues should require resolution, such as particular questions of the measure of damages, the courts will not" } ]

[ { "docid": "11280414", "title": "", "text": "may not recover. First, denial of recovery lends more uniformity to admiralty jurisdiction than allowing recovery. The parents in this case could not have recovered for loss of society under other maritime remedies. DOHSA, 46 U.S.C. § 762 (1982), limits recovery to pecuniary losses, and the Jones Act, 46 U.S.C. § 688 (1982) (incorporating 45 U.S.C. § 51 (1982)), bars parents from recovering if the seaman is survived by spouse or child. See also Ivy v. Security Barge Lines, Inc., 606 F.2d 524, 529 (5th Cir.1979) (en banc) (survivors cannot recover for loss of society under Jones Act), cert. denied, 446 U.S. 956, 100 S.Ct. 2927, 64 L.Ed.2d 815 (1980). Cf. Smith v. Ithaca Cory., 612 F.2d 215, 226 (5th Cir.1980) (in territorial waters, cause of action for pecuniary damages under Jones Act for negligence does not exclude action for loss of society under Moragne for unseaworthiness). Therefore, maritime jurisdiction remains more uniform if the parents are not permitted to recover. If this court were to hold that the parents could recover for loss of society in this case, we would create vagaries in admiralty jurisdiction that Moragne was designed to destroy: first, where the death occurs in territorial waters, parents like those in this case could recover for loss of society on the basis of unseaworthiness under Moragne but not for negligence under the Jones Act, see Smith, 612 F.2d at 226; Ivy, 606 F.2d at 529; and second, and even more anomalous, parents similarly situated to those in this case would have a cause of action for loss of society if the death occurred in territorial waters but not if the death occurred on the high seas, see DOHSA, 46 U.S.C. § 762 (1982) (no recovery for nonpecuniary damages); Mobil Oil Corp. v. Higginbotham, 436 U.S. 618, 625, 98 S.Ct. 2010, 2015, 56 L.Ed.2d 581 (DOHSA exclusive remedy for deaths occurring on the high seas). In Higginbotham, 436 U.S. at 624 & n. 20, 98 S.Ct. at 2014 & n. 20, 56 L.Ed.2d 581 (1978), the Court hypothesized that its holding, that damages for loss of society could" }, { "docid": "11280413", "title": "", "text": "this question, we must be guided by the manner in which the Supreme Court created the cause of action and determined what damages were recoverable. Foremost in the Court’s holding were the twin aims of maritime law: achieving uniformity in the exercise of admiralty jurisdiction and providing special solicitude to seamen. See Moragne v. States Marine Lines, Inc., 398 U.S. 375, 386-88, 401, 403, 90 S.Ct. 1772, 1780-81, 1788-89, 26 L.Ed.2d 339 (1970); Sea-Land Services, Inc. v. Gaudet, 414 U.S. 573, 577, 94 S.Ct. 806, 811, 39 L.Ed.2d 9 (1974). Another principle that guided the Court was that, although it was creating a new cause of action, the Court would look to maritime law and general law, including state wrongful death actions, where there was no analogous maritime law. See Moragne, 398 U.S. at 388-93, 405-09, 90 S.Ct. at 1781-83, 1790-92, 26 L.Ed.2d at 349-52, 359-61; Gaudet, 414 U.S. at 577, 584-88, 94 S.Ct. at 811, 814-16, 39 L.Ed.2d at 16, 20-23. Guided by the above principles, we hold that the parents in this case may not recover. First, denial of recovery lends more uniformity to admiralty jurisdiction than allowing recovery. The parents in this case could not have recovered for loss of society under other maritime remedies. DOHSA, 46 U.S.C. § 762 (1982), limits recovery to pecuniary losses, and the Jones Act, 46 U.S.C. § 688 (1982) (incorporating 45 U.S.C. § 51 (1982)), bars parents from recovering if the seaman is survived by spouse or child. See also Ivy v. Security Barge Lines, Inc., 606 F.2d 524, 529 (5th Cir.1979) (en banc) (survivors cannot recover for loss of society under Jones Act), cert. denied, 446 U.S. 956, 100 S.Ct. 2927, 64 L.Ed.2d 815 (1980). Cf. Smith v. Ithaca Cory., 612 F.2d 215, 226 (5th Cir.1980) (in territorial waters, cause of action for pecuniary damages under Jones Act for negligence does not exclude action for loss of society under Moragne for unseaworthiness). Therefore, maritime jurisdiction remains more uniform if the parents are not permitted to recover. If this court were to hold that the parents could recover for loss of" }, { "docid": "1318023", "title": "", "text": "Supreme Court opinion, the en banc Court reads in Higginbotham a holding of law applicable to the Jones Act and applicable in territorial waters. The en banc Court makes this quantum leap by pointing out that “While the Jones Act issue was not discussed in the opinion, it was raised squarely by the facts. . . . ” P. 528. Specifically, the en banc Court adopts the reasoning of the panel opinion in Ivy, which points out that Higginbotham did not affirm as to the representatives of Shinn, even though Shinn sued under the Jones Act as well as under DOHSA. Ivy v. Security Barge Lines, Inc., 5 Cir., 1978, 585 F.2d 732, 738. Therefore, the panel reasoned, the Supreme Court must have held explicitly that nonpecuniary damages are not recoverable under the Jones Act. I think a more reasonable interpretation of Higginbotham is that the Supreme Court passed no judgment on the measure of damages under the Jones Act. It considered solely the DOHSA issue and then reversed and “remanded for further proceedings consistent with this opinion,” 436 U.S. at 626, 98 S.Ct. at 2015, 56 L.Ed.2d at 587, 1978 AMC at 106-65 thereby leaving open to the Court of Appeals, or on its direction the District Court, the possibility of Shinn’s representatives recovering under the Jones Act. All that the Court held was that as between Moragne and DOHSA, Congress intended that DOHSA should govern in wrongful death recoveries on the high seas. The fact that the Supreme Court does not even discuss the Jones Act provides strong support for this interpretation. Alternatively, the most the Court in Higginbotham could have been holding is that in a wrongful death action involving a death on the high seas, DOHSA — where applicable — is exclusive and the Jones Act has to give way to DOHSA. The result of the Court’s reading of Higginbotham is to seriously undermine Gaudet in its application to death on territorial waters. Despite the en banc Court’s claim to the contrary, p. 528, the representatives of Shinn recovered not only under DOHSA and the Jones" }, { "docid": "12686751", "title": "", "text": "394, 396-97, 2 L.Ed.2d 382 (1958). The combination of The Harrisburg, Lindgren, and Gillespie created disarray in the field of remedies for wrongful death of seamen, and led to three “anomalies” or “incongruities” in admiralty law that eventually made the regime intolerable. “First, in territorial waters, general maritime law allowed a remedy for unseaworthiness resulting in injury, but not for death.” Miles v. Apex Marine Corp., 498 U.S. 19, 26, 111 S.Ct. 317, 322, 112 L.Ed.2d 275 (1990). Second, survivors of seamen killed outside the three-mile territorial limit could pursue a wrongful death action based on unseaworthiness, while survivors of those killed inside territorial waters could not, unless a state wrongful death statute allowed recovery based on unseaworthiness. Moragne, 398 U.S. at 395, 90 S.Ct. at 1785. Third, survivors of a “Sieracki -seaman,” see supra at n. 16, could recover for a death within territorial waters under applicable state statutes, while survivors of a Jones Act seaman (a “true” seaman) could not. Moragne, 398 U.S. at 395-96, 90 S.Ct. at 1785. In 1970 the Supreme Court decided that enough was enough, and in Moragne v. States Marine Lines, Inc., 398 U.S. 375, 90 S.Ct. 1772, 26 L.Ed.2d 339 (1970), the Court overruled The Harrisburg and recognized a general maritime wrongful death cause of action under federal common law. Id. at 378, 90 S.Ct. at 1776. Moragne was, by all accounts, a landmark case. Although its specific holding merely created a general maritime wrongful death remedy based on the doctrine of unseaworthiness, it has since been interpreted as creating a wrongful death remedy based on negligence. See Gilmore & BlaCK § 6-33, at 368 (“The remedy provides recovery for deaths caused by negligence as well as for deaths caused by unseaworthiness ....”); Miles v. Melrose, 882 F.2d 976, 985 (5th Cir.1989), aff'd sub nom. Miles v. Apex Marine Corp., 498 U.S. 19, 111 S.Ct. 317, 112 L.Ed.2d 275 (1990). Moragne has, of course, been the focus of detailed analysis and description in the case law and commentaries, which we need not repeat here. It is important, however, to point out that," }, { "docid": "16683321", "title": "", "text": "of damages for loss of society, Gaudet aligned federal maritime wrongful death recovery with a majority of the state wrongful death statutes. 414 U.S. at 587-88, 94 S.Ct. 806. Gaudet was significant since Congress limited wrongful death awards under DOHSA to damages for pecuniary claims. Id. at 586-87, 94 S.Ct. 806. Although the Gaudet decision was broadly written, the Supreme Court later expressly limited the holding of the case to deaths in territorial waters. See Mobil Oil Corp. v. Higgenbotham, 1978, 436 U.S. 618, 98 S.Ct. 2010, 56 L.Ed.2d 581. In Higgen-botham, survivors of airplane passengers killed outside state territorial waters sought to recover damages for nonpecuniary claims under general maritime law in addition to damages under DOHSA. The Higgenboth-am Court recognized the value of uniformity of recoveries in maritime actions, but held that the explicit statutory limitation on recovery in high seas death actions to pecuniary losses prevented an extension of the Moragne -remedy beyond territorial waters. 436 U.S. at 625, 98 S.Ct. 2010. The decision did not question, however, the Gau-det holding that damages for loss of society are recoverable for a death resulting from an injury sustained in territorial waters. Id. at 623-24, 98 S.Ct. 2010. Recently this Court considered whether the survivor of a Jones Act seaman killed in territorial waters could recover damages for loss of society in an action where liability is based solely on the negligence of the seaman’s employer. Ivy v. Securities Barge Lines, Inc., 5 Cir. en banc 1979, 606 F.2d 524. Although the Jones Act is silent on the issue of damages, cases before Ivy consistently limited recovery under the Jones Act to damages for pecuniary claims. Of special importance to the Ivy Court was whether Gaudet, by permitting the recovery of damages for loss of society in Moragne-type unseaworthiness cases, altered the traditional recovery rule in Jones Act negligence cases. The Ivy Court, after noting that Moragne and Gaudet did not involve Jones Act seamen, reasoned that the rules governing damages in general maritime law or changes in those rules could not alter the traditional Jones Act remedy. Next" }, { "docid": "1318022", "title": "", "text": "into so little. In Higginbotham, the Supreme Court granted Mobil’s writ of certiorari on the sole question of: Whether the maritime cause of action for deaths occurring within a state’s territorial waters created by this Court in Moragne completely replaces the statutory cause of action for death mandated by Congress with respect to deaths occurring within the geographical scope of the Death on the High Seas Act. Mobil Oil’s Writ Application. Clearly, Mobil Oil did not ask the Court to even consider the question of damages under the Jones Act. Nor did the Court depart from the reason it granted certiorari. The Court based its decision entirely on DOHSA. The entire opinion is cast in terms of an analysis of congressional intent under DOHSA. As the en banc Court itself points out, the Supreme Court did not even discuss the Jones Act in the case. P. 528. Nonetheless, even though Higginbotham involved the high seas, even though the opinion was based entirely on DOHSA, and even though the Jones Act was nowhere discussed in the Supreme Court opinion, the en banc Court reads in Higginbotham a holding of law applicable to the Jones Act and applicable in territorial waters. The en banc Court makes this quantum leap by pointing out that “While the Jones Act issue was not discussed in the opinion, it was raised squarely by the facts. . . . ” P. 528. Specifically, the en banc Court adopts the reasoning of the panel opinion in Ivy, which points out that Higginbotham did not affirm as to the representatives of Shinn, even though Shinn sued under the Jones Act as well as under DOHSA. Ivy v. Security Barge Lines, Inc., 5 Cir., 1978, 585 F.2d 732, 738. Therefore, the panel reasoned, the Supreme Court must have held explicitly that nonpecuniary damages are not recoverable under the Jones Act. I think a more reasonable interpretation of Higginbotham is that the Supreme Court passed no judgment on the measure of damages under the Jones Act. It considered solely the DOHSA issue and then reversed and “remanded for further proceedings consistent" }, { "docid": "7774596", "title": "", "text": "for reh’g, 866 F.2d 318 (9th Cir.1989). . See Snyder, 839 F.2d at 1085. . Ivy, 606 F.2d 524 (en banc). . See Gaudet, 414 U.S. 573, 94 S.Ct. 806, 39 L.Ed.2d 9 (permitting a widow to recover under general maritime negligence law for the death of her longshoreman husband, who died in territorial waters); Smith, 612 F.2d at 226 (permitting a widow to recover under an unseaworthiness claim for the death of her Jones Act seaman husband, who died in territorial waters). . 672 F.Supp. 929 (E.D.La.1987), petition for interlocutory appeal under 28 U.S.C. § 1292(b) denied, No. 87-9184 (5th Cir. Feb. 8, 1988). . See id. at 937 (\"Only where the [non-financially-dependent] survivor and the deceased chose to live together could a court, perhaps, continue tacitly to presume dependency.\"). . See, e.g., Anderson v. Whittaker Corp., 692 F.Supp. 764 (W.D.Mich.1988); cf. Evich I, 759 F.2d at 1433 (9th Cir.1985) (a deceased seaman’s nondependent brothers could not maintain a wrongful death action under general maritime law, where there was no mention that the decedent had any other survivors (following Glod v. American President Lines, Ltd., 547 F.Supp. 183, 185-86 (N.D.Calif.1982)) (“Recovery for maritime wrongful death would require [decedentfs brothers to be dependent relatives.”); Cambria Steamship, 505 F.2d at 523 (6th Cir.1974) (same, where the surviving brother was the decedent’s sole surviving relative) (“Moragne and [Gaudet] speak consistently in terms of dependents”). . See id. at 934-35 & n. 6 (recovery allowed only in Patton-Tully). In Kaiser v. Travelers Insurance Co., the Fifth Circuit initially affirmed a denial of loss-of-society damages to parents of a minor child killed in a boating accident. 487 F.2d 1300, 1301 (5th Cir.1974) (per curiam) (following the Fifth Circuit’s earlier holding in Canal Barge Co. v. Griffith (Petition of M/V Elaine Jones), 480 F.2d 11 (5th Cir.1973) (loss-of-society damages are never recoverable under general maritime law), vacated on this ground on petition for reh’g, 513 F.2d 911 (5th Cir.) (per curiam) (following Gaudet), cert. denied, 423 U.S. 840, 96 S.Ct. 71, 46 L.Ed.2d 60 (1975)). Ten days later, the Supreme Court overruled Canal Barge in" }, { "docid": "7340934", "title": "", "text": "guided by the twin aims of maritime law: achieving uniformity in the exercise of admiralty jurisdiction and providing special solicitude to seamen. See Moragne, 398 U.S. at 386-88, 90 S.Ct. at 1780-81; Gaudet, 414 U.S. at 577, 94 S.Ct. at 811. In answering the question in the negative, the Court makes the following five observations. First, denying recovery lends more uniformity to admiralty jurisdiction than allowing recovery, for the Trueharts could not have recovered under the other maritime remedies. DOHSA limits recovery to pecuniary loss, 46 U.S.C. § 762; Sistrunk, 770 F.2d at 459, while the Jones Act precludes recovery for loss of society from wrongful death of a seaman in a Jones Act or general maritime negligence action against his employer. Ivy v. Security Barge Lines, Inc., 606 F.2d 524, 525-26 (5th Cir.1979) (en banc) (a wrongful death action brought by seaman’s father), cert. denied, 446 U.S. 956, 100 S.Ct. 2927, 64 L.Ed.2d 815 (1980); cf. Beltia v. Sidney Torres Marine Transport, Inc., 701 F.2d 491, 492-93 (5th Cir.1983) (denying recovery in a wife’s action under both the Jones Act and general maritime negligence law for the nonfatal injury of her seaman husband, where the vessel was found seaworthy). This rationale alone may be insufficient after Gaudet, which granted a cause of action to a longshoreman’s widow for loss of society under her unseaworthiness claim. But in Sistrunk, the Fifth Circuit provided reconciliation between Higginbotham and Gaudet. Sistrunk, 770 F.2d at 459. As in Sistrunk, the True-harts do not have claims for loss of future contribution, support or services from the decedent; indeed, their sole pecuniary damage claim is for the $3500 that the True-harts spent for funeral expenses on the decedent, Defendants’ Statement, 117 — a trivial amount compared to the $500,000 prayed for in the complaint for loss of society. Guided by the Supreme Court’s admonition in Higginbotham and the Fifth Circuit’s application of that admonition, this Court believes that allowing the True-harts to recover for loss of society poses a significant threat to uniformity. Plaintiff suggests that this Court should adopt Louisiana wrongful death law, which" }, { "docid": "7340933", "title": "", "text": "Court’s admiralty jurisdiction under 28 U.S. C. § 1333(1). B. DOHSA does not apply to deaths occurring, as here, in territorial waters. 46 U.S.C. § 761; Sistrunk, 770 F.2d at 456. The Jones Act does not apply to deaths, as here, of nonseamen. 46 U.S.C. § 688. Finally, the Louisiana Wrongful Death Statute, La.Civ.Code art. 2315 (West 1987), is supplanted in maritime wrongful deaths by the general maritime Moragne cause of action. In re S/S Helena, 529 F.2d 744, 753 (5th Cir.1976); Sistrunk, 770 F.2d at 456-57. Because no relevant federal stat ute applies, the sole cause of action under which plaintiff may recover damages for loss of society is the general maritime Moragne cause of action for wrongful death. Id. at 456. C. The question, then, is whether Moragne wrongful death damages, specifically, loss-of-society damages, may, on grounds of negligence by defendants, be awarded to the surviving Trueharts, none of whom was financially dependent on or lived with the decedent. While bound by the Supreme Court and the Fifth Circuit, this Court is also guided by the twin aims of maritime law: achieving uniformity in the exercise of admiralty jurisdiction and providing special solicitude to seamen. See Moragne, 398 U.S. at 386-88, 90 S.Ct. at 1780-81; Gaudet, 414 U.S. at 577, 94 S.Ct. at 811. In answering the question in the negative, the Court makes the following five observations. First, denying recovery lends more uniformity to admiralty jurisdiction than allowing recovery, for the Trueharts could not have recovered under the other maritime remedies. DOHSA limits recovery to pecuniary loss, 46 U.S.C. § 762; Sistrunk, 770 F.2d at 459, while the Jones Act precludes recovery for loss of society from wrongful death of a seaman in a Jones Act or general maritime negligence action against his employer. Ivy v. Security Barge Lines, Inc., 606 F.2d 524, 525-26 (5th Cir.1979) (en banc) (a wrongful death action brought by seaman’s father), cert. denied, 446 U.S. 956, 100 S.Ct. 2927, 64 L.Ed.2d 815 (1980); cf. Beltia v. Sidney Torres Marine Transport, Inc., 701 F.2d 491, 492-93 (5th Cir.1983) (denying recovery in a wife’s" }, { "docid": "7854787", "title": "", "text": "that we have found which discusses the possibility of an action under general maritime law for wrongful death caused by negligence is Nelson v. United States, 639 F.2d 469 (9th Cir. 1980). That court held that “the need for uniformity in maritime wrongful death actions requires extension of Moragne to cover claims based on negligence, to the exclusion of state wrongful death statutes.” Id. at 473. We recognize that such extension of the Moragne remedy would ensure uniformity that otherwise would not exist in those wrongful death cases that fall outside of DOHSA and the Jones Act. As indicated by Ivy, however, such application of the Moragne remedy creates inconsistency with those two federal statutes. At least where statutory remedies exist, we deem consistency with the federal remedial schemes to be more important than the somewhat limited loss of uniformity. Therefore, we hold that where a cause of action exists for wrongful death under DOHSA, no additional action exists under general maritime law for wrongful death caused by negligence; the Moragne remedy applies only to unseaworthiness. Having concluded that the trial court did not reach an erroneous legal conclusion, we AFFIRM. . The express wording of the Fifth Circuit’s unpublished opinion seems to restrict the issues on remand to a determination of insurance coverage for the damages awarded to the plaintiff. Arguably, however, that opinion should be more broadly interpreted in light of Wooten’s argument on his first appeal. In the conclusion to his opening brief in that appeal, he stated: The Trial Judge erred in not finding that the negligence he found under the DOHSA, covered by the COMPANY, was also encompassed by the MORAGNE REMEDY. Judgment should have been given against the COMPANY for damages for loss of society as well as pecuniary damages. Thus, in seeking a determination of the coverage question, Wooten indicated that the issue of the theoretical basis for the recovery was interwoven with the coverage question. The short opinion of the Fifth Circuit did not specify whether the additional issue of the basis for recovery should be treated as part of the coverage" }, { "docid": "1317999", "title": "", "text": "987, 91 S.Ct. 1649, 29 L.Ed.2d 153. The Supreme Court decided that nonpecuniary damages could be recovered by survivors of a longshoreman for death resulting from unseaworthiness in Sea-Land Services, Inc. v. Gaudet, 1974, 414 U.S. 573, 94 S.Ct. 806, 39 L.Ed.2d 9. There the decedent had, while living, recovered for injuries suffered on state waters, but later died as a result of the same event; his widow sued under Moragne. Although the Court refused to allow double recovery, it did hold the widow entitled to compensation for pecuniary damages, including loss of support, and services, as well as funeral expenses. The Court then turned to the nonpecuniary claim for loss of society and, noting that recovery for this intangible deprivation had been available under the majority of state wrongful death statutes prior to the decision in Moragne, it permitted the award. Id. at 587-90, 94 S.Ct. at 816-17, 39 L.Ed.2d at 22-24. Neither Moragne nor Gaudet involved a Jones Act seaman. Each of them dealt only with an unseaworthiness claim asserted under general maritime law. Neither of them intimates even in dicta a change in the Jones Act rule. Other reasons, somewhat more complex, appear to preclude interpreting the Jones Act as being supplemented by a Moragne -engendered negligence action for damages if (but only if) death occurs in territorial waters or on land. Moragne did not create or even discuss an action for negligence; it dealt only with death occasioned by unseaworthiness. The suggestion that the Jones Act measure of damages can be supplemented by the Moragne -cause-of-action-Gaudet-damages rule will not bear analysis; that hybrid could be spawned in but one context, the coupling of unseaworthiness (capable of producing Gaudet) with a Jones Act claim to give birth to Jones Act damages for negligence. To consider the Moragne-Gaudet result a supplemental remedy to the Jones Act when the suit is for negligence only is not to supplement the statute but to alter the interpretation it has continuously received. We turn then to the most recent signal from the Supreme Court, its decision in Mobil Oil Corp. v. Higginbotham," }, { "docid": "7577953", "title": "", "text": "Tallentire, like Gaudet and Moragne, were suits by dependent widows of the decedents. Miles v. Apex Marine Corp., 498 U.S. 19, 111 S.Ct. 317, 112 L.Ed.2d 275 (1990), addressed, however, the situation of a nonde-pendent mother who sought loss-of-society damages for the death in territorial waters of her seaman son. The Fifth Circuit had held that “in a general maritime wrongful death action nondependent parents may not recover for loss of society whether or not their deceased children were survived by spouse or child.” Miles v. Melrose, 882 F.2d 976, 989 (5th Cir.1989), aff'd sub nom. Miles v. Apex Marine Corp., 498 U.S. 19, 111 S.Ct. 317, 112 L.Ed.2d 275 (1990). The Supreme Court affirmed on the differing ground “that there is no recovery for loss of society in a general maritime action for the wrongful death of a Jones Act seaman,” 498 U.S. at 33, 111 S.Ct. at 326, thus “restor[ing] a uniform rule applicable to all actions for the wrongful death of a seaman, whether under DOHSA, the Jones Act, or general maritime law.” Id, The Court also stated that: “The holding of Gaudet applies only in territorial waters, and it applies only to longshoremen.” Id. at 31, 111 S.Ct. at 325. As Magistrate Judge Latimer noted, none of these cases support the recovery of loss-of-society damages by a nondependent beneficiary in a general maritime wrongful death action, and both DOHSA and the Jones Act have been construed by the Court to bar such damages where those statutes apply. See 800 F.Supp. at 1065.. This does not settle the question presented by this appeal, however, because neither DOHSA nor the Jones Act is applicable, and no Supreme Court ruling bars the award of loss-of-society damage to the Wahlstroms. On the other hand, a number of other federal courts have explicitly addressed the issue whether nondependent parents may recover loss-of-society damages for a death in territorial waters, and have almost unanimously responded in the negative. Both the Fifth Circuit, see Miles, 882 F.2d at 989, and Sixth Circuit, see Anderson, 894 F.2d at 812, have so ruled, and most" }, { "docid": "7854786", "title": "", "text": "hybrid could be spawned in but one context, the coupling of unseaworthiness (capable of producing Gaudet) with a Jones Act claim to give birth to Jones Act damages for negligence. To consider the Moragne-Gaudet result a supplemental remedy to the Jones Act when the suit is for negligence only is not to supplement the statute but to alter the interpretation it has continuously received. 606 F.2d at 527 (footnote omitted). We consider Ivy highly persuasive, and see no reason to distinguish it simply because it related to the interaction of the Jones Act with general maritime law, whereas the present case relates to the interaction of DOHSA with general maritime law. As with the Jones Act, “supplementation” of DOHSA’s pecuniary loss remedy with the Moragne loss-of-society remedy would totally alter the remedial scheme, which already provides a cause of action for death due to negligence. In fact, this logic provided the basis for the holding in Mobil Oil Corp. v. Higginbotham, 436 U.S. 618, 98 S.Ct. 2010, 56 L.Ed.2d 581 (1978). The only other case that we have found which discusses the possibility of an action under general maritime law for wrongful death caused by negligence is Nelson v. United States, 639 F.2d 469 (9th Cir. 1980). That court held that “the need for uniformity in maritime wrongful death actions requires extension of Moragne to cover claims based on negligence, to the exclusion of state wrongful death statutes.” Id. at 473. We recognize that such extension of the Moragne remedy would ensure uniformity that otherwise would not exist in those wrongful death cases that fall outside of DOHSA and the Jones Act. As indicated by Ivy, however, such application of the Moragne remedy creates inconsistency with those two federal statutes. At least where statutory remedies exist, we deem consistency with the federal remedial schemes to be more important than the somewhat limited loss of uniformity. Therefore, we hold that where a cause of action exists for wrongful death under DOHSA, no additional action exists under general maritime law for wrongful death caused by negligence; the Moragne remedy applies only to" }, { "docid": "11244929", "title": "", "text": "a result of his injuries, however, the loss of services that he would have rendered his spouse is recoverable by her in her wrongful death action as part of the damage she suffers as a result of his death whether under the Jones Act, the Death on the High Seas Act, 46 U.S.C. § 761 et seq. [DOHSA], or under the general maritime law death action created by Moragne v. States Marine Lines, Inc., 398 U.S. 375, 90 S.Ct. 1772, 26 L.Ed.2d 339 (1970). Loss of society, however, as distinguished from loss of services, is not pecuniary in nature. Sea-Land Services, Inc. v. Gaudet, 414 U.S. 573, 585-87, 94 S.Ct. 806, 815-16, 39 L.Ed.2d 9, 21-22 (1974). In Ivy v. Security Barge Lines, Inc., 606 F.2d 524 (5th Cir. 1979) (en banc), cert. denied, 446 U.S. 956, 100 S.Ct. 2927-28, 64 L.Ed.2d 815 (1980), we held that, if the seaman meets death, the settled interpretation of the Jones Act precludes recovery by a surviving spouse for loss of his society. However, in Ivy we reserved the question whether the spouse of a deceased seaman is entitled to damages for loss of his society if his death results from unseaworthiness. Ivy v. Security Barge Lines, Inc., 606 F.2d at 528 n. 8. Subsequent to our decision in Ivy, we held in two cases in which a Jones Act claim was combined with a claim for unseaworthiness that the widow of a Jones Act seaman might recover for loss of society in a death action brought under the general maritime law unseaworthiness doctrine. Smith v. Ithaca Corp., 612 F.2d 215 (5th Cir. 1980); Hlodan v. Ohio Barge Lines, Inc., 611 F.2d 71 (5th Cir. 1980). Sea-Land Services, Inc. v. Gaudet, 414 U.S. 573, 94 S.Ct. 806, 39 L.Ed.2d 9 (1974), held that under the nonstatutory general maritime law wrongful death action shaped by Moragne v. States Marine Lines, Inc., 398 U.S. 375, 90 S.Ct. 1772, 26 L.Ed.2d 339 (1970), the widow of a longshoreman who died as a result of injuries received aboard a vessel in state territorial waters could recover damages" }, { "docid": "12686799", "title": "", "text": "were limited to the preemptive effect of the Jones Act's wrongful death remedy on state wrongful death statutes. They did not challenge the Supreme Court’s holding in Mahnich v. Southern S.S. Co., 321 U.S. 96, 64 S.Ct. 455, 88 L.Ed. 561 (1944), that an injured Jones Act seaman could invoke the doctrine of unseaworthiness to sue for injuries, wherever contracted. . The “anomalies” were explained in Moragne, 398 U.S. at 394-96, 90 S.Ct. at 1784-85. . The case law, however, does not uniformly hold that the Moragne wrongful death remedy applies to claims based on negligence. See, e.g., Ford v. Wooten, 681 F.2d 712, 715-16 (11th Cir.1982) (holding that the Moragne remedy applies only to unseaworthiness, not negligence); Ivy v. Security Barge Lines, Inc., 606 F.2d 524, 527 (5th Cir.1979) (en banc) (same, as concerns Jones Act seamen). . As Justice Harlan put it: Our recognition of a right to recover for wrongful death under general maritime law will assure uniform vindication of federal policies, removing the tensions and discrepancies that have resulted from the necessity to accommodate state remedial statutes to exclusively maritime substantive concepts. Such uniformity not only will further the concerns of both of the 1920 Acts [DOHSA and the Jones Act] but also will give effect to the constitutionally based principle that federal law should be a system of law coextensive with, and operating uniformly in, the whole country. Moragne, 398 U.S. at 401-02, 90 S.Ct. at 1788 (internal quotation marks and citations omitted). . Id. at 387, 90 S.Ct. at 1780-81 (quoting The Sea Gull, 21 Fed.Cas. 909-10 (C.C.D.Md.1865) (No. 12,578)). The Moragne court recognized that the maritime law \"included a special solicitude for the welfare of those men who undertook to venture upon hazardous and unpredictable sea voyages.” Id. . Gaudet also cited approvingly to a decision of this court, Dugas v. National Aircraft Corp., 438 F.2d 1386 (3d Cir.1971), which joined a state survival statute to a general maritime wrongful death cause of action. Gaudet, 414 U.S. at 588 n. 24, 94 S.Ct. at 817 n. 24. . In American Export Lines, the" }, { "docid": "1318000", "title": "", "text": "law. Neither of them intimates even in dicta a change in the Jones Act rule. Other reasons, somewhat more complex, appear to preclude interpreting the Jones Act as being supplemented by a Moragne -engendered negligence action for damages if (but only if) death occurs in territorial waters or on land. Moragne did not create or even discuss an action for negligence; it dealt only with death occasioned by unseaworthiness. The suggestion that the Jones Act measure of damages can be supplemented by the Moragne -cause-of-action-Gaudet-damages rule will not bear analysis; that hybrid could be spawned in but one context, the coupling of unseaworthiness (capable of producing Gaudet) with a Jones Act claim to give birth to Jones Act damages for negligence. To consider the Moragne-Gaudet result a supplemental remedy to the Jones Act when the suit is for negligence only is not to supplement the statute but to alter the interpretation it has continuously received. We turn then to the most recent signal from the Supreme Court, its decision in Mobil Oil Corp. v. Higginbotham, 1978, 486 U.S. 618, 98 S.Ct. 2010, 56 L.Ed.2d 581. There suit was brought by several claimants seeking recovery for the deaths of their husbands in a helicopter crash outside United States waters. One of the passengers, Shinn, was found by the district court to be a Jones Act seaman and his widow was allowed to sue under the Jones Act, DOHSA and general maritime law. Representatives of two other passengers sued under DOHSA and general maritime law. On appeal, one of these two passengers, Nations, was also found to be a Jones Act seaman, and his widow’s claims were remanded to the district court for a determination of damages under the Jones Act. Id., 5 Cir. en banc 1977, 545 F.2d 422, 433. All were awarded damages premised on Mobil’s negligence, including an amount for loss of society. The Supreme Court held that the case was distinguishable from Gaudet because of the place of the death, and refused to allow the award for loss of society to stand. Noting that Congress had specifically limited" }, { "docid": "7854785", "title": "", "text": "Court cases have indicated that Moragne applied the wrongful death remedy only where death resulted from unseaworthiness. See, e.g., Sea-Land Services, Inc. v. Gaudet, 414 U.S. 573, 574, 94 S.Ct. 806, 809, 39 L.Ed.2d 9 (1974). The question we consider, then, is whether Moragne should be extended to permit recovery under general maritime law for wrongful death caused by negligence. Ivy v. Security Barge Lines, Inc., 606 F.2d 524 (5th Cir. 1979) (en banc), cert. denied, 446 U.S. 956, 100 S.Ct. 2927, 64 L.Ed.2d 815 (1980), considered this exact question, but in a slightly different context. Therein, the Court of Appeals determined the applicability of a general maritime law remedy for negligently induced wrongful death where a cause of action for negligence also exists under the Jones Act, 46 U.S.C. § 688. The court concluded: Moragne did not create or even discuss an action for negligence; it dealt only with death occasioned by unseaworthiness. The suggestion that the Jones Act measure of damages can be supplemented by the ilioragne-cause-of-action-Gaudei-dam-ages rule will not bear analysis; that hybrid could be spawned in but one context, the coupling of unseaworthiness (capable of producing Gaudet) with a Jones Act claim to give birth to Jones Act damages for negligence. To consider the Moragne-Gaudet result a supplemental remedy to the Jones Act when the suit is for negligence only is not to supplement the statute but to alter the interpretation it has continuously received. 606 F.2d at 527 (footnote omitted). We consider Ivy highly persuasive, and see no reason to distinguish it simply because it related to the interaction of the Jones Act with general maritime law, whereas the present case relates to the interaction of DOHSA with general maritime law. As with the Jones Act, “supplementation” of DOHSA’s pecuniary loss remedy with the Moragne loss-of-society remedy would totally alter the remedial scheme, which already provides a cause of action for death due to negligence. In fact, this logic provided the basis for the holding in Mobil Oil Corp. v. Higginbotham, 436 U.S. 618, 98 S.Ct. 2010, 56 L.Ed.2d 581 (1978). The only other case" }, { "docid": "16683322", "title": "", "text": "damages for loss of society are recoverable for a death resulting from an injury sustained in territorial waters. Id. at 623-24, 98 S.Ct. 2010. Recently this Court considered whether the survivor of a Jones Act seaman killed in territorial waters could recover damages for loss of society in an action where liability is based solely on the negligence of the seaman’s employer. Ivy v. Securities Barge Lines, Inc., 5 Cir. en banc 1979, 606 F.2d 524. Although the Jones Act is silent on the issue of damages, cases before Ivy consistently limited recovery under the Jones Act to damages for pecuniary claims. Of special importance to the Ivy Court was whether Gaudet, by permitting the recovery of damages for loss of society in Moragne-type unseaworthiness cases, altered the traditional recovery rule in Jones Act negligence cases. The Ivy Court, after noting that Moragne and Gaudet did not involve Jones Act seamen, reasoned that the rules governing damages in general maritime law or changes in those rules could not alter the traditional Jones Act remedy. Next the Ivy Court concluded that since Higgenboth-am limited DOHSA recovery to damages for pecuniary claims, a similar restriction necessarily should apply to Jones Act recovery on the high seas. Id. at 528-29. A finding that survivors could recover damages for loss of society as a result of the death of a Jones Act seaman in territorial waters would be illogical, said the Ivy Court, in light of the fact that damages for nonpecuniary claims could not be recovered under the same statute for a death occurring on the high seas. Id. Thus the Ivy Court held that survivors of a seaman may not recover damages for nonpecuniary claims under the Jones Act in an action based only upon the negligence of the master of a vessel. Dicta in Ivy states that in a negligence action Jones Act recovery may not be supplemented by Moragne-Gaudet recovery. Id. at 527. Ivy expressly stated, however, that the decision did not reach the precise question raised by this appeal: After Hig-genbotham, in an action based on unseaworthiness under general" }, { "docid": "7854784", "title": "", "text": "trial court concluded as a matter of law that only unseaworthiness supports a recovery for wrongful death under general maritime law. The court’s oral findings are susceptible to an alternative interpretation — the court may have found that the facts of this case did not support a general maritime law recovery for wrongful death caused by negligence. Even if we assume that the district court did conclude as a matter of law that general maritime law permits a recovery for wrongful death only on the basis of unseaworthiness, we do not believe that conclusion to be erroneous. Moragne v. States Marine Lines, Inc., 398 U.S. 375, 90 S.Ct. 1772, 26 L.Ed.2d 339 (1970), first established a cause of action under general maritime law for wrongful death due to breach of maritime duties. In that case, plaintiff had made claims under both negligence and unseaworthiness theories, but the trial court dismissed the unseaworthiness claim. Thus, the Supreme Court’s opinion, which mentioned unseaworthiness but never expressly discussed negligence, pertained only to an unseaworthiness claim. Moreover, subsequent Supreme Court cases have indicated that Moragne applied the wrongful death remedy only where death resulted from unseaworthiness. See, e.g., Sea-Land Services, Inc. v. Gaudet, 414 U.S. 573, 574, 94 S.Ct. 806, 809, 39 L.Ed.2d 9 (1974). The question we consider, then, is whether Moragne should be extended to permit recovery under general maritime law for wrongful death caused by negligence. Ivy v. Security Barge Lines, Inc., 606 F.2d 524 (5th Cir. 1979) (en banc), cert. denied, 446 U.S. 956, 100 S.Ct. 2927, 64 L.Ed.2d 815 (1980), considered this exact question, but in a slightly different context. Therein, the Court of Appeals determined the applicability of a general maritime law remedy for negligently induced wrongful death where a cause of action for negligence also exists under the Jones Act, 46 U.S.C. § 688. The court concluded: Moragne did not create or even discuss an action for negligence; it dealt only with death occasioned by unseaworthiness. The suggestion that the Jones Act measure of damages can be supplemented by the ilioragne-cause-of-action-Gaudei-dam-ages rule will not bear analysis; that" }, { "docid": "7834421", "title": "", "text": "majority’ of the states and by this Court in Skidmore,’’ 534 F.2d at 1154, 1976 A.M.C. at 1317, called for extension of the remedy. In Ivy v. Security Barge Lines, Inc., 606 F.2d 524, 1980 A.M.C. 356 (5th Cir. 1979) (en banc) (territorial waters), we gathered en banc to consider the logical next step: whether the survivor of a Jones Act seaman, once having proved negligence, could recover damages for loss of society. Referring to “settled Jones Act jurisprudence” and the “absence of any adequate reason to take a different tack”, 606 F.2d at 525, 1980 A.M.C. at 357, Judge Rubin held that the survivor could not recover for this and other elements of nonpecuniary loss. He concluded: “The Jones Act is a vessel designed for special purposes; it is not certified for Gaudet cargo, and it does not permit the recovery in a wrongful death action of damages for loss of society of a seaman.” 606 F.2d at 529, 1980 A.M.C. at 363. The dissent argued that the majority “[drained] Moragne and Gaudet of their vitality”, 606 F.2d at 529, 1980 A.M.C. at 364, and “[made] a mountain of the Supreme Court’s molehill of silence”, 606 F.2d at 532, 1980 A.M.C. at 369 (Brown, J., dissenting). While Ivy, of course, binds this panel, we point out that its rule that the survivor could not recover non-pecuniary damages by its own terms applies only to Jones Act cases arising in territorial waters. It does not automatically control in an action where death resulted from unseaworthiness on the high seas. An alternate line of cases, which sidesteps Ivy-Christofferson, holds that one may join a Jones Act claim for negligence with a general maritime claim for wrongful death from unseaworthiness. In Landry v. Two R. Drilling Co., 511 F.2d 138, 1975 A.M.C. 2135 (5th Cir. 1975) (Tuttle, J.) (Louisiana bayou), the widow of a seaman brought suit under both the Jones Act and general maritime law for wrongful death. Citing Skidmore, supra, and McDonald v. Federal Barge Lines, Inc., 496 F.2d 1376, 1974 A.M.C. 2325 (5th Cir. 1974), the Court declared “[W]here," } ]

[ { "docid": "22375860", "title": "", "text": "mailing, rather than on the date of its receipt, so that the transfer was made and perfected before the four months period. What constitutes a transfer and when it is complete within the meaning of § 60a of the Bankruptcy Act is necessarily a federal question, since it arises under a federal statute intended to have uniform application throughout the United States. Prudence Corp. v. Geist, 316 U. S. 89, 95, and cases cited; Steele v. Louisville & Nashville R. Co., 323 U. S. 192, 204. The statute provides its own definitions. Section 1 (30) of the Bankruptcy Act declares that “ ‘transfer’ shall include the sale and every other . . . mode ... of disposing of or of parting with property ... or with the possession thereof . . .” And § 60a provides that a “transfer shall be deemed to have been made at the time when it became so far perfected that no bona fide purchaser from the debtor and no creditor could thereafter have acquired any rights in the property so transferred superior to the rights of the transferee therein . . .” In the absence of any controlling federal statute, a creditor or bona fide purchaser could acquire rights in the property transferred by the debtor, only by virtue of a state law. And hence § 60a’s “apparent command is to test the effectiveness of a transfer, as against the trustee, by the standards which applicable state law would enforce against a good faith purchaser.” Corn Exchange Bank v. Klauder, 318 U. S. 434, 436-7. See also Benedict v. Rainer, 268 U. S. 353, 359, and cases cited. Section 60a in this respect, as do numerous other federal statutes, see Davies Warehouse Co. v. Bowles, 321 U. S. 144, 155-156, and note 20, and cases cited, thus adopts state law as the rule of decision. The state standards which control the effectiveness of a transfer likewise determine the precise time when a transfer is deemed to have been made or perfected. As we have seen, § 1 (30) includes in the term “transfer” “every" } ]

[ { "docid": "11094492", "title": "", "text": "prevent collection on the check through garnishment on the bank account or the payor can stop payment on the check. Additionally there may be insufficient funds to cover payment on the check. Fasano, 43 B.R. at 873; 40 U.C.C.Rep. at p. 540. See, also, In re Supermarket Distributors Corp., 25 B.R. 63, 65 (Bkrtcy.D.Mass.1982). Defendant contends Debtor’s interest in property was transferred when Debtor’s check was delivered. Defendant relies on the line of cases represented by In re Sider Ventures & Services Corp., 33 B.R. 708 (Bkrtcy.S.D.N.Y.1983), aff'd, 47 B.R. 406 (S.D.N.Y.1985). Decisions in this line focus on when the transfer is “perfected” as that term is used in 11 U.S.C. § 547(e)(1)(B). The decisions hold the transfer of debtor’s interest in property relates back to delivery if the check is honored within ten days of delivery. The Court, having considered both lines of cases, respectfully declines to follow what is apparently the majority view. Rather, the Court is persuaded the latter line of cases represents the correct view and finds it is in agreement with the decision in Sider as affirmed. Section 547(e) governs the time at which a transfer is deemed to have been made for purposes of § 547(b)(4). Under § 547(e)(2)(A) a transfer is made at the time such transfer takes effect between the transferor and the transferee if such transfer is perfected within ten days after the transfer. If however, perfection occurs more than ten days after the transfer, then the transfer is deemed made when the transfer is perfected pursuant to § 547(e)(2)(B). Transfer is defined as “every mode, direct or indirect, absolute or conditional, voluntary or involuntary, of disposing of or parting with property or with an interest in property,_” § 101(48). A transfer is made at the time it is effective. As an instrument, a check is effective on delivery. § 554.3102, § 554.3104, Code of Iowa (1985); Sider, 33 B.R. at 710. Thus, Debt- or’s interest was effectively transferred when its check was delivered to Ehresman. See, Matter of Advance Glove Manufacturing Co., 25 B.R. 521, 524 (Bkrtcy.E.D.Mich.1982). Although perfection is" }, { "docid": "18489589", "title": "", "text": "on or within the 90-day period prior to the filing of the petition. “What constitutes a ‘transfer’ under § 547(b) and when it is complete ... is necessarily a federal question, since it arises under a federal statute designed to have uniform application....” McKenzie v. Irving Trust Co., 323 U.S. 365, 369-70, 65 S.Ct. 405, 407-08, 89 L.Ed. 305 (1945). The parties agree that any transfer taking place on or after November 20, 1985, falls within the 90-day preference period. I. THE DISTINCTION BETWEEN 547(b) AND 547(c) We previously held in another context that a transfer occurs on the date a check is delivered. Bernstein v. RJL Leasing (In re White River Corp.), 799 F.2d 631, 633 (10th Cir.1986). In re White River applies to section 547(c)(2), the “ordinary course of business” exception to the preference provision. However, because the purpose and function of section 547(b) differ from those of section 547(c), In re White River and the legislative history upon which it relies do not govern here. See, e.g., In re New York City Shoes, Inc., 880 F.2d 679, 681 n. 2 (3d Cir.1989) (because purposes of sections 547(b) and 547(c) are completely different, definition of “transfer” need not be same for both sections); Newton Exploration Co. v. Fredman (In re Nucorp Energy, Inc.), 92 B.R. 416, 417 (9th Cir.BAP 1988); Gold Coast Seed Co. v. Spokane Seed Co. (In re Gold Coast Seed Co.), 30 B.R. 551, 553 (9th Cir.BAP 1983); Bonapfel v. LaSalle-Deitch Co. (In re All American of Ashburn, Inc.), 95 B.R. 251, 252-53 (Bankr.N.D.Ga.1989); AMWC, Inc. v. General Elec. (In re AMWC, Inc.), 94 B.R. 428, 432 (Bankr.N.D.Tex.1988); Laird v. Bartolameolli (In re Newman Cos.), 83 B.R. 571, 572 (Bankr.E.D.Wis.1988); Chaitman v. Paisano Automotive Liquids, Inc. (In re Almarc Mfg., Inc.), 62 B.R. 684, 687 (Bankr.N.D.Ill.1986); Lancaster v. Morris-town Block & Concrete Products (In re Compton), 55 B.R. 180, 182-83 (Bankr.E.D. Tenn.1985). See also 4 Collier on Bankruptcy ¶ 547.16 at 547-71 n. 27 (15th ed. 1990) (check not necessarily transferred at same time under subsections (b) and (e)(1) of section 547). The most important" }, { "docid": "18754020", "title": "", "text": "such time; (B) at the time such transfer is perfected, if such transfer is perfected after such 10 days; or (C) immediately before the date of the filing of the petition, if such transfer is not perfected at the later of— (i) the commencement of the case; or (ii) 10 days after such transfer takes effect between the transferor and the transferee. (3) For the purposes of this section, a transfer is not made until the debtor has acquired rights in the property transferred. This section, as Collier indicates, provides that a transfer “shall be regarded as made only when perfected as against other parties— ...” 4 COLLIER, supra, id. Further, it is said that “[cjertain types of transfers” such as “a cash payment by a debtor to his creditor, ... are deemed to have been made at the time when they were [sic] actually transpired, ...” Id. One area of dispute in many prior cases has been whether, for purposes of § 547(b)(4), it is determined that a payment by check is deemed to be “made” when the check is delivered or whether the check is honored. This Court, with the majority, has held that a transfer should not be deemed made until the debtor’s payment check is honored. See In re American Int’l Airways, Inc., Begier v. Krain Outdoor Advertising, Inc., 68 B.R. 326, 335 (Bankr.E.D.Pa., 1986); and In re Ardmore Sales Co., Inc., 22 B.R. 911, 913 (Bankr.E.D.Pa.1982) (per GOLDHABER, CH. J.). See also, e.g., In re Georgia Steel, Inc., 38 B.R. 829, 832-33 (Bankr.M.D.Ga.1984); and In re Skinner Lumber Co., 27 B.R. 669 (Bankr.D.S.C.1982). But see In re Kenitra, Inc., 797 F.2d 790 (9th Cir.1986) (date of transfer is date that check is delivered). See Comment, Timing of Payments by Check Under § 5^7 of the Bankruptcy Code, 7 CARDOZO L.REV. 887, 895-903, 910 (1986). The foregoing authorities establish, relevant to the instant case, that a transfer, for purposes of § 547(b), can never be said to occur earlier than the physical transfer of funds by the debtor to the creditor, and may in fact be" }, { "docid": "20915320", "title": "", "text": "a contract for the sale of real property, is perfected when a bona fide purchaser of such property from the debtor against whom applicable law permits such transfer to be perfected cannot acquire an interest that is superior to the interest of the transferee; and (B)a transfer of a fixture or property other than real property is perfected when a creditor on a simple contract cannot acquire a judicial lien that is superior to the interest of the transferee. (2) For purposes of this section, except as provided in paragraph (3) of this subsection, a transfer is made— (A) at the time such transfer takes effect between the transferor and the transferee, if such transfer is perfected at, or within 10 days after, such time; (B) at the time such transfer is perfected, if such transfer is perfected after such 10 days; or (C) immediately before the date of the filing of the petition, if such transfer is not perfected at the later of— (i) the commencement of the case; and (sic) (ii) 10 days after such transfer takes effect between the transferor and the transferee. (3) For the purposes of this section, a transfer is not made until the debtor has acquired rights in the property transferred. The trustee argues that the transfer to the defendant in this case was not perfected until the check was honored by the bank. In Re Sider Ventures and Services Corp., 33 B.R. 708 (Bkrtcy.S.D.N.Y.1983). Since the check was not paid within 10 days of its delivery to the defendant, the trustee asserts that, pursuant to § 547(e)(2)(B), the transfer is deemed to have occurred upon payment by the bank. Finally, since payment occurred within the 90-day period, the transfer was preferential and should be avoided under § 547(b). The problem with this reasoning, however, is that it assumes that § 547(e) is applicable where a creditor is paid by check. This court does not agree with that assumption. A careful reading of § 547(e) reveals that this section is only concerned with the perfection of security interests in various kinds of property." }, { "docid": "1155701", "title": "", "text": "Preferential Payments By Check: At What Point Is Payment Made?, 16 UCC L.J. 46 (see especially p. 57). Under the Bankruptcy Amendments and Federal Judgeship Act of 1984, the forty-five day payment limitation has been omitted from § 547, and, therefore, under the facts of the instant case, if they occurred after October 8, 1984, there would be no preference as a matter of law. In the case of In re Super Market Distributors Corp., supra at p. 65, that Court discussed the Ninth Circuit case of Shamrock Gulf Company v. Richcraft, Inc., supra: ... In that case [Shamrock Gulf Company v. Richcraft, Inc., supra], the court did not analyze § 547(e)(1)(B), but rather relied by analogy on the legislative history relating to when a preference cannot be avoided as a contemporaneous payment. (P)ayment is considered to be made when the check is delivered for the purposes of Section 547(c)(1) and (2). Report of Senate Judiciary Committee, 124 Cong.Rec. H11.097 (9/28/78); S17,-414 (10/6/78) The purpose intended is better understood and is consistent with § 547(e)(1)(B) when further legislative history makes clear that the reference is intended to make payment by check capable of being a “contemporaneous exchange”. Normally, a check is a credit transaction. However, for the purposes of (§ 547(c)(1)), a transfer involving a check is considered to be “intended to be contemporaneous_” House Report No. 95-595, 95th Cong., 1st Sess. (1977) 373-374, U.S.Code Cong. & Admin.News 1978, pp. 5787, 6329. While a check may be considered the equivalent of cash for § 547(c)(1), with all due deference to the Shamrock case, the analogy is not required for § 547(c)(2) when the statute provides its own explicit definition of transfer as the date of perfection. The transfer, which is the starting point for measuring time under § 547(c)(2), would not be complete by statutory definition until the check was cleared since until that time, the bank was an attachable debtor of the debtor and no transfer of funds had occurred. By standard Uniform Commercial Code law and practice, a check is not a transfer of specific funds but merely" }, { "docid": "4769733", "title": "", "text": "of the assignment. However under New York law, rents are considered interests in real property and as such a security interest in rents is perfected upon recordation. See, N.Y.R.P.L. §§ 291, 294-a (McKinney 1989 & 1991 Supp.); 74 N.Y.Jur.2d, Landlord and Tenant, §§ 334, 335 (1988 & 1991 Supp.). Sections 547(e)(1) and (e)(2) of the Bankruptcy Code are interrelated. Section 547(e)(2) provides that a transfer is made at the time it takes effect between the parties if it is perfected within ten days, or at the time of perfection ; while § 547(e)(1) defines what is considered perfection. Pursuant to § 547(e)(1) a “transfer of real property other than fixtures ... is perfected when a bona fide purchaser ... cannot acquire an interest that is superior to the interests of the transferee.” 11 U.S.C. § 547(e)(1)(A). In the absence of a Bankruptcy Code test to determine the rights of a bona fide purchaser, state law controls. See Butner v. United States, 440 U.S. 48, 99 S.Ct. 914, 59 L.Ed.2d 136 (1979); Barnhill v. Johnson, — U.S. -, 112 S.Ct. 1386, 1389, 118 L.Ed.2d 39 (1992). In New York recordation protects the assignee under an assignment of rents against an intervening bona fide purchaser. N.Y.R.P.L. § 294-a. Since TNE recorded its assignment of rents on September 24, 1985, the transfer of the security interest is considered to have occurred on that date, at the latest. 11 U.S.C. § 547(e)(2)(B). As TNE’s security interest in the rents was perfected some six years prior to the filing of the petition in bankruptcy it cannot now be avoided pursuant to § 547. The debtor cites cases that characterize the appointment of a receiver as perfection of the security interest in rents. Those cases miss the point and their position has been rejected in numerous decisions. See, In re Vienna Park Properties, 136 B.R. 43 (S.D.N.Y.1992); In re Northport Marina Associates, 136 B.R. 911 (Bankr.E.D.N.Y.1992); In re White Plains Development Corp., 136 B.R. 93 (Bankr.S.D.N.Y.1992); In re White Plains Development Corp., 137 B.R. 139 (Bankr.S.D.N.Y.1992); In re Rancourt, 123 B.R. 143 (Bankr.D.N.H.1991); In re Park" }, { "docid": "6553818", "title": "", "text": "that statutes of limitations were intended to provide.”) Because we find that the bankruptcy court did not abuse its discretion in holding that the proposed claims would not relate back, we affirm the judgment that the two year statute of limitations barred the trustee from asserting those claims. II. AGCO’s APPEAL AGCO also appeals from the judgment, citing three alleged errors. A. Timing of Payments by Check Under Section 547 In deciding whether certain of Bellanca’s transfers to AGCO and Aviation were intended to be contemporaneous exchanges for new value or were offset by subsequent advances of new value, the bankruptcy court held that check transfers took effect on the date the checks were honored by the drawee bank. AGCO disputes this holding, contending that the majority and better-reasoned rule is that under sections 547(c)(1) and (4) a transfer takes effect upon delivery of the check. See generally Ellis, Preferential Payments by Check: At What Point is Payment Made?, 16 U.C.C. L.J. 46 (1983); Note, Timing of Payments by Check Under Section 547 of the Bankruptcy Code, 7 Cardozo L.Rev. 887 (1986); Note, “Transfers by Check”: The 90-Day Rule of Preference Recovery Under Section 547(b) of the Bankruptcy Code, 1987 Duke L.J. 712. AGCO asserts that if the delivery rule were applied, “several significant transfers” from Bellanca to AGCO would not be deemed preferential because they were part of contemporaneous exchanges or were offset by subsequent advances of new value. AGCO fails to identify these “significant transfers,” however, and does not indicate what, if any, effect on the judgment a reversal by this court would have. The district court declined to resolve this issue, stating that AGCO and Aviation did not dispute that “a reversal on this legal point would have no effect on the three transfers apparently at issue — checks for $600,000, $100,000 and $150,000.” Slip op. at 23. Furthermore, the district court stated that the parties conceded the issue has little importance here, but they argued that it should be decided because the issue is important to the commercial community. This court does not render advisory opinions." }, { "docid": "18588435", "title": "", "text": "“holding that the transfer occurs on the date the check is delivered allows the debt- or, as opposed to the bank, to determine the precise date of transfer.” 799 F.2d at 634. Ill For reasons adequately stated in O’Neill and White River we conclude that, for the purpose of section 547(c)(2)(B) of the Bankruptcy Code of 1978, a transfer of funds by check is effective on the date that the creditor receives the check as long as the debtor’s bank honors it within the 30-day requirement of U.C.C. § 3-503(2). Accordingly, Smith has established that the transfer occurred in the ordinary course of business and the trustee cannot recover the $23,874.16 as an avoidable preference. REVERSED. .The 45-day requirement of section 547(c)(2)(B) was eliminated in the 1984 amendments to the Bankruptcy Code. However, the amendment applies only to cases filed \"90 days after July 10, 1984,” and is therefore not relevant to this case. In all other respects, section 547(c)(2) is identical in the 1978 and 1984 versions of the Bankruptcy Code. The 45-day requirement was eliminated because it unduly burdened creditors receiving payments under billing cycles greater than 45 days. S.Rep. No. 65, 98th Cong., 1st Sess. 60. See Broome, Payments on Long-Term Debt as Voidable Preferences: The Impact of the 1984 Bankruptcy Amendments, 1987 Duke L.J. 78, 97-112. . Viewing the evidence in the light most favorable to Continental, we have adopted August 26 as the date the debt was incurred. . Bankruptcy courts in North Carolina differ about when a transfer of funds by check occurs within the meaning of section 547(c)(2)(B). In conflict with the case before us is Southern of Rocky Mount, Inc. v. Evans, No. S-83-00294-8, Adv. No. S-85-0071-AP (Bankr.E.D.N.C., Jan. 24, 1986) (unpublished), which holds that the transfer occurs when the creditor receives the check. The division in this circuit reflects the division among bankruptcy courts nationwide. Cases holding that the transfer occurs upon receipt of the check include In Re American International Airways, Inc., 68 B.R. 326 (Bankr.E.D.Pa.1986); In Re Fasano/Harriss Pie Co., 43 B.R. 871 (Bankr.W.D.Mich.1984); In Re Hoover, 32 B.R." }, { "docid": "20915323", "title": "", "text": "547(e)(2). That Congress explicitly enacted a 10-day limitation for the perfection of security interests in order to preserve “relation back”, and yet accepted a 30-day period as appropriate to the negotiation of checks indicates an intent to differentiate the two types of “transfers” under the Bankruptcy Reform Act. Id., at 362. Ordinarily, and in this case, payment by check is not a transfer of a security interest in the account upon which the check is drawn. Accordingly, this transaction is not governed by § 547(e). See O’Neill v. Nestie Libbys P.R., Inc., 729 F.2d 35 (1st Cir.1984). This reasoning is supported by Shamrock Golf Co. v. Richcraft, Inc., 680 F.2d 645 (9th Cir.1982). In Shamrock, the Ninth Circuit held that, under the 1898 Bankruptcy Act, for purposes of determining if preferential transfers occurred within the then-applicable 4-month period, payment by check was deemed to be a transfer at the time the check was received by the creditor, rather than upon its subsequent honor by the drawee-bank. Had the court been concerned with the application of notions of “perfection”, the Shamrock opinion would have discussed Section 60a of the Act which is very similar in language and effect to § 547(e) of the Code. Instead, Shamrock viewed the issue as presenting only a policy choice to be made regarding the time of transfer when payment is made by check. The court in Shamrock chose to analogize the matter to the “contemporaneous exchange” exception dealt with by § 547(c)(1) in making its decision. In so doing, the court relied upon the legislative history of § 547(c) and concluded that payment by check is a transfer when the check is received, so long as it is presented within a reasonable time and not dishonored. Id., at 646. Presumably, the term “reasonable time” means “30 days”. See U.C.C. § 3-503(2)(a) and Notes of Committee on the Judiciary, Senate Report No. 95-989, U.S. Code Cong. & Admin.News 1978, p. 5787. The Ninth Circuit’s decision to make this analogy has been questioned, In Re Super-Market Distributors Corp., 25 B.R. 63 (Bkrtcy.D.Mass.1982); In Re Georgia Steel, Inc.," }, { "docid": "14391433", "title": "", "text": "Code is necessarily a federal question, since it arises under a federal statute intended to have uniform application throughout the United States.” Id. at 238. The court then held that so long as a pre-petition check is presented within a reasonable time and is not dishonored, post-petition payment does not constitute a post-petition transfer, voidable under § 549, because the transfer was complete upon delivery of the check. In the interests of uniformity and consistency, the court applied interpretations of when a transfer was complete which evolved under § 547, governing avoidability of pre-petition transfers. Although application of the Etoiles decision to the instant case would relieve Van Dyk of the burden of disgorging funds received in November 1984 for gasoline delivered to By-Rite, the reasoning of Etoiles is not persuasive. McKenzie v. Irving Trust Co., 323 U.S. 365, 65 S.Ct. 405, 89 L.Ed. 305 (1945) does not preclude reference to state law to resolve the issue of when a transfer is complete for § 549 pur poses. Unlike the instant case, McKenzie interpreted a federal statute which specifically set forth the criteria for determining when a transfer was deemed to be complete. Nonetheless, the court applied state law. The federal statute interpreted therein provided that a “transfer shall be deemed to have been made at the time when it became so far perfected that no bona fide purchaser from the debtor and no creditor could thereafter have acquired any rights in the property so transferred superior to the rights of the transferee therein ...” McKenzie v. Irving Trust Co., 323 U.S. at 370, 65 S.Ct. at 408 (citing the former 11 U.S.C. § 60(a)). In the absence of controlling federal statute, the court looked to state law to determine when a creditor or bona fide purchaser could acquire rights in the property transferred by the debtor. The absence of controlling federal statute as to when a transfer became sufficiently perfected led the court to conclude that federal law adopted the state standards “which control the effectiveness of a transfer” and “likewise determine the precise time when a transfer is" }, { "docid": "20915319", "title": "", "text": "was filed on September 24, 1981. Based on these facts and the court’s pri- or decision in In Re Walker Industrial Auctioneers, Inc., 38 B.R. 8 (Bkrtcy.D.Or.1983), this court must decide the following issue: When payment of an antecedent debt is made by a debtor to a creditor by a check received by the creditor more than 90 days prior to the filing of the debtor’s petition in bankruptcy, and the check is presented to, and honored by, the drawee-bank more than 10 days after it was received by the creditor, but within 30 days of its receipt, yet within the 90-day preference period, is the transfer, for purposes of 11 U.S.C. § 547(b), deemed to have occurred when the check is received by the creditor or when it is honored by the bank? The trustee argues that the disposition of this issue is governed by 11 U.S.C. § 547(e), which provides: (1)For purposes of this section— (A)a transfer of real property other than fixtures, but including the interest of a seller or purchaser under a contract for the sale of real property, is perfected when a bona fide purchaser of such property from the debtor against whom applicable law permits such transfer to be perfected cannot acquire an interest that is superior to the interest of the transferee; and (B)a transfer of a fixture or property other than real property is perfected when a creditor on a simple contract cannot acquire a judicial lien that is superior to the interest of the transferee. (2) For purposes of this section, except as provided in paragraph (3) of this subsection, a transfer is made— (A) at the time such transfer takes effect between the transferor and the transferee, if such transfer is perfected at, or within 10 days after, such time; (B) at the time such transfer is perfected, if such transfer is perfected after such 10 days; or (C) immediately before the date of the filing of the petition, if such transfer is not perfected at the later of— (i) the commencement of the case; and (sic) (ii) 10 days" }, { "docid": "18754021", "title": "", "text": "be “made” when the check is delivered or whether the check is honored. This Court, with the majority, has held that a transfer should not be deemed made until the debtor’s payment check is honored. See In re American Int’l Airways, Inc., Begier v. Krain Outdoor Advertising, Inc., 68 B.R. 326, 335 (Bankr.E.D.Pa., 1986); and In re Ardmore Sales Co., Inc., 22 B.R. 911, 913 (Bankr.E.D.Pa.1982) (per GOLDHABER, CH. J.). See also, e.g., In re Georgia Steel, Inc., 38 B.R. 829, 832-33 (Bankr.M.D.Ga.1984); and In re Skinner Lumber Co., 27 B.R. 669 (Bankr.D.S.C.1982). But see In re Kenitra, Inc., 797 F.2d 790 (9th Cir.1986) (date of transfer is date that check is delivered). See Comment, Timing of Payments by Check Under § 5^7 of the Bankruptcy Code, 7 CARDOZO L.REV. 887, 895-903, 910 (1986). The foregoing authorities establish, relevant to the instant case, that a transfer, for purposes of § 547(b), can never be said to occur earlier than the physical transfer of funds by the debtor to the creditor, and may in fact be held to occur considerably thereafter. Hence, in light of consideration of cases interpreting § 547(e), we do not see how it could be held that the transfer of funds from the Debtor to the Defendant, for purposes of § 547(b), could be said to have occurred on December 18, 1985. As we indicated at page 881 supra, it is not logical to consider a transfer of monies due to be made until funds actually pass hands, irrespective of the date of a judgment or an order requiring the funds to be paid over as of a certain subsequent date. Here, as we indicated below, Judge Hazel’s Orders of December 18, 1985, and January 21, 1986, stated that the funds were “to be transferred” by January 25, 1986, and January 28, 1986, respectively, both of which are dates within ninety (90) days of the Debtor’s bankruptcy filing on April 18, 1986. In any event, we conclude that the transfer, for purposes of § 547(b)(4), was “made” on February 27, 1986, the date of the actual remittance" }, { "docid": "14391434", "title": "", "text": "federal statute which specifically set forth the criteria for determining when a transfer was deemed to be complete. Nonetheless, the court applied state law. The federal statute interpreted therein provided that a “transfer shall be deemed to have been made at the time when it became so far perfected that no bona fide purchaser from the debtor and no creditor could thereafter have acquired any rights in the property so transferred superior to the rights of the transferee therein ...” McKenzie v. Irving Trust Co., 323 U.S. at 370, 65 S.Ct. at 408 (citing the former 11 U.S.C. § 60(a)). In the absence of controlling federal statute, the court looked to state law to determine when a creditor or bona fide purchaser could acquire rights in the property transferred by the debtor. The absence of controlling federal statute as to when a transfer became sufficiently perfected led the court to conclude that federal law adopted the state standards “which control the effectiveness of a transfer” and “likewise determine the precise time when a transfer is deemed to have been made or perfected.” Id. This was true despite the court’s apparent recognition of both the statutory intent to have uniform application throughout the country and the potential for state law to vary on the applicable details. Moreover, applying federal law to the instant case requires a result contrary to Etoiles. The issue of whether a transfer is complete upon delivery or payment of a cheek for § 549 purposes necessarily involves the issue of whether funds in the debtor’s checking account upon filing a bankruptcy petition constitute property of the estate. For this reason alone, § 547 analysis as to when a transfer is complete is inadequate for § 549 purposes. 11 U.S. C. § 541 defines property of the estate in relevant part as follows: The commencement of a case under ... this title creates an estate. Such estate is comprised of all the following property, wherever located and by whomever held: (1) ... all legal or equitable interests of the debtor in property as of the commencement of the" }, { "docid": "18489596", "title": "", "text": "preference provision. The legislative history states: This section [547] is a substantial modification of present law. It modernizes the preference provisions and brings them more into conformity with commercial practice and the Uniform Commercial Code. Id. at 372, U.S.Code Cong. & Admin.News at 6328. Furthermore, though the question of when a transfer is complete is a federal question, when there is no controlling federal statute “[t]he state standards which control the effectiveness of a transfer likewise determine the precise time when a transfer is deemed to have been made or perfected.” McKenzie, 323 U.S. at 369-70, 65 S.Ct. at 407-08. While the legislative history indicates that, for purposes of the § 547(c) defenses, Congress intended a transfer to be complete when a check is delivered, see In re White River, 799 F.2d at 633; Official Unsecured Creditors’ Comm. of Belknap, Inc. (In re Belknap, Inc.), 909 F.2d 879, 881-82 (6th Cir.1990), Congress has remained silent as to when a transfer occurs for § 547(b). Thus, we refer to the U.C.C., which has been virtually unanimously adopted by the states, when formulating our answer. The U.C.C. article governing commercial paper states in pertinent part, “A check or other draft does not of itself operate as an assignment of any funds in the hands of the drawee available for its payment, and the drawee is not liable on the instrument until he accepts it.” U.C.C. § 3-409(1), 2 U.L.A. 176 (1968). Under this provision, no transfer of funds takes place when a check is given. Accord Klein v. Tabatchnick, 610 F.2d 1043, 1049 (2d Cir.1979) (check is merely request to drawee bank to pay funds to payee, not an assignment of funds); M. Bienenstock, Bankruptcy Reorganization 389 (1987) (uncertified check is not transfer of funds). As the Eleventh Circuit pointed out, until a check is actually accepted and paid by the drawee bank, another creditor could, for example, prevent the transfer by garnishing the bank account. Nicholson v. First Inv. Co., 705 F.2d 410, 413 (11th Cir.1983). Likewise, a drawer could stop payment or have insufficient funds. The giving of a check" }, { "docid": "18718178", "title": "", "text": "of a check and the check is not honored [i.e., perfected] within ten days of its execution, then the transfer is made when the check is honored by the drawee bank). Consequently, establishing the date on which a transfer was made requires a preliminary determination of when the transfer was perfected. In re Smith, 10 B.R. 883, 885 (M.D.Ga.1981). Section 547(e)(1)(A) governs perfection of a transfer of an interest in real property: [A] transfer of real property ... including the interest of a seller or purchaser under a contract for the sale of real property, is perfected when a bona fide purchaser of such property from the debtor against whom applicable law permits such transfer to be perfected cannot acquire an interest that is superior to the interest of the transferee.... Although the interest in the Guli-no house was effectively conveyed as be tween the debtors and the transferees, a “transfer” for the purpose of section 547 was not established until the interest had been perfected. Perfection is judged by whether a subsequent bona fide purchaser from the debtors could have taken priority over the transferees’ title. Determining what is necessary to perfect a transfer of an interest in real property depends entirely on state law. 4 Collier on Bankruptcy § 547.48, at 547-150 (15th ed. 1985); see Harbor National Bank of Boston v. Sid Kumins, Inc., 696 F.2d 9, 11-12 (1st Cir.1982). The trustee argues that the transfer was not effective in this case until the deed was recorded seventeen days before the petition was filed. Until that time, the trustee contends, a subsequent bona fide purchaser of the property from the debtors could have recorded his deed first and obtained superior title to the transferees. Thus, the trustee concludes, the transfer constitutes an avoidable preference. See Bridgewater v. Schaefer, 164 F.2d 447, 448-49 (5th Cir.1947) (under predecessor statute to section 547, conveyance of real property by debtor to transferee several years earlier was still an avoidable preference where the transfer was not perfected by recordation of the deed until after the adjudication of bankruptcy). Under California law, a" }, { "docid": "1155699", "title": "", "text": "1981, forty-seven days after the debt was incurred, when the Debtor made funds available and the drawee bank was able to honor the check. Because the transfer did not occur until forty-seven days after the debt was incurred, the Defendant is not entitled to the exception provided in § 547(c)(2), and, accordingly, Defendant must return to the Trustee the $8,150 preferential payment that it received from QHL. 11 U.S.C. § 547(e)(1) provides that: For the purposes of this section — ... (B) a transfer of a fixture or property other than real property is perfected when a creditor on a simple contract cannot acquire a judicial lien that is superior to the interest of the transferee. Since the funds in the drawee bank could have been garnished by a creditor on a simple contract prior to the honoring of the check by the bank on March 20, 1981, the transfer was not complete for preference purposes until that date. Fitzpatrick v. Philco Finance Corp., 491 F.2d 1288, 1293 (7th Cir.1974); In re Duffy, 3 B.R. 263, 265 (Bankr.S.D.N.Y.1980); Klein v. Tabatchnick, 610 F.2d 1043, 1049 (2nd Cir.1979); In re Super Market Distributors Corp., 25 B.R. 63, 64-65 (Bankr.D.Mass.1982). Under Texas law, a check itself does not vest in the payee any title to or interest in the funds held by the drawee bank. Tex. Bus. & Comm.Code Ann. (“UCC”), Art. 3.409 (Vernon Supp.1984-85). For additional cases holding that, for purposes of § 547(c)(2), payment by check does not occur until the check is honored by the drawee bank, see In the Matter of Advanced Glove Mfg. Co., 25 B.R. 521, 524-525 (Bankr.E.D.Mich.1982); In re Naudin, Inc., 32 B.R. 875, 878 (Bankr.E.D.Penn.1983); In re Morton Shoe Companies, Inc., 36 B.R. 14 (Bankr.D.Mass.1983). It is noted that the Defendant’s position is supported by a decision of the Ninth Circuit which held that the date a check was delivered was the date on which the payment was complete. Shamrock Gulf Company v. Richcraft, Inc., 680 F.2d 645 (9th Cir.1982). See also O’Neill v. Nestle Libbys P.R., Inc., 729 F.2d 35 (1st Cir.1984); Ellis," }, { "docid": "17676198", "title": "", "text": "that Midwest remedied the defects and requested payment, and that Braniff paid Midwest in cash. The finding that the payment occurred according to regular business terms is not clearly erroneous. 2. Time of Transfer The principal question of law raised in this appeal concerns the time a transfer occurs for purposes of § 547(c)(2) when payment is made by check. Section 547(c)(2) requires that the transfer occur within 45 days of the date on which the debt was incurred. In this case, the transfer to Midwest had to occur no later than March 11, 1982, to fall within the 45-day limit. The district court held that the payment occurred at the time the check was delivered, and further found that such delivery occurred on March 11, 1982, the date of the check. Braniff urges a strict construction of the definition of transfer contained in subsection 547(e)(1)(B): “a transfer of fixture or property other than real property is perfected when a creditor on a simple contract cannot acquire a judicial lien that is superi- or to the interest of the transferee.” The prefatory language in subsection (e) states that the definition is “for the purposes of this section.” Therefore, Braniff argues, this definition of “transfer” is equally applicable to subsection (c)(2). Thus, a transfer occurs only when the creditor’s rights in the debtor’s funds are greater than the rights of a judicial lienholder, and that is when the check is actually paid by the drawee bank. Courts have split in deciding when a check transfer occurs. A number of bankruptcy courts have adopted the position urged by Braniff. See e.g., In re Propst, 81 B.R. 406 (Bkrtcy.W.D.Va.1988); In re Quality Holstein Leasing, Inc., 46 B.R. 70 (Bkrtcy.N.D.Tex.1985); In re Naudain, Inc., 32 B.R. 875, 878 (Bkrtcy.E.D.Pa.1983). We are persuaded, however, that the correct analysis is that developed in O’Neill v. Nestle Libbys P.R. Inc., 729 F.2d 35 (1st Cir.1984) and In re White River Corp., 799 F.2d 631 (10th Cir.1986). Thesé circuits hold that transfer occurs upon the delivery of a check. This construction is consistent with the legislative history of" }, { "docid": "5134340", "title": "", "text": "and instructed payment therefrom to defendant. Because plaintiff Robert Lili had control over these monies, the payment constitutes property in which plaintiffs had an interest. This payment and accompanying depletion of funds available for distribution to plaintiffs’ creditors represents transfer of an interest of the plaintiffs in property. The court would note, at this juncture, that it is concerned about plaintiffs’ transfer from the partnership account as Lili Farms also filed a chapter 11 petition. However, the court need not reach any issues regarding depletion of the Lili Farms estate as, for the reasons stated above, plaintiffs’ complaint should be dismissed. The next issue concerns the date of the payment. Defendant admitted that he received the check, dated December 30, 1986, in mid January, 1987, and deposited same at his bank on or about January 20, 1987. Memo Contra, Exhibit 2; Defendant’s Exhibit F at 7. In fact, the cancelled check appears to have been negotiated on January 21, 1987. Plaintiffs' Exhibit 4; Defendant’s Exhibit D. A check represents an “order to pay on demand.” Matter of Foreman Industries, Inc., 59 B.R. 145, 148 (Bkrtcy.S.D. Ohio 1986) (citations omitted). For this reason, a transfer for purposes of § 547(b) does not occur until a check is honored by the drawee bank. Id. See also In re Nucorp. Energy, Inc., 92 B.R. 416, 418, 18 B.C.D. 550, 19 C.B.C.2d 851 (9th Cir.B.A.P. 1988) (transfer pursuant to § 547(b)(4)(A) occurs on date when drawee bank honors check, although check was mailed 90 days pre-petition); In re Global Distribution Network, Inc., 103 B.R. 949 (Bkrtcy.N.D. Ill.1989) (transfer occurs when bank honors check rather than upon issuance of check by Debtor); Cimmaron Oil Company v. Schlumberger Well Services, Inc., 88 B.R. 103 (N.D.Texas 1987) (this opinion holds that a payment made by check does not occur until that check is actually presented to and honored by the drawee bank); Matter of All American of Ashburn, Inc., 95 B.R. 251, 18 B.C.D. 1262, 20 C.B.C. 772 (Bkrtcy.N.D.Ga.1989) (for purpose of determining whether a transfer occurred within the preference period, the date of the transfer is" }, { "docid": "18718177", "title": "", "text": "of the rec-ordation of the deed within 90 days of the petition and after a lapse of sixteen months since the sale had been concluded and the transferees had taken possession. The question is whether the transfer occurred within that crucial 90 day period. Under section 547(e)(2), a transfer is deemed made— (A) at the time such transfer takes effect between the transferor and the transferee, if such transfer is perfected at, or within 10 days after, such time; [or] (B) at the time such transfer is perfected, if such transfer is perfected after such 10 days.... Thus, if a transfer is perfected within ten days, the date of the transfer relates back to the time the transfer takes effect between the parties to it. If the transfer is not perfected within ten days, the date of perfection is the date of the transfer. In re Martella, 22 B.R. 649, 651 (Bankr.D.Colo.1982); see In re Wadsworth Building Components, Inc., 711 F.2d 122, 123 (9th Cir.1983) (under section 547(e)(2)(A), if a transfer is in the form of a check and the check is not honored [i.e., perfected] within ten days of its execution, then the transfer is made when the check is honored by the drawee bank). Consequently, establishing the date on which a transfer was made requires a preliminary determination of when the transfer was perfected. In re Smith, 10 B.R. 883, 885 (M.D.Ga.1981). Section 547(e)(1)(A) governs perfection of a transfer of an interest in real property: [A] transfer of real property ... including the interest of a seller or purchaser under a contract for the sale of real property, is perfected when a bona fide purchaser of such property from the debtor against whom applicable law permits such transfer to be perfected cannot acquire an interest that is superior to the interest of the transferee.... Although the interest in the Guli-no house was effectively conveyed as be tween the debtors and the transferees, a “transfer” for the purpose of section 547 was not established until the interest had been perfected. Perfection is judged by whether a subsequent bona fide" }, { "docid": "13794823", "title": "", "text": "Toy Co., 31 B.R. at 514; Quinn v. TTI Distribution Corp. (In re Moran Air Cargo, Inc.), 30 B.R. at 408; Artesani v. Travco Plastics Co. (In re Super Market Distributors Corp.), 25 B.R. 63, 64-65 (Bkrtcy.D.Mass.1982); Itule v. Luhr Jensen & Sons, Inc. (In re Sportsco, Inc.), 12 B.R. 34, 35-36 (Bkrtcy.D.Ariz.1981); In the Matter of Duffy, 3 B.R. 263, 265 (Bkrtcy.S.D.N.Y.1980). At least one court has nevertheless recognized that a transfer by check occurs for the purposes of § 547(b)(4) when the transfer takes effect between the parties if the check is honored by the bank within ten days of this date. Eisenberg v. JL International, Ltd. (In re Sider Ventures & Services Corp.), 33 B.R. 708, 710-712 (Bkrtcy.S.D.N.Y.1983). Because this holding comports with the express language of § 547(e), this court is persuaded that it represents the proper interpretation of when a transfer by check occurs under § 547(b)(4). This conclusion does not end the inquiry in this proceeding, however, since several courts have adopted a third approach in determining when a transfer by check occurs under § 547(c)(4). See Gold Coast Seed Co. v. Spokane Seed Co., 30 B.R. 551, 553 (Bkrtcy. 9th Cir.1983); In re Hoover, 32 B.R. 842 Bankr.L.Rep. (CCH) ¶ 63,354 at 83,075 (Bkrtcy.W.D.Okl.1983); Rovzar v. Prime Leather Finishes Co. (In re Saco Local Development Corp.), 30 B.R. 859, 862 n. 5 (Bkrtcy.D.Me.1983). See also Ellis, Preferential Payments by Check: At What Point Is Payment Made?, 16 U.C.C.L.J. 46 (1983). These courts conclude that the legislative history of § 547 establishes that a check is considered transferred when delivered for the purposes of the § 547(c) exception. The cited legislative history includes the following comment made by both Representative Don Edwards and Senator Dennis DeConcini in presenting the final drafts of the Bankruptcy Code to Congress: “Contrary to language contained in the House report, payment of a debt by means of a check is equivalent to a cash payment, unless the check is dishonored. Payment is considered to be made when the check is delivered for purposes of sections 547(c)(1) and (2).” 124" } ]

[ { "docid": "22692579", "title": "", "text": "as it may become necessary by reason of changes in the laws of the foreign countries above mentioned, indicate by proclamation. the ports to which, such suspension shall apply, and the rate or rates of tonnage duty', if any to be collected under such suspension.” 23 Stat. 5.7. In execution of that act Presidents Arthur and Cleveland issued proclamations suspending the collection of duties' on goods arriving from certain designated ports. 23 Stat.'841, 842, 844. - It would seem to be unnecessary to make further reference to acts of Congress to show 'that the authority conferred upon .the President by the third section of the act of October 1, 1890, is not an entirely new feature in the legislation' of Congress, but has the sanction of many precedents in legislation. While some of these precedents are stronger than others, in their application to the case, before us, they all show that, in the judgment of the legislative branch of the government, it is often desirable, if not essential for the protection of.the interests of our people, against the unfriendly or discriminating regulations established by foreign governments, in the interests of their people, to invest the President with large discretion in matters arising out of the execution of statutes relating to trade and commerce with other nations. If the decision in the case of The Brig Aurora had never been rendered, the practical construction of the Constitution, as given by so many acts of Congress, and embracing almost the entire period of our .national existence, should: not be overruled, unless upon a conviction that such legislation was clearly incompatible with the supreme law of the land. Stuart v. Laird, 1 Cranch, 299, 309; Martin v. Hunter, 1 Wheat. 304, 351; Cooley v. Port Wardens, 32 How. 299, 315; Lithographic Co. v. Sarony, 111 U. S. 53, 57; The Laura, 114 U. S. 411, 416. The authority given to-the President by the act of June 4, 1794, to lay an embargo on all ships and vessels in the ports of the United States, “ whenever, in his opinion, the public safety shall'" } ]

[ { "docid": "22930486", "title": "", "text": "the cases containing the goods, as in Badger v. Cusimano, 130 U. S. 39. Those were instances of errors outside of the valuation itself and outside of the appraisement prescribed by the statute. Nor is there anything in the objection that section 2930 of the Revised Statutes is unconstitutional in making the decision of the appraisers final, and that the plaintiffs had a right to have the question of the dutiable value of the goods passed upon by a jury. As said before, the government has the right to prescribe the conditions attending the importation of goods, upon which it will permit the collector to be sued. One of those Conditions is that the appraisal, shall be regarded as final; and it has been held by this court, in Arnson v. Murphy, 109 U. S. 238, that the right to bring such a suit is exclusively statutory, and is substituted for any and every common law right. The action is, to all intent and purposes, with the provisions for refunding the money if the importer is successful in the suit, an action against the government for moneys in the Treasury. The provision as to the finality of the appraisement is virtually a rule of evidence to be observed in the trial of the suit .brought against the collector. The uniform course of legislation and practice in regard both to the mode of selection of the merchant appraiser and as to the conclusive effect of the appraisal, are entitled to great weight. Stuart v. Laird, 1 Cranch, 299, 309; Martin v. Hunter’s Lessee, 1 Wheat. 304, 352; Cohens v. Virginia, 6 Wheat. 264, 418, 421; Cooley v. Board of Wardens, 12 How. 299, 315; Lithographic Co. v. Sarony, 111 U. S. 53, 57; The Laura, 114 U. S. 411, 416. The plaintiffs complain of the exclusion, as evidence, of a paper, Exhibit No. 14, being a report received by . the collector at New York from the United States consul at Horgen, in Switzerland, dated February 25, 1886, and purporting to be a memorandum made by one Schmid, a government silk" }, { "docid": "22380097", "title": "", "text": "¶ 82, 689 P-H Memo TC. Subsections (c)(1) and (c)(3) appeared separately only upon the enactment of the 1954 Code. From 1921 until the 1954 Code, they were combined. See, e. g., Revenue Act of 1921, § 250(d), 42 Stat. 265; Internal Revenue Code of 1939, § 276(a). Under every general income tax statute since 1918, the filing of a false or fraudulent return has indefinitely extended the period of limitations for assessment of tax. See Revenue Act of 1918, § 250(d), 40 Stat. 1083; Revenue Act of 1921, § 250(d), 42 Stat. 265; Revenue Act of 1924, § 278(a), 43 Stat. 299; Revenue Act of 1926, § 278(a), 44 Stat., pt. 2, p. 59; Revenue Act of 1928, § 276(a), 45 Stat. 857; Revenue Act of 1932, § 276(a), 47 Stat. 238; Revenue Act of 1934, § 276(a), 48 Stat. 745; Revenue Act of 1936, § 276(a), 49 Stat. 1726; Revenue Act of 1938, § 276(a), 52 Stat. 540; Internal Revenue Code of 1939, § 276(a). The significance of the original, and not the amended, return has been stressed in other, but related, contexts. It thus has been held consistently that the filing of an amended return in a nonfraudulent situation does not serve to extend the period within which the Commissioner may assess a deficiency. See, e. g., Zellerbach Paper Co. v. Helvering, 293 U. S. 172 (1934); National Paper Products Co. v. Helvering, 293 U. S. 183 (1934); National Refining Co. v. Commissioner, 1 B. T. A. 236 (1924). It also has been held that the filing of an amended return does not serve to reduce the period within which the Commissioner may assess taxes where the original return omitted enough income to trigger the operation of the extended limitations period provided by § 6501(e) or its predecessors. See, e. g., Houston v. Commissioner, 38 T. C. 486 (1962); Goldring v. Commissioner, 20 T. C. 79 (1953). And the period of limitations for filing a refund claim under the predecessor of § 6511(a) begins to run on the filing of the original, not the amended, return. Kaltreider" }, { "docid": "22232520", "title": "", "text": "Revenue Acts of 1913, 1916 and 1918, if a corporation was availed of for the purpose of evading taxation by accumulation of gains and profits the shareholders were taxed on their pro rata shares of income, whether or not distributed. 38 Stat. 166; 39 Stat. 758; 40 Stat. 1072. Sec. 220 of the Revenue Act of 1921 employed instead a tax against the corporation. 42 Stat. 227, 247. H. R. Rep. No. 350, 67th Cong., 1st Sess., pp. 12-13, stated in explanation of the change that: “Section 220 of the existing law provides that if any corporation is formed or availed of for the purpose of evading the surtax upon its stockholders through the medium of permitting its gains and profits to accumulate instead of being divided, the stockholders shall be taxed in the same manner as partners. By reason of the recent decision of the Supreme Court in the stock dividend case (Eisner v. Macomber, 252 U. S. 189), considerable doubt exists as to the constitutionality of the existing law.” See also, S. Rep. No. 275, 67th Cong., 1st Sess., p. 16. See also, § 220 of the Revenue Acts of 1924 and 1926, 43 Stat. 253, 277; 44 Stat. 9, 34; § 104 of the Revenue Acts of 1928 and 1932, 45 Stat. 791, 814; 47 Stat. 169, 195; and §§ 102 and 351 of the Revenue Act of 1934, 48 Stat. 680, 702, 751. The 1926 and subsequent Acts permitted the avoidance of tax on the corporation by inclusion of undistributed corporate income in the gross income of its shareholders. Thus, Senator Black said on the floor of the Senate that “It is a vain and an illusory hope to anticipate that the Government of the United States will ever be able to prevent tax avoidance on the part of corporate officials by the simple expedient of charging and proving against them that they have withheld a distribution of profits to avoid taxes.” 80 Cong. Rec. 8811. See also statement by Oliphant, General Counsel of the Treasury, Hearings on the Revenue Act, 1936, House Ways and Means" }, { "docid": "8618520", "title": "", "text": "from relying upon a want of con sideration. The bonds having been issued to Page, the case before us does not fall within the principles which control subscriptions to charities. The later gift to a charitable corporation does not cure the infirmity which existed at the time of issuance. We are of the opinion that the record establishes no enforcible indebtedness upon these bonds upon which the Railway Co. was required to pay interest. The action of the Commissioner is affirmed. The next question for consideration is whether the Sand Springs Power, Light & Water Co. and the Sand Springs Gas Co., after the transfer of all their stock to the Sand Springs Home on December 31, 1919, are exempt from taxation. Several grounds for exemption are urged. It seems clear to us that these companies were not “ organized and operated exclusively ” for the purposes mentioned in section 231, subdivision (6) of the Revenue Acts of 1918, 1921, 1924, and 1926. Nor are these corporations mere holding companies, such as are described in subdivision (12) of the 1918, 1921, and 1924 Acts and subdivision (13) of the 1926 Act. That there is in these acts a provision by which exemption is granted to holding companies whose entire profits are turned over to exempt corporations would indicate an intent on the part of Congress not to grant exemption to other corporations whose profits might be similarly used. It is further contended that, since the Home owned all the stock of the Water Co. and of the Gas Co., the Home and these corporations were affiliated within the meaning of section 240 (b) of the Revenue Act of 1918 and section 240 (c) of the Revenue Act of 1921, with the result that the identity of these two public service corporations was merged in that of the Home and their income became exempt from income and profits tax. These sections provide: For the purpose of this section two or more domestic corporations shall be deemed to be affiliated (1) if one corporation owns directly or controls through closely affiliated interests" }, { "docid": "22741586", "title": "", "text": "had been members of the Convention that framed the Constitution and presented it for ratification. It was the Congress that launched the Government. It was the Congress that rounded out the Constitution itself by the proposing of the first ten amendments which had in effect been promised to the people as a consideration for the ratification. It was the Congress in which Mr. Madison, one of the first in the framing of the Constitution, led also in the organization of the Government under it. It was a Congress whose constitutional decisions have always been regarded, as they should be regarded, as of the greatest weight in the interpretation of that fundamental instrument. This construction was followed by the legislative department and the executive department continuously for seventy-three years, and this although the matter, in the heat of political differences between the Executive and the Senate in President Jackson’s time, was the subject of bitter controversy, as we have seen. This Court has repeatedly laid down the principle that a contemporaneous legislative exposition of the Constitution when the founders of our Government and framers of our Constitution were actively participating in public affairs, acquiesced in for a long term of years, fixes the construction to be.given its provisions. Stuart v. Laird, 1 Cranch 299, 309; Martin v. Hunter’s Lessee, 1 Wheat. 304, 351; Cohens v. Virginia, 6 Wheat. 264, 420; Prigg v. Pennsylvania, 16 Pet. 544, 621; Cooley v. Board of Wardens, etc., 12 How. 299, 315; Burroughs-Giles Lithographing Company v. Sarony, 111 U. S. 53, 57; Ames v. Kansas, 111 U. S. 449, 463-469; The Laura, 114 U. S. 411, 416; Wisconsin v. Pelican Ins. Co., 127 U. S. 265, 297; McPherson v. Blacker, 146 U. S. 1, 28, 33, 35; Knowlton v. Moore, 178 U. S. 41, 56; Fairbank v. United States, 181 U. S. 283, 308; Ex parte Grossman, 267 U. S. 87, 118. We are now asked to set aside this construction, thus buttressed, and adopt an adverse view, because the Congress of the United States did so during a heated political difference of opinion between the" }, { "docid": "18393434", "title": "", "text": "therefore Affirmed. . Folker v. Johnson, 2 Cir., 1956, 230 F. 2d 906; Overly v. Commissioner, 3 Cir., 1957, 243 F.2d 576; Pierce v. United States, 9 Cir., 254 F.2d 885; Lagreide v. Commissioner, and Ranson v. Commissioner, note 1, supra. . Section 204(a) of the Revenue Act of 1918 [40 Stat. 1057 (1918)]. . 42 Stat. 231 (1921); 43 Stat. 253 (1924); 44 Stat. 9 (1926); 45 Stat. 791 (1928); 47 Stat. 169 (1932). The 1032 Act changed the carry-over provisions from two years to one year. See 26 U.S.C.A., Internal Revenue Acts, 1924 to Date. . 48 Stat. 195, 209 (1933). . Section 231 Revenue Act of 3939 providing for section 322 of the Internal Revenue Code of 1939; 53 Stat. 862 (1939), 26 U.S.C.A. § 122. . 56 Stat. 807 (1942). . Under section 204(a) of the Revenue Act of 1921 [42 Stat. 231 (1921)], “net loss” included “losses * * * from the sale or * * * disposition of * * capital assets used in the conduct of such trade or business.” Section 122 (d) (4) of the 1939 Code did not contain these provisions, and many cases have held that an isolated or occasional activity, as a capital asset sale, will not come within this deduction provision. See Appleby v. United States, 1953, 116 F.Supp. 410, 127 Ct.Cl. 91; See also, 5 Mertens, Federal Income Taxation, § 29.-05. However, section 172(d) (4) (A) of the 1954 Code allows an inclusion of a loss from the sale of a capital asset and in that respect this case may not have arisen under the 1954 Code. . Senate Report No. 617, explaining section 204 of the Revenue Bill of 1918; 1939-1 (Part 2) Cum.Bull. 121-122. . H.R.Rep. No. 350, 67th Cong.; 1939-1 (Part 2) Cum.Bull. 176. . H.R.Rep. No. 855, 76th Cong.; 1939-2 Cum.Bull. 504, 508, 517. This report also stated: “The bill, together with the committee amendments, permits taxpayers to carry over net operating business losses for a period of 2 years. Prior to the Revenue Act of 1932, such 2-year carry-over was allowed. No" }, { "docid": "13570390", "title": "", "text": "forfeitures. Touching the objection now raised as to the con stitutionality of the legislation in question, it is sufficient to say, as was said in an early case, that the practice and acquiescence under it, “ commencing with the organization of the judicial system, affords an irresistible answer, and has indeed fixed the construction: It is a contemporary interpretation of the most' forcible nature. This practical exposition is too strong and obstinate to be shaken or controlled. Of course, the question is at rest, and ought not now to be disturbed.” Stuart v. Laird, 1 Cranch, 299, 308. The same principle was announced in the recent case of Lithographic Co. v. Sarony, 111 U. S. 53, 57, where a question arose as to the constitutionality of certain statutory provisions reproduced from some of the earliest stat-utes enacted by Congress. The court said: “ The construction placed upon-the Constitution .by the first act of 1790, and the act of 1802, by the men who were contemporary with its formation, ‘ many of whom were members of the convention which framed it, is, of itself, entitled to very great weight; and Avheh it is remembered that the rights thus established have not been disputed during a period of nearly a century, it is conclusive.” See also Cooley v. Board of Wardens, 12 How. 299, 315; Martin v. Hunter, 1 Wheat. 304; Cohens v. Virginia, 6 Wheat. 264. . It is, however, insisted that if the statute in question is constitutional, it.cannot be construed as giving the Secretary of the Treasury the power to remit a penalty after a suit .for its recovery has been-instituted by a private person. In support of this position we are referred to numerous authorities, Which,, it is- claimed, hold that the test of what may be done under the power of pardon granted by our Constitution is, what the King of England could do, by virtue of his pardoning power, at the time of the separation froin that country; and that he could not grant a pardon to the injury of a subject, and, therefore, could not" }, { "docid": "22755266", "title": "", "text": "2d 336 (C. C. A. 6); Keck Inv. Co. v. Commissioner, 77 F. 2d 244 (C. C. A. 9). It is not possible to calculate what Kohl’s exact additional surtax liability would have been had he included the corporation’s income for 1930-1931 in his personal .return for 1931, since that r< turn is not in evidence. A minimum figure, however, may be obtained. The corporation’s' “net income,” as defined in § 104, was $954,645.62. There must be deducted from this $103,654.47 for corporation income tax; and $100,000 was distributed as a dividend in 1931 and included in computing the tax paid by Kohl in that year. Even assumng that-the remaining $750,991.15 would have constituted his entire net income for 1931, and that the maximum deduction of 15% of this amount for charitable, contributions could have been taken, a surtax of $119,328.50 would have been due. The first statute which provided for taxation where corporate profits are accumulated for the purpose of preventing the imposition of surtaxes upon stockholders was the Tariff Act of 1913, § 2A, subdiv. 1, 38 Stat. 166. In that Act, in the Revenue Act of 1916, § 3, 39 Stat. 758, and in the Revenue Act of 1918, § 220, 40 Stat. 1072, the tax was laid upon the shareholder. In all later Revenue Acts, the tax is laid upon the corporation. 192Í Act, § 220, 42 Stat. 247; 1924 Act, § 220, 43 Stat. 277; 1926 Act, § 220, 44 Stat. 34; 1928 Act, § 104, 45 Stat. 814; 1932 Act, § 104, 47 Stat. 195; 1934 Act, § 102, 48 Stat. 702; 1936 Act, § 102, 49 Stat. 1676. The Revenue Acts of 1918 and 1921, §§ 218 (e) and 218 (d), respectively, also taxed the shareholders of “personal service corporations” like partners. Section 112 (k) of the Revenue Act of 1932 and § 112 (i) of the Acts of 1934 and 1936 provide for the disregard of the corporate entity in certain cases where foreign colorations are used for the purpose of avoiding federal taxes. And § 201 of the Revenue Act of" }, { "docid": "21741034", "title": "", "text": "1919 was made in four equal installments, namely, on the 15th day of March, June, and September, 1920, and February, 1921. In the spring of 1924 the Commissioner of Internal Revenue held the Hall Company was not a personal service corporation, and accordingly assessed against it taxes for 1918 and 1919, pursuant to provisions of the law relating to ordinary corporations. These taxes the corporation has not paid, nor have the Halls ever received from it their distributive shares of its income for the years 1918 and 1919. Upon being notified of this ruling, the Halls, on March 7, 1924, filed their claims for a refund, which were, on December 7, 1924, approved by the Commissioner, and in the spring of 1925 cheeks therefor were sent to the collector at Tacoma, Wash., for delivery to the claimants. The collector, however, declined to deliver them, but ultimately returned them to the Commissioner, with the result that no refund has in fact been made, either to the Halls or to the trustee. We are not advised of the reasons for withholding the checks, otherwise than by appellant’s brief, wherein it is stated it was because of the nonpayment of the corporation tax. The controversy revolves around the meaning and application of section 1210 of the Revenue Act of 1926, which became effective February 26, 1926, two days prior to the commencement of this suit. 44 Stat. pt. 2, p. 130. That section is as follows: “Any individual who has paid a tax (in accordance with section 218 of the Revenue Act of 1918 or section 218 of the Revenue Act of 1921) as a stockholder of a personal service corporation shall be entitled to a credit or refund, in the manner provided in section 284, if (a) such corporation has been finally determined not to be a personal service corporation, and (b) such corporation has paid the tax imposed by title II of the Revenue Act of 1918 or title II of the Revenue Act of 1921, as the ease may be, and (e)' claim therefor is filed within one year after" }, { "docid": "22368325", "title": "", "text": "invents or discovers any new and useful process, machine, manufacture, or composition of matter .. . may obtain a patent therefor . . . .” And see Dolbear v. American Bell Telephone Co. (Telephone Cases), 126 U. S. 1, 532-533. This section was re-enacted by the Revenue Act of 1921, § 337, 42 Stat. 277. Revenue Act of 1918, §211 (b), 40 Stat. 1064. Revenue Act of 1918, §§ 214 (a) (10), 234 (a) (9), 40 Stat. 1067, 1078, providing “That in the ease of mines, oil and gas wells, discovered by the taxpayer . . . where the fair market value of the property is materially disproportionate to the cost, the depletion allowance shall be based upon the fair market value of the property at the date of discovery . . . .” Revenue Act of 1921, §211 (b), 42 Stat. 237; Revenue Act of 1924, §211 (b), 43 Stat. 267; Revenue Act of 1926, §211 (b), 44 Stat. 23; Revenue Act of 1928, § 102 (a), 45 Stat. 812; Revenue Act of 1932, §102 (a), 47 Stat. 192; Revenue Act of 1936, §105, 49 Stat. 1678; Revenue Act of 1938, § 105, 52 Stat. 484. Revenue Act of 1921, §§214 (a) (10), 234 (a)(9), 42 Stat. 241, 256; Revenue Act of 1924, §204 (c), 43 Stat. 260; Revenue Act of 1926, § 204 (c) (1), 44 Stat. 16; Revenue Act of 1928, § 114 (b) (2), 45 Stat. 821; Revenue Act of 1932, § 114 (b) (2), 47 Stat. 202; Revenue Act of 1934, §114 (b)(2), 48 Stat. 710; Revenue Act of 1936, § 114 (b) (2), 49 Stat. 1686; Revenue Act of 1938, § 114 (b) (2), 52 Stat. 495. Section 327 (d) of the Revenue Act of 1918, 40 Stat. 1093, gave the Commissioner power to grant relief in any case in which “the tax . . . would, owing to abnormal conditions affecting the capital or income of the corporation, work upon the corporation an excep tional hardship . . . Section 721 of the World War II law classified specific types of abnormal income" }, { "docid": "22930487", "title": "", "text": "is successful in the suit, an action against the government for moneys in the Treasury. The provision as to the finality of the appraisement is virtually a rule of evidence to be observed in the trial of the suit .brought against the collector. The uniform course of legislation and practice in regard both to the mode of selection of the merchant appraiser and as to the conclusive effect of the appraisal, are entitled to great weight. Stuart v. Laird, 1 Cranch, 299, 309; Martin v. Hunter’s Lessee, 1 Wheat. 304, 352; Cohens v. Virginia, 6 Wheat. 264, 418, 421; Cooley v. Board of Wardens, 12 How. 299, 315; Lithographic Co. v. Sarony, 111 U. S. 53, 57; The Laura, 114 U. S. 411, 416. The plaintiffs complain of the exclusion, as evidence, of a paper, Exhibit No. 14, being a report received by . the collector at New York from the United States consul at Horgen, in Switzerland, dated February 25, 1886, and purporting to be a memorandum made by one Schmid, a government silk expert, concerning certain undervaluations of merchandise covered by invoices of goods to C. A. Auffmordt & Co., which embraced the goods in question. The -paper was excluded by the court on the objection of the defendant that it was immaterial and irrelevant, and the plaintiffs excepted. It does not appear that the paper was used upon either of the appraisals, and, if it had been, it would have been proper to use it, as advising the officers of the government of the cost of the goods in question. It was properly excluded. The other questions discussed at the bar have been fully considered, but it is not considered necessary to comment on them. Judgment affirmed. “Art. 459. It is lawful for the appraisers, or the collector and naval officer, as the case may be, to call before them and examine, upon oath or affirmation, any owner, importer, consignee, or other person, touching any matter or thing which they may deem material in ascertaining the true market value or wholesale price of merchandise imported, and to" }, { "docid": "22741587", "title": "", "text": "when the founders of our Government and framers of our Constitution were actively participating in public affairs, acquiesced in for a long term of years, fixes the construction to be.given its provisions. Stuart v. Laird, 1 Cranch 299, 309; Martin v. Hunter’s Lessee, 1 Wheat. 304, 351; Cohens v. Virginia, 6 Wheat. 264, 420; Prigg v. Pennsylvania, 16 Pet. 544, 621; Cooley v. Board of Wardens, etc., 12 How. 299, 315; Burroughs-Giles Lithographing Company v. Sarony, 111 U. S. 53, 57; Ames v. Kansas, 111 U. S. 449, 463-469; The Laura, 114 U. S. 411, 416; Wisconsin v. Pelican Ins. Co., 127 U. S. 265, 297; McPherson v. Blacker, 146 U. S. 1, 28, 33, 35; Knowlton v. Moore, 178 U. S. 41, 56; Fairbank v. United States, 181 U. S. 283, 308; Ex parte Grossman, 267 U. S. 87, 118. We are now asked to set aside this construction, thus buttressed, and adopt an adverse view, because the Congress of the United States did so during a heated political difference of opinion between the then President and the majority leaders of Congress over the reconstruction measures adopted as a means of restoring to their proper status the States which attempted to withdraw from the Union at the time of the Civil War. The extremes to which the majority in both Houses carried legislative measures in that matter are 'now recognized by all who calmly review the history of that episode in our Government, leading to articles of impeachment against President Johnson, and his acquittal, Without animadvert ing on the character of the measures taken, we are certainly justified in saying that they should not- be given the weight affecting proper constitutional' construction to be accorded to that reached by the First Congress of the United States during a political calm and acquiesced in by the whole Government for three-quarters of a century, especially when the new construction contended for has never been acquiesced in by either the executive or the judicial departments. While this Court has studiously avoided deciding the issue until it was presented in such a way" }, { "docid": "22755267", "title": "", "text": "2A, subdiv. 1, 38 Stat. 166. In that Act, in the Revenue Act of 1916, § 3, 39 Stat. 758, and in the Revenue Act of 1918, § 220, 40 Stat. 1072, the tax was laid upon the shareholder. In all later Revenue Acts, the tax is laid upon the corporation. 192Í Act, § 220, 42 Stat. 247; 1924 Act, § 220, 43 Stat. 277; 1926 Act, § 220, 44 Stat. 34; 1928 Act, § 104, 45 Stat. 814; 1932 Act, § 104, 47 Stat. 195; 1934 Act, § 102, 48 Stat. 702; 1936 Act, § 102, 49 Stat. 1676. The Revenue Acts of 1918 and 1921, §§ 218 (e) and 218 (d), respectively, also taxed the shareholders of “personal service corporations” like partners. Section 112 (k) of the Revenue Act of 1932 and § 112 (i) of the Acts of 1934 and 1936 provide for the disregard of the corporate entity in certain cases where foreign colorations are used for the purpose of avoiding federal taxes. And § 201 of the Revenue Act of 1937, 50 Stat. 818, provides that the adjusted undistributed net income of foreign personal holding companies must be included in the gross income of their United States shareholders. Compare also Southern Pac. Co. v. Lowe, 247 U. S. 330, 336; Gulf Oil Corp. v. Lewellyn, 248 U. S. 71; Gregory v. Helvering, 293 U. S. 465. For example, § 293 (b) of the Revenue Act of 1928 provides that if any part of a.deficiency is due to “fraud with intent to evade tax,” there shall be an “addition to the tax” of 50% of the deficiency. Helvering v. Mitchell, 303 U. S. 391. Whether a payment received is compensation within § 22 (a) or is a gift within § 22 (b) (3) is largely a matter of intention. Compare Bogardus v. Commissioner, 302 U. S. 34, 45. Similarly, the deductibility of losses under § 23 (e) may depend upon whether the taxpayer’s motive in entering into the transaction was primarily profit. Compare Heiner v. Tindle, 276 U. S. 582; Stuart v. Commissioner, 84 F. 2d" }, { "docid": "10297803", "title": "", "text": "1921, 1924, and amendatory acts, and further provides: “Any tax that has been paid under such Acts prior to the enactment of this Act, if in excess of the tax imposed by such Acts as retroactively modified by this section, shall, subject to the statutory period of limitations properly applicable thereto, be credited or refunded to the taxpayer as provided in section 284.” These statutory provisions in effect enacted as law the regulations which had been promulgated by the Secretary of the Treasury relating to the taxation of income derived from installment sales (article 42, Treas.Regs. 45, promulgated April 17, 1917, under the Rev.Act 1918), which had been declared invalid by the Board of Tax Appeals. (B. B. Todd, Inc. v. Commissioner, 1 B.T.A. 762; Blum’s Inc., v. Commissioner, 7 B.T.A. 737, 751). That it was the intention of Congress to validate these rules is declared in the report of the Committee of the House of Representatives having charge of the bill (H. Rep. 356, 69th Congress, 1st Session, pp. 32, 33, 59 Sen.Rep. 52, 69th Cong., 1st Sess. 19). The effect of applying section 212 (d) of the Revenue Act 1926 retroactively to returns under prior revenue acts as required by section 1208 of the Revenue Act of 1926 changed the'rule which has been applied prior to 1925, which prevented double taxation of income. Congress, to set at rest questions arising under this legislation contained in the Revenue Act of 1926, again dealt with that subject in the Revenue Act of 1928 (45 Stat. 791, 805; § 24, subd. (a), 26 U.S.C.A. § 44 (a) and note), which substantially re-enacted section 212 (d) of the Revenue Act of 1926, but also provided in subdivision (c) of that section (44 and note) that, if the taxpayer entitled to the benefits of subdivision (a) elects for any taxable year to report his net income on the installment basis, then in computing his income for the year of change, or any subsequent year, amounts actually received during any such year on account of sales or other dispositions of property made in any" }, { "docid": "8618521", "title": "", "text": "subdivision (12) of the 1918, 1921, and 1924 Acts and subdivision (13) of the 1926 Act. That there is in these acts a provision by which exemption is granted to holding companies whose entire profits are turned over to exempt corporations would indicate an intent on the part of Congress not to grant exemption to other corporations whose profits might be similarly used. It is further contended that, since the Home owned all the stock of the Water Co. and of the Gas Co., the Home and these corporations were affiliated within the meaning of section 240 (b) of the Revenue Act of 1918 and section 240 (c) of the Revenue Act of 1921, with the result that the identity of these two public service corporations was merged in that of the Home and their income became exempt from income and profits tax. These sections provide: For the purpose of this section two or more domestic corporations shall be deemed to be affiliated (1) if one corporation owns directly or controls through closely affiliated interests or by a nominee or nominees substantially all the stock of the other or others, or (2) if substantially all the stock of two or more corporations is owned or controlled by the same interests. Petitioners plant themselves on the literal provision of the above subdivision and assert that the Home, the Water Co., and the Gas Co. are domestic corporations and that since the Home owned all the stock of the other two, except the qualifying shares, they should be deemed to be affiliated. If we apply an equally literal construction to section 230 of the same revenue acts we would be compelled to hold that the income of the Home is taxable, since that section provides “ there shall be levied, collected and paid * * * upon the net income of every corporation ” a certain rate of tax. That “ every corporation ” is not to be taxed is evident from the provisions of section 231 of the Revenue Acts of 1918 and 1921. All relevant sections of each act must" }, { "docid": "10297802", "title": "", "text": "which $17,814.60 is interest. Appellant prayed for a judgment of $77,127.51, with 6 per cent, interest from date of payment February 27, 1928. A jury was waived. Both parties moved for judgment upon the evidénce. The trial court found the facts to be substantially as claimed by the appellant, but concluded as a matter of law that the taxes were properly collected and not recoverable. The tax was assessed under the Revenue Act of 1926 (section 212 (d), 44 Stat. 9, 23), retroactively applied for the years involved, which were all prior to 1925. This section provides that the taxpayer selling personal property on the installment plan might return as income in any taxable year “that proportion of the installment payments actually received in that year which the total profit realized or to be realized * * * bears to the total contract price.” Section 1208 of the Revenue Act of 1926 (44 Stat. 130) provides that section 212 (d) shall be retroactively applied to taxes collected under the Revenue Acts of 1916, 1917, 1918, 1921, 1924, and amendatory acts, and further provides: “Any tax that has been paid under such Acts prior to the enactment of this Act, if in excess of the tax imposed by such Acts as retroactively modified by this section, shall, subject to the statutory period of limitations properly applicable thereto, be credited or refunded to the taxpayer as provided in section 284.” These statutory provisions in effect enacted as law the regulations which had been promulgated by the Secretary of the Treasury relating to the taxation of income derived from installment sales (article 42, Treas.Regs. 45, promulgated April 17, 1917, under the Rev.Act 1918), which had been declared invalid by the Board of Tax Appeals. (B. B. Todd, Inc. v. Commissioner, 1 B.T.A. 762; Blum’s Inc., v. Commissioner, 7 B.T.A. 737, 751). That it was the intention of Congress to validate these rules is declared in the report of the Committee of the House of Representatives having charge of the bill (H. Rep. 356, 69th Congress, 1st Session, pp. 32, 33, 59 Sen.Rep. 52," }, { "docid": "22386354", "title": "", "text": "the taxable year.” And § 23 (g) provides: “Thebasis for determining the amount of deduction for losses sustained . . . shall be the same as is provided in section 113 for determining the gain or loss from the sale or other disposition of property.” § 12 (c): “Capital net gains and losses. — For rate and computation of tax in lieu of normal and surtax in case of net incomes of not less than $30,000, approximately, or in case of net incomes, excluding items of capital gain, capital loss, and capital deductions, of not less than $30,000, approximately, see section 101.” Only in the case of incomes in excess of $30,000, approximately, do the aggregate of the normal and surtax exceed the 12%% rate provided for in § 101. Section 201 (c) of the 1918 Act, omitted from the 1921 Act, was continued, so far as now relevant, in the form in which it later appeared in § 115 (c) of the Act of 1928, as § 201 (c) of the 1924 and 1926 Acts, and as § 115 (c) of the 1932 and 1934 Acts. The provisions of § 101 for computing capital gains or losses upon sales or exchanges and taxing them on a different basis from ordinary income first appeared as § 206 of the Revenue Act of 1921, which was continued as § 208 of the Revenue Acts of 1924 and 1926 and as § 101 of the Revenue Acts of 1928 and 1932. The Report of the Senate Committee on Finance (Report No. 398, 68th Cong., 1st Sess.) states at page 11: “. . . The bill treats a liquidating dividend as a sale of the stock, -with the result that the gain to the taxpayer is treated not as a dividend subject only to the surtax but as a gain from the sale of property which may be treated as a capital gain. The treatment of liquidating dividends under the bill is substantially the same as provided for in the revenue act of 1918. A’ liquidating dividend is, in effect, a sale by" }, { "docid": "6404997", "title": "", "text": "deductions are not in issue.” The Petitioner is appealing from the Board’s decision allowing the other amounts as deductions for business expenses, claiming that they are properly expenses of administering the estate and therefore capital in nature. Section 23(a) of the Revenue Act of 1934, c. 277, 48 Stat. 680, is the same provision as that appearing in Section 23(a) of the Revenue Acts of 1939, 1938, 1936, 1934, 1932 and 1928, 26 U.S.C.A. Int.Rev.Code, § 23(a), and in Section 214(a) of the Revenue Acts of 1926, 1924, 26 U.S.C.A. Int.Rev.Code, § 23(a) and 1921, and 1919, 42 Stat. 254, 40 Stat. 1077. See Paul and Mertens, Federal Income Taxation (1934) § 23.01. It provides: “In computing net income there shall be allowed as deductions: “(a) Expenses. All the ordinary and necessary expenses paid or incurred during the taxable year in carrying on any trade or business, including a reasonable allowance for salaries or other compensation for personal services actually rendered; traveling expenses (including the entire amount expended for meals and lodging) while away from home in the pursuit of a trade or business; and rentals or other payments required to be made as a condition to the continued use or possession, for purposes of the trade or business, of property to which the taxpayer has not taken or is not taking title or in which he has no equity.” (Italics supplied.) Thus, it will be noticed that in order to spell out an allowable deduction under the statute three elements must concur: (1) the expenditure must have been incurred in carrying on any trade or business; (2) it must have been an ordinary expenditure in such connection; and (3) it must have been a necessary expenditure in such connection. See Holmes, Federal Income Tax (6th ed. 1925) § 481; Klein, Federal Income Taxation (1929) 394. Section 162 of the Revenue Act of 1934, c. 277, 48 Stat. 680 and the Revenue Act of 1936, c. 690, 49 Stat. 1648, 26 U.S.C.A. Int.Rev.Code, § 162, provides: ‘ “The net income of the estate or trust shall be computed in the" }, { "docid": "21741033", "title": "", "text": "DIETRICH, Circuit Judge. This is an appeal from a judgment denying the recovery by plaintiff of certain income taxes paid by George B. Hall and his wife for the years 1918 and 1919. The Halls are bankrupts, and plaintiff, having qualified as trustee of the estate on May 20, 1925, sues in that capacity. The amounts in controversy were paid by the Halls as a result of their having included in their returns of income their ratable shares of the undistributed profits of the G. Batcheller Hall Company, a corporation, of which they were stockholders. This was done upon the assumption that this company was. what is recognized in section 218(e) of the Revenue Act of 1918, as a personal service corporation, which for taxation purposes is treated as a partnership. 40 Stat. 1070 (Comp. St. § 6330⅛i). This mode of treatment, it may be observed, ceased on December 31, 1921. Section 218d, 42 Stat. 245 (Comp. St. § 6336⅛i). The 1918 taxes were paid by the Halls on December 15, 1919, and payment for 1919 was made in four equal installments, namely, on the 15th day of March, June, and September, 1920, and February, 1921. In the spring of 1924 the Commissioner of Internal Revenue held the Hall Company was not a personal service corporation, and accordingly assessed against it taxes for 1918 and 1919, pursuant to provisions of the law relating to ordinary corporations. These taxes the corporation has not paid, nor have the Halls ever received from it their distributive shares of its income for the years 1918 and 1919. Upon being notified of this ruling, the Halls, on March 7, 1924, filed their claims for a refund, which were, on December 7, 1924, approved by the Commissioner, and in the spring of 1925 cheeks therefor were sent to the collector at Tacoma, Wash., for delivery to the claimants. The collector, however, declined to deliver them, but ultimately returned them to the Commissioner, with the result that no refund has in fact been made, either to the Halls or to the trustee. We are not advised of" }, { "docid": "23315285", "title": "", "text": "of such property (or, in the case of such property as is described in subsection (a) . . . (5) . . . of this section, the basis as therein provided), or (2) the fair market value of such property as of March 1, 1913, whichever is greater.” Revenue Act of 1921 (42 Stat. 227) § 202 (a); Revenue Act of 1924 (43 Stat. 253) §-204 (a); Revenue Act of 1926 (44 Stat. 9) § 204 (a). H. R. 1, 70th Cong., 1st Sess. H. Rep. No. 2, 70th Cong., 1st Sess., Int. Rev. Bull., Cum. Bull. 1939-1, Pt. 2, p. 396' And see Report of the Joint Committee on Internal Revenue Taxation, H. Doc. No. 139, 70th Cong., 1st Sess., pp. 17-18. Much of that confusion was later eliminated by Brewster v. Gage, 280 U. S. 327, holding that in case of a residuary legatee of personal property the time of “acquisition” was the date of decedent’s death, not the date of distribution of the property by the executors to the legatee.. That decision was rendered in 1930 under the 1918 and 1921 Acts. The wording of § 113 (a) (5) contained in the 1928 Act was continued in the 1932 Act (47 Stat. 169, 199). But under the 1934 Act (48 Stat. 680, 706) there was a return to the language of the 1926 Act, the Senate Report stating: “Section 113 (a) 5 of the Revenue Act of 1932 is a reenactment of a similar provision contained in the 1928 Act. The change in the 1928 Act was made because there was some doubt as to the meaning of the term ‘date of acquisition,’ which was the term used under the Revenue Act of 1926. Since the 1928 Act was passed, the Supreme Court has defined ‘the date of acquisition’ to mean the date of death in the case of all property passing by bequest, devise, and inheritance, whether real or personal. (Brewster v. Gage, 280 U. S. 327.) Section 113 (a) 5 of the House bill conforms to the language contained in the Revenue Act of 1926," } ]

[ { "docid": "8616828", "title": "", "text": "or cannot be legally imported into the United States. Today there is similar legislative authority for boarding and searching vessels by Customs and the Coast Guard. 19 U.S.C. § 1581(a) provides: Any officer of the customs may at any time go on board of any vessel or vehicle at any place in the United States or within the customs waters . and examine the manifest and other documents and papers .and examine, inspect, and search the vessel or vehicle and every part thereof and any person, trunk, package, or cargo on board, and to this end may hail and stop such vessel or vehicle and use all necessary force to compel compliance. [Footnotes added.] The first issue is whether a customs search may be predicated on 19 U.S.C. § 1581(a) alone. As the court in United States v. Weil, 432 F.2d 1320 (9th Cir. 1970), cert. denied 401 U.S. 947, 91 S.Ct. 933, 28 L.Ed.2d 230 (1971), noted in construing 19 U.S.C. § 482, a related statute: In order to avoid conflict between this statute and the Fourth Amendment, the statutory language has been restricted by the courts to “border searches.” We must remember, however, that the phrase “border search” does not appear in either the statute or the Constitution. It is merely the courts’ shorthand way of defining the limitation that the Fourth Amendment imposes upon the right of customs agents to search without probable cause. Id. at 1323. Consistent with this, the Court in Almeida-Sanchez v. United States, 413 U.S. 266, 98 S.Ct. 2535, 37 L.Ed.2d 596 (1973), teaches that an act of Congress cannot validate searches which offend Fourth Amendment standards. Id. at 272, 93 S.Ct. 2535. In that case the government sought to justify a warrantless auto search 25 miles north of the Mexican border solely on the basis of § 287(a)(3) of the Immigration and Nationality Act [8 U.S.C. § 1357(a)(3)], providing for warrantless searches of automobiles and other conveyances “within a reasonable distance from any external boundary of the United States.” The Court held the search unconstitutional, stating: In the absence of probable cause" } ]

[ { "docid": "22450039", "title": "", "text": "seaward of the territorial sea and thus encompass the contiguous zone. In this opinion, we sometimes refer to the high seas beyond the contiguous zone as “international waters.” . Section 89(a) empowers the Coast Guard to: make inquiries, examinations, inspections, searches, seizures, and arrests upon the high seas and waters over which the United States has jurisdiction, for the prevention, detection, and suppression of violations of laws of the United States. For such purposes, commissioned, warrant, and petty officers may at any time go on board of any vessel subject to the jurisdiction, or to the operation of any law, of the United States, address inquiries to those on board, examine the ship’s documents and papers, and examine, inspect, and search the vessel and use all necessary force to compel compliance. . Section 1581(a) provides: Any officer of the customs [defined to include Coast Guard officers by 14 U.S.C. § 89(b) (1976) and 19 U.S.C. §§ 1401(i), 1709(b) (1976)] may at any time go on board of any vessel ... at any place . . within the customs waters [defined in 19 U.S.C. § 1401(j) (1976) as those waters within twelve miles of the Coast of the United States] . and examine the manifest and other documents and papers and examine, inspect, and search the vessel or vehicle and every part thereof and any person, trunk, package, or cargo on board, and to this end may hail and stop such vessel or vehicle, and use all necessary force to compel compliance. . All of the high seas searches and seizures that have been considered in the Fifth Circuit were authorized by statute. The source of authority for such a search or seizure need not be statutory, however. See p. 1074 infra. . Since Ramsey involves a search on land, we do not consider Ramsey’s holdings automatically applicable in the present case. Rather, we follow Ramsey’s mode of analysis, which permits us to take into consideration the substantial differences between seizures and searches on land and those on the high seas. . The language of the statute indicates that the Coast" }, { "docid": "603883", "title": "", "text": "RONEY, Circuit Judge: The most serious question in this case is whether the possession of 51,280 pounds of marijuana on an American flag vessel well outside the three-mile territorial jurisdiction of the United States, but within the twelve-mile “customs waters,” is a crime under 21 U.S.C.A. § 841(a)(1), which proscribes the possession of marijuana with the intent to distribute. Although not without some conceptual difficulty, we hold the statute does prohibit such conduct, and affirm the convictions. On a routine patrol making random administrative, documentation and safety checks, a U.S. Coast Guard cutter stopped and its officers boarded the CAPTAIN OTIS II, a shrimp boat, near Marquesas Key nine miles off the southern coast of Florida. 14 U.S.C.A. § 89(a). While being escorted through the engine room for the purpose of inspecting the bilges, fire extinguishers and oil pollution placard, a Coast Guard officer discovered some bales of marijuana. A subsequent warrantless search revealed 51,280 pounds of the forbidden substance aboard. The ship and its cargo were seized and the two crew members were arrested. Defendant Baker was convicted on both a conspiracy count (21 U.S.C.A. § 846) and a substantive count for illegal possession with intent to distribute (21 U.S.C.A. § 841(a)(1)). Defendant Osborne was convicted only for possession with intent to distribute. The controlling issue in the case is whether the possession with intent to distribute statute reaches beyond the three-mile limit of the “territorial sea,” see United States v. Warren, 578 F.2d 1058, 1064 n.4 (5th Cir. 1978) (en banc), into the so-called “contiguous zone,” between three miles and twelve miles from the coast, an area sometimes described as the “marginal sea.” United States v. Louisiana, 394 U.S. 11, 22, 89 S.Ct. 773, 22 L.Ed.2d 44 (1969); United States v. Postal, 589 F.2d 862, 869 (5th Cir. 1979), cert. denied,-U.S.-, 100 S.Ct. 61, 62 L.Ed.2d 40 (1979); United States v. Warren, 578 F.2d at 1064 n.4; Restatement (Second) of Foreign Relations Law § 15, Note 1 (1965). See Ficken, The 1935 Anti-Smuggling Act Applied to Hovering Narcotics Smugglers Beyond the Contiguous Zone: An Assessment Under International Law," }, { "docid": "22163757", "title": "", "text": "374 (1966), is generally absent because such boardings are routine. This, of course, is not to say that such intrusions cannot be coercive, but the routine Coast Guard boarding and inspection of an American vessel on the high seas does not create a custodial situation. Cf. United States v. Thompson, 475 F.2d 1359, 1364 (5th Cir. 1973) (routine customs search does not require Miranda warnings). See also United States v. Jones, 543 F.2d 1171, 1173 (5th Cir. 1976), cert. denied, 430 U.S. 957, 97 S.Ct. 1604, 51 L.Ed.2d 807 (1977). Indeed, to hold otherwise would require the Coast Guard to read Miranda warnings to those on board every vessel it boarded. We must, therefore, look beyond the routine boarding and interrogation in this case to determine when the warnings should have been given. This determination requires a case-by-case analysis. E. g., Alberti v. Estelle, 524 F.2d 1265, 1266-67 (5th Cir. 1975), cert. denied, 426 U.S. 954, 96 S.Ct. 3181, 49 L.Ed.2d 1193 (1976). The Fifth Circuit employs a four-factor test to ascertain whether an interrogation occurred in a custodial context. These factors include: (1) whether probable cause to arrest had arisen, (2) whether the subjective intent of the officer conducting the interrogation was to hold the defendant, (3) whether the subjective belief of the defendant was that his freedom was significantly restricted, and (4) whether the investigation had focused on the defendant at the time of interrogation. United States v. Nash, 563 F.2d 1166, 1168 (5th Cir. 1977); Alberti v. Estelle; United States v. Carollo, 507 F.2d 50 (5th Cir. 1975), cert. denied, 423 U.S. 874, 96 S.Ct. 143, 46 L.Ed.2d 105 (1976); Brown v. Beto, 468 F.2d 1284 (5th Cir. 1972); United States v. Montos, 421 F.2d 215 (5th Cir.), cert. denied, 397 U.S. 1022, 90 S.Ct. 1262, 25 L.Ed.2d 532 (1970). Under these factors, we think it clear that a custodial situation did not exist at the time Agent Wallace asked Thomas Warren how much money he had. Probable Cause. Admittedly, Agent Wallace testified that he suspected that the Stormy Seas was on a narcotics run. The enrollment" }, { "docid": "22163741", "title": "", "text": "Warren that he possessed approximately $7,000 and that he had not registered it upon departure from the United States. Thomas Warren’s statement established an apparent violation of customs law, and a large amount of money was uncovered after he led members of the boarding party to the crew’s quarters. The defendants and Cruse were arrested, after which Cruse confessed that the Stormy Seas was on a “pot” run. The vessel was seized, and a search uncovered evidence confirming Cruse’s confession. Each link in this chain of events, from boarding to inventory search, is legally sound. The boarding was lawful, and the scope of the interrogation was determined by well-founded suspicion. The currency was revealed after Thomas Warren admitted that he had not registered it, and the search that produced the evidence upon which the marijuana conspiracy convictions were based took place after the arrests and after Cruse confessed that the Stormy Seas was on a “pot” run. Seeing the facts in this light, we think that this case is controlled by our holding in United States v. Odom, 526 F.2d 339 (5th Cir. 1976). In that case, the Coast Guard sighted an American vessel, the Mar-J-May, some 200 miles from the United States in the Yucatan Straits, between Cuba and Mexico. Apparently without prior suspicion that narcotics or customs law had been violated, the Coast Guard boarded the Mar-J-May to conduct a routine safety and documentation inspection. During the inspection, a Coast Guard officer noted that the fishing gear was “rusty and unused.” Id. at 341. The officer, wishing to examine the main-beam identification number located in the hold, was told that the hold was full of ice and that it would be difficult to see the number. After some consideration, the officer decided to open the hatch, and when he did, he saw only a small quantity of ice. He entered the hold and examined the identification number, and at this time he noticed several unmarked burlap bags in the aft of the hold. The bags were inspected, and approximately 6,000 pounds of marijuana were discovered. The court held" }, { "docid": "14504051", "title": "", "text": "asked about their contents. Mann said the cargo was bauxite. The Coast Guard officer opened some of the bags, found marijuana and gave the defendants Miranda warnings. The Coast Guard party then searched the vessel and discovered 22,590 pounds of marijuana, two .22 caliber pistols, a shotgun and 980 rounds of ammunition. Mann and McLaughlin thereafter made incriminating statements that were used against them at the trial. Seven issues are raised on appeal. We deal separately with defendants’ challenges of the conspiracy convictions, the firearms convictions and the sentences of defendants Mann and McLaughlin. I. Defendants initially challenge the introduction of evidence seized from the Texas Star and incriminating statements made after the stop of the vessel. As defendants recognize in their brief, the Coast Guard has plenary authority to stop and board an American vessel on the high seas for a safety and document inspection as it did here. See 14 U.S.C. § 89(a); United States v. Warren, 578 F.2d 1058 (5th Cir. 1978) (en banc). The Texas Star was registered under the laws of the United States and was, therefore, subject to this authority. Defendants argue, however, that the real reason for .the search was to uncover contraband and that the Coast Guard’s invocation of its section 89(a) safety and document check authority was pretextual. Even accepting that characterization of the stop and boarding, we need not determine whether it would distinguish this case from Warren, supra, for the district judge concluded that the facts known to the Coast Guard created a reasonable suspicion that the vessel was carrying contraband to the United States. We agree, and conclude that the stop and boarding was, therefore, justified. See United States v. Serrano, 607 F.2d 1145 (5th Cir. 1979); United States v. Kleinschmidt, 596 F.2d 133 (5th Cir. 1979), cert. denied, — U.S. -, 100 S.Ct. 267, 62 L.Ed.2d 184. Once the customs officer was aboard, the odor of marijuana in the engine room and the presence of weapons justified the Coast Guard in taking further steps to ascertain the nature of the cargo the vessel carried. United States v." }, { "docid": "22163738", "title": "", "text": "347 (5th Cir.), cert. denied, 422 U.S. 1009, 95 S.Ct. 2633, 45 L.Ed.2d 672 (1975). Finally, the panel dismissed as without merit a contention by Thomas Warren that the trial judge made certain impermissible comments during the voir dire examination of prospective jurors. 550 F.2d at 226 n.7. We concur with the panel’s resolution of this issue. III. Analysis A. Authority for the Boarding of the Stormy Seas, the Interrogation, and the Search Federal law authorizes the Coast Guard to make inquiries, examinations, inspections, searches, seizures, and arrests upon the high seas and waters over which the United States has jurisdiction, for the prevention, detection, and suppression of violations of laws of the United States. For such purposes, commissioned, warrant, and petty officers may at any time go on board of any vessel subject to the jurisdiction, or to the operation of any law, of the United States, address inquiries to those on board, examine the ship’s documents and papers, and examine, inspect, and search the vessel and use all necessary force to compel compliance. 14 U.S.C. § 89(a) (1976). This law is constitutional, United States v. One 43 Foot Sailing Vessel, 538 F.2d 694 (5th Cir. 1976), and pursuant to its authority, the Coast Guard may apprehend and board any vessel of the American flag. This authority is plenary when exercised beyond the twelve-mile limit; it need not be founded on any particu larized suspicion. United States v. Odom, 526 F.2d 339, 341-42 (5th Cir. 1976); United States v. One 43 Foot Sailing Vessel, 405 F.Supp. 879, 882 (S.D.Fla.1975), aff’d, 538 F.2d 694 (5th Cir. 1976). The cases have recognized the power of the Coast Guard, having boarded a vessel of the American flag, to conduct documentation and safety inspections. United States v. Hillstrom, 533 F.2d 209, 210 (5th Cir. 1976), cert. denied, 429 U.S. 1038, 97 S.Ct. 734, 50 L.Ed.2d 749 (1977); Odom, 526 F.2d at 342. If, during the course of such an inspection, circumstances arise that generate probable cause to believe that a violation of United States law has occurred, the Coast Guard may conduct searches," }, { "docid": "22163787", "title": "", "text": "the coast. The United States exercises plenary power over the territorial sea, subject to the requirement that the passage of foreign vessels may not be interfered with unreasonably. See Carmichael, At Sea with the Fourth Amendment, 32 Miami L.Rev. 51, 56-57 (1977). The power of the United States over foreign vessels in the contiguous zone is limited to the preservation of specific interests, e.g., the enforcement of customs and safety laws. See id. at 58. The high seas lie seaward of the territorial sea and thus encompass the contiguous zone. Although vessels on the high seas are subject to the powers exercised over the contiguous zones and certain safety, navigation, pollution, piracy, and slave-trade regulations, no country may assert sovereignty over the high seas. See id.; Convention on the High Seas, Sept. 30, 1962, art. 2, 13 U.S.T. 2312, 2314, T.l.A.S. No. 5200. To maintain order on the high seas, therefore, each nation is charged with the duty of policing its own vessels. Convention on the High Seas, art. 10, 13 U.S.T. at 2316. It was in the performance of this duty, pursuant to the authority of § 89, that the Coast Guard boarded the Stormy Seas some 700 miles at sea. It is imperative, in light of the background we have just given, to establish the precise context in which we decide this case. We deal with the boarding of an American vessel by the Coast Guard beyond the 12-mile limit. Therefore, this case does not involve the application of United States law in the territorial zone or in the contiguous zone, where the Coast Guard may rely upon statutory authority in addition to § 89. In particular, we distinguish those cases defining the authority of customs officers to board vessels, pursuant to 19 U.S.C. § 1581(a) (1976), within the 12-mile limit. See, e.g., United States v. Caraballo, 571 F.2d 975 (5th Cir. 1978); United States v. Stanley, 545 F.2d 661 (9th Cir. 1976), cert. denied,-U.S. -, 98 S.Ct. 2261, 56 L.Ed.2d 757 (1978). United States v. Tilton, 534 F.2d 1363 (9th Cir. 1976); United States v. Caraway, 474" }, { "docid": "22163788", "title": "", "text": "was in the performance of this duty, pursuant to the authority of § 89, that the Coast Guard boarded the Stormy Seas some 700 miles at sea. It is imperative, in light of the background we have just given, to establish the precise context in which we decide this case. We deal with the boarding of an American vessel by the Coast Guard beyond the 12-mile limit. Therefore, this case does not involve the application of United States law in the territorial zone or in the contiguous zone, where the Coast Guard may rely upon statutory authority in addition to § 89. In particular, we distinguish those cases defining the authority of customs officers to board vessels, pursuant to 19 U.S.C. § 1581(a) (1976), within the 12-mile limit. See, e.g., United States v. Caraballo, 571 F.2d 975 (5th Cir. 1978); United States v. Stanley, 545 F.2d 661 (9th Cir. 1976), cert. denied,-U.S. -, 98 S.Ct. 2261, 56 L.Ed.2d 757 (1978). United States v. Tilton, 534 F.2d 1363 (9th Cir. 1976); United States v. Caraway, 474 F.2d 25, vacated on other grounds, 483 F.2d 215 (5th Cir. 1973). . The arrests for the currency violation were valid. See note 17 infra. The defendants do not question the validity of the inventory search that uncovered the trash compactor, the plastic bags, and the incriminating documents. They merely claim that absent Thomas Warren’s admission that he had not registered the money, which they claim was elicited in violation of Miranda, no probable cause existed to justify the search that produced the envelopes containing the money. Brief of Appellant John L. Warren, Jr. at 25-26; Brief of Appellant Thomas Warren at 14. Since we find the ob-tention of Thomas Warren’s statement not contrary to Miranda, see Part III. B. infra, the search turning up the money was supported by ample probable cause. Since the inventory search is not questioned, we do not reach the issue of its propriety. . We feel compelled to dispel what appears to be a misapprehension in Judge Fay’s dissent. The dissent terms “wrong” our statement that the defendants failed" }, { "docid": "22163792", "title": "", "text": "19 C.F.R. § 162.3. . The defendants contend, as they must under the language of § 143, that because one of the avowed purposes of the boarding was to look for obvious customs violations, Record, vol. 2, at 74, 85-86, the Coast Guard officers were performing duties “relating to customs laws” and were therefore subject to customs regulations. Given our holding that § 143 cannot diminish Coast Guard authority over American vessels beyond the 12-mile limit, the defendants’ contention is inconsequential in this case. We intimate nothing as to the validity of the defendants’ argument where § 143 might apply. . The source of § 89 is the Act of June 22, 1936, Pub.L.No.755, 49 Stat. 1820. As far as this case is concerned, it differs in no significant respect from § 89. . Section 401 is repetitive of § 201 because the former merely amended a provision of the Tariff Act of 1930. Section 401 was thought, necessary to make the definition applicable to provisions of the Anti-Smuggling Act that did not amend the Tariff Act. See H.R.Rep.No.868, 74th Cong., 1st Sess. 14 (1935). Section 201 is now codified as 19 U.S.C. § 1401(i) (1976), and § 401 is codified as 19 U.S.C. § 1709(b) (1976). See note 7 supra. . We note that the foreign possession of more than $5,000 is not, in itself, a crime. The crime is the willful failure to report such money at the time of departure from the United States. See United States v. Gomez Londono, 553 F.2d 805, 810 n. 7 (2d Cir. 1977). Therefore, Agent Wallace had no. probable cause to believe that the reporting provisions had been violated until Thomas Warren admitted that he had not reported. Additionally, we do not think that Thomas Warren’s admission that he possessed approximately $7,000 was sufficient, even in light of the circumstances that generated Agent Wallace’s suspicion that the Stormy Seas was on a narcotics run, to create probable cause to believe that a conspiracy to import narcotics existed. The possession of $7,000 would have been consistent with too many legitimate purposes to" }, { "docid": "22163739", "title": "", "text": "14 U.S.C. § 89(a) (1976). This law is constitutional, United States v. One 43 Foot Sailing Vessel, 538 F.2d 694 (5th Cir. 1976), and pursuant to its authority, the Coast Guard may apprehend and board any vessel of the American flag. This authority is plenary when exercised beyond the twelve-mile limit; it need not be founded on any particu larized suspicion. United States v. Odom, 526 F.2d 339, 341-42 (5th Cir. 1976); United States v. One 43 Foot Sailing Vessel, 405 F.Supp. 879, 882 (S.D.Fla.1975), aff’d, 538 F.2d 694 (5th Cir. 1976). The cases have recognized the power of the Coast Guard, having boarded a vessel of the American flag, to conduct documentation and safety inspections. United States v. Hillstrom, 533 F.2d 209, 210 (5th Cir. 1976), cert. denied, 429 U.S. 1038, 97 S.Ct. 734, 50 L.Ed.2d 749 (1977); Odom, 526 F.2d at 342. If, during the course of such an inspection, circumstances arise that generate probable cause to believe that a violation of United States law has occurred, the Coast Guard may conduct searches, seize evidence, and make arrests. Odom, 526 F.2d at 342. The boarding, interrogation, and search in this case come within these principles. The Coast Guard officers and the agents boarded the Stormy Seas pursuant to the authority of section 89 to conduct a safety and documentation inspection and to look for obvious customs and narcotics violations. Record, vol. 2, at 74, 85-86. In the course of this inspection, the enrollment papers were examined, and they indicated that the Stormy Seas was destined for no foreign port. Thomas Warren, however, professed the purpose of the trip to be land investment in South America. Later, Cruse and John Warren stated that the Stormy Seas was chartered for fishing and diving, but no ice to preserve catch was aboard and the diving gear was apparently inoperative. According to the testimony of Agent Wallace, these circumstances led him to suspect that the Stormy Seas was on a narcotics run and motivated him to inquire as to how much money was on board. This inquiry elicited the admission by Thomas" }, { "docid": "13708107", "title": "", "text": "at 375. Cf. Note, Honored in the Breach: Presidential Authority to Execute the Laws with Military Force, 83 Yale L.J. 130, 144 (1973) (“The lacuna of the Posse Comitatus Act merely means that the use of the Navy or Marines to execute the laws other than as provided by statute is not a criminal offense.”). . The statute also provides: “The Coast Guard shall be a service in the Department of Transportation, except when operating as a service in the Navy.” 14 U.S.C. § 1. . See United States v. Wolffs, 594 F.2d 77, 85 (5th Cir. 1979) (“[A]ssuming without deciding that there was a violation [of the Posse Comitatus Act], application of an exclusionary rule is not warranted.” In the event of “widespread and repeated violations” of the Act an exclusionary rule can later be fashioned.); United States v. Walden, 490 F.2d 372, 376-77 (4th Cir.), cert. denied, 416 U.S. 983, 94 S.Ct. 2385, 40 L.Ed.2d 760 (1974). . The high seas begin three miles from the coast and extend seaward. The territorial sea extends to three miles from the coast. The contiguous zone extends from three to twelve miles from the coast. The term international waters refers to the seas beyond the twelve mile limit. See United States v. Williams, 617 F.2d 1063, 1073 n.6 (5th Cir. 1980) (en banc); United States v. Warren, 578 F.2d 1058, 1064 n.4 (5th Cir. 1978) (en banc), modiñed en banc on other grounds, 612 F.2d 887, cert. denied, 446 U.S. 956, 100 S.Ct. 2928, 64 L.Ed.2d 815 (1980). Therefore, the Coast Guard had plenary authority to stop and board the POLARIS if it was in the high seas area which includes the contiguous zone (where the vessel was first ordered to “heave to”) or in international waters (where the Coast Guard finally boarded the vessel). See also 33 C.F.R. § 2.05-l(a) (1981) (the “ ‘high seas’ means all waters which are neither territorial seas nor internal waters”). . I concurred only in the result of this case. While I adhere to the views expressed in my separate opinion, I agree that" }, { "docid": "22163789", "title": "", "text": "F.2d 25, vacated on other grounds, 483 F.2d 215 (5th Cir. 1973). . The arrests for the currency violation were valid. See note 17 infra. The defendants do not question the validity of the inventory search that uncovered the trash compactor, the plastic bags, and the incriminating documents. They merely claim that absent Thomas Warren’s admission that he had not registered the money, which they claim was elicited in violation of Miranda, no probable cause existed to justify the search that produced the envelopes containing the money. Brief of Appellant John L. Warren, Jr. at 25-26; Brief of Appellant Thomas Warren at 14. Since we find the ob-tention of Thomas Warren’s statement not contrary to Miranda, see Part III. B. infra, the search turning up the money was supported by ample probable cause. Since the inventory search is not questioned, we do not reach the issue of its propriety. . We feel compelled to dispel what appears to be a misapprehension in Judge Fay’s dissent. The dissent terms “wrong” our statement that the defendants failed to contest the issue whether consent for cooperation with the Coast Guard was given. 578 F.2d at 1086. The record clearly indicates that the defendants never as much as adumbrated that consent was lacking. Quite to the contrary, in their en banc brief the defendants admit the following: “[U]nder 14 U.S.C. § 141(b), the Coast Guard may avail itself of officers and employees of any Federal agency as may be helpful to it in the performance of its duties . . . .” Supplemental Brief for Appellants at 16. Of course, as we have indicated, the defendants did initially contend that the agents’ presence was unauthorized. It is, however, incumbent upon the defense to show that the boarding was illegal for lack of authority, and that such illegality, if found to exist, would call for the exclusion of any evidence subsequently obtained. The defendants’ broad, unspecific denial is insufficient to shift this burden of proof to the Government. As we said in United States v. De La Fuente, 548 F.2d 528, 534 (5th Cir.), cert." }, { "docid": "6658383", "title": "", "text": "and inspect. The government’s interests in being able to conduct discretionary safety inspections of its flag vessels have a similar degree of importance. The Coast Guard is vested with broad authority to promote the safety of American vessels on the high seas, 14 U.S.C. § 2. Under international law, the United States is expected to regulate the safety and lawful operation of its flag vessels on the high seas. See Convention of the High Seas, Sept. 30, 1962, arts. 5, 10, 13 U.S.T. 2312, 2315, 2316, T.I.A.S. No. 5200; United States v. Warren, 578 F.2d 1058, 1064 n. 4 (5th Cir. 1978); United States v. One (1) 48 Foot Sailing Vessel, 405 F.Supp. 879, 882 (S.D.Fla.1975), aff’d, 538 F.2d 694 (5th Cir. 1976) (per curiam). Improperly registered or unsafe American vessels may constitute an international hazard. Inspection schemes limited to inspecting vessels in American ports would decrease the Coast Guard’s ability to police all American flag vessels, particularly since such vessels may operate far from the shores of the United States, seldom calling on American ports. We observe that in the analogous area of customs searches within 12 miles of the coast, broad authority to stop and board without probable cause or a warrant historically bears the imprint of approval. The authority presently embodied in 19 U.S.C. § 1581 can be traced to the First Congress. Act of August 4, 1790, c. 35, § 31, 1 Stat. 145,164; see United States v. Freeman, 579 F.2d 942, 946-47 (5th Cir. 1978); cf. United States v. Ramsey, 431 U.S. 606, 616-17, 97 S.Ct. 1972, 1978-79, 52 L.Ed.2d 617 (1977); Boyd v. United States, 116 U.S. 616, 623, 6 S.Ct. 524, 528, 29 L.Ed. 746 (1886). Because of the unique circumstances existing on the high seas, the long history of regulatory stops and inspections of ocean-going vessels, the heavy overlay of maritime and international law, the concern of the nation for policing its ocean borders, even beyond the 12-mile customs zone, and the strong interest in regulating the conduct of vessels protected by our flag, we believe the Coast Guard’s practice of stopping" }, { "docid": "6658390", "title": "", "text": "denied, 435 U.S. 952, 98 S.Ct. 1581, 55 L.Ed.2d 803 (1978); cf. Coolidge v. New Hampshire, 403 U.S. 443, 465-68, 91 S.Ct. 2022, 2037-2039, 29 L.Ed.2d 564 (1971) (plain view). Discovery of the marijuana, together with the other facts known to the officers, amply justified arrest of the defendants and seizure of their vessel. 14 U.S.C. § 89(a). Defendants’ other two arguments are insubstantial. We agree with the district court that these defendants have no “standing” to contest the search of the briefcase, the camera, and the film canisters seized aboard the Southern Belle since none of the defendants, either at the time of the seizure or at the suppression hearing, asserted any proprietary or possessory interest in the items seized. See Rakas v. Illinois, 439 U.S. 128, 130-31 n. 1, 99 S.Ct. 421, 423-24 n. 1, 58 L.Ed.2d 387 (1978). We thus do not consider whether the opening of the briefcase, the camera, and the film canisters was, as the government contends, justified under the exigent circumstances doctrine. Compare United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977). Finally, as we find no basis for holding any of the seized material inadmissible, defendants’ contention that absent such material there was insufficient evidence to support a conviction fails. The district court did not err in denying defendants’ motions for judgment of acquittal. Affirmed. . The high seas lie seaward of the territorial waters, which extend three miles from the coast. The high seas encompass the contiguous zone (also known as the customs waters) extending three to twelve miles from the coast. We deal here with the boarding of an American vessel by the Coast Guard beyond the 12-mile customs limit. See United States v. Warren, 578 F.2d 1058, 1064 n. 4 (5th Cir. 1978) (en banc); compare 19 U.S.C. § 1581(a)." }, { "docid": "22450038", "title": "", "text": "of which district court should issue the particular warrant. This problem would be more perplexing in a case where the law enforcement agency wishes to search a vessel at one of the innumerable points at sea that are equidistant from two or more districts of the same or different circuits. . As the en banc court observed in United States v. Warren, 578 F.2d at 1064 n. 4: This 12-mile limit includes the territorial sea, which extends to three miles from the coast, and the contiguous zone, which extends from three to 12 miles from the coast. The United States exercises plenary power over the territorial sea, subject to the requirement that the passage of foreign vessels may not be interfered with unreasonably. See Carmichael, At Sea with the Fourth Amendment, 32 Miami L.Rev. 51, 56-57 (1977). The power of the United States over foreign vessels in the contiguous zone is limited to the preservation of specific interests, e. g., the enforcement of customs and safety laws. See id. at 58. The high seas lie seaward of the territorial sea and thus encompass the contiguous zone. In this opinion, we sometimes refer to the high seas beyond the contiguous zone as “international waters.” . Section 89(a) empowers the Coast Guard to: make inquiries, examinations, inspections, searches, seizures, and arrests upon the high seas and waters over which the United States has jurisdiction, for the prevention, detection, and suppression of violations of laws of the United States. For such purposes, commissioned, warrant, and petty officers may at any time go on board of any vessel subject to the jurisdiction, or to the operation of any law, of the United States, address inquiries to those on board, examine the ship’s documents and papers, and examine, inspect, and search the vessel and use all necessary force to compel compliance. . Section 1581(a) provides: Any officer of the customs [defined to include Coast Guard officers by 14 U.S.C. § 89(b) (1976) and 19 U.S.C. §§ 1401(i), 1709(b) (1976)] may at any time go on board of any vessel ... at any place . ." }, { "docid": "22990707", "title": "", "text": "The rule regarding the boarding and inspection of American flag vessels by the Coast Guard should be contrasted. American vessels are subject to boarding for documentation and safety inspections without suspicion of illegality. United States v. Warren, 578 F.2d 1058, 1064-65 (5th Cir. 1978) (en banc). The boarding of a vessel on the high seas by its flag state is not an international event. The consequences are solely a domestic matter. The boarding of a foreign vessel is, of course, a matter of international concern that might call for more restraint on the part of the boarding state. See Lauritzen v. Larsen, 345 U.S. 571, 582, 73 S.Ct. 921, 928, 97 L.Ed. 1254 (1953). . Coast Guard vessels qualify as war ships. See United States v. Cadena, 585 F.2d 1252, 1260 n.16 (5th Cir. 1978); Convention on the High Seas art. 8(2). . This is not to say, as we shall demonstrate below, that a foreign pleasure craft may avail itself of article 22’s prohibition on boardings of merchant vessels for purposes other than those set forth. . Statutory authority for this boarding is found in 19 U.S.C. § 1581(a) (1976), which provides that customs officers (defined to include Coast Guard officers by 14 U.S.C. § 89(b) (1976) and 19 U.S.C. §§ 1401(i), 1709(b) (1976)) “may at any time go on board of any vessel ... at any place . . . within the customs waters [defined in 19 U.S.C. § 1401(j) (1976) as those waters within twelve miles of the Coast of the United States] . and examine the manifest and other documents and papers.” Customs regulations also validated the boarding. 19 C.F.R. § 162.3 (1978). See United States v. Freeman, 579 F.2d 942, 945 n.4 (5th Cir. 1978). We need not decide whether the Coast Guard would have been justified, under article 22, in boarding the La Rosa at the point at which Lt. Beardsworth ordered her to heave to. We measure the permissibility of the boarding on the basis of all the facts and circumstances known as of the time of the actual boarding and find it" }, { "docid": "22163740", "title": "", "text": "seize evidence, and make arrests. Odom, 526 F.2d at 342. The boarding, interrogation, and search in this case come within these principles. The Coast Guard officers and the agents boarded the Stormy Seas pursuant to the authority of section 89 to conduct a safety and documentation inspection and to look for obvious customs and narcotics violations. Record, vol. 2, at 74, 85-86. In the course of this inspection, the enrollment papers were examined, and they indicated that the Stormy Seas was destined for no foreign port. Thomas Warren, however, professed the purpose of the trip to be land investment in South America. Later, Cruse and John Warren stated that the Stormy Seas was chartered for fishing and diving, but no ice to preserve catch was aboard and the diving gear was apparently inoperative. According to the testimony of Agent Wallace, these circumstances led him to suspect that the Stormy Seas was on a narcotics run and motivated him to inquire as to how much money was on board. This inquiry elicited the admission by Thomas Warren that he possessed approximately $7,000 and that he had not registered it upon departure from the United States. Thomas Warren’s statement established an apparent violation of customs law, and a large amount of money was uncovered after he led members of the boarding party to the crew’s quarters. The defendants and Cruse were arrested, after which Cruse confessed that the Stormy Seas was on a “pot” run. The vessel was seized, and a search uncovered evidence confirming Cruse’s confession. Each link in this chain of events, from boarding to inventory search, is legally sound. The boarding was lawful, and the scope of the interrogation was determined by well-founded suspicion. The currency was revealed after Thomas Warren admitted that he had not registered it, and the search that produced the evidence upon which the marijuana conspiracy convictions were based took place after the arrests and after Cruse confessed that the Stormy Seas was on a “pot” run. Seeing the facts in this light, we think that this case is controlled by our holding in United" }, { "docid": "13708108", "title": "", "text": "extends to three miles from the coast. The contiguous zone extends from three to twelve miles from the coast. The term international waters refers to the seas beyond the twelve mile limit. See United States v. Williams, 617 F.2d 1063, 1073 n.6 (5th Cir. 1980) (en banc); United States v. Warren, 578 F.2d 1058, 1064 n.4 (5th Cir. 1978) (en banc), modiñed en banc on other grounds, 612 F.2d 887, cert. denied, 446 U.S. 956, 100 S.Ct. 2928, 64 L.Ed.2d 815 (1980). Therefore, the Coast Guard had plenary authority to stop and board the POLARIS if it was in the high seas area which includes the contiguous zone (where the vessel was first ordered to “heave to”) or in international waters (where the Coast Guard finally boarded the vessel). See also 33 C.F.R. § 2.05-l(a) (1981) (the “ ‘high seas’ means all waters which are neither territorial seas nor internal waters”). . I concurred only in the result of this case. While I adhere to the views expressed in my separate opinion, I agree that the majority opinion states what is now the law of the circuit. . Accord, United States v. Mazyak, 650 F.2d 788, 790 (5th Cir. 1981), cert. denied, -U.S. -, 102 S.Ct. 1281, 71 L.Ed.2d 464 (1982); United States v. Jonas, 639 F.2d 200, 202-03 (5th Cir. 1981); United States v. DeWeese, 632 F.2d 1267, 1269 (5th Cir. 1980) (stating this circuit’s position that the Coast Guard has plenary authority under § 89(a) “to stop and board American vessels on the high seas to inspect for safety, documentation, and obvious customs and narcotics violations\" (emphasis added)). . But see United States v. Williams, 617 F.2d 1063, 1095 (5th Cir. 1980) (en banc) (Rubin, J., concurring in result) (“I would hold that the seizure and search of vessels on the high seas is governed by the same principles as the stopping and searching of automobiles, planes and other vehicles.”); United States v. Piner, 608 F.2d 358, 361 (9th Cir. 1979) (requiring reasonable suspicion of illegality or a fixed administrative standard for boardings pursuant to § 89(a)); 3" }, { "docid": "22163737", "title": "", "text": "from the Colombian Counsel’s office to Thomas Warren, to mean cocaine.. The passage containing the word is, “don’t forget to pick up my shirts from Ozzie.” The Warrens complained that the testimony was inadmissible because they had not been charged with any violation concerning cocaine. The panel concluded that the admission of the testimony was “harmless in light of the weight of the other evidence,” 550 F.2d at 226, and we agree. The panel also determined that a statement by the Government to the jury during rebuttal argument, “no one has given you . any reasonable explanation of why John Warren and Tommy Warren were on a shrimp boat 700 miles [at sea with the trash compactor, plastic bags, and money],” was not an impermissible comment on the defendants’ right to remain silent. Id. at 226 n.8, 227-28. We agree with this determination as well. See United States v. Dearden, 546 F.2d 622, 625-26 (5th Cir.), cert. denied, 434 U.S. 902, 98 S.Ct. 296, 54 L.Ed.2d 188 (1977); United States v. Hill, 508 F.2d 345, 347 (5th Cir.), cert. denied, 422 U.S. 1009, 95 S.Ct. 2633, 45 L.Ed.2d 672 (1975). Finally, the panel dismissed as without merit a contention by Thomas Warren that the trial judge made certain impermissible comments during the voir dire examination of prospective jurors. 550 F.2d at 226 n.7. We concur with the panel’s resolution of this issue. III. Analysis A. Authority for the Boarding of the Stormy Seas, the Interrogation, and the Search Federal law authorizes the Coast Guard to make inquiries, examinations, inspections, searches, seizures, and arrests upon the high seas and waters over which the United States has jurisdiction, for the prevention, detection, and suppression of violations of laws of the United States. For such purposes, commissioned, warrant, and petty officers may at any time go on board of any vessel subject to the jurisdiction, or to the operation of any law, of the United States, address inquiries to those on board, examine the ship’s documents and papers, and examine, inspect, and search the vessel and use all necessary force to compel compliance." }, { "docid": "22163754", "title": "", "text": "sailing beyond areas in which foreign vessels were subject to customs regulation. The jurisdiction of the Coast Guard over American flag vessels beyond the twelve-mile limit had been established under the holdings of Maul and its companion case, United States v. Lee, 274 U.S. 559, 47 S.Ct. 746, 71 L.Ed. 1202 (1927). The same Congress that responded to Maul by enacting the precursor of section 89 also passed the Anti-Smuggling Act. We think the intent of Congress is clear: Congress meant that section 89 should define the authority of the Coast Guard over American vessels beyond the twelve-mile limit. That authority allows boardings without suspicion of illegality. Subsection c of section 89 interdicts any regulations that might impinge upon that authority. Therefore, we will not read section 143, which derives from an act designed to expand Coast Guard jurisdiction over foreign vessels, to limit the Coast Guard when acting pursuant to its powers under section 89 over American vessels beyond the twelve-mile limit. Accord, The Underwriter, 13 F.2d 433, 434 (2d Cir. 1926), aff’d sub nom. Maul v. United States, 274 U.S. 501, 47 S.Ct. 735, 71 L.Ed. 1171 (1927). The probable-cause-for-boarding requirement of 19 C.F.R. § 162.3 does not apply to the boarding in this case. B. The Miranda Issue The issue we must determine is whether the Miranda warnings that were given Thomas Warren immediately after he produced the first envelopes, which contained money in excess of $5,000, came too late. The panel was of the opinion that the warnings should have been given before Thomas Warren’s admission to Agent Wallace that he possessed more than $5,000. Apparently, the panel believed the defendants to be in custody at the time the questions concerning the amount of money each had on board were asked. Of course, it is the existence of a custodial atmosphere that invokes the necessity for the warnings. Miranda, 384 U.S. at 444, 86 S.Ct. at 1612; United States v. Carollo, 507 F.2d 50 (5th Cir. 1975), cert. denied, 423 U.S. 874, 96 S.Ct. 143, 46 L.Ed.2d 105 (1976). The panel noted several circumstances that led" } ]

[ { "docid": "18732232", "title": "", "text": "at trial, we believe that the Bank has met its burden of showing that the debtor used a statement in writing, respecting debtor’s financial condition, that contained a materially false statement. This finding is not enough, however, to deem this debt nondischargeable. Congress has determined that the heavy onus of nondis-charge of a debt should only be borne when all the elements, including the intent to deceive, have been proven. In this case, we must examine further the proof of the elements of “reasonable reliance” and “intent to deceive.” At the trial in this case, the debtor sought to elicit an admission from the Bank’s vice-president in charge of this loan that he placed little importance upon debtor’s financial statement, and in particular, the value of the furniture and fixtures, in deciding whether to grant this loan. Despite repeated questioning, the Bank’s vice-president consistently maintained that he in fact relied upon all of the financial statements, as well as the intended security, in evaluating the loan applications. [Notes of Testimony at 55, 56, 65, 72; hereinafter cited as N.T.] We do not feel that the Bank must prove that it relied solely on the debtors statement, only that their reliance was a “contributory cause of the extension of credit.” In re Shipley, 1 B.R. 85, 90 (Bkrtcy.D.Md.1979). Indeed, it has long been held that partial reliance upon a written statement is reasonable. See, In re Barrett, 2 B.R. 296 (Bkrtcy.E.D.Pa.1979), and the cases cited therein. The requirement is that the creditor must show a meaningful, reasonable reliance upon the information provided. In re Sutmire, 2 B.R. 105 (Bkrtcy.M.D.Fla.1979); In re Yeiser, 2 B.R. 98 (Bkrtcy.M.D.Tenn.1979). We believe that the Bank reasonably relied upon the debtor’s valuation of his furniture and fixtures in deciding whether or not to grant these loans. Although other substantial security was given to insure repayment of the loans, the Bank also received the personal guaranty of the debtor that the notes would be repaid. The debtor pledged that in case the corporation could not repay the loan, his assets would be available to satisfy the debt." } ]

[ { "docid": "10213727", "title": "", "text": "(Bankr.E.D.Pa.1981); In re Shipley, 1 B.R. 85 (Bankr.D.Md.1979). In the instant case, both CIT and Management Jets have claimed reliance on the false financial statement and in fact the testimony establishes that the statement was at least considered by officers of both Plaintiffs. It is the degree of reliance and the effect of that reliance that becomes critical — the causative factor. Before considering whether that reliance rose to the level necessary to meet the causative factor, the composite element of reasonableness will be discussed. While a debtor’s intent to deceive is determined with reference to a subjective standard, the reasonableness of a creditor’s reliance on a false financial statement must be determined with reference to objective criteria. In re Gilman, 31 B.R. 927, 929 (Bankr.S.D.Fla.1983); In re Magnusson, 14 B.R. at 668-669, n. 1. The objective standard relied on by most courts was initially set out in the decision of In re Patch, 24 B.R. 563 (Bankr.D.Md.1982). The court in that case stated as follows: It appears appropriate, therefore, that the reasonableness of a creditor’s reliance on a financial statement should be judged by comparing the creditor’s actual conduct with (1) the creditor’s own normal business practices, and (2) the standards and customs of the industry, (3) in light of the surrounding circumstances existing at the time the application was made and credit extended. In re Patch, 24 B.R. at 567. See also In re Furimsky, 40 B.R. 350, 355 (Bankr.D.Ariz.1984); In re Saunders, 37 B.R. 766, 769 (Bankr.N.D.Ohio 1984). An issue associated with an examination of the reasonableness of a creditor’s reliance is whether the creditor had a duty to make independent inquiries of the debtor’s financial condition. Where a financial statement is obviously erroneous from its face, a creditor’s reliance has been found unreasonable. In re Jackson, 32 B.R. 549, 552 (Bankr.E.D.Va.1983). Thus, a creditor’s reliance upon a false financial statement will be unreasonable when that creditor has knowledge that the financial statement is incomplete and inaccurate. In re Futterman, 35 B.R. 102, 105 (Bankr.D.Conn.1983); In re Winfree, 34 B.R. 879, 885 (Bankr.M.D.Tenn.1983). Where the financial statement" }, { "docid": "10273106", "title": "", "text": "statements, T-5 and T-6, for the Bank’s consideration. Debtor certainly knew that the Bank required this financial information in making its credit decision regarding the Loans. The Debtor knew or should have known that her financial statements and her income tax returns contained conflicting information. Accordingly, this Court finds that the Debtor submitted the financial statements to the Bank knowing they was false, or at least acting with reckless indifference as to the truth of the information therein, with the intent to deceive the Bank. Finally, there can be no dispute as to whether the financial statements were “published” as required by § 523(a)(2)(B)(iv). A writing is published under this subsection if it is “either written by the debtor, signed by the debtor, or adopted and used by the debtor”. Landmark Leasing Incorporated v. Martz (In re Martz), 88 B.R. 663, 671 (Bankr.E.D.Pa.1988) (emphasis in original). The financial statements were signed by the Debtor. These findings by the Court are not sufficient, however, to deny Debtor her discharge since the Bank must prove each element of § 523(a)(2)(B) to prevail and it failed to establish the third element, i.e., it actually relied upon the false information in the financial statements in deciding to make the Loans. Martz, 88 B.R. at 673. See also IH Mississippi Valley Credit Union v. O’Connor (In re O’Connor), 149 B.R. 802, 809 (Bankr.E.D.Va.1993). Actual reliance is a subjective test that requires a creditor to show that its reliance on a false financial statement was “a contributory cause of the extension of credit” and that credit would not have been granted if the lender had received accurate information. Anzman, 73 B.R. at 164 (quoting In re Coughlin, 27 B.R. 632, 637 (1st Cir. BAP 1983)). See also In re Nance, 70 B.R. 318, 323 (Bankr.N.D.Tex.1987) (quoting In re Mutschler, 45 B.R. 482, 492 (Bankr.D.N.D.1984)) (Reliance need not be absolute or the sole factor but rather need only be the “precipitant; the catalyst for the loan, without which the loan would not have been made.”) Here, Ward testified that if she had known the true salary the" }, { "docid": "1799964", "title": "", "text": "Plaintiff acknowledges that it did not rely exclusively on Debtor’s financial statement in deciding to lend Skyline Properties $600,000.00. Had it done so, an argument could be advanced that such reliance was not reasonable. However, this does not mean that Horowitz did not actually rely on the financial statement. A creditor need not rely exclusively or entirely on a financial statement. Partial reliance may be sufficient. In re Tomei, 24 B.R. 204 (W.D.N.Y.1982) (citations omitted). All that is required for there to be actual reliance is that the financial statement have been “a contributory cause of the extension of credit”. In re Drewett, 13 B.R. 877 (Bankr.E.D.Pa.1981) (quoting, In re Shipley), 1 B.R. 85 (Bankr.D.Md.1979)). At the very least, Debtor’s financial statement was such a “contributory cause” of the $600,000.00 loan. Horowitz’s reliance on the financial statement, to the extent that it did rely, also was reasonable. Care must be taken when evaluating a creditor’s reliance on a financial statement to avoid scrutinizing the creditor’s business judgment instead of determining whether its reliance was reasonable. In re Kroh, 88 B.R. 987 (Bankr.W.D.Mo.1988). The standard for determining whether such reliance was reasonable is objective—i.e., that degree of care which would be exercised by a reasonably cautious person in an average business transaction. In re Icsman, 64 B.R. 58 (Bankr.N. D.Ohio 1986). A creditor does not have an affirmative duty to verify the accuracy of a financial statement. Matter of Earls, 80 B.R. 978 (W.D.Mo.1987). It is not obligated to conduct an independent investigation when, on its face, all facts are sworn to as accurate. In re Kroh, supra at 994. Accordingly, the fact that Horowitz relied on Debtor’s representations concerning her liabilities and did not independently verify them does not entail that its reliance was unreasonable. The financial statement was complete on its face, contained no apparent inconsistencies, and gave no indication that Horowitz should have attempted to verify the accuracy of the representations as to Debtor’s liabilities. Horowitz had no reason to suspect that Debtor had grossly understated her contingent liabilities by approximately $9 million. In addition, there is no" }, { "docid": "10213726", "title": "", "text": "other elements of this section are not even reached. Courts, beginning with In re Houtman, supra, clarified this threshold requirement by enumerating it as a separate element of proof. See also In re Maier, 38 B.R. 231 (Bankr.D.Minn.1984); In re Coughlin, supra; In re Simpson, 29 B.R. 202 (Bankr.N.D.Iowa 1983); In re Foreman, 7 B.R. 776 (Bankr.D.S.D.1980). Reliance assumes a degree of causation, without which the credit would never have been extended. Courts have held that the reliance on the financial statement need not be an absolute reliance or the sole factor. It is sufficient for section 523 that the proof establish that the reliance on the financial statement was the principal precipitant, the catalyst for the loan, without which the loan would not have been made. In re Coughlin, supra. The burden is on the creditor to show by clear and convincing evidence that the financial statement was a significant factor in extension of credit, in the absence of which the extension would not have been made. See In re Drewett, 13 B.R. 877 (Bankr.E.D.Pa.1981); In re Shipley, 1 B.R. 85 (Bankr.D.Md.1979). In the instant case, both CIT and Management Jets have claimed reliance on the false financial statement and in fact the testimony establishes that the statement was at least considered by officers of both Plaintiffs. It is the degree of reliance and the effect of that reliance that becomes critical — the causative factor. Before considering whether that reliance rose to the level necessary to meet the causative factor, the composite element of reasonableness will be discussed. While a debtor’s intent to deceive is determined with reference to a subjective standard, the reasonableness of a creditor’s reliance on a false financial statement must be determined with reference to objective criteria. In re Gilman, 31 B.R. 927, 929 (Bankr.S.D.Fla.1983); In re Magnusson, 14 B.R. at 668-669, n. 1. The objective standard relied on by most courts was initially set out in the decision of In re Patch, 24 B.R. 563 (Bankr.D.Md.1982). The court in that case stated as follows: It appears appropriate, therefore, that the reasonableness of a" }, { "docid": "1124472", "title": "", "text": "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; Exceptions to discharge as set forth in § 523 are to be liberally construed in favor of the debtor and strictly construed against the creditor, In re Hunter, 780 F.2d 1577 (11th Cir.1986), to carry out the “fresh start” policy of the Bankruptcy Code. In re Linn, 38 B.R. 762 (9th Cir. BAP 1984). The creditor seeking a determination of nondischargeability bears the burden of proving by clear and convincing evidence the elements set forth in § 523(a)(2)(B). In re Hunter, supra, at 1579. In the instant case, plaintiff extended credit to the debtors in reasonable reliance on the personal financial statements given it by the debtors. The bank officer’s testimony regarding his evaluation of their apparent liquidity and his testimony that but for the high asset to liability ratio he would not have approved the loans sufficiently proves reasonable reliance. That the financial statements were materially false is likewise clear. The values placed on the debtor’s artwork bore absolutely no relationship to reality, and the debtors were aware of that fact. While everyone owning an original work of art envisions the day that the artist achieves fame and the work becomes valuable, such dreams cannot form the basis of valuation of that art on a personal financial statement. The debtors’ assertions that they did not mean to deceive the bank bear no weight. Even if the false statements were not knowingly made, they were made so recklessly as to constitute fraud on the creditor. Knoxville Teachers Credit Union v. Parkey, 790 F.2d 490 (6th Cir.1986). Plaintiff’s claim under § 523(a)(2)(A), based on the same facts cannot stand. § 523(a)(2)(A) and (a)(2)(B) are mutually exclusive remedies since (B) is based on the use of a fraudulent statement regarding the debtors’ financial condition and (A) is based on fraud other than a statement regarding the debtors’ financial condition. Since the only allegations of fraud" }, { "docid": "18988632", "title": "", "text": "of Patch, 24 B.R. 563, 567, 568 supra, which held that a departure from practice or custom could lead to a finding of unreasonable reliance if the following of standard practices would have provided the creditor with important informations based on the circumstances existing at the time the application was made. In addition, the standard to be employed in determining the reasonableness of reliance depends in part on the relative sophistication of the parties, the nature of the representation and the ease of conducting an investigation. In re Furimsky, 40 B.R. 350, 355 (Bankr.D.Ariz.1984). Partial reliance on a false representation in connection with an extension of credit has been held to be an adequate basis to prevent discharge of an underlying debt. Matter of Garman, 625 F.2d 1252, 1253, n. 1, supra, citing, Carini v. Matera, 592 F.2d 378, supra; In re Sullivan, 58 B.R. 692, 697 (Bankr.D.Mass.1986); Matter of Kinney, 54 B.R. 348, 351 (Bankr.M.D.Fla.1985); In re Harms, 53 B.R. 134, 143 su pra. As stated in In re Coughlin, 27 B.R. 632, 637 (B.A.P. 1st Cir.1983). All that is required is that the financial statement was a “contributory cause of the extension of credit” American Bank and Trust v. Drewett (In re Drewelt), 13 B.R. 877, 880 (Bankr.E.D.Pa.1981) (quoting State Employees Credit Union of Md., Inc. v. Shipley, In re Shipley, 1 B.,R. 85, 90 (Bankr.D.Md.1979). In re Ardelean, 28 B.R. 299, 301, supra. While § 523(a)(2)(B) imposes on the creditor the duty to make reasonable inquiry it does not require the debtor to make all possible inquiries or investigate all possible avenues of investigation and a creditor need not necessarily independently investigate when the information on the application is not the creditor’s sole source of the creditor’s reliance. For example, when a creditor has had favorable prior dealings with a debtor, and, in consideration of all the circumstances can reasonably expect that the obligation can and will be satisfied, partial reliance on a financial statement is reasonable. In re Icsman, 64 B.R. 58, 63 (Bankr.W.D.Ohio 1986). Thus, where a creditor has knowledge of factors other than the" }, { "docid": "22268055", "title": "", "text": "On its face, this Application is inherently unreliable due to the lack of sufficient solicited information to portray an applicant’s financial condition. See, In re Adams, 368 F.Supp. 80, 82-3 (D.S.D.1973); Matter of Henry Danesi, 6 B.R. 738, 740 (S.D.N.Y. 1980), aff’g 1 B.R. 234 (Bkrtcy.S.D.N.Y. 1979). In a situation where a creditor asserts complete reliance on a debtor’s completion of a “form” statement of financial condition, the statement, to engender reasonable reliance, must be of such a character that it portrays a net asset worth or net income figure. Under an objective standard of “reasonable reliance’ I find that the Credit Union fails to meet its burden of proof on that element. C. Assuming arguendo that reasonable reliance was shown, the last element of requisite proof for the Credit Union is clear and convincing evidence of the Debtor’s “intent to deceive” when executing his Application. See, 11 U.S.C. 523(a)(2)(B)(iv). Obtaining credit by a materially false financial statement will prevent bankruptcy discharge if the bankrupt-debtor either (1) had actual knowledge of the falsity of the statement, or (2) demonstrated reckless indifference to the accuracy of the facts stated therein. Matter of Bardwell, 610 F.2d 228, 229 (5th Cir. 1980); in accord, In re Paul L. Barrett, 2 B.R. 296, 298 (Bkrtcy.E.D.Pa. 1980) (re: Bankruptcy Act of 1898, § 17(a)(2)). Where a person knowingly or recklessly makes a false representation which the person knows or should know, will induce another to make a loan, intent to deceive may logically be inferred. Carini v. Matera, 592 F.2d 378 (7th Cir. 1979) citing to In re Nelson, 561 F.2d 1342, 1346-47 (9th Cir. 1977). This inference arises because where a debtor knowingly makes a false statement, he must be held to have intended the natural and necessary consequences of his act. In re Arnold Jay Norton, Jr., 11 B.R. 141,145 (Bkrtcy.D.Vt.1980) citing to In re Stine, 60 F.Supp. 703 (E.D. Mo.1945). A finding of an “intent to deceive” is a finding of fact relating to a subjective state of mind wherein the bankrupt’s credibility is an important factor. See, In re Nelson, supra," }, { "docid": "20922886", "title": "", "text": "condition by Deere representatives in Iowa, the Debtor prepared a materially false statement with the intent of deceiving Deere. C. The final prong of § 523(a)(2)(B) requires Deere to demonstrate that it reasonably relied on the Debtor’s false financial statement. This provision of § 523 requires the Court to undertake a two-part analysis: (1) did the creditor actually rely on the financial statement; and (2) was the reliance reasonable? 1. Actual Reliance Direct proof of actual reliance is difficult to obtain. As a result, courts customarily have found that actual reliance may be proven by circumstantial evidence. First Nat’l Bank of Lansing v. Kreps (In re Kreps), 700 F.2d 372 (7th Cir.1983); Northern Trust Co. v. Garman (Matter of Garman), 625 F.2d 755 (7th Cir.1980). A creditor need only establish its reliance in fact; a showing of unreasonable reliance may negate a finding of reliance in fact. Matter of Garman, 625 F.2d at 761. Finally, partial reliance on a false representation in connection with an extension of credit is sufficient to prevent the discharge of the underlying debt. Lincoln First Bank v. Tomei (In re Tomei), 24 B.R. 204, 206 (D.C.N.Y.1982); Bazemore v. Stehling, 396 F.2d 701, 703 (5th Cir.1968). “ ‘It is sufficient if [the false statement] was a substantial factor in causing the [extension of credit].’ ” In re Tomei, 24 B.R. at 206 (quoting In re Clancy, 279 F.Supp. 820, 822 (D.Colo.1986), aff'd, 408 F.2d 899 (10th Cir.), cert. denied, 396 U.S. 958, 90 S.Ct. 430, 24 L.Ed.2d 422 (1969)). Here, Deere satisfied its burden of proving actual reliance. The evidence establishes that the Contract was returned unaccepted to Suburban because it was not accompanied by a current financial statement. Clearly, Deere would not have requested a recent financial statement upon initial receipt of the Contract if it did not place some reliance upon the information contained therein. This increased vigilance on behalf of Deere is important circumstantial evidence of actual reliance. See In re Kreps, 700 F.2d at 376. Additionally, Henry’s testimony that Deere’s normal business practice is, and was then, to review financial statements prior" }, { "docid": "10213729", "title": "", "text": "is not facially incomplete or inaccurate, then there is no obligation upon a creditor to make an independent check of the applicant’s financial condition, unless the creditor’s normal business practice dictates that such cheeks be made in all instances. In re Vairo, 40 B.R. 776, 781 (Bankr.S.D.N.Y.1984). There was nothing from the face of the Mutschler financial statement of June 1, 1981, that would point up obvious inaccuracies or give a potential creditor pause as to whether it was accurate or not. Persons receiving financial statements in connection with a loan application are entitled to rely on the statement as being an accurate representation of what it purports to be as long as fraud is not apparent from the document itself. To rule otherwise would render the use of financial statements meaningless and would run contrary to long established business practice regarding their preparation and use. CIT had available to it only the financial statement, and even though it was not patently irregular, a complete check of the statement’s information was made. Conducting a credit check was the usual practice for CIT and it was also the usual practice for Management Jets in those unusual situations where a note was taken back. While perhaps prudent to conduct a credit check, such a check is not mandatory where the financial statement itself does not raise “red flags” indicating irregularities. Furthermore, in the present instance, a credit check would have served no purpose because it would not have revealed the inaccuracies or omissions and probably would have left a creditor with a false impression of honesty on the part of the Debtor. To the degree CIT and Management Jets relied on the statement, that reliance was reasonable. Reasonable reliance has been established by both Plaintiffs. Now we must return to the causation factor which perhaps is the most difficult issue since we must now address the question of whether that reliance on the part of each Plaintiff was the precipitating cause in the extension of credit by the respective Plaintiff. With regards to CIT, the Court is satisfied the financial statement was" }, { "docid": "1799962", "title": "", "text": "arising out of that reliance to be nondischargeable under 11 U.S.C. § 523(a)(2)(B). In re Long, 44 B.R. 300 (Bankr.D.Minn.1983); In re Richards, 81 B.R. 527 (Bankr.D.Minn. 1987). Proof of detrimental reliance lies with the creditor who brings an action pursuant to § 523(a)(2)(B). In re Richards, supra at 531. Numerous courts have adopted this principle by making it one of the essential elements of a § 523(a)(2)(B) action. The creditor must have suffered the alleged damage or loss as the proximate result of the representations. See, e.g., In re Hott, 99 B.R. 664 (Bankr.W.D. Pa.1989). COUNT I HOROWITZ v. VIRGINIA C. HALL GUARANTY AND SURETYSHIP AGREEMENT Debtor does not deny that she provided Horowitz with a written statement of her financial condition in connection with the $600,000.00 loan and could not seriously deny that it was materially false. These matters do not appear to be at issue here. Rather, Debtor denies that she published it with intent to deceive Horowitz and denies that Horowitz reasonably relied on the financial statement. This Court does not accept Defendant’s defense and, to the contrary, is convinced that Horowitz has demonstrated by clear and convincing evidence that it reasonably relied on the financial statement in making the $600,000.00 loan and that Debtor published it with intent to deceive Horowitz. In order for Horowitz to establish its case pursuant to 11 U.S.C. § 523(a)(2)(B)(iii), it must show both that it actually relied on the financial statement and that such reliance was reasonable. In re Martz, 88 B.R. 663 (Bankr.E.D.Pa.1988). Horowitz actually relied on the financial statement. Plaintiffs agent testified unequivocally, and this Court accepts as a fact, that Horowitz would not have loaned $600,000.00 to Skyline Properties had it known at the time that Debtor had millions of dollars in contingent liabilities. Obviously, the fact that Debtor failed to voluntarily divulge this information would further Plaintiffs determination not to make the loan. In re Coughlin, 27 B.R. 632 (Bankr. 1st Cir.1983) (citations omitted). Evidence demonstrating that a loan would not have been made had the lender received accurate information is sufficient to establish reliance." }, { "docid": "10213730", "title": "", "text": "check was the usual practice for CIT and it was also the usual practice for Management Jets in those unusual situations where a note was taken back. While perhaps prudent to conduct a credit check, such a check is not mandatory where the financial statement itself does not raise “red flags” indicating irregularities. Furthermore, in the present instance, a credit check would have served no purpose because it would not have revealed the inaccuracies or omissions and probably would have left a creditor with a false impression of honesty on the part of the Debtor. To the degree CIT and Management Jets relied on the statement, that reliance was reasonable. Reasonable reliance has been established by both Plaintiffs. Now we must return to the causation factor which perhaps is the most difficult issue since we must now address the question of whether that reliance on the part of each Plaintiff was the precipitating cause in the extension of credit by the respective Plaintiff. With regards to CIT, the Court is satisfied the financial statement was not only the principal factor but the only factor employed by it in its decision to extend credit to Mutschler. CIT had no other information other than the information given to it by Mutschler. The Court is satisfied that but for the financial statement, CIT would not have made the loan. Management Jets was a seller of aircraft, not normally involved in their fi nance. It never intended to finance the Cessna purchase but became involved only secondarily after the purchase contract had already been signed and financing had been arranged through CIT. Management Jets’ principal objective was to sell the plane. Obviously, after having received a financing commitment from CIT for over $1 million, the last thing Management Jets wished was for the deal to fail because of a rather minor discrepancy in the funds transferred to it from CIT. It had already taken in two aircraft in trade and had received $50,000.00 down payment. Although the company witnesses stated that they made a quick decision to take back a note based on the" }, { "docid": "3460228", "title": "", "text": "(W.D.N.Y.1982); In re Ojeda, 51 B.R. 91 (Bankr.D.N.M.1985). These cases both quoted from the legislative history of Section 523: “In many cases, a creditor is required by state law to refinance existing credit on which there has been no default. If the creditor does not forfeit remedies or otherwise rely to his detriment on a false financial statement with respect to existing credit, then an extension, renewal, or refinancing of credit is nondischargeable only to the extent of the new money advanced; on the other hand, if an existing loan is in default or the creditor otherwise reasonably relies to his detriment on a false financial statement with regard to an existing loan, then the entire debt is nondischargeable under section 523(a)(2)(B). This codifies the reasoning expressed by the second circuit in In re Danns, 558 F.2d 114 (2d Cir.1977).” (Emphasis added.) Statement by the Hon. Don Edwards, September 28, 1978, reprinted in U.S.Code Congressional and Administrative News, 95th Cong., 2d Sess., 5787, 6436, at 6453 (1978). This Court believes that the better view is that a false representation in connection with a renewal or refinancing of credit may render the entire debt nondischargeable. However, reliance on the false financial statement must be shown as to the refinancing for the refinanced portion to be nondischargeable. The courts in Ojeda and Gadberry each found that while the entire debt could be found nondischargeable if reliance was shown, that such reliance was not shown as to the refinanced portion in those cases, and that in Ojeda only the new sums advanced should be held nondischargeable. Ojeda at 92; Gadberry at 754. The burden of proof in nondis-chargeability cases is on the creditor to show its reliance on the false financial statement. In re Danns, 558 F.2d 114, 116 (2nd Cir., 1977). Each element, including reliance, must be shown by clear and convincing evidence. In re Coughlin, 27 B.R. 632, 635-636 (1st Cir.B.A.P.1983); In re Gunn, 23 B.R. 20, 22 (Bankr.S.D.Fla.1982). HFC has not met its burden of proving by clear and convincing evidence its reliance as to the refinanced portion of the" }, { "docid": "10213725", "title": "", "text": "Mutschler acted with reckless indifference to the Plaintiffs and it may even be inferred that he specifically intended to deceive whoever might have reason to use the financial statement to obtain financing. This element has been established as to both Plaintiffs. 6. The final element of proof is that of reasonable reliance on the part of the creditors. Reliance, as the term has evolved in connection with section 523 actions, has come to connote not only actual reliance but in addition the concepts of reasonableness and proximate cause. Proximate cause is not, in the tort sense, an independent element of proof but is merely a way of clarifying the causation factor inherent from a complete reading of section 523(a)(2)(B). The preface to the section provides that a discharge does not discharge a debtor from a debt for obtaining an extension of credit by use of a false statement. Thus, the statute itself presupposes in the first instance that it was the statement which was the causative factor in the extension of credit, without which the other elements of this section are not even reached. Courts, beginning with In re Houtman, supra, clarified this threshold requirement by enumerating it as a separate element of proof. See also In re Maier, 38 B.R. 231 (Bankr.D.Minn.1984); In re Coughlin, supra; In re Simpson, 29 B.R. 202 (Bankr.N.D.Iowa 1983); In re Foreman, 7 B.R. 776 (Bankr.D.S.D.1980). Reliance assumes a degree of causation, without which the credit would never have been extended. Courts have held that the reliance on the financial statement need not be an absolute reliance or the sole factor. It is sufficient for section 523 that the proof establish that the reliance on the financial statement was the principal precipitant, the catalyst for the loan, without which the loan would not have been made. In re Coughlin, supra. The burden is on the creditor to show by clear and convincing evidence that the financial statement was a significant factor in extension of credit, in the absence of which the extension would not have been made. See In re Drewett, 13 B.R. 877" }, { "docid": "18988633", "title": "", "text": "(B.A.P. 1st Cir.1983). All that is required is that the financial statement was a “contributory cause of the extension of credit” American Bank and Trust v. Drewett (In re Drewelt), 13 B.R. 877, 880 (Bankr.E.D.Pa.1981) (quoting State Employees Credit Union of Md., Inc. v. Shipley, In re Shipley, 1 B.,R. 85, 90 (Bankr.D.Md.1979). In re Ardelean, 28 B.R. 299, 301, supra. While § 523(a)(2)(B) imposes on the creditor the duty to make reasonable inquiry it does not require the debtor to make all possible inquiries or investigate all possible avenues of investigation and a creditor need not necessarily independently investigate when the information on the application is not the creditor’s sole source of the creditor’s reliance. For example, when a creditor has had favorable prior dealings with a debtor, and, in consideration of all the circumstances can reasonably expect that the obligation can and will be satisfied, partial reliance on a financial statement is reasonable. In re Icsman, 64 B.R. 58, 63 (Bankr.W.D.Ohio 1986). Thus, where a creditor has knowledge of factors other than the ones set forth on the financial statement which would lead a prudent businessman to reasonably expect he will be able to look to the debtor or the debtor’s assets for satisfaction of the debt, then partial reliance on a financial statement can be reasonable and the standard by which reasonable reliance on a financial statement is measured will be lower. Id. at 63-64. However, where the evidence shows, for example, that there was no reliance on the financial statement, but the creditor solely relied on a security interest nondischarge-ability pursuant to § 523(a)(2)(B) will be denied. In Matter of Curl, 64 B.R. 14, 17 and 19, n. 13 (Bankr.W.D.Mo.1986). The Court now turns specifically to the case at bar and will apply the foregoing principles to the evidence adduced by the parties. Here, it is clear that the Debtor did not accurately list all of his material obligations outstanding at the time he completed his financial statement to HFC. Only two debts are listed: 1) Lafayette National Bank in the sum of $7,500.00, and 2)" }, { "docid": "3460227", "title": "", "text": "that the debtor caused to be made or published with intent to deceive .... ” Each of these elements must be shown by clear and convincing evidence. Both new money and refinancing of credit were obtained here. The Court must consider whether or not HFC has proven its reasonable reliance and the Debtor’s intent to deceive as to both the new money and the refinanced debt. The courts have split on whether the entire debt or only the “fresh cash” should be declared non-dischargeable. All agree that new money extended in reliance on a false financial statement is not dis-chargeable. See In Re Gadberry, 37 B.R. 752, 753 (Bankr.C.D.Ill.1984); In Re Barnacle, 44 B.R. 50, 54 (Bankr.D.Minn.1984). Several courts hold that this is all that can be found non-dischargeable. See Matter of Wright, 52 B.R. 27, 29 (Bankr.W.D.Pa.1985); Barnacle, 44 B.R. at 54. Others have held that where a creditor has reasonably relied upon a false financial statement in refinancing an existing loan the entire debt is non-dischargeable. See In re Tomei, 24 B.R. 204 (W.D.N.Y.1982); In re Ojeda, 51 B.R. 91 (Bankr.D.N.M.1985). These cases both quoted from the legislative history of Section 523: “In many cases, a creditor is required by state law to refinance existing credit on which there has been no default. If the creditor does not forfeit remedies or otherwise rely to his detriment on a false financial statement with respect to existing credit, then an extension, renewal, or refinancing of credit is nondischargeable only to the extent of the new money advanced; on the other hand, if an existing loan is in default or the creditor otherwise reasonably relies to his detriment on a false financial statement with regard to an existing loan, then the entire debt is nondischargeable under section 523(a)(2)(B). This codifies the reasoning expressed by the second circuit in In re Danns, 558 F.2d 114 (2d Cir.1977).” (Emphasis added.) Statement by the Hon. Don Edwards, September 28, 1978, reprinted in U.S.Code Congressional and Administrative News, 95th Cong., 2d Sess., 5787, 6436, at 6453 (1978). This Court believes that the better view is" }, { "docid": "22888966", "title": "", "text": "and relied on the actual financial statement in question. Nationwide Financial Corp. v. Dawson (In re Dawson), 16 B.R. 70, 73-74 (Bkrtcy.E.D.Va.1981). Courts have found that the reliance element of section 523(a)(2)(B) was missing when the evidence indicated that the creditor was relying solely on a previous loan repayment, Waterbury Conn. Teachers Federal Credit Union v. Ciampi (In re Ciampi), 14 B.R. 441, 443 (Bkrtcy.D.Conn.1981); the debtor’s established credit rating, First & Merchants National Bank v. Jones (In re Jones), 3 B.R. 410, 413 (Bkrtcy.W.D.Va.1980); or on the pledged security, First Westside National Bank v. Voeller (In re Voeller), 14 B.R. 857, 861 (Bkrtcy.D.Mont.1981); or when the false financial information was submitted after the goods or services were provided. Anderson, Clayton & Co. v. Wingfield (In re Wingfield), 15 B.R. 647, 649-50 (D.Ct.W.D. Okl.1981); see also Sample v. Harlan (In re Harlan), 7 B.R. 83, 84 (Bkrtcy.D.Ariz.1980). Once reliance on the financial statement is established, most courts have held that a showing of partial reliance is sufficient: the creditor need not demonstrate that it was motivated solely by the false financial information. Lincoln First Bank v. Tomei (In re Tomei), 24 B.R. 204, 9 B.C.D. 1166, 1167 (D.Ct.W.D.N.Y.1982). Contra Thomson-MacConnell Cadillac, Inc. v. Isaacs (In re Isaacs), 15 B.R. 210, 210 (Bkrtcy.S.D.Ohio 1981) (financial statement must be “backbone of the issuance of credit”). All that is required is that the financial statement was a “ ‘contributory cause of the extension of credit.’ ” American Bank & Trust v. Drewett (In re Drewett), 13 B.R. 877, 880 (Bkrtcy.E.D.Pa.1981) (quoting State Employees Credit Union of Md., Inc. v. Shipley (In re Shipley), 1 B.R. 85, 90 (Bkrtcy.D.Md.1979)). Evidence demonstrating that the loan would not have been granted if the lender had received accurate information is sufficient to show reliance. Peoples Security Finance, Inc. v. Aldrich (In re Aldrich), 16 B.R. 825, 829 (Bkrtcy.W.D.Ky.1982). A review of the record indicates that there were sound reasons for the bankruptcy court’s findings on the reliance element. First National presented unrebutted testimony that it reviewed the false financial figures in the July 1980 loan application and" }, { "docid": "1799963", "title": "", "text": "accept Defendant’s defense and, to the contrary, is convinced that Horowitz has demonstrated by clear and convincing evidence that it reasonably relied on the financial statement in making the $600,000.00 loan and that Debtor published it with intent to deceive Horowitz. In order for Horowitz to establish its case pursuant to 11 U.S.C. § 523(a)(2)(B)(iii), it must show both that it actually relied on the financial statement and that such reliance was reasonable. In re Martz, 88 B.R. 663 (Bankr.E.D.Pa.1988). Horowitz actually relied on the financial statement. Plaintiffs agent testified unequivocally, and this Court accepts as a fact, that Horowitz would not have loaned $600,000.00 to Skyline Properties had it known at the time that Debtor had millions of dollars in contingent liabilities. Obviously, the fact that Debtor failed to voluntarily divulge this information would further Plaintiffs determination not to make the loan. In re Coughlin, 27 B.R. 632 (Bankr. 1st Cir.1983) (citations omitted). Evidence demonstrating that a loan would not have been made had the lender received accurate information is sufficient to establish reliance. Plaintiff acknowledges that it did not rely exclusively on Debtor’s financial statement in deciding to lend Skyline Properties $600,000.00. Had it done so, an argument could be advanced that such reliance was not reasonable. However, this does not mean that Horowitz did not actually rely on the financial statement. A creditor need not rely exclusively or entirely on a financial statement. Partial reliance may be sufficient. In re Tomei, 24 B.R. 204 (W.D.N.Y.1982) (citations omitted). All that is required for there to be actual reliance is that the financial statement have been “a contributory cause of the extension of credit”. In re Drewett, 13 B.R. 877 (Bankr.E.D.Pa.1981) (quoting, In re Shipley), 1 B.R. 85 (Bankr.D.Md.1979)). At the very least, Debtor’s financial statement was such a “contributory cause” of the $600,000.00 loan. Horowitz’s reliance on the financial statement, to the extent that it did rely, also was reasonable. Care must be taken when evaluating a creditor’s reliance on a financial statement to avoid scrutinizing the creditor’s business judgment instead of determining whether its reliance was reasonable." }, { "docid": "23166398", "title": "", "text": "prima facie case for reliance by showing that the financial statement is one of five factors normally considered in the decision of whether to grant a loan. The Defendant, however, rebutted any presumption of reliance that may have arisen from Plaintiff’s evidence by alleging that Plaintiff’s agent was aware of the errors in the balance sheet. In re Whiting, 10 B.R. 687, 689-90 (Bkrtcy.E.D.Pa.1981) When the Plaintiff’s agent denied any such awareness, the Court was faced with the task of weighing the credibility of the two witnesses. The evidence is in equilibrium with the Court having no basis for placing greater weight on the testimony of either party. An additional factor weighing against the reasonableness of Plaintiff’s reliance is that the Plaintiff made disbursements and additional loans after it became obvious that Defendant’s original balance sheet had been in error, and after the Defendant had proved to be less than totally co-operative in his dealings with Plaintiff. This factor alone is certainly not determinative of the issue of reasonable reliance, but it is a strong factor to be considered. Because the Court finds that the parties have presented equally weighted evidence for and against the reasonableness of Plaintiff’s reliance, it cannot be said that Plaintiff has proven reliance by clear and convincing evidence. 3. Intent to Deceive As with the issue of reliance, intent to deceive may be presumed from the use of a false statement to procure credit. In re Torneo, 1 B.R. 673 (Bkrtcy.E.D.Pa.1979). 3 Collier, ¶ 523.09[5][6] at 523-64, fn. 23. Here again, however, the Defendant/Debt- or may rebut the presumption by denying the alleged intent. The Plaintiff then has the burden of going forward and ultimately bears the risk of non-persuasion. In re Torneo, 1 B.R. 673. See, also In re Whiting, supra. Because direct proof of intent (i.e., debtor’s state of mind) is nearly impossible to obtain, the creditor may present evidence of the surrounding circumstances from which intent may be inferred. In re Hosk-ing, 19 B.R. 891, 895 (Bkrtcy.W.D.Wis.1982); Matter of Rickey, 8 B.R. 860, 863 (Bkrtcy.M.D.Fla.1981). The debtor cannot overcome such an inference" }, { "docid": "10273107", "title": "", "text": "of § 523(a)(2)(B) to prevail and it failed to establish the third element, i.e., it actually relied upon the false information in the financial statements in deciding to make the Loans. Martz, 88 B.R. at 673. See also IH Mississippi Valley Credit Union v. O’Connor (In re O’Connor), 149 B.R. 802, 809 (Bankr.E.D.Va.1993). Actual reliance is a subjective test that requires a creditor to show that its reliance on a false financial statement was “a contributory cause of the extension of credit” and that credit would not have been granted if the lender had received accurate information. Anzman, 73 B.R. at 164 (quoting In re Coughlin, 27 B.R. 632, 637 (1st Cir. BAP 1983)). See also In re Nance, 70 B.R. 318, 323 (Bankr.N.D.Tex.1987) (quoting In re Mutschler, 45 B.R. 482, 492 (Bankr.D.N.D.1984)) (Reliance need not be absolute or the sole factor but rather need only be the “precipitant; the catalyst for the loan, without which the loan would not have been made.”) Here, Ward testified that if she had known the true salary the Debtor was receiving, it would have impacted her decisions. Record I at 66. In response to a direct question of whether she would have renewed the Custom I lines of credit year after year had she known the Debtor’s true income, Ward responded that the first things she would have done “is question [the Debtor] as to why she filled in her financial statements a significantly different figure.” Record I at 67. Ward further stated that “[p]robably that alone would have caused me to discuss with her the differentials and it probably would have had an impact on the fact of me renewing the lines.” Id. Ward conspicuously failed to testify that she would not have renewed the Custom I LOC or made the Custom II LOC or the Voyage LOC had she known the Debtor’s true income. As in the Martz case, this Court finds the Bank’s evidence regarding reliance to be equivocal at best. Martz, 88 B.R. at 673. Moreover, the Bank knew when it received the Debtor’s personal financial statement in 1992," }, { "docid": "10213724", "title": "", "text": "graduate of a law school and had served as a trust officer with various banks for 14 years); In re Blatz, 37 B.R. 401, 404 (Bankr.E.D.Wis.1984) (debtor was a college graduate with an economics degree who had extensive experience in the fields of real estate, insurance and securities). One decision found requisite intent after considering the debtor’s business experience and history of purchasing and leasing aircraft as a tax shelter device. See In re Coughlin, 27 B.R. at 636. Mr. Mutschler must be categorized with such individuals. It defies imagination to believe one with the business expertise and financial experience of Mutschler did not intend the dissemination of false information. He is an individual who has in the past completed numerous financial statements and has financed many aircraft purchases. At the time the financial statement was completed, he had knowledge of additional liabilities which were not included on the financial statement. He signed the financial statement and had the financial statement transmitted for the purpose of obtaining financing for the Cessna Citation. At a minimum, Mutschler acted with reckless indifference to the Plaintiffs and it may even be inferred that he specifically intended to deceive whoever might have reason to use the financial statement to obtain financing. This element has been established as to both Plaintiffs. 6. The final element of proof is that of reasonable reliance on the part of the creditors. Reliance, as the term has evolved in connection with section 523 actions, has come to connote not only actual reliance but in addition the concepts of reasonableness and proximate cause. Proximate cause is not, in the tort sense, an independent element of proof but is merely a way of clarifying the causation factor inherent from a complete reading of section 523(a)(2)(B). The preface to the section provides that a discharge does not discharge a debtor from a debt for obtaining an extension of credit by use of a false statement. Thus, the statute itself presupposes in the first instance that it was the statement which was the causative factor in the extension of credit, without which the" } ]

[ { "docid": "19325813", "title": "", "text": "beginning of the Class Period that Próxima was encountering serious and persistent problems in readying these important new products for the market .... “ (emphasis added). The Court finds that these allegations are sufficient to satisfy the requirement of the PSLRA that a plaintiffs complaint contain: (a) each statement alleged to have been misleading and (b) the reason or reasons why the statement is misleading. 15 U.S.C. § 78u — 4(b)(1). As the allegations cited above indicate, Plaintiffs have indicated each alleged misstatement and have given the reasons why the statement was misleading when made. Therefore, Defendants’ contention that Plaintiffs have not alleged that the statements were false when made as required by the PSLRA fails. 2. Scienter Another argument asserted by Defendants is that Plaintiffs have failed to plead scienter with the particularity required as a result of the enactment of the PSLRA. On December 22,1995, Congress passed the Private Securities Litigation Reform Act of 1995 to “protect investors, issuers, and all who are associated with our capital markets from abusive securities litigation,” and to “implement[ ] need[ed] procedural protections to discourage frivolous litigation.” H.R. Conf. Rep. 104-369, 104th Cong, 1st Sess. 31, 32 (1995). As part of its mission to curb the filing of lawsuits “with only the faint hope that the discovery process might lead eventually to some plausible cause of action,” id., the PSLRA strengthened the pleading requirements otherwise required by Rule 9(b). Specifically, Section 21D(b)(2) provides that in private Rule 10b-5 actions, “the complaint shall, with respect to each act or omission alleged to violate this title, state with particularity facts giving rise to a strong inference that the defendant acted with the required state of mind.” 15 U.S.C. § 78u-4(b)(2). If a plaintiffs pleadings fail to satisfy this requirement, dismissal is mandated. 15 U.S.C. § 78u-4(b)(3). The PSLRA effectively overturned the Ninth Circuit’s lenient scienter pleading requirement enunciated in In re GlenFed, Sec. Lit, 42 F.3d 1541, 1548-49 (9th Cir.1994) (en banc). To date, neither the Ninth Circuit nor any other federal appellate court has interpreted Section 21D(b)(2). The only available decisions interpreting and" } ]

[ { "docid": "16048225", "title": "", "text": "requirement that plaintiffs specify each statement alleged to be misleading and the reasons why it is misleading. With respect to that requirement, we hold that the Reform Act and the traditional Rule 12(b)(6) standard should be reconciled as follows: while we will draw no inferences unfavorable to plaintiffs, we will likewise refuse to draw inferences in the plaintiffs’ favor when doing so would allow them to make allegations “on information and belief’ without satisfying the particularity requirements of the Reform Act. On the one hand, we conclude that the Reform Act does not leave Rule 12(b)(6) unchanged, because it sets forth a new requirement that, “if an allegation regarding [a] 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). Plaintiffs may not circumvent this requirement by asking the court to infer the existence of facts necessary to support a particular allegation. On the other hand, we do not conclude that the Reform Act has completely eviscerated our traditional Rule 12(b)(6) standard. Thus, in evaluating the misleading-statement provision of the Reform Act, to the extent that reasonable inferences can be drawn in the plaintiffs’ favor without violating the strictures of the Reform Act, we will continue to do so. We recognize the nuanced nature of the analysis required by the foregoing section. Such parsing is the result of the overlaying of the Reform Act upon established 12(b)(6) jurisprudence. Ill As noted, to satisfy the Reform Act pleading requirements, plaintiffs must (1) specify all allegedly misleading statements and the reasons why those statements are misleading, and (2) state with particularity facts giving rise to a strong inference that defendants made those statements with the requisite scienter. 15 U.S.C. § 78u-4(b). We now consider the first prong of the Reform Act, i.e., whether plaintiffs have specified what statements are misleading and why. A The allegedly false statements attributed to defendants by plaintiffs fall into four categories: (1) general statements regarding positive demand for Novell’s products, (2) statements regarding promotional pricing and discounts, (3) statements re" }, { "docid": "13127254", "title": "", "text": "9(b). The Eleventh Circuit has stated that Rule 9(b)’s fraud particularity requirement is met as long as the complaint sets forth “(1) precisely what documents or oral representations were made, and (2) the time and place of each such statement and the person responsible for making (or, in the case of omissions, not making) same, and (3) the content of such statements and the manner in which they misled the plaintiff, and (4) what the defendants obtained as a consequence of the fraud.” Ziemba v. Cascade Int’l, Inc., 256 F.3d 1194, 1202 (11th Cir. 2001) (internal citation omitted). In 1995, Congress passed the Private Securities Litigation Reform Act of 1995, Pub.L. No. 194-67, 109 Stat. 743, codified at 15 U.S.C. § 78u-4(b) (“PSLRA”), which made two notable changes to the pleading requirements for securities fraud actions. First, the PSLRA slightly altered Rule 9(b)’s particularity requirement by mandating that a securities fraud action complaint 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)(B). Thus, the PSLRA requires greater specificity than Rule 9(b). Druskin, 299 F.Supp.2d at 1321. Second, the PSLRA raised the standard for pleading scienter; a plaintiff can no longer plead scienter generally. The plaintiff must, for each alleged misrepresentation, “state with particularity facts giving rise to a strong inference that the defendant acted with the required state of mind.” 15 U.S.C. § 78u-4(b)(2) (emphasis added). “Moreover, the complaint must allege facts supporting a strong inference of scienter for each defendant with respect to each violation.” Mizzaro v. Home Depot, Inc., 544 F.3d 1230, 1238 (11th Cir.2008) (emphasis added) (citing Phillips v. Scientific-Atlanta, Inc., 374 F.3d 1015, 1016 (11th Cir.2004)). The Court must dismiss the action if either of these two pleading requirements are not met. Druskin v. Answerthink, Inc., 299 F.Supp.2d 1307, 1321 (S.D.Fla.2004). Analysis In their Motion to Dismiss, Defendants argue that the Complaint should be dismissed" }, { "docid": "21083108", "title": "", "text": "any case law that is inconsistent with the letter or spirit of the Reform Act. Accordingly, application of the Second Circuit’s two-part inquiry is appropriate so long as any inconsistencies with the Reform Act are eliminated. This Court has discovered two such inconsistencies. In applying the “strong inference” standard, the Second Circuit has stated that scienter need not be pled with “great specificity” and that plaintiffs need only provide a “minimal factual basis for their conclusory allegations of scienter.” Connecticut Nat. Bank v. Fluor Corp., 808 F.2d 957 (2d Cir.1987). These statements were made in light of the language of Rule 9(b) which provides that “[mjalice, intent, knowledge, and other condition of mind of a person may be averred generally.” In contrast, the Reform Act states that plaintiffs must “state with particularity facts giving rise to a strong inference that the defendant acted with the required state of mind.” 15 U.S.C. § 78u-4(b)(2) (emphasis added). Further, when Congress adopted the uniform pleading standard it sought to strengthen the requirements of Rule 9(b), which, at the time, was not preventing “abuse of the securities laws by private litigants.” H.R. Conf. Rep. No. 369, 104th Cong., 1st Sess. 41 (1995). Thus, it is clear that under the Reform Act, allegations of scienter cannot be averred generally, but rather, they must be made “with particularity” and a “minimal factual basis” will not suffice. Additionally, the Second Circuit permits plaintiffs to allege facts of either recklessness or conscious behavior for all allegedly misleading statements, whether they are forward-looking or not. In re Time Warner, 9 F.3d at 268-69. Under the Reform Act, circumstantial evidence of recklessness is not sufficient to impose liability for allegations of false or misleading “forwarding-looking statements.” Actual knowledge of falsity is required to impose liability for such statements. 15 U.S.C. § 77z-2. Therefore, when a complaint alleges false forward-looking statements, it must set forth specific facts demonstrating that, as to each of these statements, the defendant consciously misled the public. In sum, to adequately plead scienter under the Reform Act, for each false or misleading statement that is not forward-looking," }, { "docid": "19143331", "title": "", "text": "pleading standard “provides defendants with fair notice of the plaintiffs’ claims, protects defendants from harm to their reputation and good will, reduces the number of strike suits, and prevents plaintiffs from filing baseless claims and then attempting to discover unknown wrongs.” Tuchman, 14 F.3d at 1067. The pleading requirements of Rule 9(b) were reinforced by the 1995 passage of the Private Securities Litigation Reform Act, 15 U.S.C. § 78u-4(b). Under the Reform Act, plaintiffs must “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)(1). Additionally, the Reform Act requires that a plaintiff “state with particularity facts giving rise to a strong inference that the defendant acted with the required state of mind,” 15 U.S.C. § 78u-4(b)(2), that is, a “strong inference of either intentional misconduct or severe recklessness.” See Nathenson, 267 F.3d at 409. “Strong inference” requires pleading of facts that “constitute persuasive, effective, and cogent evidence from which it can be logically deduced that defendants acted with intent to deceive, manipulate or defraud.” Coates v. Heartland Wireless Communications, Inc., 100 F.Supp.2d 417, 422 (N.D.Tex.2000). Thus, to “survive a motion to dismiss, a plaintiff alleging a section 10(b)/Rule 10b-5 claim must ... plead specific facts giving rise to a ‘strong inference’ of scienter.” Nathenson, 267 F.3d at 407 (quoting Tuchman, 14 F.3d at 1067). C. Inactionable Statements of, or Attributed to, Defendants Plaintiffs allege that statements contained in the (1) press releases of February 10, 2000, April 27, 2000, May 18, 2000, July 18, 2000, and July 27, 2000, (2) analyst conference calls of February 10, 2000, and April 27, 2000, (3) March, 2000, annual report to shareholders, (4) 1999 Form 10-K, (5) May 15, 2000, and August 14, 2000, Form 10-Q, and (6) May 12, 22, and 27, 2000, debt offering prospectuses, are false and misleading. The Court finds that, for the reasons listed below, certain of these" }, { "docid": "15436680", "title": "", "text": "specify each misleading statement or omission and specify why the statement or omission was misleading. 15 U.S.C. § 78u-4(b)(1) (Supp. IV 1998). If the allegation “is made on information and belief, the complaint shall state with particularity all facts on which that belief is formed.” Id. Similarly, Rule 9(b) of the Federal Rules of Civil Procedure has long required that “in all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity.” The text of the Reform Act was designed “to embody in the Act itself at least the standards of Rule 9(b).” Greebel v. FTP Software, Inc., 194 F.3d 185, 193 (1st Cir.1999). Second, Congress stated in the Reform Act that a plaintiffs complaint must “state with particularity facts giving rise to a strong inference that the defendant acted with the required state of mind.” 15 U.S.C. § 78u-4(b)(2); Green Tree, 270 F.3d at 654. The Reform Act requires the court to dismiss the complaint if these requirements are not met. 15 U.S.C. § 78u-4(b)(3). “[U]nder the Reform Act, a securities fraud case cannot survive unless its allegations collectively add up to a strong inference of the required state of mind.” Green Tree, 270 F.3d at 660. “Congress has effectively mandated a special standard for measuring whether allegations of scienter survive a motion to dismiss. While under Rule 12(b)(6) all inferences must be drawn in plaintiffs’ favor, inferences of scienter do not survive if they are merely reasonable .... Rather, inferences of scienter survive a motion to dismiss only if they are both reasonable and ‘strong’ inferences.” Id. (quoting Greebel, 194 F.3d at 195-96) (alterations in original). The alleged false and misleading statements that form the basis for this suit are taken from Beverly’s filings with the Securities and Exchange Commission (the SEC) for the years 1994 through 1998, which are signed by the directors. In those filings, the company stated a belief that its facilities were in substantial compliance with the Medicare regulatory requirements. The company also reported its revenues to the SEC and stated that its financial results conformed with generally" }, { "docid": "15462463", "title": "", "text": "must be evaluated for materiality. Further, under the Reform Act, when statements are “forward-looking,” they are not actionable at all, even if material, when they are accompanied by meaningful cautionary statements identifying important factors that could cause actual results to differ. 15 U.S.C. § 78u-5(c)(l) (Supp. IV1998). Most notably, in addition to the requirements for pleading a material false statement or omission, Plaintiffs also must satisfy the Reform Act’s requirements for pleading the requisite state of mind as to each defendant: [T]he complaint shall, with respect to each act or omission alleged to violate this chapter, state with particularity facts giving rise to a strong inference that the defendant acted with the required state of mind. 15 U.S.C. § 78u-4(b)(2) (Supp. IV 1998). Under this provision, the mental state needed to prove securities fraud is distinct from the level of pleading required to permit inference of that mental state. With respect to the requisite mental state, the Reform Act’s dictates vary, to some extent, with the nature of the allegedly false statements. For those few “forward-looking statements” that are actionable at all, the Reform Act specifies that the required state of mind is “actual knowledge ... that the statement was false or misleading.” 15 U.S.C. § 78u-5(c) (Supp. IV 1998). For statements outside the statutory safe harbor, the “required state of mind” in Section 78u-4(b)(2) refers to the scienter requirement applicable to Rule 10b-5 claims prior to the Reform Act. See, In re Comshare, 183 F.3d 542, 550 (6th Cir.1999); Phillips v. LCI Int’l. Inc., 190 F.3d at 620. The Supreme Court has defined “scienter” as a mental state embracing “intent to deceive, manipulate, or defraud.” See Ernst & Ernst v. Hochfelder, 425 U.S. 185, 193-94 n. 12, 96 S.Ct. 1375, 47 L.Ed.2d 668 (1976). Although the Court left open the question whether recklessness satisfies this standard, the Fourth Circuit has defined scienter restrictively: “Scienter exists if the defendant knew the statement was misleading or knew of the existence of facts which, if disclosed, would have shown it to be misleading.” Banca Cremi, S.A. v. Alex Brown & Sons, Inc.," }, { "docid": "11295384", "title": "", "text": "Rule 9(b) applies heightened pleading standards to claims of fraud, including violations of SEC Rule 10b-5. DiLeo v. Ernst & Young, 901 F.2d 624, 627 (7th Cir.1990). To satisfy the rule, a complaint must plead fraud claims with particularity, providing the circumstances of the claim— “the who, what, when, where, and how: the first paragraph of any newspaper story.” Id. In addition, private securities fraud claims brought under the Securities Exchange Act have an additional pleading hurdle to surmount, the requirements of the Private Securities Litigation Reform Act (PSLRA), 15 U.S.C. § 78u-4(b). The PSLRA requires the complaint to “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 pleading requirement for state of mind is also more stringent under the PSLRA than under Rule 9(b). While the heightened pleading standard of Rule 9(b) still allows a party to aver generally a defendant’s condition of mind, under the PSLRA the complaint must “state with particularity facts giving rise to a strong inference that the defendant acted with the required state of mind” with respect to each misleading statement or omission alleged. Id. § 78u-4(b)(2). We will address SPSS defendants’ motion first and then KPMG’s. The crux of SPSS defendants’ arguments rest on the contention that plaintiff has failed to satisfy the stringent requirements of fraud pleading under Rule 9(b) and the PSLRA, but first they argue that plaintiff has no standing to bring count I as to certain statements. SPSS Defendants’ Motion to Dismiss Standing To state a claim for violation of § 10(b) and Rule 10b-5, promulgated thereunder, a plaintiff must allege that “1) the defendant made a false statement or omission 2) of material fact 3) with scienter 4) in connection with the purchase or sale of securities 5) upon which the plaintiff justifiably relied 6) and that the false statement proximately caused the plaintiffs damages.” Caremark," }, { "docid": "15462462", "title": "", "text": "are required to disclose in their pleadings the sources upon which.their allegations rest, and courts will evaluate the sufficiency of the allegations in light of the reliability of the sources. Apple v. Prudential-Bache Sec., Inc., 820 F.Supp. at 986. The Private Securities Litigation Reform Act (“Reform Act”), 15 U.S.C. § 78u-4(b)(2), both codifies these requirements and imposes additional pleading requirements. For example, the Reform Act requires plaintiffs to identify each allegedly misleading statement and to specify the reason or reasons each statement was untrue or misleading at the time it was made. 15 U.S.C. § 78u-4(b)(l) (Supp. IV 1998). Moreover, where a complaint makes allegations on information and belief, plaintiffs must “state with particularity all facts on which that belief is formed.” Id. The Reform Act also preserves a plaintiffs obligation to base a Section 10(b) claim on statements that are not only factual but also material. Conf.Rept. at 44, reprinted in U.S.C.C.A.N. at 743 (“Courts may continue to find a forward looking statement immaterial-and therefore not actionable.”). Thus, each allegedly false or misleading statement must be evaluated for materiality. Further, under the Reform Act, when statements are “forward-looking,” they are not actionable at all, even if material, when they are accompanied by meaningful cautionary statements identifying important factors that could cause actual results to differ. 15 U.S.C. § 78u-5(c)(l) (Supp. IV1998). Most notably, in addition to the requirements for pleading a material false statement or omission, Plaintiffs also must satisfy the Reform Act’s requirements for pleading the requisite state of mind as to each defendant: [T]he complaint shall, with respect to each act or omission alleged to violate this chapter, state with particularity facts giving rise to a strong inference that the defendant acted with the required state of mind. 15 U.S.C. § 78u-4(b)(2) (Supp. IV 1998). Under this provision, the mental state needed to prove securities fraud is distinct from the level of pleading required to permit inference of that mental state. With respect to the requisite mental state, the Reform Act’s dictates vary, to some extent, with the nature of the allegedly false statements. For those few" }, { "docid": "8618272", "title": "", "text": "(unpublished) (per curiam)). Rule 9(b) therefore requires that the complaint set forth in detail such matters as the time, place, and contents of the false representations and the identity of the person making the representation. See id. In other words, the complaint must specify the “who, what, when, where, and how” of the alleged fraud. See, e.g., DiLeo v. Ernst & Young, 901 F.2d 624, 627 (7th Cir.1990). In addition, the Reform Act makes clear that if specific facts are set forth in the complaint, they must create a strong inference of fraudulent intent: In any private action arising under this chapter in which plaintiff may recover money damages only on proof that the defendant acted with a particular state of mind, the complaint shall, with respect to each act or omission alleged to violate this chapter, state with particularity facts giving rise to a strong inference that the defendant acted with the required state of mind. 15 U.S.C. § 78u-4(b)(2). Thus, to satisfy Rule 9(b) and the Reform Act, the Amended Complaint must set forth with particularity facts which create the strong inference that defendants knew their statements were false or misleading at the time they were made. The Court finds plaintiffs’ fraud allegations (relating to the construction' of Stratosphere) are adequate under this standard. The Amended Complaint lists the specific documents and statements alleged to be fraudulent, who was responsible for these statements, and when these disclosures were made. The Complaint also lays out in detail the representations.in various public disclosures — including the December 1995 offering materials, the March 14, 1996 press release, and the March' 29, 1996 Form 10-K — it deems misleading. The Amended Complaint also sets forth in detail additional operative facts supporting plaintiffs’ fraud claim. Among these facts are the following: 1) Defendants were controlling persons in Stratosphere and the individual defendants were controlling persons in Grand. 2) Defendants were responsible for (and sometimes the signatories of) the disclosures to the market regarding Stratosphere and Grand during the class period. 3) The December 1995 offering documents and later disclosures indicated that the proceeds" }, { "docid": "22908224", "title": "", "text": "district judge, in an oral ruling, dismissed the complaint with prejudice, holding that: (1) plaintiffs had not pleaded detailed and particular facts giving rise to a strong inference of scienter as required by the Private Securities Litigation Reform Act of 1995 (“PSLRA”) and (2) two of the three challenged statements were forward-looking and protected by the PSLRA’s safe harbor provision. See 15 U.S.C. § 78u-5(c). The plaintiffs appealed the dismissal and the defendants cross-appealed the district court’s order that excluded the graphs of patient prescription data. II. PLEADING SCIENTER UNDER SILICON GRAPHICS The dispositive issue for us is whether the district court erred in holding that the plaintiffs did not adequately plead scienter. Our inquiry here is governed by the PSLRA. There, Congress provided that in any private securities fraud action for money damages, a complaint must “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)(1). The complaint must also “state with particularity facts giving rise to a strong inference that the defendant acted with the required state of mind.” 15 U.S.C. § 78u-4(b)(2). Although there is disagreement in the federal courts of appeals about the meaning of the “required state of mind,” we have previously held that “the PSLRA requires plaintiffs to plead, at a minimum, particular facts giving rise to a strong inference of deliberate or conscious recklessness.” In re Silicon Graphics Inc. Sec. Litig., 183 F.3d 970, 979 (9th Cir.1999) (emphasis added). Our decision in Silicon Chupines also holds that plaintiffs who plead the required state of mind in general terms of mere “motive and opportunity” or “recklessness” fail to meet the PSLRA’s heightened pleading requirements. Id. Where pleadings are not sufficiently particularized or where, taken as a whole, they do not raise a strong inference of scienter, a Rule 12(b)(6) dismissal is proper. See Ronconi, 253 F.3d at 429. Plaintiffs asserted that fraudulent misrepresentations and" }, { "docid": "17977793", "title": "", "text": "adduce specific facts which give rise to a ‘strong inference’ of fraudulent intent.”); see also In re Buffets, Inc. Sec. Litig., 906 F.Supp. 1293, 1300 (D.Minn.1995) (concluding that under Rule 9(b), a complaint “must set forth the facts explaining why it is claimed that the representations were known by each of the Defendants to be untrue or misleading when they were made”). Thus, even prior to the PSLRA, factual allegations in a complaint alleging securities fraud had to give rise to a strong inference of scienter. The PSLRA likewise contains a particularity requirement, providing in relevant part: [T]he 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). In addition, the Reform Act requires that the specific facts set forth in a complaint create a strong inference that the defendants acted with the required state of mind: In any private action arising under this chapter in which plaintiff may recover money damages only on proof that the defendant acted with a particular state of mind, the complaint shall, with respect to each act or omission alleged to violate this chapter, state with particularity facts giving rise to a strong inference that the defendant acted with the required state of mind. 15 U.S.C. § 78u-4(b)(2). Thus, to satisfy both the PSLRA and Rule 9(b), a complaint must set forth with particularity facts which create the strong inference of scienter. Nevertheless, the parties dispute whether the PSLRA heightened the standard for determining when alleged facts give rise to a strong inference of scienter. Defendants contend that the PSLRA’s pleading standard is more stringent than the Second Circuit’s pre-PSLRA standard, under which a plaintiff could plead scienter by showing facts constituting evidence of either reckless or conscious behavior or a motive and opportunity to commit fraud. See, e.g., San Leandro Emergency Profit Sharing Plan v. Philip Morris Co., 75 F.3d 801," }, { "docid": "23000032", "title": "", "text": "the circumstances constituting fraud or mistake,” although “[m]alice, intent, knowledge, and other conditions of a person’s mind may be alleged generally.” Fed.R.Civ.P. 9(b). While Rule 9(b) does not abrogate the concept of notice pleading, it plainly requires a complaint to set forth (1) precisely what statements or omissions were made in which documents or oral representations; (2) the time and place of each such statement and the person responsible for making (or, in the case of omissions, not making) them; (3) the content of such statements and the manner in which they misled the plaintiff; and (4) what the defendant obtained as a consequence of the fraud. Garfield, 466 F.3d at 1262; Ziemba, 256 F.3d at 1202. Notably, the “[fjailure to satisfy Rule 9(b) is a ground for dismissal of a complaint.” Corsello v. Lincare, Inc., 428 F.3d 1008, 1012 (11th Cir.2005) (per curiam). The PSLRA imposes additional heightened pleading requirements on Rule 10b-5 actions. For Rule 10b-5 claims predicated on allegedly false or misleading statements or omissions, the PSLRA provides that “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)(1). And for all private Rule 10b-5 actions requiring proof of scienter, “the complaint shall, with respect to each act or omission alleged to violate this chapter, state with particularity facts giving rise to a strong inference that the defendant acted with the required state of mind [i.e., scienter].” Id. § 78u-4(b)(2). Although factual allegations may be aggregated to infer scienter, scienter must be alleged with respect to each defendant and with respect to each alleged violation of the statute. Phillips, 374 F.3d at 1016-18. If these PSLRA pleading requirements are not satisfied, the court “shall” dismiss the complaint. 15 U.S.C. § 78u-4(b)(3)(A). B. Analysis 1. March 5, 200U Form 10-K Filing On March 5, 2004, MIVA filed its Form 10-K annual report with the SEC" }, { "docid": "4220571", "title": "", "text": "and the loss, commonly called “loss causation.” Mizzaro, 544 F.3d at 1237. The Private Securities Litigation Reform Act of 1995 (“PSLRA”) heightens the pleading requirements in securities class actions. See 15 U.S.C. § 78u-4(b)(l)(B). First, the PSLRA requires that a securities fraud class action complaint: 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)(B). Second, the PSLRA raises the standard for pleading scienter. It states that a plaintiff asserting a securities fraud claim “shall, with respect to each act or omission alleged to violate this chapter, state with particularity facts giving rise to a strong inference that the defendant acted with the required state of mind.” 15 U.S.C. § 78u-4(b)(2). The requisite state of mind for a Section 10(b) claim is an intent to deceive, manipulate, or defraud, or a showing of severe recklessness. Mizzaro, 544 F.3d at 1238. Therefore, in a securities fraud class action, a plaintiff can no longer plead the requisite scienter element generally as he could previously do under Fed.R.Civ.P. 9(b). Id. Moreover, the complaint must allege facts supporting a strong inference of scienter “for each defendant with respect to each violation.” Phillips v. Scientific-Atlanta, Inc., 374 F.3d 1015, 1016 (11th Cir.2004). As the Eleventh Circuit summarized these standards in Mizzaro, “to survive a motion to dismiss ... [the plaintiff] must (in addition to pleading all of the other elements of a § 10(b) claim) plead ‘with particularity facts giving rise to a strong inference that the defendants either intended to defraud investors or were severely reckless when they made the allegedly materially false or incomplete statements.’ ” 544 F.3d at 1238. In Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 127 S.Ct. 2499, 168 L.Ed.2d 179 (2007), the Supreme Court further clarified the exacting pleading requirements under the PSLRA. The Court explained that a “strong inference” of scienter means an inference" }, { "docid": "7743715", "title": "", "text": "put, this rule requires that a plaintiff plead all the elements of the first paragraph of a newspaper story: “the who, what, when, where and how.” Garfield v. NDC Health Corp., 466 F.3d 1255, 1262 (11th Cir.2006); In re Scientific-Atlanta, Inc. Securities Litigation, 239 F.Supp.2d 1351, 1358 (N.D.Ga.2002). In 1998, Congress augmented these pleading requirements for private securities fraud class actions by enacting the Private Securities Litigation Reform Act (“the Reform Act”), 15 U.S.C. § 78u-4(b). This statute was “enacted to cure perceived abuses in prosecuting class actions brought pursuant to federal securities laws.” In re Scientific-Atlanta, Inc., 239 F.Supp.2d at 1358. The Reform Act thus supplements Rule 9(b) in two ways. First, the plaintiff must specify “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 Reform Act further requires that with respect to any claim where recovery is permitted “only on proof that the defendant acted with a particular state of mind, the complaint shall, with respect to each act or omission alleged to violate this chapter, state with particularity facts giving rise to a strong inference that the defendant acted with the required state of mind.” 15 U.S.C. § 78u-4(b)(2) (emphasis added). The application of these provisions will be discussed in further detail below. III. DISCUSSION The Defendants argue that the Consolidated Complaint should be dismissed because: (1) it fails to meet the particularity requirements for pleading a federal securities fraud claim; (2) the Defendants’ statements are protected by the Reform Act’s Safe Harbor Provisions, 15 U.S.C. § 78u-5(c)(l)(A) and (c)(1)(B); and (3) it fails to state a cognizable claim against the Individual Defendants under section 20(a) of the Exchange Act. The Court will address each of these claims in turn. A. Plaintiffs’ Section 10(b) Pleadings 1. False Statements The Consolidated Complaint alleges generally that the Defendants falsely represented CCE’s volume sales numbers in their public statements because they did not disclose their channel" }, { "docid": "17192874", "title": "", "text": "513, 516 (D.Minn.1993) (“[A] complaint must adduce specific facts which give rise to a ‘strong inference’ of fraudulent intent.”); see also In re Buffets Inc. Sec. Litig., 906 F.Supp. 1293, 1300 (D.Minn.1995) (concluding that under Rule 9(b), a complaint “must set forth the facts explaining why it is claimed that the representations were known by each of the Defendants to be untrue or misleading when they were made”). Thus, even when the Reform Act is inapplicable, a complaint must give rise to a strong inference of scienter. The Reform Act likewise requires particularity, providing in relevant part: [T]he 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 — 1(b)(1). In addition, the Reform Act requires that the specific facts set forth in a complaint create a strong inference of fraudulent intent: In any private action arising under this chapter in which plaintiff may recover money damages only on proof that the defendant acted with a particular state of mind, the complaint shall, with respect to each act or omission alleged to violate this chapter, state with particularity facts giving rise to a strong inference that the defendant acted with the required state of mind. 15 U.S.C. § 78u-4(b)(2). Thus, to satisfy both Rule 9(b) and the Reform Act, a complaint must set forth with particularity facts which create the strong inference of scien-ter. II. The Sufficiency of Plaintiffs’ Allegations Supporting Their Section 10(b) and Section 20(a) Claims. A. Allegations Relating to Aether-Works The Court finds plaintiffs’ (class plaintiffs’ and LSERS’s) allegations regarding the AetherWorks investment are adequate under Rule 9(b) and the Reform Act. First, the Court finds that both complaints contain sufficient detail to meet the standards for particularity. Both complaints specify which of Digi’s public statements— including press releases and Form 10-Qs— are misleading and who was responsible for those disclosures. Moreover, both complaints detail" }, { "docid": "15863274", "title": "", "text": "Securities Litigation Reform Act of 1995 (Reform Act) amended the Securities Exchange Act to deter the perceived rise in abusive private securities fraud suits by enhancing the standard for pleading securities fraud claims. Now, to adequately plead a Rule 10b-5 claim, a plaintiff not only must plead with particularity the facts constituting fraud, see 15 U.S.C. § 78u — 4(b)(1) (“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”), but also facts permitting a strong inference that the respective defendant acted with the requisite state of mind. See 15 U.S.C. § 78u-4(b)(2) (“the complaint shall ... state with particularity facts giving rise to a strong inference that the defendant acted with the required state of mind.”). , This is in contrast to the Rule 9(b) standard that allows “[m]alice, intent, knowledge, and other condition of mind of a person [to be] averred generally.” Rule 9(b). Consequently, defendants moving to dismiss can now challenge the particularity of allegations regarding both the allegedly false or misleading statements, and the alleged state of mind. III. A. i. Defendants first assert that Plaintiffs have failed to plead adequately that the Press Release was materially false or misleading. They contend that the Consolidated Complaint fails to satisfy the pleading requirements of 15 U.S.C. § 78u-4(b)(1). Defendants also assert that Plaintiffs have not established the materiality of any allegedly false or misleading statements insofar as the statements in the Press Release are protected by the “bespeaks caution doctrine” and/or the Reform Act’s safe haven for forward-looking statements, and the “truth on the market” doctrine. I will address each argument in turn. a. In the Consolidated Complaint, Plaintiffs allege that, as of November 15, 1999, the expected commencement of the Phase II trials of Angiozyme had been announced previously in both the May 7, 1999 Form 10-K, and August 11, 1999 press release. Consolidated Complaint at paras." }, { "docid": "22273300", "title": "", "text": "dimmed and the spontaneous optimism falters, leaving us to depend on nothing but a mathematical expectation, enterprise will fade and die.” A. The Private Securities Litigation Reform Act. There is but one issue raised in this appeal, whether the complaint stated a claim upon which relief could be granted. This inquiry is governed by the Private Securities Litigation Reform Act of 1995 (PSLRA), which altered our pre-Act pleading requirements in private securities fraud litigation by requiring that a complaint plead with particularity both falsity and scienter. Pursuant to the PSLRA, a complaint must “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.” The complaint must also “state with particularity facts giving rise to a strong inference that the defendant acted with the required state of mind” — that is, that he acted with intentionality or deliberate recklessness or, where the challenged act is a forward looking statement, with “actual knowledge ... that the statement was false or misleading.” Because falsity and scienter in private securities fraud cases are generally strongly inferred from the same set of facts, we have incorporated the dual pleading requirements of 15 U.S.C. §§ 78u-4(b)(l) and (b)(2) into a single inquiry. In considering whether a private securities fraud complaint can survive dismissal under Rule 12(b)(6), we must determine whether “particular facts in the complaint, taken as a whole, raise a strong inference that defendants intentionally or ‘deliberate recklessness’ made false or misleading statements to investors.” Where pleadings are not sufficiently particularized or where, taken as a whole, they do not raise a “strong inference” that misleading statements were knowingly or deliberate recklessness made to investors, a private securities fraud complaint is properly dismissed under Rule 12(b)(6). B. Sufficiency of the allegations. 1. September and October 1995. On September 29, 1995, Nellcor’s annual report to the shareholders said that “growth opportunities ... will be significantly enhanced” by the merger and" }, { "docid": "16907767", "title": "", "text": "Ex. E, p. 17). It was further told by SEC filings that successful growth depended upon the ability to integrate the acquisitions (id. at Ex. B, p. 191). It is hard to perceive what else the investing public needed to be told to be meaningfully cautioned that the projected revenues of $11.2 million might not be reached. Importantly, the plaintiffs in their memorandum do not identify any risk factors that should have been stated in the cautionary language, but were not, in order to warn more meaningfully the investing public about uncertainties regarding the expected revenues. In this circumstance, therefore, the general cautionary statements provided by the defendants were sufficiently meaningful to bring the statements within the Reform Act’s safe harbor. Accordingly, for this reason also, liability cannot be based upon the January 7, 1998, press release. Furthermore, even if the cautionary statements were inadequate, the plaintiffs’ claim is defeated by the other prong of the safe-harbor provisions. Under the Reform Act, a forward-looking statement that is not accompanied by a meaningful cautionary statement cannot be the basis for liability if the plaintiff fails to prove that the statement was made with actual knowledge that it was false or misleading. 15 U.S.C. 78u-5(c)(l)(B). Moreover, the Reform Act requires that the complaint, with respect to each act or omission, “state with particularity facts giving rise to a strong inference that the defendant acted with the required state of mind.” 15 U.S.C. 78u-4(b)(2). Consequently, with respect to a forward-looking statement, the plaintiffs must allege facts creating a strong inference that the statement was made with actual knowledge that it was false or misleading. With respect to the statement in the January 7,1998, press release that the two “acquisitions are expected to generate $11.2 million,” the plaintiffs clearly fail to satisfy the heightened pleading requirement. Of course, as indicated, the plaintiffs did not allege that, in fact, the expectation was not met. They did allege that, at the time the statement was made, the defendants omitted to disclose that the revenue forecast had no reasonable basis because PharMerica had not yet generated any" }, { "docid": "9876441", "title": "", "text": "alleges that the defendants engaged in nine different accounting manipulations in their effort to falsely enhance Qwest’s balance sheet. A. PSLRA Requirements A section 10(b) claim is a type of fraud claim. Under FED. R. CIV. P. 9(b), a plaintiff must plead with particularity the facts supporting a fraud claim. In addition, the Private Securities Litigation Reform Act of 1995 (PSLRA) imposes particular pleading requirements on complaints alleging securities fraud under § 10(b). 15 U.S.C. § 78u-4(b)(1) and (2). The PSLRA provides: (1) Misleading statements and omissions In any private action arising under this chapter in which the plaintiff alleges that the defendant- (A) made an untrue statement of a material fact; or (B) 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 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. (2) Required state of mind In any private action arising under this chapter in which the plaintiff may recover money damages only on proof that the defendant acted with a particular state of mind, the complaint shall, with respect to each act or omission alleged to violate this chapter, state with particularity facts giving rise to a strong inference that the defendant acted with the required state of mind. 15 U.S.C. § 78u-4(b)(1) and (2). Generally, the PSLRA is seen as imposing a standard of pleading which is more stringent than that of Rule 9(b). Fleming, 264 F.3d at 1258. In sum, the PSLRA requires the plaintiffs 1) to specify each statement alleged to have been misleading, and the reason or reasons the statement is misleading; and 2) with regard to each act or omission alleged to violate § 10(b), to state with particularity facts giving rise to a strong inference that the defendant acted with the required state of" }, { "docid": "22821319", "title": "", "text": "split results. A majority have held the Reform Act essentially codified the Second Circuit’s approach. Others, including a district court of this circuit, have held the Act imposes an even more stringent pleading standard. The most notable case is In re Silicon Graphics, Inc. Sec. Litig., 970 F.Supp. 746 (N.D.Cal.1997), in which the court conducted a detailed examination of the legislative history and prior case law before concluding that allegations of “[m]otive, opportunity, and non-deliberate recklessness” are no longer “sufficient to support scienter unless the totality of the evidence creates a strong inference of fraud.” See id. at 757. The Reform Act requires a plaintiff alleging a Rule 10b-5 violation to 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.A. § 78u—4(b)(1) (West Supp. 1999). Regarding scienter, or knowledge, section 21D(b)(2) of the Reform Act provides: In any private action arising under this chapter in which the plaintiff may recover money damages only on proof that the defendant acted with a particular state of mind, the complaint shall, with respect to each act or omission alleged to violate this chapter, state with particularity facts giving rise to a strong inference that the defendant acted with the required state of mind. Id. § 78u-4(b)(2). Failure to meet these requirements will result in dismissal of the complaint. See id. § 78u-4(b)(3)(A). Complaints alleging securities fraud must also comply with Rule 9(b), which provides: “In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity. Malice, intent, knowledge, and other condition of mind of a person may be averred generally.” Fed.R.Civ.P. 9(b). Although the Reform Act’s “strong inference” language mirrors the Second Circuit’s, the precise extent to which Congress intended to adopt the Second Circuit standard is not clear. The Reform Act’s legislative history on this point is ambiguous and even contradictory. The purpose of the Act" } ]

[ { "docid": "18887003", "title": "", "text": "filed a notice of appeal from the court’s informal decision on February 4, 1989 and summary judgment was thereafter entered on June 1, 1989. III BASIS OF JURISDICTION The jurisdiction of this Panel extends to final judgments, orders and decrees. 28 U.S.C. § 158(b)(1). We retain jurisdiction in the matter at hand notwithstanding the premature filing of this notice of appeal because appeals are deemed timely even where they precede the entry of the orders from which they are taken. In re Allustiarte, 848 F.2d 116, 117 (9th Cir. 1988); In re Stuerke, 61 B.R. 623, 625 (9th Cir. BAP 1986). IV STANDARD OF REVIEW A summary judgment should be affirmed only if it appears after reviewing all evidence and factual inferences in a light most favorable to the non-moving party that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. Bankruptcy Rule 7056; Fed.R.Civ.P. 56(c); In re Orosco, 93 B.R. 203, 206-07 (9th Cir. BAP 1988); In re Stuerke, supra, 61 B.R. at 625. The review of a summary judgment is conducted de novo.' In re Softalk Publishing Co., Inc., 856 F.2d 1328, 1330 (9th Cir.1988); Orosco, supra, 93 B.R. at 207. V DISCUSSION A. Capacity of Nondebtor Spouse to Exempt Community Property Carolyn urges, and the trial court so found, that a nondebtor spouse may employ a state homestead exemption in community property notwithstanding the scheduling of unrelated federal exemptions by the debtor spouse. We disagree. The filing by a spouse of an individual bankruptcy petition creates an estate which encompasses community property that is under the spouse’s joint management and control as of the date of the petition. 11 U.S.C. § 541(a)(2)(A); In re Fietz, 852 F.2d 455, 458 (9th Cir.1988); In re Willard, 15 B.R. 898, 900 (9th Cir. BAP 1981). The right to claim exemptions in this property vests solely in that spouse. 11 U.S.C. § 522(b). See 4 Collier on Bankruptcy, ¶ 541.15 at 541-82 (15th ed. 1989). The property in which Carolyn seeks to establish a homestead exemption is community" } ]

[ { "docid": "958964", "title": "", "text": "§ 541(a) is “certainly broad enough to include an individual debtor’s interest in property held as a tenant by the entirety.” Napotnik v. Equibank & Parkvale Savings Ass’n, 679 F.2d 316, 318 (3d Cir.1982). Although entireties property may be initially included in a bankruptcy estate, the process does not end there because a debt- or may exempt certain holdings pursuant to § 522. The Bankruptcy Code provides two alternative plans of exemption. Under § 522(b)(2) , a debtor may elect the specific federal exemptions listed in § 522(d) (“federal exemptions”) or, under § 522(b)(3), may choose the exemptions permitted, inter alia, under state law and general (nonbankruptcy) federal law (“general exemptions”). Debtors may select either alternative, unless a state has “opted out” of the federal exemptions category. Pennsylvania has not done so and thus debtors are entitled to claim exemptions under either the general or federal methods. A debtor who chooses to use the general exemptions may claim an exemption in “any interest in property in which the debtor had, immediately before the commencement of the case, an interest as a tenant by the entirety ... to the extent that such interest ... is exempt from process under applicable nonbankruptcy law.” 11 U.S.C. § 522(b)(3)(B). See also O’Lexa v. Zebley No. 06-2254 (filed concurrently with this opinion). Where spouses are joint debtors they may not claim the general exemption in § 522(b)(3)(B) for property they hold by the entireties. In Napotnik, 679 F.2d at 320, we held that where a creditor had claims against both husband and wife jointly one spouse could not exempt the entire value of property held by the entire-ties because “in Pennsylvania entirety property may be reached by creditors to satisfy the joint debts of husband and wife.” Id. We thus concluded, “In this respect at least, such property is not exempt from process in Pennsylvania.” Id. Nevertheless, filing a bankruptcy petition does not sever a tenancy by the entirety and thus an individual spouse may be able to exempt the whole of entireties property from the bankruptcy estate in some circumstances. Bonanno v. Peyton, 312" }, { "docid": "11079583", "title": "", "text": "spouse under California Code of Civil Procedure Section 690.1. This exemption protects: “Necessary household furnishings and appliances and wearing apparel, ordinarily and reasonably necessary to, and personally used by, the debtor and his resident family. .. . ” No community property limitation appears in the statute. Once reasonable necessity and personal use by the debtor and family are established, no attack is possible on the exemption. Associates argues that only “vested property rights” can be exempted. This overlooks the provisions of the California statute. The focus is on family need and use in establishing the exemption, not on the debtor as an individual. Associates’ argument has no basis. We read this section to allow Ms. Dahdah to exempt all necessary household furnishings used by herself and her family. Affirmed. HUGHES, Bankruptcy Judge, concurring in part and dissenting in part: This is an appeal from two formal orders and one informal order in favor of two debtors, for a total of six orders. The first order expressly overruled appellant’s objections to the debtors' claims of exemption to household goods and implicitly avoided appellant’s consential lien on those goods. The second formal order allowed the debtors’ claims of exemption to real property. The panel affirms all of these orders. I concur as to two orders affecting one of the two debtors and dissent as to the rest. I The debtors, who are husband and wife, filed a joint petition under Chapter 7. The husband elected the federal exemption alternative, 11 U.S.C. § 522(b)(1), and the wife elected the state exemptions, 11 U.S.C. § 522(b)(2). As to the first order, the husband claimed one-half of the household goods exempt under 11 U.S.C. § 522(d)(3), valuing this half at $1250, and the wife claimed one-half exempt under California Code of Civil Pro cedure § 690.1. When appellant creditor pointed out the necessity of valuing each item separately under 11 U.S.C. § 522(d)(3), the debtors amended their schedules. The husband abandoned his claim of exemption to the household goods and the wife then claimed all household goods, rather than only one-half, exempt under California law." }, { "docid": "339893", "title": "", "text": "MEMORANDUM OF DECISION TERRY L. MYERS, Bankruptcy Judge. BACKGROUND AND FACTS Raymond DeHaan (“Debtor”) filed for chapter 7 relief on October 18, 2001. Al though Debtor is married, his wife did not join in the petition. Debtor claimed several exemptions in the personal property that belonged to him and/or to his marital community. The chapter 7 Trustee, Lois Murphy, objects to the following exemptions claimed: Property Authority Value Household goods § 11 — 605(l)(a) $6,695.00 Grandfather clock § 11 — 605(l)(a) 500.00 Art prints § ll-605(l)(b) 200.00 Misc. Books § 11 — 605(1)(b) 500.00 Pictures, portraits, photos § ll-605(l)(e) 540.00 35mm SLR cameras (2) § 11-605(10) 50.00 Pishing equipment § 11-605(10) 50.00 Lawn chairs (6) § 11-605(10) 35.00 Skis and accessories § 11-605(10) 400.00 Camping equipment § 11-605(10) 575.00 1994 Pontiac Bonneville § 11-605(3) 4,200.00 See amended schedule C, Doc. No. 10, filed November 27, 2001; Objection to Claim of Exemption, Doc. No. 12. The Trustee argues that these claimed exemptions exceed the statutory limits allowed to individuals, and that Debtor improperly attempts to include or assert exemptions which are personal to his non-filing wife. The Trustee states: 1. Debtor is seeking to expand this individual’s exemptions under Idaho Code Section 11 — 605(l)(a), (b) and (c) (not to exceed a total value of $5,000), for a non-filing spouse who is not entitled to file exemptions in this individual’s case according to Bankruptcy Code Section 522(1). 2. Debtor is seeking more than the $800.00 maximum exemption under Idaho Code Section 11-605(10). 3. Debtor is seeking to expand this individual’s exemptions under Idaho Code Section 11-605(3), for a second vehicle of a non-filing spouse who is not entitled to file exemptions in this individual’s case according to Bankruptcy Code Section 522(1). Objection, at p. 2. Oral arguments were presented at a hearing on January 16, 2002. No evidence was presented, and the parties submitted on the pleadings. The Court took the matter under advisement subject to additional briefing. The briefing was completed on February 7. This decision represents the Court’s findings of fact and conclusions of law on the contested matter." }, { "docid": "339894", "title": "", "text": "or assert exemptions which are personal to his non-filing wife. The Trustee states: 1. Debtor is seeking to expand this individual’s exemptions under Idaho Code Section 11 — 605(l)(a), (b) and (c) (not to exceed a total value of $5,000), for a non-filing spouse who is not entitled to file exemptions in this individual’s case according to Bankruptcy Code Section 522(1). 2. Debtor is seeking more than the $800.00 maximum exemption under Idaho Code Section 11-605(10). 3. Debtor is seeking to expand this individual’s exemptions under Idaho Code Section 11-605(3), for a second vehicle of a non-filing spouse who is not entitled to file exemptions in this individual’s case according to Bankruptcy Code Section 522(1). Objection, at p. 2. Oral arguments were presented at a hearing on January 16, 2002. No evidence was presented, and the parties submitted on the pleadings. The Court took the matter under advisement subject to additional briefing. The briefing was completed on February 7. This decision represents the Court’s findings of fact and conclusions of law on the contested matter. Fed. R.Bankr.P. 9014, 7052. DISCUSSION AND DISPOSITION A. Basic framework The Court has summarized the general principles applicable to exemptions disputes: Section 522(b) allows the debtor to exempt property of the estate from administration by the trustee. Idaho has opted out of the federal exemption scheme of § 522. Idaho Code § 11-609. Idaho law therefore controls the validity of the claimed exemption, though this Court interprets and applies the law in bankruptcy proceedings. In re DeBoer, 99.3 I.B.C.R. 101, 102, 1999 WL 33486710 (Bankr.D.Idaho 1999). Accord, Yaden v. Osworth (In re Osworth), 234 B.R. 497, 498 (9th Cir. BAP 1999). A claim of exemption will be valid unless a party in interest or the trustee objects and that objector satisfies its burden of proving that the exemption is improperly claimed. Fed.R.Bankr.P. 4003(c). Further, as stated in DeBoer: Exemptions are to be liberally construed in order to protect the Debtor and his fresh start. Still, the statutory language cannot be “tortured” in the guise of liberal construction. Id., 99 I.B.C.R. at 102, 1999 WL 33486710," }, { "docid": "3832181", "title": "", "text": "to be held in joint ownership, with full ownership rights transferring to the surviving spouse, to the exclusion of all other persons, upon either of their deaths. CONCLUSIONS OF LAW The issue before the Court is whether the Debtor’s claim of exemptions should be disallowed. Cases commenced under the Bankruptcy Code create an estate which is compromised of all the property in which the debtor has a legal or equitable interest as of the date of the petition filing. 11 U.S.C. § 541(a) (1997). However, an individual is permitted to exempt property from the estate by claiming exemptions authorized by 11 U.S.C. § 522. 11 U.S.C. § 522 (1997). See also In re Colston, 87 B.R. 193, 194 (Bankr.M.D.Fla.1988). . Section 522 permits a state to opt out of the federal exemptions and limit its residents to those exemptions provided under state law. 11 U.S.C. § 522(b) (1997). The State of Florida has exercised this option.. Fla. StatAnn. § 222.20 (West 1989). Therefore, debtors residing in Florida may claim exemptions pursuant to subsections 522(b)(2)(A)-(B), Article X, Section 4 of the Florida Constitution and Florida Statute, Chapters 222. In this case, the Trustee asserts that Debt- or’s claim of exemptions to certain properties are improper and should be disallowed. The Trustee’s objections are: (1) Debtor’s claim of exemption as to the automobile exceeds the $1,000.00 exemption permitted under state law; (2) the household furnishings are not exempt under § 522(b)(2)(B) because they are not held as entireties properties; and (3) the real property, held as tenants by the entirety, is subject to administration for the benefit of the joint creditors of Debtor and her non-filing spouse. The Court will address each objection separately. A. AUTOMOBILE The Trustee objects to Debtor’s claim of exemption as to the automobile. Debtor’s Schedule C lists a 1996 Chevrolet Cavalier as having a fair market value of $11,925.00, with a lien of $7,440.66, leaving $4,484.34 in equity. Debtor claimed the $4,484.34 as exempt pursuant to Florida Statute § 222.25. However, § 222.25 provides that a debtor can only claim up to $1,000.00 in value, in a" }, { "docid": "339906", "title": "", "text": "of a nonbankruptcy levy by a creditor. But we do not deal here with a levying creditor, and the rights asserted by the Trustee are not derivative of rights of creditors outside bankruptcy. Nor is the exemption at issue here being asserted by the “third party” (the non-debtor spouse). The analogies are unpersuasive. CONCLUSION This appears to be a case of first impression. However, the language of the statutes, both state and federal, and the guidance provided by the decisional law interpreting those statutes, support the Trustee’s position. The result may be seen by some as harsh. However, choices almost always have consequences and, as Homan notes, there indeed are consequences when only one spouse files bankruptcy. While some harshness may be ameliorated by other Code provisions, see, e.g., Homan, 112 B.R. at 360, the particular inequity Debtor perceives to exist here may not be. But that is not something which should be corrected by judicial fiat. Debtor in essence places on the shoulders of “equity” and “liberal construction” of the exemption statutes more weight than they will bear. In conclusion, Debtor is entitled to claim and will be allowed those exemptions available to him as an individual under § 522(b) and I.C. § 11-605. He is not allowed to assert in this case exemptions which are personal to his non-debtor spouse. Thus, Debtor is limited to a total exemption of $5,000.00 for all items claimed under § 11-605(l)(a) through § ll-605(l)(c), $800.00 for all items claimed under § 11-605(10), and $3,000.00 for a motor vehicle claimed under § 11-605(3). The Trustee shall submit an appropriate form of order. . Debtor makes other claims of exemption on this schedule to which no objection is raised. Those exemptions are therefore allowed. . Debtor’s original schedule C claimed a $3,000.00 exemption in the Bonneville, and another $3,000.00 exemption in a Toyota pickup truck. This is what the Trustee refers to in her Objection regarding § 11-605(3). The amended schedule C makes it clear that \"both” exemptions are now claimed in the Bonneville. The thrust of the Trustee's objection thus still remains. ." }, { "docid": "3832182", "title": "", "text": "X, Section 4 of the Florida Constitution and Florida Statute, Chapters 222. In this case, the Trustee asserts that Debt- or’s claim of exemptions to certain properties are improper and should be disallowed. The Trustee’s objections are: (1) Debtor’s claim of exemption as to the automobile exceeds the $1,000.00 exemption permitted under state law; (2) the household furnishings are not exempt under § 522(b)(2)(B) because they are not held as entireties properties; and (3) the real property, held as tenants by the entirety, is subject to administration for the benefit of the joint creditors of Debtor and her non-filing spouse. The Court will address each objection separately. A. AUTOMOBILE The Trustee objects to Debtor’s claim of exemption as to the automobile. Debtor’s Schedule C lists a 1996 Chevrolet Cavalier as having a fair market value of $11,925.00, with a lien of $7,440.66, leaving $4,484.34 in equity. Debtor claimed the $4,484.34 as exempt pursuant to Florida Statute § 222.25. However, § 222.25 provides that a debtor can only claim up to $1,000.00 in value, in a single automobile, as exempt from property of the bankruptcy estate. Fla.Stat.Ann. § 222.25 (West 1989). Accordingly, the Trustee’s objection to Debtor’s claim of exemption, as the automobile, is sustained. B. HOUSEHOLD FURNISHINGS The Trustee also asserts that Debtor is not entitled to' an exemption regarding the household furnishings, contending they are not owned as tenants by the entireties. Section 522(b)(2)(B) of the Bankruptcy Code provides that a debtor may claim as exempt “any interest in property in which the debtor had, immediately before commencement of the ease, an interest as a tenant by the entirety ... to the extent that such interest as a tenant by the entirety ... is exempt from process under applicable nonbankruptcy law.” 11 U.S.C. § 522(b)(2)(B) (1997). Florida state courts recognize that entireties estates can exist in both real and personal property, and federal courts sitting in Florida have followed this position. In re Peeples, 105 B.R. 90, 94 (Bankr.M.D.Fla.1989). Under Florida law, property held by a husband and wife as tenants by the entirety belongs to neither individual spouse," }, { "docid": "339902", "title": "", "text": "to what he or his non-filing spouse might be able to claim or protect in the event of state court litigation, even if correct, are misguided. The issue here is what Title 11 of the U.S.Code allows Debtor, or his non-debtor spouse, to do in Debtor’s bankruptcy case. E. Claiming exemptions in the single spouse case The Bankruptcy Appellate Panel in Burman v. Homan (In re Homan), 112 B.R. 356 (9th Cir. BAP 1989) held: The filing by a spouse of an individual bankruptcy petition creates an estate which encompasses community property that is under the spouse’s joint management and control as of the date of the petition. 11 U.S.C. § 541(a)(2)(A); In re Fietz, 852 F.2d 455, 458 (9th Cir.1988); In re Willard, 15 B.R. 898, 900 (9th Cir. BAP 1981). The right to claim exemptions in this property vests solely in that spouse. 11 U.S.C. § 522(b). See 4 Collier on Bankruptcy, ¶ 541.15 at 541-82 (15th ed.1989). Id. at 359 (emphasis in original). This Court, in Clarke, acknowledged that “[t]he right to claim exemptions in community property is vested by the Bankruptcy Code solely in the debtor spouse.” 99.4 I.B.C.R. at 164, citing Homan. Debtor’s wife did not join him in filing for bankruptcy relief. Thus, the right to claim exemptions in any property of the estate, including the community property brought into the estate under § 541(a)(2), is vested solely in Debtor. The language of § 541 and § 522 is sufficiently clear. All legal and equitable interests in property of an individual on the date of filing, including community property under the joint or equal management of that individual, will become property of the estate. All property of the estate will be administered unless it is validly exempted. Under § 522(b), “an individual debtor” may claim exemptions. The non-debtor spouse is, within the structure of these provisions, a “dependent.” See § 522(a)(1). There is nothing in the Code that allows non-debtors, dependents or otherwise, to assert in the bankruptcy an exemption personal to such non-debtors. Nor is there anything in the Bankruptcy Code that allows" }, { "docid": "339901", "title": "", "text": "cannot agree on the alternative to be elected, they shall be deemed to elect paragraph (1), where such election is permitted under the law of the jurisdiction where the case is filed. § 522(b) (emphasis supplied). The exemptions themselves may be provided by state law, however the method and ramifications of asserting them in a bankruptcy case is governed by federal law. See, e.g., Owen v. Owen, 500 U.S. 305, 313, 111 S.Ct. 1833, 1838, 114 L.Ed.2d 350 (1991) (opt-out policy is not an “absolute” deferral to states; exemptions provided in opt-out states must be considered in conjunction with whatever “competing or limiting policies” the Bankruptcy Code contains). See also, Cisneros v. Kim, (In re Kim), 257 B.R. 680, 687-88 (9th Cir. BAP 2000), citing Patriot Portfolio v. Weinstein, (In re Weinstein), 164 F.3d 677, 682-83 (1st Cir.1999), cert. denied, 527 U.S. 1036, 119 S.Ct. 2394, 144 L.Ed.2d 794 (1999) (state’s ability to define its exemptions is not absolute and must yield to conflicting policies in the Code). Thus the several arguments of Debtor as to what he or his non-filing spouse might be able to claim or protect in the event of state court litigation, even if correct, are misguided. The issue here is what Title 11 of the U.S.Code allows Debtor, or his non-debtor spouse, to do in Debtor’s bankruptcy case. E. Claiming exemptions in the single spouse case The Bankruptcy Appellate Panel in Burman v. Homan (In re Homan), 112 B.R. 356 (9th Cir. BAP 1989) held: The filing by a spouse of an individual bankruptcy petition creates an estate which encompasses community property that is under the spouse’s joint management and control as of the date of the petition. 11 U.S.C. § 541(a)(2)(A); In re Fietz, 852 F.2d 455, 458 (9th Cir.1988); In re Willard, 15 B.R. 898, 900 (9th Cir. BAP 1981). The right to claim exemptions in this property vests solely in that spouse. 11 U.S.C. § 522(b). See 4 Collier on Bankruptcy, ¶ 541.15 at 541-82 (15th ed.1989). Id. at 359 (emphasis in original). This Court, in Clarke, acknowledged that “[t]he right to" }, { "docid": "1156125", "title": "", "text": "the case. The filing of a joint petition by a husband and wife does not create a joint bankruptcy estate. Section 302(b) indicates that this would only occur if the court ordered the two bankruptcy estates to be consolidated. An individual debtor has the option of exempting property out of property of the estate under § 522(b)(1) or § 522(b)(2). Section 522(b)(1) permits a debtor to claim as exempt that property which is specified in § 522(d) of the Code. Section 522(b)(2) permits a debtor to claim as exempt that property which is exempt under Federal law other than § 522(d), plus that property which is exempt under State or local law that is applicable on the date of the filing of the petition. In the case at bar, the two debtors filed a joint petition. Inasmuch as no consolidation was ordered, a separate bankruptcy estate was created for each spouse. Each bankruptcy estate included an undivided one-half interest in the homestead, each of which had a value of $15,710. Roger elected to claim his exemptions under § 522(b)(2) of the Bankruptcy Code, specified the statute creating this particular claimed exemption to be § 815.20(1) of the Wisconsin Statutes, and he has claimed the entire $25,000 exemption provided in § 815.20(1), as is permitted by that statute. The claimed exemption is a proper one, and in fact exceeds the $15,710 value of his estate’s interest in the property. Accordingly, that $15,710 interest is exempt. Julia elected to claim her exemptions under § 522(b)(1) of the Bankruptcy Code, specified subsection (1) of § 522(d) as the statute creating this particular claimed exemption, and has claimed $6,420 of the $7,500 provided in that subsection. The claimed exemption is a proper one, and after subtracting the exempted portion from the bankruptcy estate in her case, there is a non-exempt balance with a value of $9,290 remaining for her creditors. The trustee contends that in claiming his exemption under the state law, Roger is subject to the restrictions and conditions that are a part of that state law. Section 815.20(1) states that where a" }, { "docid": "3832183", "title": "", "text": "single automobile, as exempt from property of the bankruptcy estate. Fla.Stat.Ann. § 222.25 (West 1989). Accordingly, the Trustee’s objection to Debtor’s claim of exemption, as the automobile, is sustained. B. HOUSEHOLD FURNISHINGS The Trustee also asserts that Debtor is not entitled to' an exemption regarding the household furnishings, contending they are not owned as tenants by the entireties. Section 522(b)(2)(B) of the Bankruptcy Code provides that a debtor may claim as exempt “any interest in property in which the debtor had, immediately before commencement of the ease, an interest as a tenant by the entirety ... to the extent that such interest as a tenant by the entirety ... is exempt from process under applicable nonbankruptcy law.” 11 U.S.C. § 522(b)(2)(B) (1997). Florida state courts recognize that entireties estates can exist in both real and personal property, and federal courts sitting in Florida have followed this position. In re Peeples, 105 B.R. 90, 94 (Bankr.M.D.Fla.1989). Under Florida law, property held by a husband and wife as tenants by the entirety belongs to neither individual spouse, but to a separate entity referred to as the “unity” or “the marriage.” Id,.; see also In re Stanley, 122 B.R. 599, 604 (Bankr.M.D.Fla.1990). Therefore, with limited exceptions, entireties property does not become property of the bankruptcy estate when only one spouse has filed a bankruptcy petition. Mesa Petroleum Co. v. Coniglio, 16 B.R. 1015, 1021 (M.D.Fla.1982); see also Peeples, 105 B.R. at 94-95. In Florida, a viable tenancy by the entireties estate is created in either personalty or realty when the unities of possession, interest, title, time, and marriage are satisfied. Stanley, 122 B.R. at 604. If the matter involves personalty, the intent to create an entireties estate, at the time of acquisition, must be shown. Id. Such a requirement alleviates concern that the debtor will claim the personalty as entireties property so as to insulate it from claims of creditors of one of the spouses. Id. The burden of proof is not met solely by the debtor’s, or the non-filing spouse’s, testimony at the hearing on the objection to the claimed exemption. Id.;" }, { "docid": "15317378", "title": "", "text": "in a joint bankrupt cy case may thereby achieve “instant affluence” rather than just “a fresh start,” we think it clear that the Congress contemplated that possibility. The Congress did nothing to prevent such a result, but instead delegated to the states the authority to prevent it by appropriate state legislation. In short, the legislative history behind section 522 demonstrates that the Congress intended to allow each debtor in a joint case to choose the federal exemptions regardless of his or her spouse’s choice of a family exemption under state law — unless and until the applicable state law precludes such a result. See In re Carstens, 8 B.R. 524, 527 (Bkrtcy.N.D.Iowa 1981); In re Brosius, 7 B.R. 811, 813-14 (Brktcy.C.D.Cal.1980); In re Ancira, 5 B.R. 673, 674-75 (Bkrtcy.N.D.Cal.1980). Since Texas has not yet enacted legislation to restrict a debtor’s right to choose federal exemptions in such circumstances, we conclude that Mrs. Cannady may claim federal exemptions under section 522(d) of the Bankruptcy Code despite Mr. Cannady’s choice of state exemptions under Tex.Rev.Civ.Stat.Ann. arts. 3833(a)(3) and 3836(a). Our conclusion might be different had the applicable state law required Mrs. Cannady to join her husband in choosing to assert a family exemption, for in that event Mrs. Cannady would herself have chosen to claim both state and federal exemptions. This situation arose under Arizona law in In re Ageton, 5 B.R. 323 (Bkrtcy.D.Ariz.1980). Under Arizona law both spouses must join in making any homestead claim as to community or joint property, and this fact led the bankruptcy court to deny a separate federal exemption claimed by the wife: Upon her joining in the homestead exemptions under the State statute, [the ■wife] may not then claim a separate federal exemption. Section 522(m) does not state that one spouse is entitled to claim both a state and federal exemption. 5 B.R. at 325. We agree that section 522(m) does not contemplate the selection by one spouse of both state and federal exemptions. However, Texas law does not require both spouses to join in the designation of property sought to be exempted. Only one" }, { "docid": "339903", "title": "", "text": "claim exemptions in community property is vested by the Bankruptcy Code solely in the debtor spouse.” 99.4 I.B.C.R. at 164, citing Homan. Debtor’s wife did not join him in filing for bankruptcy relief. Thus, the right to claim exemptions in any property of the estate, including the community property brought into the estate under § 541(a)(2), is vested solely in Debtor. The language of § 541 and § 522 is sufficiently clear. All legal and equitable interests in property of an individual on the date of filing, including community property under the joint or equal management of that individual, will become property of the estate. All property of the estate will be administered unless it is validly exempted. Under § 522(b), “an individual debtor” may claim exemptions. The non-debtor spouse is, within the structure of these provisions, a “dependent.” See § 522(a)(1). There is nothing in the Code that allows non-debtors, dependents or otherwise, to assert in the bankruptcy an exemption personal to such non-debtors. Nor is there anything in the Bankruptcy Code that allows the debtor to assert an exemption belonging not to him but, instead, to his non-debtor dependents. F. Extent of the state exemption The focus therefore turns next to the state statutes to determine the extent of the exemptions that this individual Debtor, personally, may claim under § 522(b). As stated in Lares v. West One Bank (Idaho) (In re Lares), 188 F.3d 1166 (9th Cir.1999): In bankruptcy actions, the federal courts decide the merits of state exemptions, but the validity of the claimed state exemption is controlled by the applicable state law. Id. at 1168, quoting Redwood Empire Production Credit Association v. Anderson, (In re Anderson), 824 F.2d 754, 756 (9th Cir.1987). See also, In re Longmore, 273 B.R. 633, 635-36 (Bankr.D.Nev.2001). As Lares notes, the federal courts use state rules of construction in interpreting such statutes. 188 F.3d at 1168. Those rules require that attention be given, first and primarily, to the words of the statute, which are to be given their “plain, obvious and rational meanings.” Id. at 1169 (citations omitted). If there" }, { "docid": "339905", "title": "", "text": "is no ambiguity, then the statute is applied as written. Id.; accord, In re Duman, 00.3 I.B.C.R. 137, 2000 WL 33712219 (Bankr.D.Idaho 2000) (applying identical rules of construction). The Idaho statutes applicable here provide that an “individual debtor” can claim personal property exemptions only up to specified limits, i.e., $5,000.00 for all items under §§ ll-605(l)(a) through (l)(c) with a cap of $500.00 for any single item; $800.00 for all items under the catch-all of § 11-605(10); and $3,000.00 for equity in a vehicle under § 11-605(3). The plain language speaks to the right of the “individual” debtor to claim exemptions within the relevant monetary limits. It does not purport to authorize such a debtor to claim a second set of like exemptions for another individual (ie., his spouse). Debtor argues that additional § 11-605 exemptions would be available to his non-filing wife if they had filed jointly. This, however, is not material; they did not file a joint petition. Debtor also argues that his spouse would be able to claim exemptions in the event of a nonbankruptcy levy by a creditor. But we do not deal here with a levying creditor, and the rights asserted by the Trustee are not derivative of rights of creditors outside bankruptcy. Nor is the exemption at issue here being asserted by the “third party” (the non-debtor spouse). The analogies are unpersuasive. CONCLUSION This appears to be a case of first impression. However, the language of the statutes, both state and federal, and the guidance provided by the decisional law interpreting those statutes, support the Trustee’s position. The result may be seen by some as harsh. However, choices almost always have consequences and, as Homan notes, there indeed are consequences when only one spouse files bankruptcy. While some harshness may be ameliorated by other Code provisions, see, e.g., Homan, 112 B.R. at 360, the particular inequity Debtor perceives to exist here may not be. But that is not something which should be corrected by judicial fiat. Debtor in essence places on the shoulders of “equity” and “liberal construction” of the exemption statutes more weight" }, { "docid": "4767369", "title": "", "text": "debt of a kind specified in section 523(a)(4) or 523(a)(6) of this title owed by an institution-affiliated party of an insured depository institution to a Federal depository institutions regulatory agency acting in its capacity as conservator, receiver, or liquidating agent for such institution. . The issue in Cheeseman was whether, in a joint case, a husband and wife living together could each claim the homestead exemption allowed to a \"householder or head of a family.” At that time, the statutory definition of \"householder” was \"any person, married or unmarried, who maintains a separate residence or living quarters, whether or not others are living with him.” No Virginia case had ever held that husband and wife living together could both claim a homestead exemption. Nevertheless, the Fourth Circuit, noting that the Bankruptcy Code expressly provides that in a joint case each spouse is entitled to exemptions, reasoned that the states are not \"free to classify which debtors should be entitled to exemptions when the classification conflicts with Federal law.” 656 F.2d at 64. Accordingly, the Court held that husband and wife were each entitled to claim a $5,000 homestead exemption. . At that time, the poor debtor’s exemption in Virginia did not include an automobile, and, hence, the only way the debtor’s interest in an automobile could be exempted was under the homestead exemption. The creditors in Godfrey did not object to the exemption of the debtor’s household furnishings and wearing apparel. . Although the opinion is not as clear as it could be, the Fourth Circuit appeared to assume that the exemption issue would not arise in the absence of a judgment lien: \"It is beyond argument that the items [claimed on the debtors' homestead deed] were subject to homestead exemption under § 34-4 of the Virginia Code had they not been subject to the lien of Green’s judgment for rent.\" 899 F.2d at 340 (emphasis added). . This argument — that a state which has opted out of the Federal bankruptcy exemptions may define not only the exemptions but any limitations on those exemptions — was addressed, albeit in" }, { "docid": "958966", "title": "", "text": "F.3d 145 (4th Cir.2002) presented a situation in which husband and wife filed joint bankruptcy petitions and, under the general entireties exemption of § 522(b)(3)(B), sought to exempt the home that they owned as tenants by the entirety. The Court held that the benefits of entire-ties property survived bankruptcy filings and that the debtors’ home could not be reached by creditors of only one of the spouses. Id. at 148, 153-55. Bunker makes it clear that a joint filing in bankruptcy does not sever a tenancy by the entireties so as to make the property available to creditors of either husband or wife individually. That holding is different from, but consistent with, Napotnik. Likewise, in a companion opinion to this case, O’Lexa v. Zebley, No. 06-2254, we concluded that the wife’s home which she held as a tenant by the entirety was exempt under the general entireties exemption of § 522(b)(3)(B) from creditor’s claims against her individually. In that case, we rejected the trustee’s argument that entireties property could be accessed under a Pennsylvania statute that made both spouses liable for debts contracted for necessaries by one spouse. Because the statute as we read it did not create joint liability, but rather made the spouse contracting for the necessaries primarily liable and the other only secondarily liable, we held that the entireties property was not subject to execution for the primary debtor’s obligations. O’Lexa makes clear that the presence of joint liability is necessary for a creditor to access property in a bankruptcy estate held as tenants by the entireties. The presence of joint liability, however, does not necessarily prevent a debtor from excluding entireties property from the estate. The debtors’ other option for shielding their holdings, including entireties property, from bankruptcy administration is through the federal exemption. Unlike the general exemptions, the federal ones do not provide an exemption for entireties property as such. Instead, they grant debtors a series of specific exemptions, including the provision at issue in this case, § 522(d)(5). See § 522(d), (b)(2). Under § 522(d)(5), a debtor may exempt his “aggregate interest in any" }, { "docid": "23560412", "title": "", "text": "$20,000 in their home under Arizona law and Mrs. Ageton claimed an exemption of $7500 in the same property under federal law. 11 U.S.C. § 522(d)(1). The trial court, believing that it must first determine what homestead exemption the debtors or each of them are entitled to under state law, examined Arizona law and found that, under a 1971 amendment to A.R.S. § 33-1102(B), both spouses must join in a homestead declaration affecting community or joint property. This led him to conclude under bankruptcy law, that if the husband claims the state exemption in the family home, the wife “may not then claim a separate federal exemption” in the same property. As to 11 U.S.C. § 522(m), which applies § 522 “separately with respect to each debtor in a joint case,” the court reasoned that it “does not state that one spouse is entitled to claim both a state and federal exemption.” He thus concluded that both spouses were required to claim “state homestead exemptions of $20,000, or in the alternative that each claim the federal homestead exemption of $7500.” Federal law is supreme over state law under Art. VI, cl. 2 of the Constitution and therefore controls the allowance of exemptions from bankruptcy estates. The provisions of the bankruptcy code, rather than state law, determine not only what property may be exempted from the bankruptcy estate but how those exemptions are asserted. The entire significance of state exemptions in a bankruptcy context is found in the following language: 11 U.S.C. § 522(b). Notwithstanding section 541 of this title, an individual debtor may exempt from property of the estate— (2)(A) any property that is exempt under ... state or local law...; ” Thus, looking solely to federal law, we conclude that each individual debtor is free to elect whichever exemption schedule he or she may desire. In general, § 522(b) provides that “an individual debtor may” elect either the state or federal exemption schedules. This right is not lost if spouses file a joint case pursuant to 11 U.S.C. § 302. Accord: In re Ancira, 5 B.R. 673, 6 BCD" }, { "docid": "958957", "title": "", "text": "wife sought to exempt $10,200 of the portfolio and the husband $1,150. $4,446 remained in the account and available to the trustee. The trustee objected, asserting that the wife was merely a “co-owner” of the portfolio and thus only entitled to exempt one-half of its value. The bankruptcy judge sustained the trustee’s objection, reasoning that “[t]he presumption is that each spouse is a one-half owner of the tenancy by the entirety asset.” He based this on the rationale that “[u]pon divorce of the parties, the asset is equally owned by the parties and the ownership becomes an ownership in common.” Id. The judge seemingly assumed that the filing of a bankruptcy petition, like a divorce, transformed the spouses’ entireties interests into an ownership in common. He further stated that “[n]o basis is stated why the [w]ife has been or should become owner of more than one half of the asset.” Lewis The facts in the Lewis case are substantially similar. Thomas and Sherry Lewis also filed a joint Chapter 7 petition in the Bankruptcy Court for the Western District of Pennsylvania. They included in their schedule a 6.5 acre parcel of realty valued at $3,000 that they owned as tenants by the entireties. The wife sought to exempt the entire value of the parcel; her husband made no claim with respect to it. The wife also asserted an exemption for more than 50% of the value of certain items of personal property the debtors owned as tenants by the entireties. It appears that the parties chose this arrangement because the husband wished to exhaust his exemptions by applying them to items that he owned individually, such as a car, truck, and checking account. The trustee objected to the unequal allocation, contending that exemptions for property held as tenants by the entireties should be divided equally between the debtors. The bankruptcy judge, relying on the ruling in Brannon, decided two months earlier, held that each debtor could exempt only 50% of the parcel owned as a tenant by the entireties. Citing Pennsylvania law on tenancy by the entireties, he concluded that" }, { "docid": "10212024", "title": "", "text": "(10th Cir. 1969), cert. denied sub nom., Sears, Roebuck & Co. v. Horton, 397 U.S. 915, 90 S.Ct. 918, 25 L.Ed.2d 95 (1970); Esten v. Cheek, 254 F.2d 667 (9th Cir. 1958); Williams v. Wirt, 423 F.2d 761 (5th Cir. 1970). In fact, it renders them meaningless since nearly all state court interpretations of the exemption provisions are in a non-bankruptcy context. Appellee gratuitously offers, again without authority, that “there seems to be no question but that the bankruptcy court should have that power.” (Ap-pellee’s Memorandum on appeal at 3, Is. 31-32) (emphasis added). In fact, the federal courts have always felt bound to follow state law in this regard. The rationale used by the trustee and the Bonant court to justify this departure is that otherwise the purpose of the bankruptcy laws could be frustrated by a non-filing spouse filing at a later date and claiming the homestead exemption. A clear reading of Schoenfeld and Strangman shows that this is not possible. The homestead exemption is not apportion-able and there is only one exemption as between husband and wife. “. . . [I]f the husband’s creditors first attempt to execute on the homesteaded property, the husband gets the benefit of the exemption; if the wife’s creditors move first, she gets it.” Schoenfeld, supra, at 763, 90 Cal.Rptr. at 52, citing Strangman, supra, at 190, 295 P.2d at 16. The debtor, Barbara Lois Schneider, has first filed and claims the family homestead exemption declared jointly by her and her husband. If her husband subsequently files in bankruptcy he may claim only those exemptions to which he is entitled under state law. Under that law there is no allowable homestead exemption because that exemption has already been asserted by his spouse. Thus the fear of the trustee is unfounded. The trustee also argues that under the new Bankruptcy Code, which is applicable in this case, the Schoenfeld decision should not apply. The distinction he notes between the former Act and the new Code is that under the Act the trustee took title to all non-exempt property of the debtor. Under the" }, { "docid": "1156124", "title": "", "text": "is based upon the following language in § 815.20(1) of the Wisconsin Statutes: “Such exemption extends to land owned by husband and wife jointly or in common, and when they reside in the same household may be claimed by either or may be divided in any proportion between them, but in no event shall the exemption exceed $25,000 for such household.” The trustee argues that § 815.20(1) will not permit a husband and wife residing in the same household to claim homestead exemptions that total in excess of $25,000, and accordingly if Julia insists on claiming an exemption of $6,420, then Roger must reduce his claimed $25,000 exemption by $6,420. Before deciding whether the exemptions have been properly claimed, it is necessary to have an understanding of the basic approach taken by the Bankruptcy Code. Section 541 provides that the commencement of a bankruptcy case creates a bankruptcy “estate” consisting (with some exceptions and qualifications not here relevant) of all legal or equitable interests of the debtor in property as of the commence ment of the case. The filing of a joint petition by a husband and wife does not create a joint bankruptcy estate. Section 302(b) indicates that this would only occur if the court ordered the two bankruptcy estates to be consolidated. An individual debtor has the option of exempting property out of property of the estate under § 522(b)(1) or § 522(b)(2). Section 522(b)(1) permits a debtor to claim as exempt that property which is specified in § 522(d) of the Code. Section 522(b)(2) permits a debtor to claim as exempt that property which is exempt under Federal law other than § 522(d), plus that property which is exempt under State or local law that is applicable on the date of the filing of the petition. In the case at bar, the two debtors filed a joint petition. Inasmuch as no consolidation was ordered, a separate bankruptcy estate was created for each spouse. Each bankruptcy estate included an undivided one-half interest in the homestead, each of which had a value of $15,710. Roger elected to claim his" } ]

[ { "docid": "22413109", "title": "", "text": "1252(a)(2)(C), the BIA’s order is unreviewable because it implicates the Board’s unfettered discretion to reopen proceedings sua sponte under 8 C.F.R. § 1003.2(a). This regulation permits the Board “at any time [to] reopen or reconsider on its own motion any case in which it has rendered a decision.” To make out a prima facie case for sua sponte reopening, an alien must show the presence of an “exceptional situation.” See In re G-D-, 22 I. & N. Dec. 1132, 1133-34 (BIA 1999); In re J-J-, 21 I. & N. Dec. 976, 984 (BIA 1997). However, “[t]he Board has discretion to deny a motion to reopen even if the party moving has made out a prima facie case for relief.” 8 C.F.R. § 1003.2(a). Because there is no standard governing the agency’s exercise of discretion under 8 C.F.R. § 1003.2(a), we would lack jurisdiction to review BIA decisions not to reopen proceedings sua sponte. Calle-Vujiles v. Ashcroft, 320 F.3d 472, 475 (3d Cir.2003). Cruz responds that an exception applies here to the general principle that decisions wholly within an agency’s discretion are unreviewable. If the BIA has restricted the exercise of its discretion by establishing a “general policy” of reopening sua sponte when an alien contends his conviction is vacated under Pickering, we would have jurisdiction to review the BIA’s order. See id. (“It is true that if an agency announces and follows — by rule or by settled course of adjudication — a general policy by which its exercise of discretion will be governed, that exercise may be reviewed for abuse.” (internal quotation omitted)). Cruz argues that the Board has consistently held that a conviction vacated for immigration purposes constitutes an “exceptional situation” under which proceedings must be reopened sua sponte, see supra note 3, and that we may thus review the Board’s departure from that “settled course of adjudication” in the instant case. Just as we cannot determine from the BIA’s opinion whether § 1252(a)(2)(C) applies here, we also find it to be inconclusive on the issue of whether the BIA’s decision not to reopen sua sponte in this" } ]

[ { "docid": "20771194", "title": "", "text": "(1st Cir.1999) (explaining that “the decision of the BIA whether to invoke its sua sponte authority is committed to its unfettered discretion”) (quoting Luis v. INS, 196 F.3d 36, 40 (1st Cir.1999)). This view accords with the thinking of our sister circuits, ten of which have concluded that there are no meaningful standards against which to judge the BIA’s exercise or non-exercise of its discretion to reopen proceedings sua sponte. See, e.g., Mosere v. Mukasey, 552 F.3d 397, 400-01 (4th Cir.2009); Lenis v. U.S. Att’y Gen., 525 F.3d 1291, 1293-94 (11th Cir.2008); Tamenut v. Mukasey, 521 F.3d 1000, 1005 (8th Cir.2008) (en banc) (per curiam); Ali v. Gonzales, 448 F.3d 515, 518 (2d Cir.2006) (per curiam): Harchenko v. INS, 379 F.3d 405, 410-11 (6th Cir.2004); Enriquez-Alvarado v. Ashcroft, 371 F.3d 246, 248-50 (5th Cir.2004); Pilch v. Ashcroft, 353 F.3d 585, 586 (7th Cir.2003); Belay-Gebru v. INS, 327 F.3d 998, 1000-01 (10th Cir.2003); Calle-Vujiles v. Ashcroft, 320 F.3d 472, 474-75 (3d Cir.2003); Ekimian v. INS, 303 F.3d 1153, 1159 (9th Cir.2002). Thus, each of these courts has concluded, as do we, that when a motion to reopen has been directed to the BIA’s sua sponte authority, the court of appeals lacks jurisdiction to review a denial of the motion. The petitioner’s only real rejoinder is to suggest that Zhang and Prado are incorrectly decided. We think not. In any event, we are foreclosed from reexamining the holding in those cases. “We have held, time and again, that in a multi-panel circuit, prior panel decisions are binding upon newly constituted panels in the absence of supervening authority sufficient to warrant disregard of established precedent.” Muskat v. United States, 554 F.3d 183, 189 (1st Cir.2009) (quoting United States v. Wogan, 938 F.2d 1446, 1449 (1st Cir.1991)). The petitioner has not identified any supervening authority that might make a difference here. Consequently, the law-of-the-circuit doctrine is in full flower; Zhang and Prado are binding precedents, and we must follow them. We need go no further. The BIA’s exercise of its unfettered discretion to decline reopening of the petitioner’s removal proceedings sua sponte lies beyond" }, { "docid": "19341055", "title": "", "text": "Tofade’s motion to reopen the order of removal because it was untimely. The BIA also declined to exercise its sua sponte authority to reopen the proceedings under 8 C.F.R. § 1003.2(a). Tofade then timely petitioned this Court to review the BIA’s decision. DISCUSSION We have jurisdiction to review “final order[s] of removal” from the IJ or BIA. 8 U.S.C. § 1252(a)(1). We have held that § 1252(a)(1) also implicitly grants us the authority to review orders denying motions to reopen final orders of removal. Ali v. U.S. Att’y Gen., 443 F.3d 804, 809 n. 2 (11th Cir.2006). Since the BIA affirmed Tofade’s final order of removal, we have jurisdiction to review the BIA’s decision. See id. BIA’s Denial of Tofade’s Motion to Reopen The BIA may reopen proceedings in cases in which it has rendered a decision if a party affected by the decision so moves in writing. 8 C.F.R. § 1003.2(a). The party may file one motion “no later than 90 days after the date on which the final administrative decision was rendered in the proceeding sought to be reopened. ...” 8 C.F.R. § 1003.2(c)(2). The statutory ninety-day period “is mandatory and jurisdictional, and, therefore, it is not subject to equitable tolling.” Abdi v. U.S. Att’y Gen., 430 F.3d 1148, 1149 (11th Cir. 2005). We review for abuse of discretion a BIA decision to deny a motion to reopen. Abdi, 430 F.3d at 1150. “Our review is limited to determining ‘whether there has been an exercise of administrative discretion [that] has been arbitrary or capricious.’ ” Id. at 1149 (citation omitted). We do not find arbitrary or capricious the BIA’s denial of Tofade’s motion to reopen. The BIA affirmed the IJ’s order to deport Tofade on July 30, 2002. Tofade waited nearly four years after that date, well beyond the statutory ninety-day period, to move to reopen the proceedings. Accordingly, we find that the BIA did not abuse its discretion by denying as untimely Tofade’s motion to reopen. BIA’s Refusal to Reopen Sua Sponte The BIA may also sua sponte reopen proceedings in a case in which it rendered" }, { "docid": "22663334", "title": "", "text": "it had rendered a decision,’ ” Pet’r’s Br. at 35 n. 10 (emphasis added), he insists that “the Board should nonetheless have exercised such authority here as the Petitioner certainly presents compelling and exceptional circumstances upon which to act,” id. at 35. It is a matter of first impression in this Circuit whether we have jurisdiction to review the BIA’s decision not to exercise its sua sponte authority to reopen removal proceedings. According to the relevant provision in the Code of Federal Regula tions, the BIA “may at any time reopen or reconsider on its own motion any case in which it has rendered a decision.... The decision to grant or deny a motion to reopen or reconsider is within the discretion of the Board, subject to the restrictions of [8 C.F.R. § 1003.2]. The Board has discretion to deny a motion to reopen even if the moving party has made out a prima facie case for relief.” 8 C.F.R. § 1003.2(a). Several other circuits have concluded that the BIA’s failure to reopen removal proceedings sua sponte is a discretionary decision that cannot be reviewed by the Courts of Appeals. See Enriquez-Alvarado v. Ashcroft, 371 F.3d 246, 249-50 (5th Cir.2004) (holding that because the “Code of Federal Regulations suggests that no meaningful standard exists against which to judge an IJ’s decision to exercise sua sponte authority to reopen deportation proceedings,” such decisions are committed to the discretion of the BIA and therefore unreviewable); Belay-Gebru v. INS, 327 F.3d 998, 1000-01 (10th Cir.2003) (same); Calle-Vujiles v. Ashcroft, 320 F.3d 472, 474-75 (3d Cir.2003) (same); Ekimian v. INS, 303 F.3d 1153, 1157-58 (9th Cir.2002) (same); Luis v. INS, 196 F.3d 36, 40-41 (1st Cir.1999) (same); see also Pilch v. Ashcroft, 353 F.3d 585, 586 (7th Cir.2003) (“[F]ailure to reopen sua sponte is a discretionary decision that is unreviewable ....”); Anin v. Reno, 188 F.3d 1273, 1279 (11th Cir.1999) (holding that 8 C.F.R. § 1003.2(a) gives the BIA “non-reviewable discretion” to' decline to reopen deportation proceedings). We hereby join our sister circuits in holding that a decision of the BIA whether to reopen" }, { "docid": "15009182", "title": "", "text": "removal proceedings and, therefore, a BIA decision to sua sponte reopen proceedings is committed to agency discretion by law. Those precedents, however, were based on BIA decisions declining to sua sponte reopen removal proceedings. See Calle-Vujiles, 320 F.3d at 475 (“[T]his court is without jurisdiction to review a [BIA] decision declining to exercise [sua sponte ] discretion to reopen or reconsider [a] case.” (emphasis added)); Alzaarir v. Att’y Gen., 639 F.3d 86, 89 n. 2 (3d Cir.2011) (“[T]he BIA’s decision not to reopen the proceedings sua sponte. ... is a discretionary decision beyond our jurisdiction.” (emphasis added)). We have never decided whether a BIA decision to reopen, as opposed to declining to reopen, is committed to agency discretion. The government acknowledges that no precedential opinion — in this Circuit or any other — has decided whether decisions to reopen are unreviewable, but it argues that there is “no principled basis” for distinguishing “denials of reopening ... from grants of reopening.” (Letter Brief of Appellee at 2 (July 22, 2011).) We disagree. The distinction between acting and not acting is not merely a matter of semantics, and persuasive reasons for making such a distinction can be found in precedent from the BIA, this Court, and the Supreme Court. The BIA’s authority to sua sponte reopen removal proceedings comes from 8 C.F.R. § 1003.2(a), which states that “[t]he Board may at any time reopen or reconsider on its own motion any case in which it has rendered a decision.” The regulation provides no guidance on how that authority should be exercised, but the BIA has explained that it is not boundless: [T]he Board retains limited discretionary powers under the regulations to reopen or reconsider cases on our own motion. That power, however, allows the Board to reopen proceedings sua sponte in exceptional situations not present here. The power to reopen on our own motion is not meant to be used as a general cure for filing defects or to otherwise circumvent regulations, where enforcing them might result in hardship. In re J-.J- 21 I. & N. Dec. 976, 984 (BIA 1997) (emphasis" }, { "docid": "23232997", "title": "", "text": "was pending, Barry claims that she married a United States citizen on June 29, 2005. On July 5, 2005, the BIA dismissed her appeal. On November 22, 2006—almost sixteen months after the BIA’s July 5, 2005 decision—Barry filed a motion to reopen and remand before the BIA. On February 22, 2007, the BIA denied her motion to reopen. ANALYSIS A motion to reopen must “be filed within 90 days of the date of entry of a final administrative order of removal.” 8 U.S.C. § 1229a(c)(7)(C)(I); see also 8 C.F.R. § 1003.2(c)(2). The time limits for filing a motion to reopen “are crystal clear.” Randhawa v. Gonzales, 474 F.3d 918, 920 (6th Cir.2007). The 90-day period for filing a motion to reopen is subject to narrow exceptions: (1) where the BIA reopens the proceedings sua sponte; (2) where the parties agree to reopen the proceedings; (3) changed circumstances in the country of nationality of which there is new, material evidence that could not have been discovered or presented at the time of the original proceeding; and (4) certain in absentia decisions. Qeraxhiu v. Gonzales, 206 Fed.Appx. 476, 480 (6th Cir.2006) (citing 8 C.F.R. § 1003.2(a), (c)(3)). Here, Barry does not dispute that her motion to reopen was filed after the 90-day period. Rather, she argues that the BIA abused its discretion when it (a) failed to exercise its sua sponte authority to reopen proceedings and (b) refused to apply equitable tolling to excuse her failure to timely file because she received ineffective assistance of counsel. A. Sua sponte authority We previously have held that “[t]he decision whether to invoke sua sponte authority [under 8 C.F.R. § 1003.2(a)] is committed to the unfettered discretion of the BIA” and therefore is not subject to judicial review. Harchenko v. I.N.S., 379 F.3d 405, 410-11 (6th Cir.2004) (citing 8 C.F.R. § 1003.2(a); Luis v. I.N.S., 196 F.3d 36, 40 (1st Cir.1999); see also Calle-Vujiles v. Ashcroft, 320 F.3d 472, 474 (3d Cir.2003); Ekimian v. I.N.S., 303 F.3d 1153, 1154 (9th Cir.2002); Anin v. Reno, 188 F.3d 1273, 1279 (11th Cir.1999)). Section 1003.2(a) “allows the BIA" }, { "docid": "22698326", "title": "", "text": "provides that the BIA “may” reopen on its own motion, but it “provides no guidance as to the BIA’s appropriate course of action, sets forth no factors ..., places no constraints on the BIA’s discretion, and specifies no standards for a court to use to cabin the BIA’s discretion.” Tamenut, 521 F.3d at 1004. While the BIA has indicated it will exercise its power to reopen sua sponte in the presence of exceptional circumstances, “the mere fact that the BIA has acknowledged the existence of its authority to reopen sua sponte in what it deems to be ‘exceptional situations’ is not sufficient to establish a meaningful standard for judging whether the BIA is required to reopen proceedings on its own motion.” Tame-nut, 521 F.3d at 1005 (emphasis in original). Because there are no meaningful standards by which to judge the BIA’s exercise of its discretion, we find that we lack jurisdiction to review its refusal to sua sponte reopen Mosere’s case. III. For the foregoing reasons, we deny the petition for review in part and dismiss it in part. PETITION DENIED IN PART AND DISMISSED IN PART . Sierra Leone was embroiled in a civil war from 1991-2002. By mid-1997, approximately one-third of Sierra Leone's population was displaced within the country. . Mosere claims to suffer from both sickle cell anemia and a heart condition that causes her pain. .Temporary Protected Status is a temporary immigration status granted to citizens of designated countries who are temporarily unable to safely return to their home country because of ongoing armed conflict, an environmental disaster, or other extraordinary and temporary conditions. 8 U.S.C.A. § 1254a (West 2005). . Mosere also argues that the BIA erroneously concluded that she was time-barred under 8 U.S.C.A. § 1229c(d) (West 2005 & Supp. 2008). Because we can affirm the BIA’s decision based on its alternative holding that Mos-ere’s motion was untimely, we do not address this argument." }, { "docid": "15009185", "title": "", "text": "past year, see, e.g., In re Werner Remberto Orozco-Lopez, 2011 WL 2261236 (BIA May 25, 2011) (“We further will not reopen these proceedings sua sponte because the respondent has not established an exceptional situation to do so.”); In re Elvi Antonio Vicente Arias, 2010 WL 5173971 (BIA Nov. 30, 2010) (“The respondent presents an exceptional situation which warrants sua sponte reopening.”); In re Jose Santos Diaz, 2010 WL 4971010 (BIA Nov. 23, 2010) (“The respondent does not present an exceptional situation which warrants reopening on our own motion.”). We have explained that “if an agency ‘announces and follows — by rule or settled course of adjudication — a general policy by which its exercise of discretion will be governed,’ ” the exercise of that discretion may be reviewed for abuse. Quarantillo, 301 F.3d at 112-13 (quoting INS v. Yang, 519 U.S. 26, 32, 117 S.Ct. 350, 136 L.Ed.2d 288 (1996)). Thus, because the BIA has announced and followed a general policy that it will exercise its discretion to reopen only in exceptional situations, we may review a decision to reopen to determine whether it was based upon an exceptional situation. That conclusion is supported by our reasoning in Calle-Vujiles, the case in which we ruled that “decisions not to sua sponte reopen or reconsider are non-reviewable.” 320 F.3d at 473-75. There, relying on the Supreme Court’s opinion in Heckler v. Chaney, we explained that courts may not review matters “where the governing ‘statute is drawn so that a court would have no meaningful standard of review against which to judge the agency’s exercise of discretion.’ ” Id. at 474 (quoting Heckler v. Chaney, 470 U.S. 821, 830, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985)). Applying that principle, we explained that, while the BIA is “allow[ed] ... to reopen proceedings in exceptional situations,” it is not “required] ... to reopen proceedings in exceptional situations.” Id. at 475. Therefore, because the BIA has “unfettered discretion to decline to sua sponte reopen,” even when there is an exceptional situation, the “exceptional situations” requirement provides no meaningful standard against which to judge a BIA’s" }, { "docid": "22780587", "title": "", "text": "are not relevant to his persecution claim. We separately note that the respondent may address a request for humanitarian parole for medical treatment to the DHS, as requests for deferred action are within the jurisdiction of DHS, not the Immigration Courts or this Board.” (AR at 4.) The BIA concluded that Pllumi had “not presented an exceptional situation which would warrant reopening” and declined to exercise its authority to reopen his case sua sponte. Pllumi has petitioned for review of the BIA’s decision that he failed to demonstrate changed country conditions such that he would be eligible for reopening under 8 C.F.R. § 1003.2(c)(3)(ii). Alternatively, he contends that his petition should be granted because the BIA’s refusal to sua sponte reopen his proceedings is predicated on an error of law. II. Standard of Review In immigration cases, we review a denial of a motion to reopen or a motion to reconsider for abuse of discretion, regardless of the underlying basis of the alien’s request for relief. INS v. Doherty, 502 U.S. 314, 323-24, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992); Ezeagwuna v. Ashcroft, 325 F.3d 396, 409 (3d Cir.2003). We give the BIA’s decision broad deference and generally do not disturb it unless it is “arbitrary, irrational, or contrary to law.” Filja v. Gonzales, 447 F.3d 241, 251 (3d Cir.2006) (citation and quotation omitted). However, motions that ask the BIA to sua sponte reopen a case are of a different character. Because such motions are committed to the unfettered discretion of the BIA, we lack jurisdiction to review a decision on whether and how to exercise that discretion. Calle-Vujiles v. Ashcroft, 320 F.3d 472, 475 (3d Cir.2003). Nevertheless, in Mahmood v. Holder the United States Court of Appeals for the Second Circuit suggested that there is jurisdiction to remand to the BIA for reconsideration when the BIA’s decision to decline to exercise its sua sponte authority is based on a misperception of the relevant law. 570 F.3d 466, 469 (2d Cir.2009). In Mahmood, the petitioner, a native of Pakistan, filed for an adjustment of status after his marriage to a" }, { "docid": "22780590", "title": "", "text": "178 (2008), held that an alien could unilaterally withdraw from voluntary departure so as to pursue a motion to reopen. Mahmood, 570 F.3d at 470. That meant that Mahmood’s stated desire to retract his decision to voluntarily depart would not have resulted in a ten-year bar to an adjustment of his status, as the BIA and IJ had thought when denying the motion to reopen. In light of Dada, the Second Circuit determined that it was error for the IJ and BIA to assume that Mahmood’s failure to timely depart from the United States “conclusively barred an adjustment of his status” and thus sua sponte reopening was not necessarily futile. Id. at 467. Recognizing that it generally lacked jurisdiction to review the BIA’s decision to deny sua sponte reopening, the Second Circuit nevertheless remanded the case so that the BIA could reconsider it in light of Dada. Id. at 467, 471. The Court decided it could exercise jurisdiction “where the Agency may have declined to exercise its sua sponte authority because it misperceived the legal background and thought, incorrectly, that a reopening would necessarily fail.” Id. at 469. We have not previously had occasion to consider whether a question of law arising in the context of a request for sua sponte reopening, as was implicated in Mahmood, gives rise to our jurisdiction. As noted earlier, we typically cannot review a BIA decision to deny sua sponte reopening. That jurisdictional limitation is a product of precedent noting that there is simply no meaningful standard against which such a decision can be judged, because the BIA can make the decision for practically any reason at all; its discretion is essentially complete. Calle-Vujiles, 320 F.3d at 474-75; see 8 C.F.R. § 1003.2(a). However, the discretionary character of a decision to reopen sua sponte does not mean that we are powerless to point out when a decision is based on a false legal premise. Mahmood demonstrates that, and we adopt the Second Circuit’s reasoning in that regard. If the reasoning given for a decision not to reopen sua sponte reflects an error of law," }, { "docid": "15009219", "title": "", "text": "that he was not detained as of that date. . Although the IJ does not cite it, she may have been relying on § 1158(a)(2)(D), which allows tin application to be considered beyond the one-year period if there are \"extraordinary circumstances relating to the delay in filing an application.” . See Biskupski v. Att’y Gen., 503 F.3d 274, 276 n. 1 (3d Cir.2007) (‘‘On March 1, 2003, Congress transferred the INS's functions to the Bureau of Immigration and Customs Enforcement. ...\" (citing 6 U.S.C. §§ 251, 271 & 291)). . Chehazeh’s brief addressed a number of other purported \"frauds” that were not discussed in the ICE motion but that were mentioned in an affidavit attached to that motion. . Because the initial decision was sent to a wrong address and Chehazeh did not receive notice of it, the BIA reissued its decision on October 21, 2008. .Although Chehazeh was not actually in custody, he asserted that the District Court could still exercise habeas jurisdiction because he was \"subject to removal proceedings against him, which constitute 'significant restraints on liberty ... not shared by the public generally, along with some type of continuing governmental supervision.' ” (App. at 13 (quoting Obado v. New Jersey, 328 F.3d 716, 717 (3d Cir.2003)) (omission in original).) .Specifically, the government argued that 8 U.S.C. §§ 1252(b)(9) and 1252(g), as amended by the REAL ID Act, precluded review of Chehazeh’s claims. . Chehazeh’s removal proceedings are stayed pending the outcome of this appeal, pursuant to an order we entered on December 3, 2010. . We and other courts of appeals have sometimes spoken in terms of “jurisdiction” when addressing judicial power to consider peti tions for review of BIA decisions pursuant to the APA. See, e.g., Calle-Vujiles v. Ashcroft, 320 F.3d 472, 475 (3d Cir.2003) (dismissing a petition for review for \"lack of appellate jurisdiction” after determining that the \"BIA retains unfettered discretion to decline to sua sponte reopen or reconsider a deportation proceeding”); Hernandez v. Holder, 606 F.3d 900, 904 (8th Cir.2010) (holding that the court \"lack[ed] jurisdiction” over the BIA's decision to deny administrative" }, { "docid": "15009181", "title": "", "text": "juvenile status because the INA did not preclude review of that decision and the decision was not committed to agency discretion). On general principles, then, the District Court had jurisdiction over Chehazeh’s claims under § 1331 and could have reviewed the BIA’s decision to reopen Chehazeh’s removal proceedings pursuant to the APA if (1) the BIA’s action was not “committed to agency discretion by law,” 5 U.S.C. § 701(a)(2); (2) no statute precluded review, 5 U.S.C. § 701(a)(1); (3) the BIA’s action was a “final agency action,” 5 U.S.C. § 704; and (4) no “special statutory review” provision required that Chehazeh’s action be brought in some other form or forum, 5 U.S.C. § 703. We consider each of those requirements below. 1. The BIA’s Decision to Sua Sponte Reopen Removal Proceedings is Not Committed to Agency Discretion By Law The government, relying on Calle-Vujiles v. Ashcroft, 320 F.3d 472, 475 (3d Cir.2003), and related cases, argues that the BIA has “unfettered discretion” (Letter Brief of Appellee at 5 (July 15, 2011)) regarding whether to reopen removal proceedings and, therefore, a BIA decision to sua sponte reopen proceedings is committed to agency discretion by law. Those precedents, however, were based on BIA decisions declining to sua sponte reopen removal proceedings. See Calle-Vujiles, 320 F.3d at 475 (“[T]his court is without jurisdiction to review a [BIA] decision declining to exercise [sua sponte ] discretion to reopen or reconsider [a] case.” (emphasis added)); Alzaarir v. Att’y Gen., 639 F.3d 86, 89 n. 2 (3d Cir.2011) (“[T]he BIA’s decision not to reopen the proceedings sua sponte. ... is a discretionary decision beyond our jurisdiction.” (emphasis added)). We have never decided whether a BIA decision to reopen, as opposed to declining to reopen, is committed to agency discretion. The government acknowledges that no precedential opinion — in this Circuit or any other — has decided whether decisions to reopen are unreviewable, but it argues that there is “no principled basis” for distinguishing “denials of reopening ... from grants of reopening.” (Letter Brief of Appellee at 2 (July 22, 2011).) We disagree. The distinction between acting" }, { "docid": "22698325", "title": "", "text": "next alleges that the BIA erred by declining to exercise its discretionary power to sua sponte reopen Mos-ere’s asylum application for extraordinary circumstances. Every circuit that has considered this issue has determined that the BIA’s decision whether to exercise its power to reopen sua sponte is unreviewable because there are no meaningful standards for courts to apply in review. Tamenut v. Mukasey, 521 F.3d 1000, 1004-05 (8th Cir. 2008) (en banc) (per curiam); Ali v. Gonzales, 448 F.3d 515, 518 (2d Cir.2006); Enriquez-Alvarado v. Ashcroft, 371 F.3d 246, 249-50 (5th Cir.2004); Pilch v. Ashcroft, 353 F.3d 585, 586 (7th Cir.2003); Belay-Gebru v. INS, 327 F.3d 998, 1000-01 (10th Cir.2003); Calle-Vujiles v. Ashcroft, 320 F.3d 472, 474-75 (3d Cir.2003); Ekimian v. INS, 303 F.3d 1153, 1159 (9th Cir.2002); Luis v. INS, 196 F.3d 36, 40-41 (1st Cir.1999); Anin v. Reno, 188 F.3d 1273, 1279 (11th Cir.1999). We have reached the same decision in a prior unpublished opinion, Doh v. Gonzales, 193 Fed.Appx. 245, 246 (4th Cir.2006) (per curiam), and we reaffirm that holding today. Section 1003.2(a) provides that the BIA “may” reopen on its own motion, but it “provides no guidance as to the BIA’s appropriate course of action, sets forth no factors ..., places no constraints on the BIA’s discretion, and specifies no standards for a court to use to cabin the BIA’s discretion.” Tamenut, 521 F.3d at 1004. While the BIA has indicated it will exercise its power to reopen sua sponte in the presence of exceptional circumstances, “the mere fact that the BIA has acknowledged the existence of its authority to reopen sua sponte in what it deems to be ‘exceptional situations’ is not sufficient to establish a meaningful standard for judging whether the BIA is required to reopen proceedings on its own motion.” Tame-nut, 521 F.3d at 1005 (emphasis in original). Because there are no meaningful standards by which to judge the BIA’s exercise of its discretion, we find that we lack jurisdiction to review its refusal to sua sponte reopen Mosere’s case. III. For the foregoing reasons, we deny the petition for review in part and" }, { "docid": "15009220", "title": "", "text": "'significant restraints on liberty ... not shared by the public generally, along with some type of continuing governmental supervision.' ” (App. at 13 (quoting Obado v. New Jersey, 328 F.3d 716, 717 (3d Cir.2003)) (omission in original).) .Specifically, the government argued that 8 U.S.C. §§ 1252(b)(9) and 1252(g), as amended by the REAL ID Act, precluded review of Chehazeh’s claims. . Chehazeh’s removal proceedings are stayed pending the outcome of this appeal, pursuant to an order we entered on December 3, 2010. . We and other courts of appeals have sometimes spoken in terms of “jurisdiction” when addressing judicial power to consider peti tions for review of BIA decisions pursuant to the APA. See, e.g., Calle-Vujiles v. Ashcroft, 320 F.3d 472, 475 (3d Cir.2003) (dismissing a petition for review for \"lack of appellate jurisdiction” after determining that the \"BIA retains unfettered discretion to decline to sua sponte reopen or reconsider a deportation proceeding”); Hernandez v. Holder, 606 F.3d 900, 904 (8th Cir.2010) (holding that the court \"lack[ed] jurisdiction” over the BIA's decision to deny administrative closure because there was no meaningful standard against which to judge the BIA’s decision); Ekimian v. I.N.S., 303 F.3d 1153, 1154 (9th Cir.2002) (holding that the court ”lack[ed] jurisdiction to review a BIA decision not to reopen the [removal] proceeding sua sponte ” because it could not \"discover a sufficiently meaningful standard against which to judge the BIA’s decision” (emphasis removed)); Luis v. INS, 196 F.3d 36, 40 (1st Cir.1999) (holding that the court had \"no jurisdiction” to review the decision of the BIA not to reopen removal proceedings sua sponte because \"the decision of the BIA whether to invoke its sua sponte authority is committed to its unfettered discretion.”). That may be viewed, however, as too loose a use of that term. The Supreme Court has said that \"the APA does not afford an implied grant of subject-matter jurisdiction permitting federal judicial review of agency action.” Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977). Rather, the \"federal question” statute, 28 U.S.C. § 1331, ”confer[s] jurisdiction on federal courts to" }, { "docid": "22044931", "title": "", "text": "MARCUS, Circuit Judge: Petitioners Clara Ines Lenis, her husband Orlando Herrera, and their two children Tatiana Herrera and Marlon Herrera (collectively, “Lenis”), petition for review of the Board of Immigration Appeals’ (“BIA’s”) decision denying their motion for a sua sponte reopening of their case, pursuant to 8 C.F.R. § 1003.2(a). On appeal, Lenis claims that the BIA abused its discretion in denying a request to use its sua sponte powers to reopen the underlying proceedings essentially because the agency had issued a precedential decision changing the meaning of the term “particular social group” under the asylum laws. After thorough review, we dismiss the petition for lack of jurisdiction. The dispositive issue is whether we have jurisdiction to review the BIA’s denial of a motion to reopen the underlying immigration proceedings based on its sua sponte authority. We are, of course, always required to address whether we have subject-matter jurisdiction. Chacon-Botero v. U.S. Att’y Gen., 427 F.3d 954, 956 (11th Cir.2005). This kind of challenge — asking whether the BIA abused its discretion by refusing to reopen proceedings under 8 C.F.R. § 1003.2(a) — has previously been before this Court in Anin v. Reno, 188 F.3d 1273 (11th Cir.1999). However, Anin did not squarely address whether we have jurisdiction in this situation, and in fact, the parties here agree that Anin does not resolve the matter. Today, however, the government contends that we are without jurisdiction. It is, therefore, an issue of first impression that we must resolve. Ten courts of appeals have held that they have no jurisdiction to hear an appeal of the BIA’s denial of a motion to reopen based on its sua sponte authority. See Luis v. INS, 196 F.3d 36, 40 (1st Cir.1999); Ali v. Gonzales, 448 F.3d 515, 518 (2d Cir.2006) (per curiam); Calle-Vujiles v. Ashcroft, 320 F.3d 472, 474-75 (3d Cir.2003); Doh v. Gonzales, 193 Fed.Appx. 245, 246 (4th Cir.2006) (per curiam) (un published); Emiquez-Alvarado v. Ashcroft, 371 F.3d 246, 248-50 (5th Cir.2004); Harchenko v. INS, 379 F.3d 405, 410-11 (6th Cir.2004); Pilch v. Ashcroft, 353 F.3d 585, 586 (7th Cir.2003); Tamenut v. Mukasey," }, { "docid": "7376013", "title": "", "text": "I. & N. Dec. 637 (BIA 1988). He sought equitable tolling of the time and number limitations on motions to reopen. He also argued that the BIA should exercise its authority to reopen the proceedings sua sponte. The BIA denied Alzaarir’s motion as time- and number-barred. The BIA held that Alzaarir failed to show that he had acted with the reasonable diligence necessary for an award of equitable tolling. The BIA highlighted the fact that, in June 2005, Alzaarir learned that he had been ordered removed, became “skeptical” of Helal’s advice, and hired Lin. The BIA noted that no claim of ineffective assistance was made against Lin, who tried without success for three years to persuade DHS to file a joint motion to reopen. The BIA also observed that Alzaarir did not reveal when he consulted with his current counsel. However, the BIA noted, DHS notified counsel in March 2009 that it would not join in a joint motion, but the motion to reopen was not filed until August 10, 2009. The BIA also declined to reopen the proceedings sua sponte. Alzaarir submits a petition for review of the BIA’s decision. We have jurisdiction pursuant to 8 U.S.C. § 1252(a). Review of the BIA’s decision to deny a motion to reopen is under a highly deferential abuse of discretion standard. See Guo v. Ashcroft, 386 F.3d 556, 562 (3d Cir.2004). The discretionary decision is not disturbed unless it is found to be arbitrary, irrational, or contrary to law. See id. We will deny the petition for review because we cannot say the BIA’s decision was arbitrary, irrational, or contrary to law. An alien faces number and time limitations on filing motions to reopen. Generally, an alien may file only one motion to reopen. See 8 U.S.C. § 1229a(c)(7)(A) (listing an exception not relevant here). Also, most motions to reopen must be filed no later than 90 days after the date of the final administrative decision. See 8 U.S.C. § 1229a(c)(7)(A); 8 C.F.R. § 1003.2(c)(2). Alzaarir presented his second motion to reopen to the BIA more than four and a half" }, { "docid": "23232998", "title": "", "text": "(4) certain in absentia decisions. Qeraxhiu v. Gonzales, 206 Fed.Appx. 476, 480 (6th Cir.2006) (citing 8 C.F.R. § 1003.2(a), (c)(3)). Here, Barry does not dispute that her motion to reopen was filed after the 90-day period. Rather, she argues that the BIA abused its discretion when it (a) failed to exercise its sua sponte authority to reopen proceedings and (b) refused to apply equitable tolling to excuse her failure to timely file because she received ineffective assistance of counsel. A. Sua sponte authority We previously have held that “[t]he decision whether to invoke sua sponte authority [under 8 C.F.R. § 1003.2(a)] is committed to the unfettered discretion of the BIA” and therefore is not subject to judicial review. Harchenko v. I.N.S., 379 F.3d 405, 410-11 (6th Cir.2004) (citing 8 C.F.R. § 1003.2(a); Luis v. I.N.S., 196 F.3d 36, 40 (1st Cir.1999); see also Calle-Vujiles v. Ashcroft, 320 F.3d 472, 474 (3d Cir.2003); Ekimian v. I.N.S., 303 F.3d 1153, 1154 (9th Cir.2002); Anin v. Reno, 188 F.3d 1273, 1279 (11th Cir.1999)). Section 1003.2(a) “allows the BIA to reopen proceedings in exceptional situations; it does not require the BIA to do so.” Harchenko, 379 F.3d at 411. “Har-chenko affirmed the principle that review is not to be had if the statute is drawn so that a court would have no meaningful standard against which to judge the agency’s exercise of discretion.” Randhawa v. Gonzales, 184 F. App’x. 502, 503 (6th Cir.2006) (internal quotations and citations omitted). The BIA here explicitly declined to exercise its sua sponte authority to reopen Barry’s removal hearings. Therefore, irrespective of whether that decision was proper, Sixth Circuit law is clear that the BIA’s determination to forgo the exercise of its sua sponte authority is a decision that we are without jurisdiction to review. B. Equitable tolling Barry also argues that the BIA erred when it declined to equitably toll the 90-day filing deadline for her motion to reopen. We review the BIA’s denial of a motion to reopen under an abuse-of-discretion standard. See Haddad v. Gonzales, 437 F.3d 515, 517 (6th Cir.2006). “This standard requires us to" }, { "docid": "22179295", "title": "", "text": "v. Gonzales, 427 F.3d 1160, 1162 (8th Cir. 2005), to hold that the BIA’s refusal to reopen sua sponte is subject to judicial review. The panel then concluded that the BIA did not abuse its discretion or violate Tamenut’s constitutional rights, and thus denied the petition for review. Tamenut, 477 F.3d at 582. A dissenting judge would have dismissed the petition for lack of jurisdiction. Id. at 582-83 (Riley, J., de senting). We granted rehearing en banc to consider the jurisdictional question. II. This court has jurisdiction to review all final orders of removal. 8 U.S.C. § 1252(a)(1), (b). Although the statute does not mention orders denying motions to reopen or reconsider, we have held that the grant of jurisdiction extends to review of these decisions. See Esenwah v. Ashcroft, 378 F.3d 763, 764 (8th Cir.2004); De Jimenez v. Ashcroft, 370 F.3d 783, 788-89 (8th Cir.2004). We adopted the view of the Seventh Circuit that “Congress has not clearly expressed an intent to depart from the long fine of Supreme Court and appellate court decisions interpreting ‘order of deportation’ to include orders denying motions to reconsider and reopen.” See id. at 789 (quoting Chow v. INS, 113 F.3d 659, 664 (7th Cir.1997)). In considering the scope of § 1252(a)(1), we do not perceive a material difference between the BIA’s decision to deny a party’s motion to reopen and the BIA’s decision to refuse a party’s request that the agency reopen proceedings on its own motion. Thus, to the extent the BIA’s refusal to reopen proceedings sua sponte is not committed to agency discretion, we would have jurisdiction to review the decision pursuant to § 1252. There is a “basic presumption of judicial review” of final agency action, Lincoln v. Vigil, 508 U.S. 182, 190, 113 S.Ct. 2024, 124 L.Ed.2d 101 (1993), but this presumption may be overridden in certain circumstances. The Administrative Procedure Act declares that its provisions for judicial review do not apply when (1) a statute precludes judicial review, or (2) agency action is committed to agency discretion by law. 5 U.S.C. § 701(a). The INA does include" }, { "docid": "22663335", "title": "", "text": "sua sponte is a discretionary decision that cannot be reviewed by the Courts of Appeals. See Enriquez-Alvarado v. Ashcroft, 371 F.3d 246, 249-50 (5th Cir.2004) (holding that because the “Code of Federal Regulations suggests that no meaningful standard exists against which to judge an IJ’s decision to exercise sua sponte authority to reopen deportation proceedings,” such decisions are committed to the discretion of the BIA and therefore unreviewable); Belay-Gebru v. INS, 327 F.3d 998, 1000-01 (10th Cir.2003) (same); Calle-Vujiles v. Ashcroft, 320 F.3d 472, 474-75 (3d Cir.2003) (same); Ekimian v. INS, 303 F.3d 1153, 1157-58 (9th Cir.2002) (same); Luis v. INS, 196 F.3d 36, 40-41 (1st Cir.1999) (same); see also Pilch v. Ashcroft, 353 F.3d 585, 586 (7th Cir.2003) (“[F]ailure to reopen sua sponte is a discretionary decision that is unreviewable ....”); Anin v. Reno, 188 F.3d 1273, 1279 (11th Cir.1999) (holding that 8 C.F.R. § 1003.2(a) gives the BIA “non-reviewable discretion” to' decline to reopen deportation proceedings). We hereby join our sister circuits in holding that a decision of the BIA whether to reopen a case sua sponte under 8 C.F.R. § 1003.2(a) is entirely discretionary and therefore beyond our review — in other words, we lack jurisdiction to review the BIA’s decision not to reopen Ali’s immigration proceedings sua sponte. H? Hi H: * * * We have considered all of petitioners’ arguments and found each of them to be without merit. Accordingly, we Deny those parts of Ali’s petition for review that pertain to the BIA’s denial of Ali’s motion to reopen and Dismiss for lack of jurisdiction Ali’s challenge to the BIA’s discretionary decision not to exercise its authority to reopen proceedings sua sponte. . 8 C.F.R. § 1003.2(a) provides, in relevant part, that The [BIA] may at any time reopen or reconsider- on its own motion any case in which it has rendered a decision. A request to reopen or reconsider any case in which a decision has been made by the Board, which request is made by the Service, or by any party affected by the decision, must be in the form of a" }, { "docid": "20771193", "title": "", "text": "also United States v. Bongiorno, 106 F.3d 1027, 1034 (1st Cir.1997) (“We have steadfastly deemed waived issues raised on appeal in a perfunctory manner, not accompanied by developed argumentation.”). The petitioner’s only recourse before the BIA, then, was a plea for the exercise of the agency’s sua sponte power to allow reopening. That plea did not succeed before the BIA, see supra, and it leads the petitioner down a blind alley in this venue. The BIA’s discretion in this regard is unfettered; there are no standards in place by which a court can review the use or non-use of that sua sponte discretion. Cognizant of that reality, we have held, squarely and recently, that we lack jurisdiction over BIA decisions declining to reopen removal proceedings sua sponte. See Zhang v. Gonzales, 469 F.3d 51, 53 (1st Cir.2006) (recognizing that the BIA has plenary discretion to determine whether to reopen sua sponte and, therefore, that a decision declining to exercise such discretion is “[b]y its very nature, ... unreviewable”); Prado v. Reno, 198 F.3d 286, 292 (1st Cir.1999) (explaining that “the decision of the BIA whether to invoke its sua sponte authority is committed to its unfettered discretion”) (quoting Luis v. INS, 196 F.3d 36, 40 (1st Cir.1999)). This view accords with the thinking of our sister circuits, ten of which have concluded that there are no meaningful standards against which to judge the BIA’s exercise or non-exercise of its discretion to reopen proceedings sua sponte. See, e.g., Mosere v. Mukasey, 552 F.3d 397, 400-01 (4th Cir.2009); Lenis v. U.S. Att’y Gen., 525 F.3d 1291, 1293-94 (11th Cir.2008); Tamenut v. Mukasey, 521 F.3d 1000, 1005 (8th Cir.2008) (en banc) (per curiam); Ali v. Gonzales, 448 F.3d 515, 518 (2d Cir.2006) (per curiam): Harchenko v. INS, 379 F.3d 405, 410-11 (6th Cir.2004); Enriquez-Alvarado v. Ashcroft, 371 F.3d 246, 248-50 (5th Cir.2004); Pilch v. Ashcroft, 353 F.3d 585, 586 (7th Cir.2003); Belay-Gebru v. INS, 327 F.3d 998, 1000-01 (10th Cir.2003); Calle-Vujiles v. Ashcroft, 320 F.3d 472, 474-75 (3d Cir.2003); Ekimian v. INS, 303 F.3d 1153, 1159 (9th Cir.2002). Thus, each of these courts" }, { "docid": "22792287", "title": "", "text": "not previously available at his original hearing, he had been denied the right to have his asylum claim fairly considered. Id. at 215. Following a response by the INS, the BIA denied the motion to reopen on two grounds: first, the motion was untimely filed because it was not filed within ninety days after the BIA decision on removal entered June 19, 2002, as required by 8 U.S.C. § 1229a(c)(6)(C)(i); 8 C.F.R. § 1003.2(c)(2)(2003), and second, the motion failed to comply with the requirements set forth in Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988), when ineffective assistance of counsel is alleged. Admin. R. at 2. In his petition for review, petitioner presents three issues. First, he claims that under the circumstances of his case, the BIA was obligated to reopen the case sua sponte under 8 C.F.R. § 1003.2(a), rather than rely on the timeliness requirement of § 1003.2(c). Pet’r Opening Br. at 10. Next, he contends that the BIA is obligated to provide the reviewing court a “rationale and evidence on the record as a whole.” Id. at 10-11. Finally, he argues that the decision in Lozada does not always require the filing of a complaint against former counsel because the BIA or another attorney would be better suited to report the ineffectiveness of former counsel, particularly where the petitioner is in custody. Id. at 11. Appellate Jurisdiction A. Sua Sponte Reopening With respect to plaintiffs first issue, we do not have jurisdiction to consider petitioner’s claim that the BIA should have sua sponte reopened the proceedings under 8 C.F.R. § 1003.2(a) because there are no standards by which to judge the agency’s exercise of discretion. See BelayGebru v. INS, 327 F.3d 998, 1000 (10th Cir.2003). B. BIA Order on Removal We also do not have jurisdiction to review the BIA’s June 19, 2002 order affirming the IJ’s denial of petitioner’s application for asylum because he did not timely file a petition for review from that order within thirty days as required by 8 U.S.C. § 1252(b)(1). See Nahatchevska v. Ashcroft, 317 F.3d 1226, 1227" } ]

[ { "docid": "22613735", "title": "", "text": "arguments on the constitutional challenges presented by respondent Hinds and has adopted a rule allowing for an aggrieved party in a disciplinary hearing to seek interlocutory review of a constitutional challenge to the proceedings. II A Younger v. Harris, supra, and its progeny espouse a strong federal policy against federal-court interference with pending state judicial proceedings absent extraordinary circumstances. The policies underlying Younger abstention have been frequently reiterated by this Court. The notion of “comity” 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.” Id., at 44. Minimal respect for the state processes, of course, precludes any presumption that the state courts will not safeguard federal constitutional rights. The policies underlying Younger are fully applicable to noncriminal judicial proceedings when important state interests are involved. Moore v. Sims, 442 U. S. 415, 423 (1979); Huffman v. Pursue, Ltd., 420 U. S. 592, 604-605 (1975). The importance of the state interest may be demonstrated by the fact that the noncriminal proceedings bear a close relationship to proceedings criminal in nature, as in Huffman, supra. Proceedings necessary for the vindication of important state policies or for the functioning of the state judicial system also evidence the state’s substantial interest in the litigation. Trainor v. Hernandez, 431 U. S. 434 (1977); Juidice v. Vail, 430 U. S. 327 (1977). Where vital state interests are involved, a federal court should abstain “unless state law clearly bars the interposition of the constitutional claims.” Moore, 442 U. S., at 426. “[T]he . . . pertinent inquiry is whether the state proceedings afford an adequate opportunity to raise the constitutional claims . . . .” Id., at 430. See also Gibson v. Berryhill, 411 U. S. 564 (1973). The question in this case is threefold: first, do state bar disciplinary hearings within the constitutionally prescribed jurisdiction of the State" } ]

[ { "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": "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": "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": "18086943", "title": "", "text": "Trainor v. Hernandez, 431 U.S. 434, 97 S.Ct. 1911, 52 L.Ed.2d 486 (1977) (pending suit in which the Illinois Department of Public Aid sought the return of welfare payments allegedly wrongfully received); Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975) (pending state nuisance proceeding instituted by sheriff and prosecuting attorney). . See, e.g., Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 13-14, 107 S.Ct. 1519, 95 L.Ed.2d 1 (1987) (holding that a federal court may not enjoin execution of a state court judgment pending appeal of that judgment to a state appellate court); Juidice v. Vail, 430 U.S. 327, 335, 97 S.Ct. 1211, 51 L.Ed.2d 376 (1977) (holding that a federal court may not enjoin the state's contempt process because \"[t]he contempt power lies at the core of the administration of a State's judicial system”). .This case is distinct from Goldie’s Bookstore, Inc. v. Superior Court of State of California, 739 F.2d 466, 467-68 (9th Cir.1984), where a sublessee brought an action against a California Superior Court, a county sheriff, a county marshal, and others, seeking a preliminary injunction against enforcement of a state unlawful detainer judgment. There we held that California did not have an important interest, in enforcing a state detainer judgment for purposes of Younger abstention. Id. at 470. Goldie’s Bookstore was later called into question after the Supreme Court decided in Pennzoil that a state has an important interest in executing state court judgments. See Lebbos v. Judges of the Superior Court, Santa Clara Cnty., 883 F.2d 810, 815 n. 6 (9th Cir.1989) (\"Our conclusion in [Goldie’s Boolcstore] that the proceedings did not implicate important state interests appears to have been substantially undermined by the Supreme Court’s holding in Pennzoil.’’) (internal citation omitted). We do not take a position on whether U.S. Bank’s unlawful detainer action would implicate an important state interest if U.S. Bank had already obtained a favorable judgment and Logan sought to enjoin its enforcement, as was the factual scenario in Goldie’s Bookstore. Suffice it to say that there is no state court judgment at issue here," }, { "docid": "3969489", "title": "", "text": "Supreme Court has expanded Younger protection to include civil enforcement proceedings, see, e.g., Moore v. Sims, 442 U.S. 415, 423, 99 S.Ct. 2371, 2377, 60 L.Ed.2d 994 (1979) (child custody proceeding); Trainor v. Hernandez, 431 U.S. 434, 444, 97 S.Ct. 1911, 1918, 52 L.Ed.2d 486 (1977) (action to recover public assistance payments allegedly obtained by fraud); Huffman v. Pursue, Ltd., 420 U.S. 592, 604, 95 S.Ct. 1200, 1208, 43 L.Ed.2d 482 (1975) (nuisance action to close down movie theatre that exhibited obscene films), reh’g denied, 421 U.S. 971, 95 S.Ct. 1969, 44 L.Ed.2d 463 (1975), and “civil proceedings involving certain orders that are uniquely in furtherance of the state courts’ ability to perform their judicial functions.” New Orleans Public Serv., Inc. v. Council of New Orleans, — U.S.-, 109 S.Ct. 2506, 2518, 105 L.Ed.2d 298 (1989) (citing Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 13, 107 S.Ct. 1519, 1527, 95 L.Ed.2d 1 (1987) (requirement for the posting of bond pending appeal); Juidice v. Vail, 430 U.S. 327, 336 n. 12, 97 S.Ct. 1211, 1217 n. 12, 51 L.Ed.2d 376 (1977) (civil contempt order)). Arguably, New York’s lawsuit against Pan Am constitutes a “civil enforcement proceeding” — the State seeks to punish Pan Am’s alleged violation of New York’s false advertising law through civil penalties and an injunction. However, this action differs in significant respects from other civil actions in which courts have abstained. First, New York sued Pan Am in state court after Pan Am had commenced its federal action, and Pan Am promptly removed that suit to federal court. The Supreme Court has recognized that Younger abstention still applies where a state proceeding begins subsequent to a federal action, provided there have been no “proceedings of substance on the merits” in the federal case. Hicks v. Miranda, 422 U.S. 332, 349, 95 S.Ct. 2281, 2291, 45 L.Ed.2d 223 (1975); see also Doran v. Salem Inn, Inc., 422 U.S. 922, 95 S.Ct. 2561, 45 L.Ed.2d 648 (1975) (abstaining where state summons issued some days following the federal complaint); Giulini v. Blessing, 654 F.2d 189, 193 (2d Cir.1981) (finding that" }, { "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": "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": "3359005", "title": "", "text": "is, 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.’ ” Huffman v. Pursue, Ltd., 420 U.S., at 601 [95 S.Ct. 1200], quoting Younger, 401 U.S., at 44 [91 S.Ct. 746], Juidice v. Vail, 430 U.S. 327, 334, 97 S.Ct. 1211,1217, 51 L.Ed.2d 376 (1977). Thus, the Supreme Court has applied the Younger nonintervention principle where a federal plaintiff sought an injunction against a state court civil obscenity-nuisance proceeding, Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975); where individuals subject to state court civil default judgments who were subpoenaed by their creditors sought relief from threatened state court contempt proceedings, Juidice v. Vail, supra; and where individuals whose property had been attached as the automatic first step in a civil action by the state to recover allegedly fraudulently obtained welfare benefits sought federal court intervention against the attachment process. Trainor v. Hernandez, 431 U.S. 434, 97 S.Ct. 1911, 52 L.Ed.2d 486 (1977). In these decisions the Supreme Court has indicated that a federal court asked to take action which would interfere with an ongoing “state civil enforcement action,” id. at 443,97 S.Ct. 1911, should basé any decision to abstain on several factors: (1) an analysis of the role played by the state in the ongoing proceeding and of the importance of state policies and interests sought to be vindicated therein, id. at 444, 97 S.Ct. 1911; Juidice v. Vail, supra, 430 U.S. at 335-36, 97 S.Ct. 1211; Huffman v. Pursue, Ltd., supra, 420 U.S. at 604, 95 S.Ct. 1200; (2) whether the plaintiffs “had an opportunity to present their federal claims in the state proceedings,” Juidice v. Vail, supra, 430 U.S. at 337, 97 S.Ct. at 1218 (emphasis deleted); and (3) whether interference will result in duplicative legal proceedings and will reflect negatively on the state court’s" }, { "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": "15912604", "title": "", "text": "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 the States. Id. In recognition of the principles of equity, comity, and federalism the Court ruled that federal courts should ordinarily refrain from enjoining ongoing state criminal prosecutions. Restraining such prosecutions would entail an unseemly failure to give effect to the principle that state courts, along with federal courts, have a solemn responsibility to guard, enforce, and protect every right granted by the Constitution. Steffel v. Thompson, 415 U.S. 452, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974). The Court has also recognized that these 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" }, { "docid": "18086942", "title": "", "text": "omitted). The district court’s dismissal of Logan’s complaint is AFFIRMED. . We treat facts alleged in Logan's complaint as true for purposes of evaluating the dismissal for lack of subject matter jurisdiction. Whisnant v. United States, 400 F.3d 1177, 1179 (9th Cir.2005). Consequently, we do not address the factual dispute arising from U.S. Bank's contention that Logan was married to the former owner at the time of the foreclosure and thus not a \"bona fide tenant” protected by the PTFA. . See, e.g., Ohio Civil Rights Comm'n v. Dayton Christian Schs., Inc., 477 U.S. 619, 106 S.Ct. 2718, 91 L.Ed.2d 512 (1.986) (pending administrative proceeding in which the state civil rights commission was enforcing its employment anti-discrimination laws); Middlesex, 457 U.S. 423, 102 S.Ct. 2515 (pending disciplinary proceeding in which the local county ethics committee was maintaining the professional conduct of the attorneys it licenses); Moore v. Sims, 442 U.S. 415, 99 S.Ct. 2371, 60 L.Ed.2d 994 (1979) (pending state proceeding in which the Texas Department of Human Resources was enforcing its child abuse laws); Trainor v. Hernandez, 431 U.S. 434, 97 S.Ct. 1911, 52 L.Ed.2d 486 (1977) (pending suit in which the Illinois Department of Public Aid sought the return of welfare payments allegedly wrongfully received); Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975) (pending state nuisance proceeding instituted by sheriff and prosecuting attorney). . See, e.g., Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 13-14, 107 S.Ct. 1519, 95 L.Ed.2d 1 (1987) (holding that a federal court may not enjoin execution of a state court judgment pending appeal of that judgment to a state appellate court); Juidice v. Vail, 430 U.S. 327, 335, 97 S.Ct. 1211, 51 L.Ed.2d 376 (1977) (holding that a federal court may not enjoin the state's contempt process because \"[t]he contempt power lies at the core of the administration of a State's judicial system”). .This case is distinct from Goldie’s Bookstore, Inc. v. Superior Court of State of California, 739 F.2d 466, 467-68 (9th Cir.1984), where a sublessee brought an action against a California Superior Court, a county" }, { "docid": "22927349", "title": "", "text": "The Court explained the principle of comity as “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.” Id. at 44, 91 S.Ct. at 750. While certain considerations of comity and federalism pertain to civil proceedings as well as to criminal prosecutions the Supreme Court thus far has declined to extend the Younger doctrine to all civil litigation. See Huffman v. Pursue, Ltd., 420 U.S. 592, 607, 95 S.Ct. 1200, 1209, 48 L.Ed.2d 482 (1975); Juidice v. Vail, 430 U.S. 327, 336 n.13, 97 S.Ct. 1211, 1218, 51 L.Ed.2d 376 (1977); Trainor v. Hernandez, 431 U.S. 434, 44-45 n.8, 97 S.Ct. 1911, 1919, 52 L.Ed.2d 486 (1977). In each instance where the Court has applied Younger principles to civil litigation, a state or a state official was engaged in advancing important state interests in the state courts, and intervention by the federal courts would have seriously impaired the pursuit of those interests. In Huffman, the state brought a civil nuisance action against the owners of a movie theater that showed obscene films. The state could have chosen instead to bring a criminal proceeding against the owners. The Court concluded that paramount state interests akin to those implicated in a criminal prosecution were involved in this civil action “in aid of and closely related to criminal statutes which prohibit the dissemination of obscene materials,” 420 U.S. at 604, 95 S.Ct. at 1208, and, accordingly, held that federal abstention was appropriate. Similarly, in Juidice, the state enforced a contempt citation for failure to observe a court order to appear in court. In holding Younger principles applicable, the Court emphasized the state’s strong interest in enforcing rules for the orderly administration of its judicial system. “A State’s interest in the contempt process, through which it vindicates the regular operation of its judicial system, so long as that" }, { "docid": "22903896", "title": "", "text": "already initiated proceedings in the state courts in which the plaintiff is able to raise federal claims. Most recently, in Moore v. Sims, 442 U.S. 415, 99 S.Ct. 2371, 60 L.Ed.2d 994 (1979), the Supreme Court has stated that the principles supporting Younger may justify abstention in civil as well as criminal areas. The Court noted that Younger principles of comity express: ... a strong policy against federal intervention in state judicial processes in the absence of great and immediate irreparable injury to the federal plaintiff. Samu-els v. Mackell, 401 U.S. 66, 69, 91 S.Ct. 764, 766, 27 L.Ed.2d 688 (1971). That policy was first articulated with reference to state criminal proceedings, but as we recognized in Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975), the basic concern-that threat to our federal system posed by displacement of the state courts by those of the National Government-is also fully applicable to civil proceedings in which important state interests are involved. 442 U.S. at 423, 99 S.Ct. at 2377. Thus, in Moore v. Sims, the Court noted that Younger abstention would be extended not only to state proceedings “in aid of and closely related to criminal statutes,” 442 U.S. at 423, 99 S.Ct. at 2377, quoting Huffman v. Pursue, Ltd., 420 U.S. 592, 604, 95 S.Ct. 1200, 1208, 43 L.Ed.2d 482 (1975), but also to other proceedings in which the state seeks to vindicate its “vital concerns” such as enforcement of contempt proceedings as in Juidice v. Vail, 430 U.S. 327, 97 S.Ct. 1211, 51 L.Ed.2d 376 (1977) and the fiscal integrity of public assistance programs as in Trainor v. Hernandez, 431 U.S. 434, 97 S.Ct. 1911, 52 L.Ed.2d 486 (1977). While the Supreme Court has not yet applied Younger to state insurance company liquidation proceedings such as are at issue here and while these proceedings are perhaps more remote from the criminal process than other proceedings in which Younger has been applied, Younger’s concerns with comity and with a state’s enforcement of important state interests in its own courts seem equally applicable. Here the state" }, { "docid": "18764668", "title": "", "text": "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 486 (1977) (suit and accompanying writ of attachment brought by state to vindicate important state policies such as safeguarding the fiscal integrity of public assistance programs); Huffman, 420 U.S. at 609, 95 S.Ct. at 1210 (proceeding pursuant to state nuisance statute “in aid of and closely related to criminal statutes”). Thus, it is only civil proceedings “in which important state interests are involved” that warrant abstention under the Younger doctrine. Moore, 442 U.S. at 423 & n. 8, 99 S.Ct. at 2378 & n. 8 (“we do not remotely suggest that every pending proceeding between a State and a federal plaintiff justifies abstention unless one of the exceptions to Younger applies”); accord, Cate v. Oldham, 707 F.2d 1176, 1183 (11th Cir.1983) (“Application of the Younger doctrine to ongoing state civil proceedings has been limited to those civil actions in aid of criminal jurisdiction or involving enforcement-type proceedings in which vital interests of the state qua state are involved.”). Therefore, the initial inquiry in determining whether a federal court should abstain when asked to enjoin an" }, { "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": "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": "21046206", "title": "", "text": "to determine whether abstention was appropriate when a corporation challenged the legality of certain post-judgment procedures in Texas. Pennzoil Co. v. Texaco Inc., 481 U.S. 1, 107 S.Ct. 1519, 95 L.Ed.2d 1 (1987). In Pennzoil, the Court recognized “the importance to the States of enforcing the orders and judgments of their courts.” Id. at 13, 107 S.Ct. 1519. Juidice and Pennzoil underline a state’s interest in the proper functioning of its court system, especially its procedures for enforcing court orders. This case implicates the operation of the New Jersey judicial system. Contempt hearings are an integral part of child support enforcement. As the Supreme Court has highlighted a state’s interest in judicial administration generally, and in the coercive effect of contempt hearings specifically, we believe that New Jersey’s interest here is of “sufficiently great import” to satisfy the second prong of the Younger test. Juidice, 430 U.S. at 335, 97 S.Ct. 1211. Other Supreme Court cases provide an alternative rationale to support our conclusion. Under the Younger doctrine, when a state seeks to vindicate its own policies as a party to a pending state proceeding, an important state interest often is implicated. Although Younger itself involved a criminal prosecution, the doctrine has been applied to restrict federal interference with state civil proceedings. See, e.g., Moore v. Sims, 442 U.S. 415, 99 S.Ct. 2371, 60 L.Ed.2d 994 (1979) (state instituted a child abuse proceeding); Trainor v. Hernandez, 431 U.S. 434, 97 S.Ct. 1911, 52 L.Ed.2d 486 (1977) (state sought to use prejudgment attachment procedures to collect money allegedly owed to it); Huffman, 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.2d 482 (state sought to close down a movie theater through a nuisance suit). Here, New Jersey may act as a party in state court proceedings to ensure that children under its jurisdiction receive proper support, thereby vindicating its own state policies. C. Adequate Opportunity To Raise Federal Claims Addressing the third predicate, “the burden on this point rests on the federal plaintiff to show that state procedural law barred presentation of [its] claims.” Pennzoil, 481 U.S. at 14, 107 S.Ct. 1519" }, { "docid": "18722737", "title": "", "text": "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 the States.” Id. The Court has recognized that the policy concerns addressed in Younger are equally applicable to certain pending state proceedings other than criminal proceedings. In Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975), and in a number of subsequent cases, see Pennzoil Co. v. Texaco, Inc., — U.S.-, 107 S.Ct. 1519, 95 L.Ed.2d 1 (1987); Moore v. Sims, 442 U.S. 415, 99 S.Ct. 2371, 60 L.Ed.2d 994 (1979); Trainor v. Hernandez, 431 U.S. 434, 97 S.Ct. 1911, 52 L.Ed.2d 486 (1977); Juidice v. Vail, 430 U.S. 327, 97 S.Ct. 1211, 51 L.Ed.2d 376 (1977), the Court concluded that Younger abstention is applicable to pending civil proceedings. The Court has also found Younger applicable to pending state administrative proceedings. See Ohio Civil Rights Comm’n v. Dayton Christian Schools, Inc., — U.S.-, 106 S.Ct. 2718, 91 L.Ed.2d 512 (1986); Middle-sex County Ethics Comm. v. Garden State Bar Ass’n, 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). The Court’s recent decision in Dayton Christian Schools, 106 S.Ct. at 2718, provides useful guidance in this case. There the Court held that the federal courts should have abstained where a religious school brought a civil rights action against a state civil rights commission to enjoin the commission from proceeding against the school on a sex discrimination complaint brought by one of the school’s teachers. The Court relied on two factors to determine whether abstention was required: the importance of the state interest, and the existence of an adequate opportunity to raise constitutional claims. Id. 106 S.Ct. at 2723. We believe that the Younger doctrine is fully applicable to the pending state administrative proceeding in this case. Both of the factors discussed in Dayton Christian Schools counsel in favor of abstention here. First, the state’s" }, { "docid": "3969488", "title": "", "text": "Even though 'there is jurisdiction over Pan Am’s claims, New York contends that the court should abstain from exercising that jurisdiction under the principles of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), and its progeny. In the Second Circuit, courts applying Younger abstention “ ‘must determine (1) whether there is an ongoing state proceeding; (2) whether an important state interest is involved; and (3) whether the federal plaintiff has an adequate opportunity for judicial review of his constitutional claims during or after the proceeding.’ ” University Club v. City of New York, 842 F.2d 37, 40 (2d Cir.1988) (quoting Christ the King Regional High School v. Culvert, 815 F.2d 219, 224 (2d Cir.), cert. denied, 484 U.S. 830, 108 S.Ct. 102, 98 L.Ed.2d 63 (1987)). Because applying these factors to this case offers no clear guidance to whether abstention is appropriate, this court declines to abstain. First, the state court proceeding against Pan Am is civil, not criminal. Traditionally, Younger abstention has applied to ongoing criminal proceedings, although the Supreme Court has expanded Younger protection to include civil enforcement proceedings, see, e.g., Moore v. Sims, 442 U.S. 415, 423, 99 S.Ct. 2371, 2377, 60 L.Ed.2d 994 (1979) (child custody proceeding); Trainor v. Hernandez, 431 U.S. 434, 444, 97 S.Ct. 1911, 1918, 52 L.Ed.2d 486 (1977) (action to recover public assistance payments allegedly obtained by fraud); Huffman v. Pursue, Ltd., 420 U.S. 592, 604, 95 S.Ct. 1200, 1208, 43 L.Ed.2d 482 (1975) (nuisance action to close down movie theatre that exhibited obscene films), reh’g denied, 421 U.S. 971, 95 S.Ct. 1969, 44 L.Ed.2d 463 (1975), and “civil proceedings involving certain orders that are uniquely in furtherance of the state courts’ ability to perform their judicial functions.” New Orleans Public Serv., Inc. v. Council of New Orleans, — U.S.-, 109 S.Ct. 2506, 2518, 105 L.Ed.2d 298 (1989) (citing Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 13, 107 S.Ct. 1519, 1527, 95 L.Ed.2d 1 (1987) (requirement for the posting of bond pending appeal); Juidice v. Vail, 430 U.S. 327, 336 n. 12, 97 S.Ct. 1211, 1217" }, { "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": "5575266", "title": "", "text": "did not identify any particular guns sold by Brazas as the cause of injury to any particular plaintiffs. By the time the district court entered judgment, one of the cases had gone to trial, and Brazas had eventually been dis missed. See Hamilton v. Accu-Tek, No. C.V. 95-0049 (E.D.N.Y.1995). Brazas has incurred in excess of $75,000 in defense costs in connection with the litigation. At least some of the claims alleged in the lawsuits occurred during the effective period of the American Empire policies. However, upon notice, American Empire denied coverage and refused to defend Brazas. As a result, Brazas brought this declaratory judgment action in the United States District Court for the District of Massachusetts under that court’s diversity jurisdiction pursuant to 28 U.S.C. § 1332. Brazas also brought a claim under the Massachusetts consumer protection statute, Mass. Gen. Laws ch. 93A, § 11. The parties filed cross motions for summary judgment. Brazas appeals from the district court’s grant of summary judgment for American Empire and the denial of Brazas’s motion for partial summary judgment on its duty to defend claim. DISCUSSION I. The Policy Coverage Claim We review de novo the district court’s interpretation of the insurance contracts. See Fed.R.Civ.P. 56; Merchants Ins. Co. of New Hampshire, Inc. v. United States Fidelity & Guar. Co., 143 F.3d 5, 6-8 (1st Cir.1998); GRE Ins. Group v. Metropolitan Boston Hous. Partnership, Inc., 61 F.3d 79, 81 (1st Cir.1995). Under Massachusetts law, we construe an insurance policy under the general rules of contract interpretation. See Merchants, 143 F.3d at 8 (citing Hakim v. Massachusetts Insurers’ Insolvency Fund, 424 Mass. 275, 675 N.E.2d 1161, 1164 (1997)). We begin with the actual language of the policies, given its plain and ordinary meaning. See GRE Ins. Group, 61 F.3d at 81 (citing cases). In so doing, we “consider ‘what an objectively reasonable insured, reading the relevant policy language, would expect to be covered.’ ” Id. (quoting Trustees of Tufts Univ. v. Commercial Union Ins. Co., 415 Mass. 844, 616 N.E.2d 68, 72 (1993)). As a liability insurer in Massachusetts, American Empire has a duty" } ]

[ { "docid": "17338630", "title": "", "text": "England, Inc. v. Travelers Indemnity Company, 91 F.3d at 282 (“unambiguous terms are given their plain meaning”); Camp Dresser & McKee, Inc. v. Home Insurance Company, 568 N.E.2d at 635 (insurance contract construed according to “fair and reasonable meaning of its words”). With particular reference to the terms employed in the various policies in this case, it is worth noting that terms such as “‘discharge,’ ‘dispersal,’ ‘release,’ and ‘escape’ ” appearing in pollution exclusions generally reference damage “caused by improper disposal or containment of hazardous waste.” Western Alliance Insurance Company v. Gill, 686 N.E.2d at 999. Although “Massachusetts has not yet ruled on the proper approach to take in determining whether there has been actual property damage during the policy period,” Millipore Corporation v. Travelers Indemnity Company, 115 F.3d 21, 32 (1st Cir.1997), the SJC recognizes that “contamination of soil and groundwater by the release of hazardous material involves property damage.” Hazen Paper Company v. United States Fidelity and Guaranty Company, 407 Mass. 689, 555 N.E.2d 576, 582 (1990). Finally, in a case involving language similar to that used in the CLP policies and an underlying suit involving allegations similar to those in the state court action, the First Circuit determined that the insurer had no duty to defend or indemnify inasmuch as the claims fell within the absolute pollution exclusion. Dryden Oil Company of New England, Inc. v. Travelers Indemnity Company, 91 F.3d at 282-284 & 290 (affirming lower court’s summary judgment in favor of insured on this issue); see also Rubin v. St. Paul Fire and Marine Insurance Company, 1995 WL 809524 at * 4-5 (Mass.Super. April 19, 1995). An ambiguity arises “in an insurance contract when the language contained therein is susceptible of more than one meaning.” Lumbermens Mutual Casualty Company v. Offices Unlimited, Inc., 419 Mass. 462, 645 N.E.2d 1165, 1168 (1995). More specifically, language is ambiguous only if “susceptible of more than one meaning and reasonably intelligent persons would differ as to which meaning is the proper one.” Citation Insurance Company v. Gomez, 688 N.E.2d at 953. An ambiguity does not arise “simply because a" }, { "docid": "7799467", "title": "", "text": "at odds about whether as a matter of law the district court erred in holding that D’Agostino’s liability arose out of Great Eastern’s work performed on its behalf, thus entitling D’Agosti-no to coverage under the Endorsement. Choice of Law Before we turn to the merits of the parties’ respective positions, we must first identify the applicable substantive law, a sub ject on which both policies are silent. For eases sounding in diversity, the Erie v. Tompkins mandate to look to state law for the substantive rules of decision includes the application of the forum’s choice of law doctrines (Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 1021-22, 85 L.Ed. 1477 (1941); New Ponce Shopping Ctr., S.E. v. Integrand Assurance Co., 86 F.3d 265, 267 (1st Cir.1996)). But here both Merchants and USF&G have eschewed any such inquiry, instead citing directly to Massachusetts’ internal law. In that situation Bird v. Centennial Ins. Co., 11 F.3d 228, 231 n. 5 (1st Cir.1993) teaches: Because the parties agree that Massachusetts law governs this dispute, and because there is at least a “reasonable relation” between the dispute and the forum whose law has been selected by the parties, we will forego an independent analysis of the choice-of-law issue and apply Massachusetts law. We do the same here. General Principles Under Massachusetts law the interpretation of an insurance policy and the determination of the policy-dictated rights and obligations are questions of law, appropriate grist for the summary judgment mill (see Assetta v. Safety Ins. Co., 43 Mass.App.Ct. 317, 682 N.E.2d 931, 932 (1997)). Hence we review de novo the district court’s determination that the Endorsement covers D’Agostino for its own negligence. Hakim v. Massachusetts Insurers’ Insolvency Fund, 424 Mass. 275, 675 N.E.2d 1161, 1164 (1997) confirms the applicability of general rules of contract construction in construing an insurance policy: Where policy provisions are ambiguous — that is, “tw]here the language permits more than one rational interpretation” (Boston Symphony Orchestra, Inc. v. Commercial Union Ins. Co., 406 Mass.7, 545 N.E.2d 1156, 1159 (1989)(internal quotation omitted)) — the reading most favorable" }, { "docid": "23238535", "title": "", "text": "CASUALTY 204. This court has recognized the appropriateness of summary judgment in resolving disputes involving the interpretation' of unambiguous contracts. Champale, Inc. v. Joseph S. Pickett & Sons, Inc., 599 F.2d 857, 859 (8th Cir. 1979); Parish v. Howard, 459 F.2d 616, 618 (8th Cir. 1972). In reviewing a decision of a district court to grant a motion for summary judgment, we apply the same standard as the trial court. Butler v. MFA Life Ins. Co., 591 F.2d 448, 451 (8th Cir. 1979). Summary judgment should be granted 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). Moreover, the court must view the facts in the light most favorable to the party opposing the motion, giving that party the benefit of all reasonable inferences to be drawn from the facts. Butler v. MFA Life Ins. Co., supra, 591 F.2d at 451. The general principles of Missouri law to be applied in construing insurance policies are well established. Plain and unambiguous language must be given its plain meaning. The contract should be construed as a whole; but, insofar as open to different constructions, that most favorable to the insured must be adopted. Kyte v. Fireman’s Fund Am. Ins. Companies, 549 S.W.2d 366, 367-68 (Mo.App.1977). Plain language in an insurance policy cannot be used to create an ambiguity where none exists; but if the policy is reasonably susceptible of more than one meaning, the ambiguity will be resolved in favor of the insured. Although parties to an insurance contract may, by plain language, limit the liability of the insurer to the insured, ambiguities in restrictive or exclusionary clauses are to be construed in favor of the insured. Kay v. Metropolitan Life Ins. Co., 548 S.W.2d 629, 631 (Mo.App.1977) (citations omitted). Finally, we note that [t]he policy of insurance and an endorsement must be read together where there is a dispute as to its meaning, and they should be construed together unless they are in such conflict they cannot be reconciled." }, { "docid": "21575560", "title": "", "text": "Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986), and view the facts and all reasonable inferences drawn from it in the light most favorable to the nonmoving party. Brookins v. Kolb, 990 F.2d 308, 312 (7th Cir.1993); Talbot v. Robert Matthews Distrib. Co., 961 F.2d 654, 663 (7th Cir.1992). We will affirm summary judgment if the record presents “no genuine issue of material fact [such] that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56. Plaintiffs first argue that the district court disregarded the intent of the parties and the ambiguities inherent in the Receipt when it held that temporary insurance never took effect. The second line of argument focuses on the scope of Morreale’s authority when working as an agent of Metropolitan and his ability to waive provisions contained in the Receipt. A. INTERPRETATION OF THE RECEIPT AND TEMPORARY INSURANCE AGREEMENT Plaintiffs maintain that the district court should have liberally construed the Receipt’s language to find that temporary insurance began on September 13,1991. Such an interpretation, plaintiffs contend, is consistent with the intentions of the parties. For the substantive legal rules applicable to this diversity action, we look to Illinois law. Erie v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 822, 82 L.Ed. 1188 (1938). Illinois law provides that an insurance policy should be applied as written if the words used in the policy can reasonably be given their plain, ordinary, and popular meaning. United States Fidelity & Guaranty Co. v. Wilkin Insulation Co., 144 I11.2d 64, 74, 161 Ill.Dec. 280, 284, 578 N.E.2d 926, 930 (1991); Garde v. American Family Life Ins. Co., 147 Ill.App.3d 1034, 1037, 101 Ill.Dec. 110, 112, 498 N.E.2d 292, 294 (4th Dist.1986). When interpreting an insurance policy, a court is to construe any ambiguous language strictly against the insurer and in favor of coverage. Insurance Corp. of Ireland, Ltd. v. Board of Trustees of S. Ill. Univ., 937 F.2d 331, 336 (7th Cir.1991); Western Casualty & Surety Co. v. Brochu, 105 Ill.2d 486, 495, 86 Ill.Dec. 493, 497, 475 N.E.2d" }, { "docid": "6878677", "title": "", "text": "words in an insurance policy exclusion must be interpreted in their usual and ordinary sense. Bagley v. Monticello Ins. Co., 430 Mass. 454, 457, 720 N.E.2d 813 (1999). A term is ambiguous only if it is susceptible of more than one meaning and reasonably intelligent persons differ as to which meaning is the proper one. Lumbermens Mut. Cas. Co. v. Offices Unlimited, Inc., 419 Mass. 462, 466, 645 N.E.2d 1165 (1995). An ambiguity is not created simply because a controversy exists between the parties. Ibid. ‘Nor does the mere existence of multiple dictionary definitions of a word, without more, suffice to create an ambiguity, for most words have multiple definitions.’ Citation Ins. Co. v. Gomez, 426 Mass. 379, 381 688 N.E.2d 951 (1988). County of Barnstable v. Am. Fin. Corp., 51 Mass.App.Ct. 213, 744 N.E.2d 1107, 1109 (2001). The district court also recognized “that when policy language is ambiguous, a court should adopt an interpretation of the ambiguous term favorable to the insured and in that analysis may consider what an objectively reasonable insured, reading the relevant policy language, would expect to be covered,” Center for Blood Research, Inc. v. Coregis Ins. Co., No. 01-10708-GAO, slip op. at 8 (D.Mass. Nov. 14, 2001) (quoting Hazen Paper Co. v. United States Fid. & Guar. Co., 407 Mass. 689, 555 N.E.2d 576, 583 (1990) (omitting internal quotation marks)). We approach this case applying the same principles. Initially, of course, we consider the nature of the claim for which the Center is seeking coverage. There was no suggestion in the subpoena that the government was seeking anything other than information from the Center. Moreover, 18 U.S.C. § 3486 provides that “the Attorney General or the Attorney General’s desig-nee may issue in writing and cause to be served a subpoena” in “any investigation relating to any act or activity involving a Federal health care offense” for “the production of any records ... which may be relevant to an authorized law enforcement inquiry, that a person or legal entity may possess or have care, custody or control.” Thus, there is no suggestion in the statute" }, { "docid": "11623593", "title": "", "text": "Cir.1988). Summary judgment is appropriate where no genuine issues of material fact exist and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56. Because neither party has raised the issue of choice of law in this diversity action, the Court will apply the substantive law of Illinois, the forum state. Travelers Ins. Cos. v. Penda Corp., 974 F.2d 823, 827 (7th Cir.1992) (citing Wood v. Mid-Valley, Inc., 942 F.2d 425, 426-27 (7th Cir. 1991)). The construction of an insurance policy and its provisions is a question of law. Outboard Marine Corp. v. Liberty Mut. Ins. Co., 154 IU.2d 90, 180 Ill.Dec. 691, 698-99, 607 N.E.2d 1204, 1212 (1992). In construing an insurance policy, the Court’s task is to ascertain the intent of the parties to the contract, “with due regard to the risk undertaken, the subject matter that is insured and the purposes of the entire contract.” Id. (citations omitted). If the policy language is unambiguous, there is no issue of material fact, and the Court must determine the contract’s meaning as a matter of law affording the contract language its plain, ordinary, and popular meaning. Id. But if the Court determines that the contract is ambiguous, the contract’s meaning is a question of fact. Dash Messenger Serv., Inc. v. Hartford Ins. Co. of Ill., 221 Ill.App.3d 1007, 164 Ill.Dec. 313, 316, 582 N.E.2d 1257, 1260 (1st Dist. 1991), appeal denied, 143 Ill.2d 637, 167 Ill. Dec. 398, 587 N.E.2d 1013 (1992). A policy provision is ambiguous only if it is subject to more than one reasonable interpretation. Lapham-Hickey Steel Corp. v. Protection Mut. Ins. Co., 166 Ill.2d 520, 211 Ill.Dec. 459, 463, 655 N.E.2d 842, 846 (1995) (citing United States Fidelity & Guar. Co. v. Wilkin Insulation Co., 144 Ill.2d 64, 161 Ill.Dee. 280, 578 N.E.2d 926 (1991)). A policy term is not ambiguous merely because the term is not defined within the policy or because the parties can suggest creative possibilities for its meaning. Id. (citations omitted). A. Extra Expense Coverage Section 10(A) of the policies, entitled “Extra Expense” provides, in part: A." }, { "docid": "3939328", "title": "", "text": "namely $1,345,461, as well as costs and interest. Both TXI and Factory Mutual filed motions for summary judgment. The district court granted TXI’s motion for summary judgment, and awarded TXI damages in the amount of $1,345,461 plus costs and interest. Factory Mutual filed a motion to reconsider that the district court denied. Factory Mutual timely appealed. II. STANDARD OF REVIEW We review the district court’s grant of summary judgment de novo. Shell Offshore Inc. v. Babbitt, 238 F.3d 622, 627 (5th Cir.2001). “Summary judgment is appropriate if the record shows ‘that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.’ ” Id. (quoting Fed.R.Civ.P. 56(c)). In diversity cases, such as this one, federal courts look to the substantive law of the forum state. See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 82 L.Ed. 1188 (1938); see also Farrell Constr. Co. v. Jefferson Parish, 896 F.2d 136, 140 (5th Cir.1990). Texas contract interpretation law indicates that “[i]f policy language is worded so that it can be given a definite or certain legal meaning, it is not ambiguous and we construe it as a matter of law.” Am. Mfrs. Mut. Ins. Co. v. Schaefer, 124 S.W.3d 154, 157 (Tex.2003). “Whether a contract is ambiguous is itself a question of law.” Id. The fact that the parties offer different contract interpretations does not create an ambiguity. See id. “An ambiguity exists only if the contract language is susceptible to two or more reasonable interpretations.” “When construing the policy’s language, we must give effect to all contractual provisions so that none will be rendered meaningless.” Id. (internal citation omitted). Finally, when an insurance policy can be given multiple reasonable interpretations, “[i]t is a settled rule that policies of insurance will be interpreted and construed liberally in favor of the insured and strictly against the insurer.” Kelly Assocs., Ltd. v. Aetna Cas. & Sur. Co., 681 S.W.2d 593, 596 (Tex.1984) (noting that this rule is “especially so when dealing with exceptions and words of limitation”); see" }, { "docid": "5797981", "title": "", "text": "TORRUELLA, Circuit Judge. On appeal is the grant of summary judgment by the United States District Court for the District of Massachusetts against J.I. Corporation a/k/a New England Rare Coin Galleries, Inc. The district court based its decision on appellant’s failure to comply with the unambiguous discovery and notice provisions of its insurance policy. Although we affirm on the basis of the district court’s decision, we find it appropriate to briefly discuss our reasons. This case arose out of a dispute concerning the interpretation of a fidelity insurance policy which insured appellant against losses sustained as a result of employee dishonesty. The facts are reproduced in more detail in the district court’s memorandum and order. J.I. Corporation v. Federal Insurance Company, 730 F.Supp. 1187 (D.Mass.1990). THE APPLICABLE LEGAL STANDARDS Summary judgment is appropriate only when there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c). Our review of a summary judgment is plenary. Garside v. Osco Drug, Inc., 895 F.2d 46, 48 (1st Cir.1990). We are required to view the record in the light most favorable to the party against whom a motion for summary judgment is directed, and give that party the benefit of all the reasonable inferences to be drawn therefrom. Mack v. Great Atlantic and Pacific Tea Co. Inc., 871 F.2d 179, 181 (1st Cir.1989). “[T]he responsibility of construing the language of an insurance contract is a question of law for the trial judge.” Jet Line Services, Inc. v. American Employers Insurance Co., 404 Mass. 706, 710 n. 5, 537 N.E.2d 107 (1989) (citing Cody v. Connecticut General Life Insurance Co., 387 Mass 142, 146, 439 N.E.2d 234 (1986)). An insurance contract is construed according to the “fair and reasonable meaning of the words in which the agreement of the parties is expressed.” Cody v. Connecticut General Life Insurance Co., 387 Mass. at 146, 439 N.E.2d 234. The language of a contract is considered ambiguous only if the terms of the contract are fairly susceptible to more than one construction. See" }, { "docid": "6630015", "title": "", "text": "judgment as a matter of law.’ ” Cox v. Acme Health Servs., 55 F.3d 1304, 1308 (7th Cir.1995) (quoting Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 471 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986)). A fact is material only if it might affect the outcome of the case under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49, 106 S.Ct. 2505, 2510-11, 91 L.Ed.2d 202 (1986). To determine whether summary judgment is appropriate, we view the evidence and draw all reasonable inferences therefrom in a light favorable to the non-moving party. Id. B. Policy Coverage 1. Indiana Law In this diversity action, both parties agree that Indiana law governs our decision. Our duty then is to determine how this dispute would be resolved by the Supreme Court of Indiana. Cincinnati Ins. Co. v. Flanders Elec. Motor Serv., Inc., 40 F.3d 146, 150 (7th Cir.1994); Fidelity & Guar. Ins. Underwriters, Inc. v. Everett I. Brown Co., 25 F.3d 484, 486 (7th Cir.1994). “Under Indiana law, the interpretation of an insurance policy presents a question of law to be decided by the court.” Cincinnati Ins. Co., 40 F.3d at 151 (citing Tate v. Secura Ins., 587 N.E.2d 665, 668 (Ind.1992)). In a policy dispute, the insured has the burden of proving that the coverage applies, and the insurer, if relying on an exclusion to deny coverage, has the burden of demonstrating that the exclusion is applicable. Id. “Generally, in Indiana, contracts for insurance are subject to the same rules of interpretation as are other contracts.” Eli Lilly & Co. v. Home Ins. Co., 482 N.E.2d 467, 470 (Ind.1985). If the policy’s language is clear and unambiguous, it is to be given its plain and ordinary meaning. Id. (citing Spears v. Jackson, 398 N.E.2d 718 (Ind.Ct. App.1980)). “An unambiguous provision in an insurance policy must be enforced, even if it results in a limitation of the insurer’s liability.” Cincinnati Ins. Co., 40 F.3d at 151. If, on the other hand, there is an ambiguity in the terms of an insurance policy, the terms should be construed both" }, { "docid": "14144584", "title": "", "text": "contractual language is “ ‘plain and unambiguous.’ ” Zurich Am. Ins. Co. v. ABM Indus., Inc., 397 F.3d 158, 164 (2d Cir.2005) (quoting Brass v. Am. Film Techs., Inc., 987 F.2d 142, 148 (2d Cir.1993)); see also Hunt Ltd. v. Lifschultz Fast Freight, Inc., 889 F.2d 1274, 1277 (2d Cir.1989) (“Contract language is not ambiguous if it has ‘a definite and precise meaning, unattended by danger of misconception in the purport of the [contract] itself, and concerning which there is no reasonable basis for a difference of opinion.’ ” (alteration in original) (quoting Breed, 413 N.Y.S.2d 352, 385 N.E.2d at 1282)). These basic rules of contract interpretation are not altered by the fact that the contract at issue in this case is an insurance policy. See In re Covert, 735 N.Y.S.2d 879, 761 N.E.2d at 576; Lavanant v. General Accident Ins. Co. of Am., 79 N.Y.2d 623, 584 N.Y.S.2d 744, 595 N.E.2d 819, 822 (1992) (“The principles governing interpretation of insurance contracts are well settled. Unambiguous provisions of a policy are given their plain and ordinary meaning.”). However, ambiguity in an insurance contract is resolved against the insurer — in this case, the Defendant. See Lavanant, 584 N.Y.S.2d 744, 595 N.E.2d at 822 (“[W]here there is ambiguity as to the existence of coverage, doubt must be resolved in favor of the insured and against the insurer.” (citations omitted)); 212-11 East 77th St., LLC v. Greater N.Y. Mut. Ins. Co., 31 A.D.3d 100, 815 N.Y.S.2d 507, 511 (2006) (“Where an insurance policy reasonably lends itself to two conflicting interpretations, its terms are ambiguous and must be construed in favor of the insured and against the insurer, drafter of the policy language.” (internal citation omitted)). B. The Policy Plaintiff, invoking the adage that “a picture is worth a thousand words,” claims that Coverage A of the Policy applies because his pictures show that the swimming pool is “attached” to the dwelling (house). (PI. Mem. 8, 9-10.) In particular, Plaintiff asserts that “[t]o reach the pool, one needs only to exit the rear sliding doors onto the patio, and walk down five (5)" }, { "docid": "23018935", "title": "", "text": "the record in the light most favorable to the party opposing the motion, accepting all reasonable inferences favoring that party. Garside v. Osco Drug, Inc., 895 F.2d 46, 48 (1st Cir.1990). This standard applies even where, as here, the district court is faced with summary judgment motions from all parties. Griggs-Ryan, 904 F.2d at 115. The Irvine Claim CUI contends that the district court, in finding coverage in Coverage P, Group D of CUI’s policy, erred in holding CUI liable to reimburse CNA—and to indemnify UMass—for the award of damages in the underlying Irvine action. According to CUI, Coverage P does not cover the loss at issue. CUI claims that the amendatory endorsement adding Group D to Coverage P is ambiguous, and the ambiguity, argues CUI, must be construed in favor of the insurer. “[Wjhere the facts upon which liability is claimed or denied under an insurance policy are undisputed and the existence or amount of liability depends solely upon a construction of the policy, the question presented is one of law for the court to decide.” Atlas Pallet, Inc. v. Gallagher, 725 F.2d 131, 134 (1st Cir.1984) (citing Edmonds v. United States, 642 F.2d 877, 881 (1st Cir.1981)); accord Cody v. Connecticut Gen. Life Ins. Co., 387 Mass. 142, 439 N.E.2d 234, 237 (1982). In interpreting policy language, the court must give to it its ordinary meaning and “construe[] [it] in the sense that the insured will reasonably understand to be the scope of his coverage.” Slater v. U.S. Fidelity and Guaranty Co., 379 Mass. 801, 400 N.E.2d 1256, 1258 (1980). “Coverage P—Personal Injury Liability” in its original form provided coverage for loss in connection with personal injury liability resulting from three separate offense Groups, A, B, and C. In the pertinent part of an amendatory endorsement, the following language was added: Part 1 “Coverage P—Personal Injury” is amended to include: (1) Group D—Bodily Injury, Sickness, Disease, Disability, Shock, Mental Anguish, Mental Injury, and Humiliation. We agree with the district court that the class of injuries listed in Group D of the policy endorsement plainly covers the damage award" }, { "docid": "6959919", "title": "", "text": "then enter into an agreement regarding the payment of rent subsidies, and the tenant and landlord sign a lease. Metropolitan never becomes a party to the lease, nor acquires any possessory interest in the apartments. Before agreeing to subsidize a particular apartment, Metropolitan inspects the premises to insure that federal Housing Quality Standards are satisfied. A Metropolitan representative visits the apartment and, after visual inspection, completes a checklist confirming the number and types of rooms, whether sinks, stoves, and refrigerators are in working order, and so forth. Metropolitan’s inspectors never test for the presence of lead paint. Instead, they simply note whether the paint is chipped or peeling, and whether the landlord has a Letter of Compliance from a licensed lead paint inspector attesting to lead paint safety. If no letter is on file, the landlord is told that one is required before the subsidy will be given. Despite this rather limited role, Metropolitan has been named as a defendant or third party defendant in five Massachusetts state lawsuits alleging personal injury due to lead paint exposure of minors at Metropolitan-subsidized apartments. These suits assert a number of different legal theories against Metropolitan, many of which are based on its alleged failure to inspect adequately for lead paint before agreeing to subsidize the apartments. GRE filed this diversity action seeking a declaratory judgment that it had no obligation to defend or indemnify Metropolitan against the lawsuits, and the district court granted summary judgment in its favor. Metropolitan now appeals. II. Analysis We review de novo the district court’s interpretation of these insurance contracts, St. Paul Fire and Marine Ins. Co. v. Warwick Dyeing Corp., 26 F.3d 1195, 1199 (1st Cir.1994), guided by several familiar rules of construction. We begin with the actual language of the policies and consider “what an objectively reasonable insured, reading the relevant policy language, would expect to be covered.” Trustees of Tufts Univ. v. Commercial Union Ins. Co., 415 Mass. 844, 849, 616 N.E.2d 68, 72 (1993) (quoting Hazen Paper Co. v. United States Fidelity & Guaranty Co., 407 Mass. 689, 700, 555 N.E.2d 576, 583" }, { "docid": "6959920", "title": "", "text": "paint exposure of minors at Metropolitan-subsidized apartments. These suits assert a number of different legal theories against Metropolitan, many of which are based on its alleged failure to inspect adequately for lead paint before agreeing to subsidize the apartments. GRE filed this diversity action seeking a declaratory judgment that it had no obligation to defend or indemnify Metropolitan against the lawsuits, and the district court granted summary judgment in its favor. Metropolitan now appeals. II. Analysis We review de novo the district court’s interpretation of these insurance contracts, St. Paul Fire and Marine Ins. Co. v. Warwick Dyeing Corp., 26 F.3d 1195, 1199 (1st Cir.1994), guided by several familiar rules of construction. We begin with the actual language of the policies and consider “what an objectively reasonable insured, reading the relevant policy language, would expect to be covered.” Trustees of Tufts Univ. v. Commercial Union Ins. Co., 415 Mass. 844, 849, 616 N.E.2d 68, 72 (1993) (quoting Hazen Paper Co. v. United States Fidelity & Guaranty Co., 407 Mass. 689, 700, 555 N.E.2d 576, 583 (1990)). Absent ambiguity, we give policy language its plain and ordinary meaning. E.g., Cody v. Connecticut General Life Ins. Co., 387 Mass. 142, 146, 439 N.E.2d 234, 237 (1982). Ambiguities are resolved against the insurer, who drafted the policy, and in favor of the insured. Thus, if “there are two rational interpretations of policy language, the insured is entitled to the benefit of the one that is more favorable to it.” Hazen, 407 Mass, at 700, 555 N.E.2d at 583. The insured bears the initial burden of proving that a claim falls within the grant of coverage, which, once established, shifts the burden onto the insurer to show the applicability of any exclusion. Camp Dresser & McKee, Inc. v. Home Ins. Co., 30 Mass.App. Ct. 318, 321, 568 N.E.2d 631, 633 (1991). To determine if a liability policy obligates a carrier to defend claims made against its insured, we simply compare the underlying complaint to the policy; “if the allegations of the complaint are ‘reasonably susceptible’ of an interpretation that they state or adumbrate a" }, { "docid": "7799468", "title": "", "text": "this dispute, and because there is at least a “reasonable relation” between the dispute and the forum whose law has been selected by the parties, we will forego an independent analysis of the choice-of-law issue and apply Massachusetts law. We do the same here. General Principles Under Massachusetts law the interpretation of an insurance policy and the determination of the policy-dictated rights and obligations are questions of law, appropriate grist for the summary judgment mill (see Assetta v. Safety Ins. Co., 43 Mass.App.Ct. 317, 682 N.E.2d 931, 932 (1997)). Hence we review de novo the district court’s determination that the Endorsement covers D’Agostino for its own negligence. Hakim v. Massachusetts Insurers’ Insolvency Fund, 424 Mass. 275, 675 N.E.2d 1161, 1164 (1997) confirms the applicability of general rules of contract construction in construing an insurance policy: Where policy provisions are ambiguous — that is, “tw]here the language permits more than one rational interpretation” (Boston Symphony Orchestra, Inc. v. Commercial Union Ins. Co., 406 Mass.7, 545 N.E.2d 1156, 1159 (1989)(internal quotation omitted)) — the reading most favorable to the insured must prevail (Hazen Paper Co. v. USF & G, 407 Mass.689, 555 N.E.2d 576, 583 (1990)). That contra proferentem principle applies with added rigor in determining the meaning of exclusionary provisions (id.). ■ The interpretation of an insurance contract is no different from the interpretation of any other contract, and we must construe the words of the policy in their usual and ordinary sense. Insurance Coverage: Duties To Defend and To Indemnify Any liability insurer has a duty to defend an underlying third-party action against its putative insured if the allegations in the complaint are “reasonably susceptible of an interpretation that they state[] or adumbrate[] a claim covered by the policy issued to its insured” (New England Mut. Life Ins. Co. v. Liberty Mut. Ins. Co., 40 Mass.App.Ct.722, 667 N.E.2d 295, 297 (1996)(internal quotation omitted)). “This is true even if the claim is baseless, as it is the claim which determines the insurer’s duty to defend” (Mt. Airy Ins. Co. v. Greenbaum, 127 F.3d 15, 19 (1st Cir.1997)(internal quotation marks omitted)). It" }, { "docid": "23238536", "title": "", "text": "policies are well established. Plain and unambiguous language must be given its plain meaning. The contract should be construed as a whole; but, insofar as open to different constructions, that most favorable to the insured must be adopted. Kyte v. Fireman’s Fund Am. Ins. Companies, 549 S.W.2d 366, 367-68 (Mo.App.1977). Plain language in an insurance policy cannot be used to create an ambiguity where none exists; but if the policy is reasonably susceptible of more than one meaning, the ambiguity will be resolved in favor of the insured. Although parties to an insurance contract may, by plain language, limit the liability of the insurer to the insured, ambiguities in restrictive or exclusionary clauses are to be construed in favor of the insured. Kay v. Metropolitan Life Ins. Co., 548 S.W.2d 629, 631 (Mo.App.1977) (citations omitted). Finally, we note that [t]he policy of insurance and an endorsement must be read together where there is a dispute as to its meaning, and they should be construed together unless they are in such conflict they cannot be reconciled. If the language of the endorsement and the general provisions of the policy conflict, the endorsement will prevail, and the policy remains in effect as altered by the endorsement. Abco Tank & Mfg. Co. v. Fed. Ins. Co., 550 S.W.2d 193, 198 (Mo.1977) (citations omitted). The district court reconciled the endorsement with the policy by construing the endorsement to at least cover all personal injuries arising from a nonwillful violation of the service letter statute, in addition to those injuries enumerated in the policy. On appeal, USF&G contends that the language “but only as respects the existing terms and conditions of such coverage on [the policy]” should be construed to limit coverage for service letters to the four enu merated types of injuries. Thus, USF&G argues that failure to send a proper service letter is not covered by the endorsement unless the service letter is also libelous or slanderous. The district court concluded that such an interpretation of the endorsement provision would render it “meaningless and unnecessary,” finding instead that “the provision was meant to" }, { "docid": "7799476", "title": "", "text": "insurance policy that purports to limit coverage must be construed liberally in favor of the insured and against the insurer (see Hazen, 555 N.E.2d at 583). Under that approach too, the phrase “arising out of’ would not be read to exclude coverage for D’Agostino’s own negligence. Though ■ we have not had occasion to speak to that proposition, McIntosh v. Scottsdale Ins. Co., 992 F.2d 251, 254-55 (10th Cir.1993) has collected cases from numerous jurisdictions holding that additional-insured endorsements such as the one at issue here cover an additional insured for its own negligence related to the work of the named insured. After all, if USF&G had really intended to limit coverage under the additional insured Endorsement to those situations in which an added insured such as D’Agostino was to be held vicariously liable only for the negligence of a principal insured such as Great Eastern, USF&G was free to draft a policy with qualifying language that expressly implemented that intention (see, e.g., Consolidation Coal Co. v. Liberty Mut. Ins. Co., 406 F.Supp. 1292 (W.D.Pa.1976 pointing to the 'phrase “but only with respect to acts or omissions of the named insured” in the additional-insured endorsement as limiting the coverage of an additional insured to situations where it was the named insured’s negligence that exposed the additional insured to liability). USF&G did not do so. Instead it used language requiring only that the general contractor’s liability must arise out of Great Eastern’s work. In view of the narrow construction to be given to ambiguous exclusionary provisions, this alternative analytical road leads to the same destination: USF & G’s obligation to bear half of the financial burden of Woum dys’ claims. Conclusion Because the district court correctly determined that Merchants was entitled to a judg ment as a matter of law, Merchants’ Rule 56 motion was properly granted, while USF&G’s cross-motion was of course properly denied. We AFFIRM. . This undisputed factual statement is drawn from the parties’ briefs and the district court’s unreported opinion. . Although Fidelity and Guaranty Insurance Company rather than USF&G actually issued the policy to Great Eastern," }, { "docid": "6959921", "title": "", "text": "(1990)). Absent ambiguity, we give policy language its plain and ordinary meaning. E.g., Cody v. Connecticut General Life Ins. Co., 387 Mass. 142, 146, 439 N.E.2d 234, 237 (1982). Ambiguities are resolved against the insurer, who drafted the policy, and in favor of the insured. Thus, if “there are two rational interpretations of policy language, the insured is entitled to the benefit of the one that is more favorable to it.” Hazen, 407 Mass, at 700, 555 N.E.2d at 583. The insured bears the initial burden of proving that a claim falls within the grant of coverage, which, once established, shifts the burden onto the insurer to show the applicability of any exclusion. Camp Dresser & McKee, Inc. v. Home Ins. Co., 30 Mass.App. Ct. 318, 321, 568 N.E.2d 631, 633 (1991). To determine if a liability policy obligates a carrier to defend claims made against its insured, we simply compare the underlying complaint to the policy; “if the allegations of the complaint are ‘reasonably susceptible’ of an interpretation that they state or adumbrate a claim covered by the policy terms, the insurer must undertake the defense.” Liberty Mut. Ins. Co. v. SCA Services, Inc., 412 Mass. 330, 331-32, 588 N.E.2d 1346, 1347 (1992) (quoting Continental Cas. Co. v. Gilbane Bldg. Co., 391 Mass. 143, 146, 461 N.E.2d 209, 212 (1984)) (internal quotation omitted). At issue here are two combined comprehensive general liability and commercial property insurance policies. In the Insuring Agreement of the general liability coverage part, GRE promised to: pay those sums that [Metropolitan] becomes legally obligated to pay as damages because of ‘bodily injury’ ... to which this insurance applies.... The ‘bodily injury’ ... must be caused by an ‘occurrence.’ The ‘occurrence’ must take place in the ‘coverage territory.’ We will have the right and duty to defend any ‘suit’ seeking those damages. There is no question that the terms ‘occurrence’ and ‘bodily injury are defined in such a way as to cover personal injury due to lead paint exposure, and that the occurrences took place within the relevant coverage territory. Thus, unless a policy exclusion effectively" }, { "docid": "11841890", "title": "", "text": "that CCA is not an additional insured under Endorsement # 5 because the claims were based on CCA’s independent negligence, and under Louisiana law vendor’s endorsements only extend coverage for claims involving strict liability. The court further ruled that even if CCA could otherwise qualify for coverage under the vendor’s endorsements, several of the limitations under that endorsement would exclude coverage. The district court then dismissed CCA’s third-party demand against NY Marine and this appeal followed. II. A. We review the district court’s grant of summary judgment de novo. Facility Ins. Corp. v. Employers Ins. of Wausau, 357 F.3d 508, 512 (5th Cir.2004) (citing Gowesky v. Singing River Hosp. Sys., 321 F.3d 503, 507 (5th Cir.2003)). Under Federal Rule of Civil Procedure 56, summary judgment “should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.CivP. 56. A genuine issue of material fact exists if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). B. The parties agree that Louisiana law governs interpretation of the Policy. The Louisiana Supreme Court recently announced a number of helpful rules to guide us in interpreting insurance policies. See generally Cadwallader v. Allstate Ins. Co., 848 So.2d 577, 580 (La.2003). Under Louisiana law, an “insurance policy is a contract between the parties and should be construed by using the general rules of interpretation of contracts set forth in the Louisiana Civil Code.” Id. (citations omitted). “The judiciary’s role in interpreting insurance contracts is' to ascertain the common intent of the parties to the contract.” Id. (citing, inter alia, La. Civ.Code art. 2045). “Words and phrases used in an insurance policy are to be construed using their plain, ordinary and generally prevailing meaning, unless the words have acquired a technical meaning.” Id. (citing, inter alia, La. Civ.Code art. 2047). “The" }, { "docid": "2485204", "title": "", "text": "policy.” DISCUSSION This Court reviews the trial court’s grant of summary judgment de novo. See Allen v. Transamerica Ins. Co., 115 F.3d 1305, 1309 (7th Cir.1997). The grant of “[sjummary judgment is appropriate only ‘if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, demonstrate 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.’ ” Huntzinger v. Hastings Mut. Ins. Co., 143 F.3d 302, 306-07 (7th Cir.1998) (quoting Fed.R.Civ.P. 56(c)). The parties do not dispute that Illinois law governs the interpretation of the insurance policy at issue. Furthermore, the trial court correctly applied Illinois law in reaching its conclusion. [A]n insurance policy is a written contract that memorializes an agreement or “meeting of the minds” between the insurer ... and the insured.... In exchange for the payment of premiums by [the insured], [the insurer] agreed to cover certain medical expenses of [the insured], subject to the terms and conditions of the contract.... Pitcher v. Principal Mut. Life Ins. Co., 93 F.3d 407, 411 (7th Cir.1996) (citation omit ted). Under Illinois law, the interpretation of an insurance policy, even an ambiguous policy, presents questions of law that are appropriately resolved by summary judgment. See West Suburban Bank of Darien v. Badger Mut. Ins. Co., 141 F.3d 720, 723-24 (7th Cir.1998); Colonial Penn Ins. Co. v. Guzorek, 690 N.E.2d 664, 667 (Ind.1997). “A term is [only] ambiguous if it is subject to reasonable alternative interpretations.” Bechtold v. Physicians Health Plan of Northern Indiana, Inc., 19 F.3d 322, 325 (7th Cir.1994) (citation and internal quotation omitted). “Illinois courts apply the rule that any ambiguities in the provisions of an insurance policy will be construed against the drafter of the instrument, the insurer, and in favor of the insured.” Heller v. Equitable Life Assurance Soc’y of the U.S., 833 F.2d 1253, 1256 (7th Cir.1987) (citation omitted). An insurance policy that contains no ambiguity is construed according to the plain and ordinary meaning of its terms. See National Fidelity Life Ins." }, { "docid": "19530239", "title": "", "text": "therefore, did not address the question at issue in this case-how a court should resolve a discrepancy in terms of coverage between the Declarations Pages and an Endorsement. Thus, neither Bayer nor Hill provides any guidance regarding whether we should follow the definitions in the Declarations Pages or the Endorsement in determining whether coverage is available. Accordingly, we must follow state law canons of construction governing the interpretation of insurance contracts. Here, we have two directives. First, the contract's terms \"must be considered and construed together, and any internal conflicts between provisions must be harmonized, if reasonably possible, to effectuate the parties' intent.\" Virginia Farm Bureau Mut. Ins. Co. v. Williams , 278 Va. 75, 677 S.E.2d 299, 302 (2009) (Keenan, J.). \"When a disputed policy term is unambiguous,\" a court must apply the \"plain meaning as written.\" Id. Second, \"if disputed policy language is ambiguous and can be understood to have more than one meaning, we construe the language in favor of coverage and against the insurer.\" Id. ; accord Virginia Farm Bureau Mut. Ins. Co. v. Gile , 259 Va. 164, 524 S.E.2d 642, 645 (2000). \"Language in a policy purporting to exclude certain events from coverage will be construed most strongly against the insurer.\" St. Paul Fire & Marine Ins. Co. v. S.L. Nusbaum & Co. , 227 Va. 407, 316 S.E.2d 734, 736 (1984) As explained above, the terms of the contract here cannot be harmonized. There is simply no squaring two provisions, one of which purports to cover \"Any Auto\" and the other of which purports to cover \"Owned Autos Only.\" The majority claims that the more specific document (i.e. the Declarations Pages) should control, but that assertion finds no support in the language of the policy or Virginia law. As to the language of the policy, the Endorsement begins in boldface, all-caps type that states, \"THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY .\" J.A. 104. This language arguably establishes that the Endorsement should control. As to Virginia law, perhaps the most instructive case from the Virginia Supreme Court is Seals v. Erie" } ]

[ { "docid": "3840329", "title": "", "text": "S.Ct. 1434, 87 L.Ed. 1722 (1943). As Judge Coffin aptly observed in New England Enterprises, Inc. v. United States, 400 F.2d 58 (1st Cir. 1968), cert. denied, 393 U.S. 1036, 89 S.Ct. 654, 21 L.Ed.2d 581 (1969): Viewing the record as a whole, we can only conclude that the process complained of appears to have been little more than a whittling down of the prosecution’s weapons. Of the twenty substantive paragraphs in Count I, incorporated in all other counts by reference, eleven were struck in whole and five in part. Only four remained intact. And, as a consequence of this, of the several theories of fraud alleged by the Grand Jury only one reached the trial jury. We think appellants’ right to be informed of the nature of the charge against them was adequately protected. Id. at 65. Here, the indictment unequivocally alleged the segments of the scheme of which ABP was convicted. It was bound to know from the indictment and the bill of particulars that appellants were charged with devising a scheme to defraud ABP’s creditors, including GECC, and with using the mails and wires to further and carry out the scheme. The district court concluded that the evidence was insufficient to prove appellants’ guilt beyond a reasonable doubt on a number of the counts. But such action does not constitute a fatal variance between the indictment and the proof. Indeed, we fail to perceive any prejudice to appellants resulting from their acquittal on a substantial number of counts which were related solely to certain segments of the scheme to defraud. See F.R.Cr.P. 52. Ill We also reject appellant West’s contention that the findings and judgments of the court are inconsistent, contrary to law, and that a reversal is therefore required. West’s argument, to the extent that it is independent of his contention that the evidence was insufficient to sustain his conviction, is that a finding of no conspiracy mandates a finding of not guilty of the substantive counts. He relies upon United States v. Maybury, 274 F.2d 899 (2d Cir. 1960), where, under the facts presented, Judges" } ]

[ { "docid": "22233785", "title": "", "text": "in order to prevent errors in judicial dialectic. In the case at bar even if the judge found that Maybury had not endorsed the check when he entered the judgment of acquittal, and that he had, endorsed it when he entered judgment of conviction, I should not agree that the conviction could not stand, unless it appeared that he had relied upon Maybury’s endorsement as a necessary fact in determining to convict. It is impossible to know what he did find as to the endorsement. In his colloquy with counsel at the close of the evidence he said several times that Maybury had endorsed the cheek, yet on the motion to set aside the “verdict” he said that there “wasn’t any evidence he signed the name Abraham Kohl * * * Somebody endorsed Abraham Kohl’s name on the back of the check”; and he concluded by saying that the “inference to be drawn” (was that) “he knew the check was a forged check or he had reason to understand it was a forged check,” and “he should have had knowledge it was a check not properly endorsed by the payee.” It appears to me that there was enough evidence to support a finding of fraudulent “uttering.” The trumped up explanation of a supposititious “Barney who I believed was the rightful payee,” and who asked him to sign Kohl’s name, was surely a sufficient basis for imputing to Maybury the fact that it was not the payee who got the money. Since Judge LUMBARD wishes to reverse the judgment on both Counts and to dismiss them, and Judge FRIENDLY wishes to reverse the judgment on both Counts but to order a new trial on both, we are at an impasse. Although for the reasons I have tried to give I think that the judgment on Count 2 was right, I am willing to go along with Judge FRIENDLY in reversing that judgment and order a new trial. Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L. Ed.2d 199, seems to me to forbid a reversal of the judgment" }, { "docid": "12571789", "title": "", "text": "Opinion of the Court Quinn, Chief Judge: One of several charges lodged against the accused alleged he violated Article 134 of the Uniform Code of Military Justice, 10 USC § 934, by wrongfully committing an “indecent, lewd, and lascivious act with Lonnie C. McDonald by placing his hand” upon an intimate part of McDonald’s body. With exceptions and substitutions, the special court-martial, to which the charges had been referred for trial, found the accused guilty. The court excepted the words “indecent, lewd and lascivious act” and substituted in their place “assault consummated by battery.” It made no change in the number of the Article of the Uniform Code set out in the charge. On initial review, the convening authority affirmed the findings of guilty returned by the court-martial, and modified the sentence by reducing the period of confinement from six months to three months. The supervisory authority deleted the finding as to the part of McDonald’s body involved in the “assault and battery,” and changed the charge to indicate that the Article violated by the accused was 128 of the Uniform Code, supra, 10 USC § 928, instead of 134. He also modified the sentence and provided for suspension of the discharge. The board of review set aside the approved findings of guilty of assault and battery on the ground the offense was not lesser included in that originally charged. Under the provisions of Article 67(b)(2) of the Uniform Code, 10 USC § 867, the Judge Advocate General of the Air Force certified the record of trial for review of the following question: Was the board of review correct in its determination that assault and battery is not a lesser included offense of committing an indecent, lewd, and lascivious act with another as alleged in specification 2 of Charge II? A court-martial is not necessarily required either to convict the accused of the offense alleged or to return a verdict of not guilty. In a proper case, if the evidence leaves a reasonable doubt of guilt as to the offense charged, but none as to a lesser offense included within" }, { "docid": "10167645", "title": "", "text": "Opinion of the Court Homer Ferguson, Judge: The accused was tried by general court-martial upon a charge of committing a lascivious act upon a male child under the age of sixteen years, with intent thereby to gratify his sexual desire, in violation of Uniform Code of Military Justice, Article 134, 10 USC § 934. He was convicted of the specification and Charge with certain exceptions. Intermediate appellate authorities affirmed, and The Judge Advocate General, United States Air Force, certified two questions to this Court with respect to the case. They are more fully set out below. I The first inquiry of The Judge Advocate General relates to the findings and is stated as follows: “a. WAS THE BOARD OP REVIEW CORRECT IN ITS DETERMINATION THAT THE FINDINGS OP THE COURT CONSTITUTED THE OFFENSE OF INDECENT ACTS WITH ANOTHER, IN VIOLATION OF ARTICLE 134?” Upon finding the accused guilty, the court-martial excepted the language from the specification alleging the victim’s age and the intent with which accused acted. Thus, as found, the specification details accused’s conduct as follows: “In that Staff Sergeant Edwin M. Gaskin, United States Air Force, 5040th Food Service Squadron, did, at or near Anchorage, Alaska, on or about 15 May 1960, commit a lascivious act upon the body of . . . [J D A, Jr.] by placing his penis between the legs of the said . . . [JD A, Jr.].” Appellate defense counsel urge that the foregoing verdict does not include words of criminality, i.e., an averment that the acts were done “wrongfully” or “unlawfully,” and argue that accused has been found guilty of no offense. In reply, the Government points out that the specification describes accused’s act as “lascivious” and argues that the offense found is essentially that approved by this Court in United States v Sanchez, 11 USCMA 216, 29 CMR 32. We believe the position of the United States is correct and conclude that the specification, as amended by the findings of the court-martial, properly alleges the offense of indecent acts with another. In United States v Sanchez, supra, this Court had" }, { "docid": "12135325", "title": "", "text": "personnel on terms of military equality, to wit: solicit Staff Sergeant Hilda Martinez and Airman First Class Karen C. Sizemore to engage in indecent, lewd, and lascivious acts with First Lieutenant, formerly Second Lieutenant Lydia R. Rodriquez; unlawfully and wrongfully offering marihuana to various airmen in her squadron; unlawfully and wrongfully using marihuana in the presence of various airmen in her squadron; wrongfully embracing Staff Sergeant James T. Bumgarner and Senior Airman Robert L. Bublitz in the presence of other airmen; and wrongfully soliciting Senior Airman Robert L. Bublitz to engage in indecent, lewd, and lascivious acts with the said First Lieutenant, formerly Second Lieutenant Lydia R. Rodriquez, in violation of the established customs and traditions of the armed forces that officers shall not fraternize or associate with enlisted personnel on terms of military equality, to the prejudice of good order and discipline in the armed forces of the United States or was of a nature to bring discredit upon the armed forces. As indicated in the text of this opinion, the United States Air Force Court of Military Review dismissed this specification. Appellant was also found guilty under Article 133, UCMJ, 10 U.S.C. § 933, of: Specification 5: In that FIRST LIEUTENANT LYDIA R. RODRIQUEZ, SECOND LIEUTENANT until 18 June 1981, United States Air Force, 96th Security Police Squadron, did, at Dyess Air Force Base, Texas, at divers times from February, 1981, through October, 1981, engage in conduct unbecoming an officer, to wit: soliciting enlisted personnel in her squadron to engage in indecent, lewd, and lascivious acts with the said First Lieutenant, formerly Second Lieutenant, Lydia R. Rodriquez and offering marihuana to various enlisted personnel in her squadron. . See Hearings on H.R. 2498 Before a Sub-comm. of the House Armed Services Committee, 81st Cong., 1st Sess. 1235 (1949), reprinted in Index and Legislative History, Uniform Code of Military Justice. . To determine whether one offense is a lesser-included offense of another, the lesser offense must be shown to require no proof beyond that which is required for conviction of the greater offense. See Brown v. Ohio, 432 U.S." }, { "docid": "12080135", "title": "", "text": "a necessary fact in determining to convict. It is impossible to know what he did find as to the endorsement. However, in order to resolve the impasse, Judge Hand was “willing to go along with Judge FRIENDLY” in reversing the conviction and ordering a new trial as to the second charge. Id., 274 F.2d at 908. The per se application of the “rule” in United States v. Maybury, supra, has not been widely endorsed. See United States v. West, 549 F.2d 545 (8th Cir. 1977), cert. denied, 430 U.S. 956, 97 S.Ct. 1601, 51 L.Ed.2d 806 (1977); Annot., 18 A.L.R.3d 259, 284 (1968). We decline to adopt it into the military justice system, preferring, instead, to look at the specification upon which a guilty finding has been made to determine whether it may legally stand. ORIGINAL CHARGES CHARGE I: Violation of the Uniform Code of Military Justice, Article 134. Specification: In that STAFF SERGEANT GLENN M. SNIPES, United States Air Force, 56th Transportation Squadron, did, at 669F Kenwere Loop, MacDill AFB, Florida, at divers times between 1 July 1980 and 18 December 1980, commit indecent, lewd and lascivious acts upon the body of ... [J.S.], a female under the age of sixteen years, by placing a finger inside her vagina and rubbing her breasts, and by placing his hands upon her back, her legs, and her buttocks, with the intent to gratify the sexual desires of the said Staff Sergeant Glenn M. Snipes. [Italicized words excepted by M.J.] CHARGE II: Violation of the Uniform Code of Military Justice, Article 125. Specification: In that ... SNIPES, ... did, ... commit sodomy with ... [J.S.], a child under the age of sixteen years. In the case at bar, the accused was convicted, by exceptions and substitutions, of the first specification under Charge I, and the military judge fashioned a second specification under Charge I in order to include the excepted words. FINDINGS OF THE MJ Of Charge I: Guilty. Of the Specification, Charge I: Guilty, except the words “by placing a finger inside her vagina and rubbing her breasts.” ... Guilty of" }, { "docid": "12129024", "title": "", "text": "Opinion of the Court COX, Judge: The accused was tried by a general court-martial composed of officer members at Royal Air Force Bentwaters, England. Pursuant to his pleas, he was found guilty of sodomy with a child under the age of 16 years, assault and battery on his wife, and eleven specifications alleging taking indecent liberties or committing indecent acts with a female under the age of 16, in violation of Articles 125, 128, and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 925, 928, and 934, respectively. He was sentenced to confinement for 10 years, reduction to E-l, and a dishonorable discharge. The convening authority approved the sentence. Citing United States v. Harris, 13 M.J. 288 (C.M.A.1982), the Court of Military Review held that the military judge erred in failing to grant challenges against two senior members of the court-martial, because they wrote or endorsed the effectiveness reports on two other members. 23 M.J. 690 (1986). On reconsideration, although recognizing factual distinctions between Harris and the case at bar, the court adhered to its original decision establishing a per se rule of disqualification of a member who rates or endorses the effectiveness report of other members of that court-martial. 23 M.J. 764 (1986). The Judge Advocate General certified the following issue to this Court: WHETHER THE AIR FORCE COURT OF MILITARY REVIEW ERRED AS A MATTER OF LAW IN ESTABLISHING A RULE THAT A MEMBER WHO WRITES OR ENDORSES THE OER [OFFICER EFFECTIVENESS REPORT] OF ANOTHER MEMBER IS PER SE SUBJECT TO A CHALLENGE FOR CAUSE. Additionally, this Court granted review of the following issues upon a cross-petition filed by the accused: I WHETHER THE MILITARY JUDGE ERRED BY REFUSING TO ADMIT INTO EVIDENCE DEFENSE EXHIBIT V, AN EXCERPT FROM CHAPTER V of AFR 125-18. II WHETHER THE MILITARY JUDGE ERRED BY PREVENTING DEFENSE COUNSEL FROM ARGUING ANY PERIOD OF CONFINEMENT OVER EIGHTEEN MONTHS WOULD MOST LIKELY PREVENT THE ACCUSED FROM BEING ACCEPTED INTO THE 3320th CORRECTION AND REHABILITATION SQUADRON (CRS). We will address the certified issue first. Upon voir dire, the president of the court-martial stated that" }, { "docid": "12080134", "title": "", "text": "1 and upon the same fact constituting the crime charged in Count 2. The reason for reversing the conviction in that event would be that we could not know what the judge found as to the fact common to the two crimes. I do not see why otherwise a person should escape punishment for a crime of which he is found guilty, because he was acquitted of another crime of which he was also guilty. Consistency in the application of the law is not an interest which the accused may invoke, unless it operates to his disadvantage, which by hypothesis would not then be true. We should not exculpate him in order to prevent errors in judicial dialectic. In the case at bar even if the judge found that Maybury had not endorsed the check when he entered the judgment of acquittal, and that he had endorsed it when he entered judgment of conviction, I should not agree that the conviction could not stand, unless it appeared that he had relied upon Maybury’s endorsement as a necessary fact in determining to convict. It is impossible to know what he did find as to the endorsement. However, in order to resolve the impasse, Judge Hand was “willing to go along with Judge FRIENDLY” in reversing the conviction and ordering a new trial as to the second charge. Id., 274 F.2d at 908. The per se application of the “rule” in United States v. Maybury, supra, has not been widely endorsed. See United States v. West, 549 F.2d 545 (8th Cir. 1977), cert. denied, 430 U.S. 956, 97 S.Ct. 1601, 51 L.Ed.2d 806 (1977); Annot., 18 A.L.R.3d 259, 284 (1968). We decline to adopt it into the military justice system, preferring, instead, to look at the specification upon which a guilty finding has been made to determine whether it may legally stand. ORIGINAL CHARGES CHARGE I: Violation of the Uniform Code of Military Justice, Article 134. Specification: In that STAFF SERGEANT GLENN M. SNIPES, United States Air Force, 56th Transportation Squadron, did, at 669F Kenwere Loop, MacDill AFB, Florida, at divers times" }, { "docid": "12080136", "title": "", "text": "between 1 July 1980 and 18 December 1980, commit indecent, lewd and lascivious acts upon the body of ... [J.S.], a female under the age of sixteen years, by placing a finger inside her vagina and rubbing her breasts, and by placing his hands upon her back, her legs, and her buttocks, with the intent to gratify the sexual desires of the said Staff Sergeant Glenn M. Snipes. [Italicized words excepted by M.J.] CHARGE II: Violation of the Uniform Code of Military Justice, Article 125. Specification: In that ... SNIPES, ... did, ... commit sodomy with ... [J.S.], a child under the age of sixteen years. In the case at bar, the accused was convicted, by exceptions and substitutions, of the first specification under Charge I, and the military judge fashioned a second specification under Charge I in order to include the excepted words. FINDINGS OF THE MJ Of Charge I: Guilty. Of the Specification, Charge I: Guilty, except the words “by placing a finger inside her vagina and rubbing her breasts.” ... Guilty of the ... [Additional] Specification fashioned [by MJ] out of the excepted words: In that Staff Sergeant ... Snipes, ... did, ... at divers times between 1 July 1980 and 18 December 1980, commit indecent, lewd and lascivious acts upon the body of ... [J.S.] by placing a hand on her vagina and rubbing her breasts. [Italicized words replace excepted words.] Of the Specification of Charge II and of Charge II: Not guilty. He found the accused not guilty of sodomy. Examination and comparison of the elements of the offense of indecent acts with those of sodomy show that they are completely separate offenses. See paras. 213f (3) and 204 Manual for Courts-Martial, United States, 1969 (Revised edition). Hence, conviction of one and acquittal of the other is neither legally nor factually inconsistent. See United States v. Wilson, 13 M.J. 247 (C.M.A. 1982). Inconsistency can be asserted only by accepting appellate defense counsel’s argument that the victim was the sole source of the evidence against accused, and, since she testified to the events underlying both charges," }, { "docid": "22233784", "title": "", "text": "of whether the doctrine of Dunn v. United States, 284 U.S. 390, 52 S.Ct. 189, 76 L.Ed. 356, applies to cases tried to a judge, I do not see why the conviction on Count 2 should be reversed, however erroneous was the acquittal on Count 1, unless there was some inconsistency in the findings upon one of the facts constituting the crime charged in Count 1 and upon the same fact constituting the crime charged in Count 2. The reason for reversing the conviction in that event would be that we could not know what the judge found as to the fact common to the two crimes. I do not see why otherwise a person should escape punishment for a crime of which he is found guilty, because he was acquitted of another crime of which he was also guilty. Consistency in the application of the law is not an interest which the accused may invoke, unless it operates to his disadvantage, which by hypothesis would not then be true. We should not exculpate him in order to prevent errors in judicial dialectic. In the case at bar even if the judge found that Maybury had not endorsed the check when he entered the judgment of acquittal, and that he had, endorsed it when he entered judgment of conviction, I should not agree that the conviction could not stand, unless it appeared that he had relied upon Maybury’s endorsement as a necessary fact in determining to convict. It is impossible to know what he did find as to the endorsement. In his colloquy with counsel at the close of the evidence he said several times that Maybury had endorsed the cheek, yet on the motion to set aside the “verdict” he said that there “wasn’t any evidence he signed the name Abraham Kohl * * * Somebody endorsed Abraham Kohl’s name on the back of the check”; and he concluded by saying that the “inference to be drawn” (was that) “he knew the check was a forged check or he had reason to understand it was a forged check,” and" }, { "docid": "12080131", "title": "", "text": "Opinion of the Court COOK, Senior Judge: The accused was tried by general court-martial, military judge alone, for committing indecent, lewd, and lascivious acts on “J.S.,” his adopted daughter and a female under the age of 16, with the intent to gratify his sexual desires; and for committing sodomy with “J.S.” [hereinafter referred to as the victim], in violation of Articles 134 and 125, Uniform Code of Military Justice, 10 U.S.C. §§ 934 and 925, respectively. He was found not guilty of sodomy, but despite his pleas, he was found guilty of committing certain indecent, lewd, and lascivious acts. He was sentenced to a bad-conduct discharge, confinement at hard labor for 9 months, forfeiture of $371.00 pay per month for 9 months, and reduction to the pay grade of E-2. The convening authority approved the sentence as adjudged and directed confinement at the 3320th Correction and Rehabilitation Squadron, Lowry Air Force Base, Colorado. We granted accused’s petition for review of two issues. I WHETHER THE RULE IN UNITED STATES V MAYBURY, 274 F.2d 899 (2d Cir. 1960) PROHIBITING INCONSISTENT FINDINGS IN A JUDGE ALONE TRIAL SHOULD BE FOLLOWED IN THE MILITARY. The “rule” in United States v. Maybury, 274 F.2d 899 (2d Cir. 1960), had a rather inauspicious beginning. Maybury was indicted on two counts involving a treasury check made payable to Abraham Kohl. The first count alleged that Maybury had forged Kohl’s signature on the endorsement side of the check for the purpose of obtaining money. The second count alleged that Maybury had uttered the check, knowing that the endorsement had been forged, with the intent to defraud the Government. Maybury waived a jury trial and was tried before Judge Abruzzo alone. For reasons not clearly set forth in the record, Judge Abruzzo acquitted Maybury of the forgery charge, but convicted him of uttering the check knowing it to be forged. Maybury appealed, asserting insufficiency of the evidence and inconsistency of the acquittal of forgery with the conviction of uttering a forged check with knowledge of the forgery. The appeal was heard by Chief Judge Lumbard, Senior Judge Learned" }, { "docid": "22233767", "title": "", "text": "experience is silent.” Since we find no experience to justify approval of an inconsistent judgment when a criminal case is tried to a judge, we think logic should prevail. We thus reach the question whether the acquittal under the count for forging the check was inconsistent with the conviction for uttering the check knowing it to have been forged. This would not necessarily be so. An essential element of the crime of forgery is making the false writing, Fitzgibbons Boiler Co. v. Employers’ Liability Assurance Corp., 2 Cir., 1939, 105 F.2d 893, but that is not an essential element in the crime of uttering a check knowing it to be forged. On the other hand, the crime of uttering, defined in the second par agraph of 18 U.S.C. § 495, requires proof of putting forth the false writing, which is not an essential element of forgery. In consequence, placing Maybury in jeopardy under an indictment for forgery alone would not have barred subsequent prosecution for uttering, see State v. Blodgett, 1909, 143 Iowa 578, 121 N.W. 685; Hooper v. State, 1891, 30 Tex.App. 412, 17 S.W. 1066, and acquittal under a separate indictment for forging would have operated as res judicata on a subsequent indictment for uttering only to the extent of estopping the government from contending that Maybury himself forged the check, leaving the government free to prove by other means that he knew it to be forged. Appellant insistg that, however all this might be in the abstract, here there was no rational basis on which the trial judge, if not convinced beyond reasonable doubt that Maybury had forged the endorsement, could be convinced beyond reasonable doubt that Maybury had uttered or published the check knowing the endorsement to be forged. Compare Sealfon v. United States, 1948, 332 U.S. 575, 68 S. Ct. 237, 92 L.Ed. 180. Both the transcript of the trial and the judgment of conviction make it plain that the trial judge rejected Maybury’s story about “Barney” as wholly unworthy of belief. Before rendering his judgment the judge stated: “I believe that the check came" }, { "docid": "12135324", "title": "", "text": "the same evidence was used to establish both types of offenses confirms our conclusion. That something more was required for conviction under Article 133 does not undermine this greater-lesser relationship in the present case, and the Government does not contend otherwise. The decision of the United States Air Force Court of Military Review is reversed as to Charge I and its specifications. The findings of guilty of that Charge and its specifications are set aside and that Charge and its specifications are dismissed. The decision to affirm the remaining findings of guilty and the sentence is affirmed. See United States v. Allen, 16 M.J. 395, 396 (C.M.A. 1983). . Appellant was found guilty under Article 134, Uniform Code of Military Justice, 10 U.S.C. § 934, of: Specification 5: In that FIRST LIEUTENANT LYDIA R. RODRIQUEZ, SECOND LIEUTENANT until 18 June 1981, United States Air Force, 96th Security Police Squadron, did, willfully and knowingly, at Dyess Air Force Base, Texas, at divers times from about February, 1981, through October, 1981, fraternize and associate with various enlisted personnel on terms of military equality, to wit: solicit Staff Sergeant Hilda Martinez and Airman First Class Karen C. Sizemore to engage in indecent, lewd, and lascivious acts with First Lieutenant, formerly Second Lieutenant Lydia R. Rodriquez; unlawfully and wrongfully offering marihuana to various airmen in her squadron; unlawfully and wrongfully using marihuana in the presence of various airmen in her squadron; wrongfully embracing Staff Sergeant James T. Bumgarner and Senior Airman Robert L. Bublitz in the presence of other airmen; and wrongfully soliciting Senior Airman Robert L. Bublitz to engage in indecent, lewd, and lascivious acts with the said First Lieutenant, formerly Second Lieutenant Lydia R. Rodriquez, in violation of the established customs and traditions of the armed forces that officers shall not fraternize or associate with enlisted personnel on terms of military equality, to the prejudice of good order and discipline in the armed forces of the United States or was of a nature to bring discredit upon the armed forces. As indicated in the text of this opinion, the United States Air" }, { "docid": "22233786", "title": "", "text": "“he should have had knowledge it was a check not properly endorsed by the payee.” It appears to me that there was enough evidence to support a finding of fraudulent “uttering.” The trumped up explanation of a supposititious “Barney who I believed was the rightful payee,” and who asked him to sign Kohl’s name, was surely a sufficient basis for imputing to Maybury the fact that it was not the payee who got the money. Since Judge LUMBARD wishes to reverse the judgment on both Counts and to dismiss them, and Judge FRIENDLY wishes to reverse the judgment on both Counts but to order a new trial on both, we are at an impasse. Although for the reasons I have tried to give I think that the judgment on Count 2 was right, I am willing to go along with Judge FRIENDLY in reversing that judgment and order a new trial. Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L. Ed.2d 199, seems to me to forbid a reversal of the judgment on Count 1, and, as I understand it, Judge FRIENDLY does not insist upon reversing that judgment. Therefore, the result is that the judgment of conviction on Count 2 will be reversed and a new trial ordered, and the judgment on Count 1, from which no appeal was, or could have been taken, will remain unaffected." }, { "docid": "22233775", "title": "", "text": "appeal was for inconsistency. Such a result would convert the guarantee of double jeopardy from a shield into a sword. To say that Maybury may not be retried for uttering because a conviction on that ground would maintain the very inconsistency that has led to reversal would press that doctrine beyond reasonable bounds. For, apart from the possibility that the government may adduce new evidence on a retrial, it misses the reason why we reverse for inconsistency. This is not because of any desire for elegantia juris but because we can have no confidence in a judgment convicting Maybury of one crime when the judge, by his acquittal of another, appears to have rejected the only evidence that would support the conviction here. On a new trial for uttering, the judge or the jury would be free to conclude that Maybury forged Kohl’s name and, on that or some other basis not here present, find Maybury guilty of uttering the check knowing the endorsement to be forged. There would be no internal inconsistency in such a judgment, and no more reason for a court to be disturbed about it than when a different jury or judge reaches a different result on the retrial of a civil case; and Maybury could hardly complain that the Fifth Amendment, as my brothers read it, has led to his conviction for only one offense .rather than two. The appellant has been capably represented on this appeal by the Legal Aid Society, Richard E. Nolan and Agnes Folk Nolan of counsel. Judgment reversed and new trial ordered on the count for uttering. . 2 Pollock and Maitland, History of English Law, 623. . A Conciso History of the Common Law, 325. See also 1 Holdsworth, History of English Law, 317. . 2 Pollock and Maitland, op. cit., 624, 626. . Cardozo, The Nature of the Judicial Process, 33. LUMBARD, Chief Judge (dissenting in part). I agree with those parts of Judge FRIENDLY’S opinion which hold that the rule of Dunn v. United States, 1932, 284 U.S. 390, 52 S.Ct. 189, 76 L.Ed. 356, is not" }, { "docid": "22233776", "title": "", "text": "a judgment, and no more reason for a court to be disturbed about it than when a different jury or judge reaches a different result on the retrial of a civil case; and Maybury could hardly complain that the Fifth Amendment, as my brothers read it, has led to his conviction for only one offense .rather than two. The appellant has been capably represented on this appeal by the Legal Aid Society, Richard E. Nolan and Agnes Folk Nolan of counsel. Judgment reversed and new trial ordered on the count for uttering. . 2 Pollock and Maitland, History of English Law, 623. . A Conciso History of the Common Law, 325. See also 1 Holdsworth, History of English Law, 317. . 2 Pollock and Maitland, op. cit., 624, 626. . Cardozo, The Nature of the Judicial Process, 33. LUMBARD, Chief Judge (dissenting in part). I agree with those parts of Judge FRIENDLY’S opinion which hold that the rule of Dunn v. United States, 1932, 284 U.S. 390, 52 S.Ct. 189, 76 L.Ed. 356, is not applicable to cases heard by the court without a jury, and that the verdicts upon the forgery and uttering counts in this case are inconsistent with each other. However, I cannot accept the view that the proper procedure under these circumstances is to remand the case for a new trial on both the forgery and uttering counts. I think that retrial on the forgery count, upon which defendant was acquitted, is forbidden by the double jeopardy clause of the Fifth Amendment and that retrial upon the uttering count is foreclosed for the very reasons which Judge FRIENDLY gives for not permitting inconsistent verdicts of a trial judge to stand. I would therefore order the indictment dismissed. Maybury was acquitted by the trial court upon the forgery count. Apparently, the trial judge believed that the Government failed to submit sufficient evidence to sustain its burden of proving beyond a reasonable doubt that Maybury knew that he lacked authority from the rightful payee when he endorsed the payee’s name on the check. Without such knowledge that he" }, { "docid": "12135326", "title": "", "text": "Force Court of Military Review dismissed this specification. Appellant was also found guilty under Article 133, UCMJ, 10 U.S.C. § 933, of: Specification 5: In that FIRST LIEUTENANT LYDIA R. RODRIQUEZ, SECOND LIEUTENANT until 18 June 1981, United States Air Force, 96th Security Police Squadron, did, at Dyess Air Force Base, Texas, at divers times from February, 1981, through October, 1981, engage in conduct unbecoming an officer, to wit: soliciting enlisted personnel in her squadron to engage in indecent, lewd, and lascivious acts with the said First Lieutenant, formerly Second Lieutenant, Lydia R. Rodriquez and offering marihuana to various enlisted personnel in her squadron. . See Hearings on H.R. 2498 Before a Sub-comm. of the House Armed Services Committee, 81st Cong., 1st Sess. 1235 (1949), reprinted in Index and Legislative History, Uniform Code of Military Justice. . To determine whether one offense is a lesser-included offense of another, the lesser offense must be shown to require no proof beyond that which is required for conviction of the greater offense. See Brown v. Ohio, 432 U.S. 161, 169, 97 S.Ct. 2221, 2227, 53 L.Ed.2d 187 (1977). Article 134, Uniform Code of Military Justice, 10 U.S.C. § 934, as do many other codal provisions, broadly applies to any accused who was \"subject to this chapter” at the time of the offense. This language is identical to the general personal jurisdiction prerequisite for the trial of any offense under the Code, including an Article 133 offense. See Articles 2, 17, and 18, UCMJ, 10 U.S.C. §§ 802, 817, and 818, respectively. Accordingly, the officer element of the Article 133 offense may be viewed as an additional element of proof over and above that required for an Article 134 offense. In this light, we find it impossible to conclude that the above language from Article 134 requires proof beyond that required of Article 133. See generally H. Moyer, Justice and the Military §§ 5-230 through 5-233 (1972). . The genesis of the doctrine of lesser-included offenses as a matter of military law is found in the sanctioned practice of convicting an accused of conduct" }, { "docid": "12080137", "title": "", "text": "the ... [Additional] Specification fashioned [by MJ] out of the excepted words: In that Staff Sergeant ... Snipes, ... did, ... at divers times between 1 July 1980 and 18 December 1980, commit indecent, lewd and lascivious acts upon the body of ... [J.S.] by placing a hand on her vagina and rubbing her breasts. [Italicized words replace excepted words.] Of the Specification of Charge II and of Charge II: Not guilty. He found the accused not guilty of sodomy. Examination and comparison of the elements of the offense of indecent acts with those of sodomy show that they are completely separate offenses. See paras. 213f (3) and 204 Manual for Courts-Martial, United States, 1969 (Revised edition). Hence, conviction of one and acquittal of the other is neither legally nor factually inconsistent. See United States v. Wilson, 13 M.J. 247 (C.M.A. 1982). Inconsistency can be asserted only by accepting appellate defense counsel’s argument that the victim was the sole source of the evidence against accused, and, since she testified to the events underlying both charges, the military judge’s findings reflect that he believed part of her story, but disbelieved other parts. We do not choose to indulge in such supposition. United States v. Wilson, supra. There is no question that “the fact-finders may believe one part of a witness’ testimony and disbelieve another.” United States v. Harris, 8 M.J. 52, 59 (C.M.A. 1979). However, even beyond this truism, there is an obvious rational basis for the judge’s findings. The accused’s own statement admitted performing all of the acts that were found in the original and tailored specifications. Of course, he gave exculpatory explanations. The military judge obviously accepted the victim’s testimony as to the accused’s lustful intentions when he placed his hands on her back, her legs, and her buttocks, and his decision was bolstered by the accused’s own admission that he had had an erection during some of these occasions. In the tailored specification, the military judge accepted the accused’s admission that he had placed his hand on the victim’s vagina and rubbed her breasts, but, he found that" }, { "docid": "12080132", "title": "", "text": "Cir. 1960) PROHIBITING INCONSISTENT FINDINGS IN A JUDGE ALONE TRIAL SHOULD BE FOLLOWED IN THE MILITARY. The “rule” in United States v. Maybury, 274 F.2d 899 (2d Cir. 1960), had a rather inauspicious beginning. Maybury was indicted on two counts involving a treasury check made payable to Abraham Kohl. The first count alleged that Maybury had forged Kohl’s signature on the endorsement side of the check for the purpose of obtaining money. The second count alleged that Maybury had uttered the check, knowing that the endorsement had been forged, with the intent to defraud the Government. Maybury waived a jury trial and was tried before Judge Abruzzo alone. For reasons not clearly set forth in the record, Judge Abruzzo acquitted Maybury of the forgery charge, but convicted him of uttering the check knowing it to be forged. Maybury appealed, asserting insufficiency of the evidence and inconsistency of the acquittal of forgery with the conviction of uttering a forged check with knowledge of the forgery. The appeal was heard by Chief Judge Lumbard, Senior Judge Learned Hand, and Judge Friendly. All the judges agreed that the evidence was sufficient to convict Maybury of both charges. The Government contended that inconsistent jury verdicts had been upheld previously and that the same rationale should apply in a trial before a judge as the fact-finder. See Dunn v. United States, 284 U.S. 390, 52 S.Ct. 189, 76 L.Ed. 356 (1932) ; Steckler v. United States, 7 F.2d 59 (2d Cir. 1925). However, Judge Friendly and Chief Judge Lumbard held that the verdict was inconsistent and remedial action was required. Judge Friendly would have reversed and remanded for trial on both charges, but Chief Judge Lumbard believed that the inconsistency required dismissal of both charges. Senior Judge Learned Hand, who had written the Steckler opinion some 35 years earlier, offered a different approach, as follows: 1 do not see why the conviction on Count 2 should be reversed, however erroneous was the acquittal on Count 1, unless there was some inconsistency in the findings upon one of the facts constituting the crime charged in Count" }, { "docid": "22233756", "title": "", "text": "FRIENDLY, Circuit Judge. Maybury was indicted in the Eastern District of New York on two counts. Both related to a United States Treasury check for ij>68 payable to Abraham Kohl. The first count charged that, for the purpose of obtaining or receiving money from the United States, Maybury forged Kohl’s name on the reverse of the check in violation of 18 U.S.C. § 495; the second charged that, in violation of the same section, Maybury uttered the check with intent to defraud the United States, knowing the endorsement to have been forged. Maybury was tried before Judge Abruzzo, jury trial having been waived. It was stipulated that the check was a duly issued Treasury check; that it had been mailed by the government to Abraham Kohl, the payee; and that if Kohl had been called as a witness, he would have testified that he had never received, signed or endorsed it or authorized anyone else to sign or endorse it on his behalf. The check was placed in evidence. On the reverse are the names “Abraham Kohl,” “Joseph Maybury” and “William Kozin.” There is much similarity in the writing of the names of Kohl and May-bury, but there was no expert testimony whether or not the names were written by the same hand. A secret service agent identified a statement by Maybury giving the latter’s version of what occurred. This was that the check had been in the possession of a man known to Maybury as Barney; that Maybury and Barney had been drinking in Casey’s Steak House, a restaurant and tavern in Brooklyn; that after they “had been drinking on and off for about three days, at this tavern, Barney ran short of cash and asked the bartender to cash the subject check for him”; that “in view of the fact that Barney could not write too good, he, Barney, asked me to sign his name to the check”; that Maybury signed “the check for Barney who I believed was the rightful payee”; and that Maybury thereafter signed his own name as a second endorser at the bartender’s request." }, { "docid": "12080133", "title": "", "text": "Hand, and Judge Friendly. All the judges agreed that the evidence was sufficient to convict Maybury of both charges. The Government contended that inconsistent jury verdicts had been upheld previously and that the same rationale should apply in a trial before a judge as the fact-finder. See Dunn v. United States, 284 U.S. 390, 52 S.Ct. 189, 76 L.Ed. 356 (1932) ; Steckler v. United States, 7 F.2d 59 (2d Cir. 1925). However, Judge Friendly and Chief Judge Lumbard held that the verdict was inconsistent and remedial action was required. Judge Friendly would have reversed and remanded for trial on both charges, but Chief Judge Lumbard believed that the inconsistency required dismissal of both charges. Senior Judge Learned Hand, who had written the Steckler opinion some 35 years earlier, offered a different approach, as follows: 1 do not see why the conviction on Count 2 should be reversed, however erroneous was the acquittal on Count 1, unless there was some inconsistency in the findings upon one of the facts constituting the crime charged in Count 1 and upon the same fact constituting the crime charged in Count 2. The reason for reversing the conviction in that event would be that we could not know what the judge found as to the fact common to the two crimes. I do not see why otherwise a person should escape punishment for a crime of which he is found guilty, because he was acquitted of another crime of which he was also guilty. Consistency in the application of the law is not an interest which the accused may invoke, unless it operates to his disadvantage, which by hypothesis would not then be true. We should not exculpate him in order to prevent errors in judicial dialectic. In the case at bar even if the judge found that Maybury had not endorsed the check when he entered the judgment of acquittal, and that he had endorsed it when he entered judgment of conviction, I should not agree that the conviction could not stand, unless it appeared that he had relied upon Maybury’s endorsement as" } ]

[ { "docid": "13719947", "title": "", "text": "the sidewalk they might be stored in any manner, in any quantity, within any distance, of such houses of worship or schools. It would be difficult to conceive of an ordinance less calculated to regulate. the storage of gasoline, or to regulate or prevent anything else, except to prevent appellee from building its filling station. The ordinance is invalid because it denies to appellee equal - protection under the law, and its attempted administration against appellee only is vicious and unlawful. The decree is affirmed. EVAN A. EVANS, Circuit Judge (dissenting) . The ordinance under consideration (set forth in the majority opinion) was in my opinion a' valid exercise .of police power by appellant. This conclusion is predicated on the assumption that the modem municipality is not a medieval city,' possessing only those powers expressly conferred upon-it by a franchise. Rather is it a public institution for self-government and for the local administration of the affairs of state. It is a part of the civil government of the state. Its purpose and object is to supply the wants and regulate the conduct of congested populations through ordinances of their own making and by officers of their own choice. The extent and operation of its functions and powers must be determined by the purpose and object of its creation and existence; For convenience sake these powers may be classified as express, implied, or inherent. Dillon’s Municipal Corporations, § 319; City of Crawfordsville v. Braden, 130 Ind. 149, 28 N. E. 849,14 L. R. A. 268, 30 Am. St. Rep. 214. In the latter ease the court said: “Among the implied powers possessed by municipal corporations in this State [Indiana] are those grouped under the somewhat comprehensive title of “Police Powers” — a power which it is difficult either to precisely define or limit; a power which authorizes the municipality in certain cases to place restrictions upon the power of the individual both in respect to his personal conduct and his property; and also furnishes the only authority for doing many things not restrictive in their character, the tendency of which is" } ]

[ { "docid": "1461742", "title": "", "text": "imposed restrictions on Hoagy Wrecker’s participation in a public contract bid in ways that were not rationally related to the purpose to be served by letting the contract. Either the City imposed no such restrictions on Kelley Wrecker or BLT, or the restrictions it did impose on them were designed to include them and exclude the Plaintiff for reasons unrelated to the Plaintiff's ability to perform the contract competently. Plaintiffs’ Second Amended Complaint at ¶¶ 14-20. The central purpose of the Equal Protection Clause of the Fourteenth Amendment is the prevention of official conduct discriminating on the basis of race. Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 2047, 48 L.Ed.2d 597 (1976). The Equal Protection Clause commands that no State shall “deny to any person within its jurisdiction the equal protection of the laws,” which is essentially a direction that all persons similarly situated should be treated alike. City of Cleburne, Texas v. Cle-burne Living Center, 478 U.S. 432, 105 S.Ct. 3249, 3254, 87 L.Ed.2d 313 (1985). Nevertheless, when social or economic legislation is at issue the Equal Protection Clause allows the states wide latitude and the Constitution presumes that even improvident decisions will eventually be rectified by the democratic processes. Id. Equal protection demands at a minimum that a municipality must apply its laws in a rational and nonarbitrary way. Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 1072-73, 30 L.Ed. 220 (1886). This requires a showing that its application of the law “rationally furthers some legitimate, articulated state purpose and therefore does not constitute invidious discrimination.” San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 93 S.Ct. 1278, 1288, 36 L.Ed.2d 16 (1973). This does not mean that error or mistake in the application of the law gives rise to an equal protection claim. Rather it protects against intentional invidious discrimination by the state against persons similarly situated. Ciechon v. City of Chicago, 686 F.2d 511, 522-23 (7th Cir.1982). The state, as a purchaser of services, enjoys a broad freedom to deal with whom it chooses on such terms as it chooses. Coyne-Delany" }, { "docid": "22468161", "title": "", "text": "enactment of fair and impartial legislation, but necessarily extends to the application of these laws. The basic principle was stated long ago in Yick Wo v. Hopkins, 118 U.S. 356, 373-374, 6 S.Ct. 1064, 1073, 30 L.Ed. 220 (1886): “Though the law itself be fair on its face and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discrimina-tions between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the Constitution.” The city ordinance for which violation Yick Wo was convicted made it unlawful for any person to maintain a laundry in the city of San Francisco without first obtaining the permission of the board of supervisors unless the laundry were located in a building constructed of brick or stone. Although the statute was, on its face, a fair and reasonable exercise of the police power, the facts showed that principally Chinese were refused permission to continue using wooden facilities. The Supreme Court held that criminal enforcement of the law was therefore illegal. Yick Wo was concerned with an abuse of discretion in the administration of a public ordinance by a city licensing board, and not with the activities of law enforcement officials who presumably prosecuted all Chinese who violated the commands of the licensing board. The underlying principle has nevertheless been properly held to apply to the actions of prosecutors and police officials. Two Guys from Harrison-Allentown, Inc. v. McGinley, District Attorney, 366 U.S. 582, 588, 81 S.Ct. 1135, 6 L.Ed.2d 551 (1961); United States v. Steele, 461 F.2d 1148, 1151 (9th Cir. 1972); United States v. Crowthers, 456 F.2d 1074, 1080 (4th Cir. 1972); Shock v. Tester, 405 F.2d 852, 855 (8th Cir. 1969); Washington v. United States, 130 U.S.App.D.C. 374, 401 F.2d 915, 924 (1968); Moss v. Hornig, 314 F.2d 89, 92-93 (2d Cir. 1963); People v. Walker, 14 N.Y.2d 901, 252 N.Y.S.2d 96, 200 N.E.2d 779 (1964); People v. Gray, 254 Cal.App.2d 256, 63 Cal.Rptr. 211" }, { "docid": "11181789", "title": "", "text": "and that of the Court below reversed. Reversed. . The frontage on 17-92 is 192.20 feet, on Horatio Avenue 134.68 feet. . At the time of trial the value of the property for use as a service station was $135,000 whereas its value for any other use would not exceed $75,000. . At that time the pertinent ordinance stated: “Section 1. No gasoline station or filling station or service station shall be erected within three hundred and fifty (350) yards of any church, hospital, school or any other such type of public assembly building used by large numbers of people and within three hundred and fifty (350) yards of an existing filling station or service station or gasoline station. The method of measurement that shall apply shall be the air line distance measured from the nearest boundary of the premises upon which there exists such churches, hospitals, schools, or other types of public assembly buildings or filling stations or service stations.” Zoning, Code of Ordinances, City of Mait-land, Florida § 6-7 (enacted March 24, 1961). . “(11) Filling stations. The following regulations shall apply to the location, design, construction, operation, and maintenance of filling stations: (a) A service station lot shall be of adequate width and depth to meet all setback requirements, but in no case shall a corner lot have less than one hundred fifty feet (150') of frontage on each streetside, and an interior lot shall have a minimum width of at least one hundred fifty feet (150'). (b) There shall be a minimum airline distance of three hundred and fifty (350) yards, measured from the nearest points of lot boundaries, between a proposed filling station and any existing filling station or between a proposed filling station and any lot occupied by a church, hospital, public or private school, public library, stadium, arena, or other place of public assembly. This provision shall not be construed to place in nonconforming status those filling stations in existence as of the date of enactment of this zoning code.” Zoning, Code of Ordinances, City of Maitland, Florida § 16-6 (enacted May 1967)." }, { "docid": "11181786", "title": "", "text": "invalid for two basic reasons. First, there is no inverse distance requirement forbidding the building of churches, schools, hospitals and other places of public assembly within 350 yards of a gas station. Second, the Court noted that others in Mait-land had been granted variances to erect gas stations even though their property failed to meet all of the ordinance requirements. The Court found that pub- lie safety was the only possible justification for the exercise of the City’s police power and relying on City of Miami v. Woolin, 5 Cir., 1968, 387 F.2d 893, decided that the 350 yard restriction bore no rational relationship to the promotion of public safety. Since deviations were granted and since places of public assembly could be built without restriction near the presently existing gas station, safety would be the same with or without the ordinance; therefore, it was unconstitutional. If public safety were the sole aim of this law, Woolin might have more significance. But we find the city had other ends as well as safety in mind when it adopted the ordinance. Since a rational relationship to these goals is clearly present, we find it unnecessary to delve further into the safety correlation question. The record without substantial contradiction is very impressive from the City’s standpoint. A prime motivation in passing a new ordinance was the desire to avoid putting too many gas stations in one area. By observing the experience of other nearby cities, Mait-land officials became painfully aware of the dangers brought about by not having spacing restrictions. Absent these requirements, the probability of business failure in this highly competitive area is high. The result is abandoned stations. The abandoned station sites, which in most instances cannot be used for any other commercial purpose, become magnets for junk cars and sometimes havens for mice, rats and insects. If there are several stations of this kind in one area, which there are likely to be in a commercial district, the neighborhood soon becomes a blighted eyesore and one greatly diminished in aesthetic and commercial appeal. This Court and those in Florida have" }, { "docid": "11181785", "title": "", "text": "a rational relationship between the specific non-universal restriction and additional benefit to a public interest. Yet once that relationship is established, the Equal Protection Clause does not impose upon the state the duty to “correct all similar evils wherever they may exist in the County or none at all.” Elliott, supra, 425 F.2d at 1155. Because drive-in restaurants may create traffic problems, the city is not necessarily required to use the same, or even any, remedy on the traffic problems involved. We have found that the frontage requirement bears a rational relationship to traffic safety at a gas station, and we therefore need not consider if a similar law would be equally effective in dealing with the problems of a drive-in grocery or restaurant. This is a problem for the legislature alone to resolve. Hence § 16-6(11) (a) does not fall under either the Due Process or the Equal Protection Clause. IV. The 350 Yard Requirement We next come to the 350 yard distance requirement of § 16-6(11) (b). The District Court ruled this section invalid for two basic reasons. First, there is no inverse distance requirement forbidding the building of churches, schools, hospitals and other places of public assembly within 350 yards of a gas station. Second, the Court noted that others in Mait-land had been granted variances to erect gas stations even though their property failed to meet all of the ordinance requirements. The Court found that pub- lie safety was the only possible justification for the exercise of the City’s police power and relying on City of Miami v. Woolin, 5 Cir., 1968, 387 F.2d 893, decided that the 350 yard restriction bore no rational relationship to the promotion of public safety. Since deviations were granted and since places of public assembly could be built without restriction near the presently existing gas station, safety would be the same with or without the ordinance; therefore, it was unconstitutional. If public safety were the sole aim of this law, Woolin might have more significance. But we find the city had other ends as well as safety in mind when" }, { "docid": "11181796", "title": "", "text": "71 So.2d 148. The term “fairly debatable” in fact first appeared in the City of Euclid case. . This was pure theory. There is no evidence that any such buildings had been built or that sites for them were likely to be selected within the minimum distance. Such restrictions are common in the beer-alcohol spirits area and few if any prohibit — if they could under the First Amendment — the building of a church to help men’s spirits. . In finding this relationship we give little weight to the finding that the city had granted five variances to build stations in District C-l, stations which did not meet the distance requirements. These variances were granted under the old, less comprehensive 1961 zoning law, see note 3, supra, well before Mrs. Stone’s application arrived on the scene. Under the new ordinance no variances have been permitted. In Woolin, on the contrary, we found the variances to be the rule and not the exception. Practically every gas station was within the prohibited distance of another gas station and nearly one-third were in the prohibited distance of a church, hospital, or school. Furthermore, variances had been granted, almost without exception, before and during the pendency of the landowner’s request. These numerous violations that were condoned by the city demonstrated that the city was not really trying to promote public safety by this ordinance and therefore it could not be constitutionally justified. Here, however, the record shows that the city, despite a few long-ago deviations under different ordinance guidelines, means to abide by its ordinance. This factor, therefore, does not move us even a single nudge in the direction of Woolin. . For example the City introduced the evidence of 54 abandoned gas stations in the Orlando area alone. . They can be, and in Florida have been, a place where crime is furthered. See United States v. Kilgen, 5 Cir., 1970, 431 F.2d 627, on rehearing, 5 Cir., 1971, 445 F.2d 287. And gas stations can produce even more bizarre risks. See Clegg v. Hardware Mutual Casualty Co., 5 Cir., 1959, 264" }, { "docid": "22430372", "title": "", "text": "test to evaluate a public employee’s claim of retaliation for engaging in activity protected under the First Amendment. See Baldassare v. State of New Jersey, 250 F.3d 188, 195-96 (3d Cir.2001); San Filippo v. Bongiovanni, 30 F.3d 424, 430-31 (3d Cir.1994); Holder v. City of Allentown, 987 F.2d 188, 194 (3d Cir.1993). First, the employee must show that the activity is in fact protected. Pickering v. Bd. of Educ., 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). Second, the employee must show that the protected activity “was a substantial factor in the alleged retaliatory action.” Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977). Third, the employer may defeat the employee’s claim by demonstrating that the same adverse action would have taken place in the absence of the protected conduct. Id. The officers further allege that the city violated their right to equal protection of the laws under the Fourteenth Amendment by selectively enforcing the ordinance against them while failing to terminate other similarly situated city employees who did not bring suit in 1997. As noted above, we affirmed the District Court’s dismissal of the 1997 claim that the residency ordinance violated the equal protection clause on its face. However, discriminatory enforcement of a facially valid law is also unconstitutional under the equal protection clause. Yick Wo v. Hopkins, 118 U.S. 356, 373-74, 6 S.Ct. 1064, 30 L.Ed. 220 (1886); Holder, 987 F.2d at 197 (applying Yick Wo to a claim of discriminatory enforcement of a residency ordinance). To establish their selective enforcement claim, the officers must demonstrate 1) that other similarly situated employees were not terminated despite their non-compliance .with the ordinance and 2) that this selective treatment was based on an “unjustifiable standard, such as race, or religion, or some other arbitrary factor, ... or to prevent the exercise of a fundamental right.” Holder, 987 F.2d at 197 (citing United States v. Schoolcraft, 879 F.2d 64, 68 (3d Cir.1989) (internal quotations omitted). Here, the officers seek to demonstrate that the city singled them out" }, { "docid": "18455427", "title": "", "text": "powers of the district courts. Discriminatory enforcement and application of a valid statute by state officials constitutes a denial of equal protection under the Fourteenth Amendment. Yick Wo v. Hopkins, 118 U.S. 356, 373-74, 6 S.Ct. 1064, 30 L.Ed. 220 (1886). While Yick Wo specifically involved unequal administration of a public ordinance by a city licensing board, the underlying principle has been held applicable to the actions of prosecutors and police officials. Two Guys from Harrison-Allentown, Inc. v. Mc-Ginley, 366 U.S. 582, 588, 81 S.Ct. 1135, 6 L.Ed.2d 551 (1961); United States v. Falk, 479 F.2d 616, 618 (7th Cir. 1973) ; Shock v. Tester, 405 F.2d 852, 855-56 (8th Cir. 1969). The Fourteenth Amendment’s prohibition against a state taking action which would “deny to any person within its jurisdiction the equal protection of the laws” restricts conduct of the federal government as well through the Fifth Amendment. Bolling v. Sharpe, 347 U. S. 497, 74 S.Ct. 693, 98 L.Ed. 884 (1954); Mow Sun Wong v. Hampton, 500 F.2d 1031, 1037-38 (9th Cir. 1974); Washington v. United States, 130 U.S.App.D. C. 374, 401 F.2d 915, 922 (1968). Mere conscious exercise of some selectivity in prosecution is not a constitutional violation. Oyler v. Boles, 368 U.S. 448, 456, 82 S.Ct. 501, 7 L.Ed.2d 446 (1962). The defense of discriminatory enforcement requires a showing of intentional and purposeful selection based on an unjustifiable standard such as race or religion. Tollett v. Laman, 497 F.2d 1231, 1233 (8th Cir. 1974); United States v. Steele, 461 F.2d 1148, 1151 (9th Cir. 1972). See Snowden v. Hughes, 321 U.S. 1, 8, 64 S.Ct. 397, 88 L.Ed. 497 (1944). The exercise of protected First Amendment activities is included among those bases upon which discrimination is constitutionally impermissible. Falk, supra at 620; Steele, stipra at 1151; United States v. Crowthers, 456 F.2d 1074, 1080 (4th Cir. 1972). Defendants contend that the instant prosecutions are part of an effort by the government to selectively enforce the laws against those Indians who are members or sympathizers of the American Indian Movement (AIM). They further argue that the misconduct of" }, { "docid": "18455426", "title": "", "text": "a verdict of guilty on both counts was returned against all three defendants. Separate third counts against defendant Crow Dog in No. CR 75-18 and against defendant Camp in No. CR 75-20 were dismissed upon motion by the government subsequent to the jury’s verdict. Oral testimony and documentary evidence, including numerous in camera exhibits, were presented at a three-day hearing on defendants’ pre-trial motions. Affidavits ordered by the court to be submitted by the government have also been filed in connection with these motions. All motions are ripe for decision and are considered sequentially below. Motion to Dismiss for Discriminatory Prosecution Defendants move this court to dismiss the indictments against them on the grounds that prosecution of these charges has been instituted and continued in bad faith and on a constitutionally impermissible basis, and that the government has committed gross misconduct during the course of said prosecution. The motion relies upon defendants’ rights under the Fifth, Sixth, and Ninth Amendments to the United States Constitution, the Federal Rules of Criminal Procedure, and the inherent discretionary powers of the district courts. Discriminatory enforcement and application of a valid statute by state officials constitutes a denial of equal protection under the Fourteenth Amendment. Yick Wo v. Hopkins, 118 U.S. 356, 373-74, 6 S.Ct. 1064, 30 L.Ed. 220 (1886). While Yick Wo specifically involved unequal administration of a public ordinance by a city licensing board, the underlying principle has been held applicable to the actions of prosecutors and police officials. Two Guys from Harrison-Allentown, Inc. v. Mc-Ginley, 366 U.S. 582, 588, 81 S.Ct. 1135, 6 L.Ed.2d 551 (1961); United States v. Falk, 479 F.2d 616, 618 (7th Cir. 1973) ; Shock v. Tester, 405 F.2d 852, 855-56 (8th Cir. 1969). The Fourteenth Amendment’s prohibition against a state taking action which would “deny to any person within its jurisdiction the equal protection of the laws” restricts conduct of the federal government as well through the Fifth Amendment. Bolling v. Sharpe, 347 U. S. 497, 74 S.Ct. 693, 98 L.Ed. 884 (1954); Mow Sun Wong v. Hampton, 500 F.2d 1031, 1037-38 (9th Cir. 1974); Washington" }, { "docid": "11181788", "title": "", "text": "recognized that the enhancement of the aesthetic appeal of a community is a proper exercise of police power. Elliott, supra; City of Miami Beach v. Ocean & Inland Co., 1941, 147 Fla. 480, 3 So.2d 364; Merritt v. Peters, Fla., 1953, 65 So.2d 861; Sunad, Inc. v. City of Sarasota, Fla., 1960, 122 So.2d 611. For the value of scenic surroundings to tourists, prospective residents and commercial development cannot be overstated. But in an age in which the preservation of the quality of our environment has become such a national goal, a concern for aesthetics seems even more urgent. Cf. Zabel v. Tabb, supra; Note, 12 B.C.Ind. & Com.L.Rev. 674 (1971). Abandoned gas stations substantially detract from that environment, and the City was warranted in finding that the spacing requirements tend to reduce that threat. Thus the 350 yard distance requirement is constitutional. We hold that it was for the City Fathers, not the Founding Fathers, to make the judgments on what Maitland needed to meet the urban menace of blight. Their judgment is confirmed, and that of the Court below reversed. Reversed. . The frontage on 17-92 is 192.20 feet, on Horatio Avenue 134.68 feet. . At the time of trial the value of the property for use as a service station was $135,000 whereas its value for any other use would not exceed $75,000. . At that time the pertinent ordinance stated: “Section 1. No gasoline station or filling station or service station shall be erected within three hundred and fifty (350) yards of any church, hospital, school or any other such type of public assembly building used by large numbers of people and within three hundred and fifty (350) yards of an existing filling station or service station or gasoline station. The method of measurement that shall apply shall be the air line distance measured from the nearest boundary of the premises upon which there exists such churches, hospitals, schools, or other types of public assembly buildings or filling stations or service stations.” Zoning, Code of Ordinances, City of Mait-land, Florida § 6-7 (enacted March 24, 1961)." }, { "docid": "4092347", "title": "", "text": "show that they were the victims of discrimination by the City, the plaintiffs must demonstrate that the City actually adopted a system of allowing the two suburban-affiliated city livery companies to participate in the livery dispatch system. To do so, it is not enough for them to show that the City failed to enforce its ordinances “with Prussian thoroughness.” Hameetman v. City of Chicago, 776 F.2d 636, 641 (7th Cir.1985). They must establish that the City, through its officials in positions of policy-making authority, consciously administered the livery dispatch system so as to discriminate against them. See Wayte v. United States, 470 U.S. 598, 608, 105 S.Ct. 1524, 1531, 84 L.Ed.2d 547 (1985); Oyler v. Boles, 368 U.S. 448, 456, 82 S.Ct. 501, 505, 7 L.Ed.2d 446 (1962); Mahone v. Addicks Utility District of Harris County, 836 F.2d 921, 932 (5th Cir.1988) (“[T]he Su preme Court explained long ago [that] equal protection of the law requires not only that laws be equal on their face, but also that they be executed so as not to deny equality.”) (citing Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886)). The City has come very close to conceding that it did so. In its Local Rule 12(e) Statement of Material Facts Not in Dispute, the City stated that it would assume, for the purposes of its summary judgment motion, that City officials condoned the activity of those city liveries participating in the livery dispatch system, but that it did not concede this fact for trial. Then, in response to the plaintiffs’ Local Rule 12(e) statement in support of their own summary judgment motion, the City “admitted” as undisputed that a limited number of city liveries were permitted to use the livery dispatch system despite the ordinance prohibiting them from doing so. This admission could be read as establishing the City’s adoption of such a policy. Nevertheless, this court finds sufficient ambiguity in the City’s admission to preclude summary judgment at this stage. While the City admitted that certain city liveries were permitted to use the livery dispatch booths" }, { "docid": "14062899", "title": "", "text": "acts must be rational. In equal protection terms, if the legislative purpose be legitimate, a challenge “may not prevail so long as the question of rational relationship [to legislative purpose] is ‘at least debatable.’ ” Metropolitan Life Ins. Co. v. Ward, — U.S. -, 105 S.Ct. 1676, 1683, 84 L.Ed.2d 751 (1985) (quoting Western & S. Life Ins. Co. v. State Bd. of Equalization, 451 U.S. 648, 674, 101 S.Ct. 2070, 2086, 68 L.Ed.2d 514 (1981), and United States v. Carolene Products Co., 304 U.S. 144, 154, 58 S.Ct. 778, 784, 82 L.Ed. 1234 (1938)). Cf. City of New Orleans v. Dukes, 427 U.S. 297, 303-04, 96 S.Ct. 2513, 2516-17, 49 L.Ed.2d 511 (1976). When a legislature has a choice of means, each rationally related to its legislative purpose, it may constitutionally choose any of them. Its choice of one does not render the others irrational. It follows that acts violative of the chosen means, although by definition contrary to state law, are not ipso facto contrary to the fourteenth amendment. The constitutional test for rationality of a legislative classification, whether the classes be distinguished in the text of the law or in its administration, is whether any rational decisionmaker could have so classified. -2- The per se analysis is said to find its sustenance, at least in part, in Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886). See 755 F.2d at 433 & n. 8. Yick Wo, however, does not support the conclusion. In Yick Wo, a San Francisco ordinance required consent from the Board of Supervisors before one could operate a laundry in a building made of materials other than brick or stone. The Board granted permits for laundries in wooden buildings to all non-Chinese applicants save one, and to none of 200 Chinese applicants. 118 U.S. at 359, 6 S.Ct. at 1066. The Court reversed Yick Wo's conviction under the ordinance on the ground that, although the law was facially neutral, it had been applied so as to deny Chinese citizens equal protection of the laws. Id. at 362-63, 6 S.Ct." }, { "docid": "5937286", "title": "", "text": "same cannot necessarily be said with respect to the Zoning Ordinance, which takes the further step of completely prohibiting advertising signs in areas subject to regulation by HACA. The legitimacy of this provision under the decisions in Dingeman and Downers Grove is unclear. Although Dingeman distinguished Dolson on the basis that such a prohibition was not in issue in Dingeman, the court’s reasoning, on its face, would seem to apply to a prohibition as well as to mere size restrictions. In any event, the Court sees no need to reach this issue here. The size restrictions in the Sign Code were sufficient for the City to deny Scadron’s permit application; the question of whether or not the Zoning Ordinance is valid thus has no practical effect for Scadron. Furthermore, the issue concerns matters of state law alone. Under all of these circumstances, the Court sees no justification for offering an opinion on this matter. VI. DISCRIMINATORY APPLICATION OF ORDINANCES Remaining is Scadron’s argument that the City has granted permits to other advertising companies whose billboards are equally, if not more, violative of the zoning and sign ordinances and that this inconsistent treatment of permit applications constitutes a violation of Scadron’s constitutional rights under the equal protection clause. A statute which is valid on its face may violate the equal protection clause if it is applied in a discriminatory manner. See Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886). In order to state a claim that a zoning ordinance has been applied in violation of the equal protection clause, Scadron must allege that “the ordinance is applied or enforced with a discriminatory purpose.” Scudder v. Town of Greendale, 704 F.2d 999, 1002 (7th Cir. 1983). There must be allegations of “unfair and discriminatory conduct purposefully directed toward plaintiffs.” Id. at 1003, quoting Tarkowski v. Robert Bartlett Realty Co., 644 F.2d 1204, 1206 (7th Cir.1980). See also Orsinger Outdoor Advertising, Inc. v. Dept. of Highways, 752 P.2d 55, 62 (Colo.1988) (to prove violation of equal protection with respect to discriminatory enforcement of sign ordinance, plaintiff must" }, { "docid": "9798426", "title": "", "text": "case, that prohibited the location of an adult business within 1,000 feet of a church. The district court originally held that the ordinance was invalid, and the Ninth Circuit affirmed. Walnut Properties, Inc. v. City of Whittier, 762 F.2d 1020 (9th Cir.1985). The Supreme Court, however, issued its opinion in Renton shortly thereafter and then remanded the case for reconsideration in light of Renton. City of Whittier v. Walnut Properties, Inc., 475 U.S. 1042, 106 S.Ct. 1255, 89 L.Ed.2d 566 (1986). The opinion cited by International Eateries was the order by the Ninth Circuit remanding the case to the district court. In its instructions to the district court, the court stated: “[T]he City’s interest in preventing urban blight and downgrading of residential and commercial properties might logically support the ordinance’s requirement that adult businesses be 1,000 feet apart, but it might not support the requirement that they be 1,000 feet from a church.” Walnut Properties, 808 F.2d at 1335. This statement was merely one of several comments made by the court to guide the district court’s analysis. The court was not ruling on the church distance requirement. After remand to the district court, the district court again held the ordinance invalid, and the Ninth Circuit affirmed. Walnut Properties, Inc. v. City of Whittier, 861 F.2d 1102, 1107-10 (9th Cir.1988), cert. denied, 490 U.S. 1006, 109 S.Ct. 1641, 104 L.Ed.2d 157 (1989). The appellate court specifically limited its holding, stating that it was based entirely on the fact that there were not adequate alternative locations in the city for adult businesses. Id. Thus, contrary to International Eateries’ assertion, the case does not stand for the proposition that a 1,000-foot church distance ordinance is excessive. Rather, the case simply follows the Renton analysis, holding that where there are not sufficient alternative locations, an ordinance zoning adult businesses is invalid. We therefore hold that in this case the ordinances are narrowly tailored to serve their purpose. C Finally, unlike the ordinance in Walnut Properties, the Broward County ordinances allow for reasonable alternative avenues of communication. It is undisputed that there are twenty-six other" }, { "docid": "4094528", "title": "", "text": "that the 17-year-old restriction is allegedly not enforced against another amusement machine establishment. Courts have, of course, found an equal protection violation where an ordinance, valid on its face, was administered in a discriminatory manner, Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886). In this case, Plaintiffs claim is that the age restriction is not enforced against an amusement center known as Fun Fair which is located in the Big Town Shopping Center in Mesquite. It would appear, however, that Fun Fair may have qualified as an amusement center located in an enclosed mall within the terms of the April 5, 1976, ordinance and, therefore, have been exempt from the age restriction from April 5, 1976, until the amended ordinance in question was enacted on February 7, 1977. Because enforcement of the February 7, 1977, ordinance has been enjoined by this Court since February 11, 1977, there were less than four days from April 5, 1976, to the present within which the City of Mesquite had an opportunity to enforce the age restriction against Fun Fair. Upon this record, therefore, we are unable to find that the age restriction has been enforced in a discriminatory manner so as to-raise a constitutional question under the Equal Protection Clause of the Fourteenth Amendment. Plaintiff also argues that the ordinance violates the Equal Protection Clause by failing to distinguish between its establishment and the Fun Fair establishment. The argument here is that A.C.I.’s establishment is supervised by an adult who enforces company rules against gambling, smoking, drinking and eating on the premises while no manager is regularly on duty at Fun Fair. We are unable to find any precedent for so holding and are of the opinion that it would be impossible for states and municipalities to custom-tailor every regulatory ordinance to take into account the mode of operation, skill and trustworthiness of each person subject to regulation. Counsel for Defendant is requested to prepare and submit appropriate form of judgment, approved as to form by counsel for Plaintiff. Costs of this action are to be taxed" }, { "docid": "4094527", "title": "", "text": "and are limited to analyzing whether the ordinance is unconstitutional on its face or as applied. As Justice Black observed, “. . . it is extremely difficult for a court to ascertain the motivation, or collection of different motivations, that lie behind a legislative enactment . It is difficult or impossible for any court to determine the ‘sole’ or ‘dominant’ motivation behind the choices of a group of legislators.” Palmer v. Thompson, 403 U.S. 217, 224-225, 91 S.Ct. 1940, 1945, 29 L.Ed.2d 438 (1971). Plaintiff next argues that under the facts of this case, the City should be es-topped to enforce the ordinance. Federal courts have consistently held, however, that State and local governments cannot be es-topped from exercising their police power, see, e. g. Texas & New Orleans Railroad Company v. Miller, 221 U.S. 408, 31 S.Ct. 534, 55 L.Ed. 789 (1911) and Sanitary District of Chicago v. United States, 266 U.S. 405, 45 S.Ct. 176, 69 L.Ed. 352 (1925). A.C.I. further contends that the ordinance denies it equal protection of the law in that the 17-year-old restriction is allegedly not enforced against another amusement machine establishment. Courts have, of course, found an equal protection violation where an ordinance, valid on its face, was administered in a discriminatory manner, Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886). In this case, Plaintiffs claim is that the age restriction is not enforced against an amusement center known as Fun Fair which is located in the Big Town Shopping Center in Mesquite. It would appear, however, that Fun Fair may have qualified as an amusement center located in an enclosed mall within the terms of the April 5, 1976, ordinance and, therefore, have been exempt from the age restriction from April 5, 1976, until the amended ordinance in question was enacted on February 7, 1977. Because enforcement of the February 7, 1977, ordinance has been enjoined by this Court since February 11, 1977, there were less than four days from April 5, 1976, to the present within which the City of Mesquite had an opportunity to" }, { "docid": "16423885", "title": "", "text": "to regulate SOBs. In 1977, the City enacted Ordinances 77-1259 and 77-1260, which prohibited the operation of adult commercial establishments within 2,000 feet of any church, school, or other educational or charitable institution. N.W. Enters., Inc., 27 F.Supp.2d at 770. This ordinance was struck down by a federal district court on First and Fourteenth Amendment grounds; on appeal this court did not reach the constitutional issues. Id. The City of Houston enacted new ordinances in 1983, 1985, 1986, 1991, and 1997. Under the 1985 version of the ordinance (as amended in 1986), SOBs were prohibited from operating within 750 feet of a school, church or place of worship, or daycare center; or within 1,000 feet of any other SOB, or on any other tract of land for which seventy-five percent or more of the tracts within a 1,000-foot radius were residential. Id. The 1985/1986 ordinance also regulated the exterior decor and signage of SOBs. Id. These regulations were upheld against various constitutional challenges in SDJ, Inc. v. City of Houston, 837 F.2d 1268 (5th Cir.1988), cert. denied sub nom., M.E.F. Enters., Inc. v. City of Houston, 489 U.S. 1052, 109 S.Ct. 1310, 103 L.Ed.2d 579 (1989). Ordinance 97-75 was enacted on January 15, 1997. It significantly amended Houston’s ordinances governing SOBs. Several aspects of 97-75 are challenged in this case: (1) the increase in the minimum distance from 750 feet to 1,500 feet between an SOB and protected land uses; (2) the addition of public parks to the list of protected land uses; (3) the increased importance of multi-family dwellings in determining whether an area is at least seventy-five percent residential; (4) regulations of “adult mini-theatres”; (5) delayed implementation and amortization provisions; (6) added restrictions on exterior signs; (7) added requirements regarding interior lighting, design and layout; and (8) licensing of managers and entertainers. The appellees filed suit a week after the ordinance was enacted. In 1998, the district court granted summary judgment on most of the issues in the case. The district court held that the portion of the ordinance increasing the distance requirements was an unconstitutional content-based regulation" }, { "docid": "14456988", "title": "", "text": "because it has a racially disproportionate impact.” . Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976), suggests that “principles of federalism” which restrain federal courts from enjoining state judicial proceedings may also restrict the availability of federal injunctive relief against state and local agencies. Developments in the Law, — Civil Rights Acts, 90 Harv. L.Rev. 238-47 (1976). BUTZNER, Circuit Judge, dissenting: I dissent because the record discloses a genuine issue of material fact within the meaning of Rule 56 of the Federal Rules of Civil Procedure. Therefore, the district court erred in granting summary judgment. In Yick Wo v. Hopkins, 118 U.S. 356, 373-74, 6 S.Ct. 1064, 1073, 30 L.Ed. 220 (1886), the court said: Though the law itself be fair on its face and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the Constitution. The allegations of racial discrimination in Esther Butler’s pro se complaint, supplemented by the records of the Portsmouth police department and her affidavits, disclose facts which, if proven at trial, would constitute a violation of the fourteenth amendment’s equal protection clause as interpreted in Yick Wo. The police arrested Butler, a fifty-year-old widow, for selling two cans of beer in her home. She was charged with selling alcoholic beverages in violation of state law and with maintaining a disorderly house in violation of a city ordinance. On three occasions she appeared in court, accompanied by her counsel and a privately engaged court reporter. Each time, the case was continued on motion of the prosecution over her objection. After the last continuance, a police officer suggested that she plead guilty to a lesser offense. Upon her refusal, she was convicted in the magistrate’s court, fined $200, and sentenced to 60 days in jail. Ultimately, the case was dismissed on appeal because the police failed to file the search warrant" }, { "docid": "22468160", "title": "", "text": "acquittal on count one on the ground that there had been no basis in fact for denying Falk classification as a conscientious objector. He received three consecutive one year sentences on the card-carrying counts. On appeal, a panel of this court affirmed Falk’s conviction, one judge dissenting. United States v. Falk, 472 F.2d 1101 (7th Cir. 1972). A petition for rehearing en banc was granted, in which the principal issue was the alleged discriminatory prosecutorial purpose in seeking the indictment. We have concluded that Falk is entitled to a hearing on his charge of an improper purpose. We accordingly reverse. The Fourteenth Amendment prohibits any state from taking action which would “deny to any person within its jurisdiction the equal protection of the laws.” This admonition is applicable to the federal government through the Fifth Amendment. Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884 (1954); Washington v. United States, 130 U.S.App.D.C. 374, 401 F. 2d 915, 922 (1968). The promise of equal protection of the laws is not limited to the enactment of fair and impartial legislation, but necessarily extends to the application of these laws. The basic principle was stated long ago in Yick Wo v. Hopkins, 118 U.S. 356, 373-374, 6 S.Ct. 1064, 1073, 30 L.Ed. 220 (1886): “Though the law itself be fair on its face and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discrimina-tions between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the Constitution.” The city ordinance for which violation Yick Wo was convicted made it unlawful for any person to maintain a laundry in the city of San Francisco without first obtaining the permission of the board of supervisors unless the laundry were located in a building constructed of brick or stone. Although the statute was, on its face, a fair and reasonable exercise of the police power, the facts showed that principally Chinese were refused permission" }, { "docid": "18143847", "title": "", "text": "applied. Thus, though the bylaws prohibited a non resident of San Diego county from being a director, suppose the directors had elected one or more non resident directors while refusing to hold that plaintiff’s nominees were qualified. (a) Generally Yick Wo v. Hopkins, (1886), 118 U.S. 356, 68 S.Ct. 1064, 30 L.Ed. 220. In 1880 the City of San Francisco enacted an ordinance regulating laundries. The ordinance on its face appeared to apply to all laundrymen. But Yick Wo, a Chinese laundryman attacked the ordinance on the ground that, although apparently reasonable and constitutional on its face, it had been unconstitutionally applied only to Chinese laundrymen and not to other laundrymen. The Supreme Court reversed the conviction on the ground, not that the statute was unconstitutional on its face, but that the proof showed it had been unconstitutionally applied. Thus, Yick Wo, who would have left the world unnoticed, achieved immortality because of Yick Wo v. Hopkins, and his case will be cited again and again. The court said at 118 U.S. 373, 6 S.Ct. 1073: “ * * * Though the law itself be fair on its face, and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the constitution. * * * ” (Emphasis added). There is utterly no showing of any such unreasonable application or threat of application of the bylaws or any such discrimination or threat of discrimination. So far as the record shows, the new bylaws will be applied fairly and reasonably and without discrimination as to any party. We find no ground for relief on this ground. (b) Were the bylaws unreasonably applied in that there was insufficient time available to renominate directors who could qualify under the Amended Bylaws? The election of directors was set for January 25,1967. Nominations were required to be made on or before January 11, 1967. Plaintiff first" } ]

[ { "docid": "8766048", "title": "", "text": "by the defendant. As a result, the number of motor vehicles which the defendant received was reduced, and defendant was constrained to reduce the allotment which had been established for the plaintiff. But the defendant maintained the former ratio between associate dealers. In view of all the testimony, especially the testimony of former officers of the defendant company, who are not now associated with the defendant, the court is unable to say that the conduct of the defendant toward the plaintiff at that time was unfair or unjust. The agreement between the parties, and the working arrangement, placed the direct dealer in competition with his associate dealers to some extent. That fact was accepted by the parties. The arrangement did not create that kind of fiduciary relation or trusteeship which forbids any self-interest or self-consideration. In view of the unexpected developments resulting from the war, the nature of the contract which the parties made, and the change of sales policy by the manufacturer, it was permissible for the defendant to consider its own preservation in business. In the circumstances, all that the plaintiff could do was what he ultimately did — become a direct dealer himself. He cannot impose upon the defendant all the losses which he suffered as a result of conditions for which neither party was responsible, and as to which their contract made no provision. Furthermore, the termination agreement (Defendant’s Exhibit No. 6), in the opinion of the court, is fatal to plaintiff’s claims. An agreement terminating a former contract terminates all claims based on the former contract, unless exceptions are expressly made. In this instance, there were no exceptions. The former contract, and all claims arising therefrom, came to an end when the termination agreement was executed on the 31st day of May, 1949 — that was its purpose. Juniper Lumber Co. v. John M. Nelson, Jr., 133 Va. 146, 112 S.E. 564, 24 A.L.R. 247; Durasteel Co. v. Great Lakes Steel Corp., 8 Cir., 1953, 205 F.2d 438. The plaintiff’s claims, therefore, can not be sustained. Complaint dismissed at costs of plaintiff." } ]

[ { "docid": "21408288", "title": "", "text": "10, 1955. . Tr. 764-765. . Oonn.Gen.Stat §§ 38-98 and 38-99 (1958). . Plaintiffs’ Exhibits 6, 7 and 8. . Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962). . 3 Moore’s Federal Practice If 15.13, at 994 (2d ed. 1964). See Albert v. Joralemon, 271 F.2d 236, 241 (9 Cir. 1959); Hall v. National Supply Company, 270 F.2d 379, 383 (5 Cir. 1959); Vogrin v. Hedstrom, 220 F.2d 863, 866-867 (8 Cir. 1955), cert. denied, 350 U.S. 845, 76 S. Ct. 86, 100 L.Ed. 753 (1955). Cf. Oscanyan v. Arms Company, 103 U.S. 261, 26 L.Ed. 539 (1880) (verdict for defendant directed after opening statement of plaintiff’s counsel showed that contract on which suit was brought was void, although its invalidity had not been specially pleaded) ; Bucky v. Sebo, 208 F.2d 304, 305 (2 Cir. 1953) (“brief reference” by counsel to an issue not even suggested in pleadings held sufficient to authorize trial judge to consider that issue under Buie 15(b)). . 3 Moore’s, op.cit. supra note 12, If 15.13 [2], at 987. . 2 Moore’s, op.cit. supra note 12, If 8.27 [3], at 1851. . 2 Moore’s op. cit. supra note 12, If 8.27 [3], at 1853. See Knudson v. Boren, 261 F.2d 15, 19 (10 Cir. 1958) ; Farm Bureau Co-op. Mill & Supply v. Blue Star Foods, 238 F.2d 326, 332-333 (8 Cir. 1956); Joyce v. L. P. Steuart, Inc., 227 F.2d 407, 408-409 (D.C.Cir. 1955). . 2 Moore’s, op.cit. supra note 12, 1f 8.02, at 1611. . See Holley Coal Company v. Globe Indemnity Company, 186 F.2d 291, 295 (4 Cir. 1950); Mitchell v. White Consolidated, Inc., 177 F.2d 500, 502-503 (7 Cir. 1949), cert. denied, 339 U.S. 913, 70 S. Ct. 574, 94 L.Ed. 1339 (1950), and eases cited in notes 12 and 15 supra. . Rule 15(b), Fed.B.Civ.P. . Underwriters Salvage Company of New York v. Davis & Shaw Furniture Company, 198 F.2d 450, 453 (10 Cir. 1952); accord, Knudson v. Boren, supra note 15, at 19. . Supra p. 128. . See Annot, “Applicability Of" }, { "docid": "6778655", "title": "", "text": "excluded it and adjudicated only the rights of Midwest and the Bergs. See Berg v. Midwest Laundry Equipment Corporation (Berg I), supra. In our view to accept appellees’ position would expressly contravene the judgment of the Nebraska court that its determination in no way bound Industrial. Appellees, moreover, cannot predicate their argument that Industrial is in privity to the determination of Midwest’s rights in the contract solely on the fact that Industrial was an assignee of that contract. What appellees fail to acknowledge is the point in time at which Industrial acquired its interest under the contract. The term “privity” refers to a mutual or successive relationship to the same interest in property. Consumers Public Power Dist. v. Eldred, 146 Neb. 926, 22 N.W.2d 188, 194 (1946). Ordinarily, a person in privity with a party to a lawsuit, in the sense that he will be bound by a judgment for or against that party under principles of res judicata or collateral estoppel, must acquire his interest in the transaction after commencement of the action or rendition of the judgment. See, e. g., Lesser v. Migden, 328 F.2d 47, 50 (2d Cir. 1964); United States v. New York Terminal Warehouse Co., 233 F.2d 238, 240 (5th Cir. 1956) ; Tillman v. National City Bank of New York, 118 F.2d 631, 633-634 (2d Cir. 1941), cert, denied, 314 U.S. 650, 62 S.Ct. 96, 86 L.Ed. 521 (1941); Walter E. Heller & Company v. Mall, Inc., 267 F.Supp. 343, 350-351 (E.D.La.1967) ; Savini v. Sheriff of Nassau County, 209 F.Supp. 946, 951-952 (E.D.N.Y.1962). Similarly if an assignee’s interest attaches prior to the litigation, he is not, absent other circumstances establishing a privity relationship, regarded as in privity with his assignor so as to be affected by a judgment against the latter with respect to that interest, unless he has been made a party to that judgment. Restatement, Judgments § 89 (1942); 1 Freeman, Judgments §§ 439-40 (5th ed. 1925); Wight v. Chandler, 264 F.2d 249, 253 (10th Cir. 1959); National Lead Co. v. Nulsen, 131 F.2d 51, 56-57 (8th Cir. 1942), cert denied," }, { "docid": "15099188", "title": "", "text": "Cir. 1976). On the other hand, if the request apprises the court of a point upon which the jury may need instruction, the court’s failure to so charge may not be excused by technical defects in the request. Dahlgren v. United States, 553 F.2d 434, 440 (5th Cir. 1977); Ullman v. Overnite Transp. Co., 508 F.2d 676, 677 (5th Cir. 1975). The judge generally has a duty to frame a requested instruction properly and to submit it to the jury where the legal principle is necessary to the proper determination of the case. Chavez v. Sears, Roebuck & Co., 525 F.2d 827, 830 (10th Cir. 1975). . The defense of estoppel must be set forth affirmatively in pleading to a preceding pleading. Fed.R.Civ.P. 8(c) (1966). Consequently, an affirmative defense that is not asserted in a responsive pleading is generally deemed waived. Funding Sys. Leasing Corp. v. Pugh, 530 F.2d 91, 95 (5th Cir. 1976); United States v. Indus. Crane & Mfg. Corp., 492 F.2d 772, 774 (5th Cir. 1974). Even so, in practice an affirmative defense is not waived to the extent that the party who should have pled the defense introduces evidence in support thereof without objection by the adverse party or that the opposing party’s own evidence discloses the defense, necessarily indicating his express consent. Fed. Sav. & Loan Ins. Corp. v. Hogan, 476 F.2d 1182, 1187 (7th Cir. 1973); Radio Corp. of America v. Radio Station KYFM, Inc., 424 F.2d 14, 17 (10th Cir. 1970). See 2A Moore’s Federal Practice *f| 8.27[3] (2d Ed. 1981). Neglect to affirmatively plead the defense is simply noncompliance with a technicality and does not constitute a waiver where there is no claim of surprise. Tillman v. Nat’l City Bank of New York, 118 F.2d 631, 635 (2d Cir. 1941). In this case, there was evidence, admitted without objection in the trial court, that Jones entered into a subsequent amended stock agreement with the appellants on February 27, 1977, and that prior to that time Jones knew that facts material to the transaction were not as he had originally believed them to" }, { "docid": "18346392", "title": "", "text": "L.Ed. 607; Stewart-Jordan Distributing Co. v. Tobin, 5 Cir., 1954, 210 F. 2d 427, certiorari denied Stewart-Jordan Distributing Company, Inc. v. Mitchell, 1954, 347 U.S. 1013, 74 S.Ct. 866, 98 L.Ed. 1136; North Shore Corp. v. Barnett, 5 Cir., 1944, 143 F.2d 172, 175, citing with approval Schmidt v. Peoples Telephone Union of Maryville, Mo., 8 Cir., 1943, 138 F.2d 13, 15; Foremost Dairies, Inc. v. Ivey, 5 Cir., 1953, 204 F.2d 186; Mitchell v. Royal Baking Co., 5 Cir., 1955, 219 F.2d 532, 534. . Mitchell v. Raines, 5 Cir., 1956, 238 F.2d 186; Tobin v. Celery City Printing Co., 5 Cir., 1952, 197 F.2d 228; Schulte, Inc. v. Gangi, 1946, 328 U.S. 108, 66 S.Ct. 925, 90 L.Ed. 1114; Warren-Bradshaw Drilling Co. v. Hall, 1942, 317 U.S. 88, 63 S.Ct. 125, 87 L.Ed. 83, affirming 5 Cir., 1941, 124 F.2d 42; Southern Advance Bag & Paper Co. v. United States, 5 Cir., 1943, 133 F.2d 449; Fleming v. Enterprise Box Co., D.C.S.D.Fla., 1941, 37 F.Supp. 331, affirmed, 5 Cir., 1942, 125 F.2d 897, certiorari denied Enterprise Box Co. v. Holland, 1942, 316 U.S. 704, 62 S.Ct. 1312, 86 L.Ed. 1772; United States v. Darby, 1941, 312 U.S. 100, 118, 61 S.Ct. 451, 85 L.Ed. 609. . See, e. g., Mitchell v. Joyce Agency, Inc., 1955, 348 U.S. 945, 75 S.Ct. 436, 99 L.Ed. 740, reversing, 7 Cir., .1954, 211 F.2d 241, affirming, sub. nom. Durkin v. Joyce Agency, Inc., D.C.N.D.Ill.1953, 110 F.Supp. 918; Russell Co. v. McComb 5 Cir., 1951, 187 F.2d ,524; Mitchell v. Strickland Transportation Co., 5 Cir., 1955, 228 F.2d 124, 127. See also Wecht, Wage-Hour Law 307, n. 962 (1951). In view of this considerable-body of law we think that Rogers v. Glazer, D.C.W.D.Mo.1940, 32 F.Supp. 990, so heavily relied on by Employer, must now be looked upon as a case of “another vintage,” Mitchell v. C. W. Vollmer & Co., 1955, 349 U.S. 427, 429, 434, 75 S.Ct. 860, 861, 864, 99 L.Ed. 1196, 1200, so that as a precedent it has little, if any, vitality." }, { "docid": "7759131", "title": "", "text": "of which the contempt proceedings arose. However, in an abundance of caution and to avoid any possible confusion, it is hereby Ordered that deportation and/or exclusion of the plaintiff is stayed pending disposition of any appeal of the above order as well as any appeal taken in the main action. . See N.D.Cal. Rule 21, West’s Ann.Oode. . All times noted are of course approximate. . As has been stated, the date of April 4, written in on the face of the judgment, was erroneous. This is shown by the clerk’s file stamp on the judgment as well as by the docket entries. Accordingly, the docket entry date of April 3 would probably be controlling. Cf. Colvin v. Woods, infra. . See Fed.R.Civ.P. 62(b), 28 U.S.C.A.; Saikevicz v. Blazo, D.C.D.Mass.1946, 7 F.R.D. 114; 7 Moore, Federal Practice, para. 62.04 n. 4(2d ed. 1955) (hereafter cited as Moore). Likewise it would appear that neither would the motion have this effect on a judgment granting affirmative injunctive relief. See Fed.R.Civ.P. 62(b); cf. id. 62(a), (c); 7 Moore para. 62.04, 62.03. . Fed.R.Civ.P. 62(a); see Aron v. Snyder, 1952, 90 U.S.App.D.C. 325, 196 F.2d 38, 40; 7 Moore para. 62.03. . See Fed.R.Civ.P. 62(a), 73(a); In re Snyder, D.C.N.D.W.Va.1940, 32 F.Supp. 903; 7 Moore para. 62.03. . Fed.R.Civ.P. 73(a); Reconstruction Finance Corp. v. Mouat, 9 Cir., 1950, 184 F.2d 44, 48; 5 Moore para. 52.11 [3]; 7 Moore para. 73.09[4]. . See Fed.R.Civ.P. 73(a); Fiske v. Wallace, 8 Cir., 1940, 115 F.2d 1003, certiorari denied 1941, 314 U.S. 663, 62 S.Ct. 123, 86 L.Ed. 531; 5 Moore para. 52.11 [1]; 7 Moore para. 73.09[1] at 3136, 73.09 [4] at 3143; cf. Isgrig v. United States, 4 Cir., 1940, 109 F.2d 131, 134. . And would begin anew upon the court's disposition of the motion. Fed.R.Civ.P. 73(a). . See, e. g., Irish v. United States, 9 Cir., 1955, 225 F.2d 3, 8; Skelly Oil Co. v. Holloway, 8 Cir., 1948, 171 F.2d 670, 673; Continental Illinois National Bank & Trust Co. of Chicago v. Ehrhart, 6 Cir., 1942, 127 F.2d 341, 343; Goodacre v." }, { "docid": "6778656", "title": "", "text": "rendition of the judgment. See, e. g., Lesser v. Migden, 328 F.2d 47, 50 (2d Cir. 1964); United States v. New York Terminal Warehouse Co., 233 F.2d 238, 240 (5th Cir. 1956) ; Tillman v. National City Bank of New York, 118 F.2d 631, 633-634 (2d Cir. 1941), cert, denied, 314 U.S. 650, 62 S.Ct. 96, 86 L.Ed. 521 (1941); Walter E. Heller & Company v. Mall, Inc., 267 F.Supp. 343, 350-351 (E.D.La.1967) ; Savini v. Sheriff of Nassau County, 209 F.Supp. 946, 951-952 (E.D.N.Y.1962). Similarly if an assignee’s interest attaches prior to the litigation, he is not, absent other circumstances establishing a privity relationship, regarded as in privity with his assignor so as to be affected by a judgment against the latter with respect to that interest, unless he has been made a party to that judgment. Restatement, Judgments § 89 (1942); 1 Freeman, Judgments §§ 439-40 (5th ed. 1925); Wight v. Chandler, 264 F.2d 249, 253 (10th Cir. 1959); National Lead Co. v. Nulsen, 131 F.2d 51, 56-57 (8th Cir. 1942), cert denied, 318 U.S. 758, 63 S.Ct. 533, 87 L.Ed. 1131 (1943); Vasu v. Kohlers, Inc., 145 Ohio St. 321, 61 N.E.2d 707, 719, 166 A.L.R. 855 (1945) ; cf. Chase National Bank v. City of Norwalk, 291 U.S. 431, 438, 54 S.Ct. 475, 78 L.Ed. 894 (1934); Old Colony Trust Co. v. City of Omaha, 230 U.S. 100, 122, 33 S.Ct. 967, 57 L.Ed. 1410 (1913); Henschke v. Christian, 228 Minn. 142, 36 N.W.2d 547, 550 (1949). In this case Industrial as assignee concededly acquired its interest in the Berg installment contract prior to the litigation in Berg I. We are mindful ■that there conceivably may be situations where an assignee is in privity to the adjudication of his assignor’s rights, even though he occupied that status prior to the adjudication. If the facts, for example, had disclosed that Midwest had acted throughout this transaction as agent for Industrial or in collusion with it, a different determination might well be warranted. The district court, however, made no findings of fact on the issue of privity. We" }, { "docid": "2164709", "title": "", "text": "acceptance were superseded by a percentage method of distribution.” This finding, amply supported by the record, makes clear that modification of the agreement did not affect the provision in the 1940 contract that “termination * * * shall operate as a cancellation of all unfilled orders * * Joyce’s case for establishing a contractual obligation under the percentage method of distribution is dependent upon his contention that the allotment was “treated as binding order and acceptance” for nine per cent of the cars whieh Steuart received from the manufacturer. Under this contention, assuming its validity arguendo, the undelivered four per cent would constitute “unfilled orders” which, by express provision in the original 1940 contract, were cancelled by the termination agreement. No comparable express provision was involved in the cases upon which Joyce relies to argue that a termination agreement, unlike a rescission, merely concludes the relationship of the parties infuturo, leaving intact all claims for breaches committed in the past. In this court Joyce asserts, for the first time, that the termination agreement is not available as a defense because it is matter constituting an avoidance or affirmative defense which Steuart failed to plead affirmatively as required by Rule 8(c) of the Federal Rules of Civil Procedure, 28 U.S.C. Assuming the rule is applicable, Joyce must be deemed to have waived any objections to Steuart’s failure to comply. The termination agreement was introduced in evidence at the trial without objection. In addition, its legal effect was argued to the court by both parties orally and in written briefs. Hence Joyce cannot be heard now to complain that he was prejudiced by surprise. Affirmed. . Joyce v. Steuart, Inc., D.C.D.C.1954, 121 F.Supp. 12. . See Durasteel Co. v. Great Lake Steel Corp., 8 Cir., 1953, 205 F.2d 438. . E. g., Grant v. Aerodraulics Co., 1949, 91 Cal.App.2d 68, 204,P.2d 683; Tharpe v. Tracy, La.App.1949, 40 So.2d 509, judgment adhered to La.App.1950, 47 So. 2d 336. . See Jack Mann Chevrolet Co. v. Associates Inv. Co., 6 Cir., 1942, 125 F.2d 778, 784. . 2 Moore, Federal Practice 1695-96 (2d ed." }, { "docid": "7999327", "title": "", "text": "221, 36 S.Ct. 70, 60 L.Ed. 238; Ackerlind v. United States, 240 U.S. 531, 36 S.Ct. 438, 60 L.Ed. 783; Iowa-Wisconsin Bridge Co. v. United States, 84 F.Supp. 852, 114 Ct.Cl. 464, 504; certiorari denied, 339 U.S. 982, 70 S.Ct. 1020, 94 L.Ed. 1386; Heid Brothers v. United States, 63 Ct.Cl. 392. “This court may exercise equity jurisdiction to the extent of reforming contracts and base its, decree upon the contract as reformed.” Pocono Pines Assembly Hotels Co. v. United States, 73 Ct.Cl. 447, 482. Plaintiff argues that the sole remedy of defendant, on’its contention that the lease as written did not state the true contract, is a Bill in Equity to reform the contract. We are of the opinion that there is no sound reason, where' the ground f'or reformation is established by clear and convincing evidence, Ivinson v. Hutton, 98 U. S. 79, 25 L.Ed. 66; Adams v. Henderson, 168 U.S. 573, 18 S.Ct. 179, 42 L.Ed. 584; why reformation should not, in a suit in this court on the .contract be available to the Government as a defense. Metropolitan Casualty Ins. Co. v. Friedley, D.C., 79 F.Supp. 978; 5 Williston on Contracts, Rev. Ed., Sec. 1599; see also Fitch v. Lomay, Tex.Com.App., 16 S.W.2d 530, 66 A.L.R. 763. The granting by this court of such relief in proper cases, to either party, promotes substantial justice according to the merits of the case. Plaintiff finally contends that defendant, by filing a general traverse to the petition in the instant case, has waived its right to assert the defense. There is no merit to this position. If we assume, however, that the defense should have been specially pleaded, as plaintiff argues, failure to do so is immaterial where, as here, evidence of the defense was introduced and not objected to for failure to plead it, and no surprise is claimed. American Casualty Co. of Reading, Pa. v. Morris, D.C., 51 F. Supp. 889, affirmed, Simon v. American Casualty Co. of Reading, Pa., 4 Cir., 146 F.2d 208; Tillman v. National City Bank of New York, 2 Cir., 118 F.2d" }, { "docid": "22458611", "title": "", "text": "case at one time. He cannot even split up his claim * * * and, a fortiori, he cannot divide the grounds of recovery.” To the same effect, see Grubb v. Public Utilities Comm’n. of Ohio, 1930, 281 U.S. 470, 478, 50 S.Ct. 374, 74 L.Ed. 972; Baltimore S. S. Co. v. Phillips, 1927, 274 U.S. 316, 321, 325, 47 S.Ct. 600, 71 L.Ed. 1069; Restatement, Judgments § 63 (1942). . See Fed. Rules Civ.Proc., 10(b). Hansen Packing Co. v. Armour & Co., D.C.S.D.N.Y.1936, 16 F.Supp. 784, 787; see La Chappelle v. United Shoe Machinery Corp., D.C.Mass.1936, 13 F.Supp. 939; cf. Original Ballot Russe, Ltd. v. Ballet Theatre, Inc., 2 Cir.1943, 133 F.2d 187; Buckeye Powder Co. v. E. I. Du Pont de Nemours Powder Co., 1918, 248 U.S. 55, 39 S.Ct. 38, 63 L.Ed. 123. . See Hurn v. Oursler, 1933, 289 U.S. 238, 247, 53 S.Ct. 586, 77 L.Ed. 1148; United States v. Memphis Cotton Oil Co., 1933, 288 U.S. 62, 68, 53 S.Ct. 278, 77 L.Ed. 619; Collins v. Metro-Goldwyn Pictures Corp., 2 Cir.1949, 106 F.2d 83, 86-87; Restatement, Judgments, p. 239 (1942); Cleary, Res Judicata Reexamined, 57 Yale L.J. 339, 341 (1948). . Momand v. Universal Film Exchanges, D.C.Mass.1942, 43 F.Supp. 996, 1006, affirmed, 1 Cir.1948, 172 F.2d 37, 49, certiorari denied, 1949, 336 U.S. 967, 69 S.Ct. 939, 93 L.Ed. 1118; Bluefields S. S. Co. v. United Fruit Co., 3 Cir.1917, 243 F. 1, 20, dismissed per stipulation, 1919, 248 U.S. 595, 39 S.Ct. 136, 63 L.Ed. 438; Burnham Chemical Co. v. Borax Consolidated, Ltd., 9 Cir.1948, 170 F.2d 569, 578, certiorari denied 1949, 336 U.S. 924, 69 S.Ct. 655, 93 L.Ed. 1086; Northern Kentucky Telephone Co. v. Southern Bell Telephone & Telegraph Co., 6 Cir.1934, 73 F.2d 333, 335, certiorari denied 1935, 294 U.S. 719, 55 S.Ct. 546, 79 L.Ed. 1251. . Moore, Federal Practice § 2.08[6] (2d ed. 1948); Clark, Code Pleading, pp. 144, 472-90 (2d ed. 1947). See Hopkins v. Lee, 1821, 6 Wheat. 108, 112, 5 L.Ed. 218; Young v. Black, ISIS, 7 Cranch 565, 507, 3 L.Ed. 440; Columb v." }, { "docid": "7563110", "title": "", "text": "judiciary as a “reasonable measure calculated to save individuals and courts from the waste and burden of relitigating old issues.” Tillman v. National City Bank of N. Y., 118 F.2d 631, 634 (2 Cir.), cert. denied 314 U.S. 650, 62 S.Ct. 96, 86 L.Ed. 521 (1941). Collateral estoppel is confined, however, to “situations where the matter raised in the second suit is identical in all respects with that decided in the first- proceeding and where the controlling facts and applicable legal rules remain unchanged.” Commissioner of Internal Revenue v. Sunnen, 333 U.S. 591, 599-600, 68 S.Ct. 715, 720, 92 L.Ed. 898 (1948). Even if the issue is identical and the facts remain constant, the adjudication in the first ease does not estop the parties in the second, unless the matter raised in the second case involves substantially “the same bundle of legal principles that contributed to the rendering of the first judgment.” Id. at 602, 68 S.Ct. at 721. Cf. Ashe v. Swenson, 397 U.S, 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970). The Court, therefore, held in Sunnen that a change in the applicable law between the first suit and the second prevented the operation of collateral estoppel. Usually the doctrine has its application in situations involving two civil causes of action, but a criminal judgment which is final may have collateral estoppel effect in a subsequent civil suit involving an identical issue. See, e.g., Emich Motors Corp. v. General Motors Corp., 340 U.S. 558, 568-569, 71 S.Ct. 408, 95 L.Ed. 534 (1951); IB J. Moore, supra, ¶ 0.418 [1]. For example, courts have held that a taxpayer, who is convicted of a willful attempt to defeat or evade a particular tax, is estopped in a subsequent civil proceeding from contesting the issue of deficiency of payment due to fraud. See Moore v. United States, 360 F.2d 353 (4 Cir. 1965), cert. denied 385 U.S. 1001, 87 S.Ct. 704, 17 L.Ed.2d 541 (1967); Amos v. Commissioner of Internal Revenue, 360 F.2d 358 (4 Cir. 1965); Tomlinson v. Lefkowitz, 334 F.2d 262 (5 Cir. 1964), cert. denied 379 U.S. 962," }, { "docid": "23640247", "title": "", "text": "Co. v. Robert Cagle Bldg. Co., 265 F.Supp. 469, 471-472 (S.D.Texas 1967) ; Annot., 120 A.L.R. 8, 78-83 (1939). . This normally takes the form of plaintiff’s failure to object to introduction of evidence by the defendant in support of the unpleaded affirmative defense. See Fed.R.Civ.P. 15 (b) ; Wright & Miller, supra note 20, § 1278 at 345-46; Joyce v. L.P. Steuart, Inc., 97 U.S.App.D.C. 33, 227 F.2d 407, 408-09 (D.C.Cir. 1955) ; Kaye v. Smitherman, 225 F.2d 583, 593-94 (10th Cir. 1955), cert. denied, 350 U.S. 913, 76 S.Ct. 197, 100 L.Ed. 800; Tillman v. National City Bank, 118 F.2d 631, 635 (2d Cir. 1941), cert. denied, 314 U.S. 650, 62 S.Ct. 96, 86 L.Ed. 521. . See, e. g., Thomas v. Consolidation Coal Co., 380 F.2d 69 (4th Cir. 1967) ; Williams v. Murdoch, 330 F.2d 745 (3d Cir. 1964) ; . Suckow Borax Mines Consol. v. Borax Consol., Ltd., 185 F.2d 196 (9th Cir. 1950) ; Connelly Foundation v. School Dist. of Haverford Township, 326 F.Supp. 241 (E.D.Pa.1971), aff’d 461 F.2d 495 (3d Cir. 1972). . Harrison v. Thompson, 447 F.2d 459 (5th Cir. 1971) ; Miller v. Shell Oil Co., 345 F.2d 891 (10th Cir. 1965) ; Fletcher v. Nostadt, 205 F.2d 896 (4th Cir. 1953), cert. denied, 346 U.S. 877, 74 S.Ct. 126, 98 L.Ed. 385. See also Annot., 95 A.L.R.2d 648, §§ 2-3 (1964). See generally 2A Moore, supra note 2, ¶ 8.28; 5 Wright & Miller, supra note 20, § 1277 (raising affirmative defenses by motions to dismiss or for summary judgment). . Fed.R.Civ.P. 15(a), (b) ; Deakyne v. Commissioners of Lewes, 416 F.2d 290, 298-99 (3d Cir. 1969) ; Albee Homes, Inc. v. Lutman, 406 F.2d 11, 13-14 (3d Cir. 1969) ; McNaughton v. New York Central R.R., 220 F.2d 835, 840 (7th Cir. 1955). . See notes 77-80 and accompanying text, infra. . See, e. g., Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313, 350, 91 S.Ct. 1434, 28 L.Ed.2d 788 (1971) ; Hatridge v. Aetna Casualty & Surety Co., 415 F.2d 809, 813 (8th Cir. 1969)." }, { "docid": "21800662", "title": "", "text": "the money—whether the jury had enough evidence to assess lost profits. Though we neither examine nor question the jury’s factual finding that Wilford made material misrepresentations, we affirm the district court’s decision to grant the motion for judgment as a matter of law and dismiss ThermoTek’s claims. II. First up is whether Wilford and Thermo Compression waived their preemption defenses by failing to plead them. The district court said no—an answer we review for abuse of discretion. We find no abuse of discretion here. Federal Rule of Civil Procedure 8(c) requires a defendant to state affirmative defenses in its responsive pleading. Fed. R. Civ. P. 8(c) (“In responding to a pleading, a party must affirmatively state . any avoidance or affirmative defense..,.”). Failure to comply with this rule may result in waiver. Lucas v. United States, 807 F.2d 414, 417 (5th Cir. 1986) (citing Starcraft Co. v. C.J. Heck Co., 748 F.2d 982, 990 n.11 (5th Cir. 1984)). But if “the [affirmative defense] is raised in the trial court in a manner that does not result in unfair surprise,” then a “technical failure to comply precisely with Rule 8(c) is not fatal.” Id. at 417 (quoting Allied Chem. Corp. v. Mackay, 695 F.2d 854, 855-56 (5th Cir. 1983) (per curiam)). Because Rule 8(c)’s purpose is to give the plaintiff fair notice, we recognize “some play in the joints.” Rogers v. McDorman, 521 F.3d 381, 385 (5th Cir. 2008). A defendant thus avoids waiver if (1) the defendant raised the affirmative defense “at a pragmatically sufficient time,” and (2) the plaintiff “was not prejudiced in its.ability to respond.” Lucas, 807 F.2d at 418 (quotation mark omitted) (quoting Allied Chem., 695 F.2d at 856); see also 2 Moore’s Federal Practice § 8.08[3] (3d ed. 2016). ThermoTek got -fair, notice. It learned of the preemption defense at a pragmatically sufficient time and suffered no prejudice. The preemption issue first surfaced at the summary judgment stage before discovery closed and nearly two years before trial. And, in denying the motion to reconsider its summary judgment-order, the district court noted that it could “consider a" }, { "docid": "23640262", "title": "", "text": "of those facts, the legal standards to be applied must also be identical; different legal standards as applied to the same set of facts create different issues. Security Ins. Co. v. Johnson, 276 F.2d 182, 187-88 (10th Cir. 1960) ; Capps v. Whitson, 157 Va. 46, 160 S.E. 71 (1931). . See generally 1B Moore, supra note 2, ¶ 0.442 [2]. . 141 F.2d 927 (2d Cir. 1944), cert. denied, 323 U.S. 720, 65 S.Ct. 49, 89 L.Ed. 579 (1944). . Id. at 928. . The doctrine of res judicata “rests upon considerations of economy of .judicial time and public policy favoring the establishment of certainty in legal relations”. Commissioner of Internal Revenue v. Sunnen, 333 U.S. 591, 597, 68 S.Ct. 715, 719, 92 L.Ed. 898 (1948). “The doctrine is but a manifestation of the recognition that endless litigation leads to chaos; that certainty in legal relations must be maintained; that after a party has had his day in court, justice, expediency, and the preservation of the public tranquility requires that the matter be at an end.” Schroeder v. 171.74 Acres of Land, 318 F.2d 311, 314 (8th Cir. 1963). The doctrine “is no mere technicality” [Tillman v. National City Bank of New York, 118 F.2d 631, 634 (2d Cir. 1941), cert. denied, 314 U.S. 650, 62 S.Ct. 96, 86 L.Ed. 521] but rather “a principle of universal jurisprudence”. St. Louis Typographical Union No. 8 v. Herald Co., 402 F.2d 553, 555 (8th Cir. 1968). This conclusion is not inconsistent with exclusive federal court jurisdiction over antitrust cases. . 396 F.2d 710 (9th Cir. 1968). . Id. at 715-16. . See, e. g., American Safety Equipment Co. v. J. P. Maguire & Co., 391 F.2d 821, 826 (2d Cir. 1968). . “Although, on the whole, the doctrines of res judicata and collateral estoppel are strictly applied, they have been occasionally rejected or qualified in cases in which an inflexible application would have violated an overriding public policy . . . .” 1B Moore, supra note 2, ¶ 0.405 [11] at 783 (footnote omitted). Areas of federal pre-emption such as the" }, { "docid": "7999328", "title": "", "text": "to the Government as a defense. Metropolitan Casualty Ins. Co. v. Friedley, D.C., 79 F.Supp. 978; 5 Williston on Contracts, Rev. Ed., Sec. 1599; see also Fitch v. Lomay, Tex.Com.App., 16 S.W.2d 530, 66 A.L.R. 763. The granting by this court of such relief in proper cases, to either party, promotes substantial justice according to the merits of the case. Plaintiff finally contends that defendant, by filing a general traverse to the petition in the instant case, has waived its right to assert the defense. There is no merit to this position. If we assume, however, that the defense should have been specially pleaded, as plaintiff argues, failure to do so is immaterial where, as here, evidence of the defense was introduced and not objected to for failure to plead it, and no surprise is claimed. American Casualty Co. of Reading, Pa. v. Morris, D.C., 51 F. Supp. 889, affirmed, Simon v. American Casualty Co. of Reading, Pa., 4 Cir., 146 F.2d 208; Tillman v. National City Bank of New York, 2 Cir., 118 F.2d 631; cf. Metropolitan Casualty Ins. Co. v. Friedley, supra. We hold, therefore, for the reasons expressed herein, that under the true terms of the lease agreement, as understood and intended by both parties, the defendant is not liable to plaintiff for additional rental for use of the premises in question or for the payment of just compensation for the taking of such premises. The petition is therefore dismissed. It is so ordered. JONES, Chief Judge, and HOWELL, MADDEN and WHITAKER, Judges, concur. . In the City of Boston. The premises are sometimes said to be located in Brighton, Mass. See finding 3. . The lease from the railroad to plaintiff covering the premises at No. 241 Lincoln Street in effect on April 13, 1942, ran until October 31, 1942. Its provisions are set out in finding 5. On July 1, 1942, plaintiff and the railroad executed a new lease which differed from the old one in the respects listed in finding 17. Insofar as here pertinent, the only change was to include in plaintiff’s lease" }, { "docid": "15099189", "title": "", "text": "defense is not waived to the extent that the party who should have pled the defense introduces evidence in support thereof without objection by the adverse party or that the opposing party’s own evidence discloses the defense, necessarily indicating his express consent. Fed. Sav. & Loan Ins. Corp. v. Hogan, 476 F.2d 1182, 1187 (7th Cir. 1973); Radio Corp. of America v. Radio Station KYFM, Inc., 424 F.2d 14, 17 (10th Cir. 1970). See 2A Moore’s Federal Practice *f| 8.27[3] (2d Ed. 1981). Neglect to affirmatively plead the defense is simply noncompliance with a technicality and does not constitute a waiver where there is no claim of surprise. Tillman v. Nat’l City Bank of New York, 118 F.2d 631, 635 (2d Cir. 1941). In this case, there was evidence, admitted without objection in the trial court, that Jones entered into a subsequent amended stock agreement with the appellants on February 27, 1977, and that prior to that time Jones knew that facts material to the transaction were not as he had originally believed them to be. (Transcript at 52-55, 96-104). A person who voluntarily enters into a later agreement after full knowledge of all material facts waives his right to a cause of action for common law fraud. Atlanta Car Wash v. Schwab, 215 Ga. 319, 320-21, 110 S.E.2d 341 (1959); Gem City Motors, Inc. v. Minton, 109 Ga.App. 842, 848-49, 137 S.E.2d 522 (1964). Here the possibility of waiver by estoppel under Georgia law was revealed by evidence to which no objection was interposed and which was continually before the jury with the apparent consent of the parties. Thus, the lack of an affirmative pleading conforming to the evidence is not fatal, because the evidence acts as an amendment to the defenses already enumerated. . “Actual damages” as provided for in § 28(a) of the Securities Exchange Act of 1934, 15 U.S.C.A. § 78bb(a) (1970), has been interpreted to mean some form of economic loss and does not include punitive damages. Ryan v. Foster & Marshall, Inc., 556 F.2d 460, 464 (9th Cir. 1977); Straub v. Vaisman & Co.," }, { "docid": "23640246", "title": "", "text": "been a proper designation.” Fed.R.Civ.P. 8(c). . RCA v. Radio Station KYFM, Inc., 424 F.2d 14, 17 (10th Cir. 1970) ; Albee Homes, Inc. v. Lutman, 406 F.2d 11, 13 (3d Cir. 1969). . See 5 C. Wright and A. Miller, Federal Practice and Procedure: Civil § 1278, at 344 (1969) (hereinafter cited as Wright & Miller). See generally Annot., 120 A.L.R. 8, 55-99, 126-66 (1939). . See Federal Savings and Loan Ins. Corp. v. Hogan, 476 F.2d 1182, 1186 (7th Cir. 1973) ; Bradford Audio Corp. v. Pious, 392 F.2d 67, 73 (2d Cir. 1968) ; Iacaponi v. New Amsterdam Casualty Co., 379 F.2d 311, 312 (3d Cir. 1967) ; Black v. York, 300 Ky. 166, 168, 189 S.W.2d 599 (1945). . This may result from restrictions upon pleadings or from the fact that the prior judgment was not entered or did not become known to the defendant until after the pleadings were filed. See Richardson v. City of Boston, 60 U.S. (19 How.) 263, 267, 15 L.Ed. 639 (1857) ; Montgomery Ward & Co. v. Robert Cagle Bldg. Co., 265 F.Supp. 469, 471-472 (S.D.Texas 1967) ; Annot., 120 A.L.R. 8, 78-83 (1939). . This normally takes the form of plaintiff’s failure to object to introduction of evidence by the defendant in support of the unpleaded affirmative defense. See Fed.R.Civ.P. 15 (b) ; Wright & Miller, supra note 20, § 1278 at 345-46; Joyce v. L.P. Steuart, Inc., 97 U.S.App.D.C. 33, 227 F.2d 407, 408-09 (D.C.Cir. 1955) ; Kaye v. Smitherman, 225 F.2d 583, 593-94 (10th Cir. 1955), cert. denied, 350 U.S. 913, 76 S.Ct. 197, 100 L.Ed. 800; Tillman v. National City Bank, 118 F.2d 631, 635 (2d Cir. 1941), cert. denied, 314 U.S. 650, 62 S.Ct. 96, 86 L.Ed. 521. . See, e. g., Thomas v. Consolidation Coal Co., 380 F.2d 69 (4th Cir. 1967) ; Williams v. Murdoch, 330 F.2d 745 (3d Cir. 1964) ; . Suckow Borax Mines Consol. v. Borax Consol., Ltd., 185 F.2d 196 (9th Cir. 1950) ; Connelly Foundation v. School Dist. of Haverford Township, 326 F.Supp. 241 (E.D.Pa.1971), aff’d 461 F.2d" }, { "docid": "21408289", "title": "", "text": "12, If 15.13 [2], at 987. . 2 Moore’s, op.cit. supra note 12, If 8.27 [3], at 1851. . 2 Moore’s op. cit. supra note 12, If 8.27 [3], at 1853. See Knudson v. Boren, 261 F.2d 15, 19 (10 Cir. 1958) ; Farm Bureau Co-op. Mill & Supply v. Blue Star Foods, 238 F.2d 326, 332-333 (8 Cir. 1956); Joyce v. L. P. Steuart, Inc., 227 F.2d 407, 408-409 (D.C.Cir. 1955). . 2 Moore’s, op.cit. supra note 12, 1f 8.02, at 1611. . See Holley Coal Company v. Globe Indemnity Company, 186 F.2d 291, 295 (4 Cir. 1950); Mitchell v. White Consolidated, Inc., 177 F.2d 500, 502-503 (7 Cir. 1949), cert. denied, 339 U.S. 913, 70 S. Ct. 574, 94 L.Ed. 1339 (1950), and eases cited in notes 12 and 15 supra. . Rule 15(b), Fed.B.Civ.P. . Underwriters Salvage Company of New York v. Davis & Shaw Furniture Company, 198 F.2d 450, 453 (10 Cir. 1952); accord, Knudson v. Boren, supra note 15, at 19. . Supra p. 128. . See Annot, “Applicability Of Fraud And False Swearing Clause Of Fire Insurance Policy To Testimony Given At Trial”, 64 A.L.R.2d 962-966 (1959). . See, e. g., Insurance Companies v. Weides, 81 U.S. (14 Wall.) 375, 382-383 (1871); American Paint Service v. Home Insurance Co. of N. Y., 246 F.2d 91, 64 A.L.R.2d 957 (3 Cir. 1957); Royal Insurance Company v. Story, 34 Ala.App. 363, 40 So.2d 719, cert. denied, 252 Ala. 275, 40 So.2d 724 (1949). . Courts so viewing the prohibited conduct have held the provision applicable to testimony at the trial of an action on the policy. See Cuetara Hermanos v. Royal Exchange Assurance Company, 23 F.2d 270 (1 Cir.), cert. denied, 277 U.S. 590, 48 S.Ct. 437, 72 L.Ed. 1007 (1927); Atlas Assurance Company of London, England v. Hurst, 11 F.2d 250 (8 Cir. 1926) and eases cited; Knight v. Boston Insurance Company, 113 N.J.L. 132, 172 A. 594 (1934); Moreau v. Palatine Insurance Company of London, England, 84 N.H. 422, 151 A. 817 (1930); Follett v. Standard Fire Insurance Company, 77 N.H. 457, 92 A." }, { "docid": "2164710", "title": "", "text": "available as a defense because it is matter constituting an avoidance or affirmative defense which Steuart failed to plead affirmatively as required by Rule 8(c) of the Federal Rules of Civil Procedure, 28 U.S.C. Assuming the rule is applicable, Joyce must be deemed to have waived any objections to Steuart’s failure to comply. The termination agreement was introduced in evidence at the trial without objection. In addition, its legal effect was argued to the court by both parties orally and in written briefs. Hence Joyce cannot be heard now to complain that he was prejudiced by surprise. Affirmed. . Joyce v. Steuart, Inc., D.C.D.C.1954, 121 F.Supp. 12. . See Durasteel Co. v. Great Lake Steel Corp., 8 Cir., 1953, 205 F.2d 438. . E. g., Grant v. Aerodraulics Co., 1949, 91 Cal.App.2d 68, 204,P.2d 683; Tharpe v. Tracy, La.App.1949, 40 So.2d 509, judgment adhered to La.App.1950, 47 So. 2d 336. . See Jack Mann Chevrolet Co. v. Associates Inv. Co., 6 Cir., 1942, 125 F.2d 778, 784. . 2 Moore, Federal Practice 1695-96 (2d ed. 1948); Tillman v. National City Bank, 2 Cir., 1941, 118 F.2d 631, 635, certiorari denied, 314 U.S. 650, 62 S.Ct. 96, 86 L. Ed. 521. . Tillman v. National City Bank, supra." }, { "docid": "23640263", "title": "", "text": "an end.” Schroeder v. 171.74 Acres of Land, 318 F.2d 311, 314 (8th Cir. 1963). The doctrine “is no mere technicality” [Tillman v. National City Bank of New York, 118 F.2d 631, 634 (2d Cir. 1941), cert. denied, 314 U.S. 650, 62 S.Ct. 96, 86 L.Ed. 521] but rather “a principle of universal jurisprudence”. St. Louis Typographical Union No. 8 v. Herald Co., 402 F.2d 553, 555 (8th Cir. 1968). This conclusion is not inconsistent with exclusive federal court jurisdiction over antitrust cases. . 396 F.2d 710 (9th Cir. 1968). . Id. at 715-16. . See, e. g., American Safety Equipment Co. v. J. P. Maguire & Co., 391 F.2d 821, 826 (2d Cir. 1968). . “Although, on the whole, the doctrines of res judicata and collateral estoppel are strictly applied, they have been occasionally rejected or qualified in cases in which an inflexible application would have violated an overriding public policy . . . .” 1B Moore, supra note 2, ¶ 0.405 [11] at 783 (footnote omitted). Areas of federal pre-emption such as the antitrust laws are a prime example. Claim preclusion is no problem in such cases for no other tribunal would have jurisdiction to enter a valid judgment on a pre-empted cause of action. See, e. g., Kalb v. Feuerstein, 308 U.S. 433, 60 S.Ct. 343, 84 L.Ed. 370 (1940). Issue preclusion, however, would normally be unaffected by the fact that the second cause of action was not within the first court’s jurisdiction as long as the issues resolved were properly before it. But this brings the policy of finality into conflict with an equally strong policy of pre-emption, which could be effectively, even though not formally, vitiated by strict application of collateral estoppel. See Lyons v. Westinghouse Elec. Corp., 222 F.2d 184, 186 (2d Cir. 1955) : “It is true that the estoppel will not, literally speaking, end the jurisdiction of the district court; but it will do so in substance, if it is an estoppel at all, for it will conclude any further consideration of the existence of the conspiracy, and on that all else" }, { "docid": "15115048", "title": "", "text": "as above stated is that the present action has not been authorized by the board of directors. This is a matter of avoidance, and, if relied upon, shall be pleaded in the answer as required by Rule 8(c), Federal Rules of Civil Procedure. “Rule 8(c) of the Rules of Civil Procedure requires that accord and satisfaction, estoppel, fraud, payment, release, waiver, ‘and any other matter constituting an avoidance or affirmative defense’ must be set forth affirmatively. If this is to be an issue, defendant must answer the complaint before it can be heard upon it.” Cohen v. United States, 8 Cir., 129 F.2d 733, at page 737. “Moreover, a motion to dismiss would not be proper for the reason that by Rule 8, paragraph (c) Federal Rules of Civil Procedure, 28 U.S.C.A., the defense would be an affirmative one and should be raised by answer. It would follow that the motion to dismiss should be and will be overruled.” Wright v. R. & L. Market, D.C., 9 F. R.D. 559, at page 560. See also Schmidtke v. Conesa, 1 Cir., 141 F.2d 634, at page 635; Jack Mann Chevrolet Co. v. Associates Inv. Co., 6 Cir., 125 F.2d 778, at page 784; Tractor & Equipment Corp. v. Chain Belt Co., D.C., 50 F. Supp. 1001, at page 1006. The procedural scheme contemplated by the Rules appears also to preclude the consideration of the basic question involved here, since Rule 12(b) enumerates the defenses which may be made by motion. Bowles v. Glide Bros. Lumber Co., 9 Cir., 146 F.2d 566, at page 568. The authority of a corporation to maintain an action does not appear to be so enumerated. The parties are not, however, without the right to raise the question involved here by motion prior to trial. The Court is impressed that same can be determined by a motion made by the plaintiff which would raise the legal sufficiency of the avoidance pleaded, F.R.C.P., rule 12(f), or same could be determined by motion of defendants for judgment on the pleadings. F.R.C.P., rule 12(c). If the determination of facts are" } ]

[ { "docid": "23041808", "title": "", "text": "immunity to crimes that were part of “this investigation,” not all federal crimes known to the government. The court further found that the defendant’s purported belief that “this investigation” covered the Salmon burglary was objectively unreasonable because there was very little evidence of a link between investigations of the two different crimes. Accordingly, finding that Clark had failed to carry his burden of proving that the parties reasonably understood the term “this investigation” to cover the Salmon burglary, the district court denied the motion to dismiss the indictment. Clark then proceeded to a jury trial, was convicted as charged and was sentenced to 293 months to be served concurrently with the time he was serving for the postal robberies. Clark appeals the judgment of conviction, arguing that the district court erred in denying his motion to dismiss the indictment. DISCUSSION A. Plea agreement Clark argues that the district court erred by denying his motion to dismiss the indictment because he was immunized from prosecution of the Salmon burglary by the term “this investigation” in the plea agreement regarding the postal robberies. We disagree. The district court’s interpretation and construction of a plea agreement is reviewed for clear error. See United States v. Ajugwo, 82 F.3d 925, 928 (9th Cir.1996). Factual findings regarding the terms of the plea agreement are also reviewed for clear error. See id. Whether the government breached a plea agreement is reviewed de novo. See United States v. Fisch, 863 F.2d 690, 690 (9th Cir.1988). Whether language in a plea agreement is ambiguous is subject to a de novo review. See United States v. Anderson, 970 F.2d 602, 606 (9th Cir.1992), amended 990 F.2d 1163 (9th Cir.1993). Our analysis begins with the fundamental rule that “[p]lea agreements are contractual in nature and are measured by contract law standards.” United States v. De la Fuente, 8 F.3d 1333, 1337 (9th Cir.1993) (quoting United States v. Keller, 902 F.2d 1391, 1393 (9th Cir.1990)). “In construing the terms of an agreement and the parties’ obligations under it, the courts generally employ traditional contract principles.” G. Nicholas Herman, Plea Bargaining, §" } ]

[ { "docid": "22327209", "title": "", "text": "a decision on the sentence. This is what we consider to be the normal reading of Rule 32, which here establishes what the court must do before imposing sentence and which provides that the opportunity of the government to speak shall be “equivalent to that of the defendant’s attorney.” Thus, it cannot make sense under this rule to have the defendant speak and then the court announce its sentence without letting the government speak responsively. The district court, therefore, plainly erred when it permitted Waknine and his counsel to speak but did not give the government an opportunity to speak before imposing a sentence of 121 months of imprisonment. See Ameline, 409 F.3d at 1078. However, under the third prong of plain error review, we must examine whether the district court’s error affected Waknine’s substantial rights. Id.; see also United States v. Dallman, 533 F.3d 755, 761 (9th Cir.2008). Waknine “bears the burden of persuading us that his substantial rights were affected.” Ameline, 409 F.3d at 1078. He must establish that the probability of a different sentence “ ‘is sufficient to undermine confidence in the outcome of the proceeding.’ ” Id. (quoting Dominguez Benitez, 542 U.S. at 83, 124 S.Ct. 2333). Where a district court denies a defendant the opportunity to allocute before sentencing, we have found nonharmless error that affected the defendant’s substantial rights. See United States v. Medrano, 5 F.3d 1214, 1219 (9th Cir.1993). Waknine does not allege such an error, however, because the district court gave Waknine an opportunity to speak at the sentencing hearing, and Waknine used that opportunity to request a lenient sentence. Instead, Waknine argues that his rights were affected when the district court did not give the government an opportunity to speak before sentencing. Waknine fails to persuade us. The government recommended a 108-month prison term in the sentencing memorandum it submitted to the district court four days before the sentencing hearing and referred the district court to that recommendation shortly after the district court imposed Waknine’s 121-month sentence. Moreover, the district court’s reference to criminal history category I supports the inference that" }, { "docid": "22327206", "title": "", "text": "agreement required the government orally to recommend the 108-month prison term at the sentencing hearing before the district court sentenced Waknine. The government, on the other hand, contends that it fulfilled its obligations under the plea agreement by recommending a nine-year (108-month) prison term in its sentencing position memorandum, and by reminding the district court of that recommendation post-sentencing. This issue of contract interpretation on the plea agreement turns on whether the phrase “at the time of sentencing” refers to the sentencing hearing alone, or whether it also includes the days preceding the hearing, during which parties file sentencing position memoranda. Ordinarily, we construe an ambiguity in a plea agreement in favor of the defendant. See United States v. Clark, 218 F.3d 1092, 1095 (9th Cir.2000). Here, however, Waknine did not preserve his claim of alleged plea agreement breach in the district court. Both Waknine and the government present plausible constructions of the disputed phrase — “at the time of sentencing.” We conclude that the phrase in the plea agreement is ambiguous. It follows that the alleged error is neither clear nor obvious, and hence does not qualify as plain error. See Olano, 507 U.S. at 734, 113 S.Ct. 1770. We hold that the government’s alleged error does not permit relief under the “plain error” standard. Moreover, there is no prejudice, no showing that substantial rights were violated, so Waknine’s theory also fails on the third prong of plain error review. See Ameline, 409 F.3d at 1078 (“He must establish ‘that the probability of a different result is sufficient to undermine confidence in the outcome of the proceeding.’ ”) (quoting United States v. Dominguez Benitez, 542 U.S. 74, 83, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004)). Because the district court was advised of the government’s position in the sentencing memorandum and almost immediately after the announced sentence, Waknine has not met his burden of showing that the government’s voicing of its known position at the hearing before sentence was announced would have led the district court to reach a different conclusion. B Waknine also argues for the first time on" }, { "docid": "23622687", "title": "", "text": "the forfeited error unless the defendant shows that the error was prejudicial.” Olano, 507 U.S. at 734, 113 S.Ct. 1770; see also United States v. Lorenzo, 995 F.2d 1448, 1458 n. 4 (9th Cir.1993) (“[I]f plain error applies, it appears that the appellants, rather than the government, [must] pay the price for the inadequacy of the record.”). Absent proof of prejudice, Gonza lez-Aguilar cannot establish plain error and he is not entitled to relief. AFFIRMED. . These facts are distinguishable from those present in Whitney, 673 F.3d 965. First, the conduct at issue in Whitney was far more egregious than the conduct at issue in the present case. In Whitney, 673 F.3d at 969, the prosecutor admitted during sentencing proceedings that she was violating the plea agreement by disclosing information obtained in confidence during a proffer from the defendant. Only after identifying this initial breach did we also conclude the prosecutor breached the plea agreement and impacted the defendant's substantial rights when, during sentencing proceedings, she argued \"that [the defendant] was a 'good thief,’ and pointed to past offenses already included in the record.” Id. at 971. In the present case, the prosecutor's alleged breach was singular, and was made in a written submission filed more than a month before the district court declined to accept the plea agreement, and almost three months before the district court sentenced Gonzalez-Aguilar. The prosecutor was practically silent at Gonzalez-Aguilar's sentencing hearing, and made no statements to the judge regarding Gonzalez-Aguilar's criminal history. Additionally, in Whitney, there was no comparable record of reliance by the district court judge on the presentence report. There was also no evidence that the judge was influenced by anything other than the prosecutor’s improvident statements during sentencing proceedings to impose a harsher sentence than the one provided in the plea agreement. Here, it is clear that the district court judge carefully reviewed the information contained in the Presentence Reports, and relied upon this information when declining to accept the plea agreement and later deciding to sentence Gonzalez-Aguilar to a 57-month term of imprisonment." }, { "docid": "23622680", "title": "", "text": "of imprisonment and three years of supervised release. Gonzalez-Aguilar immediately filed this appeal. DISCUSSION “A defendant’s claim that the government breached [the terms of a] plea agreement is generally reviewed de novo.” United States v. Whitney, 673 F.3d 965, 970 (9th Cir.2012). However, Gonzalez-Aguilar’s counsel forfeited his claim by failing to timely object to the alleged breach during district court proceedings. Accordingly, we are limited to plain error review on appeal. See United States v. Cannel, 517 F.3d 1172, 1175-76 (9th Cir. 2008). “Relief for plain error is [only] available if there has been (1) error; (2) that was plain; (3) that affected substantial rights; and (4) that seriously affected the fairness, integrity, or public reputation of the judicial proceedings.” Id. at 1176. Gonzalez-Aguilar claims that the government implicitly breached the plea agreement by describing his prior convictions and including inflammatory language in its sentencing memorandum. Gonzalez-Aguilar contends that this conduct constituted a breach because the government’s arguments “servefd] no purpose but ‘to influence the court to give a higher sentence.’ ” Whitney, 673 F.3d at 971 (quoting United States v. Johnson, 187 F.3d 1129, 1135 (9th Cir.1999)). We need not decide whether the arguments contained in the government’s sentencing memorandum constituted a breach of the plea agreement because, even if a breach occurred, Gonzalez-Aguilar has not established that this alleged breach amounted to plain error. Specifically, Gonzalez-Aguilar cannot demonstrate that the alleged breach impacted his substantial rights by “affect[ing] the outcome of the district court proceedings.” Puckett v. United States, 556 U.S. 129, 135, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009) (quoting United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)). Gonzalez-Aguilar argues that if the government had presented a united front with the defense in its sentencing memorandum then “it is probable” that the court would have accepted the plea agreement, but this speculative assertion is not supported by the record. See Whitney, 673 F.3d at 973. The record establishes that the district court conducted its own independent evaluation of the propriety of the stipulated sentence. In doing so, the court was" }, { "docid": "12970916", "title": "", "text": "impacted the fairness, integrity, or public reputation of judicial proceedings. See United States v. Olano, 507 U.S. 725, 732-36, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993); Saxena, 229 F.3d at 5. III. “[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.” Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971). “Because plea bargaining requires defendants to waive fundamental constitutional rights, we hold prosecutors engaging in plea bargaining to ‘the most meticulous standards of both promise and performance.’ ” United States v. Vélez Carrero, 77 F.3d 11, 11 (1st Cir.1996) (quoting United States v. Clark, 55 F.3d 9, 12 (1st Cir.1995)). In this case, the government fell woefully short of satisfying these “meticulous standards.” Although the plea agreement bound the government to recommend a sentence based on a drug quantity of five to fifty grams, the government utterly failed to do so. Instead, the government accepted the PSR’s recommendation that 480 grams of cocaine base be attributed to the defendant. Consequently, the prosecutor stated that the guideline range was 188 to 235 months and that he recommended a sentence of 200 months. The prosecutor never mentioned during sentencing the plea agreement, the five to fifty grams drug quantity, or another guideline range that corresponded to this drug quantity. Thus, the government failed to satisfy its obligation under the plea agreement. The critical issue before us, however, is whether the government’s breach of the agreement amounts to plain error under the Olano standard. Although plain error review usually applies to errors committed by the court, we have also assessed governmental breaches of plea bargains, in the absence of a contemporaneous objection, under this same standard. See Saxena, 229 F.3d at 5. Beyond a plain violation of the plea agreement, the defendant must show that the government’s breach was prejudicial. See Olano, 507 U.S. at 734, 113 S.Ct. 1770 (noting that, to affect substantial rights, the error must be prejudicial). Although" }, { "docid": "22327204", "title": "", "text": "Id. (quoting Cotton, 535 U.S. at 631, 122 S.Ct. 1781); see also United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). A Waknine contends that the government violated the plea agreement because it did not recommend at the sentencing hearing, before the district court imposed the 121-month sentence, that the district court sentence Waknine to 108 months of imprisonment. “In interpreting plea agreements, the government is to be held to the literal terms of the agreement, and ordinarily must bear responsibility for any lack of clarity.” United States v. Baker, 25 F.3d 1452, 1458 (9th Cir.1994) (internal quotation marks omitted). “To decide whether a plea agreement has been breached, this court considers what the defendant reasonably understood when he pled guilty.” United States v. Packwood, 848 F.2d 1009, 1011 (9th Cir.1988). Waknine’s claim centers on the construction and application of the following term of the plea agreement: “At the time of sentencing, the government agrees to recommend that defendant be sentenced to a 108-month term of imprisonment.” Notably, four days before the sentencing hearing, the government filed a sentencing memorandum in which it expressly recommended “that defendant Hai Waknine be sentenced to nine years imprisonment.” If this written recommendation satisfies the contractual obligation, as the government argues, then there was no breach. Wak-nine argues, to the contrary, that the plea agreement required that the government recommend a 108-month sentence at the sentencing hearing, before the district court imposed a sentence. If we adopt Waknine’s interpretation of the plea agreement, then there was a breach because at the sentencing hearing the district court announced Waknine’s sentence without first hearing from the government. The district court only heard from the government after it imposed Waknine’s sentence, at which time the government reminded the district court that it “had recommended a nine-year sentence in this case.” Waknine argues that the pre-hearing sentencing memorandum and the post-sentencing recommendation at the hearing were insufficient to satisfy the government’s obligation under the plea agreement to recommend “at the time of sentencing” a 108-month prison term. He asserts that the plea" }, { "docid": "22327208", "title": "", "text": "appeal that the district court violated Rule 32(i)(4)(A)(iii) of the Federal Rules of Criminal Procedure by not giving the government an opportunity to speak before imposing a sentence. Rule 32, in pertinent part, provides that before imposing sentence the court must “provide an attorney for the government an opportunity to speak equivalent to that of the defendant’s attorney.” Fed.R.Crim.P. 32(i)(4)(A)(iii); see also United States v. Carty, 520 F.3d 984, 991 (9th Cir.2008) (en banc) (“The parties must be given a chance to argue for a sentence they believe is appropriate.”). As we see it, the district court disregarded the express command of Rule 32 when it announced Waknine’s sentence before the government had spoken at the hearing. Possibly this might be viewed as inconsequential if we considered the government’s sentencing memorandum to be a statement at the time of the hearing. However, the plain language of Rule 32 appears to contemplate that the government, like the defendant, will have an opportunity for a speaking role at the sentencing hearing before the district court has made a decision on the sentence. This is what we consider to be the normal reading of Rule 32, which here establishes what the court must do before imposing sentence and which provides that the opportunity of the government to speak shall be “equivalent to that of the defendant’s attorney.” Thus, it cannot make sense under this rule to have the defendant speak and then the court announce its sentence without letting the government speak responsively. The district court, therefore, plainly erred when it permitted Waknine and his counsel to speak but did not give the government an opportunity to speak before imposing a sentence of 121 months of imprisonment. See Ameline, 409 F.3d at 1078. However, under the third prong of plain error review, we must examine whether the district court’s error affected Waknine’s substantial rights. Id.; see also United States v. Dallman, 533 F.3d 755, 761 (9th Cir.2008). Waknine “bears the burden of persuading us that his substantial rights were affected.” Ameline, 409 F.3d at 1078. He must establish that the probability of a" }, { "docid": "22327211", "title": "", "text": "the court had familiarized itself with the parties’ filings. Given that the 108-month recommendation was before the district court in the government’s sentencing memorandum and was brought to the district court’s attention shortly after the announced sentence, Waknine has not demonstrated that the government’s oral recommendation at the hearing before sentencing would have changed the district court’s conclusion as to the appropriate prison term. Reviewing for plain error, we hold that the dis trict court’s Rule 32(i)(4) error is not grounds for vacating the sentence. C Finally, Waknine argues that the district court erred by not considering the 18 U.S.C. § 3553(a) (“ § 3553(a)”) sentencing factors before imposing a sentence of 121 months of imprisonment. In light of Gall v. United States, — U.S.-, 128 S.Ct. 586, 596-97, 169 L.Ed.2d 445 (2007), the district court plainly erred by not considering any of the § 3553(a) sentencing factors. See Ameline, 409 F.3d at 1078 (noting that “[a]n error is plain if it is contrary to the law at the time of appeal” (internal quotation marks omitted)). The district court’s error here was patent insofar as the district court gave no reasons in reference to the § 3553(a) factors before imposing the sentence. We note that the district court, on the government’s query after sentencing, said that it was sentencing at the mid-point of the Guidelines range, viewing the criminal history as I, so the district court’s basic reasoning is known to us. However, there was no contemporaneous announcement of the calculated Guidelines range or satisfaction of the requirement that the sentence be reconciled for reasonableness in light of the § 3553(a) factors. This leaves us with an uncertain application of the plain error standard. It is clear that the district court’s approach to sentencing in this case was plain error, as the Supreme Court in Gall has made clear that the Guidelines should be calculated as a starting point and that the district court should consider the § 3553(a) factors in reaching a reasonable sentence, viewing the Guidelines range as discretionary. Gall, — U.S. at -, 128 S.Ct. at 596-97;" }, { "docid": "22327197", "title": "", "text": "Opinion by Judge GOULD; Partial Concurrence and Partial Dissent by Judge IKUTA. GOULD, Circuit Judge: Hai Waknine appeals his sentence of 121 months of imprisonment and $646,000 in restitution payments imposed by the district court after he pleaded guilty to one count of racketeer influenced and corrupt organizations (“RICO”) conspiracy, in violation of 18 U.S.C. § 1962(d), for laundering proceeds by embezzling from the Tel Aviv Trade Bank and brokering loans through extortion. He argues that (1) the government violated the plea agreement by not orally recommending at the sentencing hearing a 108-month prison term pursuant to the plea agreement, (2) the district court violated Rule 32 of the Federal Rules of Criminal Procedure by not giving the government an opportunity to speak at the sentencing hearing, (3) the district court committed procedural error by not considering the 18 U.S.C. § 3553(a) factors before imposing his sentence, and (4) the district court erred in its restitution calculation. Waknine also asks us to remand this case to a different district judge. We have jurisdiction under 28 U.S.C. § 1291. We conclude that there was plain error in the sentencing, and we therefore vacate the sentence, and remand with instructions for the district court properly to calculate the United States Sentencing Guidelines range, to discuss the 18 U.S.C. § 3553(a) factors in rendering sentence, and to comply with Rule 32 of the Federal Rules of Criminal Procedure by permitting each party to be heard before announcing the sentence. We also vacate the district court’s restitution order, and remand for recalculation and explanation of restitution payments. Finally, we reject Waknine’s request for a new sentencing judge. I On December 7, 2004, Waknine was indicted on 46 counts, charging him, among other things, with participation in a RICO conspiracy in violation of 18 U.S.C. § 1962(d). Waknine at first pleaded not guilty and his case went to trial. On June 13, 2006, after five days of trial, Waknine entered a guilty plea to one count of RICO conspiracy, pursuant to a plea agreement. The plea agreement included a sentencing agreement that explicitly said, “At" }, { "docid": "22327210", "title": "", "text": "different sentence “ ‘is sufficient to undermine confidence in the outcome of the proceeding.’ ” Id. (quoting Dominguez Benitez, 542 U.S. at 83, 124 S.Ct. 2333). Where a district court denies a defendant the opportunity to allocute before sentencing, we have found nonharmless error that affected the defendant’s substantial rights. See United States v. Medrano, 5 F.3d 1214, 1219 (9th Cir.1993). Waknine does not allege such an error, however, because the district court gave Waknine an opportunity to speak at the sentencing hearing, and Waknine used that opportunity to request a lenient sentence. Instead, Waknine argues that his rights were affected when the district court did not give the government an opportunity to speak before sentencing. Waknine fails to persuade us. The government recommended a 108-month prison term in the sentencing memorandum it submitted to the district court four days before the sentencing hearing and referred the district court to that recommendation shortly after the district court imposed Waknine’s 121-month sentence. Moreover, the district court’s reference to criminal history category I supports the inference that the court had familiarized itself with the parties’ filings. Given that the 108-month recommendation was before the district court in the government’s sentencing memorandum and was brought to the district court’s attention shortly after the announced sentence, Waknine has not demonstrated that the government’s oral recommendation at the hearing before sentencing would have changed the district court’s conclusion as to the appropriate prison term. Reviewing for plain error, we hold that the dis trict court’s Rule 32(i)(4) error is not grounds for vacating the sentence. C Finally, Waknine argues that the district court erred by not considering the 18 U.S.C. § 3553(a) (“ § 3553(a)”) sentencing factors before imposing a sentence of 121 months of imprisonment. In light of Gall v. United States, — U.S.-, 128 S.Ct. 586, 596-97, 169 L.Ed.2d 445 (2007), the district court plainly erred by not considering any of the § 3553(a) sentencing factors. See Ameline, 409 F.3d at 1078 (noting that “[a]n error is plain if it is contrary to the law at the time of appeal” (internal quotation marks" }, { "docid": "22327207", "title": "", "text": "the alleged error is neither clear nor obvious, and hence does not qualify as plain error. See Olano, 507 U.S. at 734, 113 S.Ct. 1770. We hold that the government’s alleged error does not permit relief under the “plain error” standard. Moreover, there is no prejudice, no showing that substantial rights were violated, so Waknine’s theory also fails on the third prong of plain error review. See Ameline, 409 F.3d at 1078 (“He must establish ‘that the probability of a different result is sufficient to undermine confidence in the outcome of the proceeding.’ ”) (quoting United States v. Dominguez Benitez, 542 U.S. 74, 83, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004)). Because the district court was advised of the government’s position in the sentencing memorandum and almost immediately after the announced sentence, Waknine has not met his burden of showing that the government’s voicing of its known position at the hearing before sentence was announced would have led the district court to reach a different conclusion. B Waknine also argues for the first time on appeal that the district court violated Rule 32(i)(4)(A)(iii) of the Federal Rules of Criminal Procedure by not giving the government an opportunity to speak before imposing a sentence. Rule 32, in pertinent part, provides that before imposing sentence the court must “provide an attorney for the government an opportunity to speak equivalent to that of the defendant’s attorney.” Fed.R.Crim.P. 32(i)(4)(A)(iii); see also United States v. Carty, 520 F.3d 984, 991 (9th Cir.2008) (en banc) (“The parties must be given a chance to argue for a sentence they believe is appropriate.”). As we see it, the district court disregarded the express command of Rule 32 when it announced Waknine’s sentence before the government had spoken at the hearing. Possibly this might be viewed as inconsequential if we considered the government’s sentencing memorandum to be a statement at the time of the hearing. However, the plain language of Rule 32 appears to contemplate that the government, like the defendant, will have an opportunity for a speaking role at the sentencing hearing before the district court has made" }, { "docid": "22327203", "title": "", "text": "360. Finally, Keuylian transferred $698,000 to Wak-nine’s attorney’s client trust account to pay off his debt. The government requested that Waknine pay restitution to Keuylian in the amount of $275,000: $250,000 in attorneys’ fees and $25,000 in investigator’s fees. At the restitution hearing, the district court ordered Waknine to pay Keuylian $275,000 in restitution. Waknine timely filed a notice of appeal, challenging his sentence and the district court’s restitution order. II Waknine challenges his 121-month sentence on three grounds. Waknine did not raise these objections to his sentence before the district court, and thus we review each claim for plain error. See United States v. Ameline, 409 F.3d 1073, 1078 (9th Cir.2005) (en banc). “Plain error is’(l) error, (2) that is plain, and (3) that affects substantial rights.’ ” Id. (quoting United States v. Cotton, 535 U.S. 625, 631, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002)). If these three conditions are met, we may then exercise our discretion to grant relief if the error “seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Id. (quoting Cotton, 535 U.S. at 631, 122 S.Ct. 1781); see also United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). A Waknine contends that the government violated the plea agreement because it did not recommend at the sentencing hearing, before the district court imposed the 121-month sentence, that the district court sentence Waknine to 108 months of imprisonment. “In interpreting plea agreements, the government is to be held to the literal terms of the agreement, and ordinarily must bear responsibility for any lack of clarity.” United States v. Baker, 25 F.3d 1452, 1458 (9th Cir.1994) (internal quotation marks omitted). “To decide whether a plea agreement has been breached, this court considers what the defendant reasonably understood when he pled guilty.” United States v. Packwood, 848 F.2d 1009, 1011 (9th Cir.1988). Waknine’s claim centers on the construction and application of the following term of the plea agreement: “At the time of sentencing, the government agrees to recommend that defendant be sentenced to a 108-month term of imprisonment.” Notably, four" }, { "docid": "22327205", "title": "", "text": "days before the sentencing hearing, the government filed a sentencing memorandum in which it expressly recommended “that defendant Hai Waknine be sentenced to nine years imprisonment.” If this written recommendation satisfies the contractual obligation, as the government argues, then there was no breach. Wak-nine argues, to the contrary, that the plea agreement required that the government recommend a 108-month sentence at the sentencing hearing, before the district court imposed a sentence. If we adopt Waknine’s interpretation of the plea agreement, then there was a breach because at the sentencing hearing the district court announced Waknine’s sentence without first hearing from the government. The district court only heard from the government after it imposed Waknine’s sentence, at which time the government reminded the district court that it “had recommended a nine-year sentence in this case.” Waknine argues that the pre-hearing sentencing memorandum and the post-sentencing recommendation at the hearing were insufficient to satisfy the government’s obligation under the plea agreement to recommend “at the time of sentencing” a 108-month prison term. He asserts that the plea agreement required the government orally to recommend the 108-month prison term at the sentencing hearing before the district court sentenced Waknine. The government, on the other hand, contends that it fulfilled its obligations under the plea agreement by recommending a nine-year (108-month) prison term in its sentencing position memorandum, and by reminding the district court of that recommendation post-sentencing. This issue of contract interpretation on the plea agreement turns on whether the phrase “at the time of sentencing” refers to the sentencing hearing alone, or whether it also includes the days preceding the hearing, during which parties file sentencing position memoranda. Ordinarily, we construe an ambiguity in a plea agreement in favor of the defendant. See United States v. Clark, 218 F.3d 1092, 1095 (9th Cir.2000). Here, however, Waknine did not preserve his claim of alleged plea agreement breach in the district court. Both Waknine and the government present plausible constructions of the disputed phrase — “at the time of sentencing.” We conclude that the phrase in the plea agreement is ambiguous. It follows that" }, { "docid": "22327198", "title": "", "text": "U.S.C. § 1291. We conclude that there was plain error in the sentencing, and we therefore vacate the sentence, and remand with instructions for the district court properly to calculate the United States Sentencing Guidelines range, to discuss the 18 U.S.C. § 3553(a) factors in rendering sentence, and to comply with Rule 32 of the Federal Rules of Criminal Procedure by permitting each party to be heard before announcing the sentence. We also vacate the district court’s restitution order, and remand for recalculation and explanation of restitution payments. Finally, we reject Waknine’s request for a new sentencing judge. I On December 7, 2004, Waknine was indicted on 46 counts, charging him, among other things, with participation in a RICO conspiracy in violation of 18 U.S.C. § 1962(d). Waknine at first pleaded not guilty and his case went to trial. On June 13, 2006, after five days of trial, Waknine entered a guilty plea to one count of RICO conspiracy, pursuant to a plea agreement. The plea agreement included a sentencing agreement that explicitly said, “At the time of sentencing, the government agrees to recommend that defendant be sentenced to a 108-month term of imprisonment.” The Presentence Investigation Report (“PSR”) calculated a total offense level of 31 and Waknine’s criminal history category at II. The PSR therefore recommended a United States Sentencing Guidelines (“Guidelines”) range of 121 to 151 months of imprisonment. The PSR also stated that Waknine and the government agreed that he should receive a sentence of 108 months of imprisonment. On September 7, 2006, Waknine filed his specific objections to the PSR. Among his objections, Waknine argued that the district court should lower his criminal history category from II to I. Waknine argued that several of his predicate convictions were not properly considered for purposes of his criminal history score because they were committed outside the applicable time period and because there was no evidence that he waived his right to counsel. See U.S.S.G. § 4A1.2(e). Also on September 7, 2006, four days before the sentencing hearing, the government filed its sentencing memorandum and explicitly recommended that the" }, { "docid": "12970919", "title": "", "text": "at 13 n. 3 (opining that violation of terms not inducing the plea will be considered harmless); Correale, 479 F.2d at 947. Were it clear, for example, that the court had been fully aware of the recommendation at sentencing, the mere failure by the government to present it orally might not prove prejudicial. Compare United States v. Flores-Sandoval, 94 F.3d 346, 352 (7th Cir.1996) (finding that failure to orally state terms of agreement, of which court was aware, would not be sufficient to show prejudice to defendant), with United States v. Barnes 278 F.3d 644, 647-48 (6th Cir.2002) (stating that government’s failure “to expressly request” terms of plea agreement can constitute prejudicial error, even where court knew terms of agreement and would have rejected recommendation). Here the district judge acknowledged the government’s intended recommendation at the Rule 11 hearing, but several months elapsed between the hearing and sentencing, and it is unclear whether the court deliberately rejected the government’s recommendation or simply forgot about it during the intervening time. As a result, the government’s failure to abide by the plea bargain was not a mere “technical” breach. Cf. United States v. Pryor, 957 F.2d 478, 482 (7th Cir.1992) (failing to inform court of infor mation relevant to plea, of which court already is aware, is “technical violation” that does not amount to plain error). In addition to being prejudicial, the government’s breach of the plea agreement meets the fourth prong of the Olano test: [Bjeeause violations of plea agreements on the part of the government serve not only to violate the constitutional rights of the defendant, but directly involve the honor of the government, public confidence in the fair administration of justice, and the effective administration of justice in a federal scheme of government, we hold that the Government’s breach constituted plain error. United States v. McQueen, 108 F.3d 64, 66 (4th Cir.1997); accord Barnes, 278 F.3d at 647-48. IV. As a result of the government’s breach of the plea agreement, exacerbated by defense counsel’s performance, we vacate the sentence and remand the case for further proceedings. Whether specific performance" }, { "docid": "12970915", "title": "", "text": "the plea agreement. The district court accepted the plea agreement, concluded that the applicable guideline range was 188 to 235 months, based on a total offense level of 31 and a CHC of VI, and sentenced defendant to 235 months’ imprisonment and five years’ supervised release. The court, after having to remind the government to move to dismiss, then dismissed Count VI. The defendant never raised any objection to his sentence before the district court. However, the defendant appeals his sentence to this Court and seeks to withdraw his plea, alleging that the government breached the plea agreement. II. “When a defendant has knowledge of conduct ostensibly amounting to a breach of a plea agreement, yet does not bring that breach to the attention of the sentencing court, we review only for plain error.” United States v. Saxena, 229 F.3d 1, 5 (1st Cir.2000). To establish plain error, a defendant must demonstrate that: (1) there was error; (2) the error was plain; (3) the error affected the defendant’s substantial rights; and (4) the error adversely impacted the fairness, integrity, or public reputation of judicial proceedings. See United States v. Olano, 507 U.S. 725, 732-36, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993); Saxena, 229 F.3d at 5. III. “[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.” Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971). “Because plea bargaining requires defendants to waive fundamental constitutional rights, we hold prosecutors engaging in plea bargaining to ‘the most meticulous standards of both promise and performance.’ ” United States v. Vélez Carrero, 77 F.3d 11, 11 (1st Cir.1996) (quoting United States v. Clark, 55 F.3d 9, 12 (1st Cir.1995)). In this case, the government fell woefully short of satisfying these “meticulous standards.” Although the plea agreement bound the government to recommend a sentence based on a drug quantity of five to fifty grams, the government utterly failed to do so. Instead, the" }, { "docid": "22327231", "title": "", "text": "that in this particular case it will have “substantial difficulty in putting out of [its] ... mind previously-expressed views or findings determined [by us] to be erroneous.” See id. at 809-10. Moreover, Waknine’s contention that attorneys “cower” before Judge Real is not supported by the record in this case. We note that neither Waknine’s attorney nor the government’s attorney faltered in the least bit in their arguments or retreated from their positions at the sentencing and restitution hearings. We are confident that in future proceedings counsel will not hesitate to advocate before the district court. We reject Waknine’s request for a change of judge, and remand this case for further consideration and proceedings consistent with this opinion. CONVICTION AFFIRMED; SENTENCE VACATED; RESTITUTION ORDER VACATED; REMANDED. . The government could only estimate that the total amount loaned to Hadad fell somewhere between $250,000 and $595,000. . At the sentencing hearing, Waknine did not claim that the government breached the plea agreement. Thus, Waknine did not preserve this issue for appeal and we review the claim for plain error. United States v. Cannel, 517 F.3d 1172, 1175-76 (9th Cir.2008). . To the extent that Waknine is contending that the district court violated Rule 32(i)(3)(B) of the Federal Rules of Criminal Procedure, we conclude that the district court did not plainly err by resolving Waknine’s factual objection to his criminal history category after the imposition of sentence. Given that the district court resolved this factual dispute in Waknine's favor (by applying a criminal history category I instead of criminal history category II), any error did not affect Waknine’s substantial rights. See Ameline, 409 F.3d at 1078. . Under our precedent in United States v. Knows His Gun, 438 F.3d 913 (9th Cir.2006), cert. denied, 547 U.S. 1214, 126 S.Ct. 2913, 165 L.Ed.2d 931 (2006), where a defendant does not object at sentencing to the district court’s failure to sufficiently address and apply the § 3553(a) factors, we review such a claim on appeal for plain error. Id. at 918. . As we discussed in part III.A, the district court clearly erred in calculating" }, { "docid": "12970917", "title": "", "text": "government accepted the PSR’s recommendation that 480 grams of cocaine base be attributed to the defendant. Consequently, the prosecutor stated that the guideline range was 188 to 235 months and that he recommended a sentence of 200 months. The prosecutor never mentioned during sentencing the plea agreement, the five to fifty grams drug quantity, or another guideline range that corresponded to this drug quantity. Thus, the government failed to satisfy its obligation under the plea agreement. The critical issue before us, however, is whether the government’s breach of the agreement amounts to plain error under the Olano standard. Although plain error review usually applies to errors committed by the court, we have also assessed governmental breaches of plea bargains, in the absence of a contemporaneous objection, under this same standard. See Saxena, 229 F.3d at 5. Beyond a plain violation of the plea agreement, the defendant must show that the government’s breach was prejudicial. See Olano, 507 U.S. at 734, 113 S.Ct. 1770 (noting that, to affect substantial rights, the error must be prejudicial). Although a defendant usually demonstrates prejudice by proving that the error affected the outcome of the proceedings, see id., a defendant alleging a breached plea agreement on appeal need not go so far. See Clark, 55 F.3d at 13-14 (stating that prosecutor’s failure to abide by plea agreement, even if did not affect the defendant’s sentence, is not harmless error); Correale v. United States, 479 F.2d 944, 949 (1st Cir.1973) (finding that prosecutor’s breach of plea agreement “is not rendered harmless because of judicial refusal to follow the recommendation or judicial awareness of the impropriety”). In a plea agreement, the defendant is bargaining for “the prestige of the government and its potential to influence the district court.” Velez Carrero, 77 F.3d at 12. When the prosecutor fails to fulfill the agreement, the defendant is prejudiced because his rights are violated. See Correale, 479 F.2d at 949 (noting that waiver of rights, in exchange for prosecutor’s statements, is ineffective when agreement is violated). That said, minor deviations will not void a plea bargain. See Clark, 55 F.3d" }, { "docid": "15441135", "title": "", "text": "to 24 I’m not going to dispute that,” V R. at 29, and “I agree with the 18 to 24 months.” Id. at 41. During the sentencing hearing, (1) the government did not verbalize its recommendation that Mr. Thomas be sentenced at the low end of the range, (2) Mr. Thomas did not object to the government’s failure to do so, and (3) the court itself made no specific reference to the sentencing recommendation. Mr. Thomas received a sentence of 24 months imprisonment, the highest permitted under the guideline range. Id. Discussion A claim that the government has breached a plea agreement is a question of law we review de novo, even where, as here, the defendant failed to object at the time of the alleged breach. United States v. Peterson, 225 F.3d 1167, 1170 (10th Cir.2000); see also id. .at n. 2 (noting the circuit split on whether to apply a plain error analysis, as do a majority of circuits, or de novo review). Government promises in a plea agreement must be fulfilled to maintain the integrity of the plea. Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971). We apply a two-step analysis to determine if the government breached a plea agreement: (1) we examine the nature of the government’s promise; and (2) we evaluate this promise in light of the defendant’s reasonable understanding of the promise at the time the guilty plea was entered. United States v. Brye, 146 F.3d 1207, 1210 (10th Cir.1998). Principles of general contract law guide our analysis of the government’s obligations under the agreement. Thus, in assessing whether the government has breached the agreement, we look first to the express terms of the agreement, and if applicable, we construe any ambiguities against the government as the drafter of the agreement. Id. The plea agreement contained the following language: “The government will recommend that [Mr. Thomas] be sentenced at the low end of the applicable guideline range.” I R. Doc. 69 at 6. Mr. Thomas contends that this required the government to allocute in favor of sentencing" }, { "docid": "22327213", "title": "", "text": "see also Carty, 520 F.3d at 991. However, in this case, the district court sentenced Waknine in 2006 before having the benefit of both the Supreme Court’s decision in Gall and our follow-on decision in Carty. From that standpoint, a sensible argument can be made that we should vacate and remand for the district court to resentence in the light of those precedents. That would surely be correct if there had been objection to the sentencing procedure, but the answer is not entirely clear on plain error review. Although we see plain error, the issue remains as to whether Waknine has demonstrated a reasonable probability that he would have received a different sentence if the district court had expressly considered the § 3553(a) factors. See Ameline, 409 F.3d at 1078 (“He must establish ‘that the probability of a different result is sufficient to undermine confidence in the outcome of the proceeding.’ ” (quoting Dominguez Benitez, 542 U.S. at 83, 124 S.Ct. 2333)); see also Olano, 507 U.S. at 734, 113 S.Ct. 1770 (“It is the defendant rather than the Government who bears the burden of persuasion with respect to prejudice.”). Although it is a close question whether Wak-nine can satisfy the third prong of the plain error test, we conclude that the district court’s total failure to announce its calculated Guidelines range to the parties and to consider expressly the § 3553(a) factors is such a serious departure from established procedures that we will not reject the appeal because of the prejudice prong of plain error review. When combined with the district court’s violation of Rule 32, the district court’s complete failure to abide by the required sentencing procedures is sufficient to support the inference “that the error must have affected the outcome of the district court proceedings.” Cotton, 535 U.S. at 632, 122 S.Ct. 1781 (internal quotation marks omitted). Given the flagrant nature of the district court’s error, which in our judgment “seriously affect[s] the ... public reputation of judicial proceedings,” Johnson v. United States, 520 U.S. 461, 467, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997) (internal quotation marks" } ]

[ { "docid": "12013673", "title": "", "text": "spoke to him about requiring all local numbers business to be turned in to Chick. Abraham yielded to this pressure and thereafter did business with Chick, and continued to do so until April 23, 1971. He also became an informer for a state law enforcement agency, and began surreptitiously to record conversations with the defendants. These recorded conversations corroborate his testimony that Riehl, Rinaldi and Chick were conspiring to facilitate Chick’s gambling enterprise. The foregoing evidence establishes all the elements necessary for conviction of the charge alleged in the second count of the Indictment. That count charges a conspiracy to obstruct the enforcement of the criminal laws of Pennsylvania with the intent to facilitate Chick’s illegal gambling enterprise. Chick, Abraham, and Abraham’s five runners supplied the necessary persons. 18 U.S.C. § 1511(b) (1) (ii). The operation continued for more than thirty days. 18 U.S.C. § 1511(b) (1) (iii). Two conspirators (Riehl and Rinaldi) were officials or employees of a political subdivision. 18 U.S.C. § 1511(a) (2). One conspirator (Chick) conducted, financed, managed, supervised, directed or owned the illegal gambling business. 18 U.S.C. § 1511(a) (3). It is clear, as well, that the foregoing evidence proved a violation by Chick of § 1955, as charged in the first count of the Indictment. Riehl and Rinaldi were also charged in and convicted on the first count. Their conviction of the substantive violation of § 1955, as distinguished from the § 1511 conspiracy, can stand only if there is evidence that they, as well as Chick, conducted, financed, managed, supervised, directed, or owned the enterprise. Title VIII differentiates between facilitating an illegal gambling business and carrying on such a business. It seems clear that one may conspire to facilitate such a business and thereby violate § 1511, and at the same time be so removed from its operation so as to fall outside the reach of § 1955. On the entire record, however, we conclude that there was sufficient evidence to sustain the § 1955 conviction of Riehl and Rinaldi. This is not a case where corrupt public officials merely extorted tribute in" } ]

[ { "docid": "22565448", "title": "", "text": "AINSWORTH, Circuit Judge: Appellants Louis B. Pacheco and John N. Fountain, Jr., were indicted, along with fifty-eight other persons, in a two-count indictment charging them with operation of an illegal gambling business, in violation of 18 U.S.C. §§ 1955 and 2, and with conspiracy to operate an il legal gambling business, in violation of 18 U.S.C. § 371. All those indicted were allegedly participants in the same illegal gambling organization involving bookmaking and numbers operations in Florida. By the date set for trial, fifty-two of the defendants entered pleas of guilty to one or both counts, and only four defendants were left for trial. After a two-week jury trial, verdicts of guilty on both counts were returned as to three of the defendants, including appellants here. The fourth defendant was found guilty on count II but was acquitted on the conspiracy charge contained in count I. Appellant Pacheco was placed on a three-year probation, and appellant Fountain was sentenced to six months in jail plus a five-year probation. Appellants do not contest the sufficiency of the evidence presented at trial to support their convictions; rather, they raise several issues concerning the trial court’s rulings on certain motions and on particular matters of evidence. After careful consideration of their assertions of error, we affirm appellants’ convictions. I For federal jurisdiction to exist over the operation of an illegal gambling business, in violation of 18 U.S.C. § 1955, it is necessary to show, inter alia, that the business “involve [d] five or more persons” in its conduct, financing, management, supervision, direction, or ownership. 18 U.S.C. § 1955(b) (1) (ii). Because of this jurisdictional requirement, appellants, relying on Wharton s rule, see page 558, infra, contend that it was improper to charge them with both the substantive offense of operating an illegal gambling business and a conspiracy to commit that offense; and that the trial court, therefore, erred in denying their motions to dismiss count I of the indictment, which charged a violation of 18 U.S.C.. § 371. While Wharton’s rule, properly applied, may occupy a legitimate place in the criminal law, it" }, { "docid": "10653312", "title": "", "text": "that defendants are entitled to have the conspiracy count dismissed. The general conspiracy statute, 18 U.S.C. § 371, can punish conspiratorial conduct which does not amount to a substantive violation of 18 U.S.C. § 1955. As was said in United States v. Riehl (Appeal of Rinaldi), supra, 460 F.2d p. 460, in discussing a § 1955 gambling business: “It seems clear that one may conspire to facilitate such a business * * * and at the same time be so removed from its operation so as to fall outside - the reach of § 1955.” Absent a clear legislative intent to the contrary, we believe that persons conspiring with the members of an established illegal gambling business as defined by 18 U.S.C. § 1955 and committing an overt act not amounting to a substantive violation of § 1955, but facilitating such a business or aimed at eventual criminal participation therein, can be held responsible under the general conspiracy statute, 18 U.S.C. § 371. Cf. Woods v. United States, 99 U.S.App. D.C. 351, 240 F.2d 37 (1956); Lisansky v. United States, 31 F.2d 846 (4th Cir. 1929); see: Annot., 91 A.L.R.2d 1148 (1963). Defendants’ motions will be denied. An appropriate order will be entered. . The docket entries in this case reveal that 29. substantive motions have been filed by defendants to-date. . A comparison of the points raised here with those raised in United States v. Iannelli, 339 F.Supp. 171 (W.D.Pa.1972), shows that many points raised in this case have already been disposed of by Judge Weis in his Iannelli opinion. . As a result of this admission by the government, Judge Weis ordered that certain wiretap evidence be suppressed in the case of United States v. LaGorga, supra. (See amended order entered April 12, 1972, United States v. LaGorga, 340 F. Supp. 1397 (W.D.Pa.1972).) The government has taken an appeal from this order. . One of the defendants, William Kohne, has moved to dismiss the indictment against him on the basis that the government failed to satisfactorily answer the written interrogatories submitted to former Attorney General Mitchell. A decision" }, { "docid": "10653309", "title": "", "text": "that the illegal gambling business statute, 18 U.S.C. § 1955, is unconstitutional. On May 9, 1972, after briefs had been submitted and oral argument had in this case, the Third Circuit Court of Appeals upheld the constitutionality of 18 U.S.C. § 1955 in the case of United States v. Riehl (Appeal of Rinaldi), 460 F.2d 454 (3d Cir. 1972). We hold defendants’ contentions in this regard fail on the basis of the above cited decision. 7. The Application of Wharton’s Rule to the Indictment. In Count One of the indictment, defendants are charged with conspiring to violate 18 U.S.C. § 1955 and thereby violating 18 U.S.C. § 371, and in Count Two they are charged with actually conducting an illegal gambling business and thereby committing substantive violations of 18 U.S.C. § 1955. The defendants contend that a conviction on both counts cannot stand because it would be a duplication of punishment and, accordingly, count one, the conspiracy count, should be dismissed. Defendants rely on United States v. Greenberg, 334 F.Supp. 1092 (N.D.Ohio 1971). These contentions are based on the definition of “illegal gambling business” found in § 1955: “(1) ‘illegal gambling business’ means a gambling business which— (i) is a violation of the law of a State or political subdivision in which it is conducted; (ii) involves five or more persons who conduct, finance, manage, supervise, direct, or own all or part of such business; and (iii) has been or remains in substantially continuous operation for a period in excess of thirty days or has a gross revenue of $2,000 in any single day.” 18 U.S.C. § 1955(b). (Emphasis supplied.) One of the purposes of the general conspiracy statute, 18 U.S.C. § 371, is to punish concerted action involving a plurality of actors which makes crime easier to perpetrate and harder to detect. United States v. Rabinowich, 238 U.S. 78, 88, 35 S.Ct. 682, 59 L.Ed. 1211 (1915). But, by virtue of the definition of illegal gambling business in § 1955, supra, it is a prerequisite that the concerted action of five or more persons be involved before a federal" }, { "docid": "10653307", "title": "", "text": "from their residence by F.B.I. agents on July 12, 1971. They contend that while the officers were armed with a search warrant, the affidavit for the search warrant does not set forth probable cause because it is based upon facts occurring long prior to the search, and further that $1900 in cash seized by the officers was not such an integral part of any gambling operation so as to be of evidential value at trial, and, accordingly, should be returned to them. The search warrant for the Stanizzo residence was issued on July 11, 1971, and executed on July 12, 1971. Five pages of the fifty-one page affidavit of Special Agent Burton set out the probable cause for the issuance of a search warrant for the Stanizzo residence. This portion of the affidavit shows that there was probable cause to believe that the Stanizzos operated a gambling business from June, 1970, to May, 1971, and it also sets out that as recently as July 8, 1971, a confidential informant verified that by reason of his personal gambling activities he knew that the Stanizzos continued to operate a gambling business. In our view, the information supplied by the confidential informant updated the earlier information and the affidavit sets out probable cause for the issuance of the search warrant on July 11, 1971. Cf. United States v. Harris, supra. Defendants also contend that $1900 in cash seized from a bedroom dresser should be returned to them because there is no evidence showing it was an integral part of a gambling business, citing Commonwealth v. Blythe, 178 Pa.Super. 575, 115 A.2d 906 (1955), a ease involving a public Bingo game. At the evidentiary hearing it was disclosed to the court that the Internal Revenue Service had filed a lien against this money (Tr., p. 236). Accordingly, a determination of whether this money should be returned to the Stanizzos, forfeited under 18 U.S.C. § 1955(d) or turned over to the Internal Revenue Service is premature at this time. The motion to return will be denied. 6. Constitutionality of 18 U.S.C. § 1955. Defendants allege" }, { "docid": "22267956", "title": "", "text": "not even reach this level of antagonism. Accordingly, we reject defendants’ severance argument. V. SUFFICIENCY OF THE EVIDENCE Granito raises two challenges to the sufficiency of the evidence supporting his convictions. The first involves the evidence regarding the Patrizzi murder; the second pertains to the North Margin Street poker games. A. The Patrizzi Murder Granito contends that insufficient evidence existed to prove that he was an accessory before the fact to the murder of Angelo Patrizzi and therefore his two RICO convictions must be overturned. To understand the reasoning behind this argument, as well as our analysis of it, it is necessary to review the nature of the charges against Granito and the form of the jury’s verdict. The indictment charged Granito with two RICO counts, under 18 U.S.C. § 1962(d) and (c) respectively, as well as with one substantive gambling violation, under 18 U.S.C. § 1955. The two RICO counts, in turn, charged Granito with the commission of three predicate acts: (1) conspiring to murder Patrizzi; (2) being an accessory before the fact to the murder of Patrizzi by inciting, procuring, counseling, hiring and commanding Frederick Simone and others to commit the murder; and (3) owning and operating an illegal gambling business (the North Margin Street poker games). This last predicate act corresponded to the substantive gambling count charged separately against Granito under 18 U.S.C. § 1955. In explaining these charges to the jury, the trial court set forth the legal elements the jury had to find to convict on each of the alleged criminal acts. The court also explicitly instructed the jury that as a prerequisite to finding Granito guilty of being an accessory before the fact to the murder of Patrizzi, “you must first find that Frederick Simone actually committed or was otherwise a principal in the commission of the murder of Angelo Patrizzi.” The jury returned a general verdict finding Granito guilty on both of the RICO counts, thereby necessarily finding him guilty on at least two of the three predicate acts charged. The jury also found Grani-to guilty on the substantive gambling count that had" }, { "docid": "14044997", "title": "", "text": "did not “induce” the Government’s current situation, and principles of justice do not demand that the statute of limitations be tolled under the current circumstances. This court has never applied equitable tolling to rescue a Government indictment filed after the statute of limitations has lapsed, and we see no convincing rationale to do so here. C. Conclusion For the above reasons we hold that the District Court erred by denying Atiyeh’s pretrial motion to dismiss Counts Three through Six and Nine through Fifteen of the indictment as time-barred. III. Acquittal of Gambling Offenses As noted earlier, the Government filed two cross appeals. One challenges the order of the District Court granting Atiyeh’s post-trial motion for judgments of acquittal under Fed.R.Crim.P. 29(c) as to Counts Two, Eight through Fifteen, and Count One (to the extent it was based on a violation of 18 U.S.C. § 1955). Count Eight charged conspiracy to commit money laundering. Counts Nine through Fifteen charged separate money laundering violations under 18 U.S.C. § 1956(a)(2). Under 18 U.S.C. § 1956(a)(2)(A), it is a crime to transfer funds to or from the United States “with the intent to promote the carrying on of a specified unlawful activity,” in this case illegal gambling activity in violation of 18 U.S.C. § 1955. Section 1955 provides, in pertinent part: (a) Whoever conducts, finances, manages, supervises, directs, or owns all or part of an illegal gambling business [is guilty of this offense]. (b) As used in this section— (1) “illegal gambling business” means a gambling business which - (i) is a violation of the law of a State ... in which it' is conducted; (ii) involves five or more persons who conduct, finance, manage, supervise, direct, or own all or part of such business; and (iii) has been or remains in substantially continuous operation for a period in excess of thirty days or has a gross revenue of $2,000 in any single day. (2) “gambling” includes but is not limited to pool-selling, bookmaking, maintaining slot machines, roulette wheels or dice tables, and conducting lotteries, policy, bolita or number games, or selling chances therein." }, { "docid": "22267890", "title": "", "text": "conversation the next day with Zannino, enlisted Zannino’s assistance as well. On March 13, 1981, Angelo Patrizzi disappeared. In a conversation intercepted on April 3, 1981, Zannino told John Cincotti and Ralph Lamattina that Patrizzi had been killed by nine men and put in a car trunk. On June 11, 1981, authorities found Patrizzi’s decomposed body in the trunk of a stolen car in Lynn, Massachusetts. Gen-naro Angiulo and Granito were charged with conspiring to murder Patrizzi and with being accessories before the fact to his murder. D. The Jury’s Verdict The above activities, among others, were set forth in the indictment against the relevant defendants as predicate acts constituting a pattern of racketeering activity in violation of the Racketeer Influenced and Corrupt Organizations Act (RICO). With the exception of the murder conspiracies, the activities also were charged in the indictment as separate substantive counts against the applicable defendants. Following an eight-month jury trial, Gen-naro Angiulo, Donato Angiulo, Francesco Angiulo and Samuel Granito were each convicted, under RICO, of conspiring to participate, and participating, in the affairs of an enterprise through a pattern of racketeering activity, in violation of 18 U.S.C. § 1962(d) and (c). Gennaro Angiulo was also convicted of the following offenses: four counts of conducting illegal gambling businesses, in violation of 18 U.S.C. § 1955; two counts of conspiring to make an extortionate extension of credit, in violation of 18 U.S.C. § 892(a); ■ conspiring to collect, and collecting, an extortionate extension of credit, in violation of 18 U.S.C. § 894(a); obstruction of, and conspiring to obstruct, justice, in violation of 18 U.S.C. § 1503 and 18 U.S.C. § 371. Donato Angiulo was also convicted of conducting an illegal gambling business, in violation of 18 U.S.C. § 1955 and conspiring to make an extortionate extension of credit, in violation of 18 U.S.C. § 892(a). Granito was also convicted of conducting an illegal gambling business, in violation of 18 U.S.C. § 1955. Francesco Angiulo was also convicted of the following offenses: four counts of conducting illegal gambling businesses, in violation of 18 U.S.C. § 1955; two counts of" }, { "docid": "12803557", "title": "", "text": "under § 2518(1) (c). To hold otherwise would constitute unwarranted court interference with legitimate investigative discretion contrary to the congressional intent. Appellants’ final two contentions are that the court erred in failing to dismiss the conspiracy count of the indictment under the Wharton’s rule principle, and that the federal criminal statute prohibiting gambling is unconstitutional. As appellants’ counsel noted on oral argument, this circuit has already determined these contentions adversely to his clients. United States v. Pacheco, supra. Therefore the convictions are affirmed. . The government charged all appellants with a conspiracy under 18 U.S.C. § 371 to violate 18 U.S.C. § 1955. One count of the indictment also charged appellants Pinder and McCray with a substantive violation of § 1955. . Appellants conceded at trial that FBI Agent Underwood’s testimony provided sufficient evidence to support a conviction. They claimed that his evidence was inadmissible because of the alleged illegality of the wiretap. Presumably the government did not have sufficient other evidence to support a conviction. . The “authorization” from Attorney General Mitchell to Henry Petersen carried a November 15, 1971 date. Mitchell submitted an affidavit to the court in another proceeding that stated that he never exercised his authority under 18 U.S.C. § 2516 to specially designate an Assistant Attorney General to authorize wiretap applications. Instead he personally reviewed almost all applications, then attached a form letter that indicated the Assistant Attorney General had approved the application. Appellants do not claim that Attorney General Mitchell did not personally review the application submitted to Judge King. Cf. United States v. Giordano, 1974, 416 U.S. 505, 94 S.Ct. 1820, 40 L.Ed.2d 341. . IS U.S.C. § 2518(1) (c) provides: “Each application for an order authorizing or approving the interception of a wire or oral communication . . . shall include the following information: (c) a full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous.” 18 U.S.C. § 2518(3) (c) requires the judge issuing the order authorizing" }, { "docid": "20026085", "title": "", "text": "have issued two published opinions in this case. United States v. Conley, 37 F.3d 970 (3d Cir.1994); United States v. Conley, 4 F.3d 1200 (3d Cir.1993), cert. denied, 510 U.S. 1177, 114 S.Ct. 1218, 127 L.Ed.2d 564 (1994). Two of the district court’s opinions are particularly significant. In United States v. Conley, 859 F.Supp. 909 (W.D.Pa.1994), the district court rejected Conley’s motions to dismiss the indictment on the grounds that video poker is de facto legal, he was prosecuted selectively, and the government engaged in misleading conduct (“entrapment by estoppel”) thereby violating his due process rights. However, in another order the court dismissed certain money laundering counts on the ground that they were duplicitous. United States v. Conley, 826 F.Supp. 1536 (W.D.Pa.1993). Following that dismissal, on August 4, 1994, a grand jury in the Western District of Pennsylvania returned a 15-count indictment charging Conley with money laundering in violation of 18 U.S.C. §§ 1956(a)(1)(A) and 2. These new counts reasserted the charges in the dismissed money laundering counts. On November 22,1994, the district court consolidated the two indictments for trial. Conley was the only defendant to be tried because the others all pleaded guilty to a violation of 18 U.S.C. § 371 or 18 U.S.C. § 1955. Conley’s first trial ended in a mistrial. His second trial began on April 25, 1995, and concluded on June 23, 1995, with the jury finding him guilty on counts one and two of the original indictment charging him with conspiracy in violation of 18 U.S.C. § 371 and with conducting an illegal gambling business in violation of 18 U.S.C. §§ 1955 and 2. The jury was unable to reach a verdict on the 15 money laundering counts in the second indictment and the court declared a mistrial as to them. On July 14, 1995, the district court made tentative findings of fact for sentencing purposes pursuant to U.S.S.G. § lB1.2(d). Employing a “beyond a reasonable doubt standard,” as required by application note 5 to section l.B1.2(d), the court found that Conley and his co-conspirators “adhered to and/or conspired to commit both of the" }, { "docid": "10653308", "title": "", "text": "personal gambling activities he knew that the Stanizzos continued to operate a gambling business. In our view, the information supplied by the confidential informant updated the earlier information and the affidavit sets out probable cause for the issuance of the search warrant on July 11, 1971. Cf. United States v. Harris, supra. Defendants also contend that $1900 in cash seized from a bedroom dresser should be returned to them because there is no evidence showing it was an integral part of a gambling business, citing Commonwealth v. Blythe, 178 Pa.Super. 575, 115 A.2d 906 (1955), a ease involving a public Bingo game. At the evidentiary hearing it was disclosed to the court that the Internal Revenue Service had filed a lien against this money (Tr., p. 236). Accordingly, a determination of whether this money should be returned to the Stanizzos, forfeited under 18 U.S.C. § 1955(d) or turned over to the Internal Revenue Service is premature at this time. The motion to return will be denied. 6. Constitutionality of 18 U.S.C. § 1955. Defendants allege that the illegal gambling business statute, 18 U.S.C. § 1955, is unconstitutional. On May 9, 1972, after briefs had been submitted and oral argument had in this case, the Third Circuit Court of Appeals upheld the constitutionality of 18 U.S.C. § 1955 in the case of United States v. Riehl (Appeal of Rinaldi), 460 F.2d 454 (3d Cir. 1972). We hold defendants’ contentions in this regard fail on the basis of the above cited decision. 7. The Application of Wharton’s Rule to the Indictment. In Count One of the indictment, defendants are charged with conspiring to violate 18 U.S.C. § 1955 and thereby violating 18 U.S.C. § 371, and in Count Two they are charged with actually conducting an illegal gambling business and thereby committing substantive violations of 18 U.S.C. § 1955. The defendants contend that a conviction on both counts cannot stand because it would be a duplication of punishment and, accordingly, count one, the conspiracy count, should be dismissed. Defendants rely on United States v. Greenberg, 334 F.Supp. 1092 (N.D.Ohio 1971). These contentions" }, { "docid": "10653292", "title": "", "text": "OPINION AND ORDER MARSH, Chief Judge. The defendants in this case have been charged in a two-count indictment with conspiring to violate 18 U.S.C. § 1955 in violation of 18 U.S.C. § 371 (Count One) and with the substantive violation, and aiding and abetting the substantive violation, of 18 U.S.C. § 1955 (Count Two). A large portion of the government’s evidence against these defendants has apparently been derived from court-authorized wiretaps installed upon certain telephones under the authority of 18 U. S.C. §§ 2510-2520. The defendants have filed numerous motions; an evidentiary hearing was held, and at this hearing and by orders issued afterwards many motions were ruled upon and disposed of. This memorandum is to dispose of defendants’ motions aimed at suppressing evidence and dismissing the indictment. With the exception of the motions of defendants Patsy Stanizzo and Betty Howden Stanizzo the motions to suppress evidence are aimed at the constitutionality, validity and purity of the procedures utilized by the government in this ease in installing and gathering evidence against these defendants via court-authorized wiretaps. The following points have been raised by the defendants which merit some discussion: 1. The statute authorizing interception of telephone communications, Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510, 2520 is unconstitutional. 2. The applications for the court orders authorizing interceptions of telephone communications were not properly authorized. 3. Toll records of the telephone company were illegally obtained by the United States Attorney’s Office and used in the applications for court orders authorizing interceptions. 4. The court orders authorizing interceptions were not based upon probable cause. 5. The search of the residence of Patsy Stanizzo and Betty Howden Stanizzo was not based upon probable cause, and certain monies seized in that search should be returned. In addition, the defendants have moved to dismiss the indictment asserting: 6. The illegal gambling businesses statute, 18 U.S.C. § 1955, is unconstitutional. 7. The conspiracy count represents a duplication of the substantive offense set out in 18 U.S.C. § 1955 and should be dismissed. 1. Constitutionality of 18 U.S.C." }, { "docid": "20026083", "title": "", "text": "central figure in an extensive illegal video poker machine gambling business and covered the period from 1984 through September 26, 1991. Count one charged Conley and his 22 co-defendants with conspiracy to conduct an illegal gambling business and to launder the proceeds therefrom in violation of 18 U.S.C. § 371. Count two charged Conley and his 22 co-defendants with conducting an illegal gambling business in violation of 18 U.S.C. §§ 1955 and 2. One “part and object” of the conspiracy was that Conley and his co-conspirators conducted an illegal gambling business involving video poker machines “in violation of the laws of the Commonwealth of Pennsylvania” which, in turn, was in violation of 18 U.S.C. § 1955. Count one also charged that a “further” “part and object” of the conspiracy was to engage in money laundering to promote the illegal gambling business in violation of 18 U.S.C. § 1956(a)(1)(A). The conspiracy count charged that “an essential part of the illegal gambling business” involved the division of gambling proceeds with a person at the video poker machine locations, the delivery of Conley’s share of the gambling proceeds to certain of his employees, and the deposit of the proceeds into bank accounts Conley controlled. Count one also charged that Conley engaged in money laundering activities with the intent to promote his illegal gambling business and that Conley used illegal gambling proceeds to promote his illegal gambling business by purchasing more video poker machines, paying his employees, and depositing the proceeds in the bank. In addition, the overt acts of the conspiracy to launder money included numerous payments to Conley’s video poker machine service company. The remaining 27 counts of the indictment charged certain of the defendants with interstate travel to carry on an unlawful activity in violation of 18 U.S.C. § 1952(a)(3), interstate transportation of gambling devices in violation of 15 U.S.C. §§ 1172 and 1176, and money laundering in violation of 18 U.S.C. § 1956. The proceedings after the indictment was returned were complex. Over the next three years, the district court issued numerous published opinions on scores of motions and we" }, { "docid": "256571", "title": "", "text": "STEVENS, Circuit Judge. Fourteen defendants were indicted as joint participants in an Indianapolis gambling operation. Count I charged a conspiracy to conduct ah illegal gambling business in violation of 18 U.S.C. § 371; Count II charged that the same defendants engaged in the same illegal gambling business “in concert with each other” in violation of 18 U.S.C. § 1955. Shortly after the trial commenced, the charges against one defendant were dismissed and 11 defendants pleaded guilty. Appellants Hunter and Hill were tried and found guilty on both counts. Their appeals principally question: (1) the constitutionality of § 1955; (2) whether their gambling was “conducted by five or more persons” within the meaning of the statute; and (3) whether the two counts properly charged two different offenses. I. There is no evidence that appellants’ gambling activities had any effect whatsoever on interstate commerce. Accepting the government’s interpretation of the facts, however, their business was large enough to satisfy the minima specified in 18 U.S.C. § 1955. That statute, enacted on October 15, 1970, as § 803(a) of the Organized Crime Control Act of 1970, provides, in material part: “§ 1955. Prohibition of illegal gambling businesses “(a) Whoever conducts, finances, manages, supervises, directs, or owns all or part of an illegal gambling business shall be fined not more than $20,000 or imprisoned not more than five years, or both. “(b) As used in this section— “(1) ‘illegal gambling business’ means a gambling business which— “(i) is a violation of the law of a State or political subdivision in which it is conducted; “(ii) involves five or more persons who conduct, finance, manage, supervise, direct, or own all or part of such business; and \"(iii) has been or remains in substantially continuous operation for a period in excess of thirty days or has a gross revenue of $2,000 in any single day.” 84 Stat. 922, 937. The Organized Crime Control Act contains a statement of findings relating to the impact of organized crime on the nation’s economy. See 84 Stat. 922-923. With respect to Title VIII dealing with syndicated gambling, Congress made a" }, { "docid": "22277030", "title": "", "text": "state law, the four conspiracies to commit murder charged as predicate acts in the indictment constitute acts of “racketeering activity” within the meaning of the RICO statute. C. Gambling Conspiracy In contrast, the gambling conspiracy charged as a predicate act in paragraph 5m of Count One cannot serve as an act of “racketeering activity” under the definitions set forth in 18 U.S.C. § 1961(1). The indictment charged that Santora, Tomasulo, and others conspired “to direct and own an illegal gambling business, to wit, a sports and numbers betting business, in violation of the laws of the State of New York, which business involved five or more persons and remained in substantially continuous operation for in excess of thirty (30) days in violation of Title 18 U.S.C. § 1955.” Section 1955, allegedly violated by the gambling conspiracy, is one of the sections included in Group (B) of the statutory defi nitions contained in § 1961(2). However, to constitute a predicate act under Group (B), the offensive conduct must be an “act which is indictable under” the named section, here § 1955, which proscribes the substantive offense of conducting an illegal gambling business, but not a conspiracy to conduct one. Thus, a conspiracy to violate § 1955 is not an act of racketeering activity under the definitions in 18 U.S.C. § 1961. As an alternative argument to save predicate act 5m of Count One, the government suggests that its allegation of a conspiracy to violate § 1955 is surplusage that can be disregarded because if the indictment had alleged instead a substantive violation of § 1955 the charge then would have been sufficient. We do not think that the difference between a substantive gambling crime under § 1955 and a conspiracy to violate § 1955, which under federal law could be charged only under 18 U.S.C. § 371 (1982), can be so readily put aside. First, the entire structure of paragraph 5 of Count One, setting forth in each subpar-agraph a different conspiracy, alerts defendants that the predicate acts they must defend against are conspiracies, not substantive crimes. Second, the contrast of" }, { "docid": "20026082", "title": "", "text": "searches, Conley transferred ownership of his video poker machines to three companies he had created. Conley installed an employee as a front owner in each of these companies but he retained effective control over them, and their employees and assets. At the same time, Conley created a company to service the video poker machines transferred to the three newly formed companies. Conley then instructed the nominal owners of the three new vending companies to make monthly payments to the service company from their gambling proceeds. Conley determined the amounts of these payments without regard to the level of services rendered. At the time he created the three new companies, Conley transferred the title to his best gambling location, Terry’s Snack Shop, to the woman who ran it for him. B. Procedural History The foregoing activities led to a federal grand jury in the Western District of Pennsylvania returning on September 26, 1991, a 29-count indictment charging 23 individuals with participation in an illegal gambling operation involving video poker machines. The indictment identified Conley as the central figure in an extensive illegal video poker machine gambling business and covered the period from 1984 through September 26, 1991. Count one charged Conley and his 22 co-defendants with conspiracy to conduct an illegal gambling business and to launder the proceeds therefrom in violation of 18 U.S.C. § 371. Count two charged Conley and his 22 co-defendants with conducting an illegal gambling business in violation of 18 U.S.C. §§ 1955 and 2. One “part and object” of the conspiracy was that Conley and his co-conspirators conducted an illegal gambling business involving video poker machines “in violation of the laws of the Commonwealth of Pennsylvania” which, in turn, was in violation of 18 U.S.C. § 1955. Count one also charged that a “further” “part and object” of the conspiracy was to engage in money laundering to promote the illegal gambling business in violation of 18 U.S.C. § 1956(a)(1)(A). The conspiracy count charged that “an essential part of the illegal gambling business” involved the division of gambling proceeds with a person at the video poker machine" }, { "docid": "12307232", "title": "", "text": "MEMORANDUM DON J. YOUNG, District Judge. Anthony J. Arnone, one of the defendants in this case, and his twelve co-defendants were charged in an indictment with both a conspiracy to violate Title 18 U.S.C. § 1955, thereby violating 18 U.S.C. § 371, and conducting an illegal gambling business in violation of 18 U. S.C. § 1955. The grand jury returned a ten count indictment. Counts IV, VI, VIII and X charge this defendant with conspiracy. Counts III, V, VII, and IX contain the substantive violation of § 1955 against this same defendant. This defendant has now moved to dismiss counts IV, VI, VIII and X on the ground that there exists a duplicity of offenses charged in the indictment. Arnone argues that where it is impossible under any circumstances to commit the substantive offense without cooperative action the preliminary agreement between the same parties to commit the offense is not an indictable conspiracy. There is little dispute that conspiracy, by itself, constitutes a crime. “ * * •* [it] has been repeatedly declared in decisions of this court, that a conspiracy to commit a crime is a different offense from the crime that is the object of the conspiracy. * * * The conspiracy, however fully formed may fail of its object, however earnestly pursued; the contemplated crime may never be consummated ; yet the conspiracy is none the less punishable. '* * . * And it is punishable as conspiracy, though the intended crime be accomplished.” United States v. Rabinowich, 238 U.S. 78, 85, 35 S.Ct. 682, 683, 59 L.Ed. 1211(1914). Commission of a substantive offense and a conspiracy to commit such an offense are separate and distinct offenses. United States v. Sykes, 305 F. 2d 172 (6th Cir. 1962). There are, however, several important exceptions to this general rule, not all of which need to be discussed in connection with this case. In all of them there seems to be a lack of judicial clarity as to their application to particular facts, which compounds the difficulties presented by defendant’s motion. A recognized exception important in the present case" }, { "docid": "20843491", "title": "", "text": "of documentary evidence is not of a purely personal and private nature. The motions to suppress as to the material seized at the defendants’ homes are denied. 9. Count 1 of the indictment charges the defendants with conspiracy to mail paraphernalia to be used in bookmaking in violation of 18 U.S.C. § 1302, to carry on unlawful gambling activity in violation of the laws of Pennsylvania, a violation of § 1952, and to conduct, finance, and own an illegal gambling business in violation of § 1955. The second count charges the defendants with “ . did knowingly and wilfully conduct, finance, manage, supervise, direct, and own an illegal gambling business, such business having a gross revenue of $2,-000 or more on one or more single days, involving five or more persons in its conduct, financing, management, supervision, direction and ownership . . ” Defendants contend that there is duplicity between the conspiracy count and Count 2 and cite the case of United States v. Greenberg, 334 F.Supp. 1092 (N.D. Ohio 1971), where it was held that a conspiracy to violate § 1955 was dupicitous of a count of an infraction of § 1955. It is basic that the commission of a substantive offense and a conspiracy to commit such offense are separate and distinct. But here the defendants invoke Wharton’s rule which simply stated provides that when the actions of two or more people are necessary to the commission of a certain crime, then that offense may not be indicted as a conspiracy. This exception applies only when the wrongdoing actually is committed and the general principle of separate offenses would be ap plicable if the underlying crime were not perpetrated. There are some points of distinction between this case and the Green-berg litigation. Here, the conspiracy charge takes into account not only § 1955 but also § 1952. And it would serve little purpose, therefore, to dismiss only part of the count at this stage of the proceeding when we are not certain what facts might be proved at trial with respect to § 1955. Under these circumstances, it" }, { "docid": "10653293", "title": "", "text": "wiretaps. The following points have been raised by the defendants which merit some discussion: 1. The statute authorizing interception of telephone communications, Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510, 2520 is unconstitutional. 2. The applications for the court orders authorizing interceptions of telephone communications were not properly authorized. 3. Toll records of the telephone company were illegally obtained by the United States Attorney’s Office and used in the applications for court orders authorizing interceptions. 4. The court orders authorizing interceptions were not based upon probable cause. 5. The search of the residence of Patsy Stanizzo and Betty Howden Stanizzo was not based upon probable cause, and certain monies seized in that search should be returned. In addition, the defendants have moved to dismiss the indictment asserting: 6. The illegal gambling businesses statute, 18 U.S.C. § 1955, is unconstitutional. 7. The conspiracy count represents a duplication of the substantive offense set out in 18 U.S.C. § 1955 and should be dismissed. 1. Constitutionality of 18 U.S.C. §§ 2510-2520. The constitutionality of the provisions of 18 U.S.C. §§ 2510-2520, which authorize the interception of private telephone communications upon a showing of probable cause are currently before numerous Circuit Courts, and the defendants have not put great emphasis on this point in their briefs. The standards for testing the constitutionality of a wiretap statute are set forth in Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1967); and Osborn v. United States, 385 U.S. 323, 87 S.Ct. 429, 17 L.Ed.2d 394 (1966). Nothing said in the defendants’ skeletal briefs on this issue has convinced us that the provisions of 18 U.S.C. §§ 2510-2520 do not meet these standards or that they are, per se, outside the parameters of the constitutional guarantees protecting the privacy of individuals. The majority of cases passing on th-is issue have held that the provisions of 18 U.S.C. §§ 2510-2520, as written by Congress, are constitutional. United States v. Cox," }, { "docid": "20026086", "title": "", "text": "the two indictments for trial. Conley was the only defendant to be tried because the others all pleaded guilty to a violation of 18 U.S.C. § 371 or 18 U.S.C. § 1955. Conley’s first trial ended in a mistrial. His second trial began on April 25, 1995, and concluded on June 23, 1995, with the jury finding him guilty on counts one and two of the original indictment charging him with conspiracy in violation of 18 U.S.C. § 371 and with conducting an illegal gambling business in violation of 18 U.S.C. §§ 1955 and 2. The jury was unable to reach a verdict on the 15 money laundering counts in the second indictment and the court declared a mistrial as to them. On July 14, 1995, the district court made tentative findings of fact for sentencing purposes pursuant to U.S.S.G. § lB1.2(d). Employing a “beyond a reasonable doubt standard,” as required by application note 5 to section l.B1.2(d), the court found that Conley and his co-conspirators “adhered to and/or conspired to commit both of the objects alleged in Count one” of the original indictment, that is, “they conspired to conduct an illegal gambling business and to launder the proceeds thereof.” The court reached the second conclusion notwithstanding the jury’s inability to return a verdict on the money laundering charges contained in the second indictment. Then on September 28, 1995, the district court made supplemental tentative findings and rulings. Ultimately the court determined Conley’s sentence as follows. The court started with the sentencing guideline for violation of 18 U.S.C. § 371 found at U.S.S.G § 2X1.1, which provides that the base offense level is determined by the substantive offense which is the object of the conspiracy. Since the court already had applied U.S.S.G. § lB1.2(d) and found that Conley conspired to operate an illegal gambling business and to launder its proceeds, the court grouped the two offenses pursuant to U.S.S.G. § 3D1.2(b). Under U.S.S.G. § 301.3(a), in the case of grouped counts, the offense level is determined by the most serious of the counts comprising the group. Since the base offense" }, { "docid": "23403267", "title": "", "text": "MANSFIELD, Circuit Judge: On June 30, 1971, seven persons were charged in a two-count indictment with conducting an illegal gambling business in violation of 18 U.S.C. § 1955, which had been enacted as part of the Organized Crime Control Act of 1970, and conspiracy to do so, 18 U.S.C. § 371. Five defendants pleaded guilty to the conspiracy count. The remaining two, Richard Becker and Jack Eisen, appellants herein, were on January 14, 1972, adjudged guilty of both counts after a jury trial before Judge Weinfeld in the United States District Court for the Southern District of New York. Each was sentenced to two years imprisonment (of which 18 months was suspended, subject to the standing probation order of the court) and to pay a fine of $5,000. We affirm the judgments of conviction. Title 18 U.S.C. § 1955 makes it a federal crime to conduct certain types of gambling businesses. To fall within the ambit of the statute, the gambling business must be one which “(i) is a violation of the law of a State or political subdivision in which it is conducted; (ii) involves five or more persons who conduct, finance, manage, supervise, direct, or own all or part of such business; and (iii) has been or remains in substantially continuous operation for a period in excess of thirty days or has a gross revenue of $2,000 in any single day.” 18 U.S.C. § 1955(b) (1). Appellants concede for purposes of this appeal that they were operating a bookmaking business. Thus the proof satisfied parts (i) and (iii) of the definition. They contend, however, that the Government failed to meet the requirement of subsection (b) (1) (ii) of the statute that there be at least five persons who “conduct” the illegal gambling business, since at least four of their co-conspirators were mere “runners” or “agents” of the business. We disagree. Admittedly the limits of the term “conduct,” which embraces participation in the operation of an enterprise, are not defined in § 1955 itself. However, the legislative history of another, simultaneously-enacted section of the Organized Crime Control Act of" } ]

[ { "docid": "19102196", "title": "", "text": "to terminate the employment because of that misconduct. The instant counterclaim is not an offset because it is not limited to the amounts plaintiffs have sued for: indeed, the less successful the employee is with his claim in chief, the more exposed he very likely is to the counterclaim. It may further be noted that the liability defendant asserts is not statutory but essentially equitable. Hence it should be subject to equitable defenses of which laches is one. An offset claim here would avail defendant nothing because plaintiffs recover nothing. Finally, we think that plaintiffs have shown the requisite prejudice resulting from defendant’s delay. Unlike the plaintiffs’ claim, where the mere fact of receipt of gratuities in any substantial amount was the principal factual issue, the counterclaim would require inquiry into the specific monetary values of gratuities. The defendant’s quantum figures are derived from a tainted source, the Gulf officials, who according to their own records, paid the gratuities. But they might have diverted some of them to other purposes and counsel says they did. During the period of delay, other records have doubtless been lost and memories faded. Plaintiffs would be handicapped in their efforts to rebut the specific allegations of defendant. While we know of no prior case where this court has applied the bar of laches to a government counterclaim, there is no reason to apply a more lenient standard to the government’s tardy assertions of its rights than we do to plaintiffs. Accordingly, defendant’s motion for summary judgment on the petition is granted and the petition is hereby dismissed. Also, plaintiffs’ motion for summary judgment on defendant’s counterclaim is granted and defendant’s counterclaim is dismissed." } ]

[ { "docid": "19102189", "title": "", "text": "NICHOLS, Judge, delivered the opinion of the court: This case comes to us on cross-motions for summary judgment on plaintiffs’ petition and defendant’s counterclaim. We grant defendant’s motion on the petition and plaintiffs’ motion on defendant’s counterclaim. Plaintiffs are four former employees of the Internal Revenue Service (IRS) Audit Division. At various times during the period 1967 to 1975, plaintiffs were assigned to audit the Gulf Oil Corporation. Although the specifics remain in dispute, it is uncontested that each of the plaintiffs received various benefits from the taxpayer. These benefits included meals, drinks, and greens fees at golf clubs. After an investigation, charges were brought against plaintiffs in April 1977, at which time their removals from employment were proposed. The grounds for the proposed removals were threefold. First, plaintiffs accepted meals and entertainment in violation of Section 227.1 of the Rules of Conduct for IRS employees. Second, plaintiffs had falsified time-keeping records in violation of Rule 225.5. Lastly, plaintiffs had utilized government time for personal activities in violation of Rule 226.3. In June and July of 1977, plaintiffs, through counsel, contested their discharges before the District Director. Upon review of the evidence the District Director concluded that the sustained charges warranted removal of plaintiffs. Counsel for plaintiffs appealed the decision of the District Director to the Federal Employee Appeals Authority. Hearings were held in March, April, and May of 1978. The FEAA sustained plaintiffs’ removals citing specific instances found to be in violation of IRS rules. The Rule of Conduct under which most of the charges were brought provides, in pertinent part: 227.1 Gifts and Gratuities from Outside Sources (1) Service Rule An employee shall not directly or indirectly request or accept any gift, favor, service, loan or entertainment for himself or others under circumstances which might reasonably be construed as influencing or improperly relating to past, present, or future performance of his government duties * * * (2) Guides (c) It is normally permissible for employees to accept nominal courtesies extended in the spirit of hospitality. This rule is clear in its application to the present facts. Defendant specified" }, { "docid": "11038710", "title": "", "text": "EDGERTON, Associate Justice. This case began as a suit for a declaratory judgment. The defendants, filed three compulsory counterclaims, which arose out of the same transaction as the plaintiffs’ claims, and also several permissive counterclaims. Defendants moved to dismiss the original complaint; plaintiffs moved to dismiss the compulsory counterclaims; and there were several motions to strike various parts of other pleadings. The trial court acted upon ten of these motions in a single order the pertinent parts of which are as follows: “Upon consideration of the divers motions filed herein by the respective parties hereto and upon oral argument thereof duly had, it is * * * Ordered, that: * * * Plaintiffs’ separate motions to dismiss the separate cross-complaints [i.e., the compulsory counterclaims ] * * *, sustained; * * * Motion to dis miss original complaint filed by the plaintiffs, * * * overruled * * Defendants noted an appeal from the quoted parts of the order and filed the record in this court. Plaintiffs now move to dismiss the appeal on the ground that the order is not final. Plainly the ■overruling of the motion to dismiss the original complaint was not a final order. In support of their contention that the sustaining of the motion to dismiss the counterclaims was likewise not a final order, plaintiffs rely upon our statement in Southland Industries v. Federal Communications Commission that “an appeal cannot be taken * * * from a judgment or decree not final as to all the parties, the whole subject-matter and all the causes of action involved.” But that case was decided before the Federal Rules took effect, and what we said there must be modified so far as it is inconsistent with those Rules. Before the Rules were adopted the dismissal of any counterclaim, leaving the plaintiff’s claim pending, did not have the effect of a final judgment. But the Rules “indicate a ‘definite policy’ * * * to permit the entry of separate judgments where the claims are ‘entirely distinct’ * * * Such a separate judgment will frequently be a final judgment" }, { "docid": "23409627", "title": "", "text": "secured by this property in an excessive amount reflecting plaintiff’s inflated appraisal. Such default did occur, so far as the application for insurance benefits indicates, not earlier than January 1970. Thereafter, insurance benefits out of proportion to the reasonable value of the collateral were paid and the Secretary of HUD acquired title to the property as well as an assignment of the paper embodying the defaulting party’s obligations to the mortgagee/assignor. The application for such insurance benefits, dated February 15,1973, was presented to FHA on February 22. Defendant’s counterclaims were filed on May 23, 1975. Therefore, between the date of the alleged illegal payments and the filing of these counterclaims there expired a period in excess of 6 years. Between the date of the obli-gor’s default and the filing of the counterclaim, 5 years and nearly 5 months elapsed. Between the filing of the claim for FHA insurance benefits and the filing of the instant counterclaims, only 2 years and 3 months went by. Finally, defendant has provided an affidavit tending to prove that not until March 1970 were facts reasonably known to FBI investigators leading to discovery of plaintiff’s alleged bribery. Plaintiff now moves for summary judgment on his 'back pay claim and to dismiss the affirmative defense and counterclaims, on the ground that they are barred by applicable statutes of limitations. All other of plaintiff’s arguments touching defendant’s counterclaims have been abandoned. Defendant cross-moves for summary judgment as to plaintiff’s back pay claim, and opposes plaintiff’s bid for dismissal of both counterclaims. For the reasons stated below, we think that plaintiff’s motion should be allowed insofar as it seeks summary judgment for back pay, but only for the period between June 19, 1974, and his actual return to work, as defendant has conceded. We have concluded, further, that the defendant’s affirmative defense and counterclaims are not barred by applicable statutes of limitations. Accordingly, to this extent plaintiff’s motion should be denied. I Plaintiff as moving party encounters the burden of demonstrating his entitlement to summary judgment for back pay as a matter of law. Rule 101(d); e.y., Housing" }, { "docid": "20956198", "title": "", "text": "at most only a new theory upon which defendant asks for affirmative relief. And this theory is based upon allegations of which plaintiffs have had ample notice. Plaintiffs’ counsel has stated, moreover, that in the examination of defendant’s Vice-President particular attention was paid to the facts underlying the defense of which paragraphs 17 through 21 were a part. Accordingly, the motion to amend is granted. The Motion to Consolidate. In both actions the parties on each side are for all practical purposes the same. In the first action plaintiffs seek to compel defendant to transfer to their names 100 shares of stock now registered on defendant’s books in the name of plaintiffs’ alleged predecessor partnership. This claim for relief is based on the provisions of defendant’s certificate of incorporation — “the contract existing between the Corporation and its stockholders, including these plaintiffs, and * * * thé laws of the State of New York.” (Complaint, par. 8). Plaintiffs also seek to recover alleged unpaid dividends on this stock. The answer as permitted to be amended denies 'that plaintiffs have any interest in the stock and alleges two affirmative defenses and two counterclaims based on the provisions of paragraph 9(e) of its certificate of incorporation. Two other affirmative defenses plead laches and a Netherlands Government Foreign Exchange Control decree. The second action is for unfair competition, breach of contract and trust. The answer pleads affirmative defenses of laches, accord and satisfaction, estoppel, restraint of trade and statutes of limitations. The first counterclaim seeks discovery, accounting and damages for alleged breach of the 1937 agreement. The second counterclaim seeks an injunction against further suits. Rule 42(a) provides that “When actions involving a common question of law or fact are pending before the court * * * it may order all the actions consolidated * * A comparison of the actions here reveals- that while the first is concerned with the determination of ownership of the stock and is dependent upon the provisions of defendant’s certificate of incorporation, the second fundamentally involves the construction and validity of the 1937 and 1933 contracts between" }, { "docid": "11731387", "title": "", "text": "further, if the defense of laches was ever good it could have been made in the Mohr Case where the facts were fresher in the minds of all; but it was not there successfully made. It is not seriously suggested that after commencing the Mohr Case, the plaintiff has not been diligent in prosecution; it was under no obligation to bring a separate shit against the De Yilbiss Company at Toledo, while that company was defending the case in California; nor was Hopkins under any duty, legal or equitable, to go across the country to sue an infringing manufacturer at its home, when he could prosecute the same infringement in his home district. After the final termination of that suit, there was no substantial delay before commencing this one. In these eireum- , stances, we cannot find sufficient reason for penalizing plaintiff by practically depriving it of the rights adjudicated to it in the California ease. We have examined all the cases cited in the opinion below and in the briefs, and it is enough to say that we find no well-considered case, sustaining the defense of laches as a bar to an accounting, in which the facts were not sharply and clearly more favorable than they are here; we find no precedent fairly sustaining this defense here. In what is cited as the leading ease, Kittle v. Hall (C. C.) 29 F. 508, 511, 512 (Coxe, District Judge), the defense was overruled. In General Electric Co. v. Yost Co. (D. C.) 208 F. 719 (appeal dismissed by consent (C. C. A.) 213 F. 1021), plaintiff had for six years been suing defendant on other patents, without mention of this. In Simpson v. Newport (D. C.) 18 F.(2d) 318, the question was neither involved nor decided. We come now to the counterclaim: It is alleged that plaintiff had been guilty of unfair competition by intimidating defendant’s customers and the, trade generally through false claims of infringement and liability under the patent in suit and through misrepresentations as to decrees and judicial decisions which plaintiff had obtained in its favor. Plaintiff" }, { "docid": "14937348", "title": "", "text": "plaintiffs motion to strike the eighteenth affirmative defense will be denied. 2. Indispensable Parties Plaintiff’s brief states that defendants’ Answer fails to identify the identity and address of the parties which defendants claim are indispensable to the action. Defendants state that a factual dispute as to the identity of the- indispensable parties exists, thus warranting denial of the motion to strike. The Advisory Committee Notes appended to Rule 19 of the Federal Rules of Civil Procedure state that “[a] joinder question should be decided with reasonable promptness, but decision may properly be deferred if adequate information is not available at the time.” Fed.R.Civ.P. 19. The Notes also state that “[a] person may be added as a party at any stage of the action ... and [joinder] may be made as late as the trial on the merits...” Id. Since this litigation is in its preliminary stages, no prejudice will accrue to any party if action is deferred. Therefore,-plaintiff’s motion to strike defendants’ sixth affirmative defense will be denied. 3. Laches Plaintiff’s argument that defendants’ assertion of laches as a defense improperly concerns itself with plaintiff’s motive is without merit, not to mention citation to any legal authority. Therefore, plaintiffs motion to strike defendant’s fifth affirmative defense will be denied. C. Motion to Dismiss Defendant’s Counterclaims In response to plaintiff’s allegations that the defendants have manipulated the value of the stock of the corporation, defendants have asserted counterclaims for defama-tion, for wrongful use of civil process, for declaratory judgment, for equitable relief, and for emotional distress. Plaintiff moves to dismiss defendants’ counterclaims on three bases: (1) lack of jurisdiction; (2) failure to state a claim; and (3) statute of limitations. 1. Jurisdiction In order for the Court to have jurisdiction over defendants’ counterclaims, the counterclaims must be characterized as either compulsory, that .is, “arising] out of the same transaction or occurrence that is the subject matter of the opposing parties’ claim”, Fed.R.Civ.P. 13(a), or permissive in which case the claim need not bear any relationship at all to the primary claim. Fed.R.Civ.P. 13(b) If the counterclaim is deemed compulsory, no independent" }, { "docid": "11731388", "title": "", "text": "to say that we find no well-considered case, sustaining the defense of laches as a bar to an accounting, in which the facts were not sharply and clearly more favorable than they are here; we find no precedent fairly sustaining this defense here. In what is cited as the leading ease, Kittle v. Hall (C. C.) 29 F. 508, 511, 512 (Coxe, District Judge), the defense was overruled. In General Electric Co. v. Yost Co. (D. C.) 208 F. 719 (appeal dismissed by consent (C. C. A.) 213 F. 1021), plaintiff had for six years been suing defendant on other patents, without mention of this. In Simpson v. Newport (D. C.) 18 F.(2d) 318, the question was neither involved nor decided. We come now to the counterclaim: It is alleged that plaintiff had been guilty of unfair competition by intimidating defendant’s customers and the, trade generally through false claims of infringement and liability under the patent in suit and through misrepresentations as to decrees and judicial decisions which plaintiff had obtained in its favor. Plaintiff challenges the right of the court to make this inquiry, and says that this is not the kind of counterclaim which may be prosecuted under general Equity Rule 30 (28 USCA § 723), which rule, plaintiff says, will not reach a ease where the defendant, for lack of territorial jurisdiction, could not maintain an original suit on that subject matter against the plaintiff in the district where the suit is pending. We are not called upon to decide the disputed construction of this rule, as evidenced by Ohio Brass Co. v. Hartman Co. (D. C.) 243 F. 629 (Westenhaver, D. J.), and Krentler-Arnold Hinge Last Co. v. Leman (C. C. A. 1) 13 F.(2d) 796. For the purposes of this opinion, we assume that the defendant had a right to be heard in this ease on its counterclaim; and we proceed to observe its merits. We are aware of no ground upon which claims of infringement made by a patentee can be considered a legal wrong unless those claims are made in bad faith; that" }, { "docid": "21297587", "title": "", "text": "circumstances, our review is limited to ensuring that the agency’s decision under review is not arbitrary, capricious, or unsupported by substantial evidence. If the agency’s conclusion is not arbitrary or capricious and is supported by substantial evidence, as we have found here, we must defer to the good faith exercise of discretion by the administrative tribunal. After the defendant filed its responding supplemental brief in this case, plaintiff moved for leave to file objections and a response to defendant’s reply to plaintiffs supplemental brief. We feel further briefing in this case would be of no further aid and would result only in further delay in the disposition of this case. CONCLUSION For the foregoing reasons, we grant defendant’s motion for summary judgment and deny plaintiffs cross motion for summary judgment. Since we grant defendant’s motion for summary judgment, we do not address defendant’s contingent counterclaim for it has become moot. We also deny plaintiffs motion for leave to file objections and a response to defendant’s reply to plaintiffs supplemental brief and we dismiss the petition. The record indicates that after leaving active duty plaintiff had further nocturnal seizures in April 1965, October 1965, and January 1966. After these seizures, plaintiff sought private medical treatment and was placed on an anti-convulsive medication. Since then, he has had no further seizures. Plaintiff does not challenge the 10 percent disability rating assigned his convulsive disorder. In fact, plaintiff admits in his supplemental brief that the Board for the Correction of Naval Records followed the correct standard in this case. His contention is that the Board for the Correction of Naval Records misapplied the standard in this case. Since we hold for the defendant on the merits, we do not address the issue of laches which defendant raised." }, { "docid": "19102195", "title": "", "text": "herein. Smith v. United States, 209 Ct. Cl. 685 (1976) and cases cited therein. It appears the idea to counterclaim originated with Department of Justice counsel. Defendant has not attempted to assert any other justification or explanation for the delay. If defendant early had informed plaintiffs of their possible liability on a government claim for money, delay in bringing the claim to court until it could be done as a counterclaim has obvious explanations and could not be faulted. To unveil such a claim now for the first time is entirely different. Whether or not so intended, it has the . ugly look of retaliation for exercise of the legal right to seek court review. The late assertion of a mere offset as is done in some tax refund cases, is different. Cf. Mahoney v. United States, 223 Ct. Cl. 713, 224 Ct. Cl. 668 (1980). We think to avoid laches, defendant should assert any money claim beyond offsets it has against an employee, rising out of the employee’s misconduct, whenever it asserts a right to terminate the employment because of that misconduct. The instant counterclaim is not an offset because it is not limited to the amounts plaintiffs have sued for: indeed, the less successful the employee is with his claim in chief, the more exposed he very likely is to the counterclaim. It may further be noted that the liability defendant asserts is not statutory but essentially equitable. Hence it should be subject to equitable defenses of which laches is one. An offset claim here would avail defendant nothing because plaintiffs recover nothing. Finally, we think that plaintiffs have shown the requisite prejudice resulting from defendant’s delay. Unlike the plaintiffs’ claim, where the mere fact of receipt of gratuities in any substantial amount was the principal factual issue, the counterclaim would require inquiry into the specific monetary values of gratuities. The defendant’s quantum figures are derived from a tainted source, the Gulf officials, who according to their own records, paid the gratuities. But they might have diverted some of them to other purposes and counsel says they did." }, { "docid": "19102192", "title": "", "text": "various benefits received from the taxpayer must each be viewed separately and that, viewed separately, each is of \"nominal value.” We reject plaintiffs’ contention. A single free meal is one thing. A whole series of free meals, with no reciprocating hospitality, differs not only in degree but in kind. We need not decide whether a $64.00 golf outing and reception, for example, could be termed \"nominal.” While a gift of a single trip to Europe would be more offensive than the gratuities here present, separately considered, the IRS is not required to ignore the cumulative effect of much lesser benefits. As a subsidiary argument, plaintiffs point out that some IRS supervisory personnel in their district received similar benefits from this taxpayer. From this fact they argue that supervisory personnel are empowered to interpret the rules and that their acceptance of gratuities establishes an agency interpretation that such benefits come within the \"nominal courtesies” exception. The rules cited by plaintiff in support of their position, Internal Revenue Manual, Chapter 735.1 §215(2) and Chapter 1980, §1981.5, say only that supervisory personnel must abide by acceptable standards of conduct and see that lower level employees do the same. When a middle management supervisor fails in this responsibility, it in no way legitimates conduct by either supervisor or subordinate that either could perceive was wholly unacceptable. In fact, a supervisory employee on the audit in this case was convicted of bribery for accepting paid up junkets to play golf in distant places. United States v. Niederberger, 580 F.2d 63 (3d Cir. 1978). If the example of a supervisor might be followed in a \"gray area” this is not true if he sets an example of flagrant misconduct. Plaintiffs also challenge their removals claiming that the charges were not supported by substantial evidence, that the agency failed to apply \"progressive discipline,” and that similarly situated employees received disparate treatment. We have thoroughly reviewed these contentions and find them to be unpersuasive. We turn now to the government’s counterclaim to recover the value of the gratuities received by plaintiffs. Plaintiffs set up laches as their defense." }, { "docid": "23341919", "title": "", "text": "days from entry of final judgment, the particular lessee pays plaintiff Jicarilla Apache Tribe an adjusted bonus” based on a percentage of the bonus payment recommended in testimony by the Tribe’s expert. The court also tolled the primary lease terms and delay rentals from the date of service of process to the date of judgment. The NEPA claim was rejected on a finding of laches and unclean hands on the part of the Tribe. Finally, the lessee defendants’ counterclaims were dismissed on the ground of the Tribe’s sovereign immunity. 546 F.Supp. at 587. The parties appealed and cross-appealed. The Tribe argues that leases issued in violation of the regulations are void and must be cancelled; that the district court erred in awarding “speculative damages” by the adjusted bonus payments; that non-compliance with NEPA compels cancellation; that the court’s finding of laches and unclean hands as to the NEPA claim was error; that the leases cannot be tolled to extend beyond their statutory term; that delay rentals were improperly suspended during litigation; and that the Tribe should have been awarded costs. The Secretary urges that there was no violation of the statutory notice requirements; that the BIA complied with its longstanding, reasonable interpretation of 25 CFR § 171.3; and that the court properly denied relief under NEPA because of laches and unclean hands. The lessee defendants argue that the district court erred in finding a violation of 25 CFR § 171.3; that the court erroneously placed the burden on the lessees to prove that any violation of the regulations did not harm the Tribe; that the court properly denied outright cancellation but erroneously failed to deny all relief for noncompliance with 25 CFR § 171.3 due to laches and unclean hands; and that the Tribe waived its sovereign immunity as to the counterclaims by filing this action. We turn first to the basic issue whether the Secretary’s regulations were violated in giving notice of the lease sales. I Propriety of the procedures used to give notice of the lease sales The notice procedures which the Government must follow when offering oil" }, { "docid": "10031686", "title": "", "text": "OPINION BRUGGINK, Judge. Pending are cross-motions in which the plaintiff moves to dismiss each of the defendant’s amended counterclaims, and the defendant seeks summary judgment on its amended counterclaims. Based on its initial complaint and this court’s decision in Barrett Refining Corp. v. United States , 42 Fed.Cl. 128 (1998), plaintiff Barrett Refining Corporation (“Barrett”) seeks $1,546,429 in damages alleged to have resulted from the government’s use of an unauthorized Economic Price Adjustment (“EPA”) Clause in contract DLA600-91-D-0512. The government counterclaims, seeking recovery or offset of alleged overpayments to Barrett under contracts DLA 600-91-D-0512, 92-D-0505, 93-D-0577, and 94-D-0492. The court’s earlier decision in Barrett provided a methodology for calculating the fair market value of jet fuel delivered to the government under the above contracts. See 42 Fed.Cl. at 138. The primary issue raised here is whether the court’s use of a substitute EPA clause to measure Barrett’s recovery triggers an independent right in favor of the government to recover portions of its earlier contract payments to Barrett when those payments exceed fair market value as measured by the substitute EPA clause. The matter has been fully briefed and orally argued. For the reasons set out below, we find that the government’s actual payments to Barrett do not constitute recoverable overpayments, and that therefore the government has no legal basis for seeking damages from Barrett or for offsetting any money due Barrett under contract 0512. BACKGROUND This case arises from jet fuel contracts between the Defense Fuel Supply Center, now Defense Energy Support Center (DFSC), and Barrett. Each of these jet fuel contracts was fixed price and contained an economic price adjustment (EPA) clause, one of several versions of B19.33, Economic Price Adjustment—Published Market Price. The EPA clause was based on the monthly average sales price or market price of refined petroleum products as reported by the Department of Energy, Energy Information Administration, in its publication, the Petroleum Marketing Monthly (PMM). In MAPCO Alaska Petroleum, Inc. v. United States, 27 Fed.Cl. 405 (1992), this court ruled that Federal Acquisition Regulation (FAR) § 16.203 did not permit the use of escalators such" }, { "docid": "11895323", "title": "", "text": "as occurred here, is such fault as may warrant an exception. Gentry, supra; Ainsworth, supra. Plaintiff cites both Gentry and Ainsworth but defendant does not even respond to those cases, much less distinguish them. We hold that failure to exhaust is no bar in this case. Defendant last asserts laches as a defense. Again, we have often applied laches in civilian pay cases. E. g., Earnhardt v. United States, 210 Ct.Cl. 741 (1976); Smith v. United States, 209 Ct.Cl. 685 (1976); Bell v. United States, 207 Ct.Cl. 1021 (1975). Yet we do not think laches applies in this case. Plaintiff pursued administrative relied until May 1975. He filed suit in this court over 3 years later, on August 31, 1978. However, plaintiff was reinstated to his full-time position in 1974. Since reinstatement, no unpaid salary has been accumulating and defendant has not been paying someone else to do plaintiff’s work during that time. The delay is also attributable, in part, to the Government, which failed to inform plaintiff of his appeal rights. Also, defendant has failed to show any specific prejudice to itself by the delay. Defendant only claims that certain papers in a grievance file might have been lost. Defendant does not even claim the papers have been lost for certain. Indeed, many such papers are attached to defendant’s brief. It is not clear why papers in a grievance file created after plaintiff had been reinstated are relevant to this back pay case. On the exhaustion issue, defendant argued strongly that plaintiff’s grievance letters were so unrelated to back pay that they could not be considered pursuit of administrative remedies. Thus, laches is no bar here where the element of prejudice to defendant is not specifically established, and we are shown no basis for presuming it. Detling v. United States, 193 Ct.Cl. 125, 131-32, 432 F.2d 462, 465-66 (1970); Chappelle v. United States, 168 Ct.Cl. 362, 366-67 (1964). We hold that plaintiff is entitled to recover for the period during which his pay was reduced to 50 percent of full salary, from on or about July 1,1973, to on" }, { "docid": "23272778", "title": "", "text": "with this disclosure, Olympic Records continued to sell the record album here involved. The instant action was commenced in the Southern District of New York on April 23, 1975. Shortly thereafter Abend, having learned of the Sweatman assignment, contacted Sweeney, the owner of the Wilbur Sweatman Music Publishing Company since Sweatman’s death in 1961. The upshot was that Sweeney, on behalf of the Company, assigned the renewed copyrights to the compositions in question to himself and Abend for a consideration of $1.00. II. We shall not tarry on the issue of liability. Our careful review of the record as a whole leaves us with the firm conviction that the district court’s findings of fact were not clearly erroneous. We also agree with the district court’s conclusions that Mary L. Wormley is the copyright proprietor of the three musical compositions here involved; that defendants infringed the copyrights of those compositions; that defendants’ counterclaims were properly dismissed on the merits; that permanent in junctions were properly entered enjoining defendants from further manufacture and sale of records of such compositions unless defendants obtain licenses to do so; and, liability having been correctly determined, that the award of damages, interest and costs in favor of plaintiff and against defendants was properly made. While we agree with the district court’s disposition of each of appellants’ contentions, we nevertheless shall briefly state here the reasons for our rulings on what we regard as the principal contentions of appellants. First, appellants argue that plaintiff was barred by laches and estoppel from denying that the Wilbur Sweatman Music Publishing Company owned the copyrights here in question. In attempting to establish the defense of laches defendants failed to make the required showing that plaintiff (or her predecessors in interest) did not assert her or their rights diligently, and that such asserted lack of diligence, even had it been established, resulted in prejudice to them. Costello v. United States, 365 U.S. 265, 282 (1961); Roberts v. Morton, 549 F.2d 158, 163-64 (10 Cir. 1976); Weiszmann v. District Engineer, United States Army Corps of Engineers, 526 F.2d 1302, 1306 (5 Cir." }, { "docid": "14458813", "title": "", "text": "to state a claim upon which relief can be granted. Plaintiffs’ motion in this regard is granted. Defendant’s final count, his Fourth Counterclaim, alleges that plaintiffs entered into an agreement with defendant (annexed as an exhibit to the Answer) which permitted defendant to participate in any new business capital venture entered into by plaintiffs or their affiliates. Defendant alleges that profitable new ventures have been entered into, that he has not received notice of these ventures as required by the agreement, and that, as a result, he has suffered damages in the form of lost profits. Plaintiffs move to dismiss on the grounds that: (1) no consideration was embodied in the agreement or otherwise received; and (2) no new profitable business ventures have been entered into since date of agreement. Taking defendant’s allegations as true, we cannot say that no claim is made out. We therefore deny plaintiffs’ motion to dismiss the Fourth Counterclaim. For the reasons stated above, defendant’s motion and plaintiffs’ cross-motion for summary judgment are both denied. Plaintiffs’ motion to dismiss defendant’s First, Second, Third, Seventh and Eighth Affirmative Defenses and defendant’s Third Counterclaim is granted. Plaintiffs’ motion to dismiss defendant’s Fourth Affirmative Defense and Fourth Counterclaim is denied. SO ORDERED. . Defendant, in his “Reply Memorandum in Support of Motion for Summary Judgment” filed May 30, 1978, does not dispute or even address any of plaintiffs’ motions to dismiss the affirmative defenses and counterclaims, other than to say that plaintiffs’ memorandum is “devoid of any case whatsoever” on the subject. . See: General Rules of the United States Courts, Southern and Eastern Districts of New York, Rule 9(g). . There is some confusion in the papers as to exactly whose property was used to pay the bank. Naturally, if it can be shown that some of the assets used to discharge the liability were those of the Corporation, the claim against defendant would be reduced. This issue of fact, however, does not affect our present partial disposition of the case. . While we are sensitive to the distinctions between a guarantor and a surety (see: 38" }, { "docid": "23335629", "title": "", "text": "Plaintiffs' § 1981 claim is in a slightly different posture. We have already decided that the state statute of limitations prevents plaintiffs from asserting claims arising more than two years before the filing of the complaint. Therefore, any delay occurring before that period is irrelevant to the § 1981 claim. Defendants have not alleged that plaintiffs delayed inexcusably in asserting the claims arising within those two years. Therefore, it is unnecessary for us to consider whether laches could be invoked to bar those claims arising within the legal limitations period. We also conclude that, on the evidence presented, any prejudice suffered by defendants was caused not by plaintiffs' delay but by defendants' own actions. In the only affidavit supporting this element of defendants' summary judgment motion, the personnel director of Gulf indicated that since the date when plaintiffs allege the violations began, defendant Gulf has made several personnel changes, a number of management personnel have retired, and two personnel managers have deceased. These statements are insufficient grounds on which to base a finding of prejudice. The fact that there have been personnel changes or that employees have retired is irrelevant unless those employees are unavailable. Akers v. State Marine Lines, Inc., 344 F.2d 217, 221 (5 Cir. 1965). The affidavit does indicate that two former personnel managers have died and that those employees' knowledge is irreplaceable. Gulf asserts the live tetimony of these employees is necessary, how ever, only because it has destroyed the writ ten records of the personnel decisions made from 1965 through 1974. Defendants argue that they cannot now adequately defend against plaintiffs' charges without refer ence to these destroyed records. The EEOC informed defendants of the charges in 1967. Pursuant to its normal document retention plan, Gulf retained documents for only four years. Thus, Gulf did not destroy the documents relevant to the claims arising in 1965 until 1969, two years after Gulf learned of the charges. A party cannot assert the defense of laches merely because it has failed to preserve evidence despite knowledge of a pending claim. American Marine Corp. v. Citizens Cas. Co.," }, { "docid": "1118862", "title": "", "text": "by leave of Court.” II. The motion to strike under Rule 12(f). SK&F has also filed a motion to strike paragraph 5 of Robins’ counterclaim as an “insufficient defense” under Rule 12(f) of the Federal Rules of Civil Procedure. Paragraph 5 of the counterclaim is as follows: 5. SK&F is barred by laches and estoppel from maintaining any action for alleged infringement of patent 3,078,307. At the time of filing of the original complaint by SK&F, this paragraph was part of a counterclaim for relief, rather than a defense, since neither count of SK&F’s original complaint alleged infringement of the ’307 patent. Indeed, it is the express position of SK&F that no action for infringement of the ’307 patent was possible prior to the events which led to the filing of the supplemental complaint permitted in Part I of this memorandum. Paragraph 5 was one of several averments in support of Robins’ prayer for an injunction to prevent SK&F from charging infringement of the ’307 patent, and from instituting any action for infringement of the ’307 patent against Robins or any of its suppliers or customers. Plaintiff is therefore asking this court to strike an averment of defendant Robins’ counterclaim before plaintiff has filed a responsive pleading. At least one court has allowed a motion to strike a counterclaim under Rule 12(f), but this was in conjunction with a motion to strike a defense predicated on the same grounds as the counterclaim. The court ruled that since the defense had been stricken as insufficient, the counterclaim could be stricken at the same time. Brew, Woltman & Co., Inc. v. Anthony, 94 F.Supp. 955 (S.D.N.Y.1951). In the present case, since Robins has not filed a pleading in response to a claim of infringement of the '307 patent, the averment of laches and estoppel is properly part of a counterclaim rather than a defense. As such, Rule 12(f) is not applicable. For the purposes of this motion, however, we will assume that Robins will assert laches and estoppel as defenses to the claim for infringement of the ’307 patent, which will be" }, { "docid": "19102193", "title": "", "text": "only that supervisory personnel must abide by acceptable standards of conduct and see that lower level employees do the same. When a middle management supervisor fails in this responsibility, it in no way legitimates conduct by either supervisor or subordinate that either could perceive was wholly unacceptable. In fact, a supervisory employee on the audit in this case was convicted of bribery for accepting paid up junkets to play golf in distant places. United States v. Niederberger, 580 F.2d 63 (3d Cir. 1978). If the example of a supervisor might be followed in a \"gray area” this is not true if he sets an example of flagrant misconduct. Plaintiffs also challenge their removals claiming that the charges were not supported by substantial evidence, that the agency failed to apply \"progressive discipline,” and that similarly situated employees received disparate treatment. We have thoroughly reviewed these contentions and find them to be unpersuasive. We turn now to the government’s counterclaim to recover the value of the gratuities received by plaintiffs. Plaintiffs set up laches as their defense. As outlined at the beginning of this opinion, the events giving rise to the counterclaim transpired from 1967 to 1975. In 1977, after an investigation, removal proceedings were commenced against plaintiffs. It was not until August 20, 1979, that defendant asserted its counterclaim in an amended answer to the complaint. We find that the defendant’s counterclaim is barred by laches. The elements of the bar of laches are: (1) an unjustified delay in bringing an action, and (2) resulting prejudice to the party asserting laches. In the present case, the defendant initiated removal proceedings against plaintiffs in April 1977. Clearly by that time the defendant was in possession of as much evidence to support proceedings to recover the monies now claimed as it now is. It was not until more than two years and three months later that defendant filed its counterclaim. Although defendant’s delay is not among the most egregious procrastinations found in the case law, we have applied the bar of laches against plaintiffs who have been similarly or less tardy than defendant" }, { "docid": "11490692", "title": "", "text": "contrary to public policy by reason of the conspiracy charged in counterclaim. The plaintiff has by thirty separate motions moved to strike out specific paragraphs of defendant’s answer and counterclaim on the ground: (1) That the answer does not state a legal defense to plaintiff’s claim; and (2) the counterclaim does not state a legal cause of action against plaintiff. The first question which presents itself on these motions is whether or not a motion to strike is the proper way in which to raise the question of the sufficiency of the answer and counterclaim. Rule 12(f) of the Rules of Civil Procedure, 28 U.S.C.A. following section 723c, provides that the court may, on motion or on its own initiative, order any redundant, immaterial, impertinent, or scandalous matter stricken from any pleading. We doubt •whether the motions to strike in this case come within any of the categories mentioned in Rule 12(f), and think we might properly dismiss the plaintiff’s motions on that ground alone. However, from the wording of the motions, it appears to us that, so far as concerns the complaint and answer, they are really motions for judgment on the pleadings, which is authorized by Rule 12(c). And so far as concerns the two counts of-the counterclaim, the motions are equivalent to motions to dismiss for failure to state claims upon which relief can be granted, the form of remedy authorized by Rule 12(b). We shall therefore consider them in that category. The next point to consider is whether or not the defendant is barred by the Pennsylvania statutes of limitations from recovering the moneys it has already paid on the license-agreements, and is also barred by laches as to its right to rescind the contracts and recover the moneys paid on these license-agreements. The defendant asserts that laches and the statute of limitations are affirmative defenses under Rule 8(c) of the Rules of Civil Procedure and may not be raised by a motion to strike. While it is true that this rule provides: “In pleading to a preceding pleading, a party shall set forth affirmatively *" }, { "docid": "11815983", "title": "", "text": "patent application. On November 9 Glass also offered to deliver to Bendix an executed ¿ssignment of the patent application but conditioned this offer on acknowledgement by Bendix of his, Glass’s equitable rights in the invention. Glass’s demand for a jury trial and his motion to dismiss the complaint were argued. The court below ruled against the demand for jury trial and denied Glass’s motion to dismiss the complaint. The court stated, Bendix Aviation Corporation v. Glass, D.C., 81 F.Supp. 645, 646, “In the present case the cause of action stated in the complaint, the remedy sought and the defenses pleaded in the answer, including the ‘understanding and implied agreement’ for compensation, create an issue which is as purely equitable as anything can be. It is whether the defendant can be compelled to specifically perform his side of the employment contract. This issue the defendant cannot transform into one at law merely by counterclaiming for money damages.” Chief Judge Kirkpatrick went on to- say, 81 F.Supp. at page 647, “On the other hand the issue raised by the counterclaim is at law — whether the plaintiff has broken a promise to pay the defendant money. If this breach of contract had not been pleaded as a defense, if the promise had been set out as a collateral agreement or as a collateral term of the employment contract performance of which was not necessary to entitle the plaintiff to relief, the issues could be severed and a separate jury trial awarded to the defendant upon his counterclaim. As it is, the facts upon which the counterclaim is based, if proof of them is offered as a defense, will have to be determined in the trial upon the equity issue.” The trial judge also said that the defendant had sought to get the ground for equity jurisdiction out of the case by making a written offer to assign the patent and by then moving to dismiss the complaint on the ground that the cause was thus rendered moot. Chief Judge Kirkpatrick pointed out that Glass’s offer to assign the patent was not an" } ]

[ { "docid": "12642524", "title": "", "text": "Barshak with the historic rates he specified for the years 1975 through 1985 for the attorneys who represented the plaintiffs at trial, on appeal, and in the fee proceeding. As we shall later explain in more detail, this recalculation represents a total reduction of about 40 percent, from the district court’s figure of approximately $1,470,000 to approximately $895,000. III. Lodestar Findings: Time and Rates Having come this far, we now face a battery of specific criticisms of the district court’s decision as to time spent and appropriate rates. This fee litigation has resulted in what the Court in Hensley warned against: “a second major litigation.” 461 U.S. at 437, 103 S.Ct. at 1941. Although the Commonwealth has assured us that it has only taken seriously our advice in Brewster v. Dukakis, 786 F.2d 16, 19 (1st Cir.1986), to “mount[ ] challenges to specific claims,” it has gone far beyond “tar-getting] significant and vulnerable areas for testing.” Id. The result is that we find ourselves confronting 200 pages of briefs, seven cartons of records, a transcript of a three-day trial, and dozens of exhibits. There has been no effort to prioritize. The issue advanced by the Commonwealth that we deem the most meritorious, the Eleventh Amendment issue, was allowed only five pages in its 98-page main brief. In contrast, although plaintiffs’ counsel quickly conceded error in the inclusion of a $26 charge for lunch, this item was alluded to in both brief and oral argument to demonstrate plaintiffs’ counsels’ irresponsibility. Apart from the “prevailing parties” issue, the Commonwealth aimed at some ten targets. We discuss them seriatim. 1. We are urged to disallow 50 percent of time allegedly spent between 1975 and mid-1977 (when we announced in King v. Greenblatt, 560 F.2d 1024 (1st Cir.1977), that contemporaneous time records should be kept) before detailed records were kept. The district court considered the evidence as to how plaintiffs’ attorneys had reconstructed their time and found it reliable. The time allegedly spent by plaintiffs’ lead attorney in these first three years (1,370 hours in 1975, 870 in 1976, and 1,164 in 1977 —" } ]

[ { "docid": "22589708", "title": "", "text": "that the plaintiffs were prevailing parties for purposes of the discrete Regulation 29 claim. A fee award therefore was due. IV. THE AMOUNT OF THE AWARD The second wave of the Commonwealth’s offensive targets the amount of the fee award. Even if the plaintiffs are prevailing parties, the Commonwealth says, the award should be reduced because, among other things, it is disproportionately large; the plaintiffs failed to produce adequate records documenting their attorneys’ time; the case was staffed too densely; and the court was overly generous in its treatment of overlapping issues. We turn first to the anatomy of the award, and then examine the Commonwealth’s contentions. A. The Anatomy of the Award. Under most federal fee-shifting statutes, including the Fees Act, the trial judge must determine “the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate.” Hensley, 461 U.S. at 433, 103 S.Ct. 1933. In implementing this lodestar approach, the judge calculates the time counsel spent on the case, subtracts duplicative, unproductive, or excessive hours, and then applies prevailing rates in the community (taking into account the qualifications, experience, and specialized competence of the attorneys involved). Lipsett, 975 F.2d at 937; United States v. Metro. Dist. Comm’n, 847 F.2d 12, 15-17 (1st Cir.1988); Grendel’s Den, Inc. v. Larkin, 749 F.2d 945, 950-51 (1st Cir.1984). In fashioning fee awards, the attorneys’ contemporaneous billing records constitute the usual starting point, but the court’s discretion is by no means shackled by those records. For example, it is the court’s prerogative (indeed, its duty) to winnow out excessive hours, time spent tilting at windmills, and the like. Coutin, 124 F.3d at 337. By the same token, the court may take guidance from, but is not bound by, an attorney’s standard billing rate. See Brewster v. Dukakis, 3 F.3d 488, 492-93 (1st Cir.1993). Chief Judge Laffitte followed this procedure. He started with the time compilations submitted by the plaintiffs’ lawyers. Despite the attorneys’ representations that the compilations only included time spent in connection with their efforts to prove the infirmity of Regulation 29, the court sharply reduced the number" }, { "docid": "23034747", "title": "", "text": "allege that the district court made two errors in calculating its award of attorneys’ fees under 42 U.S.C. § 1988. First, the court compensated the plaintiffs for time spent examining and researching theories that ultimately proved to be irrelevant to the case. The inclusion of these misspent hours in the fee calculation, the defendants assert, resulted in an overestimation of the reasonable number of hours expended on the case. Second, plaintiffs did not provide evidence of, nor did the district court make a ruling as to the reasonable hourly rate prevailing in the community for similar legal services. Instead, defendants maintain, the court based its hourly rate calculation solely on the affidavits of the plaintiffs’ attorneys. Since the Supreme Court has declared that the plaintiff bears the burden of establishing what the prevailing market rate is for comparable legal services, Blum v. Stenson, 465 U.S. 886, 895 n. 11, 104 S.Ct. 1541, 1547 n. 11, 79 L.Ed.2d 891 (1984), the defendants argue that the case must be remanded to determine the reasonable hourly rates for the services rendered by plaintiffs’ attorneys. We note initially the great discretion that is to be afforded a district court’s determination of attorneys’ fees under 42 U.S.C. § 1988. See Hensley v. Eckerhart, 461 U.S. 424, 437, 103 S.Ct. 1933, 1941, 76 L.Ed.2d 40 (1983); Lund v. Affleck, 587 F.2d 75, 77-78 (1st Cir.1987); King v. Greenblatt, 560 F.2d 1024, 1026 (1st Cir.1977), cert. denied, 438 U.S. 916, 98 S.Ct. 3146, 57 L.Ed.2d 1161 (1978). We may reverse the award granted by the district court only if we find that there has been an abuse of that discretion. See Wojtkowski v. Cade, 725 F.2d 127, 130-31 (1st Cir.1984); Grendel’s Den, Inc. v. Larkin, 749 F.2d 945, 950-51 (1st Cir.1984). Thus, while “appellate courts have a duty to review carefully the basis for the award and to ensure that the amount is reasonable,” Grendel’s Den, Inc., 749 F.2d at 950, the lion’s share of the responsibility for setting attorneys’ fees is vested in the district court judge. We deal first with the lower court’s calculation as" }, { "docid": "1465387", "title": "", "text": "1988. B. The Reasonableness of the Submitted Fees The Court’s determination that Plaintiffs are prevailing parties does not automatically entitle Plaintiffs to all fees that they have requested. The Court must also determine whether Plaintiffs’ requested fees award is reasonable. This analysis generally begins with a lodestar calculation of “the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate.” Hensley, 461 U.S. at 433, 103 S.Ct. at 1939. In making the lodestar calculation, a court considers the prevailing rates in the community for attorneys with similar experience and qualifications to those for whom fees have been requested, as well as whether fees have been requested for “du-plicative, unproductive, or excessive hours.” Gay Officers Action League et al. v. Commonwealth of Puerto Rico, 247 F.3d 288, 295 (1st Cir.2001). In determining the reasonableness of Plaintiffs’ submitted time, a court may reduce a fee award to exclude “hours inadequately explained or detailed.” O’Connor v. Huard, 117 F.3d 12, 18 (1st Cir.1997); see also Phetosomphone v. Allison Reed Group, Inc., 984 F.2d 4, 8 (1st Cir.1993). A court also “may bring to bear its knowledge and experience concerning both the cost of attorneys in its market area and the time demands of the particular case.” Wojtkowski v. Cade, 725 F.2d 127, 130 (1st Cir.1984). Ultimately, the party requesting fees bears the burden of establishing the reasonableness of the rates and hours submitted in a fees petition. See Weinberger v. Great Northern Nekoosa Corp., 801 F.Supp. 804, 807 (D.Me.1992), aff'd, 47 F.3d 463 (1995). Several other factors also inform a court's determination regarding the reasonableness of requested fees, including the degree of success obtained in the litigation. See Hensley, 461 U.S. at 435-37, 103 S.Ct. at 1940-41. The determination of degree of success is a significant factor in a court’s evaluation of a fees petition, see id., and it is measured in light of “a plaintiffs success claim by claim, ... the relief actually achieved, [and] the societal importance of the right which has been vindicated.” See Coutin v. Young and Rubicam Puerto Rico, Inc., 124 F.3d 331, 338" }, { "docid": "1034932", "title": "", "text": "changes are necessary to achieve the goal of reaching the 100% service level.” 332 F.Supp.2d 540, 542 (W.D.N.Y.2004). Plaintiffs have now moved for an award of attorney’s fees and costs in the amount of $545,883.52, pursuant to 42 U.S.C. §§ 1988 and 12205. Defendants do not dispute that plaintiffs are “prevailing parties” in this case, and are therefore entitled to some fee award, but contend that the amount requested is. excessive and should be reduced substantially. DISCUSSION I. Attorney’s Fees Under 42 U.S.C. §§ 1988 and 12205-General Principles Section 1988 of Title 42 provides that “[i]n any action or proceeding to enforce a provision of section[ ] ... 1983 ... of this title, ... the court, in its discretion, may allow the prevailing party ... a reasonable attorney’s fee as part of the costs -” Similarly, § 12205 provides that “[i]n any action ... commenced pursuant to this chapter, the court ..., in its discretion, may allow the prevailing party ... a reasonable attorney’s fee, including litigation expenses, and costs .... ” Thus, a fee request under either statute is analyzed under the same standards. See Brinn v. Tidewater Transp. Dist. Comm’n, 242 F.3d 227, 233 n. 3 (4th Cir.2001); Bercov- itch v. Baldwin Sch., Inc., 191 F.3d 8, 11 and n. 2 (1st Cir.1999); Pottgen v. Missouri State High Sch. Activities Ass’n, 103 F.3d 720, 723 (8th Cir.1997); Homeward Bound, Inc. v. Hissom Mem’l Ctr., 963 F.2d 1352, 1354 n. 1 (10th Cir.1992); Jones v. Illinois Dep’t of Rehabilitation Servs., 689 F.2d 724, 730 n. 8 (7th Cir.1982). In this Circuit, “[t]he lodestar approach governs the initial estimate of reasonable fees.” Grant v. Martinez, 973 F.2d 96, 99 (2d Cir.1992), cert. denied, 506 U.S. 1053, 113 S.Ct. 978, 122 L.Ed.2d 132 (1993). Under this approach, “the number of hours reasonably expended on the litigation [are] multiplied by a reasonable hourly rate.” Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983); Grant, 973 F.2d at 99. The Court must determine if the hours expended and the rates charged are reasonable, and the fee applicant has" }, { "docid": "2208343", "title": "", "text": "fee request hours that are excessive, redundant, or otherwise unnecessary, just as a lawyer in private practice ethically is obligated to exclude such hours from his fee submission.” Hensley v. Eckerhart, 461 U.S. 424, 434, 103 S.Ct. 1933, 1939-40, 76 L.Ed.2d 40 (1983) (emphasis added). The First Circuit Court of Appeals has instructed this Court to employ the lodestar method for fee determination: If an alternative method is not expressly dictated by applicable law, we have customarily found it best to calculate fees by means of the time-and-rate method known as the lodestar. In this instance, the district court indicated its clear preference for this approach. Given the lodestar method’s proven usefulness as an understandable and manageable way of determining reasonable attorneys' fees in statutory cases, we find no reason why district courts should be divested of authority to employ it in analyzing fee applications submitted for approval in connection with class action settlements under Rule 23(e). Weinberger, 925 F.2d at 526 (citation omitted). With respect to the lodestar method, the fee applicant has the burden in terms of the number of hours to be included in the lodestar, the hourly rates to be applied, and the propriety of multipliers. See Weinberger, 925 F.2d at 527 n. 11 (\"In applying for judicial approval of a fee award, it is the plaintiffs' burden to furnish the evidence required, not the court's burden to seek it out.\"). See also Grendel's Den, Inc. v. Larkin, 749 F.2d 945, 952 (1st Cir.1984); Inmates of the Maine State Prison v. Zitnay, 590 F.Supp. 979, 984 (E.D.Me.1984). The Court must \"undertake an independent review of the time records to determine `the reasonableness of the hours spent and the hourly rate sought.'\" Weinberger, 925 F.2d at 529 (quoting In re Spillane, 884 F.2d 642, 647 (1st Cir.1989)). In undertaking this review, this Court has painstakingly acted upon the First Circuit Court of Appeals' mandate that \"the court should scrutinize fee applications carefully.\" Id. at 525. i. Hourly Rates A threshold question for the Court in determining the lodestar is the appropriate hourly rate for Plaintiffs' nonlocal counsel." }, { "docid": "1465414", "title": "", "text": "an erroneous characterization of the jury's verdict with regard to Plaintiff Carlo, in that Defendants contend that Carlo was not awarded nominal damages. See Opposition to Plaintiffs' Application for Attorney's Fees (Doc. No. 37). Carlo was awarded nominal damages. See Jury Verdict (Doc. No. 26); Amended Judgment (Doc. No. 38). . In Hensley, the Supreme Court enumerated a list of twelve factors that may also inform a court’s reasonableness analysis: (1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the skill requisite to perform the legal service properly; (4) the preclusion of employment by the attorney due to acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the \"undesirability” of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases. Hensley, 461 U.S. at 430 n. 3, 103 S.Ct. at 1938 n. 3 (citing Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir.1974)). . If anything, the Court views the instant case as similar to Andrade v. Jamestown Housing Authority, 82 F.3d 1179, 1190-92 (1st Cir.1996), in which the Court of Appeals upheld a federal district court’s decision to significantly reduce a fees award in light of the plaintiffs limited degree of success and the district court judge's conclusion that three of the five claims were frivolous. Although Plaintiffs argue that this case presents similar issues to those presented in Domegan v. Ponte, 972 F.2d 401 (1st Cir.1992), that decision was vacated by the Supreme Court and remanded to the Court of Appeals for further consideration in light of the Supreme Court's decision in Farrar. See Ponte v. Domegan, 507 U.S. 956, 113 S.Ct. 1378, 122 L.Ed.2d 754 (1993). . The Court is not persuaded by Defendants' argument that all general tasks should be divided by two in order to reflect that only Plaintiff Okot prevailed" }, { "docid": "23171986", "title": "", "text": "may even appear by implication, but at a bare minimum, the order awarding fees, read against the backdrop of the record as a whole, must expose the district court’s thought process and show the method and manner underlying its decisional calculus. See Blum v. Stenson, 465 U.S. 886, 898, 104 S.Ct. 1541, 1548-49, 79 L.Ed.2d 891 (1984); Hensley v. Eckerhart, 461 U.S. 424, 437, 103 S.Ct. 1933, 1941, 76 L.Ed.2d 40 (1983). This principle is especially important when the fee award departs substantially from the contours shaped by the application. “As a general rule, a fee-awarding court that makes a substantial reduction in either documented time or authenticated rates should offer reasonably explicit findings, for the court, in such circumstances, ‘has a burden to spell out the whys and wherefores.’ ” Brewster, 3 F.3d at 493 (quoting Metropolitan Dist. Comm’n, 847 F.2d at 18). An appellate court deprived of meaningful insight into the trial court’s thinking frequently will be unable to conduct an adequate review of a significantly adjusted fee award, and thus will be compelled to remand for further findings. See, e.g., Riley v. City of Jackson, 99 F.3d 757, 760 (5th Cir.1996); Freeman v. Franzen, 695 F.2d 485, 494 (7th Cir.1982). III. METHODOLOGY The lodestar method is the strongly preferred method by which district courts should determine what fees to award prevailing parties in actions that fall' within the ambit of section 1988. See Lipsett v. Blanco, 975 F.2d 934, 937 (1st Cir.1992). This approach contemplates judicial ascertainment of “the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate” as the starting point in constructing a fee award. Hensley, 461 U.S. at 433, 103 S.Ct. at 1939. While the lodestar method is a tool, not a straitjacket — as we have acknowledged, some deviation from an orthodox application of the method is permissible in highly unusual situations, see Metropolitan Dist. Comm’n, 847 F.2d at 15-16 — a fee-awarding court shuns this tried-and-true approach at its peril. See Segal v. Gilbert Color Sys., Inc., 746 F.2d 78, 87 (1st Cir. 1984). As we have" }, { "docid": "2208344", "title": "", "text": "burden in terms of the number of hours to be included in the lodestar, the hourly rates to be applied, and the propriety of multipliers. See Weinberger, 925 F.2d at 527 n. 11 (\"In applying for judicial approval of a fee award, it is the plaintiffs' burden to furnish the evidence required, not the court's burden to seek it out.\"). See also Grendel's Den, Inc. v. Larkin, 749 F.2d 945, 952 (1st Cir.1984); Inmates of the Maine State Prison v. Zitnay, 590 F.Supp. 979, 984 (E.D.Me.1984). The Court must \"undertake an independent review of the time records to determine `the reasonableness of the hours spent and the hourly rate sought.'\" Weinberger, 925 F.2d at 529 (quoting In re Spillane, 884 F.2d 642, 647 (1st Cir.1989)). In undertaking this review, this Court has painstakingly acted upon the First Circuit Court of Appeals' mandate that \"the court should scrutinize fee applications carefully.\" Id. at 525. i. Hourly Rates A threshold question for the Court in determining the lodestar is the appropriate hourly rate for Plaintiffs' nonlocal counsel. The general rule is as follows: All federal courts seem to agree that the proper rate to apply to the work of out-of-town counsel is that of the forum community, rather than that which the attorney charges in the community in which she practices. 2 M. Derfner & A. Wolf, supra, ¶ 16.03[8], at 16-99. An exception to this rule arises where the litigation requires expertise that attorneys within the forum community do not possess. See id.; Maceira v. Pagan, 698 F.2d 38, 40 (1st Cir.1983). Plaintiffs' counsel assert that the use of the prevailing rate in their own community \"is especially appropriate in this litigation because the bulk of the work, including virtually all the discovery, actually occurred in New York City.\" Plaintiffs' Post Hearing Memorandum at 18-19. Amicus Curiae Maine argues that Plaintiffs' counsel should be limited to local hourly rates. They assert that “[t]he need for specialized counsel is belied by the fact that the plaintiffs’ counsel’s greatest success in this litigation — this court’s footnote citation of their efforts in connection" }, { "docid": "3852169", "title": "", "text": "appropriate. Id. at 340 (citation omitted). Although this Court is not required to produce a “painstaking” explanation of its decision, which is reviewed “deferentially, according substantial respect to the trial court’s informed discretion,” id. at 336-37 (citing Brewster v. Dukakis, 3 F.3d 488, 492 (1st Cir.1993)), recent case law demonstrates that the First Circuit examines these “discretionary” decisions extremely closely, see, e.g., McMillan v. Massachusetts Soc’y for the Prevention of Cruelty to Animals, 140 F.3d 288, 310-11 (1st Cir.1998), cert. denied, —— U.S.—, 119 S.Ct. 870, 142 L.Ed.2d 772 (1999); Rodriguez-Hernandez v. Miranda-Velez, 132 F.3d 848, 858-60 (1st Cir.1998); Williams, 113 F.3d at 1297-98. The First-Circuit has “ ‘never required that [district] courts set forth hour-by-hour analyses of fee requests.’ ” United States v. Metropolitan Dist. Comm’n, 847 F.2d 12, 16 (1st Cir.1988) (alteration in original) (quoting Jacobs v. Mancuso, 825 F.2d 559, 562 (1st Cir.1987)). “[A]t a bare minimum,” however, the trial court’s fee determination “must expose [its] thought process and show the method and manner underlying its decisional calculus,” Coutin, 124 F.3d at 337 (citing cases), “especially ... when the fee award departs substantially from the contours shaped by the application,” id. I. Calculating the Lodestar The lodestar approach “contemplates judicial ascertainment of ‘the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate’ as the starting point in constructing a fee award.” Id. (quoting Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983)). Though the prevailing party is under an obligation to submit a request for fees that includes its calculations of hours expended multiplied by a requested hourly rate, the Court “has a right — indeed, a duty — ‘to see whether counsel substantially exceeded the bounds of reasonable effort.’ ” Metropolitan Dist. Comm’n, 847 F.2d at 17 (quoting Pilkington v. Bevilacqua, 632 F.2d 922, 925 (1st Cir.1980)). “[T]he [attorney’s] bill need not be swallowed whole by the client’s litigation adversary just because it is the [attorney’s] bill.” Id. The. Court, then, must engage in a thoughtful analysis of the number of hours expended and the hourly" }, { "docid": "16626381", "title": "", "text": "336-37. As a practical matter, however, a survey of recent case law demonstrates that the First Circuit examines these “discretionary” decisions extremely closely, as evidenced by language in a string .of recent reversals of district court decisions on fee applications. See, e.g., McMillan v. Massachusetts Soc’y for the Prevention of Cruelty to Animals, 140 F.3d 288, 310-11 (1st Cir.1998); Rodriguez-Hernandez v. Miranda-Welez, 132 F.3d 848, 858-60 (1st Cir.1998); Coutin, 124 F.3d at 342; Williams, 113 F.3d at 1297-98. I proceed with care. A. Calculating the Lodestar The lodestar approach “contemplates judicial ascertainment of ‘the number of hours reasonably expended oh the litigation multiplied by a reasonable hourly rate’ as the starting point in constructing a fee award.” Coutin, 124 F.3d at 337 (quoting Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983)). Though the prevailing party is under an obligation to submit a request for fees including its calculations of hours expended multiplied by a requested hourly rate, the Court “has a right&emdash;indeed, a duty&emdash;to see whether counsel substantially exceeded the bounds of reasonable effort.” United States v. Metropolitan Dist. Comm’n, 847 F.2d 12, 17 (1st Cir. 1988) (internal quotation omitted). “[T]he law firm’s bill need not be swallowed whole by the client’s litigation adversary just because it is the law firm’s bill.” Id. The Court, then, must engage in a thoughtful analysis of the number of hours expended and the hourly rates charged to ensure both are reasonable. “In these and other ways, the trial court, though adhering to the time- and-rate-based method of fee calculation, may fashion a lodestar which differs substantially from the fee requested by the prevailing party.” Coutin, 124 F.3d at 337. Here, the Court sets out the standard it applied uniformly to plaintiffs’ attorney records in arriving at reasonable hours figures. Then, after explaining the standard applied for hourly rates, the Court applies both standards to each lawyer (and the clerks) to arrive at the lodestar. 1. Reasonable Hours Expended Plaintiffs’ counsel submitted stacks of billing records, which the Court reviewed in arriving at a reasonable fee. Generally, plaintiffs’" }, { "docid": "3852170", "title": "", "text": "337 (citing cases), “especially ... when the fee award departs substantially from the contours shaped by the application,” id. I. Calculating the Lodestar The lodestar approach “contemplates judicial ascertainment of ‘the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate’ as the starting point in constructing a fee award.” Id. (quoting Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983)). Though the prevailing party is under an obligation to submit a request for fees that includes its calculations of hours expended multiplied by a requested hourly rate, the Court “has a right — indeed, a duty — ‘to see whether counsel substantially exceeded the bounds of reasonable effort.’ ” Metropolitan Dist. Comm’n, 847 F.2d at 17 (quoting Pilkington v. Bevilacqua, 632 F.2d 922, 925 (1st Cir.1980)). “[T]he [attorney’s] bill need not be swallowed whole by the client’s litigation adversary just because it is the [attorney’s] bill.” Id. The. Court, then, must engage in a thoughtful analysis of the number of hours expended and the hourly rates charged to ensure that both are reasonable. In this way, the trial court, “though adhering to the time-and-rate-based method of fee calculation, may fashion a lodestar which differs substantially from the fee requested by the prevailing party.” Coutin, 124 F.3d at 337. Here, the Court sets out the standard it applied to Attorney Hernandez’s billing records in arriving at reasonable hours figures. Then, after explaining the standard applied for hourly rates, the Court applies both standards to Attorney Hernandez and his co-counsel to arrive at the lodestar. A. Reasonable Hours Expended “Typically, a court proceeds to compute the lodestar amount by ascertaining the time counsel actually spent on the case ‘and then subtracting] from that figure hours which were duplicative, unproductive, excessive, or otherwise unnecessary.’ ” Lipsett, 975 F.2d at 937 (alteration in original) (quoting Grendel’s Den, Inc. v. Larkin, 749 F.2d 945, 950 (1st Cir.1984)); see also Coutin, 124 F.3d at 337. In doing so, “the presiding judge must ‘draw[ ] on [her] own experience and wisdom [in] deciding whether the time spent" }, { "docid": "713152", "title": "", "text": "reasonably expended in the litigation. Hensley, 103 S.Ct. at 1939. This figure is then multiplied by a reasonable hourly rate for counsel, which is generally deemed to be the prevailing market rate for the services rendered. Id., Blum, 104 S.Ct. at 1547 n. 11. The burden is on the fee applicant to produce evidence that the requested rates are in line with those prevailing in the community for similar services, by lawyers of reasonably comparable skill, experience and reputation. Id. The sum of the two numbers is commonly referred to as the “lodestar” figure. Ramos v. Lamm, 713 F.2d 546, 552 (10th Cir.1983); Furtado v. Bishop, 635 F.2d 915, 920 (1st Cir.1980); City of Detroit v. Grinnell Corp., 560 F.2d 1093, 1098 (2d Cir.1977); Lindy Brothers Builders, Inc. of Philadelphia v. American Radiator & Sanitary Corp., 487 F.2d 161 (3d Cir.1973), aff’d. 540 F.2d 102 (3d Cir.1976) (en banc). The final step in the methodology allows the Court to enhance or reduce the lodestar based upon contingency and quality adjustments. National Association of Concerned Veterans v. Secretary of Defense, 675 F.2d at 1328-29; Copeland v. Marshall, 641 F.2d at 892-94. As previously stated by the Court, because many of the calculations mandated by this framework are inherently imprecise and require certain approximations, the Court must, with some frequency, exercise its discretion— well informed by its detailed knowledge of the litigation before it—to arrive at the final fee award. See Laffey v. Northwest Airlines, Inc., 572 F.Supp. at 361. Having reviewed plaintiff’s fee application and defendants’ objections thereto, the Court now begins its analysis to determine the appropriate lodestar figure. B. Number of Hours Reasonably Expended The first component of any court-awarded attorney’s fee is the number of hours reasonably expended on the litigation. National Association of Concerned Veterans, 675 F.2d at 1323. Although counsel are entitled to full compensation for their efforts, “[i]t does not follow that the amount of time actually expended is the amount of time reasonably expended.” Copeland v. Marshall, 641 F.2d at 891. Since the prevailing party is not entitled to those hours claimed that were" }, { "docid": "20317046", "title": "", "text": "at 9; Furtado v. Bishop, 635 F.2d at 920; Copeland v. Marshall, 641 F.2d at 892. Determination of the amount of fees to be awarded according to the above guidelines is left to the sound discretion of the court, which cannot merely rely on the adversarial process to ferret out weaknesses, but should “[draw] on [its] own experience and wisdom” in making the determination. Gabrielle v. Southworth, 712 F.2d at 1507; see Wojtkowski v. Cade, 725 F.2d 127, 130 (1st Cir.1984). The court should be guided by the 12 Johnson factors when determining the number of hours reasonably expended, the hourly rate to be charged, and what, if any, adjustment to the lodestar figure should be made. Hensley v. Eckerhart, 461 U.S. at-n. 9, 103 S.Ct. at 1940 n. 9; King v. Greenblatt, 560 F.2d 1024, 1026-27 (1st Cir.1977), cert, denied, 438 U.S. 916, 98 S.Ct. 3146, 57 L.Ed.2d 1161 (1978). Relevant costs and disbursements should then be added to the award. Miles v. Sampson, 675 F.2d at 10. Once a lodestar figure is determined, the court miist consider whether any adjustment is necessary. The First Circuit has made clear that this step is a “residual category that is relevant only when the parties point out factors that do not easily fit into the initial calculation of the lodestar.” Furtado v. Bishop, 635 F.2d at 924; see Blum v. Stenson, — U.S. at---, 104 S.Ct. at 1548-51. The burden of justifying departure from the lodestar norm is upon the party proposing the adjustment. Id.; Copeland v. Marshall, 641 F.2d at 892; Furtado v. Bishop, 635 F.2d at 924. B. Sufficiency of Records Defendants ask the Court to disallow a substantial portion of the fee requests submitted by Attorneys Thibeault and Wood for “vagueness.” There is no question but that when seeking attorney’s fees plaintiffs’ attorneys must submit a full and accurate accounting of their time; the accounting must be based on contemporaneous records; and the accounting must give specifics such as the dates and nature of the work performed. Hensley v. Ecker hart, 461 U.S. at-, -, 103 S.Ct. at" }, { "docid": "16961364", "title": "", "text": "Siena Club, 463 U.S. 680, 683-84, 103 S.Ct. 3274, 3277, 77 L.Ed.2d 938 (1983); Bebchick v. Washington Metro. Area Transit Comm’n, 805 F.2d 396, 402 (D.C.Cir.1986); Puerto Rico v. Heckler, 745 F.2d 709, 714 (D.C.Cir.1984). Once it is determined that the attorneys are entitled to be paid from the common fund, it is the duty of the court to determine the appropriate amount. Cases have recognized that jurisdiction over the case also carries with it the equitable jurisdiction to award reasonable attorneys’ fees in appropriate circumstances. Weinberger v. Great N. Nekoosa Corp., 925 F.2d 518, 523 (1st Cir.1991). Court approval of attorneys’ fees in common fund cases is especially desirable because, when it comes to the question of fees, “the interests of the class members’ attorneys may differ from the interests of the class members themselves.” 3B Jeremy C. Moore et al., Moore’s Federal Practice ¶ 23.91 (2d ed. 1993). The First Circuit has recognized that “the conflict between a class and its attorneys may be most stark where a common fund is created and the fee award comes out of, and thus directly reduces, the class recovery.” Weinberger, 925 F.2d at 524. Therefore, the court must act to protect the interests of the class members and to insure that the fee awarded is reasonable. See Swedish Hosp. Corp. v. Shalala, 1 F.3d 1261, 1265-66 (D.C.Cir.1993). In most fee-shifting cases a court will determine a reasonable fee using the lodestar method, that is, multiplying the reasonable hours expended by a reasonable hourly rate. In common fund cases, however, courts often award fees based on a reasonable percentage of the fund. See Swedish Hosp. Corp., 1 F.3d at 1267 (listing cases). In fact, every Supreme Court case that has addressed the issue has determined reasonable fees payable from a common fund on a percentage of the fund basis. See, e.g., Sprague v. Ticonic Nat’l Bank, 307 U.S. 161, 59 S.Ct. 777, 83 L.Ed. 1184 (1939); Central R.R. & Banking v. Pettus, 113 U.S. 116, 5 S.Ct. 387, 28 L.Ed. 915 (1885); Trustees v. Greenough, 105 U.S. 527, 26 L.Ed. 1157 (1882)." }, { "docid": "3852168", "title": "", "text": "506 U.S. 103, 109, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992); Texas State Teachers Ass’n v. Garland Indep. Sch. Dist., 489 U.S. 782, 789, 109 S.Ct. 1486, 103 L.Ed.2d 866 (1989); Williams v. Hanover Hous. Auth., 113 F.3d 1294, 1299 (1st Cir.1997). “However, the fact that [plaintiffs] were the prevailing parties does not mean that they can recover for all the time spent in this litigation.” Culebras Enters. Corp. v. Rivera-Rios, 846 F.2d 94,102 (1st Cir.1988). Instead, the Court calculates a reasonable fee award using the lodestar method, which is “the strongly preferred method by which district courts should determine what fees to award prevailing parties” under ,§ 1988. Coutin v. Young & Rubicam P.R., Inc., 124 F.3d 331, 337 (1st Cir.1997) (citing Lipsett v. Blanco, 975 F.2d 934, 937 (1st Cir.1992)). To arrive at a reasonable award, the Court “must evaluate the data submitted by the fee-seeker, compute a lodestar, consider the totality of the adjustment factors approved by Congress and the [Supreme] Court, and make specific, reasoned adjustments” to reduce the award if appropriate. Id. at 340 (citation omitted). Although this Court is not required to produce a “painstaking” explanation of its decision, which is reviewed “deferentially, according substantial respect to the trial court’s informed discretion,” id. at 336-37 (citing Brewster v. Dukakis, 3 F.3d 488, 492 (1st Cir.1993)), recent case law demonstrates that the First Circuit examines these “discretionary” decisions extremely closely, see, e.g., McMillan v. Massachusetts Soc’y for the Prevention of Cruelty to Animals, 140 F.3d 288, 310-11 (1st Cir.1998), cert. denied, —— U.S.—, 119 S.Ct. 870, 142 L.Ed.2d 772 (1999); Rodriguez-Hernandez v. Miranda-Velez, 132 F.3d 848, 858-60 (1st Cir.1998); Williams, 113 F.3d at 1297-98. The First-Circuit has “ ‘never required that [district] courts set forth hour-by-hour analyses of fee requests.’ ” United States v. Metropolitan Dist. Comm’n, 847 F.2d 12, 16 (1st Cir.1988) (alteration in original) (quoting Jacobs v. Mancuso, 825 F.2d 559, 562 (1st Cir.1987)). “[A]t a bare minimum,” however, the trial court’s fee determination “must expose [its] thought process and show the method and manner underlying its decisional calculus,” Coutin, 124 F.3d at" }, { "docid": "17621531", "title": "", "text": "331, 336 (1st Cir. 2008); see In re Spillane, 884 F.2d at 647. When computing the number of hours productively spent, the court should discount time spent on unnecessary, duplicative, or overworked tasks. Gay Officers Action League, 247 F.3d at 295-96. In the case at hand, the bankruptcy court examined both the hourly rates and the number of hours billed. The court accepted the rates but concluded that the appellant and his staff were claiming an excessive number of hours. The appellant asserts that the court committed three errors in reaching this conclusion. We address each assignment of error in turn. To begin, the appellant contends that the bankruptcy court distorted the fee calculation by failing explicitly to identify and assess each of the factors enumerated in section 330. This contention misconstrues the lodestar method, which is designed to “provide[ ] a ‘flexible paradigm’ not meant to bind the nisi prius court to any single way of calculating the number of hours reasonably expended.” Weinberger v. Great N. Nekoosa Corp., 925 F.2d 518, 526-27 (1st Cir.1991) (quoting United States v. Metro. Disk Comm’n, 847 F.2d 12, 16 (1st Cir.1988)). Given the nature of this paradigm, a bankruptcy court need not march mechanically through a checklist of the section 330 factors when fashioning a fee award. See Metro. Dist. Comm’n, 847 F.2d at 15 (warning that mechanical approaches to fee awards “sacrifice substance on the altar of form”); see also In re Thirteen Appeals Arising Out of San Juan Dupont Plaza Hotel Fire Litig., 56 F.3d 295, 308 (1st Cir.1995) (stating that lodestar method should not “be applied in a formulaic or mechanical fashion” (internal quotation marks omitted)). Rather, it suffices if the court makes a fee calculation that takes the section 330 factors fairly into account. In this instance, it is nose-on-the-face plain that the bankruptcy court did enough to satisfy this standard. It first found the hourly rates reasonable. See 11 U.S.C. § 330(a)(3)(B), (F). It then found that many of the enumerated hours were dupli-cative and unnecessary in view of the uncomplicated nature of the case. See id." }, { "docid": "16626382", "title": "", "text": "the bounds of reasonable effort.” United States v. Metropolitan Dist. Comm’n, 847 F.2d 12, 17 (1st Cir. 1988) (internal quotation omitted). “[T]he law firm’s bill need not be swallowed whole by the client’s litigation adversary just because it is the law firm’s bill.” Id. The Court, then, must engage in a thoughtful analysis of the number of hours expended and the hourly rates charged to ensure both are reasonable. “In these and other ways, the trial court, though adhering to the time- and-rate-based method of fee calculation, may fashion a lodestar which differs substantially from the fee requested by the prevailing party.” Coutin, 124 F.3d at 337. Here, the Court sets out the standard it applied uniformly to plaintiffs’ attorney records in arriving at reasonable hours figures. Then, after explaining the standard applied for hourly rates, the Court applies both standards to each lawyer (and the clerks) to arrive at the lodestar. 1. Reasonable Hours Expended Plaintiffs’ counsel submitted stacks of billing records, which the Court reviewed in arriving at a reasonable fee. Generally, plaintiffs’ counsel met their burden of submitting “detailed contemporaneous time records.” Lipsett v. Blanco, 975 F.2d 934, 938 (1st Cir.1992) (quoting Grendel’s Den v. Larkin, 749 F.2d 945, 952 (1st Cir.1984)). However, the “trial bench need not feel handcuffed by counsel’s submission of time records, no matter how elaborate.” Metropolitan Dist. Comm’n, 847 F.2d at 18. “To the contrary, the presiding judge must draw on [her] experience and wisdom in deciding whether the time spent on each phase was in excess of a reasonable amount.” Id. (alterations and internal quotation omitted); see also Grendel’s Den, 749 F.2d at 952-55 (analyzing closely the hourly billings of two attorneys to ferret out excess). . “Typically, a court proceeds to compute the lodestar amount by ascertaining the time counsel actually spent on the case ‘and then subtracting] from that figure hours which were duplicative, unproductive, excessive, or otherwise unnecessary.’” Lipsett, 975 F.2d at 937 (quoting Grendel’s Den, 749 F.2d at 950); see also Coutin, 124 F.3d at 337. The First Circuit has “never required that [district] courts set forth" }, { "docid": "22848699", "title": "", "text": "entitled by multiplying the number of hours productively expended by counsel times a reasonable hourly rate. See Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 1939, 76 L.Ed.2d 40 (1983). Typically, a court proceeds to compute the lodestar amount by ascertaining the time counsel actually spent on the case “and then subtracting] from that figure hours which were duplicative, unproductive, excessive, or otherwise unnecessary.” Grendel’s Den, Inc. v. Larkin, 749 F.2d 945, 950 (1st Cir.1984). The court then applies hourly rates to the constituent tasks, taking into account the “prevailing rates in the community for comparably qualified attorneys.” United States v. Metropolitan Dist. Comm’n, 847 F.2d 12, 19 (1st Cir.1988); see also Grendel’s Den, 749 F.2d at 955. Once established, the lodestar represents a presumptively reasonable fee, although it is subject to upward or downward adjustment in certain circumstances. See Blum v. Stenson, 465 U.S. 886, 897, 104 S.Ct. 1541, 1548, 79 L.Ed.2d 891 (1984). On appeal, a fee award is reviewable only for mistake of law or abuse of discretion. See Foley v. City of Lowell, 948 F.2d 10, 18 (1st Cir.1991); Wojtkowski v. Cade, 725 F.2d 127, 130 (1st Cir.1984). The trial court’s discretion in respect to fee awards is extremely broad. See, e.g., Foley, 948 F.2d at 19; Metropolitan Dist. Comm’n, 847 F.2d at 14. Because this is so, and because determination of the extent of a reasonable fee necessarily involves a series of judgment calls, an appellate court is far more likely to defer to the trial court in reviewing fee computations than in many other situations. See Rogers v. Okin, 821 F.2d 22, 30 (1st Cir.1987), cert. denied, 484 U.S. 1010, 108 S.Ct. 709, 98 L.Ed.2d 660 (1988). III. ANALYSIS In this instance, the district court set the lodestar amount at $552,439 and then increased the amount to $678,425.25. Appellants say that this award reflects a cavalcade of errors. Their plaints fit into two categories. The first category consists of a series of challenges to the lodestar computation itself. The second category consists of allegations that enhancement was unjustified. We consider each category" }, { "docid": "20317045", "title": "", "text": "“Where a plaintiff has obtained excellent results, his attorney should recover a fully compensatory fee”. In such cases, “the fee award should not be reduced simply because the plaintiff failed to prevail on every contention raised in the lawsuit____ The result is what matters.” Id. Calculation of the lodestar figure requires the court to separate work done according to the levels of expertise of the attorneys involved; eliminate time “beyond that consistent with a standard of reasonable efficiency and productivity”; and assign hourly rates “for the kinds of work done by those at different levels of expertise.” Furtado v. Bishop, 635 F.2d 915, 920 (1st Cir.1980). The court may reduce or exclude time which is not specifically documented; is duplicative of other services; or proves inconsistent with other billings. Id. at 922; Souza v. Southworth, 564 F.2d 609, 612 (1st Cir.1977). Furthermore, in setting a reasonable hourly rate the court must consider the relative degree of experience and expertise of counsel as well as the particular kind of work performed. Miles v. Sampson, 675 F.2d at 9; Furtado v. Bishop, 635 F.2d at 920; Copeland v. Marshall, 641 F.2d at 892. Determination of the amount of fees to be awarded according to the above guidelines is left to the sound discretion of the court, which cannot merely rely on the adversarial process to ferret out weaknesses, but should “[draw] on [its] own experience and wisdom” in making the determination. Gabrielle v. Southworth, 712 F.2d at 1507; see Wojtkowski v. Cade, 725 F.2d 127, 130 (1st Cir.1984). The court should be guided by the 12 Johnson factors when determining the number of hours reasonably expended, the hourly rate to be charged, and what, if any, adjustment to the lodestar figure should be made. Hensley v. Eckerhart, 461 U.S. at-n. 9, 103 S.Ct. at 1940 n. 9; King v. Greenblatt, 560 F.2d 1024, 1026-27 (1st Cir.1977), cert, denied, 438 U.S. 916, 98 S.Ct. 3146, 57 L.Ed.2d 1161 (1978). Relevant costs and disbursements should then be added to the award. Miles v. Sampson, 675 F.2d at 10. Once a lodestar figure is determined," }, { "docid": "2208342", "title": "", "text": "dispositive appellate review of all issues now generated, however, the Court will determine the appropriate award of attorneys’ fees and expenses to Plaintiffs’ counsel as it would if persuaded that said counsel had met their burden in this case. B. As the Court recently noted, “[ajttor-neys’ fees must be reasonable. This Court’s role ‘as the guarantor of fairness obligates it not to accept uncritically what lawyers self-servingly suggest is reasonable compensation for their services.’ ” Fleet Bank of Maine v. Steeves, 793 F.Supp. 18, 20 (D.Me.1992) (quoting Weinberger v. Great Northern Nekoosa Corp., 925 F.2d 518, 525 (1st Cir.1991)). See also 2 M. Derfner & A. Wolf, supra, ¶ 16.02[1], at 16-9 n. 2 (“Under the equitable exceptions to the American rule, the courts have also stressed that fees must be reasonable, and they have meticulously segregated ‘hard’ and ‘soft’ hours, and denied compensation for the latter.”). Similarly, as the Supreme Court noted in the context of 42 U.S.C. section 1988: “Counsel for the prevailing party should make a good-faith effort to exclude from a fee request hours that are excessive, redundant, or otherwise unnecessary, just as a lawyer in private practice ethically is obligated to exclude such hours from his fee submission.” Hensley v. Eckerhart, 461 U.S. 424, 434, 103 S.Ct. 1933, 1939-40, 76 L.Ed.2d 40 (1983) (emphasis added). The First Circuit Court of Appeals has instructed this Court to employ the lodestar method for fee determination: If an alternative method is not expressly dictated by applicable law, we have customarily found it best to calculate fees by means of the time-and-rate method known as the lodestar. In this instance, the district court indicated its clear preference for this approach. Given the lodestar method’s proven usefulness as an understandable and manageable way of determining reasonable attorneys' fees in statutory cases, we find no reason why district courts should be divested of authority to employ it in analyzing fee applications submitted for approval in connection with class action settlements under Rule 23(e). Weinberger, 925 F.2d at 526 (citation omitted). With respect to the lodestar method, the fee applicant has the" } ]

[ { "docid": "22719660", "title": "", "text": "namely death rather than imprisonment. Whatever formal disclaimers may be made, neither Trono itself nor the reliance placed upon it for more than half a century permits any other conclusion than that the Court today overrules that decision. It does so, furthermore, in a case where the defendant’s position is far less persuasive than it was in Trono. There the plaintiffs in error had been expressly acquitted of the greater offense, whereas in the present case petitioner relies on an “implied acquittal” based on his conviction of the lesser offense of second degree murder and the jury’s silence on the greater offense. Surely the silence of the jury is not, contrary to the Court’s suggestion, to be interpreted as an express finding that the defendant is not guilty of the greater offense. All that can with confidence be said is that the jury was in fact silent. Every trial lawyer and every trial judge knows that jury verdicts are not logical products, and are due to considerations that preclude accurate guessing or logical deduction. Insofar as state cases speak of the jury’s silence as an “acquittal,” they give a fictional description of a legal result: that when a defendant is found guilty of a lesser offense under an indictment charging a more serious one, and he is content to accept this conviction, the State may not again prosecute him for the greater offense. A very different situation is presented, with considerations persuasive of a different legal result, when the defendant is not content with his conviction, but appeals and obtains a reversal. Due regard for these additional considerations is not met by stating, as though it were a self-evident proposition, that the jury’s silence has, for all purposes, “acquitted” the defendant. Moreover, the error of the District Court, which was the basis for petitioner’s appeal from his first conviction, was of a kind peculiarly likely to raise doubts that the jury on the first trial had made a considered determination of petitioner’s innocence of first degree murder. By instructing on second degree murder when the evidence did not warrant a" } ]

[ { "docid": "12573355", "title": "", "text": "prior case to decide whether the issue was “litigated” in the first case; and (3) an examination of the record of the prior proceeding to ascertain whether the issue was necessarily decided in the first case. Pettaway v. Plummer, 943 F.2d 1041, 1043-44 (9th Cir.1991) (emphasis added) (citation omitted), cert. denied, — U.S. -, 113 S.Ct. 296, 121 L.Ed.2d 220 (1992). In this appeal, the government challenges the district court’s dismissal, arguing that the third prong of the collateral estoppel test has not been met. It contends that for collateral estoppel to apply, the jury needed to have found that the defendant was not involved in the robbery by acquitting him on the first count. Because the jury hung on the robbery count, the government argues that the issue was not “necessarily decided.” The irony, of course, is that the Supreme Court’s holding in Gaddis tells us that, as a matter of law, if the § 2113(c) conviction (possession/receipt of stolen bank funds) is to have any validity, then the jury must have found the defendant not guilty of the bank robbery charge on which the government now seeks a new trial. It is true that the jury did not reach a unanimous decision expressly finding the defendant not guilty of bank robbery. The Supreme Court has recognized, however, that for double jeopardy purposes, acquittal may be either express or implied. For example, where the jury convicts a defendant on a lesser offense, but does not declare a verdict on a greater offense, there is an implied acquittal on the greater offense, and no retrial on that offense is possible. See Price v. Georgia, 398 U.S. 323, 329, 90 S.Ct. 1757, 26 L.Ed.2d 300 (1970) (finding implied acquittal on greater charge where jury rendered verdict of guilty on lesser included offense and was given full opportunity to return verdict on greater charge). The government may proceed in a single prosecution on inconsistent theories, but the Double Jeopardy Clause’s prohibition against successive prosecutions prevents the government from retrying a defendant on a theory inconsistent with an earlier judgment of conviction or" }, { "docid": "6004260", "title": "", "text": "jury to convict without properly finding each element of the crime as “grave error”). Because of the omission of the essential element of force, the continued dispute regarding the facts of the alleged incident, and the jury’s difficulty in reaching a verdict in the first trial, we “find it necessary to exercise our discretion under Rule 52(b).” Webster, 84 F.3d at 1067. Double Jeopardy The more difficult issue before us is whether the verdict returned in Bordeaux’s first trial bars the government from retrying him on the greater offense originally charged, that of attempted aggravated sexual abuse. Bordeaux argues that the government is precluded under principles of double jeopardy from retrying him for the greater offense on the basis that he has been convicted of the lesser included offense of abusive sexual contact. Generally, the Double Jeopardy Clause “affords a defendant protection against a second prosecution for the same offense after acquittal or after conviction, and protection against multiple punishments in the same proceeding for the same offense.” United States v. Cavanaugh, 948 F.2d 405, 414 (8th Cir.1991) (citations omitted). Bordeaux relies principally upon Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957), and Price v. Georgia, 398 U.S. 323, 90 S.Ct. 1757, 26 L.Ed.2d 300 (1970). In both of these cases in the original trial the jury left the verdict form blank as to the greater offense but returned a guilty verdict on the lesser included offense. Under the circumstances, the Supreme Court assumed there had been an implied acquittal as to the greater offense. See Green, 355 U.S. at 190, 78 S.Ct. at 225; Price, 398 U.S. at 329, 90 S.Ct. at 1761. In Green, the defendant was charged with first degree murder but the jury returned a guilty verdict only for second degree murder. On appeal the conviction was reversed and the case remanded for a new trial. At the new trial, Green was again tried for first degree mur der. The Supreme Court concluded that the second trial for first degree murder placed Green in jeopardy twice for the same offense" }, { "docid": "10425331", "title": "", "text": "for the same offense in violation of the Constitution.” Id. at 190, 78 S.Ct. at 225. The Supreme Court reasoned that Green had been forced to run the gauntlet once on the charge of first degree murder and that the jury had refused to convict him. Id. The jury had the choice between convicting him on first or second degree murder, and it chose the latter. Id. The Supreme Court regarded the jury’s verdict as an implied acquittal on the first degree murder charge. Id. It relied on the fact that the jury had been dismissed without Green’s consent and without its having returned an express verdict on the first degree murder charge. Id. at 191, 78 S.Ct. at 225-26. The Supreme Court reasoned that the jury “was given a full opportunity to return a verdict and no extraordinary circumstances appeared which prevented it from doing so.” Id. Therefore, the Court concluded that “Green’s jeopardy for first degree murder, came to an end when the jury was discharged so that he could not be retried for that offense.” Id. More generally, the Supreme Court held in Green that “the double jeopardy clause precludes a prisoner’s retrial for a greater offense after reversal of his conviction of a lesser included offense.” United States v. Johnson, 537 F.2d 1170, 1174 (4th Cir.1976); see also United States v. Tateo, 377 U.S. 463, 465 n. 1, 84 S.Ct. 1587, 1589 n. 1, 12 L.Ed.2d 448 (1964) (Green “holds only that when one is convicted of a lesser offense included in that charged in the original indictment, he can be retried only for the offense of which he was convicted rather than that with which he was originally charged.”). Swami argues that he has been forced to run the gauntlet on all five predicate acts, and that the jury did not convict him on the predicate acts regarding the Bryant and St. Dennis murders. Swami urges this Court to conclude, like the Green Court, that the failure to return a verdict on those predicate acts constitutes an implied acquittal, thus barring a second prosecution on" }, { "docid": "15260981", "title": "", "text": "111(a). B. Double Jeopardy Implications of the Jury’s Verdict Chestaro contends that his retrial violated double jeopardy because the jury at the first trial acquitted him of the charged offense. This argument necessarily fails, however, in light of our holding that § 111 defines three separate offenses. Chestaro was acquitted at the first trial of the offense defined in § 111(b), assault on a federal official with a weapon or with the effect of causing bodily harm. The jury was deadlocked on the lesser included offense of “all other assaults,” defined in § 111(a). Chestaro’s double jeopardy claim is unavailing because it is well established that a defendant may be retried, with no offense to double jeopardy, after his first trial results in a deadlocked jury. See Richardson v. United States, 468 U.S. 317, 324, 104 S.Ct. 3081, 82 L.Ed.2d 242 (1984); United States v. Rosa, 17 F.3d 1531, 1540 (2d Cir.1994). This principle is no different where the jury acquits the defendant of a greater offense but is dead locked on a lesser included offense. Of course, “[i]f no instructions are given on lesser included offenses then an acquittal on the crime explicitly charged necessarily implies an acquittal on all lesser offenses included within that charge,” United States v. Gooday, 714 F.2d 80, 82 (9th Cir.1983) (citing In re Nielsen, 131 U.S. 176, 189-90, 9 S.Ct. 672, 33 L.Ed. 118 (1889)), and therefore double jeopardy would bar a second trial on a lesser included offense. But the double jeopardy bar does not apply where the jury has been expressly asked to consider a lesser included offense and states that it is unable to reach a verdict on that offense. See id.; United States v. Payne, 832 F.Supp. 594, 597 (E.D.N.Y.1993). Cf. Edmonds v. United States, 273 F.2d 108, 113-14 (D.C.Cir. 1959) (defendant as to whom jury expressed no verdict on first-degree murder charge but convicted of second-degree murder charge could be retried on second-degree charge after court of appeals reversed conviction). Nor did the jury’s acquittal on the charged offense preclude Chestaro’s retrial on the lesser included offense on" }, { "docid": "15147965", "title": "", "text": "again for intent murder and felony murder and was found guilty by a general verdict. The defendant brought a second petition for writ of habeas corpus. The Seventh Circuit, rejecting a “clean slate” argument remarkably similar to the one the state presents in this case, held that the retrial for felony murder violated the Double Jeopardy Clause. Id. at 125. Wilson stands for the proposition that even where state law defines murder as a single offense, including premeditated murder and felony murder, acquittal of felony murder bars later reprosecution for that felony murder. See also Commonwealth v. Fickett, 403 Mass. 194, 526 N.E.2d 1064 (1988); Huffington v. State of Maryland, 302 Md. 184, 486 A.2d 200 (1985). The Supreme Court in Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957), was presented with a situation analogous to this case. There, defendant was charged under a first degree murder statute of killing another during commission of arson, which was a felony murder offense. The jury was instructed that it could find defendant guilty of felony murder or of a lesser included offense of killing another with malice aforethought. The jury verdict found defendant guilty of the lesser included offense. The Supreme Court held that the jury had implicitly acquitted the defendant of the greater offense, felony murder, and that double jeopardy barred any reprosecution for felony murder on remand after the appellate court had reversed the conviction of the lesser offense for trial error. When Delap was acquitted of felony murder at the first trial, that acquittal did not bar his second conviction for premeditated murder. However, the finding that there was insufficient evidence of felony murder constituted an acquittal of felony murder, barred any appeal of that acquittal, and barred any further prosecution for that felony murder. Smalis v. Pennsylvania, 476 U.S. 140, 142, 106 S.Ct. 1745, 1747, 90 L.Ed.2d 116 (1986) (judgment that evidence is legally insufficient to sustain a guilty verdict constituted an acquittal for double jeopardy purposes); Burks v. United States, 437 U.S. 1, 15-17, 98 S.Ct. 2141, 2149-50, 57 L.Ed.2d 1" }, { "docid": "6004261", "title": "", "text": "414 (8th Cir.1991) (citations omitted). Bordeaux relies principally upon Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957), and Price v. Georgia, 398 U.S. 323, 90 S.Ct. 1757, 26 L.Ed.2d 300 (1970). In both of these cases in the original trial the jury left the verdict form blank as to the greater offense but returned a guilty verdict on the lesser included offense. Under the circumstances, the Supreme Court assumed there had been an implied acquittal as to the greater offense. See Green, 355 U.S. at 190, 78 S.Ct. at 225; Price, 398 U.S. at 329, 90 S.Ct. at 1761. In Green, the defendant was charged with first degree murder but the jury returned a guilty verdict only for second degree murder. On appeal the conviction was reversed and the case remanded for a new trial. At the new trial, Green was again tried for first degree mur der. The Supreme Court concluded that the second trial for first degree murder placed Green in jeopardy twice for the same offense in violation of the Constitution. Based on its conclusion that there had been an implied acquittal, the Court stated: After the original trial, but prior to his appeal, it is indisputable that Green could not have been tried again for first degree murder for the death resulting from the fire. A plea of former jeopardy would have absolutely barred a new prosecution even though it might have been convincingly demonstrated that the jury erred in failing to convict him of that offense. And even after appealing the conviction of second degree murder he still could not have been tried a second time for first degree murder had his appeal been unsuccessful. Green, 355 U.S. 184 at 191, 78 S.Ct. at 225. In summarizing its holding in Green, the Court in Price observed: The Court in the Green ease reversed the first-degree murder conviction obtained at the retrial, holding that the petitioner’s jeopardy for first-degree murder came to an end when the jury was discharged at the end of his first trial. This conclusion rested on" }, { "docid": "12573356", "title": "", "text": "defendant not guilty of the bank robbery charge on which the government now seeks a new trial. It is true that the jury did not reach a unanimous decision expressly finding the defendant not guilty of bank robbery. The Supreme Court has recognized, however, that for double jeopardy purposes, acquittal may be either express or implied. For example, where the jury convicts a defendant on a lesser offense, but does not declare a verdict on a greater offense, there is an implied acquittal on the greater offense, and no retrial on that offense is possible. See Price v. Georgia, 398 U.S. 323, 329, 90 S.Ct. 1757, 26 L.Ed.2d 300 (1970) (finding implied acquittal on greater charge where jury rendered verdict of guilty on lesser included offense and was given full opportunity to return verdict on greater charge). The government may proceed in a single prosecution on inconsistent theories, but the Double Jeopardy Clause’s prohibition against successive prosecutions prevents the government from retrying a defendant on a theory inconsistent with an earlier judgment of conviction or acquittal. See Dowling v. United States, 493 U.S. 342, 347-49, 110 S.Ct. 668, 671-73, 107 L.Ed.2d 708 (1990). Here, the jury reached a unanimous verdict finding the defendant guilty of receipt of stolen bank funds. A § 2113(c) conviction is not a lesser included offense of bank robbery, see Gaddis, 424 U.S. at 548, 96 S.Ct. at 1026; United States v. Buchner, 7 F.3d 1149, 1153 (5th Cir.1993), cert. denied, — U.S. -, 114 S.Ct. 1331, 127 L.Ed.2d 378 (1994), but as the Court recognized in Gaddis and Heflin, a defendant cannot be guilty of both offenses. The conviction on the stolen funds charge therefore should result in an implied acquittal on the robbery charge, provided that the jury was presented with a full opportunity to return a verdict on either charge. There is no doubt that this jury had such an opportunity, notwithstanding the Gaddis instructional error. The court instructed the jury that each count charged a separate crime and that it should give separate consideration to each count. The government asserts that if" }, { "docid": "2078580", "title": "", "text": "miscarriage of justice. He has not alleged that the allegedly ineffective appellate counsel represented him on his second habeas petition, nor could he. Taylor proceeded pro se on that petition. In conclusion, for the reasons discussed above, Taylor’s petition for a writ of habeas corpus is denied. The Court finds that the petition presents no question of substance for appellate review, and therefore a certificate of probable cause will not issue. See Rodriquez v. Scully, 905 F.2d 24, 24 (2d Cir.1990) (per curiam). SO ORDERED. . In his memorandum of law attached to his petition, Taylor also cites two Supreme Court cases dealing with the Fifth Amendment Double Jeopardy Clause, Price v. Georgia, 398 U.S. 323, 90 S.Ct. 1757, 26 L.Ed.2d 300 (1970), and Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957). The Double Jeopardy Clause of the Fifth Amendment and the cases cited by Taylor have no bearing on Taylor's circumstances. Price held that where a state defendant, charged with murder and found guilty of the lesser included offense of voluntary manslaughter, sought and obtained reversal of his initial conviction upon appeal, no aspect of the bar on double jeopardy prevented his retrial for that crime, but because the first verdict was limited to the lesser included offense, retrial was to be limited to that lesser offense. See Price, 398 U.S. at 329, 90 S.Ct. at 1761. In Green, the petitioner had been tried and convicted of first degree murder after an earlier guilty verdict on the lesser included offense of second degree murder had been set aside on appeal. In the first trial, the jury was instructed to find the defendant guilty of either first degree murder or, alternatively, second degree murder. The Supreme Court held that the second trial of the defendant for first degree murder violated the constitutional prohibition against double jeopardy, and that the defendant had not waived that constitutional defense by making a successful appeal of his improper conviction of second degree murder. See Green, 355 U.S. at 191-92, 78 S.Ct. at 225-26. Here, Taylor’s conviction for first" }, { "docid": "6424446", "title": "", "text": "murder and was convicted by the jury on the latter count. Green appealed, and his conviction for second degree murder was vacated. He subsequently was retried and was then convicted of first degree murder. The Supreme Court held that the retrial of Green for first degree murder was barred by the double jeopardy clause of the Fifth Amendment. The Court reasoned that when the jury did not convict Green of first degree murder, it had implicitly acquitted him of that charge. He had run the “gauntlet”, id. at 190, 78 S.Ct. at 225, and, at least with respect to first degree murder, had escaped unscathed. The Court explained that one purpose of double jeopardy was to protect an individual from the “hazards of trial and possible conviction more than once for an alleged offense.” Id. at 187, 78 S.Ct. at 223. The Court went on to state that to allow a second prosecution for first degree murder would be to disregard this purpose of double jeopardy. The Court added that a defendant should not be placed in the dilemma of either surrendering an implied acquittal to a higher charge, or acquiescing to an improper conviction. Id. at 193-94, 78 S.Ct. at 226-227. Klobuchir claims that by analogy, Green governs his case. He likens the trial judge’s acceptance of his plea to third degree murder to Green’s conviction by the jury on the lesser charge of second degree murder. Klobuchir therefore insists that he faces the same onerous dilemma that Green faced — either accept an illegal conviction, or have it vacated and risk conviction on a higher charge with the attendant danger of a harsher sentence. Klobuchir’s analogy, however, is seriously flawed. Unlike a judge accepting a guilty plea, the jury, when it convicts on a lesser included offense, has had a full opportunity to convict on the greater charge. The jury’s return of a guilty verdict on the lesser charge can be interpreted as an implicit acquittal only because it has rejected the opportunity to convict on the greater charge. But the trial judge, by accepting Klobuchir’s guilty plea" }, { "docid": "6004267", "title": "", "text": "a prior conviction for the same offense is set aside for trial error. See Burks v. United States, 437 U.S. 1, 15, 98 S.Ct. 2141, 2149, 57 L.Ed.2d 1 (1978). Here, we are reversing the lesser included offense conviction because of the defective jury instruction and therefore Bordeaux can be retried for that offense. Thus, it would appear the issue is not whether the original jeopardy on the greater charge is continuing, but whether the jury’s verdict of guilt on the lesser charge, by implication, acquits the defendant of the greater charge. Initially, we find some support for Bordeaux’s position in Green and Price. In Green and Price, the Court’s holdings were not based only on the “implied acquittal” inferred from the blank verdict. A second basis for prohibiting retrial on the greater offense in that situation was that the jury, given the opportunity to convict on the greater offense, had been dismissed after returning a verdict only as to the lesser offense. As stated in Price, “[T]his Court has consistently refused to rule that jeopardy for an offense continues after an acquittal, whether that acquittal is express or implied by a conviction on a lesser included offense when the jury was given a full opportunity to return a verdict on the greater charge.” Price, 398 U.S. at 329, 90 S.Ct. at 1761 (footnote omitted) (our emphasis). However, after further analysis, we think that neither of the bases for invoking the double jeopardy bar in Green and Price can be applied here. The jury’s express statement that it could not agree on a verdict as to the greater offense obviously precludes the inference that there was an implied acquittal. The second basis for those rulings comes from the general rule that if a trial court discharges a jury, over defendant’s objection, before a verdict is reached, then the defendant cannot be retried. See Green, 355 U.S. at 188, 78 S.Ct. at 223-24. However, there are exceptions to this rule, and the paradigmatic exception, consistently recognized by the Supreme Court, allows dismissal of the juiy and retrial of the defendant when" }, { "docid": "21926152", "title": "", "text": "has consistently refused to rule that jeopardy for an offense continues after an acquittal, whether that acquittal is express or implied by a conviction on a lesser included offense when the jury was given a full opportunity to return a verdict on the greater charge.” Price, supra, 398 U.S. at 329, 90 S.Ct. at 1761. Does the Jackson citation, preceded by a “See,” mean that the New York trial judge’s instructions denied the jury its “full opportunity” on each count? This is arguable, but in any event a rather light peg on which to hang the cloth of decision. This is especially true when we understand Price’s holding, 398 U.S. at 331-332, 90 S.Ct. 1757, that the second jeopardy was not harmless error even though, unlike Green, the conviction on the second trial was for the lesser offense. The Court relied on our own United States ex rel. Hetenyi v. Wilkins, 348 F.2d 844 (2d Cir. 1965), cert. denied, Mancusi v. Hetenyi; 383 U.S. 913, 86 S.Ct. 896, 15 L.Ed.2d 667 (1966), in pointing out that the jury may have compromised in reaching its verdict on the lesser charge. Here it could conceivably be argued that the jury on retrial, faced with the two charges of first degree murder, compromised in finding Jackson guilty of one. Carrying petitioner’s argument one step further, United States v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971), not cited to us by either party, held that jeopardy attached when a jury was impaneled and that, while the fifth amendment is not to be woodenly or mechanically construed, reprosecution after a mistrial would not be permitted where, without the defendant’s consent, the trial judge declared a mistrial only to enable prosecution witnesses to consult with their attorneys. 400 U.S. at 479-487, 91 S.Ct. 547. In this holding, the Court, 400 U.S. at 481, 91 S.Ct. at 555, reiterated the test of United States v. Perez, 22 U.S. (9 Wheat.) 579, 580, 6 L.Ed. 165 (1824), that before a mistrial may be declared without reprosecution being barred as double jeopardy, “there [must be]" }, { "docid": "600930", "title": "", "text": "because probable cause was established before Jefferson gained a possessory interest in the package. See id. at 1159. We affirm the district court’s denial of Jefferson’s suppression motion. IV Jefferson argues that permitting his retrial violated the Double Jeopardy Clause of the Fifth Amendment. The Double Jeopardy Clause guarantees that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb.” U.S. Const, amend. V. The Double Jeopardy Clause is not an absolute bar to successive trials. Justices of Boston Mun. Court v. Lydon, 466 U.S. 294, 308, 104 S.Ct. 1805, 80 L.Ed.2d 311 (1984). Jefferson first argues that the first jury impliedly acquitted him. “The Fifth Amendment’s Double Jeopardy Clause prohibits retrial after an acquittal, whether express or implied by jury silence.” Brazzel v. Washington, 491 F.3d 976, 981 (9th Cir.2007) (citing Green v. United States, 355 U.S. 184, 191, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957)). “An implied acquittal occurs when a jury returns a guilty verdict as to a lesser included or lesser alternate charge, but remains silent as to other charges, without announcing any signs of hopeless deadlock.” Id. The first jury did not impliedly acquit Jefferson because it was not “silent” on the issue of Jefferson’s intent to distribute. Rather, the first jury indicated that it was hopelessly deadlocked on that offense. On the interlineated verdict form for the intent to distribute offense, the jury indicated that it was “unable to” find Jefferson guilty or not guilty. To make its position abundantly clear, the jury also wrote that it was “unable to come to a decision on this verdict.” Each juror confirmed the hopeless deadlock when polled by the district court. The jury was anything but “silent” in this case; in fact, it was almost as “loud” as a jury can be. Jefferson next argues that the Double Jeopardy Clause prohibits his retrial because “manifest necessity” did not exist for the district court to declare a mistrial. “In contrast to an implied acquittal, retrial is permitted where there is a mistrial declared due to the ‘manifest necessity’" }, { "docid": "6004263", "title": "", "text": "two premises. First, the Court considered the first jury’s verdict of guilty on the second-degree murder charge to be an “implicit acquittal” on the charge of first-degree murder. Second, and more broadly, the Court reasoned that petitioner’s jeopardy on the greater charge had ended when the first jury “was given a full opportunity to return a verdict” on that charge and instead reached a verdict on the lesser charge. 355 U.S. at 191, 78 S.Ct. at 225-26. Price, 398 U.S. at 328-29, 90 S.Ct. at 1761. Bordeaux also argues that Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977), supports his argument that once he was convicted of the lesser included offense he could not be retried on the greater offense. However, we find Brown distinguishable from the facts of this case because the greater offense and the lesser included offense were not brought against Bordeaux in successive prosecutions. In Brown, the defendant pleaded guilty to the charge of joyriding, served his punishment, and the state subsequently indicted him for auto theft, arising from the same incident. The Supreme Court held that prosecution of the auto theft charge was barred by the Double Jeopardy Clause since the defendant had previously been convicted in a separate proceeding of joyriding which was a lesser included offense of auto theft. The Court concluded: “Whatever the sequence may be, the Fifth Amendment forbids successive prosecution and cumulative punishment for a greater and lesser included offense.” Id. at 169, 97 S.Ct. at 2227 (footnote omitted). This fundamental protection of the Double Jeopardy Clause prohibiting successive prosecutions for the “same offense,” while firmly established, see In re Nielsen, 131 U.S. 176, 187, 9 S.Ct. 672, 675-76, 33 L.Ed. 118 (1889), simply does not apply where the charges are not brought in separate prosecutions. See Ohio v. Johnson, 467 U.S. 493, 501, 104 S.Ct. 2536, 2541-42, 81 L.Ed.2d 425 (1984) (distinguishing Brown from a case where a defendant is charged with greater and lesser included offenses and prosecuted for those offenses in a single trial, and rejecting the argument that “a determination of" }, { "docid": "298211", "title": "", "text": "to an end. He may even receive a more severe sentence on retrial. North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). The situation is different, however, when the jury has failed to find a defendant guilty on a more serious charge and convicted him on a lesser one. Then, when he is successful in overturning the conviction, he may not be put in jeopardy again for the more serious charge, though he may be tried again on the same, less serious offense, Green v. United States, supra, at 191, 78 S.Ct. 221. This Court held in Mull-reed that for purposes of testing a double jeopardy plea there is no difference between the jury’s refusal to convict on the more serious charge and a court's implicit refusal to do so when it accepts a guilty plea to a lesser included offense. Shortly after Mullreed v. Kropp, supra, was announced, the Supreme Court, per Chief Justice Burger for a unanimous court (with one justice not participating) , rendered its decision in Price v. Georgia, 398 U.S. 323, 90 S.Ct. 1757, 26 L.Ed.2d 300 (1970). Adopting the continuing jeopardy theory as described in Green v. United States, supra, the Court held that a jury’s conviction of manslaughter implied an acquittal of the charge of murder and the defendant could not again be subjected to the hazard of a murder conviction following reversal of the manslaughter conviction. The Court emphasized that the prohibition against double jeopardy is not one against being twice punished, but is concerned with the risk or hazard of conviction of an offense of which a person has been acquitted. We affirm that there is implicit in a court’s acceptance of a plea to an included lesser offense a determination that the right to prosecute the defendant on the more serious offense with which he is charged has been relinquished. The effect of the entire transaction, for double jeopardy purposes, is the equivalent of a jury's refusal to convict on the more serious charge. Only if this is true may a defendant seek review of" }, { "docid": "10425330", "title": "", "text": "turn now to Swami’s contention that double jeopardy bars retrial of the RICO predicate acts that the original jury did not cheek on the verdict form. Swami argues that the original jury had an opportunity to render a verdict on the Stephen Bryant and Charles St. Dennis murders, and that its failure to check those predicate acts on the verdict form should be treated as an implied acquittal. Swami finds support for his argument in Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957). In that case, Green was tried for both first and second degree murder; the jury convicted Green of second degree murder, but the verdict was silent on the first degree murder charge. Id. at 186, 78 S.Ct. at 223. Green successfully appealed his second degree murder conviction, and on remand for a new trial, Green argued that the Double Jeopardy Clause barred retrial of the first degree murder charge. The Supreme Court concluded that the “second trial for first degree murder placed Green in jeopardy twice for the same offense in violation of the Constitution.” Id. at 190, 78 S.Ct. at 225. The Supreme Court reasoned that Green had been forced to run the gauntlet once on the charge of first degree murder and that the jury had refused to convict him. Id. The jury had the choice between convicting him on first or second degree murder, and it chose the latter. Id. The Supreme Court regarded the jury’s verdict as an implied acquittal on the first degree murder charge. Id. It relied on the fact that the jury had been dismissed without Green’s consent and without its having returned an express verdict on the first degree murder charge. Id. at 191, 78 S.Ct. at 225-26. The Supreme Court reasoned that the jury “was given a full opportunity to return a verdict and no extraordinary circumstances appeared which prevented it from doing so.” Id. Therefore, the Court concluded that “Green’s jeopardy for first degree murder, came to an end when the jury was discharged so that he could not be retried" }, { "docid": "20391345", "title": "", "text": "followed by a prosecution of the other offense in a separate proceeding. In contrast, Larkin was subjected to only one trial in which the conspiracy and vicarious liability counts were tried simultaneously. Thus, even assuming the validity of Larkin's argument that the conspiracy charge is a lesser included offense of the Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946) vicarious liability counts, Larkin's position is indistinguishable from a defendant who was tried on a murder charge and a manslaughter count in the alternative. Such simultaneous jeopardy for greater and lesser included offenses is clearly proper. See Jeffers, supra, 432 U.S. at 152 & n. 20, 97 S.Ct. at 2217 & n. 20 (“a defendant is normally entitled to have charges on a greater and a lesser offense resolved in one proceeding”) (plurality opinion). Furthermore, the fact that the jury in Larkin’s trial acquitted him of the Pinkerton counts and hung on the conspiracy charge, thereby causing a mistrial as to the latter count and allowing the Government to retry the conspiracy charge, does not dictate a different result. It is of course axiomatic that Larkin may not be retried on the charges of which he was acquitted. See Price v. Georgia, 398 U.S. 323, 90 S.Ct. 1757, 26 L.Ed.2d 300 (1970); Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957). However, it is equally well settled that a defendant may be retried on a lesser offense, of which he was convicted at an initial trial, after that conviction was reversed on appeal; and that that result obtains even though the first trial also resulted in a verdict of acquittal on a greater offense. See Price, supra, 398 U.S. at 326-27, 90 S.Ct. 1757, 26 L.Ed.2d 300. Larkin, 605 F.2d at 1367-68 (footnotes omitted). .Finally, we briefly address the parties' arguments related to collateral estoppel and exhaustion. See Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970) (holding that the Double Jeopardy Clause incorporates the doctrine of collateral estoppel in criminal proceedings). \"Collateral estoppel, or, in" }, { "docid": "15038972", "title": "", "text": "the state constitutionally may attempt once again to impose the death penalty, if it decides that justice so requires. A. The Double Jeopardy Clause of the Fifth Amendment provides that no person shall “be subject for the same offence to be twice put in jeopardy of life or limb.” U.S. Const, amend. V. The protections of the Clause extend not only to questions of guilt or innocence but also to capital sentencing proceedings that operate “like [a] trial on the question of guilt or innocence” by “explicitly requiring] the jury to determine whether the prosecution has ‘proved its case.’” Bullington v. Missouri, 451 U.S. 430, 444-46, 101 S.Ct. 1852, 68 L.Ed.2d 270 (1981). Farmer’s “implied acquittal” theory was first described by the Supreme Court in 1957 in Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957). In that case, the defendant was charged with both first-degree murder and the lesser included offense of second-degree murder. Id. at 186, 78 S.Ct. 221. At his first trial on charges of both degrees of murder, the jury found the defendant guilty only of second-degree murder but “was silent on[the] charge” of first-degree murder. Id. The defendant appealed, and the appellate court reversed his conviction. Id. On retrial, the prosecution again charged first degree murder, but this time the jury convicted on that charge, and the defendant was sentenced to death. Id. The Supreme Court held that the outcome of the first trial was “an implicit acquittal on the charge of first degree murder.” Id. at 190, 78 S.Ct. 221. The Court noted that “the jury was dismissed without returning any express verdict on that [first-degree] charge and without [the defendant’s] consent.” Id. at 191, 78 S.Ct. 221. But because the jury “was given a full opportunity to return a verdict and no extraordinary circumstances appeared which prevented it from doing so ... [the defendant’s] jeopardy for first degree murder came to an end when the jury was discharged so that he could not be retried for that offense.” Id. In a later trio of double jeopardy cases, the" }, { "docid": "22644177", "title": "", "text": "the petitioner had been tried and convicted of first-degree murder after an earlier guilty verdict on the lesser included offense of second-degree murder had been set aside on appeal. A majority of the Court rejected the argument that by appealing the conviction of second-degree murder the petitioner had “waived” his plea of former jeopardy with regard to the charge of first-degree murder. The Court in the Green case reversed the first-degree murder conviction obtained at the retrial, holding that the petitioner’s jeopardy for first-degree murder came to an end when the jury was discharged at the end of his first trial. This conclusion rested on two premises. First, the Court considered the first jury’s verdict of guilty on the second-degree murder charge to be an “implicit acquittal” on the charge of first-degree murder. Second, and more broadly, the Court reasoned that petitioner’s jeopardy on the greater charge had ended when the first jury “was given a full opportunity to return a verdict” on that charge and instead reached a verdict on the lesser charge. 355 U. S. at 191. Under either of these premises, the holding in the Kepner case — that there could be no appeal from an acquittal because such a verdict ended an accused’s jeopardy — was applicable. The rationale of the Green holding applies here. The concept of continuing jeopardy implicit in the Ball case would allow petitioner’s retrial for voluntary manslaughter after his first conviction for that offense had been reversed. But, as the Kepner and Green cases illustrate, this Court has consistently refused to rule that jeopardy for an offense continues after an acquittal, whether that acquittal is express or implied by a conviction on a lesser included offense when the jury was given a full opportunity to return a verdict on the greater charge. There is no relevant factual distinction between this case and Green v. United States. Although the petitioner was not convicted of the greater charge on retrial, whereas Green was, the risk of conviction on the greater charge was the same in both cases, and the Double Jeopardy Clause of" }, { "docid": "15148005", "title": "", "text": "jeopardy purposes under the test set forth in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932) (\"The test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not.”); Fla.Stat. § 775.021(4) (codifying Blockburger test); then Delap’s acquittal of felony murder would be entitled to full double jeopardy effect, and would bar any retrial for felony murder. The state, however, argues that premeditated murder and felony murder are the same offense for double jeopardy purposes. Even if this were the case, the acquittal on felony murder would invoke double jeopardy and bar any subsequent reprosecution for felony murder. Double jeopardy applies even though only one offense is involved. For example, when a defendant is charged with first degree murder, but only convicted of the lesser included offense of second degree murder, the double jeopardy clause forbids retrial on the greater offense. This is so because the defendant \"was forced to run the gantlet once on that charge and the jury refused to convict him.” Green v. United States, 355 U.S. 184, 190, 78 S.Ct. 221, 225, 2 L.Ed.2d 199 (1957). See Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977); Price v. Georgia, 398 U.S. 323, 90 S.Ct. 1757, 26 L.Ed.2d 300 (1970); Greene v. City of Gulfport, 103 So.2d 115, 116 (Fla.1958). Double jeopardy operates even though the greater offense and the lesser included offense constitute but one offense for double jeopardy purposes. Thus, whether felony murder and premeditated murder are the same offense, or are separate offenses, for double jeopardy purposes, the first trial judge's finding of insufficient evidence of felony murder triggered application of double jeopardy principles and barred any subsequent retrial for felony murder. . We, like the district court, do not think that the fact that intent murder and felony murder were charged in separate counts in Wilson meaningfully distinguishes that case from the present case. District Court Amended Order 22 n. 21. See Green v. United States," }, { "docid": "6004262", "title": "", "text": "in violation of the Constitution. Based on its conclusion that there had been an implied acquittal, the Court stated: After the original trial, but prior to his appeal, it is indisputable that Green could not have been tried again for first degree murder for the death resulting from the fire. A plea of former jeopardy would have absolutely barred a new prosecution even though it might have been convincingly demonstrated that the jury erred in failing to convict him of that offense. And even after appealing the conviction of second degree murder he still could not have been tried a second time for first degree murder had his appeal been unsuccessful. Green, 355 U.S. 184 at 191, 78 S.Ct. at 225. In summarizing its holding in Green, the Court in Price observed: The Court in the Green ease reversed the first-degree murder conviction obtained at the retrial, holding that the petitioner’s jeopardy for first-degree murder came to an end when the jury was discharged at the end of his first trial. This conclusion rested on two premises. First, the Court considered the first jury’s verdict of guilty on the second-degree murder charge to be an “implicit acquittal” on the charge of first-degree murder. Second, and more broadly, the Court reasoned that petitioner’s jeopardy on the greater charge had ended when the first jury “was given a full opportunity to return a verdict” on that charge and instead reached a verdict on the lesser charge. 355 U.S. at 191, 78 S.Ct. at 225-26. Price, 398 U.S. at 328-29, 90 S.Ct. at 1761. Bordeaux also argues that Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977), supports his argument that once he was convicted of the lesser included offense he could not be retried on the greater offense. However, we find Brown distinguishable from the facts of this case because the greater offense and the lesser included offense were not brought against Bordeaux in successive prosecutions. In Brown, the defendant pleaded guilty to the charge of joyriding, served his punishment, and the state subsequently indicted him for auto" } ]

[ { "docid": "19028524", "title": "", "text": "son. . Paragraph 24, Findings of Fact: “Li-bellant’s refusal to submit to surgery until respondent would agree to pay for his maintenance and cure during the postoperative period was reasonable.” . Paragraph 22, Findings of Fact: “From October 17, 1951 to trial, libellant has been disabled for periods aggregating 225 days because of the conditions resulting from the operations. During this period improvement of his condition from nursing care and medical attention could reasonably have been anticipated.” . Paragraph 3, Conclusions of Law: “Li-bellant is entitled to maintenance at the rate of $6.00 per day for the first 59 days of his disability or the sum of $354.-00; and at the date of $8.00 per day for the remaining 166 days, or the sum of $1,328.00, making a total of $1,682.00.” . Bentley v. Albatross Steamship Company, 3 Cir., 1953, 203 F.2d 270, 271; Read v. United States, 3 Cir., 1953, 201 F.2d 758; Crist v. United States War Shipping Administration, 3 Cir., 1947, 163 F.2d 145, 146, certiorari denied 332 U.S. 852, 68 S.Ct. 352, 92 L.Ed. 422. . Murphy v. American Barge Line Co., 3 Cir., 1948, 169 F.2d 61, certiorari denied 1948, 335 U.S. 859, 69 S.Ct. 133, 93 L.Ed. 406; United States v. Johnson, 9 Cir., 1947, 160 F.2d 789; The Balsa, 3 Cir., 1926, 10 F.2d 408. . Sims v. United States of America War Shipping Administration, 3 Cir., 1951, 186 F.2d 972, 974, certiorari denied 1951, 342 U.S. 816, 72 S.Ct. 31, 96 L.Ed. 617. . Aguilar v. Standard Oil Co. of New Jersey, 1943, 318 U.S. 724, 732, Note 15, 63 S.Ct. 930, 935, 87 L.Ed. 1107; cf. Bentley v. Albatross Steamship Company, supra, Note 8. . Dr. John Willard, respondent’s physician, testified that he examined libellant in June, 1952, (six months after he received his fit-for-duty slip) and he then found libellant was suffering from an aftermath of the operation, “a residual gastritis.” . Testimony of Dr. Harry A. Salzmann." } ]

[ { "docid": "11259594", "title": "", "text": "to that service.” Id., 303 U.S. at page 531, 58 S.Ct. at page 654; see Aguilar v. Standard Oil Co., supra, 318 U.S. at page 729, 63 S.Ct. 930. Accordingly, since libelant abstained, for reasons of his own, from availing himself of the services and facilities of the United States Public Health Service in his home town of San Pedro, whereat it appears substantially the same services as were rendered by the private physicians were readily available to him without charge, libelant cannot recover the costs of privately-obtained treatment as part of the cure which the law awards as an incident of the seaman’s employment. See: Bailey v. City of New York, 2 Cir., 1946, 153 F.2d 427; Benton v. United Towing Co., D.C.N.D.Cal.1954, 120 F.Supp. 638, 641; cf. Luth v. Palmer Shipping Co., 3 Cir., 210 F.2d 224, certiorari denied, 1954, 347 U.S. 976, 74 S.Ct. 788, 98 L.Ed. 1116, and comment by Roseoe Pound, 14 NACCA L.J. 203 (Nov. 1954); Repsholdt v. United States, 7 Cir., 205 F.2d 852, 856-857, certiorari denied, 1952, 346 U.S. 901, 74 S.Ct. 226, 98 L.Ed. 401; Van Camp Sea Food Co. v. Nordyke, 9 Cir., 140 F.2d 902, 906-907, certiorari denied, 1944, 322 U.S. 760, 64 S.Ct. 1278, 88 L.Ed. 1587. What has just been said, however, denies recovery only as to the $348 which libelant incurred for his own account with the physician to whom he was referred by his proctors. As to the bill of $135 incurred with the physician to whom libelant was referred by respondent Joncich, it is found that respondents authorized the private service and in effect consented to bear the physician’s reasonable charge. See: McManus v. Marine Transport Lines, 2 Cir., 1945, 149 F.2d 969; June v. Pan-American, etc., Co., 5 Cir., 1928, 25 F.2d 457; The Bouker No. 2, 2 Cir., 241 F. 831, 835-836, certiorari denied, 1917, 245 U.S. 647, 38 S.Ct. 9, 62 L.Ed. 529; cf. United States v. Loyola, 9 Cir., 1947, 161 F.2d 126, 128. The shipowner’s obligation to furnish maintenance is coextensive in time with his duty to furnish cure," }, { "docid": "11259591", "title": "", "text": "medical expense incurred for his private account during this period of cure. Respondents, per contra, contend: (1) that since libelant became totally disabled on the first trip of the season, he is entitled to wages — a share of the catch — for only the single trip on which he fell ill; (2) that since the date on which the seaman in fact reaches maximum cure is controlling, libelant is not entitled to maintenance beyond August, 1954, even though the fact he had reached maximum cure was not determined until October, 1954; and (3) that since libelant declined free medical treatment readily available to him at the marine hospital of the United States Public Health Service, he is not entitled to recover the cost of cure which he privately secured for his own account. Considering these stated contentions in their inverse order, it is well to recall at the outset that the obligation of a shipowner to furnish cure, and maintenance as well, to a seaman who falls ill or is injured while in the service of the vessel is imposed by maritime law as an incident to the contract of employment. Aguilar v. Standard Oil Co., 1943, 318 U.S. 724, 730, 63 S.Ct. 930, 87 L.Ed. 1107; Calmar S. S. Corp. v. Taylor, 1938, 303 U.S. 525, 527, 58 S.Ct. 651, 82 L.Ed. 993; Cortes v. Baltimore Insular Line, 1932, 287 U.S. 367, 371, 53 S.Ct. 173, 77 L.Ed. 368; Pacific S. S. Co. v. Peterson, 1928, 278 U.S. 130, 138, 49 S.Ct. 75, 73 L.Ed. 220; The Iroquois, 1904, 194 U.S. 240, 241, 24 S.Ct. 640, 48 L.Ed. 955; The Osceola, 1903, 189 U.S. 158, 172, 23 S.Ct. 483, 47 L.Ed. 760; Harden v. Gordon, C.C.D.Me. 1823, 11 Fed.Cas. pp. 480, 482, No. 6,047. The correlative maritime right of the seaman to receive maintenance and cure exists regardless of whether the compensation contracted for consists in specific money wages or, as here, in a lay or share of “the catch” — a share of the earnings of the vessel. The Betsy Ross, 9 Cir., 1944, 145 F.2d 688," }, { "docid": "23405809", "title": "", "text": "Co., 230 F.2d 658, 661 (3d Cir. 1950); New York. N. H. & H. R. R. Co. v. Leary, 204 F.2d 461, 467-468 (1st Cir.), cert. denied 346 U.S. 856, 74 S.Ct. 71, 98 L.Ed. 370 (1953); Chicago Great Western Ry. Co. v. Peeler, 140 F.2d 865 (8th Cir. 1944); Overland Const. Co. v. Sydnor, 70 F.2d 338, 340 (6th Cir. 1934). . For a recent re-examination of the conflicting arguments see Schwartz, The Collateral-Source Rule, 41 Boston L.Rev. 348 (1961). See also 2 Harper & James, The Law of Torts, 1337-60 (1956). Recent cases are collected in 28 NACCA L.J. 425 (1961-1962). . Hudson v. Lazarus, 95 U.S.App.D.C. 16, 217 F.2d 344, 346 (1954). . United States v. Harue Hayashi, 282 F.2d 599, 603-604 (9th Cir. 1960); Siebrand v. Gossnell, 234 F.2d 81, 95 (9th Cir. 1956); Standard Oil Co. of California v. United States, 153 F.2d 958, 963 (9th Cir. 1946), aff’d 332 U.S. 301, 67 S.Ct. 1604, 91 L.Ed. 2067 (1947). . See, e. g., Grayson v. Williams, 256 F.2d 61, 65-66 (10th Cir. 1958); Rayfieid v. Lawrence, 253 F.2d 209, 213 (4th Cir. 1958); Hudson v. Lazarus, 95 U.S.App.D.C. 16, 217 F.2d 344, 346 (1954); Sainsbury v. Pennsylvania Greyhound Lines, 183 F.2d 548, 550, 21 A.L.R.2d 266 (4th Cir. 1950). . A. H. Bull S.S. Co. v. Ligon, 285 F.2d 936, 937 (5th Cir. 1960); Caudill v. Victory Carriers, Inc., 149 F.Supp. 11, 17, n. 2 (E.D.Va.1957); United States v. Shipowners & Merchants Tugboat Co., 103 F.Supp. 152 (N.D.Cal.1952), aff’d 205 F.2d 352 (9th Cir.), cert. denied 346 U.S. 829, 74 S.Ct. 51, 98 L.Ed. 353 (1953). . Sinovich v. Erie R. R. Co., 230 F.2d 658, 661 (3d Cir. 1956); New York N. H. & H. R. R. Co. v. Leary, 204 F.2d 461, 468 (1st Cir.), cert. denied 346 U.S. 856, 74 S.Ct. 74, 98 L.Ed. 370 (1953); Chicago Great Western Ry. v. Peeler, 140 F.2d 865, 868 (8th Cir. 1944). . See Aguilar v. Standard Oil Co., 318 U.S. 724, 730, 63 S.Ct. 930, 87 L.Ed. 1107 (1943). . See Johnson v. United" }, { "docid": "13512868", "title": "", "text": "climatic and other conditions for the treatment of that disease far exceed those available elsewhere. 42 C.F.R. 2.72, 2.73. Instead of seeking his care and cure at the Maine Hospital appellee sought treatment by a Chinese herb doctor and later by a San Francisco physician, who sent him to that physician’s tubercular hospital near Belmont on San Francisco Bay. Appellee while there threw away his certificate to* the Marine Hospital. In Marshall v. International Mercantile Marine Co., 39 F.2d 551, 553, the Second Circuit held that a stewardess who refused hospital treatment offered by the shipowner could not recover for her maintenance and cure. It followed its statement of the law to that effect in The Bouker No. 2, 2 Cir., 241 F. 831, 835. Citing these cases the Supreme Court in Calmar S. S. Corp. v. Taylor, 303 U.S. 525, 531, 58 S.Ct. 651, 654, 82 L.Ed. 993, states “ * * * Moreover , courts take cognizance of the marine hospital service where seamen may be treated at mínimum expense, in. some cases without expense, and they limit recovery to the expense of such maintenance and cure as is not at the disposal of the seaman through recourse to that service. * * * ” In this circuit we recently relied upon the Calmar case in stating the law to be “While it is true that a seaman cannot obtain an award for maintenance and cure where he has declined proffered medical treatment calculated to improve his condition, nevertheless, if an injured seaman has made a bona- fide attempt to' avail himself of the tendered medical treatment and under the circumstances of the case has been required to obtain appropriate treatment elsewhere he may recover from the owners of the vessel expense of maintenance and cure that was not at his disposal and seasonably obtainable through recourse to the proffered facilities.” Van Camp Sea Food Co. v. Nordyke, 140 F.2d 902, 906, 907. Cf. June v. Pan American Petroleum & Transport Co., 5 Cir., 25 F.2d 457, 458; The W. H. Hoodless, D.C. E.D. Pa., 38 F.Supp. 432," }, { "docid": "11259592", "title": "", "text": "service of the vessel is imposed by maritime law as an incident to the contract of employment. Aguilar v. Standard Oil Co., 1943, 318 U.S. 724, 730, 63 S.Ct. 930, 87 L.Ed. 1107; Calmar S. S. Corp. v. Taylor, 1938, 303 U.S. 525, 527, 58 S.Ct. 651, 82 L.Ed. 993; Cortes v. Baltimore Insular Line, 1932, 287 U.S. 367, 371, 53 S.Ct. 173, 77 L.Ed. 368; Pacific S. S. Co. v. Peterson, 1928, 278 U.S. 130, 138, 49 S.Ct. 75, 73 L.Ed. 220; The Iroquois, 1904, 194 U.S. 240, 241, 24 S.Ct. 640, 48 L.Ed. 955; The Osceola, 1903, 189 U.S. 158, 172, 23 S.Ct. 483, 47 L.Ed. 760; Harden v. Gordon, C.C.D.Me. 1823, 11 Fed.Cas. pp. 480, 482, No. 6,047. The correlative maritime right of the seaman to receive maintenance and cure exists regardless of whether the compensation contracted for consists in specific money wages or, as here, in a lay or share of “the catch” — a share of the earnings of the vessel. The Betsy Ross, 9 Cir., 1944, 145 F.2d 688, 689; Luksich v. Misetich, 9 Cir., 140 F.2d 812, 814, certiorari denied, 1944, 322 U.S. 761, 64 S.Ct. 1280, 88 L.Ed. 1589; The Josephine & Mary, 1 Cir., 1941, 120 F.2d 459, 461; Enochasson v. Freeport Sulphur Co., D.C.S.D.Tex.1925, 7 F.2d 674; The Atlantic, D.C.S.D.N.Y.1849, 2 Fed.Cas. pp. 121, 130, No. 620; Reed v. Canfield, C.C.D.Mass.1832, 20 Fed. Cas. pp. 426, 429, No. 11,641. As to the quantum of the shipowner’s duty, Mr. Chief Justice Stone said in Calmar S. S. Corp. v. Taylor, supra: “The maintenance exacted is comparable to that to which the seaman is entitled while at sea * * *, and ‘cure’ is care, including nursing and medical attention during such period as the duty continues.” 303 U.S. at page 528, 58 S.Ct. at page 653. And “courts take cognizance of the marine hospital service where seamen may be treated at minimum expense, in some cases without expense, and they limit recovery to the expense of such maintenance and cure as is not at the disposal of the seaman through recourse" }, { "docid": "11259596", "title": "", "text": "Skolar v. Lehigh Valley R. Co., 2 Cir., 1932, 60 F.2d 893, 895; cf. The J. F. Card, D.C.E.D.Mich.1890, 43 F. 92, and neither obligation is discharged until the earliest time when it is reasonably and in good faith determined by those charged with the seaman’s care and treatment that the maximum cure reasonably possible has been effected. Farrell v. United States, 1949, 336 U.S. 511, 517-519, 69 S.Ct. 707, 93 L.Ed. 850; cf. Calmar S. S. Corp. v. Taylor, supra, 303 U.S. at pages 528-530, 58 S.Ct. 651; The Osceola, supra, 189 U.S. at page 175, 23 S.Ct. 483; Desmond v. United States, 2 Cir., 1954, 217 F.2d 948, certiorari denied 349 U.S. 911, 75 S.Ct. 600; Reed v. Canfield, supra, 20 Fed.Cas. at page 429, No. 11,641. It follows that the libelant at bar is entitled to maintenance from respondents at the agreed rate of $6 per day from the time illness compelled him to leave the vessel on January 29, 1952, until October 15, 1953, when — -it is now found — his physician reasonably and in good faith determined for the first time that further treatment would not advanee cure. Along with the obligation to provide maintenance and cure, the maritime law attaches to the seaman’s contract of employment the right to receive his agreed wages throughout the period of employment, cf. The City of Alexandria, D.C.S.D.N.Y.1883, 17 F. 390, 396; The Osceola, supra, 189 U.S. at page 175, 23 S.Ct. 483; which historically has meant “to the end of the voyage”, since “the general custom in ships, other than the coastwise trade, is to sign on for a voyage rather than for a fixed period.” Farrell v. United States, supra, 336 U.S. at page 520, 69 S.Ct. at page 711. Generally speaking then, whether the employment is for a voyage or for a definite time, 46 U.S.C.A. § 572, it is the shipowner’s obligation to pay a seaman, who falls ill or is injured while in the service of the vessel, full wages throughout the period of employment. Farrell v. United States, supra, 336 U.S." }, { "docid": "11259593", "title": "", "text": "689; Luksich v. Misetich, 9 Cir., 140 F.2d 812, 814, certiorari denied, 1944, 322 U.S. 761, 64 S.Ct. 1280, 88 L.Ed. 1589; The Josephine & Mary, 1 Cir., 1941, 120 F.2d 459, 461; Enochasson v. Freeport Sulphur Co., D.C.S.D.Tex.1925, 7 F.2d 674; The Atlantic, D.C.S.D.N.Y.1849, 2 Fed.Cas. pp. 121, 130, No. 620; Reed v. Canfield, C.C.D.Mass.1832, 20 Fed. Cas. pp. 426, 429, No. 11,641. As to the quantum of the shipowner’s duty, Mr. Chief Justice Stone said in Calmar S. S. Corp. v. Taylor, supra: “The maintenance exacted is comparable to that to which the seaman is entitled while at sea * * *, and ‘cure’ is care, including nursing and medical attention during such period as the duty continues.” 303 U.S. at page 528, 58 S.Ct. at page 653. And “courts take cognizance of the marine hospital service where seamen may be treated at minimum expense, in some cases without expense, and they limit recovery to the expense of such maintenance and cure as is not at the disposal of the seaman through recourse to that service.” Id., 303 U.S. at page 531, 58 S.Ct. at page 654; see Aguilar v. Standard Oil Co., supra, 318 U.S. at page 729, 63 S.Ct. 930. Accordingly, since libelant abstained, for reasons of his own, from availing himself of the services and facilities of the United States Public Health Service in his home town of San Pedro, whereat it appears substantially the same services as were rendered by the private physicians were readily available to him without charge, libelant cannot recover the costs of privately-obtained treatment as part of the cure which the law awards as an incident of the seaman’s employment. See: Bailey v. City of New York, 2 Cir., 1946, 153 F.2d 427; Benton v. United Towing Co., D.C.N.D.Cal.1954, 120 F.Supp. 638, 641; cf. Luth v. Palmer Shipping Co., 3 Cir., 210 F.2d 224, certiorari denied, 1954, 347 U.S. 976, 74 S.Ct. 788, 98 L.Ed. 1116, and comment by Roseoe Pound, 14 NACCA L.J. 203 (Nov. 1954); Repsholdt v. United States, 7 Cir., 205 F.2d 852, 856-857, certiorari denied, 1952," }, { "docid": "11259590", "title": "", "text": "to the marine hospital of the United States Public Health Service in San Pedro on March 7,1952, where he received treatment and an electrocardiogram was taken. At the recommendation of respondent Joncich he then placed himself under the care of a private physician, with whom he incurred a bill of $135; and ultimately went to a physician recommended by his proctors, where he incurred for his own account a further bill of $348. In October, 1953, this latter physician determined that a maximum cure for libelant’s heart condition had been reached during August, 1954. Libelant urges that he is entitled to recover (1) his share of the tuna catch by the Pioneer for the entire 1952 season, as his wages for the period of his seaman’s contract of maritime employment; (2) the sum of $6 per day as maintenance from the time his illness compelled him to leave the vessel on January 29, 1952 until October, 1954, when it was determined that his heart condition had been cured to the extent practicable; and (3) all medical expense incurred for his private account during this period of cure. Respondents, per contra, contend: (1) that since libelant became totally disabled on the first trip of the season, he is entitled to wages — a share of the catch — for only the single trip on which he fell ill; (2) that since the date on which the seaman in fact reaches maximum cure is controlling, libelant is not entitled to maintenance beyond August, 1954, even though the fact he had reached maximum cure was not determined until October, 1954; and (3) that since libelant declined free medical treatment readily available to him at the marine hospital of the United States Public Health Service, he is not entitled to recover the cost of cure which he privately secured for his own account. Considering these stated contentions in their inverse order, it is well to recall at the outset that the obligation of a shipowner to furnish cure, and maintenance as well, to a seaman who falls ill or is injured while in the" }, { "docid": "21035362", "title": "", "text": "been very much the hospital authorities could do about it. His own testimony and the hospital records show when and how he left. It was held in Rey v. Colonial Navagation Co., 2 Cir., 116 F.2d 580, in a fireman’s action for indemnity under Jones act for failure to provide suitable sleeping quarters for crew as result of which the fireman allegedly contracted tuberculosis, the burden was on the fireman to establish by a preponderance of the evidence that the negligence of the ship owner caused or was a substantial factor in causing the illness. Jones Act, 46 U.S.C.A. § 688. On the subject of maintenance and cure libelant cited a case from the Ninth Circuit, Van Camp Sea Food Co. v. Nordyke, 9 Cir., 140 F.2d 902, 906, 907, in which the court said: “While it is true that a seaman can not obtain an award for maintenance and cure where he has declined proffered medical treatment calculated to improve his condition, nevertheless, if an injured seaman has made a bona fide attempt to avail himself of the tendered medical treatment and under the circumstances of the case has been required to obtain appropriate treatment elsewhere he may recover from the owners of the vessel expenses of maintenance and cure that was not at his disposal and seasonably obtainable through recourse to the proffered facilities.” It does not seem necessary again to refer to the facts in the instant case to show that the exception to the rule above stated does not apply here; libelant’s own statements would exclude the exception in his case. It was held in Meyer v. United States, et al., 5 Cir., 112 F.2d 482, 483: “A seaman can not obtain an award for maintenance and cure where he has declined hospital treatment calculated to improve his condition. Calmar Steamship Corporation v. Taylor, 303 U.S. 525, 531, 58 S.Ct. 651, 82 L.Ed. 993; Marshall v. International Mercantile Marine Co., 2 Cir., 39 F.2d 551, 553; The Pochasset, 1 Cir., 295 F. 6, 10. Nor is he entitled to such an award when his conduct at" }, { "docid": "21035361", "title": "", "text": "need of the medical aid afforded him, and according to the testimony of the physicians who examined him, is still in need of medical treatment, but his refusal to follow the advice of medical authority on the subject of tuberculosis, refusal to submit to treatment and voluntarily leaving the hospital against medical advice, and at the time of trial still refusing, or neglecting to submit to treatment from physicians or at some hospital near his home, would seem to indicate that he does not believe he is in need of medical aid or else has become wholly indifferent to consequences. The letter of Dr. Miller, of the hospital at Fort Stanton, to libelant’s father was admitted in evidence and disclosed that libelant’s “condition was the same as when previously reported; that he had persistently refused surgical treatment; other than that he has been given the best of care. In view of his nostalgia a trip to his home will not be detrimental.” Since he had decided definitely to go there does not seem to have been very much the hospital authorities could do about it. His own testimony and the hospital records show when and how he left. It was held in Rey v. Colonial Navagation Co., 2 Cir., 116 F.2d 580, in a fireman’s action for indemnity under Jones act for failure to provide suitable sleeping quarters for crew as result of which the fireman allegedly contracted tuberculosis, the burden was on the fireman to establish by a preponderance of the evidence that the negligence of the ship owner caused or was a substantial factor in causing the illness. Jones Act, 46 U.S.C.A. § 688. On the subject of maintenance and cure libelant cited a case from the Ninth Circuit, Van Camp Sea Food Co. v. Nordyke, 9 Cir., 140 F.2d 902, 906, 907, in which the court said: “While it is true that a seaman can not obtain an award for maintenance and cure where he has declined proffered medical treatment calculated to improve his condition, nevertheless, if an injured seaman has made a bona fide attempt to" }, { "docid": "4327872", "title": "", "text": "his parents and, hence, cannot receive maintenance for that period. The Bay-mead, 9 Cir., 88 F.2d 144; Field v. Waterman S. S. Corporation, 5 Cir., 104 F.2d 849; Robinson v. Swayne & Hoyt (The Point Clear), D.C.S.D.Cal., 33 F.Supp. 93. Appellee cites our decision in The City of Avalon, 9 Cir., 156 F.2d 500, but there the record clearly shows that the libellant paid for his room and board while he was unable to work. Appellee refused hospitalization in the Marine Hospital in San Francisco because “I couldn’t see going back to another hospital. It was just one doctor’s opinion against a half dozen or more that I had seen already.” It appears to be well settled that a seaman’s right to maintenance and cure is forfeited by voluntary rejection of hospital care. Here the refusal of the proffered hospitalization came “shortly after” appellee had been discharged from the rest center and had returned to his home. It thus appears that the greater part of the period for which he now claims maintenance is made up of time spent living with his parents after he had declined an offer of a physician to send him to a Marine Hospital for treatment which might have hastened his recovery. Appellee’s motion to take further proof in support of his claim for maintenance for the period since the trial in the District Court, during which time appellee has continued to live with his parents,, is denied. The decree of the District Court is ordered modified so as to conform to this opinion and as so modified the judgment is affirmed. Cf. The Ernest H. Meyer, 9 Cir., 84 F.2d 496, 501; certiorari denied 299 U. S. 600, 57 S.Ct. 193, 81 L.Ed. 442. Atchison T. & S. F. R. Co. v. Toops, 281 U.S. 351, 50 S.Ct. 281, 74 L.Ed. 896; The Tawmie, 5 Cir., 80 F.2d 792; Interstate Circuit v. LaNormand, 5 Cir.,. 100 F.2d 160. San Juan Light & Transit Co. v. Requena, 224 U.S. 89, 98, 99, 32 S.Ct. 399, 401, 56 L.Ed. 680; Liggett & Myers T. Co. v." }, { "docid": "11259595", "title": "", "text": "346 U.S. 901, 74 S.Ct. 226, 98 L.Ed. 401; Van Camp Sea Food Co. v. Nordyke, 9 Cir., 140 F.2d 902, 906-907, certiorari denied, 1944, 322 U.S. 760, 64 S.Ct. 1278, 88 L.Ed. 1587. What has just been said, however, denies recovery only as to the $348 which libelant incurred for his own account with the physician to whom he was referred by his proctors. As to the bill of $135 incurred with the physician to whom libelant was referred by respondent Joncich, it is found that respondents authorized the private service and in effect consented to bear the physician’s reasonable charge. See: McManus v. Marine Transport Lines, 2 Cir., 1945, 149 F.2d 969; June v. Pan-American, etc., Co., 5 Cir., 1928, 25 F.2d 457; The Bouker No. 2, 2 Cir., 241 F. 831, 835-836, certiorari denied, 1917, 245 U.S. 647, 38 S.Ct. 9, 62 L.Ed. 529; cf. United States v. Loyola, 9 Cir., 1947, 161 F.2d 126, 128. The shipowner’s obligation to furnish maintenance is coextensive in time with his duty to furnish cure, Skolar v. Lehigh Valley R. Co., 2 Cir., 1932, 60 F.2d 893, 895; cf. The J. F. Card, D.C.E.D.Mich.1890, 43 F. 92, and neither obligation is discharged until the earliest time when it is reasonably and in good faith determined by those charged with the seaman’s care and treatment that the maximum cure reasonably possible has been effected. Farrell v. United States, 1949, 336 U.S. 511, 517-519, 69 S.Ct. 707, 93 L.Ed. 850; cf. Calmar S. S. Corp. v. Taylor, supra, 303 U.S. at pages 528-530, 58 S.Ct. 651; The Osceola, supra, 189 U.S. at page 175, 23 S.Ct. 483; Desmond v. United States, 2 Cir., 1954, 217 F.2d 948, certiorari denied 349 U.S. 911, 75 S.Ct. 600; Reed v. Canfield, supra, 20 Fed.Cas. at page 429, No. 11,641. It follows that the libelant at bar is entitled to maintenance from respondents at the agreed rate of $6 per day from the time illness compelled him to leave the vessel on January 29, 1952, until October 15, 1953, when — -it is now found —" }, { "docid": "15674347", "title": "", "text": "he would have had to go for the out-patient treatment recommended by Dr. Levine (N.T. 415). (b) Hospital treatment was recommended to him, both in December 1945 by the representatives of the ship owner and by the Public Health Service sometime in 1946, prior to his first examination by Dr. Levine (N.T. 421). The Philadelphia General Hospital was fully available to him and he declined to take advantage of this for reasons of his own. The cases have consistently held that a seaman’s right to maintenance and cure is forfeited by voluntary rejection of hospital care on his part (see Luth v. Palmer Shipping Corp., 3 Cir., 1954, 210 F.2d 224, 228, and cases there cited). It seems to have been consistently recognized that a seaman is not entitled to reject free services available from Government maintained hospitals (such as those maintained by the Public Health Service or the Philadelphia General Hospital, supported by the City of Philadelphia) without showing that the treatment available there is inadequate, and there is no such showing in this record. See The Bouker No. 2, 2 Cir., 1917, 241 F. 831, certiorari denied 1917, 245 U.S. 647, 38 S.Ct. 9, 62 L.Ed. 529, cited with approval in The Balsa, 3 Cir., 1926, 10 F.2d 408, and Murphy v. American Barge Line Co., 3 Cir., 1948, 169 F.2d 61, 63, certiorari denied 1948, 335 U.S. 859, 69 S.Ct. 133, 93 L.Ed. 406. IV. Conclusions of Law The trial judge makes* the following Conclusions of Law: 1. Libellants’ Requests for Conclusions of Law Nos. 1 and 2, and respondents’ Requests for Conclusions of Law Nos. 1, 2 and 4 are adopted as Conclusions of Law of the court. 2. Neither the failure of the respondents, and their agents, servants or employees, to have the degaussing equipment of the vessel turned on at the time and place of the explosion in question, even if this should have constituted negligence, nor their failure to post lookouts, even if this should have constituted negligence, contributed in any part to the injuries suffered by the libellants. 3. Neither the failure" }, { "docid": "4327874", "title": "", "text": "DeLape, 9 Cir., 109 F.2d 598, 601. Smith v. United States, 5 Cir., 96. F.2d 976, 978. San Juan Light & Transit Co. v.. Requena, supra, note 3. Sweeney v. Erving, 228 U.S. 233, 238, 239, 33 S.Ct. 4Í6, 418, 57 L.Ed. 815, Ann.. Cas.1914D, 905. The argument is that as he had a free length of line in his hand and was coiling it, it was not necessary for him to pull the line again before the accident and that therefore Dudder must have \" dropped the block. Knight, Modern Seamanship, 10th Ed. p. 108. Knight, Modern Seamanship, 10th Ed. p. 109. Cf. Buzynski v. Luckenbach S. S. Co., 5 Cir., 19 F.2d 871; Id., 5 Cir., 31 F.2d 1015; certiorari denied 279 U.S. 867, 49 S.Ct. 483, 73 F.Ed. 1004. This was the document, previously referred to, which was not formally admitted in evidence. The version of the accident in this report was not borne out by the evidence of appellee, but neither this fact nor the fact that the report was not received in evidence at the trial changes the fact that the claims attorney had before him a document which indicated that appellee had a possible cause of action against the ship for negligence. See The Hawaiian, D.C.Md., 33 F.Supp. 985; Miller v. United States, D.C.S.D.N.Y., 51 F.Supp. 924. Bailey v. City of New York, 2 Cir., 153 F.2d 427; Meyer v. United States, 2 Cir., 112 F.2d 482; See, Calmar S. S. Corporation v. Taylor, 303 U.S. 525, 531, 58 S.Ct. 651, 82 L.Ed. 993; and Van Camp Sea Food Co. v. Nordyke, 9 Cir., 140 F.2d 902; certiorari denied 322 U.S. 760, 64 S.Ct. 1278, 88 L.Ed. 1587." }, { "docid": "11246125", "title": "", "text": "further hearing: (1) the date when no further improvement in libelant’s condition was possible; (2) whether, before that date, libelant used reasonable efforts to secure part-time employment as a night relief engineer, or similar work, when he was fit and able to do such work. When the district judge has made such findings, he shall award maintenance and cure in accordance with what we have said in this opinion. Reversed and remanded. . A more ample discussion would have saved us much labor. . Libelant testified that he felt fit for regular work on July 1, but that work was slack at that time and that he could not get a job until July 21. . See Loverich v. Warner Co., 3 Cir., 118 F.2d 690, certiorari denied 313 U.S. 577, 61 S.Ct. 1104, 85 L.Ed. 1535; Benton v. United Towing Co., D.C.Cal., 120 F. Supp. 638; Burch v. Smith, D.C.E.D. Pa., 77 F.Supp. 6; The Eastern Dawn, D.C.E.D.Pa., 25 F.2d 322; 2 Norris, The Law of Seamen (1952), p. 237. . Farrell v. United States, 2 Cir., 167 F. 2d 781, affirmed 336 U.S. 511, 69 S.Ct. 707, 93 L.Ed. 850; Calmar S.S. Corp. v. Taylor, 303 U.S. 525, 58 S.Ct. 651, 82 L.Ed. 993; Koslusky v. United States, 2 Cir., 208 F.2d 957; Note, 93 L.Ed. 859. . Koslusky v. United States, supra; Loverich v. Warner Co., supra; Burch v. Smith, supra; The Eastern Dawn, supra; Kahyis v. Arundel Corp., D.C.Md., 3 F.Supp. 492; but see Inter Ocean S. S. Co. v. Behrendsen, 6 Cir,, 12S F.2d 506. . Cf. Ahlgren v. Red Star Towing & Transp. Co., 2 Cir., 214 F.2d 618, 621. . See Warren v. United States, D.C.Mass., 75 F.Supp. 836. . Calmar S.S. Corp. v. Taylor, supra, 303 U.S. at page 531, 58 S.Ct. at page 654; United States v. Loyola, 9 Cir., 161 F.2d 126; United States v. Johnson, 9 Cir., 160 F.2d 789; Marshall v. International Mercantile Marine Co., 2 Cir., 39 F.2d 551; Benton v. United Towing Co., D.C.Cal., 120 F.Supp. 638, 641; Norris, supra, § 592. . Repsholdt v. United" }, { "docid": "17679944", "title": "", "text": "The question whether respondent is liable for the bills of Dr. Glass, Dr. Weinberg, the South Baltimore General Hospital, and Mr. Kendall is sharply disputed. The law is clear that a seaman is required to accept reasonable treatment at the Marine Hospital and that he cannot leave the Marine Hospital against medical advice and hold the ship for future doctor bills. Calmar Steamship Corp. v. Taylor, 303 U.S. 525, 58 S.Ct. 651, 82 L.Ed. 993; Stokes v. United States, 2 Cir., 144 F.2d 82; The Bouker No. 2, 2 Cir., 241 F. 831, certiorari denied 245 U.S. 647, 38 S.Ct. 9, 62 L.Ed. 529; United States v. Loyola, 9 Cir., 161 F.2d 126; Hoff v. United States, D.C. Wash., 87 F.Supp. 909; Benton v. United Towing Co., D.C.N.D.Cal., 120 F.Supp. 638; Vitco v. Joncich, D.C.S.D. Cal., 130 F.Supp. 945; Norris, The Law of Seamen, Vol. 2, Sec. 593; Libellant left the Marine Hospital against the advice of the doctors there. There was no reason for him to go to Dr. Glass nor to the doctors to whom Dr. Glass referred him, for treatment or physiotherapy. Respondent paid the bill of Dr. Voshell for consultations in July and August, 1954, because it engaged him to make the examinations. Respondent is not liable for any other medical bills. The parties are agreed that the decree should include an award for future maintenance and cure. Since any necessary physiotherapy can be obtained at the Marine Hospital, and none of the doctors thought that any further medical attention would be necessary, a proper award for future maintenance and cure (after February 20,1956) under the third cause of action is $1,500. A proper award for damages under the first cause of action, based on uiiseaworthiness, is $40,000. Libellant is entitled to no damages under the second cause of action for the alleged failure to provide proper medical attention. All claims against the impleaded respondents should be dismissed. Counsel will prepare an appropriate decree. . The word “flange” means a rib or rim, for strength, for guiding, or for attachment to another object. In this case" }, { "docid": "11259589", "title": "", "text": "made ready for the first trip, on December 27, 1951, libel-ant and other members of the crew signed shipping articles “between the Master and seamen, or mariners, of the American Oil Screw “Pioneer” of which Joseph C. Mardesich is the present Master, or whoever shall go for Master, now bound from the Port of Los Angeles, California, to Mexican Waters and such other ports and places in any part of the world as the Master may direct, and back to a final port of discharge in the United States, for a term of time not exceeding 12 calendar months.” See: 46 U.S.C.A. § 713; Id. §§ 564-568; Id. §§ 572-575. In late January, 1952, while the Pioneer was in Mexican waters on the first fishing trip of the season, libelant suffered a series of heart attacks, as a result of which he was forced to leave the vessel at Manzanillo, Mexico, on January 29, 1952, and return home to San Pedro, California, totally disabled for further service during the period of his employment. Libelant went to the marine hospital of the United States Public Health Service in San Pedro on March 7,1952, where he received treatment and an electrocardiogram was taken. At the recommendation of respondent Joncich he then placed himself under the care of a private physician, with whom he incurred a bill of $135; and ultimately went to a physician recommended by his proctors, where he incurred for his own account a further bill of $348. In October, 1953, this latter physician determined that a maximum cure for libelant’s heart condition had been reached during August, 1954. Libelant urges that he is entitled to recover (1) his share of the tuna catch by the Pioneer for the entire 1952 season, as his wages for the period of his seaman’s contract of maritime employment; (2) the sum of $6 per day as maintenance from the time his illness compelled him to leave the vessel on January 29, 1952 until October, 1954, when it was determined that his heart condition had been cured to the extent practicable; and (3) all" }, { "docid": "17679943", "title": "", "text": "cure to and including August 4, 1954, following his leaving the Orion Star. He has no further sums due him in maintenance following his leaving the Orion Star. Libellant has received $1,721.12 gross wages to the end of the voyage of the Orion Clipper (December 9, 1954-March 14, 1955). He has no further sums due him for his services aboard the Orion Clipper. Libellant has received $3,376, being all the maintenance and cure due him following his service aboard the Orion Clipper to and including February 20, 1956, the date of the trial. Conclusions in re Damages. The damages properly allowable include unpaid wages to date and until libellant will probably be able to take a job; probable loss of earnings in the future after he does return to work, due to his reduced earning capacity as a result of the two accidents, having in mind that the disability should decrease considerably if libellant's motivation to help himself is sufficiently strong; pain and suffering, past and future; and inability to engage in his normal activities. The question whether respondent is liable for the bills of Dr. Glass, Dr. Weinberg, the South Baltimore General Hospital, and Mr. Kendall is sharply disputed. The law is clear that a seaman is required to accept reasonable treatment at the Marine Hospital and that he cannot leave the Marine Hospital against medical advice and hold the ship for future doctor bills. Calmar Steamship Corp. v. Taylor, 303 U.S. 525, 58 S.Ct. 651, 82 L.Ed. 993; Stokes v. United States, 2 Cir., 144 F.2d 82; The Bouker No. 2, 2 Cir., 241 F. 831, certiorari denied 245 U.S. 647, 38 S.Ct. 9, 62 L.Ed. 529; United States v. Loyola, 9 Cir., 161 F.2d 126; Hoff v. United States, D.C. Wash., 87 F.Supp. 909; Benton v. United Towing Co., D.C.N.D.Cal., 120 F.Supp. 638; Vitco v. Joncich, D.C.S.D. Cal., 130 F.Supp. 945; Norris, The Law of Seamen, Vol. 2, Sec. 593; Libellant left the Marine Hospital against the advice of the doctors there. There was no reason for him to go to Dr. Glass nor to the doctors" }, { "docid": "11246126", "title": "", "text": "States, 2 Cir., 167 F. 2d 781, affirmed 336 U.S. 511, 69 S.Ct. 707, 93 L.Ed. 850; Calmar S.S. Corp. v. Taylor, 303 U.S. 525, 58 S.Ct. 651, 82 L.Ed. 993; Koslusky v. United States, 2 Cir., 208 F.2d 957; Note, 93 L.Ed. 859. . Koslusky v. United States, supra; Loverich v. Warner Co., supra; Burch v. Smith, supra; The Eastern Dawn, supra; Kahyis v. Arundel Corp., D.C.Md., 3 F.Supp. 492; but see Inter Ocean S. S. Co. v. Behrendsen, 6 Cir,, 12S F.2d 506. . Cf. Ahlgren v. Red Star Towing & Transp. Co., 2 Cir., 214 F.2d 618, 621. . See Warren v. United States, D.C.Mass., 75 F.Supp. 836. . Calmar S.S. Corp. v. Taylor, supra, 303 U.S. at page 531, 58 S.Ct. at page 654; United States v. Loyola, 9 Cir., 161 F.2d 126; United States v. Johnson, 9 Cir., 160 F.2d 789; Marshall v. International Mercantile Marine Co., 2 Cir., 39 F.2d 551; Benton v. United Towing Co., D.C.Cal., 120 F.Supp. 638, 641; Norris, supra, § 592. . Repsholdt v. United States, 7 Cir., 205 F.2d 852, certiorari denied 346 U.S. 928, 74 S.Ct. 308, 98 L.Ed. 420; Bowers v. Seas Shipping Co., 4 Cir., 185 F.2d 352; Bailey v. City of New York, 2 Cir., 153 F.2d 427. . Stokes v. United States, 2 Cir., 144 F.2d 82; The Saguache, 2 Cir., 112 F.2d 482; Weller v. United States, D.C. Cal., 106 F.Supp. 502; Norris, supra, § 593. . See Bekin v. United States, D.C.E.D. N.Y., 85 F.Supp. 907; The Eastern Dawn, supra. . See Kahyis v. Arundel Corporation, supra, 3 F.Supp. at page 495." }, { "docid": "13512869", "title": "", "text": "without expense, and they limit recovery to the expense of such maintenance and cure as is not at the disposal of the seaman through recourse to that service. * * * ” In this circuit we recently relied upon the Calmar case in stating the law to be “While it is true that a seaman cannot obtain an award for maintenance and cure where he has declined proffered medical treatment calculated to improve his condition, nevertheless, if an injured seaman has made a bona- fide attempt to' avail himself of the tendered medical treatment and under the circumstances of the case has been required to obtain appropriate treatment elsewhere he may recover from the owners of the vessel expense of maintenance and cure that was not at his disposal and seasonably obtainable through recourse to the proffered facilities.” Van Camp Sea Food Co. v. Nordyke, 140 F.2d 902, 906, 907. Cf. June v. Pan American Petroleum & Transport Co., 5 Cir., 25 F.2d 457, 458; The W. H. Hoodless, D.C. E.D. Pa., 38 F.Supp. 432, 433. Appellee claims that he went to the army transport service but that they did not tell him where to go and he would have us assume that this place to which he desired direction was the Marine Hospital.' The record shows that the time of this inquiry was after he was discharged from the Belmont hospital and was seeking “compensation” for his then existing liabilities to the herb doctor and the Belmont hospital physician. No excuse was given for not reporting to the Marine Hospital. Appellee says he was in need of immediate treatment, but that was as available in that hospital in San Francisco as was the herb doctor or in Belmont. We think the appellee has not maintained his burden of proof that appellant has not performed its contract to provide maintenance and cure. The decree is reversed with instructions to enter one that the libelant take nothing by his libel. The parties shall bear their respective costs on appeal. Cf. United States v. Jardine, 5 Cir., 81 F.2d 747. Reversed. ." } ]

[ { "docid": "16634566", "title": "", "text": "Opinion and Order Carman, Judge: Plaintiffs move for judgment upon the agency record pursuant to Rule 56.1 of the Rules of this Court. Defendants cross-move for judgment upon the agency record and preliminarily seek dismissal upon the grounds that this action fails to meet the prerequisites for subject-matter jurisdiction of this Court. This action was commenced by Plaintiffs pursuant to the Administrative Procedure Act, 5 U.S.C. § 701 et seq. (“APA”), seeking to overturn certain conditions imposed by the Foreign-Trade Zones (“FTZ”) Board upon the grants of foreign-trade subzones to Conoco, Inc. and Citgo Petroleum Corporation as discriminatory, unreasonable, arbitrary and capricious, in excess of statutory authority and as an abuse of discretion. Plaintiffs claim that this Court has exclusive jurisdiction over the action pursuant to 28 U.S.C. § 1581(i)(l) and (4) (1988). Background This case was originally filed in the United States District Court for the Western District of Louisiana, Lake Charles Division, as an appeal brought pursuant to the APA. On January 25,1990, the District Court granted the government’s Motion for Summary Judgment and dismissed Plaintiffs’ suit for lack of subject-matter jurisdiction, without prejudice, and at Plaintiffs’ costs. Conoco, Inc. and Lake Charles Harbor and Terminal District v. The United States Foreign-Trade Zone Board, et al, Civil Action No. 89-1717-LC (U.S.D.C., W.D. La., 1990). The District Court determined, after an independent review of the record and a de novo determination of the issues, that the findings of the Magistrate in his Report and Recommendation were correct. The Magistrate opined that, although 28 U.S.C. § 1581(i) does not create any substantive rights granting exclusive jurisdiction to the Court of International Trade (“CIT”), nevertheless, because the case involved an appeal of an administrative decision directly relating to tariffs on imported goods and the use of revenue in that field, § 1581 (i) should be applicable to the case regardless of whether an actual tariff on foreign commerce was presently being imposed. Statement of Facts The Lake Charles Harbor and Terminal District submitted in June 1986 an application to the FTZ Board pursuant to the Board’s regulations in 15 C.F.R. §" } ]

[ { "docid": "21335786", "title": "", "text": "OPINION TSOUCALAS, Senior Judge. Globe Metallurgical Inc. (“Globe”), plaintiff, brings this action pursuant to § 516A(a)(2)(A)(i)(I) and B(iii) of the Tariff Act of 1930, as amended, 19 U.S.C. § 1516a(a)(2)(A)(i)(I) and B(iii), and 28 U.S.C. § 1581(c). See Complaint (“Compl.”) ¶ 1. In the alternative, Globe brings this action under 28 U.S.C. § 1581(i)(2) and (4). See Compl. ¶ 2. Globe challenges the U.S. Department of Commerce’s (“Commerce”) December 21, 2006 revocation of the antidumping duty order on silicon metal from Brazil (the “Revocation Determination”). The United States, defendant, moves for dismissal of the Complaint for failure to state a claim upon which relief can be granted pursuant to USCIT R. 12(b)(5). Globe opposes the United States’ Motion to Dismiss and files a cross-motion to stay the proceedings. For the reasons explained below, the Court finds in favor of the defendant, and dismisses the plaintiffs Complaint for failure to state a claim upon which relief can be granted. Plaintiffs Motion for Stay is denied. JURISDICTION The Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1581(c) and 19 U.S.C. § 1516a(a)(2)(A)(i)(I) and B(iii). STANDARD OF REVIEW A court should not dismiss a complaint for failure to state a claim upon which relief may be granted “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); see also Halperin Shipping Co., Inc. v. United States, 13 CIT 465, 466, 1989 WL 61811, *1 (1989). Moreover, the Court must accept all well-pleaded facts as true and view them in the light most favorable to the non-moving party. See United States v. Islip, 22 CIT 852, 854, 18 F.Supp.2d 1047, 1051 (1998) (citing Gould, Inc. v. United States, 935 F.2d 1271, 1274 (Fed.Cir.1991)). A pleading that sets forth a claim for relief must contain “a short and plain statement” of the grounds upon which jurisdiction depends and “of the claim showing that the pleader is entitled to relief.” USCIT R. 8(a). “To" }, { "docid": "17855563", "title": "", "text": "alleges that Commerce unlawfully refused to correct errors in the Section 129 Determination pursuant to 19 C.F.R. § 351.224. II. STANDARD OF REVIEW The government requests that the Court dismiss Counts 3 and 4 of the Complaint for lack of subject matter juris diction pursuant to USCIT Rule 12(b)(1). In this case, the plaintiffs have the burden of establishing jurisdiction. See Cedars-Sinai Med. Ctr. v. Watkins, 11 F.3d 1573, 1583 (Fed.Cir.1993). The Court “assumes all factual allegations to be true and draws all reasonable inferences in plaintiffs favor.” See Mukand Int’l Ltd. v. United States, 30 CIT -, -, 452 F.Supp.2d 1329, 1331 (2006). The government also moves to dismiss Counts 3 and 4 for failure to state a claim upon which relief could be granted pursuant to USCIT Rule 12(b)(5). To avoid dismissal for failure to state a claim, the “factual allegations must be enough to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Bell Atl. Corp. v. Twombly, - U.S. -, 127 S.Ct. 1955, 1965, 167 L.Ed.2d 929 (2007) (internal citations omitted). III. DISCUSSION A. Motion to Dismiss for Lack of Jurisdiction i. Statutory Jurisdiction Over Count 3 pursuant to § 1581(i) The parties agree that the Court has subject matter jurisdiction over Counts 1 and 2 because a Section 129 determination is a “reviewable determination” listed in 19 U.S.C. § 1516a(a)(2)(B). The Court has jurisdiction over any civil action commenced under 19 U.S.C. § 1516a. See 28 U.S.C. § 1581(c). The parties disagree about the jurisdictional basis for Counts 3 and 4. ThyssenKrupp alleges jurisdiction under either § 1581(c) or (i), whereas the government claims ThyssenKrupp has failed to establish jurisdiction under either subsection. Count 3 of ThyssenKrupp’s complaint alleges a cause of action pursuant to the Administrative Procedures Act (“APA”). ThyssenKrupp claims that it has been “adversely affected or aggrieved by” USTR’s decision to implement the Section 129 determination without correcting certain alleged errors made by Commerce. 5 U.S.C. § 702 (2000). When a plaintiff alleges an APA" }, { "docid": "21992759", "title": "", "text": "and that the entries may not be reliquidated. II. Standard of Review Where jurisdiction is challenged, “[pjlaintiffs carry the burden of demonstrating that jurisdiction exists.” Techsnabexport, Ltd. v. United States, 16 CIT 420, 422, 795 F.Supp. 428, 432 (1992) (citing McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936)). In deciding a USCIT R. 12(b)(1) motion that does not challenge the factual basis for the complainant’s allegations, and when deciding a USCIT R. 12(b)(5) motion to dismiss for failure to state a claim upon which relief can be granted, the court assumes all factual allegations to be true and draws all reasonable inferences in plaintiffs .favor. Cedars-Sinai Med. Ctr. v. Watkins, 11 F.3d 1573, 1583-84 & n. 13 (Fed.Cir.1993); Henke v. United States, 60 F.3d 795, 797 (Fed.Cir.1995) (subject matter jurisdiction); Gould, Inc. v. United States, 935 F.2d 1271, 1274 (Fed.Cir.1991) (failure to state a claim). III. Discussion A. Jurisdiction Defendant invokes the general rule that section 1581(i) jurisdiction attaches only if jurisdiction under another section of 28 U.S.C. § 1581 (2000) is unavailable or manifestly inadequate. See Miller & Co. v. United States, 824 F.2d 961, 963 (Fed.Cir.1987). Defendant contends that plaintiffs had an available remedy to challenge the liquidations via the protest procedure of 19 U.S.C. § 1514(a)(5), 19 U.S.C. § 1515, and 28 U.S.C. § 1581(a) (2000). Defendant’s proposed jurisdictional basis, however, is not responsive to the gravamen of plaintiffs’ complaint because the protest procedure of sections 1514 and 1515 applies to decisions of Customs, not Commerce. Plaintiffs’ challenge is to an action of Commerce. See Shinyei Corp. of Am. v. United States, 355 F.3d 1297, 1304-05, 1309-10 (Fed.Cir.2004) (“Because the alleged agency error in [this] ... case is on the part of Commerce, and not Customs, sections 514 and 515 [of the Tariff Act of 1930] do not apply.”); Ugine & Alz Belgium v. United States, 452 F.3d 1289, 1295-96 (Fed.Cir.2006) (“Belgium”); see also Mukand Int’l, Ltd. v. United States, 29 CIT -, -, 412 F.Supp.2d 1312, 1316-17 (2005). Once Commerce issues liquidation instructions, Customs must liquidate the" }, { "docid": "19151262", "title": "", "text": "The Government moved to dismiss for lack of subject matter jurisdiction, claiming Appellants could not rely on § 1581® because they were first required to challenge the extensions before Customs by means of a post-liquidation protest, after which they could seek judicial review of any protest denial pursuant to 19 U.S.C. § 1515, the Tariff Act’s “review of protests” provision. Jurisdiction over such a denial, the Government argued, would then be proper under 28 U.S.C. § 1581(a). The CIT agreed, observing that “[i]n the time that has elapsed since the commencement of this action, ICE has completed its investigation and, but for [Appellants’] suit, Customs could complete its administrative process and liquidate [Appellants’] remaining entries.” Chemsol, 901 F.Supp.2d at 1365. The CIT held “the statutory review process for challenging liquidation of [Appellants’] entries under ... 19 U.S.C. §§ 1515 — 16[ ] and 28 U.S.C. § 1581(a), provides an adequate remedy for [Appellants’] claims,” and accordingly granted the Government’s motion to dismiss for lack of subject matter jurisdiction. Id. at 1363-64 (footnote omitted). Appellants filed these timely appeals. This court has jurisdiction pursuant to 28 U.S.C. § 1295(a)(5). DISCUSSION I. Standard of Review This court reviews de novo the CIT’s dismissal for lack of subject matter jurisdiction. Ford Motor Co. v. United States, 688 F.3d 1319, 1322 (Fed.Cir.2012). II. Legal Framework A. Jurisdiction The CIT’s limited jurisdiction is enumerated in 28 U.S.C. § 1581(a) through (i). Subsection (a) vests the CIT with “exclusive jurisdiction of any civil action commenced to contest the denial of a protest [by Customs].” Subsections (b) through (g) delineate other specific grants of jurisdiction. Subsection (i), the “residual jurisdiction” provision, provides: In addition to the jurisdiction conferred upon the [CIT] by subsections (a)-(h) of this section ..., the [CIT] shall have exclusive jurisdiction of any civil action commenced against the United States, its agencies, or its officers, that arises out of any law of the United States providing for— (1) revenue from imports or tonnage; (2) tariffs, duties, fees, or other taxes on the importation of merchandise for reasons other than the raising of revenue; (3)" }, { "docid": "12007414", "title": "", "text": "2007). This decision is the subject of a separate appeal. In early 2006, VW sent letters to Customs requesting an allowance in the value of the automobiles whose repairs occurred after the date of protest, again citing a claim for allowance under § 158.12. Customs stated at a pretrial conference that it would not issue a decision concerning the letters. VW filed another appeal with the Court of International Trade under the Administrative Procedure Act (“APA”), alleging jurisdiction under 28 U.S.C. § 1581(i), the trade court’s “residual” jurisdictional grant. The United States moved to dismiss for lack of subject matter jurisdiction under CIT Rule 12(b)(1); for failure to state a claim upon which relief can be granted under CIT Rule 12(b)(5); and because the claims were time barred by the statute of limitations applicable to 28 U.S.C. § 2636®. The trial court denied the United States’ motion to dismiss for lack of subject matter jurisdiction, holding that VW’s action falls under the language of paragraphs (1) and (4) of § 1581®, and that jurisdiction was not available under any other subsection of § 1581. Volkswagen v. of Am., Inc. v. United States, 475 F.Supp.2d 1385 (Ct. Int’l Trade 2007) (“Volkswagen II”). The trial court noted that VW could not have filed a valid protest under § 1581(a) because VW had not discovered the defects until after the 90-.day time limit had passed. Id. at 1389. Thus, the trade court granted the Government’s motion to dismiss for failure to state a claim. The trial court reasoned that § 1514 precludes judicial review of VW’s cause of action under the APA, which otherwise grants a right of review to “[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action.... ” 5 U.S.C. § 702. Volkswagen II, 475 F.Supp.2d at 1390. It further explained that § 1514 sets forth the procedures governing protests against Customs decisions. Thus, all of Customs’ appraisals merge into the liquidation. As a result, the trial court held that any VW protests under § 158.12 had to comply with the procedures applicable" }, { "docid": "21412932", "title": "", "text": "excluded Plaintiffs from Byrd distributions. Subsequent to these denials, the Crawfish Producers, SKF, and Koyo each filed suit in this Court challenging the constitutionality and application of the Byrd Amendment’s support requirement. Jurisdiction This Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1581(f)(2) and (4) (2000) in that Plaintiffs’ claims arise out of a law providing for administration and enforcement of the antidumping statute, which is a law “providing for ... tariffs, duties, fees, or other taxes on the importation of merchandise for reasons other than the raising of revenue.” Id. at § 1581(i)(2). Standard of Review In deciding a USCIT R. 12(b)(1) motion that does not challenge the factual basis for the complainant’s allegations, and when deciding a USCIT R. 12(b)(5) motion to dismiss for failure to state a claim upon which relief can be granted, the Court assumes all factual allegations to be true and draws all reasonable inferences in the plaintiffs favor. Cedars-Sinai Med. Ctr. v. Watkins, 11 F.3d 1573, 1583-84 & n. 13 (Fed.Cir.1993); Henke v. United States, 60 F.3d 795, 797 (Fed.Cir.1995) (subject matter jurisdiction); Gould, Inc. v. United States, 935 F.2d 1271, 1274 (Fed.Cir.1991) (failure to state a claim). Dismissal for failure to state a claim upon which relief can be granted is proper if the plaintiffs factual allegations are not “enough to raise the right to relief above the speculative level on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Bell Atl. Corp. v. Twombly, 550 U.S. -, -, 127 S.Ct. 1955, 1965, 167 L.Ed.2d 929 (2007) (citations omitted). Discussion Two recent decisions of this Court holding the Byrd Amendment’s support requirement unconstitutional provide the background to this action. See SKF USA Inc. v. United States, 30 CIT-,-, 451 F.Supp.2d 1355, 1366 (2006), appeal docketed, No.2008-1008 (Fed.Cir. Oct. 3, 2007), (“SKF I ”) (holding the support requirement of the Byrd Amendment unconstitutional on equal protection grounds); PS Chez Sidney, L.L.C. v. U.S. Int’l Trade Comm’n, 30 CIT -, -, 442 F.Supp.2d 1329, 1358-59 (2006) (holding the support requirement unconstitutional on First Amendment" }, { "docid": "18933610", "title": "", "text": "actual liquidations or reliquidations that occurred (i.e., the merits of [Ford’s] reconciliation claims), an option not available in this declaratory judgment case.” Id. Ford appealed. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(5). We review the CIT’s dismissal for lack of subject matter jurisdiction de novo. Heartland By-Prods., Inc. v. United States, 424 F.3d 1244, 1250 (Fed.Cir.2005). We review the CIT’s decision not to issue declaratory relief for abuse of discretion. Wilton v. Seven Falls Co., 515 U.S. 277, 289-90, 115 S.Ct. 2137, 132 L.Ed.2d 214 (1995); Sony Elecs., Inc. v. Guardian Media Techs., Ltd., 497 F.3d 1271, 1288 (Fed.Cir.2007). Discussion I As to Claims 1^1 and 6 concerning Ford’s 2005 entries, we first consider whether the statute of limitations under 28 U.S.C. § 2636(i) is jurisdictional, such that we must address it before considering the merits. See, e.g., Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). Ford argues that our mandate in Ford II precluded the CIT from considering the statute of limitations because we reversed the CIT’s dismissal for lack of subject matter jurisdiction, and the statute of limitations is jurisdictional. The government argues that the CIT was “powerless to adjudicate Ford’s claims” because they fell outside of the CIT’s authority under § 2636(i), and that the mandate in the original appeal is not a bar even though “the statute of limitations is ... jurisdictional.” Appel-lee’s Br. at 31. We disagree with both parties. Section 1581(i)’s two-year statute of limitations is not jurisdictional. Section 2636(i) of title.28 provides that a “civil action of which the Court of International Trade has jurisdiction under section 1581 of this title, other than an action specified in subsections (a)-(h) of this section, is barred unless commenced in accordance with the rules of the court within two years after the cause of action first accrues.” In SKF USA, Inc. v. U.S. Customs and Border Protection, 556 F.3d 1337, 1348 (Fed.Cir.2009), we assumed without deciding that this statute of limitations was jurisdictional. In recent years, the Supreme Court has articulated a more" }, { "docid": "19151263", "title": "", "text": "these timely appeals. This court has jurisdiction pursuant to 28 U.S.C. § 1295(a)(5). DISCUSSION I. Standard of Review This court reviews de novo the CIT’s dismissal for lack of subject matter jurisdiction. Ford Motor Co. v. United States, 688 F.3d 1319, 1322 (Fed.Cir.2012). II. Legal Framework A. Jurisdiction The CIT’s limited jurisdiction is enumerated in 28 U.S.C. § 1581(a) through (i). Subsection (a) vests the CIT with “exclusive jurisdiction of any civil action commenced to contest the denial of a protest [by Customs].” Subsections (b) through (g) delineate other specific grants of jurisdiction. Subsection (i), the “residual jurisdiction” provision, provides: In addition to the jurisdiction conferred upon the [CIT] by subsections (a)-(h) of this section ..., the [CIT] shall have exclusive jurisdiction of any civil action commenced against the United States, its agencies, or its officers, that arises out of any law of the United States providing for— (1) revenue from imports or tonnage; (2) tariffs, duties, fees, or other taxes on the importation of merchandise for reasons other than the raising of revenue; (3) embargoes or other quantitative restrictions on the importation of merchandise for reasons other than the protection of the public health or safety; or (4) administration and enforcement with respect to the matters referred to in paragraphs (l)-(3) of this subsection and subsections (a)-(h) of this section. 28 U.S.C. § 1581®. While the residual jurisdiction provision is a “catch all provision,” “[a]n overly broad interpretation of this provision ... would threaten to swallow the specific grants of jurisdiction contained within the other subsections and their corresponding requirements.” Norman G. Jensen, Inc. v. United States, 687 F.3d 1325, 1329 (Fed.Cir.2012). Therefore, this court has repeatedly held that subsection (i) “ ‘may not be invoked when jurisdiction under another subsection of § 1581 is or could have been available, unless the remedy provided under that other subsection would be manifestly inadequate.’ ” Ford, 688 F.3d at 1323 (quoting Miller & Co. v. United States, 824 F.2d 961, 963 (Fed.Cir.1987)). Thus, if a litigant has access to the CIT under subsections (a) through (h), “ ‘it must avail itself" }, { "docid": "22459092", "title": "", "text": "PLAGER, Circuit Judge. In this case we are called upon to determine what court, if any, has jurisdiction to review certain orders of the Foreign Trade Zones Board (Board or FTZB), an agency of the federal government. Appellants appeal the April 7, 1992 judgment of the Court of International Trade, Court No. 90-06-00289, dismissing for lack of jurisdiction this action — a challenge to the Board’s imposition of conditions on the grant of foreign subzone status to refineries operated by the two private appellants, Conoco, Inc. (Conoco) and CITGO Petroleum Corp. (Citgo). Conoco, Inc. v. United States Foreign Trade-Zones Bd., 790 F.Supp. 279 (Ct.Int’l Trade 1992). We reverse and remand. I. BACKGROUND There are three appellants in this action— two private and one public. The two private appellants are Conoco and Citgo. The one public appellant is the Lake Charles Harbor and Terminal District (District). The Board has authorized the District to establish, operate and maintain a foreign trade zone adjacent to or in Lake Charles Harbor, a port of entry into United States customs territory. Conoco and Citgo are the owners of oil refineries located outside the zone. During 1986-87, the District filed applications on their behalf with the Board asking that these refineries be granted subzone status. The Board granted these applications subject to the following conditions: (1) that duties be paid on foreign crude oil used as fuel (or refined into products used as fuel) in the refineries; and (2) that Conoco and Citgo elect “privileged foreign status” for foreign crude oil brought into their respective subzones, ie., elect to pay duties on the value of that crude oil as opposed to the value of refined products produced therefrom. It is the imposition of these conditions on the grant of subzone status that lies at the heart of this case. Pursuant to the Administrative Procedure Act (APA), 5 U.S.C. § 701 et seq. (1988), two of the appellants, Conoco and the District, challenged in the United States District Court for the Western District of Louisiana, Lake Charles Division, the Board’s imposition of these conditions. The government responded" }, { "docid": "18933609", "title": "", "text": "The CIT again granted the government’s motion to dismiss for all claims directed to the 2005 entries except Claim 5, finding that Ford’s action was barred by the two-year limitations period, having been commenced more than two years after Ford reasonably should have known about the existence of those claims. Ford III, 992 F.Supp.2d at 1356-57. Regarding Claim 5 and the claims directed to Ford’s 2006 entries — as to which there was no statute of limitations issue — the CIT recognized that § 1581(i)' jurisdiction was available but again declined to exercise its discretionary jurisdiction. See id. at 1359. The CIT explained that “adjudicating the claims would not be an efficient and effective use of the court’s time and resources,” because Ford “retains the ability to seek relief’ for all of its claims in its pending protest and § 1581(a) action. Id. The CIT further explained that “[t]he § 1581(a) case will allow [Ford] to challenge not only the question of whether the entries in question were deemed liquidated, but the substance of any actual liquidations or reliquidations that occurred (i.e., the merits of [Ford’s] reconciliation claims), an option not available in this declaratory judgment case.” Id. Ford appealed. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(5). We review the CIT’s dismissal for lack of subject matter jurisdiction de novo. Heartland By-Prods., Inc. v. United States, 424 F.3d 1244, 1250 (Fed.Cir.2005). We review the CIT’s decision not to issue declaratory relief for abuse of discretion. Wilton v. Seven Falls Co., 515 U.S. 277, 289-90, 115 S.Ct. 2137, 132 L.Ed.2d 214 (1995); Sony Elecs., Inc. v. Guardian Media Techs., Ltd., 497 F.3d 1271, 1288 (Fed.Cir.2007). Discussion I As to Claims 1^1 and 6 concerning Ford’s 2005 entries, we first consider whether the statute of limitations under 28 U.S.C. § 2636(i) is jurisdictional, such that we must address it before considering the merits. See, e.g., Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). Ford argues that our mandate in Ford II precluded the CIT from considering the statute of" }, { "docid": "19947203", "title": "", "text": "importation of, counterfeit merchandise. Legislative history indicates that the Congressional purpose behind section 1526(f) was to strengthen the private rights of trademark owners, not to provide the government with an additional source of revenue. See S. Rep. No 104-177, at 2 (1995) (“[T]he bill strengthens the hand of businesses harmed by counterfeiters by updating existing statutes and providing stronger civil penalties against counterfeiters... .”); H.R. Rep. No 104-556, at 1-2 (1995) (“The purpose of H.R. 2511 is to prevent counterfeiting of copyrighted and trademarked goods and services and to ensure that counterfeit goods produced elsewhere cannot enter the United States.”), as reprinted in 1996 U.S.C.C.A.N. 1074, 1074-75. Thus, the Court of International Trade correctly concluded that it lacked jurisdiction over Sakar’s claim under 28 U.S.C. § 1581(i)(4) as it relates to 28 U.S.C. § 1581(i)(1). IV. Finally, citing Conoco Inc. v. United States, 18 F.3d 1581 (Fed.Cir.1994), Sakar argues that jurisdiction in the Court of International Trade was proper based upon what it refers to as “non-statutory, judicially-granted” review. We do not agree. The Court of International Trade, like all federal courts, is a court of limited jurisdiction. Norsk Hydro Can., Inc. v. United States, 472 F.3d 1347, 1355 (Fed.Cir.2006). It possesses only that power authorized by the Constitution and federal statutes, which is not to be expanded by judicial decree. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994). In Conoco, we did not hold that the appellants were entitled to “non-statutory, judicially-granted” review. Instead, starting from the presumption that agency action is subject to judicial review, we analyzed various federal statutes in order to determine which statute provided jurisdiction over the appellants’ case and, thus, where jurisdiction was proper (i.e., in the Court of International Trade or in the appropriate district court). Conoco, 18 F.3d at 1585-1590. Conoco provides no support for Sakar’s concept of “non-statutory, judicially-granted” review. Sakar’s final jurisdictional argument thus fails. CONCLUSION For the foregoing reasons, we conclude that the Court of International Trade lacked jurisdiction over Sakar’s suit. Thus, we vacate the decision of" }, { "docid": "15201746", "title": "", "text": "relief requested became moot as a result of Customs’ [actual] liquidation of the entries at issue,” depriving the court of subject matter jurisdiction. Shinyei-CIT(I), 248 F.Supp.2d at 1358-59. Notably, the Court of International Trade did not consider the United States’ argument about deemed liquidations. See Shi-nyei-CIT(I), 248 F.Supp.2d at 1361 n. 22 (“The Court does not reach the issue of ‘deemed liquidations’ of the entries at issue since both Defendant and Shinyei agree that the entries at issue were in fact liquidated.”). I. We Reverse and Remand for Further Proceedings Shinyei appealed the Court of International Trade’s dismissal of the '130 case for lack of jurisdiction, and on January 20, 2004, we reversed. See Shinyei-CAFC(I), 355 F.3d at 1297. We reviewed our earlier statement in Zenith Radio that “once liq uidation occurs, a subsequent decision by the trial court on the merits of Zenith’s challenge [to Commerce’s determination of a duty rate under section 516A of the Tariff Act] can have no effect on the dumping duties assessed on [Zenith’s entries],” 710 F.2d at 810, and we explained that this holding was “explicitly based on the liquidation and injunction provisions in section 516A.” Shinyei-CAFC(I), 355 F.3d at 1309. Here, since Shinyei did not challenge Commerce’s duty determination under section 516A of the Tariff Act, but rather challenged Commerce’s liquidation instructions as inconsistent with an anti-dumping duty determination that Shinyei conceded to be correct, we explained that our holding in Zenith Radio was simply inapplicable. See id. (“a challenge to Commerce instructions on the ground that they do not correctly implement the published, amended administrative review results, ‘is not an action defined under section 516A of the Tariff Act’ ” (quoting Consol. Bearings, 348 F.3d at 1002)); see also Mukand Int’l, Ltd. v. United States, 502 F.3d 1366, 1369 (Fed.Cir.2007) (“[0]ur recent decision in [Shinyei-CAFC(I) ] makes clear that the effect of liquidation under the injunction and liquidation provisions of section 516a does not divest the Court of International Trade of section 1581(i)(4) jurisdiction over an otherwise proper action for reliquidation.”). We held in Shinyei-CAFC(I) that despite Customs’ actual liquidation of" }, { "docid": "10449759", "title": "", "text": "v. United States, 837 F.2d 1058 (Fed.Cir.1988). That case was one of three other similar actions where foreign exporters sought to compel Commerce to issue a final decision on revocation and to enjoin Commerce from conducting any further reviews or changing its methodology until the decision to revoke was finalized. In all cases, as here, the plaintiffs sought preliminary injunctions to that end. See also UST, Inc. v. United States, 10 CIT -, 648 F.Supp. 1 (1986), aff'd, 831 F.2d 1028 (Fed.Cir.1987); Nissan Motor Corp. v. United States, 10 CIT -, 651 F.Supp. 1450 (1986). In reliance on Matsushita, 823 F.2d 505, the CAFC in Sharp, held that a preliminary injunction was not warranted as plaintiffs failed to establish irreparable injury. Although the government moved to dismiss for lack of jurisdiction, the court clarified the argument as one addressed to the plaintiffs’ failure to exhaust their administrative remedies, noting that the government therein had expressly recognized the jurisdiction of the Court of International Trade under the All Writs Act, 28 U.S.C. § 1651, “to compel antidumping determinations which have been unreasonably delayed in order to preserve the court’s jurisdiction to review those final determinations.” 837 F.2d at 1062. However, as the appeal in Sharp focused only on the propriety of the preliminary injunction which issued, the court found it unnecessary to discuss whether plaintiffs’ actions were prematurely commenced, without awaiting a final determination on revocation by Commerce. Id. In reference to the issue of delay, the Court is of the opinion that the decision in Sharp has not impacted negatively on the previous decisions of this court holding that jurisdiction is properly invoked in this type of action, under 28 U.S.C. § 1581(i). See Nissan, 10 CIT -, 651 F.Supp. 1450; UST, 10 CIT -, 648 F.Supp. 1. As this Court reiterated in Nissan: Section 1581(i) enables this court to entertain actions pertaining to preliminary administrative decisions related to anti-dumping duty proceedings provided there is no challenge to a determination specified in 19 U.S.C. § 1516a—It is clear that this is one type of administrative decision which arises between the" }, { "docid": "13387493", "title": "", "text": "a new invention, plaintiffs argue that this change has created a “new dynamic in the import marketplace[,]” and that the deposit rate has become a determining factor in U.S. importers’ purchasing decisions. (Pis.’ Br. at 3.) This dynamic is nothing new. Foreign producers have always competed with fellow exporters assigned significantly lower individu al deposit rates. Nevertheless, plaintiffs claim that as a result of the change in the law they are threatened with the immediate loss of long-standing customers to other Indian producers with lower deposit rates. DISCUSSION I. As a preliminary matter, the court finds that it has the authority to rule on the plaintiffs’ motion. The court has jurisdiction under 28 U.S.C. § 1581 (1994). It is unnecessary to specify whether § 1581(c) or § 1581(i) applies, as the court is not granting the requested relief. See Shakeproof Indus. Products Div. of Illinois Tool Works, Inc. v. United States, 104 F.3d 1309, 1313-14 (Fed.Cir.1997); Hylsa, S.A. de C.V. v. United States, 21 CIT -, —, 960 F.Supp. 320, 324-25 (citing Shakeproof Indus. Products), appeal dismissed, 113 F.3d 1255 (Fed.Cir.1997). In exercising that jurisdiction, the Court of International Trade possesses “all the powers in law and equity of ... a district court of the United States.” 28 U.S.C. § 1585 (1994). These include “broad injunctive powers.” NTN Bearing Corp. of America v. United States, 892 F.2d 1004, 1006 (Fed.Cir.1989); 28 U.S.C. § 2643(c)(1) (1994). Defendant claims that this court has no jurisdiction over the administrative handling of entries before a final court decision, except to temporarily suspend liquidation of duties. The argument relies on NTN, which vacated an injunction ordering a refund and forbidding further collection of estimated dumping duties after a partial summary judgment. Id. Under NTN, the court may not order liquidation at a rate other than that set in the challenged determination until after a final court decision, although it may suspend liquidation pending judicial review. Id. at 1006 (citing 19 U.S.C. § 1516a(c)(2), 1516a(e) (1988)). NTN does not limit this court’s jurisdiction. Its holding affects the timing of liquidation, not the court’s power to issue" }, { "docid": "13387494", "title": "", "text": "appeal dismissed, 113 F.3d 1255 (Fed.Cir.1997). In exercising that jurisdiction, the Court of International Trade possesses “all the powers in law and equity of ... a district court of the United States.” 28 U.S.C. § 1585 (1994). These include “broad injunctive powers.” NTN Bearing Corp. of America v. United States, 892 F.2d 1004, 1006 (Fed.Cir.1989); 28 U.S.C. § 2643(c)(1) (1994). Defendant claims that this court has no jurisdiction over the administrative handling of entries before a final court decision, except to temporarily suspend liquidation of duties. The argument relies on NTN, which vacated an injunction ordering a refund and forbidding further collection of estimated dumping duties after a partial summary judgment. Id. Under NTN, the court may not order liquidation at a rate other than that set in the challenged determination until after a final court decision, although it may suspend liquidation pending judicial review. Id. at 1006 (citing 19 U.S.C. § 1516a(c)(2), 1516a(e) (1988)). NTN does not limit this court’s jurisdiction. Its holding affects the timing of liquidation, not the court’s power to issue injunctions in appropriate circumstances. There have been post-NTW cases in which the court has considered motions to enjoin collection of cash deposits. In all instances, the court has found jurisdiction to consider the motion. Queen’s Flowers de Colombia v. United States, 20 CIT -, 947 F.Supp. 503 (1996) (motion granted); Companhia Brasileira Carbureto de Calcio v. United States, 18 CIT 215 (1994) (citing NTN but finding it did not prohibit extraordinary injunctive relief) (motion denied); Chilean Nitrate Corp. v. United States, 11 CIT 538 (1987) (motion denied). There is no reason to reach a different conclusion here. Given the court’s broad authority, the “former significance [of a specific provision for suspending liquidation] cannot be limiting.... [I]t represents simply a particularization of relief available in one important phase of judicial review.” Krupp Stahl AG v. United States, 4 CIT 244, 246, 553 F.Supp. 394, 396 (1982). “[E]xclusions to the Court’s powers are directly and unambiguously stated in 28 U.S.C. § 2643(e)(1).” Id. This court retains all powers of a district court not specifically excluded there. II." }, { "docid": "3409977", "title": "", "text": "presumption of regularity prevails and no further discussion of this issue is warranted. . Defendant, United States, filed its motion to dismiss for lack of subject matter jurisdiction pursuant to U.S. CIT 12(b)(1). In deciding such a motion, the Court considers whether the moving party challenges the sufficiency of the pleadings or the factual basis underlying the pleadings. In the first instance, the Court must accept as true all facts alleged in the non-moving party’s pleadings. In the second instance, the Court accepts as true only those facts which are uncontroverted. All other facts are subject to fact finding by the Court. See Power-One Inc. v. United States, 83 F.Supp.2d 1300, 1303 n. 9 (CIT 1999) (citing Cedars-Sinai Med. Ctr. v. Watkins, 11 F.3d 1573, 1583-84 (Fed.Cir.1993)). In this case, defendant challenges the actual existence of subject matter jurisdiction by asserting plaintiff, SSK Industries, Inc. (SSK), failed to comply with the statutory requirements for judicial review under 28 U.S.C. § 1581(a) (1994). Therefore, the Court will only accept uncon-troverted factual allegations as true for purposes of this motion. See Power-One, 83 F.Supp.2d at 1303 n. 9. The Court notes, there is no dispute between the parties that plaintiff did not file a protest with respect to Customs' reliquidation of the Cypres entries. All other facts underlying the controverted jurisdictional allegations in dispute are subject to fact-finding by this Court. . The Court recognizes it is not bound by the prior precedent of the United States Court of International Trade (CIT). See Algoma Steel Corp., Ltd. v. United States, 865 F.2d 240, 243 (Fed.Cir.1989) (\"among trial courts [e.g., CIT] it is unusual for one judge to be bound by the decision of another and, if it is to occur, such a rule should be stated somewhere. That is not done here\"). \"Nevertheless, absent unusual or exceptional circumstances, it would appear to be a better practice for judges of this court to follow the prior opinions of the court.” Krupp Stahl A.G. v. United States, 15 CIT 169, 173 (1991) (citing Fricker v. Town of Foster, 596 F.Supp. 1353, 1356 (D.R.I.1984))." }, { "docid": "10449758", "title": "", "text": "28 U.S.C. § 1581(i), the Court has jurisdiction over this action contesting delays in § 751 reviews and the failure of Commerce to issue a final revocation decision. Defendants assert that plaintiffs’ claim presents an interlocutory appeal not sufficiently ripe for judicial review, as no final agency action has been taken; thus, the action is premature and the Court does not have jurisdiction. It is argued that plaintiffs contest an interim agency decision related to the revocation process, which will be incorporated into the administrative review results and subsumed in a final decision on revocation, that will then be subject to judicial review. 19 U.S.C. § 1516a(a)(2)(B)(iii); 28 U.S.C. § 1581(c) (1982 and Supp. III 1985). However, plaintiffs argue that the failure to timely conduct administrative reviews and to timely consider whether final revocation of T.D. 71-76 is warranted will not be incorporated into any final determination and the issue of delay will escape review altogether. After the parties submitted their memoranda on the jurisdictional issue, our appellate court issued its decision in Sharp Corp. v. United States, 837 F.2d 1058 (Fed.Cir.1988). That case was one of three other similar actions where foreign exporters sought to compel Commerce to issue a final decision on revocation and to enjoin Commerce from conducting any further reviews or changing its methodology until the decision to revoke was finalized. In all cases, as here, the plaintiffs sought preliminary injunctions to that end. See also UST, Inc. v. United States, 10 CIT -, 648 F.Supp. 1 (1986), aff'd, 831 F.2d 1028 (Fed.Cir.1987); Nissan Motor Corp. v. United States, 10 CIT -, 651 F.Supp. 1450 (1986). In reliance on Matsushita, 823 F.2d 505, the CAFC in Sharp, held that a preliminary injunction was not warranted as plaintiffs failed to establish irreparable injury. Although the government moved to dismiss for lack of jurisdiction, the court clarified the argument as one addressed to the plaintiffs’ failure to exhaust their administrative remedies, noting that the government therein had expressly recognized the jurisdiction of the Court of International Trade under the All Writs Act, 28 U.S.C. § 1651, “to compel" }, { "docid": "3409976", "title": "", "text": "inadequate notice of reliquidation. Defendant, United States Customs Service (Customs), replied to plaintiff's fact assertions by pointing to the notice of reliquidation on the denial in part of SSK’s protest plaintiff admitted receiving. Defendant also noted that a presumption of regularity attaches to government acts like the provision of notice. (See Defendant’s Reply Brief in Support of Motion to Dismiss for Lack of Jurisdiction and in Opposition to Plaintiffs Response, at 3 (citing Penrod Drilling Co. v. United States, 727 F.Supp. 1463 (CIT 1989)).) As argued by Customs, the Court notes \"government officials are entitled to the benefit of a presumption that their duties are performed in the manner required by law\" and \"[i]n the absence of an affidavit or other evidence from plaintiff, the presumption that notice was posted is sufficient to negate the existence of a genuine issue of material fact.” Star Sales & Distributing Corp. v. United States, 663 F.Supp. 1127, 1129, 10 C.I.T. 709(1986). Because plaintiff presented no evidence to support its claim of inadequate notice, the Court finds the government’s presumption of regularity prevails and no further discussion of this issue is warranted. . Defendant, United States, filed its motion to dismiss for lack of subject matter jurisdiction pursuant to U.S. CIT 12(b)(1). In deciding such a motion, the Court considers whether the moving party challenges the sufficiency of the pleadings or the factual basis underlying the pleadings. In the first instance, the Court must accept as true all facts alleged in the non-moving party’s pleadings. In the second instance, the Court accepts as true only those facts which are uncontroverted. All other facts are subject to fact finding by the Court. See Power-One Inc. v. United States, 83 F.Supp.2d 1300, 1303 n. 9 (CIT 1999) (citing Cedars-Sinai Med. Ctr. v. Watkins, 11 F.3d 1573, 1583-84 (Fed.Cir.1993)). In this case, defendant challenges the actual existence of subject matter jurisdiction by asserting plaintiff, SSK Industries, Inc. (SSK), failed to comply with the statutory requirements for judicial review under 28 U.S.C. § 1581(a) (1994). Therefore, the Court will only accept uncon-troverted factual allegations as true for purposes" }, { "docid": "18832679", "title": "", "text": "Opinion by Judge POOLE. ORDER The Opinion filed March 3, 1994 is WITHDRAWN. OPINION POOLE, Circuit Judge: Appellants Secretary of Commerce, Administrator of the National Oceanic and Atmospheric Association, Assistant Administrator of the National Marine Fisheries Service, and Secretary of the Treasury appeal the district court’s grant of a preliminary injunction in favor of plaintiffs Earth Island Institute, the Marine Mammal Fund, and David R. Brower. Because we find the district court lacked jurisdiction to issue such an injunction, we reverse. I On April 12, 1988, plaintiffs filed suit seeking to require the government to enforce the Marine Mammal Protection Act (MMPA), 16 U.S.C. §§ 1361-1406. On August 26, 1991, plaintiffs moved for partial summary judgment and a preliminary and permanent injunction regarding the government’s failure to implement bans on importation of tuna from “secondary” or “intermediary nations” as required by 16 U.S.C. § 1371(a)(2)(C). The district court entered an order granting the motion for preliminary injunction but denying the motions for summary judgment and permanent injunction. Earth Island Institute v. Mosbacher, 785 F.Supp. 826, 828 (N.D.Cal.1992). Appellants argue that under 28 U.S.C. § 1581(i)(3), exclusive subject matter jurisdiction over this dispute is vested in the Court of International Trade (CIT), and that the district court thus lacked jurisdiction to enter the preliminary injunction. This court reviews the district court’s jurisdiction de novo. United States v. Peralta, 941 F.2d 1003, 1010 (9th Cir.1991), cert. denied, — U.S. -, 112 S.Ct. 1484, 117 L.Ed.2d 626 (1992). II Under 28 U.S.C. § 1581: (i) ... the Court of International Trade shall have exclusive jurisdiction of any civil action commenced against the United States, its agencies, or its officers, that arises out of any law of the United States providing for— (3)embargoes or other quantitative restrictions on the importation of merchandise for reasons other than the protection of the public health or safety. We must decide whether plaintiffs’ MMPA suit to enforce an import ban absent required government certifications is an action which arises out of a law “providing for embargoes.” In K Mart Corp. v. Cartier, Inc., 485 U.S. 176, 184, 108" }, { "docid": "10988553", "title": "", "text": "directs that taxes imposed upon both imports and exports shall be treated as if they were customs duties, in other words, as import transactions. Congress’s purpose in centralizing jurisdiction over import transactions in the Court of International Trade was to dispel the jurisdictional confusion existing as to the Court of International Trade’s predecessor, the Customs Court, and to reflect the true scope of the court’s jurisdiction. See H.R.Rep. No. 1235, 96th Cong., 2d Sess. 47 (1980), reprinted in 1980 U.S.C.C.A.N. 3729, 3758-59. As the legislative history of the Customs Courts Act of 1980 shows, Congress sought, by permitting a single court to hear these suits, “to eliminate much of the difficulty experienced by international trade litigants who in the past commenced suits in the district courts only to have those suits dismissed for want of subject matter jurisdiction.” H.R.Rep. No. 1235, at 47, 1980 U.S.C.C.A.N. at 3759. Accordingly, Congress granted the court exclusive jurisdiction over any civil action against the United States arising out of federal laws governing import transactions, because of the court’s “already developed expertise in international trade and tariff matters.” Conoco, Inc. v. United States Foreign-Trade Zones Bd., 12 Fed.Cir. (T) -, -, 18 F.3d 1581, 1586 (1994). This authority includes the in herent responsibility to review challenges to the constitutionality of a law within that area of expertise. See 28 U.S.C. §§ 251, 1331, 1585 (1988) (providing this court with all powers of U.S. district courts including original jurisdiction over actions arising under Constitution); see, e.g., 28 U.S.C. § 255(a)(1) (1988) (permitting designation of three-judge CIT panels to hear and determine constitutional issues). In addition to the statutory language, the legislative history of the Tax supports this court’s jurisdiction. S.Rep. No. 228, 99th Cong., 1st Sess. 10 (1986), reprinted in 1986 U.S.C.C.A.N. 6705, 6715. Finally, this is not the first case where the court has taken jurisdiction over matters arising from the Tax; the court recently exercised jurisdiction over claims for restitution of taxes paid by passenger liners pursuant to the Tax in Carnival Cruise Lines, Inc. v. United States, 18 CIT -, 866 F.Supp. 1437" } ]

[ { "docid": "22356017", "title": "", "text": "was in trouble. A company that operates 119 separate facilities nationwide is bound to have problems assimilating this or that property, to have disputes over payments with vendors and landlords, and to have some bills unpaid by reason of contested amounts or spot episodes of illiquidity; the allegations in the complaint are consistent with unremarka ble circumstances short of financial peril or instability. Further, as the district court observed, expressions of puffery and corporate optimism do not give rise to securities violations. Rombach, 2002 WL 1396986, at *5, 2002 U.S. Dist. LEXIS 15754, at *13. Up to a point, companies must be permitted to operate with a hopeful outlook: “People in charge of an enterprise are not required to take a gloomy, fearful or defeatist view of the future; subject to what current data indicates, they can be expected to be confident about their stewardship and the prospects of the business that they manage.” Shields v. Citytrust Bancorp, Inc., 25 F.3d 1124, 1129-30 (2d Cir.1994). To succeed on this claim, plaintiffs must do more than say that the statements in the press releases were false and misleading; they must demonstrate with specificity why and how that is so. We agree with Judge Johnson’s assessment that plaintiffs fail to allege with particularity any actual falsity in defendants’ press releases. (B) “Facility Economics Comparison” Slide. Plaintiffs allege that a slide that was prepared and used by defendants in connection with the July 1998 secondary public offering “falsely portrayed the Company’s growth and profitability by materially overstating the ‘economics’ of its ‘facilities.’ ” The district court observed, however, that the “slide is unclear on its face as to whether the figures represent actual historical revenues generated or projections for future earnings.” Rom-bach, 2002 WL 1396986, at *6, 2002 U.S. Dist. LEXIS 15754, at *17. The slide is undated and there is no indication of the time ‘ period to which the given data is relevant. [8] To show that Family Golf was overstating its financial position at the time the slide was utilized, the complaint' cites 1997 revenue data for four Class II" } ]

[ { "docid": "13533208", "title": "", "text": "specific facts to support their assertion that the statements were false or misleading when made. The amended complaint pleads neither Dornbush’s actual knowledge of Benihana’s intentions nor any facts that might justify a strong inference of scienter. Thus, the misrepresentations alleged by the plaintiffs are not actionable and, accordingly, the amended complaint is dismissible on this basis alone. 1. Dornbush’s Allegedly Actionable Statements Are Either Accurate Or Forward-Looking. The plaintiffs must allege a legally cognizable “misrepresentation” to sustain any cause of action based thereon. It is axiomatic, however, that predictive or opinion statements about future events, without more, are not misrepresentations. See Sheth v. N.Y. Life Ins. Co., 273 A.D.2d 72, 74, 709 N.Y.S.2d 74, 75 (1st Dept.2000); Hydro Investors Inc. v. Trafalgar Power, Inc., 227 F.3d 8, 21 (2d Cir.2000); see also Eternity Global Master Fund Ltd. v. Morgan Guar. Trust Co. ofN.Y., 375 F.3d 168, 187-88 (2d Cir.2004) (holding that for negligent misrepresentation claim, an alleged misrepresentation must be factual and not “promissory or related to future events.”). Moreover, under New York law, a promissory statement of what will be done in the future gives rise only to a breach of contract cause of action. See Stewart v. Jackson & Nash, 976 F.2d 86, 88-89 (2d Cir. 1992); see also Hydro, 227 F.3d at 21 (“The alleged negligent misstatements all relate to promised future conduct, if misstatements they be, and there is a lack of any element of misrepresentation as to an existing material fact so as to come within the doctrine of negligent misrepresentation ....”) (quoting Margrove Inc. v. Lincoln First Bank of Rochester, 54 A.D.2d 1105, 1107, 388 N.Y.S.2d 958 (4th Dept. 1976)). Though misrepresentations of present or past fact have the potential to create liability for the speaker, “[m]ere unfulfilled promissory statements as to what will be done in the future are not actionable” as such. Brown v. Lockwood, 76 A.D.2d 721, 432 N.Y.S.2d 186, 194 (1980); Hotel Constructors, Inc. v. Seag-rave Corp., 574 F.Supp. 384, 387 (S.D.N.Y. 1983). The statements allegedly made by Dorn-bush may be grouped as follows: (i) the Stockholders’ Agreement was" }, { "docid": "11493271", "title": "", "text": "Guardian Life Ins. Co. of America, 94 N.Y.2d 330, 343, 704 N.Y.S.2d 177, 182, 725 N.E.2d 598 (1999) (\"General Business Law § 349 was enacted initially to give the Attorney General enforcement power to curtail deceptive acts and practices-willful or otherwise-directed at the consuming public.”). . Oswego Laborers' Local 214 Pension Fund, 85 N.Y.2d at 26, 623 N.Y.S.2d at 533, 647 N.E.2d 741; accord Gaidon, 94 N.Y.2d at 344, 704 N.Y.S.2d at 183, 725 N.E.2d 598. . As anyone who watches television nowadays knows, some prescription drugs are promoted directly to potential users. The record is silent as to whether that occurred with respect to Rezulin. But that is immaterial. The injury complained of in this case is that caused by WL’s alleged deception of Medco, another large and sophisticated business entity- . 264 A.D.2d 652, 696 N.Y.S.2d 117 (1st Dep’t 1999). . 264 A.D.2d at 655, 696 N.Y.S.2d at 122 (citations omitted). . See, e.g., U.W. Marx, Inc. v. Bonded Concrete, Inc., 7 A.D.3d 856, 858, 776 N.Y.S.2d 617, 619 (3d Dep’t 2004); Scott v. Bell Atlantic Corp., 282 A.D.2d 180, 183, 726 N.Y.S.2d 60, 63 (1st Dep't 2001); see also In re Pharm. Ind. Average Wholesale Price Litig., 339 F.Supp.2d 165, 181-83 (D.Mass.2004). . The parties have not pointed to any evidence that diabetes patients paid higher co-payments for Rezulin than they would have paid for an alternative. Even if there were such evidence, it is not clear that it would be material, given the prohibition discussed above on claims for derivative injury. . \" 'Consumers' are 'those who purchase goods and services for personal, family or household use.' ” Med. Soc'y of State of New York v. Oxford Health Plans, Inc., 15 A.D.3d 206, 790 N.Y.S.2d 79, 79 (1st Dep't 2005) (quoting Sheth v. New York Life Ins. Co., 273 A.D.2d 72, 73, 709 N.Y.S.2d 74, 75 (1st Dep't 2000)) (citing Cruz v. NYNEX Info. Res., 263 A.D.2d 285, 289, 703 N.Y.S.2d 103, 106 (1st Dep't 2000)); see also Black Radio Network, Inc. v. NYNEX Corp., 44 F.Supp.2d 565, 583 (S.D.N.Y.1999) (rejecting § 349 claim because \"[ajlthough" }, { "docid": "22197382", "title": "", "text": "to be desired by the plaintiff for a serious purpose; (4) the plaintiff intended to rely and act upon it; and (5) the plaintiff reasonably relied on it to his or her detriment. See King v. Crossland Savs. Bank, 111 F.3d 251, 257-58 (2d Cir.1997) (citing Eweman v. State of New York, 70 N.Y.2d 175, 187, 518 N.Y.S.2d 608, 511 N.E.2d 1128 (1987); International Prods. Co. v. Erie R. Co., 244 N.Y. 331, 338, 155 N.E. 662 (1927)). However, the alleged misrepresentation must be factual in nature and not promissory or relating to future events that might never come to fruition. See Murray, 811 F.2d at 123 (“Promises of future conduct are not actionable as negligent misrepresentations.”); Sheth v. New York Life Ins. Co., 709 N.Y.S.2d 74, 75 (N.Y.App.Div.2000) (“The purported misrepresentations relied upon by plaintiffs may not form the basis of a claim for fraudulent and/or negligent misrepresentation since they are conclusory and/or constitute mere puffery, opinions of value or future expectations.”) (citations omitted); Bango v. Naughton, 184 A.D.2d 961, 963, 584 N.Y.S.2d 942 (N.Y.App.Div.1992) (negligent misrepresentation claim was properly dismissed for failure to state a claim because the alleged representations were “mere expressions of future expectation”) (internal quotation and citation omitted); Margrove Inc. v. Lincoln First Bank of Rochester, 54 A.D.2d 1105, 1107, 388 N.Y.S.2d 958 (N.Y.App.Div.1976) (“The alleged negligent misstatelnents all relate to promised future conduct, if misstatements they be, and there is a lack of any element of misrepresentation as to an existing material fact so as to come within the doctrine of negligent misrepresentation....”); Glanzer v. Shepard, 233 N.Y. 236, 242, 135 N.E. 275 (1922) (Cardozo, J.) (holding a defendant liable for a negligent misstatement of material existing fact). In the present case, the negligent misrepresentation claim fails because the energy output predictions were mere promises of future output as opposed' to present representations of existing fact. The alleged misrepresentations identified by the district court, relating to the energy output predictions, are just the sort of representations about future events that cannot support a claim for negligent misrepresentation. Additionally, even if Stetson-Harza and Dunlevy made" }, { "docid": "22197381", "title": "", "text": "really wanted, Forestport. The district court determined that the negligent misrepresentation claim should be dismissed on summary judgment. In its analysis, the court reasoned that the alleged misrepresentations related to future events and were promissory in nature rather than factual, and that therefore these statements could not support a claim for negligent misrepresentation under New York law. In support the court cited to U.S. West Financial Services, Inc. v. Tollman, 786 F.Supp. 333, 344 (S.D.N.Y.1992) and Murray, 811 F.2d at 118. The court concluded that “[a]ll of [the] alleged misrepresentations identified by Steckler in his opposition papers [were] promissory in nature and thus insufficient to support this theory of recovery.” The district court correctly resolved this issue. Under New York law, the elements for a negligent misrepresentation claim are that (1) the defendant had a duty, as a result of a special relationship, to give correct information; (2) the defendant made a false representation that he or she should have known was incorrect; (3) the information supplied in the representation was known by the defendant to be desired by the plaintiff for a serious purpose; (4) the plaintiff intended to rely and act upon it; and (5) the plaintiff reasonably relied on it to his or her detriment. See King v. Crossland Savs. Bank, 111 F.3d 251, 257-58 (2d Cir.1997) (citing Eweman v. State of New York, 70 N.Y.2d 175, 187, 518 N.Y.S.2d 608, 511 N.E.2d 1128 (1987); International Prods. Co. v. Erie R. Co., 244 N.Y. 331, 338, 155 N.E. 662 (1927)). However, the alleged misrepresentation must be factual in nature and not promissory or relating to future events that might never come to fruition. See Murray, 811 F.2d at 123 (“Promises of future conduct are not actionable as negligent misrepresentations.”); Sheth v. New York Life Ins. Co., 709 N.Y.S.2d 74, 75 (N.Y.App.Div.2000) (“The purported misrepresentations relied upon by plaintiffs may not form the basis of a claim for fraudulent and/or negligent misrepresentation since they are conclusory and/or constitute mere puffery, opinions of value or future expectations.”) (citations omitted); Bango v. Naughton, 184 A.D.2d 961, 963, 584 N.Y.S.2d 942" }, { "docid": "9892331", "title": "", "text": "than speculation, advertising puffery and the defendants’ hopes for the future of the company”); Simon v. Cunard Line Ltd., 75 A.D.2d 283, 288, 428 N.Y.S.2d 952, 955 (1st Dep’t 1980) (representation that the QEII was “the greatest ship in the world” was “mere puffing and not actionable”). In contrast, the second of the three statements involves McKelvey’s alleged misrepresentation as to the present condition of defendant PJI’s finances and operations. As such, this statement is not mere puffery. It is actionable as fraud. See e.g., Cohen v. Koenig, 25 F.3d 1168, 1172 (2d Cir.1994) (stating that under New York law, defendant’s alleged intentional overstatements of its net income and the value of its current and capital assets were actionable as fraud); Channel Master Corp. v. Aluminim Ltd. Sales, 4 N.Y.2d 403, 407, 176 N.Y.S.2d 259, 262, 151 N.E.2d 833 (1958) (holding that defendant’s allegedly false statement that it had the capacity to sell to plaintiff 400,000 pounds of aluminum was actionable as fraud). The cases cited by the defendants to support their puffery argument all involved types of statements that are analytically distinct from the one at issue here. One group of cases cited by the defendants addressed the actionability of general claims made in the context of advertisements to the general public. See, e.g., Sample, Inc. v. Pendleton Woolen Mills, Inc., 704 F.Supp. 498, 505 (S.D.N.Y.1989) (defendant’s advertisement offering “relationships that last a lifetime” constituted non-actionable puffery); Serbalik v. General Motors Corp., 246 A.D.2d 724, 726 667 N.Y.S.2d 503, 504 (3d Dep’t 1998) (defendant’s advertisement claiming that car “would perform excellently” constituted mere puffery); Scaringe v. Holstein, 103 A.D.2d 880, 881, 477 N.Y.S.2d 903, 904 (3d Dep’t 1984) (defendant’s advertisement claiming that car was in “excellent condition” constituted puffery). A second group of cases cited by the defendants holds that projections of future earnings are not generally actionable. See Rombach v. Chang, 355 F.3d 164, 174 (2d Cir.2004) (holding that a financial analyst’s earning projections were non-actionable under federal securities law); Shields v. Citytrust Bancorp., Inc., 25 F.3d 1124, 1129 (2d Cir.1994) (stating that under federal securities law, forward-looking" }, { "docid": "12003263", "title": "", "text": "A.D.2d 787, 790, 654 N.Y.S.2d 862 (3d Dep’t 1997). Because any fraud by Park Place against Kaufman and Melius did not directly cause the Catskill Group (or the Tribe) any harm, this theory of liability fails as a matter of law. See Excel Group, Inc. v. Permis Constr. Corp., 254 A.D.2d 451, 452, 678 N.Y.S.2d 778, 778 (2d Dep’t 1998) (defendant’s improper use of a report in violation of its agreement with a third-party did not make the defendant’s interference with plaintiffs business relationship “wrongful”). Two cases upon which the Catskill Group relies—Sommer v. Kaufman, 59 A.D.2d 843, 399 N.Y.S.2d 7 (1st Dep’t 1977), and Pagliaccio v. Holborn Corp., 289 A.D.2d 85, 734 N.Y.S.2d 148 (1st Dep’t 2001) — are inapposite. In both of those cases the defendant’s wrongful conduct against third-parties bore a direct nexus to the relationship with which the defendant interfered. See Sommer, 59 A.D.2d at 843, 399 N.Y.S.2d at 7-8 (defendants directly injured plaintiff by bribing public official to deny plaintiff a building permit for the subject project); Pagliaccio, 289 A.D.2d at 85, 734 N.Y.S.2d at 149 (defendants alleged to have directly injured plaintiff by threatening plaintiffs employer with harm if plaintiffs employment was not terminated). Here, by contrast, the alleged fraud against Melius and Kaufman — which netted an introduction to the Tribe — had at most a tenuous relation to the harm alleged. 2. Alleged Fraud Against the Tribe The Catskill Group’s claim that Park Place also committed fraud against the Tribe when, in the final stages of negotiations, Park Place announced that it could “switch” the limited approval the Catskill Group had obtained to Park Place’s site “without any significant loss of time.” The district court held that Park Place’s assurance (which turned out to be false) was not actionable because it was mere “puffery,” and the Tribal Chiefs testified that they “did not rely on [Park Place’s] corporate braggadoccio.” Catskill III, 217 F.Supp.2d at 437. Although the Catskill Group acknowledges the general principle that statements of opinion generally cannot constitute fraud, see, e.g., George Backer Mgmt. Corp. v. Acm0e Quilting Co., 46" }, { "docid": "13475007", "title": "", "text": "Village on Canon were not in a position to find the requisite duty there, this Court plainly is not in a position to find the requisite duty here. The Court will dismiss Claim # 6, for negligent misrepresentation, for failure to show the requisite duty. 8. Representations as to the Future The negligent misrepresentation claim must also be dismissed for another reason. While promissory fraud may be actionable if one makes a promise intending not to perform on it, allegedly negligent misrepresentations as to what will happen in the future have been treated differently by the New York courts. It has been repeatedly held in New York that “[promises of future conduct are not actionable as negligent misrepresentations.” See Murray, supra, 811 F.2d at 123; Hydro Investors, supra, 227 F.3d at 20-21 (“[T]he alleged misrepresentation must be factual in nature and not promissory or relating to future events that might never come to fruition.”); Sheth v. New York Life Insurance Co., 709 N.Y.S.2d 74, 75, 273 A.D.2d 72, 74 (1st Dep’t 2000) (“The purported misrepresentations relied upon by plaintiffs may not form the basis of a claim for fraudulent and/or negligent misrepresentation since they are conclusory and/or constitute mere puffery, opinions of value or future expectations.”); Bango v. Naughton, 584 N.Y.S.2d 942, 944, 184 A.D.2d 961, 963 (3rd Dep’t 1992) (negligent misrepresentation claim was properly dismissed for failure to state a claim because the alleged representations were “mere expressions of future expectation”); Margrove Inc. v. Lincoln First Bank of Rochester, 388 N.Y.S.2d 958, 960, 54 A.D.2d 1105, 1107 (4th Dep’t 1976) (“The alleged negligent misstatements all relate to promised future conduct, if misstatements they be, and there is a lack of any element of misrepresentation as to an existing material fact so as to come within the doctrine of negligent misrepresentation .... ”). Here the fraud claims, which have not been dismissed, cover the possibility that Green Tree’s promises of $45 million in financing, under the terms of the earlier financing, were made with the intent not to perform them, and/or knowing that they could not happen. Here, however, the" }, { "docid": "17035812", "title": "", "text": "Summit court held that a claim that machines are “reliable” is “incapable of objective verification and not expected to induce reasonable consumer reliance.” (Id.) See also Bulbman, Inc. v. Nevada Bell, 108 Nev. 105, 825 P.2d 588, 592 (1992) (representations at to the reliability and performance of a telephone system were mere puffery). ni. Performance The Court finds that the word “performance” is non-actionable puffery. “Describing a product as ‘quality’ or as having ‘high performance criteria’ are the types of subjective characterizations that Illinois courts have repeatedly held to be mere puffing.” Avery v. State Farm Mutual Automobile Ins. Co., 216 Ill.2d 100, 296 Ill.Dec. 448, 494, 835 N.E.2d 801, 847 (2005) In addition, statements that a car would “perform excellently” have been held to be mere puffing. Serbalik v. General Motors Corp., 246 A,D.2d 724, 667 N.Y.S.2d 503, 504 (4th Dep’t 1998). b. Latest Technology The Court finds that the phrase “latest technology” is non-actionable puffery. For instance, in Glen Holly Entertainment, Inc. v. Tektronix, Inc., 100 F.Supp.2d 1086, 1096 (C.D.Cal.1999), the court held that statements by one company that it had developed technology superior to its competitors’ was non-actionable puffery. c. Most Stringent Quality Control Tests The Court finds that the phrase “most stringent quality control tests” is actionable, and is not mere puffery. In Touchet Valley Grain Growers, Inc. v. Opp & Seibold General Construction, Inc., 119 Wash.2d 334, 831 P.2d 724, 731 (1992), the court held that statements in a manufacturer’s brochure stating that steel frame structures where “carefully checked by our quality control department,” constituted more than mere puffery. The Court agrees with the holding in Touchet, and finds that this statement is a specific factual assertion which could be established or disproved through discovery, and hence is not mere puffery. d. High-Quality, Brand-Name Components As discussed above, the Court finds that the term “high-quality” is non-actionable puffery. However, the Court finds that the phrase “brand-name components” is a specific factual statement which could be established or disproved through discovery, and hence is not mere puffery. B. Express Warranty eMachines contends that Annun-ziato’s affirmative allegations" }, { "docid": "14010009", "title": "", "text": "thereafter dismantled FirstGate to fraudulently avoid the company’s obligations under the Separation Agreement. (Complin 74-76.) Defendants challenge this claim as duplicative and indistinguishable from Plaintiffs claims for breach of the Separation Agreement. It is well settled under New York law that a party cannot maintain a claim for fraud predicated on a breach of contract merely by alleging that the breaching party never intended to perform. New York Univ. v. Cont’l Ins. Co., 87 N.Y.2d 308, 318, 639 N.Y.S.2d 283, 662 N.E.2d 763 (1995); River Glen Assocs., Ltd. v. Merrill Lynch Credit Corp., 295 A.D.2d 274, 275, 743 N.Y.S.2d 870, 871 (1st Dep’t 2002); WIT Holding Corp. v. Klein, 282 A.D.2d 527, 528, 724 N.Y.S.2d 66, 67-68 (2d Dep’t 2001); Caniglia v. Chi. Tribune-New York News Syndicate, Inc., 204 A.D.2d 233, 234, 612 N.Y.S.2d 146, 147 (1st Dep’t 1994). Rather, to state a fraud claim coexistant with an alleged breach of contract, a plaintiff must: “(i) demonstrate a legal duty separate from the duty to perform under the contract; or (ii) demonstrate a fraudulent misrepresentation collateral or extraneous to the contract; or (iii) seek special damages that are caused by the misrepresentation and unrecoverable as contract damages.” Bridgestone/Firestone, Inc. v. Recovery Credit Servs., Inc., 98 F.3d 13, 20 (2d Cir.1996) (citations omitted); accord Great Earth Int’l Franchising Corp. v. Milks Dev., 311 F.Supp.2d 419, 425 (S.D.N.Y.2004); Saleemi v. Pencom Sys. Inc., No. 99 Civ. 667(DLC), 2000 WL 640647, at *4 (S.D.N.Y. May 17, 2000). With respect to FirstGate and FirstGate AG, C3 Media does not plead special damages. See Bibeault v. Advanced Health Corp., No. 97 Civ. 6026(WHP), 2002 WL 24305, at *6 (S.D.N.Y. Jan.8, 2002) (“ ‘Special’ or ‘consequential’ damages seek to compensate a plaintiff for losses other than the value of the promised performance that are incurred as a result of the defendant’s breach” and “must be plead with particularity.”). However, Plaintiff contends that Defendants breached an independent duty and that Stangl’s misrepresentations were collateral to the Separation Agreement. This Court addresses those arguments in turn. a. Independent Duty C3 Media argues that Stangl, as a director of" }, { "docid": "21681116", "title": "", "text": "all facts alleged to be true, plaintiff still fails to plead the basic elements of a cause of action.”); accord Wright v. Giuliani, No. 99 Civ. 10091(WHP), 2000 WL 777940, at *4 (S.D.N.Y.), aff'd, 230 F.3d 543 (2d Cir.2000). The issue on a motion to dismiss “is not whether plaintiff will ultimately prevail, but whether claimant is entitled to offer evidence to support claims.” Villager Pond, Inc. v. Town of Darien, 56 F.3d 375, 378 (2d Cir.1995) (citation omitted). II. N.Y. General Business Law § 319 Section 349 “ ‘was designed to protect consumers from various forms of consumer fraud and deception.’ ” Twentieth Century Fox Film Corp. v. Marvel Enterprises, Inc., 155 F.Supp.2d 1, 25 (S.D.N.Y.2001) (quoting Smith v. Triad Mfg. Group, Inc., 255 A.D.2d 962, 681 N.Y.S.2d 710, 712 (4th Dep’t 1998)). Section 349 “declares unlawful ‘deceptive acts or practices in the conduct of any business, trade or commerce or in the furnishing of any service.’ ” Riordan v. Natiomoide Mut. Fire Ins. Co., 977 F.2d 47, 51 (2d Cir.1992) (internal brackets omitted) (quoting General Business Law § 349(a)); accord Highlands Ins. Co. v. PRG Brokerage, Inc., No. 01 Civ. 2272(GBD), 2004 WL 35439, at *9 (S.D.N.Y. Jan. 6, 2004); Kforce, Inc. v. Alden Personnel, Inc., 288 F.Supp.2d 513, 518 (S.D.N.Y.2003). The statute provides a private right of action to any person injured by a business’ deceptive act or practice. Riordan, 977 F.2d at 51 (citing General Business Law § 349(h)); accord Am. Med. Ass’n v. United Healthcare Corp., No. 00 Civ. 2800(LMM)(GWG), 2003 WL 22004877, at *6 (S.D.N.Y. Aug. 22, 2003); Gucci Am., Inc. v. Duty Free Apparel, Ltd., 277 F.Supp.2d 269, 272 (S.D.N.Y.2003). “A plaintiff under section 349 must prove three elements: first, that the challenged act or practice was consumer-oriented; second, that it was misleading in a material way; and third, that the plaintiff suffered injury as a result of the deceptive act.” Stutman v. Chem. Bank, 95 N.Y.2d 24, 29, 709 N.Y.S.2d 892, 731 N.E.2d 608 (2000) (citations omitted); accord Maurizio v. Goldsmith, 230 F.3d 518, 521-22 (2d Cir.2000); Lava Trading Inc. v. Hartford" }, { "docid": "9892332", "title": "", "text": "involved types of statements that are analytically distinct from the one at issue here. One group of cases cited by the defendants addressed the actionability of general claims made in the context of advertisements to the general public. See, e.g., Sample, Inc. v. Pendleton Woolen Mills, Inc., 704 F.Supp. 498, 505 (S.D.N.Y.1989) (defendant’s advertisement offering “relationships that last a lifetime” constituted non-actionable puffery); Serbalik v. General Motors Corp., 246 A.D.2d 724, 726 667 N.Y.S.2d 503, 504 (3d Dep’t 1998) (defendant’s advertisement claiming that car “would perform excellently” constituted mere puffery); Scaringe v. Holstein, 103 A.D.2d 880, 881, 477 N.Y.S.2d 903, 904 (3d Dep’t 1984) (defendant’s advertisement claiming that car was in “excellent condition” constituted puffery). A second group of cases cited by the defendants holds that projections of future earnings are not generally actionable. See Rombach v. Chang, 355 F.3d 164, 174 (2d Cir.2004) (holding that a financial analyst’s earning projections were non-actionable under federal securities law); Shields v. Citytrust Bancorp., Inc., 25 F.3d 1124, 1129 (2d Cir.1994) (stating that under federal securities law, forward-looking statements are not actionable merely because they turn out to be misguided); Highlands Insurance Co. v. PRG Brokerage, Inc., No. 01 Civ. 2272(GBD), 2004 WL 35439, *3, 2004 U.S. Dist. LEXIS 83, at *12 (S.D.N.Y. Jan. 5, 2004) (holding that defendants’ promises concerning future profitability are not actionable as fraud under New York law); Sheth v. New York Life Insurance Co., 273 A.D.2d 72, 74, 709 N.Y.S.2d 74, 75 (1st Dep’t 2000) (holding that claims based on “conclusory” statements and opinions of “future expectations” are not actionable as fraud); Quasha, 171 A.D.2d 537, 567 N.Y.S.2d 257 (holding that statements concerning “hopes for the future of the company” are not actionable as fraud). In short, McKelvey’s specific misrepresentations concerning the wherewithal of PJI is a proper basis for a fraud claim. 2. The Fraud Claim Does Not Violate the Economic Loss Rule New York’s economic loss rule restricts “plaintiffs who have suffered ‘economic loss,’ but not personal or property injury, to an action for the benefits of their bargain. If the damages suffered are of the" }, { "docid": "17035811", "title": "", "text": "are non-actionable puffery. a.Quality, Reliability, Performance i. Quality The Court finds that the word “quality” is non-actionable puffery. In Corley v. Rosewood Care Center, Inc. of Peoria, 388 F.3d 990, 1008 (7th Cir.2004), the Court held that the phrase “high quality,” in that case as applied'to the amount of care to residents of a nursing home, “comes under the category of sales puffery upon which no reasonable person could rely in making a decision____” See also Osborne v. Subaru of America, Inc., 198 Cal.App.3d 646, 660, 243 Cal.Rptr. 815 (1988) (“Sellers are permitted to ‘puff their products by stating opinions about the quality of the goods so long as they don’t cross the line and make factual representations about important characteristics like a product’s safety”). ii. Reliability The Court finds that the word “reliability” is non-actionable puffery. “The word ‘reliable’ is inherently vague and general — in common parlance akin to a statement that the machine is ‘fine.’ ” Summit Technology, Inc. v. High-Line Medical Instruments, Co., 933 F.Supp. 918, 931 (C.D.Cal.1996). . Further, the Summit court held that a claim that machines are “reliable” is “incapable of objective verification and not expected to induce reasonable consumer reliance.” (Id.) See also Bulbman, Inc. v. Nevada Bell, 108 Nev. 105, 825 P.2d 588, 592 (1992) (representations at to the reliability and performance of a telephone system were mere puffery). ni. Performance The Court finds that the word “performance” is non-actionable puffery. “Describing a product as ‘quality’ or as having ‘high performance criteria’ are the types of subjective characterizations that Illinois courts have repeatedly held to be mere puffing.” Avery v. State Farm Mutual Automobile Ins. Co., 216 Ill.2d 100, 296 Ill.Dec. 448, 494, 835 N.E.2d 801, 847 (2005) In addition, statements that a car would “perform excellently” have been held to be mere puffing. Serbalik v. General Motors Corp., 246 A,D.2d 724, 667 N.Y.S.2d 503, 504 (4th Dep’t 1998). b. Latest Technology The Court finds that the phrase “latest technology” is non-actionable puffery. For instance, in Glen Holly Entertainment, Inc. v. Tektronix, Inc., 100 F.Supp.2d 1086, 1096 (C.D.Cal.1999), the court held" }, { "docid": "11984168", "title": "", "text": "unfounded allegations of fraud; and (3) to reduce the number of strike suits.” Granite Partners, L.P. v. Bear, Stearns & Co., 17 F.Supp.2d 275, 285-86 (S.D.N.Y.1998). See O’Brien v. Price Waterhouse, 740 F.Supp. 276, 279 (S.D.N.Y.1990), aff'd, 936 F.2d 674 (2d Cir.1991). To satisfy Rule 9(b)’s pleading requirements, “ ‘a complaint must allege with some specificity the acts constituting fraud ... conclusory allegations that defendant’s conduct was fraudulent or deceptive are not enough.’ ” Silverman v. Actrade Capital, Inc. (In re Actrade Fin. Techs. Ltd.), 337 B.R. 791, 801 (Bankr. S.D.N.Y.2005) (quoting Odyssey Re (London) Ltd. v. Stirling Cooke Brown Holdings, Ltd., 85 F.Supp.2d 282, 293 (S.D.N.Y.2000)). The rule requires that allegations of fraudulent misrepresentations must “ ‘(1) specify the statements that the plaintiff contends were fraudulent, (2) identify the speaker, (3) state where and when the statements were made, and (4) explain why the statements were fraudulent.’ ” Shields v. Citytrust Bancorp, Inc., 25 F.3d 1124, 1128 (2d Cir.1994) (quoting Mills v. Polar Molecular Corp., 12 F.3d 1170, 1175 (2d Cir.1993)). While Rule 9(b) provides that “intent ... may be alleged generally,” a plaintiff must “allege facts that give rise to a strong inference of fraudulent intent.” Shields, 25 F.3d at 1128. The Second Circuit has found that a strong inference of fraudulent intent “may be established either (a) by alleging facts to show that defendants had both motive and opportunity to commit fraud, or (b) by alleging facts that constitute strong circumstantial evidence of conscious misbehavior or recklessness.” Shields, 25 F.3d at 1128. The Elements of a Professional Malpractice Claim To state a professional malpractice claim under New York law, a plaintiff must allege that “there was a departure from the accepted standards of practice and that the departure was a proximate cause of the injury.” Kristina Denise Enters., Inc. v. Arnold, 41 A.D.3d 788, 788, 838 N.Y.S.2d 667, 668 (2d Dep’t 2007). As the Second Circuit has found, “[u]nder New York law, ‘professional malpractice! ] is a species of negligence. As such, its general elements are (1) negligence, (2) which is the proximate cause of (3) damages.’" }, { "docid": "11295508", "title": "", "text": "cannot stand when the only fraud alleged relates to a breach of contract.” Gizzi v. Hall, 300 A.D.2d 879, 880, 754 N.Y.S.2d 373, 376 (3d Dep’t 2002); see McKernin v. Fanny Farmer Candy Shops, Inc., 176 A.D.2d 233, 234, 574 N.Y.S.2d 58, 59 (2d Dep’t 1991); Metro. Transp. Auth. v. Triumph Adver. Prods., Inc., 116 A.D.2d 526, 527, 497 N.Y.S.2d 673, 675 (1st Dep’t 1986). “To maintain a claim of fraud in such a situation, a plaintiff must either: (i) demonstrate a legal duty separate from the duty to perform under the contract; or (ii) demonstrate a fraudulent misrepresentation collateral or extraneous to the contract; or (iii) seek special damages that are caused by the misrepresentation and unrecoverable as contract damages.” Bridgestone/Firestone, Inc. v. Recovery Credit Servs., Inc., 98 F.3d 13, 20 (2d Cir.1996) (citations omitted). New York courts hold that a misrepresentation regarding present facts, as opposed to one reflecting an intent to perform in the future, is collateral to the contract. See Deerfield Communications Corp. v. Chesebrough-Ponds, Inc., 68 N.Y.2d 954, 956, 510 N.Y.S.2d 88, 502 N.E.2d 1003 (1986) (citing Citibank, 66 N.Y.2d at 94, 495 N.Y.S.2d 309, 485 N.E.2d 974); Orix Credit Alliance, Inc. v. R.E. Hable Co., 256 A.D.2d 114, 115, 682 N.Y.S.2d 160, 161 (1st Dep’t 1998); see also Stewart v. Jackson & Nash, 976 F.2d 86, 88-89 (2d Cir.1992) (“[W]here a contract or a transaction was induced by false representations, the representations and the contract are distinct and separable.” (quoting 60 N.Y. Jur.2d Fraud and Deceit § 206)); Great Earth Int’l Franchising Corp. v. Milks Dev., 311 F.Supp.2d 419, 427-29 (S.D.N.Y.2004). But see Graubard Mollen Dannett & Horowitz v. Moskovitz, 86 N.Y.2d 112, 122, 629 N.Y.S.2d 1009, 653 N.E.2d 1179 (1995) (“A false statement of intention is sufficient to support an action for fraud, even where that statement relates to an agreement between the parties.”). Indeed, a misrepresentation concerning present facts states an independent claim of fraud, even when the contract expressly warrants the accuracy of the defendant’s representations. First Bank of Ams. v. Motor Car Funding, Inc., 257 A.D.2d 287, 292, 690 N.Y.S.2d" }, { "docid": "21681117", "title": "", "text": "(quoting General Business Law § 349(a)); accord Highlands Ins. Co. v. PRG Brokerage, Inc., No. 01 Civ. 2272(GBD), 2004 WL 35439, at *9 (S.D.N.Y. Jan. 6, 2004); Kforce, Inc. v. Alden Personnel, Inc., 288 F.Supp.2d 513, 518 (S.D.N.Y.2003). The statute provides a private right of action to any person injured by a business’ deceptive act or practice. Riordan, 977 F.2d at 51 (citing General Business Law § 349(h)); accord Am. Med. Ass’n v. United Healthcare Corp., No. 00 Civ. 2800(LMM)(GWG), 2003 WL 22004877, at *6 (S.D.N.Y. Aug. 22, 2003); Gucci Am., Inc. v. Duty Free Apparel, Ltd., 277 F.Supp.2d 269, 272 (S.D.N.Y.2003). “A plaintiff under section 349 must prove three elements: first, that the challenged act or practice was consumer-oriented; second, that it was misleading in a material way; and third, that the plaintiff suffered injury as a result of the deceptive act.” Stutman v. Chem. Bank, 95 N.Y.2d 24, 29, 709 N.Y.S.2d 892, 731 N.E.2d 608 (2000) (citations omitted); accord Maurizio v. Goldsmith, 230 F.3d 518, 521-22 (2d Cir.2000); Lava Trading Inc. v. Hartford Fire Ins. Co., No. 03 Civ. 7037(PKC), 2004 WL 555723, at *3 (S.D.N.Y. March 19, 2004); Smith v. Chase Manhattan Bank, USA N.A., 293 A.D.2d 598, 741 N.Y.S.2d 100,102 (2d Dep’t 2002). “In addition, a plaintiff must prove ‘actual’ injury to recover under the statute, though not necessarily pecuniary harm.” Stutman, 95 N.Y.2d at 29, 709 N.Y.S.2d 892, 731 N.E.2d 608. MasterCard contends that Bildstein fails to plead the elements of Section 349, because he does not allege facts establishing materiality, actual injury, consumer-oriented conduct, or actionable deception by MasterCard. A. Materiality MasterCard argues that Bildstein has not pleaded materiality because he does not allege that “if fully informed of the claimed ‘fee,’ he could have and would have sought out a different and less costly means of making his alleged foreign currency purchases.” (Defendant’s Memorandum in Support of its Motion to Dismiss (“Def.Mem.”) at 5.) While his opposition papers were silent on this subject, at argument, Bildstein explained that his sole material injury was payment of the FCTF. (Transcript of Oral Argument, dated June" }, { "docid": "9892333", "title": "", "text": "statements are not actionable merely because they turn out to be misguided); Highlands Insurance Co. v. PRG Brokerage, Inc., No. 01 Civ. 2272(GBD), 2004 WL 35439, *3, 2004 U.S. Dist. LEXIS 83, at *12 (S.D.N.Y. Jan. 5, 2004) (holding that defendants’ promises concerning future profitability are not actionable as fraud under New York law); Sheth v. New York Life Insurance Co., 273 A.D.2d 72, 74, 709 N.Y.S.2d 74, 75 (1st Dep’t 2000) (holding that claims based on “conclusory” statements and opinions of “future expectations” are not actionable as fraud); Quasha, 171 A.D.2d 537, 567 N.Y.S.2d 257 (holding that statements concerning “hopes for the future of the company” are not actionable as fraud). In short, McKelvey’s specific misrepresentations concerning the wherewithal of PJI is a proper basis for a fraud claim. 2. The Fraud Claim Does Not Violate the Economic Loss Rule New York’s economic loss rule restricts “plaintiffs who have suffered ‘economic loss,’ but not personal or property injury, to an action for the benefits of their bargain. If the damages suffered are of the type remediable in contract, a plaintiff may not recover in tort.” Carmania Corp., N.V. v. Hambrecht Terrell Int'l, 705 F.Supp. 936, 938 (S.D.N.Y.1989); see also Schiavone Constr. Co. v. Elgood Mayo Corp., 56 N.Y.2d 667, 669, 436 N.E.2d 1322, 1323, 451 N.Y.S.2d 720, 721 (1982) (holding that under the economic loss rule, if an alleged product malfunction is alleged to have caused purely economic loss, then the end-purchaser is limited to contract claims against the manufacturer and may not seek damages in tort). McKelvey argues that pursuant to the economic loss rule, plaintiff cannot assert a fraud claim alongside a contract claim unless personal injury or property damage has been alleged. In support of this premise, McKelvey relies heavily on a single decision from this district, Orlando v. Novurania of Am., Inc., 162 F.Supp.2d 220, 225 (S.D.N.Y.2001). In Orlando, the disappointed buyer of a boat that developed cracks in its hull sued the seller/manufacturer, asserting, inter alia, both contract and fraud claims. With regard to the fraud claim, the plaintiff alleged that the defendant’s false" }, { "docid": "2781409", "title": "", "text": "598. . As anyone who watches television nowadays knows, some prescription drugs are promoted directly to potential users. The record is silent as to whether that occurred with respect to Rezulin. But that is immaterial. The injury complained of in this case is that caused by WL's alleged deception of Medco, another large and sophisticated business entity- . 264 A.D.2d 652, 696 N.Y.S.2d 117 (1st Dep't 1999). . 264 A.D.2d at 655, 696 N.Y.S.2d at 122 (citations omitted). . See, e.g., U.W. Marx, Inc. v. Bonded Concrete, Inc., 7 A.D.3d 856, 858, 776 N.Y.S.2d 617, 619 (3d Dep’t 2004); Scott v. Bell Atlantic Corp., 282 A.D.2d 180, 183, 726 N.Y.S.2d 60, 63 (1st Dep’t 1999); see also In re Pharm. Ind. Average Wholesale Price Litig., 339 F.Supp.2d 165, 181-83 (D.Mass.2004). . The parties have not pointed to any evidence that diabetes patients paid higher co-payments for Rezulin than they would have paid for an alternative. Even if there were such evidence, it is not clear that it would be material, given the prohibition discussed above on claims for derivative injury. . \" ‘Consumers' are 'those who purchase goods and services for personal, family or household use.’ ” Med. Soc'y of State of New York v. Oxford Health Plans, Inc., 15 A.D.3d 206, 790 N.Y.S.2d 79, 79 (1st Dep’t 2005) (quoting Sheth v. New York Life Ins. Co., 273 A.D.2d 72, 73, 709 N.Y.S.2d 74, 75 (1st Dep’t 2000)) (citing Cruz v. NYNEX Info. Res., 263 A.D.2d 285, 289, 703 N.Y.S.2d 103, 106 (1st Dep’t (2000))); see also Black Radio Network, Inc. v. NYNEX Corp., 44 F.Supp.2d 565, 583 (S.D.N.Y.1999) (rejecting § 349 claim because “[although plaintiffs claim that they were acting as consumers and thus should be protected by the statute, in fact this case involves businesses engaged in arm's length transactions for services that are not available to the general public. Nor, of course, does the fact that consumers were the ultimate end-users convert the transaction into a consumer transaction.”). . La. Civ.Code Ann. art. 3515; accord Champagne v. Ward, 893 So.2d 773, 786 (2005). . Favaroth v. Appleyard," }, { "docid": "9892330", "title": "", "text": "that McKel-vey “was personally ‘committed to PJI.’ ” (id.). McKelvey argues that all three of these statements are non-actionable puf-fery. It is well established in New York that “a seller’s mere general commendations of the product sought to be sold, commonly known as ‘dealer’s talk,’ ‘sales talk,’ or ‘puffery,’ do not amount to actionable misrepresentations[.]” 60A William H. Danne, Jr., N.Y. Jur. § 34 (2d ed. 2003) (“N.Y.Jur.”) (collecting cases). However, the doctrine of non-actionability for puffery does not apply “to false representations of material facts which are in their nature calculated to deceive and are made with the intent to deceive.” 60A N.Y. Jur. § 34 (collecting cases). The first and third of the statements allegedly made by McKelvey during the course of the 2001 New York Yacht Club meeting are not actionable because they are mere expressions of advertising, a well recognized form of puffery. See, e.g., Quasha v. American Natural Beverage Corp., 171 A.D.2d 537, 567 N.Y.S.2d 257 (1st Dep’t 1991) (dismissing fraud claim where documents withheld from plaintiff “contain nothing more than speculation, advertising puffery and the defendants’ hopes for the future of the company”); Simon v. Cunard Line Ltd., 75 A.D.2d 283, 288, 428 N.Y.S.2d 952, 955 (1st Dep’t 1980) (representation that the QEII was “the greatest ship in the world” was “mere puffing and not actionable”). In contrast, the second of the three statements involves McKelvey’s alleged misrepresentation as to the present condition of defendant PJI’s finances and operations. As such, this statement is not mere puffery. It is actionable as fraud. See e.g., Cohen v. Koenig, 25 F.3d 1168, 1172 (2d Cir.1994) (stating that under New York law, defendant’s alleged intentional overstatements of its net income and the value of its current and capital assets were actionable as fraud); Channel Master Corp. v. Aluminim Ltd. Sales, 4 N.Y.2d 403, 407, 176 N.Y.S.2d 259, 262, 151 N.E.2d 833 (1958) (holding that defendant’s allegedly false statement that it had the capacity to sell to plaintiff 400,000 pounds of aluminum was actionable as fraud). The cases cited by the defendants to support their puffery argument all" }, { "docid": "4851006", "title": "", "text": "N.Y.S.2d 929 (1st Dep’t 1969). . N.B. Garments (PVT.) Ltd. v. Kids Int’l Corp., No. 03 Civ. 8041(HB), 2004 WL 444555, at *3 (S.D.N.Y. Mar. 10, 2004) (citing Eaton, Cole & Burnham Co. v. Avery, 83 N.Y. 31, 33-34 (1880) (third party reliance is sufficient to sustain a cause of action for common law fraud), Rice v. Manley, 66 N.Y. 82, 87 (1876) (same), and Bruff v. Mali, 36 N.Y. 200, 205-206 (1867) (same)). . Levesque v. Kelly Commc'ns, Inc., No. 91 Civ. 7045(CSH), 1993 WL 22113, at *6 (S.D.N.Y. Jan. 25, 1993). . N.B. Garments, 2004 WL 444555, at *3. . Compare Litvinov v. Hodson, 74 A.D.3d 1884, 1885, 905 N.Y.S.2d 400, 401 (4th Dep't 2010) (\"fraud may be found where a false representation is made to a third party, resulting in injury to the plaintiff”) (internal quotation marks and citation omitted); Ruffing v. Union Carbide Corp., 308 A.D.2d 526, 528, 764 N.Y.S.2d 462, 465 (2d Dep’t 2003) (same); Buxton Mfg. Co. v. Valiant Moving & Stor., Inc., 239 A.D.2d 452, 657 N.Y.S.2d 450 (2d Dep’t 1997) (same); Desser v. Schatz, 182 A.D.2d 478, 581 N.Y.S.2d 796 (1st Dep’t 1992) (same), with Garelick, 141 A.D.2d at 502, 529 N.Y.S.2d at 128 (“complaint must set forth all of the elements of fraud including the making of material representations by the defendant to the plaintiff”); Escoett, 31 A.D.2d at 791, 296 N.Y.S.2d at 929. . Litvinov, 74 A.D.3d at 1885, 905 N.Y.S.2d at 401; Ruffing, 308 A.D.2d at 528, 764 N.Y.S.2d at 465. . See, e.g., Cohen v. Davis, 926 F.Supp. 399, 403-04 (S.D.N.Y.1996) (denying motion to dismiss tortious interference with contract claim where plaintiff alleged that she was terminated because others relied on false statements about her). . N.B. Garments, 2004 WL 444555, at *3. . See, e.g., Chung v. Wang, 79 A.D.3d 693, 694, 912 N.Y.S.2d 647, 648 (2d Dep’t 2010). . Thome v. Alexander & Louisa Calder Found., 70 A.D.3d 88, 108, 890 N.Y.S.2d 16, 30 (1st Dep’t 2009), leave to appeal denied, 15 N.Y.3d 703, 2010 WL 2572017 (2010). . Cpt. ¶ 397; see id. ¶¶ 396-402." }, { "docid": "23251563", "title": "", "text": "Inc. v. Lefrak Fifth Ave. Corp., 161 A.D.2d 264, 268, 555 N.Y.S.2d 293, 296 (1st Dep’t 1990) (“[T]he law is well settled that tor-tious interference with contract does not extend to a broker who is a stranger to the contract purportedly interfered with.”); Williamson, Picket, Gross, Inc. v. 100 Park Ave. Co., 63 A.D.2d 880, 881, 405 N.Y.S.2d 709, 711 (1st Dep’t 1978) (holding that a broker could not state a claim for tortious interference against a landlord on the basis of the landlord’s efforts to prevent a sublessor from leasing to a subles-see, whom the plaintiff-broker represented, on the ground that “[i]f there was actionable interference it was directed against the proposed sublease, not the brokerage agreement”); I.R.V. Merchandising Corp. v. Jay Ward Prods., 856 F.Supp. 168, 174 (S.D.N.Y.1994) (“As a matter of law, the relationship between [the plaintiff] and prospective licensees cannot be construed as the sort of contractual business relationship protected by the tort of interference with prospective economic advantage. [The plaintiff] has failed to allege any relationship with these licensees other than acting solely as the agent for [the defendant].”). Nevertheless, ITTC argues that its business is so intertwined with that of Kir- chGroup that the defendants’ conduct directly interfered with its business as well. It relies mainly on Brown v. AXA RE., 2004 WL 941959, 2004 U.S. Dist. LEXIS 7624 (S.D.N.Y. May 3, 2004), and TVT Records v. Island Def Jam Music Group, 279 F.Supp.2d 366 (S.D.N.Y.2003), rev’d on other grounds, 412 F.3d 82 (2d Cir.2005). Both of these cases dealt with business relationships far closer than that between KirchGroup and ITTC. In Brown, the court concluded that even though their names did not appear on the face of the contract, two film producers who had negotiated with an insurance company to finance the production of their film had a cause of action for tortious interference against the insurance company for breaching the contract guaranteeing such financing. Brown, 2004 WL 941959, at *7, 2004 U.S. Dist. LEXIS 7624, at *20-*21. Similarly, in TVT, the court found that a wholly owned subsidiary of a company whose" } ]

[ { "docid": "14784965", "title": "", "text": "ordinary course of business exception is designed to serve. The rationale used in Stober v. Florida Steel Corp. (In re Industrial Supply Corp.) and Leake v. Nicol (In re Matters), supra, is better suited to this case. Therefore, the touchstone for decision is the payment history between the parties and the timing of payments both prior to and during the preference period. The facts of this case show that payments prior to the preference period were made an average of 54.38 days after the date of the invoice. During the preference period payments were made an average of 67.18 days after the date of the invoice. If timeliness of payments is determined solely on the basis of comparison of average days before and during the preference period, the difference in this case is not so significant as to defeat the ordinariness of all the payments. The evidence in this case reflects a time range consistent with other case law that indicates that a narrow band of difference is acceptable. See Industrial Supply Corp., supra; Warren v. Society Corp. (In re Perks), 134 B.R. 627, 632 (Bankr.S.D. Ohio 1991) (payments during the preference period made 10 to 20 days late were ordinary when compared with pre-preference period payments made 9 to 20 days late); Sprowl v. Miami Valley Broadcasting Corp. (In re Federated Marketing, Inc.), 123 B.R. 265 (Bankr.S.D. Ohio 1991) (payments during preference period made 79 to 101 days after invoice not in ordinary course when compared to pre-preference period payments made 33 to 46 days after invoice). However, an analysis of individual payments shows that there were four payments that do not appear ordinary because they deviate substantially from the average both before and during the preference period. Of the last three payments made during the preference period, check number 5798, honored July 26, 1988, was 26 days after the date of the invoice. The other two, cheek numbers 5953 and 5954, both honored September 7, 1988, were 119 days after the date of the invoice. See Joint Exs. 15, 17, 18, 31, 32, and 34. These payments are" } ]

[ { "docid": "16815228", "title": "", "text": "B.R. 127, 132 (8th Cir. BAP 2002)). In comparing the conduct of the debtor and creditor during the preference period with that of the pre-preference period, litigants and courts frequently focus on what may be characterized as “timing” issues: comparing the timing of the transfers in the pre-preference period to those in the preference period. See, e.g., Archway Cookies, 435 B.R. at 240. If a preference payment was paid late or behind schedule, that fact alone is insufficient to definitively prove that the payment was outside of the ordinary course of business. See In re Forklift LP Corp., 340 B.R. 735, 739 (D.Del.2006). Late payments may be ordinary between the parties if “the defendant can demonstrate that such payments were ordinarily made and accepted by the parties.” Quad Systems, 2003 WL 25947345, at *7 (citation omitted); accord In re Elrod Holdings Corp., 426 B.R. 106, 111 (Bankr.D.Del.2010); see also Laclede Steel, 271 B.R. at 133 (“late payments may be ordinary between the parties, and, thus, consistent with prior practice, [but to be in the ordinary course,] the payments during the preference period must fall within the normal range of lateness”). When there are differences in the timing of the payments made during the preference period as compared to the pre-preference period, determining whether that difference is substantial enough to be considered outside of the ordinary course of business is a fact-specific inquiry. E.g., J.P. Fyfe, Inc. of Florida v. Bradco Supply Corp., 891 F.2d 66, 70 (3d Cir.1989). In analyzing the timing of payments, the receipt date by the creditor (delivery date) is controlling, and not the date the preference period checks “cleared” the bank account of the transfer- or. See, e.g., American Home Mortg., 476 B.R. at 137-38 (citations omitted). 2. In this case, the entire history between the Debtor and Starnet involved just seven (7) transfers over a period of eight (8) months prior to the filing of the bankruptcy petition. During that time, the Debtor made five (5) payments in the pre-preference period and two (2) payments during the preference period. Thus, the relationship between the Debtor" }, { "docid": "4659134", "title": "", "text": "judgment for the moving party.” Ralar, supra, at 67. B. Ordinary course of business Even absent the prior conclusion, I would find that the payments are not avoidable. The so-called “ordinary course” rule is found in 11 U.S.C. § 547(c)(2): “(c) The trustee may not avoid under this section a transfer— (2) to the extent that such transfer was— (A) in payment of a debt incurred by the debtor in the ordinary course of business or financial affairs of the debtor and the transferee; (B) made in the ordinary course of business or financial affairs of the debtor and the transferee; and (C) made according to ordinary business terms” 1. Debt incurred in ordinary course There is no issue raised in this regard. The debts in controversy were incurred under a contract which antedated the periods in question by several years and established the course of dealings between the parties. Findings ¶ 3. 2. Payment made in ordinary course The purpose of this element of the exception is to leave normal financial relations undisturbed because an otherwise preferential transfer made in the ordinary course of business does not detract from the general policy of § 547(b) of discouraging unusual action by the debtor or its creditors during the debtor’s slide into bankruptcy. Branch v. Ropes & Gray (In re Bank of New England Corp.), 161 B.R. 657, 559 (Bankr.D.Mass.1993), citing WJM, Inc. v. Massachusetts Department of Welfare, 840 F.2d 996, 1010 (1st Cir.1988). It is invoked by demonstrating that the payment was ordinary in relation to the past practices between the debtor and the particular creditor. Id. A primary measure of “ordinary course” is the time between invoicing and payment in the dealings between the parties on a historical basis. During the pre-preference period the average time of payment was 40 days, with a range of 3 to 366 days. Findings ¶ 7. During the preference period the average was 43.46 days, with a range of 22 to 79 days. Findings ¶& In Ropes & Gray I adopted the approach that one should take a “holistic view of the parties’" }, { "docid": "13179968", "title": "", "text": "2006 and continued through the Petition Date (October 6, 2008). The evidence supports that there were 107 payments in the Historical Period and 10 payments in the Preference Period. . Patterson Dec. at ¶ 14. . Patterson Dec. at ¶ 20 and Troisio Dec. at ¶ 26. See Fonda Group v. Marcus Travel (In re Fonda Group), 108 B.R. 956, 961 (Bankr.D.N.J.1989) (holding that a payment made by certified check rather than the customary regular check was outside the ordinary course of dealings between the parties). . Radnor Holdings Corp. v. PPT Consulting, LLC (In re Radnor Holdings Corp.), Case No. 06-10894, 2009 WL 2004226, *5, 2009 Bankr.LEXIS 1815, *14 (Bankr.D.Del. July 9, 2009) . Id., 2009 WL 2004226, *5-6, 2009 Bankr.LEXIS 1815 at *14-15; Ice Cream Liquidation, Inc. v. Fabricon Products, Inc. (In re Ice Cream Liquidation, Inc.), Adv. Pro. No. 03-3175, 2005 WL 976935, 2005 Bankr.LEXIS 704 (Bankr.D.Conn.2005) (holding that a five day discrepancy between average days outstanding during the pre-preference period versus during the preference period did not make the payments out of the ordinary course of business); Huffman v. New Jersey Steel Corp. (In re Valley Steel Corp.), 182 B.R. 728 (Bankr.W.D.Va.1995) (holding that a difference between approximately 54 days pre-pref-erence average days to payment and approximately 67 days preference average days to payment did not make the payments out of the ordinary course of business); Branch v. Ropes & Gray (In re Bank of New England Corp.), 161 B.R. 557 (Bankr.D.Mass.1993) (holding that a difference between 38.4 days pre-preference average number of days to payment and 54.7 days preference average number of days to payment did not make the payments out of the ordinary course of business). . See, e.g., Radnor Holdings Corp. v. PPT Consulting, LLC (In re Radnor Holdings Corp.), Case No. 06-10894, 2009 WL 2004226, *6, 2009 Bankr.LEXIS 1815, at *15 (Bankr.D.Del. July 9, 2009) (holding that the average number of days to payment nearly doubled between the historical period and the preference period, which based on the facts of that particular case, made the payments outside the ordinary course of dealings" }, { "docid": "19224078", "title": "", "text": "to continue dealing with a distressed debtor so as to kindle its chances of survival without a costly detour through, or a humbling ending in, the sticky web of bankruptcy.” In re Molded Acoustical Products, Inc., 18 F.3d at 219. Whether a transfer was made in the ordinary course of business is a subjective inquiry “calling for the Court to consider whether the transfer was ordinary between the debtor and the creditor.” United States Trustee v. First Jersey Securities, Inc. (In re First Jersey Securities, Inc.), 180 F.3d 504, 512 (3d Cir.1999). An important indicator to determine ordinary course of business is whether the timing of preference period payments was consistent with the timing of payments during the pre-preference period. Cunningham v. T & R Demolition, Inc. (In re ML & Associates, Inc.), 301 B.R. 195, 204 (Bankr.N.D.Texas 2003). When there is a difference between pre-preference and preference period payment times, determining whether that difference is substantial enough to be considered outside of the ordinary course of business is a very fact-specific inquiry. J.P. Fyfe, Inc. of Florida v. Bradco Supply Corp., 891 F.2d 66, 70 (3d Cir.1989) (reasoning that “[w]hether or not a debtor made a particular payment in the ordinary course of business is a factual determination!)]”). In the instant proceeding, the Trustee conceded that payments made within 40 to 60 days from the date of invoice were made within the ordinary course of business and, therefore, not avoidable under § 547(b). The Defendant contends that the 40 to 60 day payment range is too narrow and that payments made by the Debtor within 30 to 70 days from the date of the invoice are within the ordinary course of business of the parties. The Court agrees with the Defendant on this issue. During the Historical Period, only 31 out of 93 payments, which is only 33% or 1/3 of the payments, were made in the 40 to 60 day range used by the Trustee. In contrast, 74 out of 93 of the payments which is equivalent to 80% of the payments, were made in the 30 to" }, { "docid": "4659135", "title": "", "text": "an otherwise preferential transfer made in the ordinary course of business does not detract from the general policy of § 547(b) of discouraging unusual action by the debtor or its creditors during the debtor’s slide into bankruptcy. Branch v. Ropes & Gray (In re Bank of New England Corp.), 161 B.R. 657, 559 (Bankr.D.Mass.1993), citing WJM, Inc. v. Massachusetts Department of Welfare, 840 F.2d 996, 1010 (1st Cir.1988). It is invoked by demonstrating that the payment was ordinary in relation to the past practices between the debtor and the particular creditor. Id. A primary measure of “ordinary course” is the time between invoicing and payment in the dealings between the parties on a historical basis. During the pre-preference period the average time of payment was 40 days, with a range of 3 to 366 days. Findings ¶ 7. During the preference period the average was 43.46 days, with a range of 22 to 79 days. Findings ¶& In Ropes & Gray I adopted the approach that one should take a “holistic view of the parties’ ordinary business conduct.” 161 B.R. at 561. Branch argues here, as he did in Ropes & Gray, that the periods should be subdivided for determination of the relevant gap period. I decline once again to start down that slippery slope, for there are more ways to subdivide a time period than to skin a cat, and I know of no standards for differentiating the meaningful from the meaningless. The appropriate determination is to treat the periods as a whole. I find that the difference between 40 days and 43.46 days is not significant for the present purpose, and that the payments were made in the ordinary course of the dealings of the parties. 3. Payment in accordance with ordinary business terms The most reasonable construction of this element is that the test is an objective one of industry standards — what is ordinary in the trade or business in which the creditor and debtor operate. In re Narragansett Clothing Co., 146 B.R. 609, 611 (Bankr.D.R.I.1992). Given the facts before me, I need not consider the" }, { "docid": "16815234", "title": "", "text": "finding that the payments were out of the ordinary course. Each monthly payment was due the first of the month, but the Debtor never sent the check in a timely manner. Starnet routinely received the checks between one (1) to three (3) weeks after the “so-called payment date.” In the pre-preference period, the lag time between due date and receipt of payment ranged from nine (9) to twenty-two (22) days, with an average fifteen (15) days between due date and receipt. Thus, while there was some inconsistency in the degree of “lateness” of the pre-preference period payments, each payment was made and received within twenty-two (22) days of the due date. The payments made within the preference period were received twenty-one (21) and seventeen (17) days after their due date, within three (3) weeks after their due date and, on average, nineteen (19) days after the due date. This amounts to a four (4) day difference in the average lag between the due date and receipt in comparing the payments in the preference period to the pre-preference period. This difference does not warrant avoidance of the two (2) transfers at issue. See, e.g., In re American Camshaft Specialties, Inc., 444 B.R. 347 (Bankr.E.D.Mich.2011) (finding that payments received on average four (4) days later than had previously been during pre-preference period was insignificant in upholding the ordinary course defense); In re Julien Co., 157 B.R. 834, 841 (Bankr.W.D.Tenn.1993) (finding defense where there was a “three to four day swing in the average number of days between invoice and payment” between pre-preference and preference periods). In summary, Debtor and Starnet’s relationship, while short-lived, was “relaxed.” The Debtor did not strictly adhere to the due date of the parties’ agreement and Starnet appears to have acquiesced. Each payment made by the Debtor to Starnet, both before the preference period was received within twenty-two (22) days of the due date. This established a pattern of dealing between the parties and a consistency between the pre-preference period and preference period payments. Absent any additional red flags (and there are none in the summary judgment record)," }, { "docid": "16815227", "title": "", "text": "292 B.R. 68, 79 (Bankr.W.D.Pa.2003). Courts have relied upon the following hallmark factors in making this evaluation: (1) the length of time the parties have engaged in the type of dealing at issue; (2) whether the subject transfer was in an amount more than usually paid; (3) whether the payments were tendered in a manner different from previous payments; (4) whether there appears any unusual action by either the debtor or creditor to collect or pay on the debt; (5) whether the creditor did anything to gain an advantage (such as gain additional security) in light of the debt- or’s deteriorating financial condition. See, e.g., In re American Home Mortg. Holdings, Inc. 476 B.R. 124, 135-36 (Bankr.D.Del.2012); In re Pure Weight Loss, Inc., 446 B.R. 197, 205 (Bankr.E.D.Pa.2009) (citing authorities). “[A]ny significant alteration in any one of the factors may be sufficient to conclude that a payment was made outside the ordinary course of business.” In re Furr’s Supermarkets, Inc., 373 B.R. 691, 706 (10th Cir. BAP 2007) (quoting In re Laclede Steel Co., 271 B.R. 127, 132 (8th Cir. BAP 2002)). In comparing the conduct of the debtor and creditor during the preference period with that of the pre-preference period, litigants and courts frequently focus on what may be characterized as “timing” issues: comparing the timing of the transfers in the pre-preference period to those in the preference period. See, e.g., Archway Cookies, 435 B.R. at 240. If a preference payment was paid late or behind schedule, that fact alone is insufficient to definitively prove that the payment was outside of the ordinary course of business. See In re Forklift LP Corp., 340 B.R. 735, 739 (D.Del.2006). Late payments may be ordinary between the parties if “the defendant can demonstrate that such payments were ordinarily made and accepted by the parties.” Quad Systems, 2003 WL 25947345, at *7 (citation omitted); accord In re Elrod Holdings Corp., 426 B.R. 106, 111 (Bankr.D.Del.2010); see also Laclede Steel, 271 B.R. at 133 (“late payments may be ordinary between the parties, and, thus, consistent with prior practice, [but to be in the ordinary" }, { "docid": "4575126", "title": "", "text": "BANKRUPTCY ¶ 504.04[2][ii], at 547-55 (16th ed. 2010) (“COLLIER”)). In determining whether a transfer satisfies the requirements of Section 547(c)(2)(A), courts examine several factors including “(i) the prior course of dealing between the parties, (ii) the amount of the payment, (iii) the timing of the payment, (iv) the circumstances of the payment, (v) the presence of unusual debt collection practices, and (vi) changes in the means of payment.” Buchwald Capital Advisors LLC v. Metl-Span I., Ltd. (In re Pameco Corp.), 356 B.R. 327, 340 (Bankr.S.D.N.Y.2006); Official Comm. of Unsecured Creditors of 360networks (USA) Inc. v. U.S. Relocation Servs. (In re 360networks (USA) Inc.), 338 B.R. 194, 210 (Bankr.S.D.N.Y.2005); see also Hassett v. Goetzmann (In re CIS Corp.), 195 B.R. 251, 258 (Bankr.S.D.N.Y.1996) (stating that the court typically examines several factors including the prior course of dealing between the parties, the amount of the payment, the timing .of the payment, and the circumstances surrounding the payment). The creditor must establish a “baseline of dealings” between the parties in order to “enable the court to compare the payment practices during the preference period with the prior course of dealing.” In re Fabrikant & Sons, Inc., 2010 WL 4622449, at *3; Cassirer v. Herskowitz (In re Schick), 234 B.R. 337, 348 (Bankr.S.D.N.Y.1999). The creditor must “demonstrate some consistency with other business transactions between the debtor and the creditor.” In re Fabrikant & Sons, Inc., 2010 WL 4622449, at *3. “The starting point — and often ending point— involves consideration of the average time of payment after the issuance of the invoice during the pre-preference and post-preference periods, the so-called ‘average lateness’ computation theory.” Id. “To determine whether a late payment may still be considered ordinary between the parties, a court will normally compare the degree of lateness of each of the alleged preferences with the pattern of payments before the preference period to see if the alleged preferences fall within that pattern.” 5 COLLIER ¶ 504.04[2][ii], at 547-55. Generally, this involves a comparison of the average number of days between the invoice and payment dates during the pre-preference and preference periods. See In" }, { "docid": "13179969", "title": "", "text": "of the ordinary course of business); Huffman v. New Jersey Steel Corp. (In re Valley Steel Corp.), 182 B.R. 728 (Bankr.W.D.Va.1995) (holding that a difference between approximately 54 days pre-pref-erence average days to payment and approximately 67 days preference average days to payment did not make the payments out of the ordinary course of business); Branch v. Ropes & Gray (In re Bank of New England Corp.), 161 B.R. 557 (Bankr.D.Mass.1993) (holding that a difference between 38.4 days pre-preference average number of days to payment and 54.7 days preference average number of days to payment did not make the payments out of the ordinary course of business). . See, e.g., Radnor Holdings Corp. v. PPT Consulting, LLC (In re Radnor Holdings Corp.), Case No. 06-10894, 2009 WL 2004226, *6, 2009 Bankr.LEXIS 1815, at *15 (Bankr.D.Del. July 9, 2009) (holding that the average number of days to payment nearly doubled between the historical period and the preference period, which based on the facts of that particular case, made the payments outside the ordinary course of dealings between the plaintiff and defendant); Hunter v. Amerisource Corp. (In re Parkview Hospital), 213 B.R. 509, 516 (Bankr.N.D.Ohio 1997), aff'd, 181 F.3d 103, 1999 WL 313768 (6th Cir.1999) (holding that payments made 25 days after the average were within the ordinary course of dealings but payments made 50 days after the average were not). . Notably, before the March and April 2007 letter (18 months prior to the Petition Date) informing the Debtor that no further shipments would be made if the Debtor's account was not current, the Debtor made 30 payments to DFI, ranging from 28-127, with an average days-to-pay of 53.3. After the March and April 2007, the Debtors made 77 transfers to DFI, ranging from 21-91 days, with an average of 38 days-to-pay. . See generally Paterson Supp. Dec. . See generally Trisio Dec. . See Molded Acoustical, 18 F.3d at 224-25 (holdings that when a debtor-creditor relationship “has been cemented long before the onset of insolvency — we should pause and consider carefully before further impairing a creditor whose confident, consistent," }, { "docid": "5424489", "title": "", "text": "unnecessary; having one element focus subjectively on the transfer, while the other looks at it objectively is less confusing and leads to a clearer analysis. Id. at 123-24. In considering which transactions are “ordinary”, courts generally look at several factors including the timing, the amount and manner a transaction was paid and the circumstances under which the transfer was made. In re First Software Corp., 81 B.R. 211 (Bankr.D.Mass.1988); In re White, 58 B.R. 266 (Bankr.E.D.Tenn.1986); Matter of Ullman, 80 B.R. 101 (Bankr.S.D.Ohio 1987). If all the parties’ transactions are considered, i.e,, pre and post preference period, then an examination of the timing of this transaction as compared with others that the parties’ have engaged in the past reveals that the average amount of time between the invoice date and the date that Carrier received the payment was approximately 109 days. The transaction at issue was paid 113 days after invoice. One court has held that, in considering the prior relationship of the parties, the court should only consider those payments made outside the preference period because they were more indicative of the true “course of business” between the parties. In re First Software, 81 B.R. at 213. During the preference period, it is understandable that a debtor’s payments would become more extended. The Xonics court stated: Sunnyvale’s counsel suggested at argument that late payments made within the preference period could establish the ordinary course of business between the parties if as in this case insolvency occurred early in the parties’ relationship. We hesitate to agree, especially when the only evidence that late payments were within the ordinary course of business is that the debtor made such payments after he became insolvent. But see In re Mindy’s, Inc., 17 B.R. 177 (Bankr.S.D.Ohio 1982). Matter of Xonics Imaging, Inc., 837 F.2d at 767. If the first payment, which was 210 days to payment after delivery, is discarded as an aberration, as it appears it should be, then, excluding payments during the preference period, the average date from shipment to payment is eighty-five days. If the 210-day payment is included, but the" }, { "docid": "4575127", "title": "", "text": "payment practices during the preference period with the prior course of dealing.” In re Fabrikant & Sons, Inc., 2010 WL 4622449, at *3; Cassirer v. Herskowitz (In re Schick), 234 B.R. 337, 348 (Bankr.S.D.N.Y.1999). The creditor must “demonstrate some consistency with other business transactions between the debtor and the creditor.” In re Fabrikant & Sons, Inc., 2010 WL 4622449, at *3. “The starting point — and often ending point— involves consideration of the average time of payment after the issuance of the invoice during the pre-preference and post-preference periods, the so-called ‘average lateness’ computation theory.” Id. “To determine whether a late payment may still be considered ordinary between the parties, a court will normally compare the degree of lateness of each of the alleged preferences with the pattern of payments before the preference period to see if the alleged preferences fall within that pattern.” 5 COLLIER ¶ 504.04[2][ii], at 547-55. Generally, this involves a comparison of the average number of days between the invoice and payment dates during the pre-preference and preference periods. See In re Fabrikant & Sons, Inc., 2010 WL 4622449, at *4; Hassett v. Altai, Inc. (In re CIS Corp.), 214 B.R. 108, 120 (Bankr.S.D.N.Y.1997). C. Defendant’s Ordinary Course of Business Defense The Court must first determine the appropriate pre-preference time period to use in establishing a baseline of dealings between the parties. Plaintiffs analysis uses historical data for two years reaching back to October 2005, while Defendant’s analysis uses historical data for approximately one year reaching back to November 2006. The parties disagree as to the appropriate pre-preference data sufficient to establish a baseline of dealings between the parties. The Seventh Circuit in In re Tolo-na Pizza Prods. Corp. stated that the transfers at issue should “conform to the norm established by the debtor and creditor in the period before, preferably well before, the preference period.” 3 F.3d 1029, 1032 (7th Cir.1993). Numerous decisions support the view that the historical baseline should be based on a time frame when the debtor was financially healthy. See, e.g., In re Carled, Inc., 91 F.3d 811 (6th Cir.1996); In" }, { "docid": "5424490", "title": "", "text": "period because they were more indicative of the true “course of business” between the parties. In re First Software, 81 B.R. at 213. During the preference period, it is understandable that a debtor’s payments would become more extended. The Xonics court stated: Sunnyvale’s counsel suggested at argument that late payments made within the preference period could establish the ordinary course of business between the parties if as in this case insolvency occurred early in the parties’ relationship. We hesitate to agree, especially when the only evidence that late payments were within the ordinary course of business is that the debtor made such payments after he became insolvent. But see In re Mindy’s, Inc., 17 B.R. 177 (Bankr.S.D.Ohio 1982). Matter of Xonics Imaging, Inc., 837 F.2d at 767. If the first payment, which was 210 days to payment after delivery, is discarded as an aberration, as it appears it should be, then, excluding payments during the preference period, the average date from shipment to payment is eighty-five days. If the 210-day payment is included, but the preference period payment is still excluded, then the average days from shipment to payment is 93. Including the 210-day payment, in the prepreference period, then four of sixteen payments were paid in excess of one hundred days after shipment. During the preference period all ten of the payments were paid in a triple digit number. See Exhibit A attached. Where the parties have had a lengthy business history, as here, it appears that payments made during the preference period should be accorded little weight in the § 547(c)(2)(B) analysis. Except for the unusual collection activity discussion hereinafter, the Court finds that otherwise the creditor would have satisfied its burden under § 547(c)(2)(B). Excluding the 210-day aberration and the preference period payments, four of the remaining sixteen pre-preference period payments were made in periods of 100 to 135 days. It should be noted that there are limits in this area: The real problem is to determine if the parties’ past practice had reasonable and ascertainable boundaries. If so, and the transfers in question fell within them," }, { "docid": "645541", "title": "", "text": "in any unusual behavior to improve its position as compared to other creditors of the Debtor. The only support for Plaintiffs position with regard to § 547(c)(2)(B), therefore, appears to be the fact that invoices were paid later during the preference period than during the pre-preference period. This Court does not believe that the difference in this case is outside the normal range of activity between these parties during their business relationship. Plaintiffs Exhibit 4 shows that 20% of Debtor’s pre-preference period payments were more than 60 days late, as compared to only 8% of the payments during the preference period. While the late payments in the pre-preference period apparently were due to at least in major part to pricing discrepancies, such problems were not unusual, and there is no assurance that at least a portion of the payments during the preference period may have been occasioned by such problems. In any event, there is no sudden or substantial departure from normal and ordinary billing and payment procedures, and no payment during the preference period was more than 66 days late. According to Mr. Austin’s testimony, therefore, no payment by Debt- or to Defendant was as late as the payments of some 35% of Defendant’s other customers. Certainly, the payments were not so late as to even suggest any collection action or even an inquiry on the part of Defendant. Based upon the foregoing, this Court finds that Defendant has met its burden of establishing by a preponderance of the evidence that the payments in question here were made in the ordinary course of the business or financial affairs of Debtor and the Defendant, and that the requirements of § 547(c)(2)(B) are satisfied. The determination as to whether Defendant has met its burden under § 547(d)(2)(C) is objective: Were the payments made according to ordinary business terms? “ ‘[Ordinary business terms’ refers to the range of terms that encompasses the practices in which firms similar in some general way to the creditor in question engage, and only dealings so idiosyncratic as to fall outside that broad range should be deemed" }, { "docid": "16231415", "title": "", "text": "on the same day as its invoice, without any explanation. It also excludes a payment of $400, because it is not clear that it is a service fee. Therefore, the Plaintiff asserts that the payments during that time were 22' to 74 days late, as opposed to the preference period where payments were 11 to 80 days late. The Plaintiff contends that these late and early payments are outside the ordinary course of business. See, e.g., M Group, 308 B.R. at 702 (“although the payments in this case appear to routinely have been made late, they were made within a shorter time period during the preference period. Courts have held that early payments can be outside the ordinary course of business.”) (citations omitted). If the excluded payments are included, the range is 0 to 91 days compared to the alleged preference payments which were 11 to 80 days late. This would be within the ordinary course of the parties’ business. E.g., Official Unsecured Creditors’ Comm. v. Ford Motor Credit Co. (In re Ed Jefferson Contracting, Inc.), 224 B.R. 740, 745 (Bankr.E.D.Mo.1998) (while pre-pref-erence payments were irregular, they established that debtor routinely paid late). Until it can be determined which payments made in the pre-preference period were for service fees, the proper range to which the Court should compare the preference payments cannot be established. Thus, the Court cannot determine on this record that all the payments in question were made in the ordinary course of business between the parties. b. Objective test To establish the third element of the ordinary course defense, the objective test, the defendant must establish that the payments in question were made in the ordinary course of business in the parties’ industry. “[Ojrdinary business terms refers to the range of terms that encompasses the practices in which firms similar in some general way to the creditor in question engage, and that only dealings so unusual as to fall outside that broad range should be deemed extraordinary and therefore outside the scope of subsection C.” Big Wheel Holding Co. v. Fed. Wholesale Co. East (In re Big" }, { "docid": "3845450", "title": "", "text": "prior course of dealing between the parties, the court may look to the timing of the preferential payments as compared to the historical timing of payments prior to the preference period. In re Century Brass Products, Inc., 121 B.R. 136, 138 (Bankr.D.Conn.1990). If the preferential payments were made within the time period set by the historical pre-preference course of dealings, then the preference payments can be said to have been made within the ordinary course of business between the parties. Id.; In re Global Distrib. Network, Inc., 103 B.R. 949, 954 (Bankr.N.D.Ill.1989); Writing Sales, 96 B.R. at 181; First Software, 81 B.R. at 213-14; In re Xonics Imaging, Inc., 837 F.2d 763, 766 (7th Cir.1988). The unrefuted evidence presented in the Payment History Charts establish the historical payment schedules between CIS and Altai both prior to and during the preference period. Specifically, during the four months prior to the commencement of the preference period, CIS paid Altai, on average, fifty-one (51) days after the Due Date. During the preference period, the Payments were made, on average, eighty (80) days after the Due Date. This is not a trivial difference. CIS’s payments to Altai were made almost a month later during the preference period than they had been during the pre-preference period. Altai has offered no independent analysis of the invoices. Its contention is that the court should look to the range of payment dates in the past, not the average of payment dates, for determining the scope of what was ordinary between the parties. Altai points out that in the pre-preference period three invoices were paid at 112, 142 and 189 days respectively. Since this is far beyond the 51 day average during the pre-preference period, Altai argues that the preference period payments were consistent with prior late payments and thus in the ordinary course of business between the parties. The court disagrees. Three unusually late payments out of 102 do not establish a course of conduct. Moreover, the delay is sufficiently out of character that it could have been caused by any number of reasons, including a dispute over" }, { "docid": "15708928", "title": "", "text": "902, 904 (8th Cir.1998); Lovett v. St. Johnsbury Trucking, 931 F.2d 494, 497-98 (8th Cir.1991). Here, the evidence reflects that during the Pre-Preference Period, Debtors paid Application 56.68 days on average after the Invoice Date. Also, during the Pre-Preference Period, Debtors remitted only one of the payments within 40 days of the Invoice Date. During the Preference Period, however, Debtors’ payments to Ap plication averaged only 31.5 days after the Invoice Date. Also, Debtors remitted only one payment during the Preference Period, the first payment, after 40 days of the Invoice Date. This evidence strongly suggests an inconsistency between Debtors’ pattern of payment to Application during the Pre-Preference Period as compared to the Preference Period. Application maintains that although Debtors’ payment pattern to it may have changed during the Preference Period, the payments still fall within the scope of § 547(c)(2) for two reasons. First, Application maintains that because it did not undertake any unusual collection efforts during the Preference Period, Debtors made the Preference Payments in the ordinary course of business of both Debtors and Application. It is true that unusual collection efforts by a creditor during the preference period maybe evidence that the debtor did not make the payment in the ordinary course of business. See In re Laclede Steel Co., 271 B.R. at 132. However, even if there is no evidence of unusual collection efforts by the creditor, if there is a change in the timing and pattern of the payments during the preference period, then the payments were not made in the ordinary course of business between creditor and debtor under § 547(c)(2)(B). In re Spirit Holding Co., 153 F.3d at 905; In re Laclede Steel Co., 271 B.R. at 132. Application also argues that because it was typical for its other clients to remit payment to it on a more timely basis over time, the Preference Payments were in the ordinary course of business under § 547(c)(2)(B). However, any evidence as to the practice between Application and its other clients is relevant, if at all, only to whether the payments were made according to ordinary" }, { "docid": "6969814", "title": "", "text": "industry.”). The subjective inquiry first has courts determine whether the parties’ relationship “was of sufficient length to establish an ordinary course of dealing” and then compares the history of transfers before the preference period — the historical period — against those made during the preference period to determine if the transactions are sufficiently similar. Burtch v. Detroit Forming, Inc. (In re Archway Cookies), 435 B.R. 234, 243 (Bankr.D.Del.2010), aff'd sub nom. Burtch v. Detroit Forming, Inc. (In re Archway Cookies LLC), 511 B.R. 726 (D.Del.2013) (comparing “historical period” of approximately 20 months before the preference period with the preference period). Courts typically consider the following factors in making that determination: (1) how long the parties engaged in the type of dealing at issue, (2) whether the subject transfers were in an amount more than usually paid, (3) whether the payments were tendered in a manner different from previous payments, (4) whether there appears to have been an unusual action by the debtor or creditor to pay or collect on the debt, and (5) whether the creditor did anything to gain an advantage (such as take additional security) of the debtor’s deteriorating financial condition. Id. at 241-42. “In determining ordinary course of dealings between the parties, however, ‘[c]ourts place particular importance on the timing of payment.’ ” Id. at 243 (quoting Radnor Holdings Corp. v. PPT Consulting, LLC (In re Radnor Holdings Corp.), Adv. No. 08-51184, 2009 WL 2004226, at *5 (Bankr.D.Del. July 9, 2009)). The Third Circuit has held that a departure of 13 days from the industry average time to pay was not so unusual but that a departure of 44 days beyond the industry average was too extreme to constitute the ordinary course of business. In re Molded Acoustical Prods., Inc., 18 F.3d 217, 227 & 228 at n. 15 (3d Cir.1994) (adopting Seventh Circuit’s Tolona test with a minor change and holding that only transfers that are so “unusual” as to fall outside the broad range of ordinary business terms in the industry can be avoided as preferential); In re Tolona Pizza Prods. Corp., 3 F.3d 1029," }, { "docid": "16815229", "title": "", "text": "course,] the payments during the preference period must fall within the normal range of lateness”). When there are differences in the timing of the payments made during the preference period as compared to the pre-preference period, determining whether that difference is substantial enough to be considered outside of the ordinary course of business is a fact-specific inquiry. E.g., J.P. Fyfe, Inc. of Florida v. Bradco Supply Corp., 891 F.2d 66, 70 (3d Cir.1989). In analyzing the timing of payments, the receipt date by the creditor (delivery date) is controlling, and not the date the preference period checks “cleared” the bank account of the transfer- or. See, e.g., American Home Mortg., 476 B.R. at 137-38 (citations omitted). 2. In this case, the entire history between the Debtor and Starnet involved just seven (7) transfers over a period of eight (8) months prior to the filing of the bankruptcy petition. During that time, the Debtor made five (5) payments in the pre-preference period and two (2) payments during the preference period. Thus, the relationship between the Debtor and Starnet was relatively short-lived and there is only a small window of information from which to draw upon in order to ascertain whether there was a pattern of practice that establishes a “baseline of dealing.” That said, neither party contends that the history provides an inadequate baseline of dealing. I, too, conclude that the relatively short pre-preference period relationship does not preclude Starnet from establishing a sufficient baseline for the “ordinary course” defense under § 547(c)(2)(A). As discussed below, the transaction history is sufficient to demonstrate a general pattern of behavior in the Debtor-Starnet relationship and it is unnecessary to look to supplemental evidence in order to compare the payments made during the preference period with the pre-preference period transfers. 3. Not surprisingly, the parties focus on different factors in analyzing Starnet’s § 547(c)(2)(A) “ordinary course” defense. The Trustee emphasizes what he contends are discrepancies in the timing of the payments the Debtor made to Starnet in the course of their business relationship. He argues that while the five (5) pre-preference payments were issued" }, { "docid": "6969813", "title": "", "text": "Period”). (Ex. P-1328A; Tr. 2/4/14 at 178-79). The Defendants presented evidence that A & E PC provided $71,945.93 in services to the Debtor that has not been paid. (Ex. D-2166.) Only $17,642.61 represents services provided subsequent to the preferences. (See Exhibit C-3 attached hereto.) That new value reduces the transfers which may be avoided to $17,368.01. b. Ordinary Course of Business Defense The Defendants argue that the alleged preferential transfers remaining after application of the new value defense cannot be recovered because the payments were made in the ordinary course of business between the parties. 11 U.S.C. § 547(c)(2). The Defendants contend that the payments satisfy both the subjective and the objective tests for ordinary course of business transactions. See, e.g., Sass v. Vector Consulting, Inc. (In re Am. Home Mortg. Holdings, Inc.), 476 B.R. 124, 135, 140 (Bankr.D.Del.2012) (noting that the subjective test considers whether the payment was made according to the parties’ “normal payment practice” while the objective test considers whether the payment was made according to the “general norms within the creditor’s industry.”). The subjective inquiry first has courts determine whether the parties’ relationship “was of sufficient length to establish an ordinary course of dealing” and then compares the history of transfers before the preference period — the historical period — against those made during the preference period to determine if the transactions are sufficiently similar. Burtch v. Detroit Forming, Inc. (In re Archway Cookies), 435 B.R. 234, 243 (Bankr.D.Del.2010), aff'd sub nom. Burtch v. Detroit Forming, Inc. (In re Archway Cookies LLC), 511 B.R. 726 (D.Del.2013) (comparing “historical period” of approximately 20 months before the preference period with the preference period). Courts typically consider the following factors in making that determination: (1) how long the parties engaged in the type of dealing at issue, (2) whether the subject transfers were in an amount more than usually paid, (3) whether the payments were tendered in a manner different from previous payments, (4) whether there appears to have been an unusual action by the debtor or creditor to pay or collect on the debt, and (5) whether the" }, { "docid": "3845449", "title": "", "text": "been held that the court should examine several factors, including the prior course of dealing between the parties, the amount of the payments in question, the timing of the payments and the circumstances surrounding the payments. CIS, 195 B.R. at 258. To meet its burden, Altai must demonstrate that the transfers were both subjectively and objectively ordinary. Id. To be subjectively ordinary as between the parties implies some consistency with other business transactions between the debtor and the transferee. Id. To be objectively ordinary implies that the subject transfers fall “within the bounds of ordinary practice of others similarly situated” in the industry. In re Roblin, 78 F.3d at 41. Neither party disputes that the debt was incurred in the ordinary course of business. Therefore the court finds that Code § 547(c)(2)(A) has been satisfied. The Payments Were Not Subjectively Ordinary as Between the Parties The court first considers whether Altai has established that the Payments were made in the ordinary course between CIS and Altai as required by Code § 547(c)(2)(B). In reviewing the prior course of dealing between the parties, the court may look to the timing of the preferential payments as compared to the historical timing of payments prior to the preference period. In re Century Brass Products, Inc., 121 B.R. 136, 138 (Bankr.D.Conn.1990). If the preferential payments were made within the time period set by the historical pre-preference course of dealings, then the preference payments can be said to have been made within the ordinary course of business between the parties. Id.; In re Global Distrib. Network, Inc., 103 B.R. 949, 954 (Bankr.N.D.Ill.1989); Writing Sales, 96 B.R. at 181; First Software, 81 B.R. at 213-14; In re Xonics Imaging, Inc., 837 F.2d 763, 766 (7th Cir.1988). The unrefuted evidence presented in the Payment History Charts establish the historical payment schedules between CIS and Altai both prior to and during the preference period. Specifically, during the four months prior to the commencement of the preference period, CIS paid Altai, on average, fifty-one (51) days after the Due Date. During the preference period, the Payments were made, on" } ]

[ { "docid": "12006848", "title": "", "text": "information which supported Bennett’s claim. Their testimony was discredited by the government on the grounds that they had had limited opportunity to observe appellant, see p. 874, supra, and the jury may, as a result, have placed very great emphasis on the data provided by government psychiatrists. . United States v. Eichberg, 142 U.S.App.D.C. 110, 113, 439 F.2d 620, 623 (1971) (Bazelon, C. J., concurring); see United States v. Leazer, No. 24,799, 148 U.S.App.D.C. -, at -, 460 F.2d 864, at 869 (1972) (Bazelon, C. J., concurring). . Brief for appellant at 20. . Tr. at 224-225. . Contee v. United States, 133 U.S.App.D.C. 261, 262, 410 F.2d 249, 250 (1969), citing Holmes v. United States, 124 U.S.App.D.C. 152, 154, 363 F.2d 281, 283 (1966) . . See, e. g., Harried v. United States, 128 U.S.App.D.C. 330, 389 F.2d 281 (1967). But cf. United States v. Grimes, 137 U.S.App.D.C. 184, 186-188, 421 F.2d 1119, 1121-1123 (1969). . Bennett’s examination at St. Elizabeths was not carried out pursuant to § 4244, but under a similar provision in the District of Columbia Code, D.C.Code § 24r-301. While that section does not contain the same exclusionary rule embodied in § 4244, we have held that the § 4244 prohibition applies even where the commitment is carried out under § 24-301. See Edmonds v. United States, 104 U.S.App.D.C. 144, 147, 260 F.2d 474, 477 (1958) (en banc). See also Battle v. Cameron, 260 F.Supp. 804 (D.D.C.1966). . It could be argued, of course, that a defendant who lacks responsibility is not guilty, and therefore the “issue of guilt,” as that phrase is used in the statute, should be taken to embrace not only the merits but also the issue of sanity. The precise relationship between guilt and responsibility lias long been the subject of debate, however, and it is not clear that the issue of sanity does fall within the issue of guilt. See generally Louisell and Hazard, Insanity as a Defense: The Bifurcated Trial, 49 U.Calif.L.Rev. 805, 805-806 (1961). In any case, the evident purpose of § 4244 was to permit statements of" } ]

[ { "docid": "22065028", "title": "", "text": "the record does contain a substantial amount of evidence which could support the view that the act was very closely tied to the impairment. In my view, there are two theories which can explain our failure to reverse the conviction on the grounds that a reasonable man must have had a reasonable doubt about the defendant’s criminal responsibility. First, our deference to the jury’s resolution of this issue may be attributable to its special role in evaluating the defendant’s impairment in light of community concepts of blameworthiness, to determine whether that impairment makes it unjust to hold him responsible. See United States v. Eichberg, 142 U.S.App.D.C. 110, 114-115, 439 F.2d 620, 624-625 (1971) (Bazelon, C. J., concurring). But it becomes increasingly difficult to rely on that explanation in the face of this Court’s refusal to make the special function of the jury explicit in the jury instruction. And reliance on the jury’s special function seems dangerously misplaced in a case, such as this one, where the testimony on the only issue in dispute was phrased in such conelusory terms that expert domination is almost inevitable. If we will not take meaningful action to curtail domination by the experts, then we should not rely, in upholding the jury’s verdict, on the jury’s supposed ability to make a kind of judgment that it almost surely did not make. A second possible explanation for our refusal to set aside the verdict is that we have relaxed the standard of proof in responsibility cases. In fact, Congress enacted a statute in 1970 which purports to shift onto the defendant the burden of establishing insanity by a preponderance of the evidence. 24 D.C.Code § 301 (j). Under that standard one could reasonably conclude that the verdict should not be set aside. But the constitutional validity of the statute is open to very serious question. United States v. Trantham, 145 U.S.App.D.C. 113, 120, 448 F.2d 1036, 1043 (1971) (statement in support of rehearing en banc); United States v. Eichberg, 142 U.S.App.D.C. 110, 114, 439 F.2d 620, 624 (1971) (concurring opinion). See In re Winship, 397 U.S." }, { "docid": "4180487", "title": "", "text": "my view, “reasonable communication” to “focus the jury’s attention on the legal and moral aspects of criminal responsibility” is accomplished by telling the jury to “evaluate [the defendant’s] impairment in light of community standards of blameworthiness, to determine whether the . . . impairment makes it unjust to hold him responsible.” United States v. Eichberg, 142 U.S.App.D.C. at 115, 439 F.2d at 625 (concurring opinion) ; compare United States v. Brawner, at---,-of 153 U.S.App.D.C., at ---, 969 of 471 F.2d at 982-983; at---of 153 U.S.App.D.C., at 1030-1031 of 471 F.2d (separate opinion). Since our deference to the jury rests upon a recognition of its special role, plainly, there can be no rational justification for withholding from the jury information so vital to the proper exercise of that role. If we are afraid to tell the jury what is expected of them, the conclusion is all but inescapable that our reliance on the jury should be reconsidered. . The author of this opinion would, however, remand this case for the reasons stated in my dissent to today’s decision in United States v. Marshall, No. 23,436 (D.C.Cir. October 20, 1972). In the instant case, as in Marshall, the only issue effectively in dispute at trial was productivity. The product aspect of the Durham rule had been construed in a manner that permitted a distortion of the responsibility inquiry. It was for that reason that the court altered its formulation of the insanity defense in United States v. Brawner. I would accord to appellant, whose case was on direct appeal when Brawner was decided, the same treatment we afforded Brawner, a remand to the district court to determine whether there is a substantial possibility that appellant’s insanity defense might have prevailed under the new formulation. The majority of this panel, relying on the Brawner court’s holding that its alteration of the criminal responsibility test should be effective prospectively, rejects this approach. . See, e. g., Coffin v. Reichard, 143 F.2d 443 (6th Cir. 1944), cert. denied, 325 U.S. 887, 65 S.Ct. 1568, 89 L.Ed. 2001 (1945) ; Note, Developments in the Law: Federal" }, { "docid": "7409730", "title": "", "text": "temporary measure until his wife signed a note for the loan. Seheper had insufficient funds in the drawee bank to cover the check, although his credit standing would undoubtedly have enabled him to arrange a loan if the check had been presented. Unlike its predecessor, 18 U.S.C. § 656 does not mention intent to injure or defraud, but courts have generally recognized that this intent is an element of the crime of embezzlement. See, e. g., Seals v. United States, 221 F.2d 243 (8th Cir. 1955); Giragosian v. United States, 349 F.2d 166 (1st Cir. 1965); United States v. Schmidt, 471 F.2d 385 (3d Cir. 1972); accord, Johnson v. United States, 95 F.2d 813 (4th Cir. 1938) (former statute). Were it not necessary to prove such an intent, a bank employee could be convicted of embezzlement when he inadvertently made errors to the bank’s disadvantage. The purpose of the rule that the government must prove intent to injure or defraud is not to require the trial judge to recite those specific words to the jury but to assure that only those who consciously do wrong are convicted of the crime. As the Court stated in Morissette v. United States, 342 U.S. 246, 252, 72 S.Ct. 240, 244, 96 L.Ed. 288 (1952): “The unanimity with which [courts] have adhered to the central thought that wrongdoing must be conscious to be criminal is emphasized by the variety, disparity and confusion of their definitions of the requisite but elusive mental element. However, courts of various jurisdictions, and for the purposes of different offenses, have devised working formulae, if not scientific ones, for the instruction of juries around such terms as “felonious intent,” “criminal intent,” “malice aforethought,” “guilty knowledge,” “fraudulent intent,” “wilfulness,” “scienter,” to denote guilty knowledge, or “mens rea,” to signify an evil purpose or mental culpability. By use or combination of these various tokens, they have sought to protect those who were not blameworthy in mind from conviction of infamous common-law crimes.” The district judge defined embezzlement as “willfully to take, or convert to one’s own use the property of another, which" }, { "docid": "4180486", "title": "", "text": "Adams v. United States, 134 U.S.App.D.C. 137, 142, 413 F.2d 411, 416 (1969), quoting King v. United States, 125 U.S.App.D.C. 318, 324, 372 F.2d 383, 389 (1967). See also United States v. Eichberg, 142 U.S.App.D.C. 110, 439 F.2d 620 (1971). . No. 22,714 (1972) (en banc), at 153 U.S.App.D.C.-at-, 471 F.2d 969 at 982. The author of this opinion separately urged that it is necessary to “focus the jury’s attention on the legal and moral aspects of criminal responsibility, and to make clear why the determination of responsibility is entrusted to the jury and not the expert witnesses.” Brawner, at 1032 of 471 F.2d (separate opinion). I have long held the view that the trial courts have an obligation to explain to the jury its role. In Brawner, the court sought to cast its standard of criminal responsibility in “language . . . sufficiently in the common ken that its use in the courtroom . . . permits . reasonable . . . communication.” Brawner, at-, of 153 U.S.App.D.C., at 983 of 471 F.2d. In my view, “reasonable communication” to “focus the jury’s attention on the legal and moral aspects of criminal responsibility” is accomplished by telling the jury to “evaluate [the defendant’s] impairment in light of community standards of blameworthiness, to determine whether the . . . impairment makes it unjust to hold him responsible.” United States v. Eichberg, 142 U.S.App.D.C. at 115, 439 F.2d at 625 (concurring opinion) ; compare United States v. Brawner, at---,-of 153 U.S.App.D.C., at ---, 969 of 471 F.2d at 982-983; at---of 153 U.S.App.D.C., at 1030-1031 of 471 F.2d (separate opinion). Since our deference to the jury rests upon a recognition of its special role, plainly, there can be no rational justification for withholding from the jury information so vital to the proper exercise of that role. If we are afraid to tell the jury what is expected of them, the conclusion is all but inescapable that our reliance on the jury should be reconsidered. . The author of this opinion would, however, remand this case for the reasons stated in my dissent to" }, { "docid": "14754162", "title": "", "text": "Court could insure that its invocation would be spontaneous. And yet, far from requiring the exclusion of jurors who are aware of the power, the Court takes comfort in the fact that informal communication to the jury “generally convey [s] adequately enough the idea of prerogative, of freedom in an occasional case to depart from what the judge says.” Majority opinion at 1135. One cannot, it seems to me, have the argument both ways. If, as the Court appears to concede, awareness is preferable to ignorance, then I simply do not understand the justification for relying on a haphazard process of informal communication whose effectiveness is likely to depend, to a large extent, on whether or not any of the jurors are so well-educated and astute that they are able to receive the message. If the jury should know of its power to disregard the law, then the power should be explicitly described by instruction of the court or argument of counsel. My own view rests on the premise that nullification can and should serve an important function in the criminal process. I do not see it as a doctrine that exists only because we lack the power to punish jurors who refuse to enforce the law or to re-prosecute a defendant whose acquittal cannot be justified in the strict terms of law. The doctrine permits the jury to bring to bear on the criminal process a sense of fairness and particularized justice. The drafters of legal rules cannot anticipate and take account of every case where a defendant’s conduct is “unlawful” but not blameworthy, any more than they can draw a bold line to mark the boundary between an accident and negligence. It is the jury — as spokesman for the community’s sense of values — that must explore that subtle and elusive boundary. Admittedly, the concept of blameworthiness does not often receive explicit recognition in the criminal process. But it comes very close to breaking through the surface in cases where the responsibility defense is raised, see United States v. Brawner, 153 U.S.App.D.C. 1, at 62, 471 F.2d" }, { "docid": "22064983", "title": "", "text": "— and convinced juries-— that a mentally ill defendant should be convicted because his act was not the product of his illness. See United States v. Eichberg, 142 U.S.App.D.C. 110, 113, 439 F.2d 620, 628 (1971) (Bazelon, C. J., concurring). This development may have allayed the fears of some who expected Durham to produce a vast increase in the number of insanity acquittals. After all, it was only the productivity requirement that stood between the liberalized concept of mental illness and acquittal; insistence on a rigid, and often impossible, showing of causal connection was an obvious means of reining in the defense. But the primary drawback of the productivity requirement was not that it reduced the number of insanity acquittals, for it is extremely unlikely, in my opinion, that juries would have acquitted many more defendants if the product formulation had never been devised. The real difficulty was that the superficial simplicity of the productivity question made it seem susceptible of an unambiguous medical or scientific answer. As a consequence, jurors too often relied on the conclusions of the experts, failing to see that the “gravity of an impairment and its relevance to the acts charged are both questions of degree, which can only be resolved with reference to the community’s sense of when it is just to hold a man responsible for his act.” United States v. Eichberg, 142 U.S.App.D.C. 110, 113, 439 F.2d 620, 623 (1971) (concurring opinion). As I understand the Court’s opinion, the rationale for the switch from Durham-McDonald to ALI -McDonald can be summarized as follows: The primary flaw of our prior test was its emphasis on productivity, which permitted “undue dominance” by the expert witnesses who testified on the issue of responsibility. Majority opinion at 981. The remedy is not to depart from the product requirement (which would hardly be possible in any case since the requirement is an integral part of every responsibility test), but to depart from the product formulation. The ALI test retains the “core requirement” of productivity, in the sense that there must be a “meaningful relationship between the mental" }, { "docid": "14754164", "title": "", "text": "969, at 1030 (1972) (en banc)„ (separate opinion); United States v. Bennett, 148 U.S.App.D.C. 364, 368-370, 460 F.2d 872, 876-878 (1972); United States v. Eichberg, 142 U.S.App. D.C. 110, 113, 439 F.2d 620, 623 (1971) (concurring opinion), and it is implicit in every case where criminal sanctions are imposed. More than twenty-five years ago this Court recognized that “[o]ur collective conscience does not allow punishment where it cannot impose blame.” And the Supreme Court, in a well-known opinion by Justice Jackson, has pointed out that courts of various jurisdictions, and for the purposes of different offenses, have devised working formulae, if not scientific ones, for the instruction of juries around such terms as “felonious intent,” “criminal intent,” “malice aforethought,” “guilty knowledge,” “fraudulent intent,” “wilfulness,” “scienter,” to denote guilty knowledge, or “mens rea,” to signify an evil purpose or mental culpability. By use or combination of these various tokens, they have sought to protect those who were not blameworthy in mind from conviction of infamous common-law crimes. The very essence of the jury’s function is its role as spokesman for the community conscience in determining whether or not blame can be imposed. I do not see any reason to assume that jurors will make rampantly abusive use of their power. Trust in the jury is, after all, one of the cornerstones of our entire criminal jurisprudence, and if that trust is without foundation we must re-examine a great deal more than just the nullification doctrine. Nevertheless, some abuse can be anticipated. If a jury refuses to apply strictly the controlling principles of law, it may — in conflict with values shared by the larger community — convict a defendant because of prejudice against him, or acquit a defendant because of sympathy for him and prejudice against his victim. Our fear of unjust conviction is plainly understandable. But it is hard for me to see how a nullification instruction could enhance the likelihood of that result. The instruction would speak in terms of acquittal, not conviction, and it would provide no comfort to a juror determined to convict a defendant in defiance" }, { "docid": "22606434", "title": "", "text": "of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil. A relation between some mental element and punishment for a harmful act is almost as instinctive as the child’s familiar exculpatory “But I didn’t mean to,” and has afforded the rational basis for a tardy and unfinished substitution of deterrence and reformation in place of retaliation and vengeance as the motivation for public'prosecution. Unqualified acceptance of this doctrine by English common law in the Eighteenth Century was indicated by Black-stoned sweeping statement that to constitute any crime there must first be a “vicious will.” Common-law commentators of the Nineteenth Century early pronounced the same principle, although á few exceptions not relevant to. our presént problem came to be recognized. Crime,' as a compound concept, generally constituted only from concurrence of an evil-meaning mind with an evil-doing hand, was congenial to an intense individu alism and took deep and early root , in American soil. As the states codified the common law of crimes, even if their enactments were silent on the subject, their courts assumed that the omission did not signify disapproval of the principle but merely recognized that intent was so inherent in the idea of the offense that it required no statutory affirmation: Courts, with little hesitation or division, found an implication of the requirement as to offenses that were taken over from the common law. The unanimity with which they have adhered to the central thought that wrongdoing must be conscious to be criminal is emphasized by the variety, disparity and confusion of their definitions of the requisite but elusive mental element. However, courts of various jurisdictions, and for the purposes of different offenses, have devised working formulae, if not scientific ones, for the instruction of juries around such terms as “felonious intent,” “criminal intent,” “malice aforethought,” “guilty knowledge,” “fraudulent intent,” “wilfulness,” “scienter,” to denote guilty knowledge, or “mens^rea” to signify an evil purpose or mental culpability. By use or combination of these various tokens, they have sought to.protect those who" }, { "docid": "19644178", "title": "", "text": "most we can conclude from the language of Section 875(c)and its neighboring provisions is that Congress meant to proscribe a broad class of threats in Section 875(c), but did not identify what mental state, if any, a defendant must have to be convicted. In sum, neither Elonis nor the Government has identified any indication of a particular mental state requirement in the text of Section 875(c). B The fact that the statute does not specify any required mental state, however, does not mean that none exists. We have repeatedly held that \"mere omission from a criminal enactment of any mention of criminal intent\" should not be read \"as dispensing with it.\" Morissette v. United States,342 U.S. 246, 250, 72 S.Ct. 240, 96 L.Ed. 288 (1952). This rule of construction reflects the basic principle that \"wrongdoing must be conscious to be criminal.\" Id.,at 252, 72 S.Ct. 240.As Justice Jackson explained, this principle is \"as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil.\" Id.,at 250, 72 S.Ct. 240. The \"central thought\" is that a defendant must be \"blameworthy in mind\" before he can be found guilty, a concept courts have expressed over time through various terms such as mens rea,scienter, malice aforethought, guilty knowledge, and the like. Id., at 252, 72 S.Ct. 240; 1 W. LaFave, Substantive Criminal Law § 5.1, pp. 332-333 (2d ed. 2003). Although there are exceptions, the \"general rule\" is that a guilty mind is \"a necessary element in the indictment and proof of every crime.\" United States v. Balint,258 U.S. 250, 251, 42 S.Ct. 301, 66 L.Ed. 604 (1922). We therefore generally \"interpret [ ] criminal statutes to include broadly applicable scienter requirements, even where the statute by its terms does not contain them.\" United States v. X-Citement Video, Inc.,513 U.S. 64, 70, 115 S.Ct. 464, 130 L.Ed.2d 372 (1994). This is not to say that a defendant must know that his conduct is illegal before he may be found guilty. The familiar" }, { "docid": "204571", "title": "", "text": "and motivation of an accused who is not on the other side of the line under the Freeman test, is, by the judgment of experience, left to the jury to probe. The complexity of the fears and long-suppressed traumatic experiences of a lifetime is in the personality of all of us. All humankind is heir to defects of personality. To transmute the effect of instability, of undue reliance on another, of unrequited love, of sudden anger, of the host of attitudes and syndromes that are a part of daily living, into opinion evidence to the jury for exculpation or condemnation is to go beyond the boundaries of current knowledge. The shallower the conception the deeper runs the danger that the jury may be misled. See United States v. D’Anna, 450 F.2d 1201, 1204-05 (2 Cir. 1971). And cf. United States v. Brawner, 153 U.S.App.D.C. 1, 471 F.2d 969, 998-1002 (1972) (en banc) (mental condition of specific intent). In short, appellant asks ,us to go beyond the boundaries of conventional psychiatric opinion testimony. We think the testimony offered was not sufficiently grounded in scientific support to make us reach or, indeed, cross the present frontier of admissibility. On the instant appeal we need decide no more than that Judge Motley did not abuse her discretion in rejecting the opinion evidence. II. We turn then to the contention that the District Judge erred in charging the jury on the element of knowledge required under 18 U.S.C. § 1708, and that this constituted reversible error. In the circumstances we agree. The issue of knowledge was the only issue in dispute at appellant’s trial. In all cases involving the receipt or possession of stolen goods, the definition of the requisite “knowledge” that the goods were stolen, required for a conviction, makes the difference between guilt and innocence. The test is not a technical one requiring a grudging adherence to some abstract standard. The standard should always embrace the ultimate concept of mens rea. A negligent or a foolish person is not a criminal when criminal intent is an ingredient. On the other hand, the" }, { "docid": "22606435", "title": "", "text": "common law of crimes, even if their enactments were silent on the subject, their courts assumed that the omission did not signify disapproval of the principle but merely recognized that intent was so inherent in the idea of the offense that it required no statutory affirmation: Courts, with little hesitation or division, found an implication of the requirement as to offenses that were taken over from the common law. The unanimity with which they have adhered to the central thought that wrongdoing must be conscious to be criminal is emphasized by the variety, disparity and confusion of their definitions of the requisite but elusive mental element. However, courts of various jurisdictions, and for the purposes of different offenses, have devised working formulae, if not scientific ones, for the instruction of juries around such terms as “felonious intent,” “criminal intent,” “malice aforethought,” “guilty knowledge,” “fraudulent intent,” “wilfulness,” “scienter,” to denote guilty knowledge, or “mens^rea” to signify an evil purpose or mental culpability. By use or combination of these various tokens, they have sought to.protect those who were not blameworthy in mind from conviction of infamous common-law crimes. However, the Balint and Behrman offenses belbng to a category of another character, with very different antecedents and origins. The crimes there involved depend on no mental element but consist only of forbidden acts or omissions. This, while not expressed by the Court, is. made clear from examination of a century-old but accelerating tendency, discernible both here and in England, to call into existence new duties and crimes which disregard any ingredient of intent. The industrial revolution multiplied the- number of workmen exposed to injury from increasingly powerful and complex piechanisms, driven b.y freshly discovered sources of energy, requiring higher precautions by employers. Traffic of velocities, volumes, and varieties unheard of came to subject the wayfarer to intolerable casualty risks if owners and driv- - ers were not to obsérve new cares and uniformities of conduct. Congestion of cities and crowding of quarters called for health and welfare regulations undreamed of in simpler times. Wide distribution of goods became an instrument of wide distribution" }, { "docid": "4180485", "title": "", "text": "and the high quality of his service, it would obviously be highly desirable if counsel could continue to act on behalf of appellant in any future litigation. In short, we have no difficulty agreeing with counsel’s assertion that appellant is “in a legal no-man’s land, between the mentally ill who can be committed as civil patients and those who, having committed a crime, are found not criminally responsible. But he, too, should be given the benefit of whatever medical science can do for him, little though it apparently is.” Reply Brief at 11-12. We are convinced, however, that no remedy is available in this Court, and accordingly we affirm the conviction without resolving on the merits appellant’s claim under the eighth amendment. So ordered. . 22 D.C.Code 2901, 3202, 502, 3204. . The quotation is from an affidavit of appellant’s mother, prepared prior to trial to support the defense motion for a mental examination, which was introduced in evidence by agreement of the parties. Appellant’s mother elaborated on the affidavit in her oral testimony. . Adams v. United States, 134 U.S.App.D.C. 137, 142, 413 F.2d 411, 416 (1969), quoting King v. United States, 125 U.S.App.D.C. 318, 324, 372 F.2d 383, 389 (1967). See also United States v. Eichberg, 142 U.S.App.D.C. 110, 439 F.2d 620 (1971). . No. 22,714 (1972) (en banc), at 153 U.S.App.D.C.-at-, 471 F.2d 969 at 982. The author of this opinion separately urged that it is necessary to “focus the jury’s attention on the legal and moral aspects of criminal responsibility, and to make clear why the determination of responsibility is entrusted to the jury and not the expert witnesses.” Brawner, at 1032 of 471 F.2d (separate opinion). I have long held the view that the trial courts have an obligation to explain to the jury its role. In Brawner, the court sought to cast its standard of criminal responsibility in “language . . . sufficiently in the common ken that its use in the courtroom . . . permits . reasonable . . . communication.” Brawner, at-, of 153 U.S.App.D.C., at 983 of 471 F.2d. In" }, { "docid": "14754163", "title": "", "text": "an important function in the criminal process. I do not see it as a doctrine that exists only because we lack the power to punish jurors who refuse to enforce the law or to re-prosecute a defendant whose acquittal cannot be justified in the strict terms of law. The doctrine permits the jury to bring to bear on the criminal process a sense of fairness and particularized justice. The drafters of legal rules cannot anticipate and take account of every case where a defendant’s conduct is “unlawful” but not blameworthy, any more than they can draw a bold line to mark the boundary between an accident and negligence. It is the jury — as spokesman for the community’s sense of values — that must explore that subtle and elusive boundary. Admittedly, the concept of blameworthiness does not often receive explicit recognition in the criminal process. But it comes very close to breaking through the surface in cases where the responsibility defense is raised, see United States v. Brawner, 153 U.S.App.D.C. 1, at 62, 471 F.2d 969, at 1030 (1972) (en banc)„ (separate opinion); United States v. Bennett, 148 U.S.App.D.C. 364, 368-370, 460 F.2d 872, 876-878 (1972); United States v. Eichberg, 142 U.S.App. D.C. 110, 113, 439 F.2d 620, 623 (1971) (concurring opinion), and it is implicit in every case where criminal sanctions are imposed. More than twenty-five years ago this Court recognized that “[o]ur collective conscience does not allow punishment where it cannot impose blame.” And the Supreme Court, in a well-known opinion by Justice Jackson, has pointed out that courts of various jurisdictions, and for the purposes of different offenses, have devised working formulae, if not scientific ones, for the instruction of juries around such terms as “felonious intent,” “criminal intent,” “malice aforethought,” “guilty knowledge,” “fraudulent intent,” “wilfulness,” “scienter,” to denote guilty knowledge, or “mens rea,” to signify an evil purpose or mental culpability. By use or combination of these various tokens, they have sought to protect those who were not blameworthy in mind from conviction of infamous common-law crimes. The very essence of the jury’s function is its" }, { "docid": "22065058", "title": "", "text": ". United States v. Eichberg, 142 U.S.App.D.C. 110, 114-115, 439 F.2d 620, 624-625 (1971) (Bazelon, C. J., concurring) . . The Court continues with a quotation from Williams v. Florida, 399 U.S. 78, 100, 90 S.Ct. 1893, 1906, 26 L.Ed.2d 446 (1970), pointing out that the essential feature of a jury “lies in the interposition between the accused and his accuser of the commonsense judgment of a group of laymen, and in the community’s participation and shared responsibility that results from that group’s determination of guilt or innocence.” . Cf. Holloway v. United States, 80 U.S.App.D.C. 3, 4, 148 F.2d 665, 666 (1945) : “The application of these tests [McNaghten and irresistible impulse], however they are phrased, to a borderline case can be nothing more than a moral judgment that it is just or unjust to blame the defendant for what he did.” . Thus, it is distressing to find in the case at bar that the prosecutor and the court below seemed concerned with establishing that appellant’s epileptoid disorder may have been “physiological as over against mental.” The determination of criminal responsibility cannot turn on the outcome of a debate about whether epilepsy is a mental illness or a physical one. . Model Penal Code § 4.01, Comment at 159 (Tent.Draft No. 4, 1955) (emphasis added). See ALI Proceedings 206-20 (May 21, 1955) (unpublished). . In United States v. Alexander & Murdock, 152 U.S.App.D.C.-at---, 171 F.2d 923 at 960-965 (April 21, 1972), (separate opinion), I pointed out that changes in the reach of the responsibility defense could have important ramifications for the doctrine of civil commitment. If we diminish the class of persons who can be found criminally responsible, wo may produce a concomitant expansion in the class of persons who can be subjected to involuntary civil commitment. Adoption of a jury instruction like the minority ALI test would presumably not give rise to such an expansion since the test does not expand the category of persons who can be exculpated by a responsibility defense. It merely gives explicit recognition to the jury’s function in resolving a question of" }, { "docid": "22065034", "title": "", "text": "before us, where a “specific factual context” plainly exists, seems to me entirely inconsistent with the fair and efficient administration of justice. VII. CONCLUSION y This Court’s search for a new set of words to define the elusive concept of responsibility has a distinctly archaic quality. The arguments for and against the Durham wording, the wording of the majority and minority versions of the ALI test, and the wording of McDonald, were clearly articulated many years ago. What should by now be clear is that the problems of the responsibility defense cannot be resolved by adopting for the standard or the jury instruction any new formulation of words, The practical operation of the defense is primarily controlled by other factors, including the quality of counsel, the attitude of the trial judge, the ability of the expert witnesses, and the adequacy of the-pretrial mental examination. If the adoption of the ALI test produces some improvement in the quality of adjudication of the responsibility issue, that, of course, is all to the good. But we cannot allow our search for the perfect choice of words to deflect our attention from the far more important practical questions. For it is on those questions that the rationality and fairness of the responsibility defense will ultimately turn. . Our far-ranging experience with the responsibility defense has led me in recent years to urge fundamental changes in the defense. See United States v. Alexander & Murdock, 152 U.S.App.D.C.-, 471 F.2d 923 (April 21, 1972) (separate opinion) ; United States v. Leazer, 148 U.S.App.D.C. 356, 460 F.2d 864 (Jan. 19, 1972) (concurring opinion) ; United States v. Trantham, 145 U.S.App.D.C. 113, 448 F.2d 1036 (1971) (statement in support of rehearing en banc) ; United States v. Eichberg, 142 U.S.App.D.C. 110, 439 F.2d 620 (1971) (concurring opinion). . Prior to our decision in Durham, the test of criminal responsibility in this jurisdiction was the rule established in M’Naghten’s Case, 8 Eng.Rep. 718 (1843), joined with the so-called irresistible impulse test. See Smith v. United States, 59 App.D.C. 144, 36 F.2d 548 (1929). . McDonald defined mental disease in" }, { "docid": "20086067", "title": "", "text": "degree. A consideration of the defendant’s motion involves three aspects: first, the precise issue of fact relating to mental competency to be determined by the jury; second, the evidence in this case bearing on this issue; and, third, procedural problems. Modern penal law is founded on moral culpability. The law punishes a person for a criminal act only if he is morally responsible for it. To do otherwise would be both inhumane and unenlightened. As was said in Holloway v. United States, 80 U.S.App.D.C. 3, 5, 148 F.2d 665, 666, “Our collective conscience does not allow punishment where it cannot impose blame.” It is this fundamental principle that exempts from punishment certain types of insane criminals. A difficult problem invariably arises in endeavoring to formulate a sound, practical definition of legal insanity. Obviously there are many mentally abnormal, subnormal, or defective persons, who should be held responsible for a crime that they commit. For example, a person with a psychopathic personality, or, to use a more recent scientific term, a person with a sociopathic personality, is subject to punishment for his criminal acts, and yet he is not a normal person. So, too, there may be mentally abnormal persons who may be deemed culpable in the case of some crimes, but not in respect to others. Again, insane persons may have lucid intervals, as well as what are called technically “periods of remission”, that is periods during which their sanity is temporarily restored and, naturally, they should be considered punishable for a crime committed during those times. The perennial task of devising a definition or a series of definitions of legal insanity that would properly differentiate between those mentally abnormal persons who should he held responsible for their crimes and those who should not be considered blameworthy, is manifestly no easy or simple matter. First, a line of demarcation must be drawn where it would attain a proper balance between the needs of protection of the public, and fairness and justice to the accused. We must take as our guiding star the celebrated precept so aptly framed by Mr. Justice" }, { "docid": "22065035", "title": "", "text": "our search for the perfect choice of words to deflect our attention from the far more important practical questions. For it is on those questions that the rationality and fairness of the responsibility defense will ultimately turn. . Our far-ranging experience with the responsibility defense has led me in recent years to urge fundamental changes in the defense. See United States v. Alexander & Murdock, 152 U.S.App.D.C.-, 471 F.2d 923 (April 21, 1972) (separate opinion) ; United States v. Leazer, 148 U.S.App.D.C. 356, 460 F.2d 864 (Jan. 19, 1972) (concurring opinion) ; United States v. Trantham, 145 U.S.App.D.C. 113, 448 F.2d 1036 (1971) (statement in support of rehearing en banc) ; United States v. Eichberg, 142 U.S.App.D.C. 110, 439 F.2d 620 (1971) (concurring opinion). . Prior to our decision in Durham, the test of criminal responsibility in this jurisdiction was the rule established in M’Naghten’s Case, 8 Eng.Rep. 718 (1843), joined with the so-called irresistible impulse test. See Smith v. United States, 59 App.D.C. 144, 36 F.2d 548 (1929). . McDonald defined mental disease in legal terms as “any abnormal condition of the mind which substantially affects mental or emotional processes and substantially impairs behavior controls.” 114 U.S.App. at 124, 312 F.2d at 851. . To be sure, the Court’s decision does have the important intention of abolishing the unnecessary and misleading emphasis on productivity that has characterized tiie adjudication of the responsibility issue in this jurisdiction. But see pages 1022-1027, infra. . Cf. United States v. Carter, 141 U.S.App.D.C. 46, 56, 436 F.2d 200, 210 (1970) (concurring opinion) : “It may well be that we simply lack the resources — to say nothing of the understanding — that would be required if those who stole to feed their addiction were removed from the criminal process on the ground that they are not responsible for their actions. But if this is so, we should recognize the fact, and not rationalize our treatment of narcotics addicts on the false premise that their crimes are the result of a wrongful exercise of free will.” . D.C.Code § 24-301(a) (Supp. V 1972) ;" }, { "docid": "22064919", "title": "", "text": "moral, legal, and medical judgments — it will require an unusually strong showing to induce us to reverse a conviction because the judge left the critical issue of responsibility with the jury.” Holloway v. United States, 80 U.S.App. D.C. 3, 4, 148 F.2d 665, 666 (1945) : “Legal tests of criminal insanity are not and cannot be the result of scientific analysis or objective judgment. They must be based on the instinctive sense of justice of ordinary men. This sense of justice assumes that there is a faculty called reason which is separate and apart from instinct, emotion, and impulse, that enables' an individual to distinguish between right and wrong and endows him with moral responsibility for his acts. . . . Our collective conscience does not allow punishment where it cannot impose blame.” Sauer v. United States, 241 F.2d 640, 649 (9th Cir. 1957), quoting Holloway, refers to the court’s “awareness that the jury will eventually exercise a moral judgment as to the sanity of the accused.” United States v. Wilson, 399 F.2d 459, 463 (4th Cir. 1968) : “There is enough doubt about a sociopath such as [defendant] to call for an exercise of the jury’s moral judgment. ...” . Compare Campbell v. United States, 113 U.S.App.D.C. 260, 261, 307 F.2d 597, 598 (1962) : As an administrative matter, “emotionally unstable personality” has been regarded by the staff at St. Elizabeths as a mental disease only since November 1957. . Blocker v. United States, 110 U.S.App.D.C. 41, 51, 288 F.2d 853, 863 (en banc 1961). . Ten years ago Judge Burger said: “While the time span since 1954 is brief, our total study and collective case consideration of the problem is equal perhaps to as much as a half century of ease review of this problem in most jurisdictions.” Blocker v. United States, 110 U.S.App.D.C. at 52, 288 F.2d at 864 (en banc, 1961) (concurring opinion). . A difference in language perception probably contributed to the development that psychiatric testimony concerning “product” causal relationship did not develop along the lines presaged by legal students of the problem. Early" }, { "docid": "22065027", "title": "", "text": "(1970) (Bazelon, C. J., concurring). The difficulty of presenting credible expert testimony is a major part of the burden on the defendant. The defendant might be able to cope with these obstacles to the successful use of the defense if we were willing to set aside jury verdicts unsupported by the evidence. In fact, we have been extremely reluctant to overturn a jury verdict even in the face of substantial evidence that the defendant’s act was the product of a condition which impaired his mental or emotional processes and behavior controls. See, e. g., United States v. Eichberg, 142 U.S.App.D.C. 110, 439 F.2d 620 (1971). If the burden of proof does rest on the government, then acquittal should be required not only when non-responsibility is proved, but also when there is a reasonable doubt about responsibility. At Brawner’s trial, both the prosecution and the defense offered evidence that the defendant was suffering from an abnormal condition of the mind which could impair behavior controls. While the testimony on productivity was expressed largely in conelusory terms, the record does contain a substantial amount of evidence which could support the view that the act was very closely tied to the impairment. In my view, there are two theories which can explain our failure to reverse the conviction on the grounds that a reasonable man must have had a reasonable doubt about the defendant’s criminal responsibility. First, our deference to the jury’s resolution of this issue may be attributable to its special role in evaluating the defendant’s impairment in light of community concepts of blameworthiness, to determine whether that impairment makes it unjust to hold him responsible. See United States v. Eichberg, 142 U.S.App.D.C. 110, 114-115, 439 F.2d 620, 624-625 (1971) (Bazelon, C. J., concurring). But it becomes increasingly difficult to rely on that explanation in the face of this Court’s refusal to make the special function of the jury explicit in the jury instruction. And reliance on the jury’s special function seems dangerously misplaced in a case, such as this one, where the testimony on the only issue in dispute was phrased" }, { "docid": "7409731", "title": "", "text": "but to assure that only those who consciously do wrong are convicted of the crime. As the Court stated in Morissette v. United States, 342 U.S. 246, 252, 72 S.Ct. 240, 244, 96 L.Ed. 288 (1952): “The unanimity with which [courts] have adhered to the central thought that wrongdoing must be conscious to be criminal is emphasized by the variety, disparity and confusion of their definitions of the requisite but elusive mental element. However, courts of various jurisdictions, and for the purposes of different offenses, have devised working formulae, if not scientific ones, for the instruction of juries around such terms as “felonious intent,” “criminal intent,” “malice aforethought,” “guilty knowledge,” “fraudulent intent,” “wilfulness,” “scienter,” to denote guilty knowledge, or “mens rea,” to signify an evil purpose or mental culpability. By use or combination of these various tokens, they have sought to protect those who were not blameworthy in mind from conviction of infamous common-law crimes.” The district judge defined embezzlement as “willfully to take, or convert to one’s own use the property of another, which came into the wrongdoer’s possession lawfully, by reason of his office or employment or position of trust.” (A. 488). He went on to explain that one of the elements the government must prove in order to establish embezzlement is that the defendant acted with the specific intent to break the law. In order to find specific intent, he instructed, the jury would have to find more than a general intent to engage in certain conduct. It would have to find that the defendant committed acts that he knew the law forbade, and that he intended to break the law. The court cautioned that an act is not knowingly done if it is caused by mistake, inadvertence, or some other innocent reason. When the jury, after more than three hours of deliberation, returned for further instructions on the issue of criminal intent, the court repeated the substance of these instructions. We conclude, therefore, that the trial court’s instructions on knowledge and specific intent adequately apprised the jury that they must find that Scheper intended to injure" } ]

[ { "docid": "6568938", "title": "", "text": "a condition that rendered the dish “unreasonably dangerous.” III. Bilski also argues that the district court erred in denying his motion for a new trial. We will reverse the denial of a motion for a new trial “ ‘only where the circumstances reveal a clear abuse of discretion.’ ” Blumenfeld v. Stuppi, 921 F.2d 116, 118 (7th Cir.1990) (quoting Cook v. Hoppin, 783 F.2d 684, 688 (7th Cir.1986)). Bilski argues that he was denied a fair trial by (1) the district court’s admission of Scientific’s evidence that it had no knowledge of prior accidents or injuries involving the type of satellite dish at issue and (2) the court’s exclusion of Bilski’s evidence regarding prior falls from satellite dishes. Under Illinois law, “[ejvidence tending to show an absence of prior accidents is generally admissible only if the offering party lays a proper foundation by establishing that the absence occurred while others were using a product similar to that which caused plaintiff’s injury.” Salvi v. Montgomery Ward & Co., 140 Ill.App.3d 896, 95 Ill.Dec. 173, 489 N.E.2d 394 (1986). Scientific’s expert testified that Scientific had sold approximately 4,000 satellite dishes like the one on which Bilski was injured. Given the rather limited functions of a satellite dish, it is reasonable to assume that a substantial number of these 4,000 dishes were used under circumstances similar to those at Chicago Cable. The expert also testified that Scientific keeps records of injuries involving its products. This evidence established an adequate foundation for the expert’s testimony regarding the lack of prior accidents. See Leischner v. Deere & Co., 127 Ill.App.3d 175, 82 Ill.Dec. 120, 468 N.E.2d 182 (1984) (in case involving allegedly defective snowmobile, evidence that “there were 64,000 snowmobiles of similar design in use” and that company kept records of accidents involving its snowmobiles provided adequate foundation for expert’s testimony regarding lack of prior accidents). The court did not abuse its discretion by admitting this evidence. In response to the testimony of Scientific’s expert regarding the lack of prior accidents, Bilski offered the testimony of two Chicago Cable employees who had firsthand knowledge of" } ]

[ { "docid": "4911105", "title": "", "text": "lacked adequate foundation. Specifically, she contends appellees faded to show “substantial simdarity” between the conditions giving rise to the absence of prior claims and the conditions on the night of the accident. She imports the “substantial simdarity” standard from Wheeler, in which we acknowledged that evidence of simdar accidents is admissible in strict products liability actions to demonstrate the existence of a defect. 862 F.2d at 1407-08. In Wheeler, we explained that “[bjefore introducing such evidence, the party seeking its admission must show the circumstances surrounding the other accidents were substantiady simdar to the accident involved in the present case.” Id. at 1407. However, we did not address the showing required for admission of absence-of-claims evidence such as that at issue here. Evidence of the absence of prior simdar claims wdl not be admitted unless it relates to a substantiady simdar product “‘used in settings and circumstances sufficiently simdar to those surrounding the [product] at the time of the accident to adow the jury to connect past experience with the accident sued upon.’” Klonowski, 17 F.3d at 996 (quoting Walker v. Trico Mfg. Co., 487 F.2d 595, 599 (7th Cir.), cert. denied 415 U.S. 978, 94 S.Ct. 1564, 39 L.Ed.2d 873 (1974)). Accord Espeaignnette, 43 F.3d at 10. A reasonable reading of the record indicates these elements are satisfied here. First, Honda used a charge warning light system of the same design in all of its 1981 Accords and in a total of nearly 1.9 million automobiles between 1973 and 1981. Appellees’ append. 286. There is no dispute the evidence relates to a substantially similar product. Second, the accident occurred while the Accord was being driven on a highway at night. Although appellant argues dissimilarity in “settings and circumstances” as regards the product’s use, her argument is overly restrictive and unpersuasive. The appendices reveal no significant dissimilarity between this ear’s use and normal use of any other 1981 Honda Accord with a system of the same design. We find no abuse of discretion. B. Prior to trial, Kinderman performed three experiments: two on an exemplar Accord and one on an" }, { "docid": "23480472", "title": "", "text": "Beloit customers or past accidents involving Beloit’s Gloss Calender machines. Invoking Federal Rules of Evidence 402 and 403, Forrest argued that the lack of records precluded Beloit from satisfying the foundation-laying requirement traditionally imposed on a product liability defendant seeking to introduce testimony concerning the alleged absence of prior accidents involving its products. Forrest’s motion in limine argued that “[bjecause Beloit cannot establish a foundation for the admissibility of evidence concerning an absence of prior substantially similar accidents, any reference to such alleged evidence ... would be unfairly prejudicial to Forrest[.]” To assess Forrest’s challenge to the disputed evidence, we must first determine the applicable law. The parties and the District Court focused primarily on Pennsylvania law concerning this issue, and in particular, on the decision of the Pennsylvania Supreme Court in Spino v. John S. Tilley Ladder Co., 548 Pa. 286, 696 A.2d 1169 (1997). While the well-reasoned decision in Spino provides useful guidance, the question presented is governed by federal rather than state law. The admissibility of the evidence ultimately turns on a balancing of its probative value versus its prejudicial effect, and we have held that in a federal court the Federal Rules of Evidence govern procedural issues of this nature. See, e.g., Diehl v. Blaw-Knox, 360 F.3d 426, 431 n. 3 (3d Cir.2004) (stating in product liability diversity action governed by Pennsylvania law that “assessment of the dangers of unfair prejudice and confusion of the issues are procedural matters that govern in a federal court notwithstanding a state policy to the contrary”) (emphasis added); Kelly v. Crown Equipment Co., 970 F.2d 1273, 1277-78 (3d Cir. 1992) (noting that relevancy provision in Federal Rules of Evidence is “arguably procedural” and therefore governs in diversity action notwithstanding contrary Pennsylvania law); Espeaignnette v. Gene Tierney Co., 43 F.3d 1, 9 (1st Cir.1994) (federal rather than state law governs admissibility of “no prior accident” evidence in a diversity action). Under the Federal Rules of Evidence, subject to certain limitations, all evidence is admissible if it is relevant, i.e., if it tends to make the existence or nonexistence of a disputed" }, { "docid": "15555289", "title": "", "text": "the time of the accident.” Klonowski v. International Armament Corp., 17 F.3d 992, 996 (7th Cir.1994) (internal quotations omitted). Whether such preliminary requirements are aimed at preventing the admission of irrelevant evidence under Rule 402, excluding relevant evidence that is unfairly prejudicial and confusing under Rule 403, or both, is unclear. Cf. Fusco v. General Motors Corp., 11 F.3d 259, 264 (1st Cir.1993) (foundational requirement of substantial similarity regarding evidence of similar accidents “now loosely appended to Rule 403”). In any event, the determination of admissibility turns on the facts and circumstances of each case and is committed, in the first instance, to the sound discretion of the district judge. See United, States v. Brandon, 17 F.3d 409, 444 (1st Cir.), cert. denied, — U.S. -, 115 S.Ct. 80, 130 L.Ed.2d 34, and cert. denied, — U.S. -, 115 S.Ct. 81, 130 L.Ed.2d 34 (1994); Fed.R.Evid. 104(a). Prior to testifying about the lack of similar accidents, Tierney testified that, since 1976, his company had sold eighty-seven edgers using essentially the same open infeedroller design. He also testified that as president of the Company any claims or notices of accidents involving an edger designed and manufactured by the Company would have come to his attention. While in different circumstances a district court might require more to show sufficient similarity, we think that Tierney’s testimony established that the evidence of the absence of other accidents was admissible in this case. Furthermore, we note that the Espeaignnettes’ counsel soundly attacked this testimony during cross-examination, bringing out that Tierney did not know whether any of the machines had been modified or if they had been situated so as to prevent accidental contact with the infeed rollers. C. Expert testimony The Espeaignnettes’ final complaint is that the district court improperly permitted the Company’s expert witness to testify that it was not physically possible for Espeaignnette to stumble and fall into the edger as he contended. Specifically, the Espeaignnettes contend that the Company’s expert lacked sufficient qualifications to testify as an “industrial human factors” expert in machine design. They further argue that the subject of the" }, { "docid": "23480477", "title": "", "text": "that as president of company any prior accidents or claims involving these products would have come to his attention); Bilski v. Scientific Atlanta, 964 F.2d 697, 700 (7th Cir.1992) (permitting testimony where defendant’s expert testified that 4,000 identical satellite dishes had been sold and were used under circumstances similar to those at plaintiffs place of employment); Hines v. Joy Mfg. Co., 850 F.2d 1146, 1154 (6th Cir.1988) (permitting testimony where defendant’s expert testified that original design of product dated back to the 1950s and that 200 substantially identical units had been sold by defendant); Spino, 696 A.2d at 1174 (permitting testimony where defendant’s president indicated that over 100,000 identical ladders had been sold, and that company claims log did not reveal the existence of any prior accidents involving the allegedly defective ladder). With respect to the conceptual underpinnings of this foundation requirement, Espeaignnette stated that it was unclear “[w]hether such preliminary requirements are aimed at preventing the admission of irrelevant evidence under Rule 402, excluding relevant evidence that is unfairly prejudicial and confusing under Rule 403, or both.... ” Id. We think the foundation requirement discussed in these cases is best described as a tool meant to aid in the balancing inquiry under Rule 403 or its state analog. There is little doubt that as a general matter evidence concerning the absence of prior accidents can satisfy the relevance threshold established by Rule 402. Courts have indicated that such evidence may be relevant to show (1) the absence of the alleged defect; (2) the lack of a causal relationship between the injury and the defect or condition charged; and (3) the nonexistence of an unduly dangerous situation. See, e.g., Pandit, 82 F.3d at 380; Espeaignnette, 43 F.3d at 9-10; Hines, 850 F.2d at 1152. Notwithstanding the potential relevance of such evidence under Rule 402, its probative value must be carefully balanced, pursuant to Rule 403, against its possible prejudicial effect. Testimony concerning an alleged absence of prior accidents, if offered without a proper foundation, can create risks of unfair prejudice that may substantially outweigh whatever probative value the evidence otherwise" }, { "docid": "4911104", "title": "", "text": "and (3) nonexistence of an unduly dangerous situation. See, e.g., Espeaignnette v. Gene Tierney Co., 43 F.3d 1, 9-10 (1st Cir.1994); Hines v. Joy Mfg. Co., 850 F.2d 1146, 1152 (6th Cir.1988); Sturm v. Clark Equipment Co., 547 F.Supp. 144, 145 (W.D.Mo.1982), aff'd 732 F.2d 161 (8th Cir.1984); 1 McCormick on Evidence, § 200, pp. 850-51 (John W. Strong 4th ed. 1992). Cf. Klonowski v. International Armament Corp., 17 F.3d 992, 996 (7th Cir.1994) (upholding exclusion of testimony because foundation lacking and discussing proper foundation); Thomas R. Mulia, Annotation, Products Liability: Admissibility of Evidence of Absence of Other Accidents, 51 A.L.R. 4th 1186 (1987). We believe this approach, which is supported by the greater weight of persuasive authority, is the better reasoned view. Accordingly, we conclude that evidence of the absence of similar accidents or claims is admissible as long as the proponent provides adequate foundation. To the extent appellant argues evidence of lack of prior claims is per se inadmissible to prove defective design, her argument is without merit. Appellant also argues the evidence lacked adequate foundation. Specifically, she contends appellees faded to show “substantial simdarity” between the conditions giving rise to the absence of prior claims and the conditions on the night of the accident. She imports the “substantial simdarity” standard from Wheeler, in which we acknowledged that evidence of simdar accidents is admissible in strict products liability actions to demonstrate the existence of a defect. 862 F.2d at 1407-08. In Wheeler, we explained that “[bjefore introducing such evidence, the party seeking its admission must show the circumstances surrounding the other accidents were substantiady simdar to the accident involved in the present case.” Id. at 1407. However, we did not address the showing required for admission of absence-of-claims evidence such as that at issue here. Evidence of the absence of prior simdar claims wdl not be admitted unless it relates to a substantiady simdar product “‘used in settings and circumstances sufficiently simdar to those surrounding the [product] at the time of the accident to adow the jury to connect past experience with the accident sued upon.’” Klonowski, 17" }, { "docid": "4911106", "title": "", "text": "F.3d at 996 (quoting Walker v. Trico Mfg. Co., 487 F.2d 595, 599 (7th Cir.), cert. denied 415 U.S. 978, 94 S.Ct. 1564, 39 L.Ed.2d 873 (1974)). Accord Espeaignnette, 43 F.3d at 10. A reasonable reading of the record indicates these elements are satisfied here. First, Honda used a charge warning light system of the same design in all of its 1981 Accords and in a total of nearly 1.9 million automobiles between 1973 and 1981. Appellees’ append. 286. There is no dispute the evidence relates to a substantially similar product. Second, the accident occurred while the Accord was being driven on a highway at night. Although appellant argues dissimilarity in “settings and circumstances” as regards the product’s use, her argument is overly restrictive and unpersuasive. The appendices reveal no significant dissimilarity between this ear’s use and normal use of any other 1981 Honda Accord with a system of the same design. We find no abuse of discretion. B. Prior to trial, Kinderman performed three experiments: two on an exemplar Accord and one on an exemplar alternator. He videotaped two of the experiments. At trial, he opined Honda’s charge warning system design was neither defective nor unreasonably dangerous. Appellees’ append. 295, 296, 346-47. More specifically, he disputed appellant’s experts’ claim that an alternator could produce a sustained diminished charge sufficient to prevent the charge warning light from activating but insufficient to maintain the battery. Id., at 296-97. To demonstrate the principles underlying his opinion, he discussed eaeh of his experiments and played portions of the two videotaped experiments. He prefaced his discussion by explaining he had never tried to recreate the events leading up to the accident. Before playing the videotapes, the court twice instructed the jury the tapes were admitted only to demonstrate Kinderman’s testimony and not as evidence of what happened on the night of the accident. Id. at 313, 336. Additionally, in the final jury instructions, the court explained the tapes had been admitted for the limited purpose of assisting the witness in explaining his opinions and the tapes were not a recreation of the events involved" }, { "docid": "15555288", "title": "", "text": "The evidence of the absence of prior accidents is clearly relevant to several disputed issues in this case. The fact that the Company had received no reports of similar accidents tends to disprove causation. That there were no similar reports of injuries due to inadvertent contact with the infeed rollers tends to support the Company’s contention that it was not possible for Espeaignnette to have stumbled accidentally into the open area of the edger as he alleged. Additionally, the absence of prior accidents is probative and relevant to whether the edger as designed was unreasonably dangerous.- The Espeaignnettes alternatively contend that the Company failed to establish the necessary foundation for admission of the evidence. A review of the cases reveals, for the most part, that evidence of the absence of prior accidents may not be admitted unless the offering party first establishes that the “lack of accidents was in regard to products that are substantially identical to the one at issue and used in settings and circumstances sufficiently similar to those surrounding the machine at the time of the accident.” Klonowski v. International Armament Corp., 17 F.3d 992, 996 (7th Cir.1994) (internal quotations omitted). Whether such preliminary requirements are aimed at preventing the admission of irrelevant evidence under Rule 402, excluding relevant evidence that is unfairly prejudicial and confusing under Rule 403, or both, is unclear. Cf. Fusco v. General Motors Corp., 11 F.3d 259, 264 (1st Cir.1993) (foundational requirement of substantial similarity regarding evidence of similar accidents “now loosely appended to Rule 403”). In any event, the determination of admissibility turns on the facts and circumstances of each case and is committed, in the first instance, to the sound discretion of the district judge. See United, States v. Brandon, 17 F.3d 409, 444 (1st Cir.), cert. denied, — U.S. -, 115 S.Ct. 80, 130 L.Ed.2d 34, and cert. denied, — U.S. -, 115 S.Ct. 81, 130 L.Ed.2d 34 (1994); Fed.R.Evid. 104(a). Prior to testifying about the lack of similar accidents, Tierney testified that, since 1976, his company had sold eighty-seven edgers using essentially the same open infeedroller design. He" }, { "docid": "23480478", "title": "", "text": "403, or both.... ” Id. We think the foundation requirement discussed in these cases is best described as a tool meant to aid in the balancing inquiry under Rule 403 or its state analog. There is little doubt that as a general matter evidence concerning the absence of prior accidents can satisfy the relevance threshold established by Rule 402. Courts have indicated that such evidence may be relevant to show (1) the absence of the alleged defect; (2) the lack of a causal relationship between the injury and the defect or condition charged; and (3) the nonexistence of an unduly dangerous situation. See, e.g., Pandit, 82 F.3d at 380; Espeaignnette, 43 F.3d at 9-10; Hines, 850 F.2d at 1152. Notwithstanding the potential relevance of such evidence under Rule 402, its probative value must be carefully balanced, pursuant to Rule 403, against its possible prejudicial effect. Testimony concerning an alleged absence of prior accidents, if offered without a proper foundation, can create risks of unfair prejudice that may substantially outweigh whatever probative value the evidence otherwise has. Thus, courts assessing the admissibility of such evidence emphasize the contextual nature of the inquiry, which turns upon the facts and circumstances of each particular case. See Espeaignnette, 43 F.3d at 10; Walker; 487 F.2d at 599; Spino, 696 A.2d at 1173-74; Jones v. Pak-Mor Mfg. Co., 145 Ariz. 121, 700 P.2d 819, 824-25 (1985). The importance of the foundation requirement is underscored by the potential for unfair prejudice that may result from such evidence. The Arizona Supreme Court’s thorough opinion in Jones summarized the concerns at issue. First, the mere fact that a witness does not know of any prior accidents does not prove that no such accidents occurred. See Jones, 700 P.2d at 824. Second, generalized assertions concerning an alleged absence of accidents over an extended period of time can be directly rebutted only with specific evidence of prior occurrences, but such evidence may be difficult or impossible for a plaintiff to obtain in cases where the defendant has not kept records concerning the safety history of its products. See id. at" }, { "docid": "23480476", "title": "", "text": "sufficiently similar to those surrounding the machine at the time of the accident.’ ” 43 F.3d at 10 (quoting Klonowski v. International Armament Corp., 17 F.3d 992, 996 (7th Cir.1994)). Accordingly, most courts admitting evidence of the absence of prior accidents in product liability cases have done so only where the testifying witness, usually an employee of the product manufacturer, has testified that (a) a significant number of substantially identical products have been used in similar circumstances over a period of time; (b) the witness would likely be aware of prior accidents involving these products; and (c) to the witness’s knowledge, no such prior accidents have occurred. See, e.g., Pandit v. American Honda Motor Co., 82 F.3d 376, 380-81 (10th Cir.1996) (permitting testimony where allegedly defective feature had been included in nearly 1.9 million automobiles over eight-year period, and these other automobiles had been used in substantially similar settings and circumstances); Espeaignnette, 43 F.3d at 10 (permitting testimony where manufacturer’s president testified that eighty-seven similar products had been sold in the previous fifteen years, and that as president of company any prior accidents or claims involving these products would have come to his attention); Bilski v. Scientific Atlanta, 964 F.2d 697, 700 (7th Cir.1992) (permitting testimony where defendant’s expert testified that 4,000 identical satellite dishes had been sold and were used under circumstances similar to those at plaintiffs place of employment); Hines v. Joy Mfg. Co., 850 F.2d 1146, 1154 (6th Cir.1988) (permitting testimony where defendant’s expert testified that original design of product dated back to the 1950s and that 200 substantially identical units had been sold by defendant); Spino, 696 A.2d at 1174 (permitting testimony where defendant’s president indicated that over 100,000 identical ladders had been sold, and that company claims log did not reveal the existence of any prior accidents involving the allegedly defective ladder). With respect to the conceptual underpinnings of this foundation requirement, Espeaignnette stated that it was unclear “[w]hether such preliminary requirements are aimed at preventing the admission of irrelevant evidence under Rule 402, excluding relevant evidence that is unfairly prejudicial and confusing under Rule" }, { "docid": "23480471", "title": "", "text": "Marshall, who had been employed at Jefferson-Smurfit (and its corporate predecessor CCA) for seventeen years and thirty-five years, respectively. They testified that the way Forrest attempted to thread the Gloss Calender on the night of the accident was the same as that used for years by other employees. Both Brody and Marshall also indicated that they were unaware of any prior similar accidents involving the Gloss Calender during their years at Jefferson-Smurfit. Beloit invoked this testimony in its closing, arguing that “as far as the evidence is concerned, the only accident we know of, in thirty-six years, on the Gloss Calender was Mr. Forrest’s.” The foregoing testimony came in over Forrest’s repeated objections, including a pretrial motion in limine. Forrest’s objections centered on Beloit’s alleged failure to establish an adequate foundation for introducing this testimony concerning the alleged absence of prior accidents involving the Gloss Calender at the Jefferson-Smur-fit mill. Forrest noted that George Wong, Beloit’s former chief engineer, had admitted in his deposition that Beloit kept no records relating to either safety complaints by Beloit customers or past accidents involving Beloit’s Gloss Calender machines. Invoking Federal Rules of Evidence 402 and 403, Forrest argued that the lack of records precluded Beloit from satisfying the foundation-laying requirement traditionally imposed on a product liability defendant seeking to introduce testimony concerning the alleged absence of prior accidents involving its products. Forrest’s motion in limine argued that “[bjecause Beloit cannot establish a foundation for the admissibility of evidence concerning an absence of prior substantially similar accidents, any reference to such alleged evidence ... would be unfairly prejudicial to Forrest[.]” To assess Forrest’s challenge to the disputed evidence, we must first determine the applicable law. The parties and the District Court focused primarily on Pennsylvania law concerning this issue, and in particular, on the decision of the Pennsylvania Supreme Court in Spino v. John S. Tilley Ladder Co., 548 Pa. 286, 696 A.2d 1169 (1997). While the well-reasoned decision in Spino provides useful guidance, the question presented is governed by federal rather than state law. The admissibility of the evidence ultimately turns on a" }, { "docid": "15555287", "title": "", "text": "the evidence is “substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” Fed. R.Evid. 403. In general, courts have recognized that the absence of prior accidents may be admissible to show: (1) absence of the defect or other condition alleged, . (2) the lack of a causal relationship between the injury and the defect or condition charged, [and] (3) the nonexistence of an unduly dangerous situation. Strong, 1 McCormick on Evidence § 200 at 850-51. Moreover, we recently rejected the argument that evidence of the lack of prior accidents is irrelevant on the issue of causation in a products liability case brought on a negligence theory. Harrison v. Sears, Roebuck & Co., 981 F.2d 25, 30 (1st Cir.1992). See also Keller v. United States, 38 F.3d 16, 29, 30 (1st Cir.1994) (noting evidence of the absence of other accidents as supporting district court’s failure to find design defect or causation in negligence case). The evidence of the absence of prior accidents is clearly relevant to several disputed issues in this case. The fact that the Company had received no reports of similar accidents tends to disprove causation. That there were no similar reports of injuries due to inadvertent contact with the infeed rollers tends to support the Company’s contention that it was not possible for Espeaignnette to have stumbled accidentally into the open area of the edger as he alleged. Additionally, the absence of prior accidents is probative and relevant to whether the edger as designed was unreasonably dangerous.- The Espeaignnettes alternatively contend that the Company failed to establish the necessary foundation for admission of the evidence. A review of the cases reveals, for the most part, that evidence of the absence of prior accidents may not be admitted unless the offering party first establishes that the “lack of accidents was in regard to products that are substantially identical to the one at issue and used in settings and circumstances sufficiently similar to those surrounding the machine at" }, { "docid": "15555290", "title": "", "text": "also testified that as president of the Company any claims or notices of accidents involving an edger designed and manufactured by the Company would have come to his attention. While in different circumstances a district court might require more to show sufficient similarity, we think that Tierney’s testimony established that the evidence of the absence of other accidents was admissible in this case. Furthermore, we note that the Espeaignnettes’ counsel soundly attacked this testimony during cross-examination, bringing out that Tierney did not know whether any of the machines had been modified or if they had been situated so as to prevent accidental contact with the infeed rollers. C. Expert testimony The Espeaignnettes’ final complaint is that the district court improperly permitted the Company’s expert witness to testify that it was not physically possible for Espeaignnette to stumble and fall into the edger as he contended. Specifically, the Espeaignnettes contend that the Company’s expert lacked sufficient qualifications to testify as an “industrial human factors” expert in machine design. They further argue that the subject of the testimony — how one reacts during a stumble — was an improper subject for expert testimony because it was within the knowledge of the average juror. We do not agree. Determinations of whether a witness is sufficiently qualified to testify as an expert on a given subject and whether such expert testimony would be helpful to the trier of fact are committed to the sound discretion of the trial court. See, e.g., Navarro de Cosme v. Hospital Pavia, 922 F.2d 926, 931 (1st Cir.1991). “[A] trial judge’s rulings in this sphere should be upheld ‘unless manifestly erroneous.’ ” United States v. Sepulveda, 15 F.3d 1161, 1183 (1st Cir.1993) (quoting Salem v. United States Lines Co., 370 U.S. 31, 35, 82 S.Ct. 1119, 1122, 8 L.Ed.2d 313 (1962)), cert. denied, — U.S. -, 114 S.Ct. 2714, 129 L.Ed.2d 840 (1994); but compare Williams v. Poulos, 11 F.3d 271, 282 (1st Cir.1993) (stating standard of review is abuse of discretion). A review of Professor Barnett’s vita and testimony reveals that, although he has little formal education regarding" }, { "docid": "4911103", "title": "", "text": "by appellant, the question involved a general legal issue which was capable of decision prior to trial; and the court addressed the issue definitively and in detail, appellant’s append. I at 279-88. We reject appellees’ waiver argument and turn to the merits of appellant’s first issue. We have held that evidence of similar accidents is admissible in a products liability case if the proponent provides a proper predicate. Wheeler v. John Deere Co., 862 F.2d 1404, 1407 (10th Cir.1988); Ponder v. Warren Tool Corp., 834 F.2d 1553, 1560 (10th Cir.1987); Rexrode v. American Laundry Press Co., 674 F.2d 826, 829 n. 9 (10th Cir.), cert. denied 459 U.S. 862, 103 S.Ct. 137, 74 L.Ed.2d 117 (1982). This court has not addressed the converse— whether the lack of prior similar accidents is likewise admissible. Other courts and commentators generally agree that evidence of the lack of similar accidents is relevant to show (1) absence of the defect or other condition alleged, (2) lack of a causal relationship between the injury and the defect or condition charged, and (3) nonexistence of an unduly dangerous situation. See, e.g., Espeaignnette v. Gene Tierney Co., 43 F.3d 1, 9-10 (1st Cir.1994); Hines v. Joy Mfg. Co., 850 F.2d 1146, 1152 (6th Cir.1988); Sturm v. Clark Equipment Co., 547 F.Supp. 144, 145 (W.D.Mo.1982), aff'd 732 F.2d 161 (8th Cir.1984); 1 McCormick on Evidence, § 200, pp. 850-51 (John W. Strong 4th ed. 1992). Cf. Klonowski v. International Armament Corp., 17 F.3d 992, 996 (7th Cir.1994) (upholding exclusion of testimony because foundation lacking and discussing proper foundation); Thomas R. Mulia, Annotation, Products Liability: Admissibility of Evidence of Absence of Other Accidents, 51 A.L.R. 4th 1186 (1987). We believe this approach, which is supported by the greater weight of persuasive authority, is the better reasoned view. Accordingly, we conclude that evidence of the absence of similar accidents or claims is admissible as long as the proponent provides adequate foundation. To the extent appellant argues evidence of lack of prior claims is per se inadmissible to prove defective design, her argument is without merit. Appellant also argues the evidence" }, { "docid": "7356857", "title": "", "text": "ju'ry to decide whether the product is unreasonably dangerous. 4A American Law of Products Liability 3d, supra, § 54:81 at p. 54-194 (emphasis added). This approach is illustrated in Leslie, where the court reviewed the deposition testimony of the plaintiffs expert who identified deficiencies in the product and testified that “fail safe” technology, which had been in existence for longer than sixty years, would have prevented the accident. There is no indication that the expert explicitly stated that, in his opinion, the product was “unreasonably dangerous.” Nevertheless, the court found that his testimony was sufficient to overcome defendant’s motion for summary judgment. See id. at 804; see also Ford Motor Co. v. Fulkerson, 812 S.W.2d 119, 123 (Ky.1991) (finding that there was “substantial evidence as to whether the design of the product was deficient” even though plaintiffs expert never said that the product was “unreasonably dangerous”). Indeed, in one case, the Supreme Court of Kentucky has held that a trial court did not abuse its discretion when it refused to permit an expert to give his opinion on the issue of whether the product was unreasonably dangerous. See Clark v. Hauck Mfg. Co., 910 S.W.2d 247, 253 (Ky.1995). Thus, our task is to determine if plaintiffs submitted sufficient evidence that would justify a jury’s determination that the ladder was unreasonably dangerous. As previously mentioned, the Kentucky Supreme Court has set forth a list of factors that a jury may consider in determining whether a product was manufactured “in a defective condition unreasonably dangerous.” These factors include: (1) feasibility of making a safer product; (2) patency of the danger; (3) warnings and instructions; (4) subsequent maintenance and repair; (5) misuse; and (6) the product’s inherently unsafe characteristics. See Montgomery Elevator Co., 676 S.W.2d at 780-81. We conclude that the evidence presented by plaintiffs was such that, using these factors, a reasonable jury could find that the ladder was unreasonably dangerous. Plaintiffs’ expert, Mr. Walliek, who had over twenty-five years of experience as an engineer and designer of ladders, testified that the Keller ladder design was defective because it did not allow" }, { "docid": "23480479", "title": "", "text": "has. Thus, courts assessing the admissibility of such evidence emphasize the contextual nature of the inquiry, which turns upon the facts and circumstances of each particular case. See Espeaignnette, 43 F.3d at 10; Walker; 487 F.2d at 599; Spino, 696 A.2d at 1173-74; Jones v. Pak-Mor Mfg. Co., 145 Ariz. 121, 700 P.2d 819, 824-25 (1985). The importance of the foundation requirement is underscored by the potential for unfair prejudice that may result from such evidence. The Arizona Supreme Court’s thorough opinion in Jones summarized the concerns at issue. First, the mere fact that a witness does not know of any prior accidents does not prove that no such accidents occurred. See Jones, 700 P.2d at 824. Second, generalized assertions concerning an alleged absence of accidents over an extended period of time can be directly rebutted only with specific evidence of prior occurrences, but such evidence may be difficult or impossible for a plaintiff to obtain in cases where the defendant has not kept records concerning the safety history of its products. See id. at 824-26. Third, the absence of prior accidents may simply mean that the plaintiff was the first to be injured; there is always a first victim. See id. at 825; Spi-no, 696 A.2d at 1173. Fourth, testimony concerning the absence of prior accidents “does not tell us how many near-accidents, nor how many fortuitous escapes from injury, may have oecurred[.]” See Jones, 700 P.2d at 826. This fourth concern is especially salient in product liability cases arising under Pennsylvania law, which deems a product defective if it “left the supplier’s control lacking any element necessary to make it safe for its intended use.” Lewis v. Coffing Hoist Div., Duff-Norton Co., 515 Pa. 334, 528 A.2d 590, 593 (1987) (quoting Azzarello v. Black Bros. Co., 480 Pa. 547, 391 A.2d 1020, 1027 (1978)). The Pennsylvania Supreme Court has stated that “products are to be evaluated at the time of distribution when examining a claim of product defect.” Duchess v. Langston Corp., 564 Pa. 529, 769 A.2d 1131, 1142 (2001). Pennsylvania’s approach is reflected in the fact that" }, { "docid": "15557751", "title": "", "text": "former employees regarding the inadequacy of the company’s product safety reviews, offering insight to jurors on why Gehl may not have identified defects in proposed and/or current product designs. S. Evidence of Previous Accidents Gehl maintains the district court improperly admitted evidence of a prior closed-throat baler entanglement injury for the purpose of showing the company had notice of defects in the 1870 baler. Specifically, Gehl claims it was error to admit evidence on the injuries suffered by the plaintiff in the Birchler case. We review the district court’s evidentiary rulings for an abuse of discretion. Pandit v. American Honda Motor Co., 82 F.3d 376, 379 (10th Cir.1996). Under this standard, “a trial court’s decision will not be disturbed unless the appellate court has a definite and firm conviction that the lower court made a clear error of judgment or exceeded the bounds of permissible choice in the circumstances.” Id. (citation omitted). Both federal and Kansas law permit the introduction of similar accidents in product liability actions to prove “notice, the existence of a defect, or to refute testimony given by a defense witness that a given product was designed without safety hazards.” Ponder v. Warren Tool Corp., 834 F.2d 1553, 1560 (10th Cir.1987); see Powers v. Kansas Power & Light Co., 234 Kan. 89, 671 P.2d 491, 499 (1983) (“Evidence of prior similar accidents is admissible to prove foreseeability.”). As a prerequisite to admitting such evidence, the proponent must demonstrate “the circumstances surrounding the other accidents were substantially similar to the accident involved in the present case.” Wheeler v. John Deere Co., 862 F.2d 1404, 1407 (10th Cir.1988) (citations omitted). The requisite degree of substantial similarity is tied to the proponent’s theory of proof: If dangerousness is the issue, a high degree of similarity will be essential.... If the accident is offered to prove notice, a lack of exact similarity of conditions will not cause exclusion provided the accident was of a kind which should have served to warn the defendant.... Once a court has determined that accidents are substantially similar, any differences in the circumstances surrounding those occurrences" }, { "docid": "1642482", "title": "", "text": "testifies that a product is generally safe, as appellant’s experts did, the witness’s credibility can be undermined by showing the witness had knowledge of prior accidents caused by the product.” Cooper, 945 F.2d at 1105. We think this case is distinguishable from Hale and we do not agree with the expansive interpretation taken by the Cooper court. Wandling in this case testified that in his opinion, the N16CT nailer was “not defective ... suitable and proper ... [and] reasonably safe.” He acknowledged that the gun had operated as designed when it inadvertently discharged a nail after being bumped. His assent that the nailer was “generally safe” was in response to a leading question by Drabik’s counsel on cross-examination. We do not think this testimony rises to the level of “vast and comprehensive” necessary to permit non-similar accident evidence for impeachment purposes. Furthermore, in Hale the other accident evidence was a minute portion of the cross-examination. In this case, the other accident evidence formed the crux of the cross-examination. We note that the Hale court specifically limited its holding to “the facts of this case” and we see great danger in over-interpreting this limited exception. Wandling was indisputably engaged by the defendant Bostitch to conduct a study and render an opinion about the N16CT nailer. He was testifying as to his opinions, and any qualified expert must be entitled to do that without having to rebut extraneous evidence of dissimilar accidents. See Johnson v. Ford Motor Co., 988 F.2d 573, 580 n. 6 (5th Cir.1993) (holding evidence of dissimilar accidents did not impeach expert’s testimony about specific mechanical feature); Freund v. Fleetwood Enters., Inc., 956 F.2d 354, 360 (1st Cir.1992) (holding cross-examination about other products was improper absent foundation of substantial similarity); Wheeler v. John Deere Co., 862 F.2d 1404, 1409 (10th Cir.1988) (holding evidence to impeach testimony must be limited to substantially similar accident evidence); Peterson, 676 F.2d at 953 (holding an earlier accident offered to impeach testimony was properly excluded due to lack of substantial similarity). To hold that an expert who simply offers his opinion that a product" }, { "docid": "23480484", "title": "", "text": "uncommon scenario. Prior cases have usually involved a product liability defendant’s attempt to introduce evidence concerning the absence of prior accidents through the testimony of its own witness, typically a corporate officer or an expert. Here, in contrast, Beloit sought to introduce safety history evidence by extracting testimony during the cross-examination of two witnesses who were long-time employees of the JeffersonSmurfit paper mill. Beloit also restricted its questions to the safety history of the specific Gloss Calender that was installed at the Jefferson-Smurfit mill. This narrower focus was understandable, because Wong, Beloit’s corporate designee, admitted in his deposition that he knew of no records or databases relating to either safety complaints by Beloit’s customers or past accidents involving Beloit’s Gloss Calender machines. Thus, any attempt by Beloit to introduce through its own witness a broad claim with respect to the safety history of Beloit’s Gloss Calender machines would likely have been foreclosed by the witness’s inability to show that he or she would have known of prior accidents had they occurred. The question now before us is whether Beloit, by focusing solely upon the single Gloss Calender at the Jefferson-Smurfit mill, so diluted the probative value of the testimony in question as to render it inadmissible in light of the potential for unfair prejudice that inheres in all such testimony. We answer this question in the affirmative, and hold that the testimony should have been excluded pursuant to Rule 403. We reach this conclusion for several reasons. Our primary concern is that notwithstanding the disputed testimony, we have no idea whether there were prior accidents involving Beloit’s allegedly defective Gloss Calenders. The record is clear that Beloit designed and sold its Gloss Calenders to many customers over a period of several decades. Wong, who at one time personally led Beloit’s Gloss Calender design group, testified that to his knowledge Beloit kept no records concerning whether injuries or accidents involving these Gloss Calenders might have occurred during the decades prior to Forrest’s accident. The combination of (a) the existence of multiple other Beloit Gloss Calenders of similar or identical design; (b)" }, { "docid": "23480475", "title": "", "text": "Cir.2003) (quoting Glass v. Philadelphia Electric Co., 34 F.3d 188, 192 (3d Cir.1994)). In sum, “Rule 403 recognizes that a cost/benefit analysis must be employed to determine whether or not to admit evidence; relevance alone does not ensure its admissibility.” Coleman, 306 F.3d at 1343. However, “there is a strong presumption that relevant evidence should be admitted, and thus for exclusion under Rule 403 to be justified, the probative value of evidence must be ‘substantially outweighed’ by the problems in admitting it.” Id. at 1343^4. Federal and state courts addressing the admissibility of evidence concerning the absence of prior accidents have recognized that the probative value of such evidence is determined in large measure by the foundation laid by the offering party. In Es-peaignnette, the First Circuit observed that as a general rule, “evidence of the absence of prior accidents may not be admitted unless the offering party first establishes that the ‘lack of accidents was in regard to products that are substantially identical to the one at issue and used in settings and circumstances sufficiently similar to those surrounding the machine at the time of the accident.’ ” 43 F.3d at 10 (quoting Klonowski v. International Armament Corp., 17 F.3d 992, 996 (7th Cir.1994)). Accordingly, most courts admitting evidence of the absence of prior accidents in product liability cases have done so only where the testifying witness, usually an employee of the product manufacturer, has testified that (a) a significant number of substantially identical products have been used in similar circumstances over a period of time; (b) the witness would likely be aware of prior accidents involving these products; and (c) to the witness’s knowledge, no such prior accidents have occurred. See, e.g., Pandit v. American Honda Motor Co., 82 F.3d 376, 380-81 (10th Cir.1996) (permitting testimony where allegedly defective feature had been included in nearly 1.9 million automobiles over eight-year period, and these other automobiles had been used in substantially similar settings and circumstances); Espeaignnette, 43 F.3d at 10 (permitting testimony where manufacturer’s president testified that eighty-seven similar products had been sold in the previous fifteen years, and" }, { "docid": "15006849", "title": "", "text": "Raymond v. Raymond Corp., 938 F.2d 1518, 1524-25 (1st Cir.1991) (Rule 407 applies only to subsequent remedial measures by manufacturer, not by third parties), whereas Rule 407 does not apply to the instant case because the BRT-design modification preceded Chapman’s accident. See id. at 1523-24 (Rule 407 does not apply to design modifications made prior to accident in litigation) (upholding exclusion under Rule 403). Second, the modification in Espeaignnette had been performed on an edger identical to the one which injured the plaintiff, Espeaignnette, 43 F.3d at 6, whereas the modification in the instant case was made to the BRT-design, which was substantially dissimilar to the XTR which injured Chapman. See also infra p. 28. The district court found that the BRT was not sufficiently similar to the XTR, a finding we review only for clear error. Cameron v. Otto Bock Orthopedic Indus., Inc., 43 F.3d 14, 16 (1st Cir.1994) (findings of fact integral to evidentiary rulings are reviewed for clear error). Its finding is amply supported. Appellants’ own expert testified that vertical rear posts could not practicably be incorporated in the XTR unless it underwent major redesign. Whereas the record revealed that the BRT-design could accommodate vertical rear posts precisely because its steering controls had been repositioned in the operator’s cabin so that the posts would not interfere with steering. The Raymond case, supra, provides sturdy support for the district court ruling. It involved a claim that a sideloader design was defective for lack of vertical rear posts. Raymond, 938 F.2d at 1622. The decedent had been fatally injured by a beam which penetrated the sideloader operator’s cabin, id. at 1520, and the district court excluded evidence that rear posts were included in a later design that predated the accident. Id. at 1522-23. We upheld the exclusionary ruling, with the following explanation: “the introduction of evidence of pre-accident design modifications not made effective until after the manufacture of the allegedly defective product may reasonably be found unfairly prejudicial to the defendant and misleading to the jury for determining the question whether the product was unreasonably dangerous at the time" } ]

[ { "docid": "21417218", "title": "", "text": "files and records of the case conclusively show that the prisoner is entitled to no relief.” 28 U.S.C. § 2255; see also Menzer v. United States, 200 F.3d 1000, 1006 (7th Cir.2000). In addition, a hearing is not necessary if the petitioner makes allegations that are “vague, conclusory, or palpably incredible,” rather than “detailed and specific.” Kafo v. United States, 467 F.3d 1063, 1067 (7th Cir.2006). A district court, however, must grant an evidentiary hearing if the petitioner “alleges facts that, if proven, would entitle him to relief.” Id. (citation and internal quotation marks omitted); Stoia v. United States, 22 F.3d 766, 768 (7th Cir.1994). Martin alleges that trial counsel’s failure to investigate the facts and law relevant to his case caused counsel to give him “extremely bad and prejudicial advice” regarding a 30-year plea offer by the government. But for counsel’s “flawed advice,” Martin alleges that he would have accepted the government’s offer. On appeal, Martin contends that these allegations are sufficient, as a matter of law, to require the district court to hold an evi-dentiary hearing. The Sixth Amendment right to effective assistance of counsel extends to the plea bargaining process. Lafler v. Cooper, - U.S. -, 132 S.Ct. 1376, 1384, 182 L.Ed.2d 398 (2012). To prevail on an ineffective assistance of counsel claim, Martin must satisfy the familiar two-part test articulated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). First, Martin “must show that counsel’s representation fell below an objective standard of reasonableness,” Strickland, 466 U.S. at 688, 104 S.Ct. 2052, and second, that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different,” id. at 694, 104 S.Ct. 2052. As we shall see, we need not reach Strickland’s two-part test because Martin’s petition suffers from a preliminary infirmity that is fatal to his appeal. As the district court noted, Martin’s case presents circumstances nearly identical to those that we considered in Gallo-Vasquez v. United States, 402 F.3d 793 (7th Cir.2005). In Gallo-Vasquez, we held that the district court did not" } ]

[ { "docid": "13995590", "title": "", "text": "he been competently advised, Gallo-Vasquez alleges, he would have accepted the government’s offer. To prevail on a claim of ineffective assistance of counsel, petitioner must satisfy the two-part test first articulated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). First, petitioner “must show that counsel’s representation fell below an objective standard of reasonableness.” Id. at 688, 104 S.Ct. 2052. “[A] court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Id. at 689, 104 S.Ct. 2052. Second, petitioner “must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. 2052. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. We have recognized that counsel’s performance may fall below the minimum threshold if he advises his client to reject a plea bargain in the face of overwhelming evidence of guilt and an absence of viable defenses. See Toro v. Fairman, 940 F.2d 1065, 1068 (7th Cir.1991). The record shows, however, that petitioner was not advised to reject a plea agreement. First, Gallo-Vasquez’s letter repeatedly complains about counsel’s consistent advice that he should accept a plea agreement if one were offered. According to the letter, counsel explained that Gallo-Vasquez was certain to be convicted and sentenced to a significant term of imprisonment if he went to trial. The district court was correct to look beyond the face of the motion and consider this evidence. Aleman, 878 F.2d at 1012. Second, aside from the allegation contained in Gallo-Vasquez’s motion, there is no evidence that the government offered petitioner a deal. The motion does not attach a copy of the proposed agreement, state when or by whom the offer was made, or give any details other than to assert that it contemplated a 48-month sentence. See Prewitt v. United States, 83 F.3d 812, 819 (7th Cir.1996) (“in order for a hearing to be granted, the [motion] must be accompanied by a detailed and specific affidavit”) (quoting Barry v." }, { "docid": "4885571", "title": "", "text": "in court that he had ample time to discuss the case and his decision to plead with his lawyer. (Crim. Docket No. 429 at 5.) The record also shows that Lassalle-Velázquez affirmatively 3 answered that he was satisfied with counsel’s work. (Crim. Docket No. 429 at 5.) It is clear from the record that counsel was not ineffective during the plea negotiation process. Lassalle-Velázquez also alleges that although counsel provided him advice as to the plea agreement, he did not show Lassalle-Velázquez the agreement. Counsel cannot perform ineffectively by failing to show his or her client a copy of the plea agreement. The law requires that defense counsel communicate offers to his client. Missouri v. Frye, — U.S.-, 132 S.Ct. 1399, 1408, 182 L.Ed.2d 379 (2012). Where a plea bargain has been offered, “a defendant has the right to effective assistance of counsel in considering whether to accept it.” Lafler v. Cooper, — U.S. -, 132 S.Ct. 1376, 1387, 182 L.Ed.2d 398 (2012). Ineffective assistance of counsel does not hinge on whether counsel gave his or her client a copy of the plea agreement; rather, the question is whether an offer was communicated and whether counsel was effective in advising the client to accept or reject an offer. Accordingly, counsel was not ineffective by failing to show Lassalle-Velázquez the plea agreement. C. Counsel was not ineffective for failing to request that we recuse ourselves from the case Lassalle-Velázquez claims that counsel was ineffective for failing to request that we recuse ourselves because of an alleged conflict of interest made manifest in “prejudicial, antagonistic, and ridiculing outbursts during the course of sentencing.” (Docket No. 1 at 9.) The First Circuit has held that “[r]ecusal is only required by a state of mind ‘so resistant to fair and dispassionate inquiry as to cause a party, the public, or a 25 reviewing court to have reasonable grounds to question the neutral and objective character of a judge’s rulings or findings.’ ” In re Lupron Marketing and Sales Practices Litigation, 677 F.3d 21, 36 (1st Cir.2012) (quoting In re United States, 158 F.3d 26," }, { "docid": "1578751", "title": "", "text": "[106 S.Ct. 366, 88 L.Ed.2d 203] (1985). For example, where the alleged error of counsel is a failure to investigate or discover potentially exculpatory evidence, the prejudice inquiry will depend on the likelihood that discovery of the evidence would have led counsel to change his recommendation as to the plea. That assessment, in turn, will depend in large part on a prediction of whether the evidence likely would have changed the outcome of a trial. Armstead v. Scott, 37 F.3d 202, 206 (5th Cir.1994). The Supreme Court has recognized that in some contexts it is also possible to demonstrate prejudice even absent a showing that a trial would have likely resulted in a different outcome. See, e.g., Lafler v. Cooper, — U.S. -, 132 S.Ct. 1376, 1385, 182 L.Ed.2d 398 (2012) (“Having to stand trial, not choosing to waive it, is the prejudice alleged. In these circumstances a defendant must show that but for the ineffective advice of counsel there is a reasonable probability that the plea offer would have been presented to the court (i.e., that the defendant would have accepted the plea and the prosecution would not have withdrawn it in light of intervening circumstances), that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer’s terms would have been less severe than under the judgment and sentence that in fact were imposed”); Missouri v. Frye, — U.S. -, 132 S.Ct. 1399, 1409, 182 L.Ed.2d 379 (2012) (“To show prejudice from ineffective assistance of counsel where a plea offer has lapsed or been rejected because of counsel’s deficient performance, defendants must demonstrate a reasonable probability they would have accepted the earlier plea offer had they been afforded effective assistance of counsel.”); Glover v. United States, 531 U.S. 198, 203, 121 S.Ct. 696, 148 L.Ed.2d 604 (2001) (“Authority does not suggest that a minimal amount of additional time in prison cannot constitute prejudice. Quite to the contrary, our jurisprudence suggests that any amount of actual jail time has Sixth Amendment significance.”). “Surmounting Strickland’s high bar is never an easy task.” Padilla," }, { "docid": "9283530", "title": "", "text": "the adequate assistance of counsel that the Sixth Amendment requires in the criminal process at critical stages.\" Missouri v. Frye , 566 U.S. 134, 143, 132 S.Ct. 1399, 182 L.Ed.2d 379 (2012) ; see also Lafler v. Cooper , 566 U.S. 156, 163, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012) (\"During plea negotiations defendants are 'entitled to the effective assistance of competent counsel.' \" (quoting McMann v. Richardson , 397 U.S. 759, 771, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970) ) ). Thus, \"a plea, even one that complies with Rule 11, cannot be 'knowing and voluntary' if it resulted from ineffective assistance of counsel.\" Hurlow v. United States , 726 F.3d 958, 968 (7th Cir. 2013). We apply the two-part Strickland test to ineffective assistance of counsel claims in the plea bargain context. Frye , 566 U.S. at 140, 132 S.Ct. 1399. First, the defendant must show deficient performance-\"that counsel's representation fell below an objective standard of reasonableness.\" Strickland v. Washington , 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Second, the defendant must show prejudice-\"that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.\" Id. at 694, 104 S.Ct. 2052. On review, \"[w]e will uphold a district court's factual findings about the existence of a fair or just reason to withdraw the plea unless they are clearly erroneous, and we will review the district court's ruling on the motion to withdraw for an abuse of discretion.\" Chavers , 515 F.3d at 724. Therefore, \"[r]eversals are rare, though not unheard of.\" Graf , 827 F.3d at 583-84. Here, the district court held Steinback's counsel was not ineffective, and thus, that Jansen's plea was knowing and voluntary. This was not an abuse of discretion. 1. Performance \"The proper measure of attorney performance [is] simply reasonableness under prevailing professional norms.\" Strickland , 466 U.S. at 688, 104 S.Ct. 2052. For Steinback's performance to fall below an objective standard of reasonableness, Jansen must show that Steinback \"performed seriously below professional standards.\" United States v. Williams , 698 F.3d" }, { "docid": "4885570", "title": "", "text": "of on direct appeal, it will not be reviewed again through a § 2255 motion. Singleton v. United States, 26 F.3d 233, 240 (1st Cir.1994) (citing Dirring v. United States, 370 F.2d 862, 863 (1st Cir.1967)). The Supreme Court has held that if a claim “was raised and rejected on direct review, the habeas court will not readjudicate it absent countervailing equitable considerations.” Withrow v. Williams, 507 U.S. 680, 721, 113 S.Ct. 1745, 123 L.Ed.2d 407 (1993). Given the First Circuit’s decision in Lassalle-Velázquez’s appeal that the fairness of the proceedings would not have been affected, these issues do not warrant further consideration. B. Counsel was not ineffective for failing to properly advise petitioner of the effects of pleading guilty Lassalle-Velázquez alleges that counsel failed to properly advise him of the effects of pleading guilty. It is well established that a defendant’s “declarations in open court carry a strong presumption of verity.” Blackledge v. Allison, 431 U.S. 63, 74, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977). 25 Here, the record indicates that Lassalle-Velázquez affirmatively answered in court that he had ample time to discuss the case and his decision to plead with his lawyer. (Crim. Docket No. 429 at 5.) The record also shows that Lassalle-Velázquez affirmatively 3 answered that he was satisfied with counsel’s work. (Crim. Docket No. 429 at 5.) It is clear from the record that counsel was not ineffective during the plea negotiation process. Lassalle-Velázquez also alleges that although counsel provided him advice as to the plea agreement, he did not show Lassalle-Velázquez the agreement. Counsel cannot perform ineffectively by failing to show his or her client a copy of the plea agreement. The law requires that defense counsel communicate offers to his client. Missouri v. Frye, — U.S.-, 132 S.Ct. 1399, 1408, 182 L.Ed.2d 379 (2012). Where a plea bargain has been offered, “a defendant has the right to effective assistance of counsel in considering whether to accept it.” Lafler v. Cooper, — U.S. -, 132 S.Ct. 1376, 1387, 182 L.Ed.2d 398 (2012). Ineffective assistance of counsel does not hinge on whether counsel gave his" }, { "docid": "12524672", "title": "", "text": "presented to prove prejudice. These cases, however, merely comment on the insufficiency of solitary pieces of evidence — a naked declaration that but for the erroneous advice, the defendant would have altered his choice to take a plea or go to trial; a third party affidavit stating the same; or after-the-fact evidence. Toro v. Fairman, 940 F.2d 1065, 1068 (7th Cir.1991) (self serving statement that the defendant would have accepted the plea in sufficient to demonstrate prejudice); Paters v. United States, 159 F.3d 1043, 1047 (7th Cir.1998) (noting that affidavit by defendant’s parents stating that he would have rejected the plea was, by itself, insufficient evidence of prejudice, but remanding for further evidentiary hearing); Johnson v. Duckworth, 793 F.2d 898, 902 n. 3 (7th Cir.1986) (court, in footnote dicta casting doubt on after-the-fact testimony by defendant that he would have taken a plea). In none of these cases did the court consider a package consisting of testimonial evidence, a history of plea discussion, and the nature of the misinformation as was presented both in this case and in Moore, 348 F.3d at 242-43. Julian need not demonstrate that his counsel’s deficient conduct more likely than not altered the outcome in the case. Strickland, at 693, 104 S.Ct. 2052 He need only demonstrate that the chances of prejudice were better than negligible. Canaan, 395 F.3d at 386. This he has done. The decision of the district court denying the writ of habeas corpus is reversed. Julian asks this court to order the State to put forth the original plea offer of two, twenty-three year concurrent terms of incarceration. The Supreme Court has announced that where there has been a finding of ineffective assistance of counsel in a § 2255 proceeding, the remedy “should be tailored to the injury suffered from the constitutional violation and should not unnecessarily infringe on competing interest” including the competing interest of preserving society’s interest in the administration of criminal justice. United States v. Morrison, 449 U.S. 361, 364, 101 S.Ct. 665, 66 L.Ed.2d 564 (1981). We do not think that requiring specific performance of the plea" }, { "docid": "6301466", "title": "", "text": "made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the [petitioner] by the Sixth Amendment.” Strickland, 466 U.S. at 687, 104 S.Ct. 2052. The petitioner also must show that he was prejudiced by counsel’s deficient representation. See Ouber, 293 F.3d at 25. A defense attorney in a criminal case has an obligation to keep his client apprised of plea offers made by the government. See Missouri v. Frye, 566 U.S. 133, 132 S.Ct. 1399, 1408, 182 L.Ed.2d 379 (2012). The failure to inform a client of a plea offer ordinarily constitutes ineffective assistance of counsel. See id.; United States v. Rodriguez Rodriguez, 929 F.2d 747, 752 (1st Cir. 1991) (per curiam). To show that prejudice resulted from such substandard performance, the petitioner “must demonstrate a reasonable probability' [that he] would have accepted the earlier plea offer had [he] been afforded effective assistance of counsel” and “that the end result of the criminal process would have been more favorable by reason of a plea to a lesser charge or a sentence of less prison time.” Frye, 132 S.Ct. at 1409. Finally, the petitioner must adduce facts indicating a reasonable probability that the prosecution would not have withdrawn the plea offer and that the district court would have imposed sentence in accordance with the terms of the offer. See id. Where, as here, á petitioner appeals the denial of a section 2255 motion following an evidentiary hearing, we review the district court’s legal conclusions de novo and its findings of fact for. clear error. See Casiano-Jiménez, 817 F.3d at 820. Clear error is a demanding standard: as we have said, “a party challenging a trial court’s factual findings faces a steep uphill climb.” Ferrara v. United States, 456 F.3d 278, 287 (1st Cir. 2006). The climb is steeper still when “the challengéd findings hinge on the trier’s credibility determinations,” to which a reviewing court must afford great deference. Id.; see Casiano-Jiménez, 817 F.3d at 820. Mindful of the stringency of this standard, we have made it pellucid that when the factfinder chooses between two plausible but competing views" }, { "docid": "6449759", "title": "", "text": "based on its finding that Sawaf had failed to satisfy Strickland’s second prong — the “prejudice” prong — by making the requisite showing that he would have accepted the Government’s plea offer if he had been properly informed by counsel as to the potential consequences of that decision. On appeal, Sawaf challenges the district court’s conclusion that he suffered no prejudice from his attorney’s failure to inform him about his otherwise applicable guidelines range. Sawaf argues that the district court departed from this Court’s precedent in United States v. Morris, 470 F.3d 596, 602-03 (6th Cir.2006), which explains that Strickland’s prejudice prong is presumptively satisfied when defense counsel fails to inform a defendant about a “substantial disparity” between the length of a prison sentence offered by the Government in a plea bargain and the otherwise applicable sentencing guidelines range. II. This Court generally reviews the district court’s legal conclusions de novo and its findings of facts for clear error in an appeal from the denial of a § 2255 motion. See Jefferson v. United States, 730 F.3d 537, 544 (6th Cir.2013); Palazzolo v. Gorcyca, 244 F.3d 512, 515 (6th Cir.2001). To the extent that Sawaf s ineffective’ assistance of counsel claim presents mixed questions of law and fact, however, the district court’s analysis is subject to de novo review. See United States v. Little, 208 F.3d 216 (6th Cir.1999) (citing Groseclose v. Bell, 130 F.3d 1161, 1164 (6th Cir. 1997)). III. Where, as here, a claim of ineffective assistance arises from the plea bargaining stage of criminal proceedings, the second part of the Strickland analysis, ie., the “prejudice” prong, “focuses on whether counsel’s constitutionally ineffective performance affected the outcome of the plea process.” Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985); accord Lafler v. Cooper, — U.S. -, 132 S.Ct. 1376, 1384, 182 L.Ed.2d 398 (2012); Missouri v. Frye, - U.S. -, 132 S.Ct. 1399, 1409-10, 182 L.Ed.2d 379 (2012); Fitzpatrick v. Robinson, 723 F.3d 624, 634 (6th Cir.2013); Cauthern v. Colson, 736 F.3d 465, 483 (6th Cir.2013). Once the defendant has satisfied the" }, { "docid": "20537122", "title": "", "text": "States v. Wade, 388 U.S. 218, 226, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), including during, the plea-bargaining process, see, e.g., Padilla v. Kentucky, 559 U.S. 356, 373-74, 130 S.Ct. 1473, 1486, 176 L.Ed.2d 284 (2010). While a criminal defendant “has no right to be offered a plea ... nor a federal right that the judge accept it,” Missouri v. Frye, — U.S. -, 132 S.Ct. 1399, 1410, 182 L.Ed.2d 379 (2012), “[i]f a plea bargain has been offered, a defendant has the right to effective assistance of counsel in considering whether to accept it,” Lafler v. Cooper, 566 U.S. -, 132 S.Ct. 1376, 1387, 182 L.Ed.2d 398 (2012). See also Gonzalez v. United States, 722 F.3d 118, 129-31 (2d Cir.2013). Claims of ineffective assistance of counsel in the plea context, like other ineffectiveness claims, are governed by the familiar standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See Frye, 132 S.Ct. at 1405 (citing Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985)). To succeed on such a claim, a petitioner must first “show that counsel’s representation fell below an objective standard of reasonableness,” that is, that “counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Strickland, 466 U.S. at 687-88, 104 S.Ct. 2052. To provide constitutionally adequate representation during plea negotiations, a lawyer must generally advise the client of any offer that the government extends, Frye, 132 S.Ct. at 1408 (citing Pham v. United States, 317 F.3d 178, 183 (2d Cir.2003)); outline “the strengths and weaknesses of the case against him,” Purdy v. United States, 208 F.3d 41, 45 (2d Cir.2000); and provide an estimate of the defendant’s sentencing exposure at trial, id. Judicial review of counsel’s performance is “highly deferential,” and courts “must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689, 104 S.Ct. 2052. Second, petitioner must establish that “the deficient performance prejudiced the defense,” id. at 687, 104 S.Ct." }, { "docid": "19488512", "title": "", "text": "§ 2255 motion. Downs v. United States , 879 F.3d 688, 690 (6th Cir. 2018). We review the district court's findings of fact for clear error. Guerrero v. United States , 383 F.3d 409, 414 (6th Cir. 2004). The ultimate question of whether a defendant received ineffective assistance of counsel is a mixed question of law and fact, which we also review de novo. United States v. Levenderis , 806 F.3d 390, 401 (6th Cir. 2015). III. Section 2255 allows a prisoner in federal custody to move the court to set aside or correct his sentence if \"the sentence was imposed in violation of the Constitution or laws of the United States, or ... the court was without jurisdiction to impose such sentence, or ... the sentence was in excess of the maximum authorized by law, or [the sentence] is otherwise subject to collateral attack.\" 28 U.S.C. § 2255(a). Petitioner bases his motion on the alleged denial of his Sixth Amendment right to counsel. The Sixth Amendment provides that \"[i]n all criminal prosecutions, the accused shall ... have the Assistance of Counsel for his defence.\" U.S. Const. amend. VI. This does not simply guarantee the mere existence of legal counsel but provides \"the right to effective counsel-which imposes a baseline requirement of competence.\" United States v. Gonzalez-Lopez , 548 U.S. 140, 148, 126 S.Ct. 2557, 165 L.Ed.2d 409 (2006) (emphasis added). The Supreme Court has extended this right to critical pre-trial proceedings, including plea negotiations. Missouri v. Frye , 566 U.S. 134, 140, 132 S.Ct. 1399, 182 L.Ed.2d 379 (2012). And the Court has made clear that a counsel's erroneous advice to reject a plea offer can establish ineffective assistance, so long as the criminal defendant can satisfy Strickland . Lafler v. Cooper , 566 U.S. 156, 172-74, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012). Under Strickland 's two-part framework, a criminal defendant claiming ineffective assistance of counsel during plea negotiations must prove that (1) counsel's performance was deficient, i.e., that \"counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth" }, { "docid": "2340574", "title": "", "text": "PER CURIAM. John Jacob Williams requests authorization to file a second 28 U.S.C. § 2255 motion. We deny the request. A jury found Mr. Williams guilty of two drug offenses and a firearm offense. The district court sentenced him to 300 months in prison, and we affirmed the convictions. United States v. Williams, 557 F.3d 943, 945 (8th Cir.2009). Mr. Williams then filed his first section 2255 motion. The district court denied the motion, and this court denied Mr. Williams’s request for a certificate of appealability. Mr. Williams now requests authorization to file a second section 2255 motion to present the claim that he rejected a favorable plea offer because trial counsel failed to adequately explain the terms of the offer and the consequences of rejecting it. In support of this claim, Mr. Williams cites Lafler v. Cooper, — U.S.-, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012), and Missouri v. Frye, — U.S. -, 132 S.Ct. 1399, 182 L.Ed.2d 379 (2012), cases in which the United States Supreme Court acknowledged that defendants have a constitutional right to effective assistance of counsel with respect to plea offers that lapse or are rejected. Mr. Williams claims he could not have presented his claim in his first section 2255 motion, which he filed before Cooper and Frye were decided. Pursuant to section 2255(h)(2), we can authorize the filing of a second or successive section 2255 motion that contains a claim based on a “new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.” 28 U.S.C. § 2255(h)(2). In Cooper and Frye, the Court noted that its analysis was consistent with the approach many lower courts had taken for years, as well as with its own precedent. See Cooper, 132 S.Ct. at 1385, 1390; Frye, 132 S.Ct. at 1408-10. We therefore conclude, as have the other circuit courts of appeals that have addressed the issue, that neither Cooper nor Frye announced a new rule of constitutional law. See Buenrostro v. United States, 697 F.3d 1137, 1140 (9th Cir.2012); In re King, 697 F.3d 1189" }, { "docid": "2115785", "title": "", "text": "unreasonable application of, clearly established Federal law, as determined by the Supreme Court” or when the state court’s analysis “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented.” § 2254(d)(l)-(2). In reviewing state court decisions entitled to deference under § 2254(d), we are confined to evidence before the state court when it rendered its decision. Cullen v. Pinholster, — U.S. —, 131 S.Ct. 1388, 1399, 179 L.Ed.2d 557 (2011). In such a case, we cannot augment our reasonableness review with evidence produced at a district court’s evidentiary hearing. Id. Although a state court decision that stems from an unreasonable application of federal law will usually meet § 2254(a)’s requirement that the petitioner’s custody be in “violation of the Constitution,” this court will engage in de novo review after a finding of unreasonableness to answer the 2554(a) question as if the state court never reached the merits. At that point, a federal court can benefit from an evidentiary hearing under § 2254(e). See Pinholster, 131 S.Ct. at 1412 (Breyer, J., concurring); Mosley v. Atchison, 689 F.3d 838, 853 (7th Cir.2012). Where the district court held an evidentiary hearing, we review its factual determinations for clear error but its determination of legal questions — whether the state court’s decision was unreasonable or whether the petitioner’s custody violates the Constitution— de novo. Morales v. Johnson, 659 F.3d 588, 599 (7th Cir.2011). On appeal, Quintana claims, as he did in the district court and in the state court proceedings, that he is entitled to habeas relief because his counsel was ineffective during the plea stage of his case. In order to show ineffective assistance of counsel, Quintana must prove that (1) his counsel’s performance prior to and during the plea negotiations was objectively deficient and (2) he was prejudiced by this performance because a reasonable probability existed that he would have accepted the plea but for his counsel’s deficient performance. Lafler v. Cooper, — U.S. —, 132 S.Ct. 1376, 1384, 1391, 182 L.Ed.2d 398 (2012); Strickland v. Washington, 466 U.S. 668, 687-88, 694," }, { "docid": "13995589", "title": "", "text": "and any annexed exhibits and the prior proceedings in the case that the movant is not entitled to relief in the district court, the judge shall make an order for its summary dismissal and cause the movant to be notified.” Rule 4(b) of the Rules Governing Section 2255 Proceedings (2003). “[A] hearing is not necessary if the petitioner makes conclusory or speculative allegations. rather than specific factual allegations.” Daniels v. United States, 54 F.3d 290, 293 (7th Cir.1995). “[T]he district court is entitled to consider all the circumstances in the record in determining whether a hearing should be afforded'.” Aleman v. United States, 878 F.2d 1009, 1012 (7th Cir.1989) (quoting Day v. United States, 357 F.2d 907, 910 (7th Cir.1966)). A. Plea Negotiations Gallo-Vasquez asserts that the government offered him a plea bargain that contemplated a 48-month sentence, and that his trial counsel provided him with ineffective assistance by advising him to reject the offer. He contends that counsel persuaded him to go to trial, despite the near certainty that he would be convicted. Had he been competently advised, Gallo-Vasquez alleges, he would have accepted the government’s offer. To prevail on a claim of ineffective assistance of counsel, petitioner must satisfy the two-part test first articulated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). First, petitioner “must show that counsel’s representation fell below an objective standard of reasonableness.” Id. at 688, 104 S.Ct. 2052. “[A] court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Id. at 689, 104 S.Ct. 2052. Second, petitioner “must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. 2052. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. We have recognized that counsel’s performance may fall below the minimum threshold if he advises his client to reject a plea bargain in the face of overwhelming evidence of guilt and an absence of viable defenses. See Toro v. Fairman," }, { "docid": "20579198", "title": "", "text": "context, meaning that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. 2052. In the plea negotiation context, our Court has recognized that it is “a lawyer’s general duty to advise a defendant concerning acceptance of a plea bargain.” Cullen v. United States, 194 F.3d 401, 404 (2d Cir.1999). Giving adequate advice should usually include, of course, providing information about “the strengths and weaknesses of the case against [the defendant], as well as the alternative sentences to which he will most likely be exposed.” Purdy v. United States, 208 F.3d 41, 45 (2d Cir.2000). • Because counsel must avoid both failing to give advice and coercing a plea, “[c]ounsel’s conclusion as to how best to advise a client ... enjoys a wide range of reasonableness.” Id. But a defense counsel’s performance is unreasonable “when it is so deficient that it falls outside the “wide range of professionally competent assistance.’ ” Kovacs v. United States, 744 F.3d 44, 50 (2d Cir.2014) (quot ing Strickland, 466 U.S. at 690, 104 S.Ct. 2052). To establish prejudice when, as here, ineffective assistance is alleged to have resulted in a rejection of a plea offer and the defendant is convicted at the ensuing trial, “a defendant must show the outcome of the plea process would have been different with competent advice.” Lafler v. Cooper, — U.S. -, 132 S.Ct. 1376, 1384, 182 L.Ed.2d 398 (2012). The Supreme Court requires a three-part showing of such a defendant. He must demonstrate that: (1) “but for the ineffective advice of counsel there is a reasonable probability that the plea offer would have been presented to the court,” (2) “the court would have accepted its terms,” and (3) “the conviction or sentence, or both, under the offer’s terms would have been less severe than under the judgment and sentence that in fact were imposed.” Id. at 1385. Although they may later be subject to challenge, Fulton’s sworn assertions provide sufficient reason at this stage to believe that he may be entitled to relief" }, { "docid": "9283529", "title": "", "text": "L.Ed.2d 162 (1970) ). \"[A] defendant does not have an absolute right to withdraw a plea before sentencing.\" United States v. Chavers , 515 F.3d 722, 724 (7th Cir. 2008) (quoting United States v. Carroll , 412 F.3d 787, 792 (7th Cir. 2005) ). However, he \"may withdraw a plea of guilty ... [if he] can show a fair and just reason for requesting the withdrawal.\" Fed. R. Crim. P. 11(d)(2)(B). \"Because the defendant's statements at the plea colloquy are presumed to be true, the defendant bears a heavy burden of persuasion in showing that such a fair and just reason exists.\" Chavers , 515 F.3d at 724 ; see also United States v. Graf , 827 F.3d 581, 584 (7th Cir. 2016) (\"A defendant's motion to withdraw is unlikely to have merit if it seeks to dispute his sworn assurances to the court.\"). \"[P]lea bargains have become so central to the administration of the criminal justice system that defense counsel have responsibilities in the plea bargain process ... that must be met to render the adequate assistance of counsel that the Sixth Amendment requires in the criminal process at critical stages.\" Missouri v. Frye , 566 U.S. 134, 143, 132 S.Ct. 1399, 182 L.Ed.2d 379 (2012) ; see also Lafler v. Cooper , 566 U.S. 156, 163, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012) (\"During plea negotiations defendants are 'entitled to the effective assistance of competent counsel.' \" (quoting McMann v. Richardson , 397 U.S. 759, 771, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970) ) ). Thus, \"a plea, even one that complies with Rule 11, cannot be 'knowing and voluntary' if it resulted from ineffective assistance of counsel.\" Hurlow v. United States , 726 F.3d 958, 968 (7th Cir. 2013). We apply the two-part Strickland test to ineffective assistance of counsel claims in the plea bargain context. Frye , 566 U.S. at 140, 132 S.Ct. 1399. First, the defendant must show deficient performance-\"that counsel's representation fell below an objective standard of reasonableness.\" Strickland v. Washington , 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Second," }, { "docid": "17342491", "title": "", "text": "the conspiracy, as well as for the use of guns and his leadership role as a “king” of the Black Disciples. He contends that, had Friedlander effectively explained that the government could still seek to enhance his Sentencing Guidelines range based on facts he did not admit to during his plea colloquy, he would have proceeded to trial or agreed to the written plea agreement proposed by the government. To succeed on his ineffective assistance claim Thompson must show deficient performance; namely, that Friedlander grossly mischaracterized the sentencing consequences of pleading guilty to conspiracy. See Julian v. Bartley, 495 F.3d 487, 496-97 (7th Cir.2007); United States v. Cieslowski, 410 F.3d 353, 358-59 (7th Cir.2005). Thompson admits, however, that Friedlander urged him to accept the written plea agreement, and Friedlander stated at the hearing that by not signing the written agreement and proceeding with a blind plea, Thompson was acting “against his advice.” Even if Friedlander’s advice somehow led Thompson to believe that he could effectively cabin his sentence by admitting to a limited factual basis, Thompson cannot demonstrate the requisite prejudice to succeed on his ineffective assistance claim because his evidence does not show that, but for Fried-lander’s failings, he would have accepted the written plea agreement, see Missouri v. Frye, — U.S. —, 132 S.Ct. 1399, 1409, 182 L.Ed.2d 379 (2012), or proceeded to trial, see Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). First, Thompson cannot show that, had Friedlander better advised him, he would have pleaded guilty pursuant to the written plea agreement. During his plea hearing, Thompson emphatically refused to admit to the factual basis of the agreement. And he cannot show prejudice because, even now, he refuses to acknowledge his full culpability as would be required under the plea offer. See United States v. Parker, 609 F.3d 891, 895 (7th Cir.2010). Second, Thompson cannot show that Friedlander’s alleged failure to clarify the sentencing consequences of pleading guilty to conspiracy was a “decisive factor” in his decision to forgo trial because the district court’s explanation of the sentencing process at" }, { "docid": "9760691", "title": "", "text": "in Frye by setting forth a “more general test.” But as the Tenth Circuit also pointed out, Frye explicitly reaffirmed Hill as applied to its facts. Id. The standard in Frye differs only to the extent that the procedural facts differed. In Hill the defendant went to trial on defective advice, and in Frye the defendant pled guilty on defective advice. This difference required the Court to look “not at whether the defendant would have proceeded to trial absent ineffective assistance but whether he would have accepted the offer to plead pursuant to the terms earlier proposed.” Frye, 132 S.Ct. at 1410. Both Hill and Frye apply “Strickland’s inquiry into whether ‘the result of the proceeding would have been different’ ” to a reasonable probability. Id., quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052. We recognized long ago the potential for ineffective assistance claims arising from uncommunicated plea offers. See Johnson v. Duckworth, 793 F.2d 898, 902 (7th Cir.1986) (counsel failed to let defendant decide whether to accept or reject plea offer; denying relief based on “unique circumstances” of defendant’s youth and confusion, and counsel’s decision to reject plea offer based on consultations with defendant’s parents). Since Johnson we have recognized the right to effective assistance in the plea negotiation process in various factual circumstances. See, e.g., Paters v. United States, 159 F.3d 1043 (7th Cir.1998) (legally faulty advice about plea offer and defendant’s options); Gallo-Vasquez v. United States, 402 F.3d 793, 798 (7th Cir.2005) (recognizing that faulty advice to reject plea offer may satisfy Strickland performance prong). We are not alone in this, as the Supreme Court noted in Cooper, citing cases from ten circuits. 132 S.Ct. at 1385. This prevailing view among the circuits is further evidence that the rule announced in Frye was dictated by the Constitution and by prior Supreme Court precedents and was therefore not new. Hare cannot bring a successive collateral attack under § 2255(h)(2) because the rule governing his claim was established at the time of his first collateral attack. We must address one other issue. Hare points out that, as a" }, { "docid": "12169283", "title": "", "text": "Strickland, 466 U.S. at 689, 104 S.Ct. 2052). The central question in this analysis is not whether counsel’s conduct “deviated from best practices or most common custom,” but instead, “whether an attorney’s representation amounted to incompetence under ‘prevailing professional norms.’ ” Sussman v. Jenkins, 636 F.3d 329, 349-50 (7th Cir. 2011) (quoting Harrington, 562 U.S. at 105, 131 S.Ct. 770). In other words, a counsel’s representation “need not be perfect, indeed not even very good, to be constitutionally adequate.” McAfee v. Thurmer, 589 F.3d 353, 355-56 (7th Cir. 2009) (quoting Dean v. Young, 777 F.2d 1239, 1245 (7th Cir. 1985)). It must merely be reasonably competent. Strickland, 466 U.S. at 687, 104 S.Ct. 2052. Delatorre is correct that his Sixth Amendment right to effective counsel “extends to the plea-bargaining process.” Lafler v. Cooper, 566 U.S. 156, 162, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012); see also Missouri v. Frye, 566 U.S. 133, 144, 132 S.Ct. 1399, 182 L.Ed.2d 379 (2012) (“In today’s criminal justice system ... the negotiation of a plea bargain, rather than the unfolding of a trial, is almost always the critical point for a defendant.”). The Supreme Court has held that an attorney who fails to make a meaningful attempt to inform his client of an existing written plea offer, Frye, 566 U.S. at 149, 132 S.Ct. 1399, or advises his client to reject a highly favorable plea offer “on the grounds [the client] could not be convicted at trial,” Lafler, 566 U.S. at 163, 132 S.Ct. 1376, has performed deficiently under the Sixth Amendment. Delatorre cannot rely on these cases, however, because he was never formally offered a plea agreement. Instead, Delatorre’s claim of deficient performance centers on his attorney’s inability to secure a plea deal that included a maximum recommended sentence of twenty-five to thirty years. In making this argument, Delatorre again focuses on the prosecutor’s alleged promise to provide him with a plea agreement. True enough, the prosecutor did suggest that, if Dela-torre continued to cooperate, the government would then offer him a plea agreement. But even if we assume that this suggestion was" }, { "docid": "6449760", "title": "", "text": "730 F.3d 537, 544 (6th Cir.2013); Palazzolo v. Gorcyca, 244 F.3d 512, 515 (6th Cir.2001). To the extent that Sawaf s ineffective’ assistance of counsel claim presents mixed questions of law and fact, however, the district court’s analysis is subject to de novo review. See United States v. Little, 208 F.3d 216 (6th Cir.1999) (citing Groseclose v. Bell, 130 F.3d 1161, 1164 (6th Cir. 1997)). III. Where, as here, a claim of ineffective assistance arises from the plea bargaining stage of criminal proceedings, the second part of the Strickland analysis, ie., the “prejudice” prong, “focuses on whether counsel’s constitutionally ineffective performance affected the outcome of the plea process.” Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985); accord Lafler v. Cooper, — U.S. -, 132 S.Ct. 1376, 1384, 182 L.Ed.2d 398 (2012); Missouri v. Frye, - U.S. -, 132 S.Ct. 1399, 1409-10, 182 L.Ed.2d 379 (2012); Fitzpatrick v. Robinson, 723 F.3d 624, 634 (6th Cir.2013); Cauthern v. Colson, 736 F.3d 465, 483 (6th Cir.2013). Once the defendant has satisfied the first prong of Strickland by establishing that counsel’s performance was constitutionally defective, the threshold showing of prejudice required to satisfy the second prong is comparatively low — in such cases, the prejudice prong is satisfied if there is a “reasonable probability” that the defendant would have accepted the Government’s plea offer, but-for counsel’s ineffective assistance or inadequate advice. Lafler, 132 S.Ct. at 1385; see also Hodges v. Colson, 727 F.3d 517, 550 (6th Cir.2013) (en banc) (citing Griffin v. United States, 330 F.3d 733, 737 (6th Cir.2003), for the proposition that it is easier to show prejudice in the guilty plea context than in other contexts because the claimant need only show a reasonable probability that he would have pleaded differently). Accordingly, if reasonable minds could conclude that a fully informed defendant would have accepted the Government’s plea offer, then the defendant is entitled to relief. Moreover, if counsel failed to provide the defendant with an estimated range of the penalties that could result from a trial conviction, the prejudice prong is presumptively satisfied if" }, { "docid": "20537121", "title": "", "text": "believed was sound, was not a viable defense; had he been so advised, he says that he would have favorably considered a plea of guilty. Secondly, he argues that his lawyers’ advice that the defense of entrapment had a “50/50” chance of success at trial was an overestimate; once again, he says that he would have favorably considered pleading guilty to the charges had he known that this defense was less likely to succeed. Since the undisputed facts conclusively show that Siraj is entitled to no relief, the petition is denied without a hearing. DISCUSSION I. Standard of Review A prisoner held in federal custody may “move the court which imposed the sentence to vacate, set aside, or correct the sentence.” 28 U.S.C. § 2255(a). To obtain relief under section 2255, a petitioner must establish that the sentenced imposed was, among other grounds, “in violation of the Constitution or laws of the United States.” Id. The Sixth Amendment guarantees the right to effective assistance of counsel at all “critical stages of a criminal proceeding,” United States v. Wade, 388 U.S. 218, 226, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), including during, the plea-bargaining process, see, e.g., Padilla v. Kentucky, 559 U.S. 356, 373-74, 130 S.Ct. 1473, 1486, 176 L.Ed.2d 284 (2010). While a criminal defendant “has no right to be offered a plea ... nor a federal right that the judge accept it,” Missouri v. Frye, — U.S. -, 132 S.Ct. 1399, 1410, 182 L.Ed.2d 379 (2012), “[i]f a plea bargain has been offered, a defendant has the right to effective assistance of counsel in considering whether to accept it,” Lafler v. Cooper, 566 U.S. -, 132 S.Ct. 1376, 1387, 182 L.Ed.2d 398 (2012). See also Gonzalez v. United States, 722 F.3d 118, 129-31 (2d Cir.2013). Claims of ineffective assistance of counsel in the plea context, like other ineffectiveness claims, are governed by the familiar standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See Frye, 132 S.Ct. at 1405 (citing Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d" } ]

[ { "docid": "18053528", "title": "", "text": "Act. Sections 11 and 12(a)(2) require proof of “untrue or misleading statements or omissions of material fact.” In re In re Donald J. Trump Casino Securities Litigation-Taj Mahal Litigation, 7 F.3d 357, 368 (3d Cir. 1993), cert. denied, 510 U.S. 1178, 114 S.Ct. 1219, 127 L.Ed.2d 565 (1994). A misrepresentation of fact is material under §§ 11 and 12(a)(2) when an investor would attach importance to it in making an investment decision. Basic Inc. v. Levinson, 485 U.S. 224, 231, 108 S.Ct. 978, 983, 99 L.Ed.2d 194 (1988); Kronfeld v. Trans World Airlines, Inc., 832 F.2d 726, 731 (2d Cir.1987) (§ 11 case), cert. denied, 485 U.S. 1007, 108 S.Ct. 1470, 99 L.Ed.2d 700 (1988); Sussman v. Paradigm Partners, Inc., 91 Civ. 2892, 1992 WL 321783, at * 9 (S.D.N.Y. Oct.26, 1992) (§ 12(a)(2) case). An omission is material if there is a substantial likelihood that the “disclosure of the omitted fact would have been viewed by the reasonable investor as having significantly altered the ‘total mix’ of the information made available.” TSC Indus., Inc. v. Northway, Inc., 426 U.S. 438, 449, 96 S.Ct. 2126, 2132, 48 L.Ed.2d 757 (1976); Fisher v. Ross, 93 Civ. 0275, 1996 WL 586345, at *9 (S.D.N.Y. Oct.11, 1996) (§ 11 case). A court should determine whether a statement was “material” by adopting the perspective of an investor on the date the registration containing the prospectus at issue became effective. Nelson v. Paramount Communications, Inc., 872 F.Supp. 1242, 1246 (S.D.N.Y.1994). Thus, “fraud by hindsight” — the attempt to impose liability for unrealized economic predictions — is not actionable. See Sinay v. Lamson & Sessions Co., 948 F.2d 1037, 1040 (6th Cir.1991). While questions of materiality have traditionally been viewed as particularly appropriate for the trier of fact, complaints alleging securities laws violations often eon- tain claims of omissions or misstatements that are “obviously so unimportant that courts can rule them immaterial as a matter of law at the pleading stage.” In re Burlington Coat Factory Securities Litig., 114 F.3d 1410, 1426 (3d Cir.1997). A. Statements in the Prospectus Plaintiffs assert that the following constituted material" } ]

[ { "docid": "23568276", "title": "", "text": "same statute, and enacted by the same Congress, given that courts strive to give the same interpretation to identical words in different statutes. See, e.g., Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 117-18, 121 S.Ct. 1302, 149 L.Ed.2d 234 (2001) (applying same interpretation to identical words in similar statutes); Morales v. Trans World Airlines, Inc., 504 U.S. 374, 384, 112 S.Ct. 2031, 119 L.Ed.2d 157 (1992) (same). . See, e.g., In re NationsMart Corp. Sec. Litig., 130 F.3d 309, 315 (8th Cir.1997) (declining to apply Rule 9(b) to Section 11 claims because \"a pleading standard which requires a party to plead particular facts to support a cause of action that does not include fraud or mistake as an element comports neither with Supreme Court precedent nor with the liberal system of ‘notice pleading’ embodied in the Federal Rules of Civil Procedure”); In re In-Store Adver. Sec. Litig., 878 F.Supp. 645, 650 (S.D.N.Y.1995) (\"This court finds that '[b]e-cause proof of fraud is not necessary to prevail on a Section 11 claim ... Rule 9(b) does not apply to a Section 11 claim.’ ”) (alteration in original) (citations omitted); Nelson v. Paramount Communications, Inc., 872 F.Supp. 1242, 1246 (S.D.N.Y.1994) (\"While Defendants contend that the requirements of Rule 9(b) of the Federal Rules of Civil Procedure apply to Section 11 claims, the law in the Southern District appears to be to the contrary.”); In re College Bound Consol. Litig., No. 93 Civ. 2348, 1994 WL 172408, at *3 (S.D.N.Y. May 4, 1994) (\"College Bound I”) (\"[Defendant] appears to be under the misapprehension that the pleading of plaintiffs’ Section 11 claim is governed by the strict requirements of Federal Rule of Civil Procedure Rule 9(b), rather than the minimal requirements of Rule 8(a).”); In re AnnTaylor Stores Sec. Litig., 807 F.Supp. 990, 1003 (S.D.N.Y.1992) (\"Because proof of fraud is not necessary to prevail on a Section 11 claim, courts have long held that Rule 9(b) does not apply to a Section 11 claim.”) (citations omitted); Ross v. Warner, 480 F.Supp. 268, 273 (S.D.N.Y.1979) (\"At the outset, it should be noted that a" }, { "docid": "16899106", "title": "", "text": "12(b)(6).” De Jesus v. Sears, Roebuck & Co., 87 F.3d 65, 70 (2d Cir.1996) (internal quotations omitted). III. Discussion A. The Securities and Common Law Fraud Claims In their first claim, plaintiffs allege that the Halls made certain misrepresentations in the Offering Memorandum, in violation of Sections 10(b) and 20(a) of the Exchange Act, 15 U.S.C. §§ 78j(b), 78t(a), and Rule 10b-5, 17 C.F.R. § 240.10b-5. Plaintiffs’ second claim, which alleges common law fraud, arises from the same operative facts. 1. Pleading Reliance Reasonable reliance is an element required of claims under § 10(b) and Rule 10b-5, see Harsco Corp. v. Segui, 91 F.3d 337, 342 (2d Cir.1996) (citing, inter alia, Azrielli v. Cohen Law Offices, 21 F.3d 512, 517 (2d Cir.1994)), and under New York common law. See id. (citing Channel Master Corp. v. Aluminium Ltd. Sales, Inc., 4 N.Y.2d 403, 176 N.Y.S.2d 259, 262, 151 N.E.2d 833 (1958)); Flickinger v. Harold C. Brown & Co., 947 F.2d 595, 599 (2d Cir.1991). To determine whether a plaintiffs reliance on an alleged misstatement was reasonable, a court may, on a motion to dismiss, examine the text of the document at issue, including any cautionary language contained therein. See Olkey v. Hyperion 1999 Term Trust, Inc., 98 F.3d 2, 5-9 (2d Cir.1996); I. Meyer Pincus & Assocs., P.C. v. Oppenheimer & Co., 936 F.2d 759, 761-63 (2d Cir.1991); Hinerfeld v. United Auto Group, 97 Civ. 3533, 1998 WL 397852, at *4 (S.D.N.Y. July 15, 1998); Schoenhaut v. American Sensors, Inc., 986 F.Supp. 785, 792-93 (S.D.N.Y.1997). For, “the ‘central issue ... is not whether the particular statements taken separately, were literally true, but whether defendants’ representations, taken together and in context, would have misl[ed] a reasonable investor about the nature of the [securities].’” Olkey, 98 F.3d at 5 (citing McMahan & Co. v. Wherehouse Entertainment, Inc., 900 F.2d 576, 579 (2d Cir.1990)) (modifications in original). Plaintiffs contend that in the Offering Memorandum, the Halls misrepresented, inter alia, “their experience [and] the knowledge and relationships of [United Golfs] officers in the golf industry.” Plaintiffs’ Memorandum of Law in Opposition to Defendants’ Motion to" }, { "docid": "12957314", "title": "", "text": "the Southern District are divided on the question. See, e.g., Griffin v. PaineWebber, 84 F.Supp.2d 508, 513 (S.D.N.Y.2000) (noting split within the District); In re N2K Inc. Sec. Litig., 82 F.Supp.2d 204, 210 n. 10 (S.D.N.Y.2000) (Rule 9(b) applies); Schoenhaut v. American Sensors, Inc., 986 F.Supp. 785, 795 (S.D.N.Y.1997) (same); Geiger v. Solomon-Page Group, Ltd., 933 F.Supp. 1180, 1189 (S.D.N.Y.1996) (same); In re In-Store Advertising Sec. Litig., 878 F.Supp. 645, 650 (S.D.N.Y.1995) (Rule 9(b) inapplicable); Nelson v. Paramount Communications, Inc., 872 F.Supp. 1242, 1246 (S.D.N.Y.1994) (same). Several courts have declined to apply Rule 9(b)’s pleading requirement where plaintiffs “selectively parsed their complaint to indicate that their claims under section 11 are based upon negligence.” In re Chambers Dev. Sec. Litig., 848 F.Supp. 602, 624 (W.D.Pa.1994). As the Eighth Circuit noted in In re NationsMari Corp. Sec. Litig., “[t]he only consequence of a holding that Rule 9(b) is violated with respect to a § 11 claim would be that any allegation of fraud would be stripped from the claim. The allegations of innocent or negligent misrepresentation, which are at the heart of the § 11 claim, would survive.” 130 F.3d 309, 315 (8th Cir.1997). Here, the gravamen of the Noteholders’ complaint sounds in fraud, but the complaint attempts to segregate the Securities Act claims from the Exchange Act claims by listing them under separate headings and expressly stating that they sound in negligence, not fraud. Such a boilerplate disclaimer was rejected in In re American Bank Note Holographies, Inc. Sec. Litig., 93 F.Supp.2d 424 (S.D.N.Y.2000). There, plaintiffs asserted § 10(b) and § 11 claims against the company’s directors and officers but asserted only § 11 claims against the underwriters. The court held that Rule 9(b) applied with respect to the § 11 claims asserted against the company’s directors and officers because the plaintiff alleged a scheme of fraud against them. The court found that fraud had been stated with particularity. However, as noted above, the Notehold-ers in the case at hand have sufficiently alleged negligence on the part of D & T as separate, alternative claims independent of the fraud claims." }, { "docid": "23632728", "title": "", "text": "intentionally issued this conclusion knowing of its falsity. . Paragraph 166 of the Second Amended Complaint states: “Plaintiffs incorporate ¶¶ 1-161. Plaintiffs expressly disclaim any allegations of fraud, knowledge, intent, or scienter.” . Other Courts of Appeals to consider the issue both pre and post passage of the PSLRA have also concluded that Rule 9(b) applies to section 11 claims sounding in fraud. See, e.g., Rombach v. Chang, 355 F.3d 164, 171 (2d Cir.2004) (\"We hold that the heightened pleading standard of Rule 9(b) applies to Section 11 and Section 12(a)(2) claims insofar as the claims are premised on allegations of fraud.”); Lone Star Ladies Inv. Club v. Schlotzsky's, Inc., 238 F.3d 363, 368 (5th Cir.2001) (approving district court’s reliance on Melder v. Morris, 27 F.3d 1097, 1100 n. 6 (5th Cir.1994) for proposition that Rule 9(b) is applicable to 1933 Securities Act claims that are grounded in fraud); In re Stac Elecs. Sec. Litig., 89 F.3d 1399, 1404 (9th Cir.1996) (\"We now clarify that the particularity requirements of Rule 9(b) apply to claims brought under section 11 when, ... they are grounded in fraud.”); Sears v. Likens, 912 F.2d 889, 893 (7th Cir.1990) (plaintiffs \"fail[ed] to satisfy this 9(b) standard” applicable to their Securities Act claims sounding in fraud where \"their complaint [was] bereft of any [particularity]\"); accord Schwartz v. Celestial Seasonings, Inc., 124 F.3d 1246, 1252 (10th Cir.1997) (\"[a]ssuming without deciding” that the approach set out by the Third Circuit in Shapiro applies, and holding that \"the § 11 claim in the case at bar ... does not trigger Rule 9(b) scrutiny” because “it is not premised on fraud.”); Shaw v. Digital Equip. Corp., 82 F.3d 1194, 1223 (1st Cir.1996) (dictum) (\"[I]f a plaintiff were to attempt to establish violations of Sections 11 and 12[a](2) as well as the anti-fraud provisions of the Exchange Act though allegations in a single complaint or a unified course of fraudulent conduct ... the particularity requirements of Rule 9(b) would probably apply to the Sections 11, 12[a](2), and Rule 10b-5 claims alike.”). But see In re NationsMart Corp. Sec. Litig., 130 F.3d" }, { "docid": "4500943", "title": "", "text": "the misrepresentations is not an element of a Section 11 claim; indeed, a defendant can be held liable even for an innocent misstatement. Schwartz v. Celestial Seasonings, Inc., 124 F.3d 1246, 1251 (10th Cir.1997), citing Herman & MacLean, 459 U.S. at 382,103 S.Ct. 683; In re Donald J. Trump Casino Securities Litigation, 7 F.3d 357, 368 n. 10 (3d Cir.1993) (“[Section 10-b claimants] must plead not only that the defendants made material omissions and/or misrepresentations, but also that they reasonably relied on them and that the defendants acted with knowledge or recklessness ... §§11 and 12(2) impose no such requirements”) (citations omitted). d. As to the pleading requirements of the Section 11 claim Finally, the Defendants contend that the Plaintiffs should be held to the heightened pleading requirements of Rule 9(b) on their claims under Sections 11 and 12 of the Securities Act, because, although the claims do not specifically seek to allege fraudulent conduct, the nature of the allegations “clearly sound in fraud.” See e.g. In re American Bank Note Holographies, Inc., 93 F.Supp.2d 424, 439-440 (S.D.N.Y.2000) (if plaintiff relies on the same facts to support both a Section 11 claim and claim of fraudulent conduct under Section 10-b of the Exchange Act, both claims must be pleaded with Rule 9(b) particularity), citing In re Stac Electronics, 89 F.3d 1399, 1405 n. 2 (9th Cir.1996). While requiring Securities Act claims sounding in fraud to be pleaded under Rule 9(b) appears to be the prevailing position, see e.g. Ellison v. American Image Motor Co., 36 F.Supp.2d 628 (S.D.N.Y.1999), it receives something less than unanimous support. See Griffin v. PaineWebber Inc., 84 F.Supp.2d 508, 513 (S.D.N.Y.2000) (noting contrary cases). This Court need not add its own voice to this chorus of disharmony. Even if the Plaintiffs were held to the strict pleading requirements of Rule 9(b), they have met its requirements. The Plaintiffs have specifically identified the statements alleged to be fraudulent, usually by quoting the offending language in the complaint. See e.g. Complaint ¶¶ 44, 50, 55, 62, 64, 67, 74, 82, 85, 89, 92, 96. After each reference to" }, { "docid": "23632729", "title": "", "text": "under section 11 when, ... they are grounded in fraud.”); Sears v. Likens, 912 F.2d 889, 893 (7th Cir.1990) (plaintiffs \"fail[ed] to satisfy this 9(b) standard” applicable to their Securities Act claims sounding in fraud where \"their complaint [was] bereft of any [particularity]\"); accord Schwartz v. Celestial Seasonings, Inc., 124 F.3d 1246, 1252 (10th Cir.1997) (\"[a]ssuming without deciding” that the approach set out by the Third Circuit in Shapiro applies, and holding that \"the § 11 claim in the case at bar ... does not trigger Rule 9(b) scrutiny” because “it is not premised on fraud.”); Shaw v. Digital Equip. Corp., 82 F.3d 1194, 1223 (1st Cir.1996) (dictum) (\"[I]f a plaintiff were to attempt to establish violations of Sections 11 and 12[a](2) as well as the anti-fraud provisions of the Exchange Act though allegations in a single complaint or a unified course of fraudulent conduct ... the particularity requirements of Rule 9(b) would probably apply to the Sections 11, 12[a](2), and Rule 10b-5 claims alike.”). But see In re NationsMart Corp. Sec. Litig., 130 F.3d 309, 314 (8th Cir.1997) (holding that \"the particularity requirement of Rule 9(b) does not apply to claims under § 11 of the Securities Act, because proof of fraud or mistake is not a prerequisite to establishing liability under § 11.”). . Actually, Count II's incorporation of allegations located elsewhere in the Complaint, including the scienter and scheme allegations, was amended to reflect the paragraph renumbering that occurred as a result of other amendments made to the Amended Complaint. . Plaintiffs did present the District Court with a new source to provide further detail regarding the alleged internal memo cited in the Second Amended Complaint. The new source, a former underwriter in Chubb's Southern Zone, asserts that Defendant O’Hare was the author of the memo and that the memo merely slated that the targeted 10% to 15% premium increases were not being achieved. While this amendment may resolve some of the particularity concerns regarding the alleged internal memo, it does not address its primary deficiencies, including when the memo was authored, the basis for the opinion" }, { "docid": "23568277", "title": "", "text": "does not apply to a Section 11 claim.’ ”) (alteration in original) (citations omitted); Nelson v. Paramount Communications, Inc., 872 F.Supp. 1242, 1246 (S.D.N.Y.1994) (\"While Defendants contend that the requirements of Rule 9(b) of the Federal Rules of Civil Procedure apply to Section 11 claims, the law in the Southern District appears to be to the contrary.”); In re College Bound Consol. Litig., No. 93 Civ. 2348, 1994 WL 172408, at *3 (S.D.N.Y. May 4, 1994) (\"College Bound I”) (\"[Defendant] appears to be under the misapprehension that the pleading of plaintiffs’ Section 11 claim is governed by the strict requirements of Federal Rule of Civil Procedure Rule 9(b), rather than the minimal requirements of Rule 8(a).”); In re AnnTaylor Stores Sec. Litig., 807 F.Supp. 990, 1003 (S.D.N.Y.1992) (\"Because proof of fraud is not necessary to prevail on a Section 11 claim, courts have long held that Rule 9(b) does not apply to a Section 11 claim.”) (citations omitted); Ross v. Warner, 480 F.Supp. 268, 273 (S.D.N.Y.1979) (\"At the outset, it should be noted that a successful action under section 11 does not require proof of fraud, and therefore, the Rule 9(b) particularity requirement does not apply.”) (citations omitted); Billet v. Storage Tech. Corp., 72 F.R.D. 583, 585 (S.D.N.Y.1976) (noting that fraud need not be alleged under sections 11 and 12 and Rule 9(b) is inapplicable to them); Schoenfeld v. Giant Stores Corp., 62 F.R.D. 348, 351 (S.D.N.Y.1974) (\"[sjection 11 is not restricted by the rule of particularity”). . The Second Circuit has not yet decided this issue. See 11/1/02 Tr. at 205 (statement of Mark Holland). . See, e.g., Danis v. USN Communications, Inc., 73 F.Supp.2d 923, 932 (N.D.Ill.1999) (\"It remains unsettled in this circuit whether Rule 9(b)'s requirement of particularity when pleading fraud applies to §§11 and 12 claims.”); In re First Merchs. Acceptance Corp. Sec. Litig., No. 97-C2715, 1998 WL 781118, at * 11 (N.D.I11. Nov.4, 1998) (“The court agrees with Plaintiffs, however, that the court in Sears was not asked to, nor did it, determine whether Rule 9(b) properly applied to § 11 claims, which do not" }, { "docid": "4964727", "title": "", "text": "1054, 127 L.Ed.2d 375 (1994). A motion to dismiss may be granted only if it appears beyond doubt that the plaintiff can prove no set of facts in support of her claim which would entitle her to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). B. Rule 9(b). Rule 9(b) requires that “[i]n all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity.” Fed. R. Civ. Proc. 9(b). “ ‘[T]he complaint must: (1) specify the statements that the plaintiff contends were fraudulent, (2) identify the speaker, (3) state where and when the statements were made, and (4) explain why the statements were fraudulent.’ ” Acito v. IMCERA Group, Inc., 47 F.3d 47, 51 (2d Cir.1995) (quoting Mills v. Polar Molecular Corp., 12 F.3d 1170, 1175 (2d Cir.1993)). In addition to Rule 9(b), a plaintiff must also satisfy the heightened pleading requirements of the Private Securities Litigation Reform Act of 1995 (“PSLRA”). See 15 U.S.C. § 78u-4(b). The parties dispute whether Rule 9(b) applies to claims under Section 11 and Section 12(2). The Court of Appeals has not decided this issue, and courts in this district disagree on the application of Rule 9(b). See Griffin v. PaineWebber Inc., No. 99 Civ. 2292, 2000 WL 178180, at *4 (S.D.N.Y. Feb. 14, 2000). Those courts that have determined that Rule 9(b) is applicable to Section 11 and Section 12(2) have limited its application to cases where the complaint is grounded in fraud. See, e.g., Griffin, 2000 WL 178180, at *4; Ellison v. American Image Motor Co., 36 F.Supp.2d 628, 639 (S.D.N.Y.1999); Schoerihaut v. American Sensors, Inc., 986 F.Supp. 785, 795 (S.D.N.Y.1997). I find this reasoning persuasive and look to the allegations of the Complaint to determine whether plaintiffs’ Securities Act claims sound in fraud. With respect to the Individual Defendants and Contente, plaintiffs make little, if any, effort to differentiate their asserted negligence claims from the fraud claims which permeate the Complaint. Plaintiffs argue that their Section 11, Section 12(2) and Section 15 allegations, which incorporate certain paragraphs of" }, { "docid": "14794930", "title": "", "text": "The Second Circuit has not spoken on the question of whether 9(b)’s heightened standards are applicable to actions brought pursuant to §§ 11 or 12(a)(2) of the Securities Act, and courts in the Southern District are divided on the question. See, e.g., In re N2K Inc. Sec. Litig., 82 F.Supp.2d 204, 209 n. 10 (S.D.N.Y.2000) (9(b) applies); Schoenhaut v. American Sensors, Inc., 986 F.Supp. 785, 795 (S.D.N.Y.1997) (same); Geiger v. Solomon-Page Group, Ltd., 938 F.Supp. 1180, 1189 (S.D.N.Y.1996) (same); In re In-Store Advertising Sec. Litig., 878 F.Supp. 645 (S.D.N.Y.1995) (9(b) inapplicable); Nelson v. Paramount Communications, Inc., 872 F.Supp. 1242 (S.D.N.Y. 1994) (same). Even the courts which have held that 9(b) can be applicable, however, have so held in cases where there were actual allegations of fraud in the complaint. See, e.g., Schoenhaut, 986 F.Supp. at 795 (“Plaintiffs ... have alleged fraudulent intent.”). Fraud is certainly not a necessary element of a claim brought pursuant to § 11 or § 12(a)(2), in contrast to a claim brought pursuant to, for example, Rule 10b-5. Here, Plaintiff has carefully avoided making allegations of fraud. Defendants maintain that the Complaint is, nevertheless, “grounded in fraud”, and that, in any event, such artful pleading should not permit Plaintiff to escape the requirements of 9(b). Nonetheless, the Complaint is sufficient. To illustrate why, it is helpful to compare Shapiro v. UJB Financial Corp., 964 F.2d 272 (3d Cir.1992) with In re Chambers Development Sec. Litig., 848 F.Supp. 602 (W.D.Pa.1994). In Shapiro, the section of the complaint alleging violations of § 12(2) of the Securities Act explicitly incorporated allegations from earlier sections of the complaint stating that the defendants “employed devices, schemes, and artifices to defraud.” Shapiro, 964 F.2d at 276 n. 6, 287. Moreover, the § 12(2) allegations did not allege negligence. See id. at 287. The Shapiro court could “see no way to construct a negligence cause of action here.” Id. at 288. By contrast, in Chambers, the plaintiffs “selectively parsed their complaint to indicate that their § 11 and § 12(2) claims ... are based upon negligence in connection with the Registration Statements and" }, { "docid": "14794929", "title": "", "text": "persons (including underwriters) who “did not know, and in the exercise of reasonable care, could not have known, of such untruth or omission.” 15 U.S.C. § 77i(a)(2). While an underwriter is generally entitled to rely on the expertised portions of a registration statement, in order to do so the underwriter must meet the burden of proof that it “had no reasonable ground to believe and did not believe,” id. § 77k(b)(3)(C), that the expertised portions contained untruths or omissions. This is not a question properly resolved on a motion to dismiss. Plaintiff is only required to plead “a short and plain statement of the claim,” Fed.R.Civ.P. 8(a), not to plead statements in anticipation of affirmative defenses. 2. Failure to Plead Fraud with Particularity Defendants also maintain that this action is grounded in fraud, thereby triggering the heightened pleading requirements of Fed.R.Civ.P. 9(b), which Plaintiff allegedly has failed to meet. Plaintiff responds that the action does not sound in fraud, but in negligence, and hence the heightened pleading requirements are inapplicable, and the Complaint is sufficient. The Second Circuit has not spoken on the question of whether 9(b)’s heightened standards are applicable to actions brought pursuant to §§ 11 or 12(a)(2) of the Securities Act, and courts in the Southern District are divided on the question. See, e.g., In re N2K Inc. Sec. Litig., 82 F.Supp.2d 204, 209 n. 10 (S.D.N.Y.2000) (9(b) applies); Schoenhaut v. American Sensors, Inc., 986 F.Supp. 785, 795 (S.D.N.Y.1997) (same); Geiger v. Solomon-Page Group, Ltd., 938 F.Supp. 1180, 1189 (S.D.N.Y.1996) (same); In re In-Store Advertising Sec. Litig., 878 F.Supp. 645 (S.D.N.Y.1995) (9(b) inapplicable); Nelson v. Paramount Communications, Inc., 872 F.Supp. 1242 (S.D.N.Y. 1994) (same). Even the courts which have held that 9(b) can be applicable, however, have so held in cases where there were actual allegations of fraud in the complaint. See, e.g., Schoenhaut, 986 F.Supp. at 795 (“Plaintiffs ... have alleged fraudulent intent.”). Fraud is certainly not a necessary element of a claim brought pursuant to § 11 or § 12(a)(2), in contrast to a claim brought pursuant to, for example, Rule 10b-5. Here, Plaintiff has" }, { "docid": "22356033", "title": "", "text": "§ 11 claim in the case at bar ... does not trigger Rule 9(b) scrutiny” because it \"is not premised on fraud”). . See Griffin v. PaineWebber Inc., 84 F.Supp.2d 508, 513 (S.D.N.Y.2000) (Sweet, J.) (listing cases). Compare In re Ultrafem Inc. Secs. Litig., 91 F.Supp.2d 678, 690 (S.D.N.Y. 2000) (Preska, I.) (adopting rule that 9(b) applies to Section 11 and Section 12(a)(2) \"where the complaint is grounded in fraud”); Ellison v. Am. Image Motor Co., 36 F.Supp.2d 628, 639 (S.D.N.Y.1999) (Chin, J.) (same); Schoenhaut v. Am. Sensors, Inc., 986 F.Supp. 785, 795 (S.D.N.Y.1997) (Jones, J.) (same); with In re In-Store Adver. Secs. Litig., 878 F.Supp. 645, 650 (S.D.N.Y.1995) (Leisure, I.) (finding Rule 9(b) inapplicable); Nelson v. Paramount Communications, Inc., 872 F.Supp. 1242, 1246 (S.D.N.Y. 1994) (Motley, J.) (same). . The test for whether a statement is materially misleading under Section 10(b) and Section 11 is “whether the defendants' representations, taken together and in context, would have misled a reasonable investor.” I. Meyer Pincus & Assoc, v. Oppenheimer & Co., 936 F.2d 759, 761 (2d Cir.1991) (internal brackets omitted). . As the district court noted, Family Golf did not seek bankruptcy protection until May 2000, which belies the urgency of any \"liquidity crisis” during the class period (May 1998 to August 1999). Cf. In re Ultrafem, 91 F.Supp.2d at 700 (holding that plaintiffs stated no claim with respect to the extent of defendant's working capital because the \"[c]omplaint acknowledge!)!] that [the Company’s] capital lasted for nearly fifteen months, clearly negating any claim of misrepresentation”). . The slide is a single page that compares an unnamed ice rink facility to unnamed \"Class I” and “Class II” golf centers in terms of costs, revenues, expenses, and profit margin. . The district court viewed these allegations as insufficient because plaintiffs failed to “indicate when and where these statements were made.\" Rombach, 2002 WL 1396986, at *8, 2002 U.S. Dist. LEXIS 15754, at *22. However, we agree with plaintiffs that the district court's approach would require them to specifically allege the method by which defendants conveyed the fraudulent information to the analysts; at least" }, { "docid": "4964728", "title": "", "text": "9(b) applies to claims under Section 11 and Section 12(2). The Court of Appeals has not decided this issue, and courts in this district disagree on the application of Rule 9(b). See Griffin v. PaineWebber Inc., No. 99 Civ. 2292, 2000 WL 178180, at *4 (S.D.N.Y. Feb. 14, 2000). Those courts that have determined that Rule 9(b) is applicable to Section 11 and Section 12(2) have limited its application to cases where the complaint is grounded in fraud. See, e.g., Griffin, 2000 WL 178180, at *4; Ellison v. American Image Motor Co., 36 F.Supp.2d 628, 639 (S.D.N.Y.1999); Schoerihaut v. American Sensors, Inc., 986 F.Supp. 785, 795 (S.D.N.Y.1997). I find this reasoning persuasive and look to the allegations of the Complaint to determine whether plaintiffs’ Securities Act claims sound in fraud. With respect to the Individual Defendants and Contente, plaintiffs make little, if any, effort to differentiate their asserted negligence claims from the fraud claims which permeate the Complaint. Plaintiffs argue that their Section 11, Section 12(2) and Section 15 allegations, which incorporate certain paragraphs of the Complaint “except to the extent” any allegations in the cited paragraphs “sound in fraud,” is sufficient to remove those allegations from the requirements of Rule 9(b). (See Compl. ¶¶ 106, 115, 123.) I disagree. Plaintiffs charge the Individual Defendants and Contente with a fraudulent scheme designed to “continue and prolong a distorted and misleading appearance of Ultrafem’s financial condition, internal controls, and business prospects, so that they could preserve them executive positions and the substantial compensation, benefits and prestige they obtained thereby.” (Comply 27.) This theme is evident throughout the remaining allegations. By merely disavowing any allegations that would make Rule 9(b) applicable to Securities Act claims and without specifying the allegations that would support a negligence cause of action, plaintiffs essentially request that the Court parse their, allegations to find a negligence claim. (See id. ¶¶ 106 (“Plaintiffs repeat and reallege paragraphs 1 through 56 above as if fully set forth herein, except to the extent that any allegations contained above which may be interpreted to sound in fraud, which allegations are not" }, { "docid": "2419275", "title": "", "text": "done so when the claims themselves are grounded in fraud and listing the cases in which those decisions were made). Further, courts deciding cases in which the Section 11 claims were not based on fraud have held that Rule 9(b) does not apply to these claims because the cause of action does not require proof of fraud. See In re NationsMart Corp. Sec. Litig., 180 F.3d 309 (8th Cir.1997); In re In-Store Advertising Sec. Litig., 878 F.Supp. 645, 650 (S.D.N.Y.1995); Nelson v. Paramount, 872 F.Supp. 1242, 1246 (S.D.N.Y.1994); In re AnnTaylor Stores Sec. Litig., 807 F.Supp. 990, 1003 (S.D.N.Y.1992). The Court is persuaded by the reasoning of these courts and holds that Rule 9(b) does not apply to Section 11 claims that are not based on allegations of fraud. Here, although the plaintiffs have alleged numerous claims involving fraud and various facts concerning a scheme to defraud, their Section 11 claims do not mention fraud or mistake. See Fed.R.Civ.P. 8(e)(2) (“A party may state as many separate claims or defenses as the party has regardless of consistency”). Indeed, the plaintiffs do not allege that the defendants’ omissions or misrepresentations were based on an intent to deceive. Accordingly, at this point in the litigation, the Court finds that the plaintiffs’ Section 11 claims are not grounded in fraud and, therefore, need not meet the heightened pleading standard of Rule 9(b). Accordingly, the motions by the Sterling Foster and Shalek Defendants to dismiss the claims on that ground are denied. In sum, for the reasons stated above, the motions by the Sterling Foster Defendants, Pace and Novich, and the Shalek Defendants to dismiss the Section 11 claims are denied except that to the extent the plaintiffs’ Sections 11 claims are based on oral misrepresentations, which claims are dismissed. 4. The Claims Brought Pursuant to Section 10(b) of the Exchange Act and Rule 10b-5 Promulgated Thereunder The plaintiffs’ claims under Section 10(b) and Rule 10b-5 are based on two theories: (1) material omission or misrepresentation; and (2) market manipulation. All six of the Section 10(b) and Rule 10b-5 claims allege (1) that the" }, { "docid": "13807774", "title": "", "text": "56. See Fed.R.Civ.P. 12(b). . Relatedly, defendants argue that plaintiffs' claim must fail as a matter of law because plaintiffs failed to allege that “a delay in acceptance actually did affect revenue, liquidity, or bad debt between the date of the IPO and the end of the class period.” (Doc. # 32, p.10). Defendants offer no support for the view that the impact of their alleged misstatements must be realized pri- or to the end of the class period. . In light of this conclusion, the court declines to address the materiality of every allegation in the complaint. To do so would sua sponte convert defendants’ motions to dismiss into motions to strike. . For Section 11 claims, see In re AnnTaylor Stores Sec. Litig., 807 F.Supp. 990, 1003 (S.D.N.Y.1992); accord In re In-Store Advertising Sec. Lit., 878 F.Supp. 645, 650 (S.D.N.Y.1995); Nelson v. Paramount, 872 F.Supp. 1242, 1246 (S.D.N.Y.1994); In re LILCO, 625 F.Supp. 1500, 1502 (E.D.N.Y.1986). For Section 12(2) claims, see, e.g., Loan v. FDIC, 717 F.Supp. 964, 968 n. 9 (D.Mass.1989); Seidel v. Pub. Serv. Co., 616 F.Supp. 1342, 1357 (D.N.H.1985); Billet v. Storage Tech. Corp., 72 F.R.D. 583, 585 (S.D.N.Y.1976). . See In re Stac Electronics, 89 F.3d at 1404-05; Melder, 27 F.3d at 1100 n. 6; Shapiro v. UJB Fin. Corp., 964 F.2d at 288 (observing that \"the plain language [of Rule 9(b)] clearly encompasses § 11 and § 12(2) claims based on fraud,” but reserving judgment on the issue of whether the rule applies to claims that a defendant negligently violated these sections), cert. denied, 506 U.S. 934, 113 S.Ct. 365, 121 L.Ed.2d 278 (1992); Sears v. Likens, 912 F.2d at 892-93. See also Ferber v. Travelers Corp., 785 F.Supp. 1101, 1111 n. 17 (D.Conn.1991); Haft v. Eastland Financial Corp., 755 F.Supp. 1123, 1133 (D.R.I.1991); Lucia v. Prospect Street High Income Portfolio, Inc., 769 F.Supp. 410 (D.Mass.1991); Moran v. Kidder Peabody & Co., 609 F.Supp. 661, 666-67 (S.D.N.Y.1985), aff'd, 788 F.2d 3 (2d Cir.1986)." }, { "docid": "12957313", "title": "", "text": "these circumstances in their totality, the Court finds that D & T could be deemed to have failed to review or check information that it had a duty to monitor, or ignored obvious signs of fraud. See Novak, 216 F.3d at 308; Rolf, 570 F.2d at 47-48. Accordingly, the Court grants D & T’s motion to dismiss as to the Noteholders’ § 10(b) claims regarding the revenue-generating transactions but denies the motion with respect to the allegations relating to Livent’s manipulations of its books and records. 2. Deloite’s Motion: Section 11 Liability and Rule 9(b) Pleading Requirement D & T argues that the Noteholders’ § 11 claim sounds in fraud and therefore should be dismissed for failure to satisfy the heightened pleading requirements of Rule 9(b). The Noteholders counter that their § 11 claim does not sound in fraud, but in negligence, and hence heightened pleading requirements are inapplicable. The Second Circuit has not addressed whether Rule 9(b)’s heightened standards are applicable to actions brought pursuant to § 11 of the Securities Act. Courts in the Southern District are divided on the question. See, e.g., Griffin v. PaineWebber, 84 F.Supp.2d 508, 513 (S.D.N.Y.2000) (noting split within the District); In re N2K Inc. Sec. Litig., 82 F.Supp.2d 204, 210 n. 10 (S.D.N.Y.2000) (Rule 9(b) applies); Schoenhaut v. American Sensors, Inc., 986 F.Supp. 785, 795 (S.D.N.Y.1997) (same); Geiger v. Solomon-Page Group, Ltd., 933 F.Supp. 1180, 1189 (S.D.N.Y.1996) (same); In re In-Store Advertising Sec. Litig., 878 F.Supp. 645, 650 (S.D.N.Y.1995) (Rule 9(b) inapplicable); Nelson v. Paramount Communications, Inc., 872 F.Supp. 1242, 1246 (S.D.N.Y.1994) (same). Several courts have declined to apply Rule 9(b)’s pleading requirement where plaintiffs “selectively parsed their complaint to indicate that their claims under section 11 are based upon negligence.” In re Chambers Dev. Sec. Litig., 848 F.Supp. 602, 624 (W.D.Pa.1994). As the Eighth Circuit noted in In re NationsMari Corp. Sec. Litig., “[t]he only consequence of a holding that Rule 9(b) is violated with respect to a § 11 claim would be that any allegation of fraud would be stripped from the claim. The allegations of innocent or negligent misrepresentation," }, { "docid": "19759515", "title": "", "text": "asserted.... 15 U.S.C. § 77k(a). A Section 11 violation is established when “material facts have been omitted or presented in such a way as to obscure or distort their significance.” I. Meyer Pincus & Assoc., P.C. v. Oppenheimer & Co., 936 F.2d 759, 761 (2d Cir.1991) (citation, internal quotation marks, and alterations omitted); see Herman & MacLean v. Huddleston, 459 U.S. 375, 382, 103 S.Ct. 683, 74 L.Ed.2d 548 (1983) (“If a plaintiff purchased a security issued pursuant to a registration statement, he need only show a material misstatement or omission to establish his prima facie case.”). In Rombach, the Second Circuit noted that although fraud “is not an element or a requisite to a claim under Section 11 or Section 12(a)(2),” those claims “may be — and often are — predicated on fraud.” 355 F.3d at 171. In such cases, the considerations for applying Rule 9(b) to a conventional fraud claim “apply with equal force.” Id. (citation omitted). Here, plaintiffs allege that the registration statements filed with the SEC for the Hotels.com, LendingTree, and Expedia mergers contained “untrue statements of material fact or omitted to state facts required to be stated therein or necessary to make the statements therein not misleading” (CC ¶ 123) because these registration statements incorporated by reference IAC’s Form 10-K for 2002, which contained the allegedly false and misleading statement regarding Hotels.com analyzed above. (See CC ¶ 42 (excerpt from Form 10-K); id. ¶¶ 50, 51, 54 (describing registration statements).) This Section 11 claim plainly sounds in fraud, and, accordingly, Rule 9(b) applies. See Rombach, 355 F.3d at 172 (applying Rule 9(b) where “the wording and imputations of the complaint are classically associated with fraud”); In re Ultrafem Sec. Litig., 91 F.Supp.2d 678, 690 (S.D.N.Y.2000) (applying Rule 9(b) where “plaintiffs [made] little, if any, effort to differentiate their asserted negligence claims from the fraud claims which permeate the Complaint.”). However, because the Court has already found, in connection with the Section 10(b) claim, that those underlying allegations are not sufficiently pleaded to satisfy Rule 9(b) and the PSLRA, the Court likewise finds here that plaintiffs" }, { "docid": "2419274", "title": "", "text": "stated with particularity. Malice, intent, knowledge, and other condition of mind of a person may be averred generally.” Fed.R.Civ.P. 9(b). The Second Circuit has not addressed whether the pleading standards of Rule 9(b) apply to claims brought pursuant to Section 11 of the Securities Act, and there is some disagreement within the Circuit about this issue. See Griffin v. PaineWebber, Inc., 84 F.Supp.2d 508, 513 (S.D.N.Y.2000) (collecting cases); see also, In re Ziff-Davis Inc. Sec. Litig., No. 98 Civ. 7158 SWK, 2000 WL 877006 (S.D.N.Y. June 30, 2000) (noting the disagreement among the courts and pointing the reader to the cases cited in Griffin). However, as noted by Judge Sweet in Griffin, the courts that have held Rule 9(b) to be applicable to Section 11 claims have done so in cases where the complaint contained actual allegations of fraud. Griffin, 84 F.Supp.2d at 513; see In re Ziff-Davis, 2000 WL 877006; Fein er, 11 F.Supp.2d at 211 (stating that the courts that have applied Rule 9(b) to claims brought under Sections 11 and 12(2) have done so when the claims themselves are grounded in fraud and listing the cases in which those decisions were made). Further, courts deciding cases in which the Section 11 claims were not based on fraud have held that Rule 9(b) does not apply to these claims because the cause of action does not require proof of fraud. See In re NationsMart Corp. Sec. Litig., 180 F.3d 309 (8th Cir.1997); In re In-Store Advertising Sec. Litig., 878 F.Supp. 645, 650 (S.D.N.Y.1995); Nelson v. Paramount, 872 F.Supp. 1242, 1246 (S.D.N.Y.1994); In re AnnTaylor Stores Sec. Litig., 807 F.Supp. 990, 1003 (S.D.N.Y.1992). The Court is persuaded by the reasoning of these courts and holds that Rule 9(b) does not apply to Section 11 claims that are not based on allegations of fraud. Here, although the plaintiffs have alleged numerous claims involving fraud and various facts concerning a scheme to defraud, their Section 11 claims do not mention fraud or mistake. See Fed.R.Civ.P. 8(e)(2) (“A party may state as many separate claims or defenses as the party has regardless" }, { "docid": "19385079", "title": "", "text": "Schoenhaut v. American Sensors, Inc., 986 F.Supp. 785, 795 (S.D.N.Y.1997) (“if plaintiffs have plead fraud [under Section 11], they must comply with the requirements of Rule 9(b)”); Geiger v. Solomon-Page Group, Ltd., 933 F.Supp. 1180, 1189 (S.D.N.Y.1996) (applying Rule 9(b) \"[w]here the allegations underlying claims under the Securities Act are ... based in fraud”); In re Stac Electronics Securities Litigation, 89 F.3d 1399, 1404-5 (9th Cir.1996) (\"We now clarify that the particularity requirements of Rule 9(b) apply to claims brought under Section 11 when ... they are grounded in fraud.”), cert. denied sub nom., Anderson v. Clow, 520 U.S. 1103, 117 S.Ct. 1105, 137 L.Ed.2d 308 (1997); Melder v. Morris, 27 F.3d 1097, 1100 n. 6 (5th Cir.1994) (\"When 1933, Securities Act claims are grounded in fraud rather than negligence ... Rule 9(b) applies.”); Shapiro v. UJB Fin. Corp., 964 F.2d 272, 288 (3rd Cir.1992) (affirming district court’s ruling that 9(b) applies to Section 11 claims sounding in fraud), cert. denied, 506 U.S. 934, 113 S.Ct. 365, 121 L.Ed.2d 278 (1992). But see In re In-Store Advertising Securities Litigation, 878 F.Supp. 645 (S.D.N.Y. 1995) (“[BJecause proof of fraud is not necessary to prevail on a Section 11 claim ... Rule 9(b) does not apply to a section 11 claim.”); Nelson v. Paramount Communications, Inc., 872 F.Supp. 1242, 1246 (S.D.N.Y.1994) (same); In re NationsMart Corp. Securities Litig., 130 F.3d 309, 314 (8th Cir.1997) (\"[T]he particularity requirement of Rule 9(b) does not apply to claims under Section 11 of the Securities Act....”). The plaintiffs' allegation that N2K knew of, but purposely withheld, its first quarter 1998 results is, on its face, based in fraud. That being said, I suspect the level of particularity stated in the plaintiffs’ amended complaint is insufficient to survive a thorough analysis under the Rule, and the plaintiffs’ complaint would properly be dismissed on this ground as well." }, { "docid": "22356032", "title": "", "text": "a material fact, with scienter, and that plaintiff's reliance on defendant’s action caused plaintiff injury. See San Leandro Emergency Med. Group Profit Sharing Plan v. Philip Morris Cos., 75 F.3d 801, 808 (2d Cir. 1996). Neither Section 11 nor Section 12(a)(2) requires that plaintiffs allege the scienter or reliance elements of a fraud cause of action. See Herman & MacLean v. Huddle-ston, 459 U.S. 375, 382, 103 S.Ct. 683, 74 L.Ed.2d 548 (1983). . Accord Shaw v. Digital Equip. Corp., 82 F.3d 1194, 1223 (1st Cir.1996) (dictum) (\"[I]f a plaintiff - were to attempt to establish violations of Sections 11 and 12[a](2) as well as the anti-fraud provisions of the Exchange Act through allegations in a single complaint of a unified course of fraudulent conduct ... the particularity requirements of Rule 9(b) would probably apply to the Sections 11; 12[a](2), and Rule 10b-5 claims alike.”); Schwartz v. Celestial Seasonings, Inc., 124 F.3d 1246, 1252 (10th Cir.1997) (\"[ajssuming without deciding” that the approach set out by the Third Circuit in Shapiro applies, and holding that \"the § 11 claim in the case at bar ... does not trigger Rule 9(b) scrutiny” because it \"is not premised on fraud”). . See Griffin v. PaineWebber Inc., 84 F.Supp.2d 508, 513 (S.D.N.Y.2000) (Sweet, J.) (listing cases). Compare In re Ultrafem Inc. Secs. Litig., 91 F.Supp.2d 678, 690 (S.D.N.Y. 2000) (Preska, I.) (adopting rule that 9(b) applies to Section 11 and Section 12(a)(2) \"where the complaint is grounded in fraud”); Ellison v. Am. Image Motor Co., 36 F.Supp.2d 628, 639 (S.D.N.Y.1999) (Chin, J.) (same); Schoenhaut v. Am. Sensors, Inc., 986 F.Supp. 785, 795 (S.D.N.Y.1997) (Jones, J.) (same); with In re In-Store Adver. Secs. Litig., 878 F.Supp. 645, 650 (S.D.N.Y.1995) (Leisure, I.) (finding Rule 9(b) inapplicable); Nelson v. Paramount Communications, Inc., 872 F.Supp. 1242, 1246 (S.D.N.Y. 1994) (Motley, J.) (same). . The test for whether a statement is materially misleading under Section 10(b) and Section 11 is “whether the defendants' representations, taken together and in context, would have misled a reasonable investor.” I. Meyer Pincus & Assoc, v. Oppenheimer & Co., 936 F.2d 759, 761 (2d" }, { "docid": "22356034", "title": "", "text": "Cir.1991) (internal brackets omitted). . As the district court noted, Family Golf did not seek bankruptcy protection until May 2000, which belies the urgency of any \"liquidity crisis” during the class period (May 1998 to August 1999). Cf. In re Ultrafem, 91 F.Supp.2d at 700 (holding that plaintiffs stated no claim with respect to the extent of defendant's working capital because the \"[c]omplaint acknowledge!)!] that [the Company’s] capital lasted for nearly fifteen months, clearly negating any claim of misrepresentation”). . The slide is a single page that compares an unnamed ice rink facility to unnamed \"Class I” and “Class II” golf centers in terms of costs, revenues, expenses, and profit margin. . The district court viewed these allegations as insufficient because plaintiffs failed to “indicate when and where these statements were made.\" Rombach, 2002 WL 1396986, at *8, 2002 U.S. Dist. LEXIS 15754, at *22. However, we agree with plaintiffs that the district court's approach would require them to specifically allege the method by which defendants conveyed the fraudulent information to the analysts; at least at this early stage in the litigation, that information is likely to be exclusively within the control of defendants and the analysts. . The test for whether a statement is materially misleading under Section 12(a)(2) is identical to that under Section 10(b) and Section 11: whether representations, viewed as a whole, would have misled a reasonable investor. See I. Meyer Pincus & Assoc., 936 F.2d at 761. . Defendants argue on cross-appeal that plaintiffs had inquiry notice sufficient to place their complaint outside the PSLRA's one-year statute of limitations. Because wé affirm the district court’s dismissal of all counts against the defendants, resolution of this issue will have no effect on the disposition of the case and we decline to address it." } ]

[ { "docid": "11670440", "title": "", "text": "(holding that indubitable equivalence is a question of fact reviewed for clear error). The BAP reviewed de novo the bankruptcy court’s determination that the proposed transfer would provide FmHA with the indubitable equivalent of its secured claim, and reversed. Stressing that “[t]he determination of whether a partial dirt for debt distribution will provide the creditor with the indubitable equivalence of its secured claim must be made on a case-by-case basis,” Arnold and Baker Farms, 177 B.R. at 662, the BAP reasoned that the bankruptcy court’s valuation of the property was an insufficient basis on which to conclude that the property was the indubitable equivalent of FmHA’s secured claim. Again, we adopt and quote verbatim from the BAP’s opinion at 177 B.R. at 661-62: The finding of a trial court of a particular value of real property ... will not necessarily determine whether the creditor will receive the indubitable equivalent of its secured claim. Experience has taught us that determining the value of real property at any given time is not an exact science. Because each parcel of real property is unique, the precise value of land is difficult, if not impossible, to determine until it is actually sold. Nevertheless, bankruptcy courts have traditionally been requested, out of necessity, to determine the value of various types of property, including real property, and yet courts have recognized the difficulty of being able to determine accurately the value of land. For instance, in In re Walat Farms Inc., 70 B.R. 330 (Bankr.E.D.Mich.1987), the court stated: Similarly, we concede to doubts about our ability to fix the “value” of the land in question. We need not make a pronouncement that no plan proposing the surrender of a portion of mortgaged land to a mortgagee in return for a compelled release of the lien on the remainder of the property will ever be confirmed. Suffice it to say, however, that no matter how hot the market for real estate may become in the future, the market for farm real estate here and now is not such which would permit us to hold that the value" } ]

[ { "docid": "1879426", "title": "", "text": "market value was reduced by 10% in recognition of the sales commission typically charged by real estate brokers in the district, which the creditor would likely incur upon sale of a property. Fazekas, slip op. at 7. Last, the court applied a discount rate to the net value of each property to “reflect costs associated with [the creditor’s] loss of the use of its money during the time the properties remain unsold.” Fazekas, slip op. at 8. In re Bannerman Holdings, LLC (Bannerman I), Case No. 10-01053-SWH, 2010 WL 4260003, at *4 (Bankr.E.D.N.C. Oct. 20, 2010), reversed in part and vacated, Case No. 7:ll-CV-00009-H (E.D.N.C. Sept. 30, 2011) (Bannerman II). The most challenging aspect of the dirt-for-debt scenario typically is valuing the properties. See, e.g., In re Arnold & Baker Farms, 85 F.3d 1415, 1423 (9th Cir.1996) (noting that whether the amount of collateral given is sufficient to provide the indubitable equivalent of the claim is, in the context of partial surrender of secured property, “entirely” dependent on court’s valuation of the collateral). While a case in which a partial surrender of collateral satisfies that standard generally is one in which the property to be surrendered has an “excess value” of some percentage or amount —i.e., an “equity cushion” — that is not always so. This court previously has cautioned that “an equity to value ratio will not always satisfy the standard and, in fact, an equity to value ratio may not always even be the relevant inquiry.” Bannerman I, Case No. 10-01053-SWH, 2010 WL 4260003, at *8. In this case, as in others before it, the parties offer appraisals that assign markedly different values to the real property. Bankruptcy courts are quite accustomed to this scenario, and are equipped to undertake the credibility assessment and layered fact-finding necessitated by it. As the court has said before: The extreme differential does not, however, preclude valuation. It is a fact that the properties have a fair market value. It is also a fact that determining what that value is, can be difficult. A third fact is this: The court has a" }, { "docid": "1879423", "title": "", "text": "court ventures again into the dirt-for-debt arena. The fact that the terrain is familiar does not make it any less complicated to navigate. The “indubitable equivalent” evaluation is a particularly challenging component of dirt-for-debt cases in that the court must take guidance from multiple policies and procedures, and because precedent on this point conflicts. The starting line, at least, is clear: A bankruptcy court tasked with the responsibility of determining whether a debtor’s proffered surrender of collateral provides a creditor with the indubitable equivalent of its claim must take the amount of the creditor’s secured claim as its starting point, then set it against the present value of the property to be surrendered, which value the court must determine based on a conservative approach to valuation and the circumstances of the case. In re Bath Bridgewater S., LLC, Case No. 11-06817-8-SWH, 2012 WL 4325650, at *4 (Bankr.E.D.N.C. Sept. 20, 2012) (noting that the first step in the analysis is the setting of the claim). This being a “partial dirt-for-debt” case, the focus of the inquiry is whether the partial surrender of the collateral securing BLC’s original loan, as proposed by the debtor, is of sufficient value to provide to BLC the indubitable equivalent of its secured claim. It generally is understood that when a secured creditor receives all of the property to which its lien attaches, the creditor has received the full value— the “indubitable equivalent” — of its monetary claim, because “common sense tells us that property is the indubitable equivalent of itself.” Matter of Sandy Ridge Dev. Corp., 881 F.2d 1346, 1350 (5th Cir.1989). When a debtor’s plan calls for surrender of a portion of the property in full satisfac tion of the debt, however, the assessment becomes more complicated. An early dirt-for-debt forerunner in this district was In re Fazekas, Case No. 92-02262-8-JRL (Bankr.E.D.N.C. May 17, 1993), which is notable in that it articulated the then-fresh fact that partial dirt-for-debt is a viable option in appropriate circumstances. As this court explained in an earlier partial dirt-for-debt case, Banner-man I: In Fazekas, the “central issue” before the court" }, { "docid": "3841732", "title": "", "text": "attaches will vary with the purpose for the valuation or the proposed disposition of the property. However, the extent of the creditor's interest in that property will never exceed the value of the property, under any appropriate standard, minus costs associated with selling or transferring the property and the amount of any senior liens. The equity to value ratios used by lenders recognize this fact. If the debt is not paid according to its terms and the creditor is forced to look to its collateral for satisfaction, there is a slippage between the value of the property, on whatever appropriate market or standard is chosen, and the amount the creditor will receive. It is the amount the creditor should reasonably be expected to realize if forced to look to its collateral that an allowed secured claim represents. That is expressed in sentence one of § 506(a). The changing standard of value recognized by the second sentence of that statute does not alter that result. Further, no legitimate policy would be advanced by permitting a secured creditor to improve its position with regard to realization of its collateral value merely because its debtor has filed a bankruptcy reorganization case. In conclusion, the fairer result recognizes that a creditor’s claim secured by a lien against property in which the estate has an interest must reflect transfer or sale costs which would always occur were the creditor forced to resort to the property for repayment. No argument has been advanced that 10% is an unreasonable estimate of those costs. Consequently, the Court sustains the debtor's proposal to subtract from the appraised value of the collateral prior to determining the amount of Avco’s allowed secured claim, not only the amount of any mortgage or other lien prior to Avco’s, but also an allowance for estimated transfer or sale costs. B. Bifurcation of Avco’s Claim The second part of Avco’s objection challenges the debtors’ use of 11 U.S.C. § 506(a) to bifurcate Avco’s claim into secured and unsecured components. That challenge relies upon the language of 11 U.S.C. § 1332(b)(2). Section 1322(b)(2) states in applicable" }, { "docid": "1879428", "title": "", "text": "duty to value property pursuant to § 506, that duty is not limited to those instances where valuation is easy or uncontested, and that duty encompasses those instances where the economy is uncertain and comparable sales are scarce. The fact that two appraisers have arrived at vastly different values cannot relieve the court of its obligation. Therefore the court will determine a fair market value number for the property offered for surrender in the debtor’s plan in satisfaction of § 506. Bath Bridgewater, Case No. 11-06817-8-SWH, 2012 WL 4325650, at *4. However, that said, the court is well aware that widely differing appraisals can serve as a red flag, signifying uncertainty with respect to some component of valuation. See Bannerman II, Case No. 7:11-CV-00009-H (E.D.N.C. Sept. 30, 2011) (slip op.) (concluding that “[t]he wide-ranging valuations presented to the bankruptcy court, even among [the creditor’s] own appraisers, are indicative of the uncertainty in the value of this particular property,” and therefore “weigh against a finding of indubitable equivalence”); In re SUD Props., Inc., Case No. 11-03833-8-RDD, 2011 WL 5909648, at *11 (Bankr.E.D.N.C. Aug. 23, 2011) (concluding that a “large disparity in professionally appraised values demonstrate[d] uncertainty in attempting to forecast the price at which the Property will sell,” such that “[t]oo much variation in values and too much uncertainty in the market equals no indubitable equivalent”). These observations are sound, so long as they are not taken to extremes. Obviously, executing the court’s duty to find the value of property, as required by § 506(a), would be undermined entirely if a debtor or creditor could sideline or even defeat that process simply by introducing multiple or outlier appraisals into evidence. What matters is not the mere existence of widely varying appraisals, but rather the reasons for those variations. For example, the parties may disagree on the highest and best use of the property, such that the appraisals reflect their apples-to-oranges view of the scenario, as in the instant case. Or, wide variances can be the byproduct of different appraisers’ methodologies, or appraisers’ differing choices in how to categorize certain parcels of" }, { "docid": "1879466", "title": "", "text": "on July 31, 2006 and became a party to the contract by virtue of assignment. . On September 6, 2013, Deere & Company filed a proof of claim in the amount of $26,565.51. The contract attached to the claim indicates the following: equipment purchase price, $39,000; down payment, $14,000; amount financed, $26,523; total of payments, including finance charge, $31,914.75; and annual percentage rate, 6.5%. . Neither Class 3 (unimpaired tax claims) nor Class 7 (Bank of America) voted on the plan. Two ballots were cast in Class 8, by Big Beaver Land & Timber, LLC, representing a claim of $38,524.40, and Paramounte Engineering, Inc., representing a claim of $43,547.50, both of which accepted the plan. . In its plan, the debtor lists 10 properties identified as the \"Proposed Properties,” any of which it may choose to surrender to BLC, should the debtor decide to deed properties in addition to the Broad Creek and Bay River/Smith Creek tracts to BLC. . Further, the amended ballot summary indicated an additional accepting vote in the general unsecured class (Class 8), cast by Fores-tree, Inc., representing a claim in the amount of $8,000. . As of January 5, 2015, the interest component of the claim was $1,917,854.50 (per diem of $3,632.30 x 528 days) when calculated at the default rate of interest for a total claim of $15,411,284.12, and $1,438,393.44 (per diem of $2,724.23 x 528 days) when calculated at the contract rate of interest for a total claim of $14,931,823.06. . For example, this court did not reach the question in Bannerman I because, after a thorough and multi-layered valuation assessment and after days of testimony, the court determined that the value of the property the debtor proposed to surrender in a partial dirt-for-debt case established a sufficient equity cushion over and above the amount of the creditor’s secured claim to satisfy even the higher standard. In re Bannerman Holdings, LLC (Bannerman I), No. 10-01053-SWH, 2010 WL 4260003, at *4 (Bankr.E.D.N.C. Oct. 20, 2010), reversed in part and vacated on other grounds, Case No. 7:11-CV-00009-H (E.D.N.C. Sept. 30, 2011) (Bannerman II). . Additionally," }, { "docid": "1879470", "title": "", "text": "Bus. Park, Ltd., 173 B.R. 444, 450 (Bankr.N.D.Ga.1994) (\"when valuation is for the purpose of plan confirmation, the value must be determined as of the date the plan is confirmed”) (emphasis added). It would therefore be inappropriate to attribute a 2006 value to the tracts for confirmation purposes. . Further proceedings in this case, however, will be dependent upon a determination of the default rate of interest issue and, as is set out below, the court will schedule a hearing on that matter. . In the court’s experience, even valuation determinations that would appear so straightforward as to require uniform conclusions from all involved — such as whether a property is or is not “waterfront,” and whether said water is or is not \"navigable” — may result in wildly different conclusions, which in turn lead to wildly different appraisal values. Bath Bridgewater, Case No. 11-06817-8-SWH, 2012 WL 4325650, at *4-6 (out of twenty lots, creditor’s appraiser designated six as \"waterfront,” while debtor's appraiser designated nineteen, thus giving rise to the “most hotly disputed issue during the confirmation hearing”). Discrepancies of this nature, and the \"wide variations” born of them, are typically susceptible to resolution through the court’s fact-finding process, and therefore should not, in and of themselves, preclude an indubitable equivalence determination. . In Clarendon I, the issue before this court was whether, on a motion for valuation of collateral under § 506(a), the court should value the real property a debtor proposed to surrender under § 1129(b)(2)(A)(iii) pursuant to a fair market value standard, or a liquidation value standard. In accordance with all of its previous decisions and the weight of prevailing authority, the court assessed the fair market value, using a conservative approach to valuation. On appeal, although the district court noted that the question of which standard to use was the \"sole issue” before it, the court vacated and remanded for rehearing on grounds that it was \"unclear from the record on appeal whether the bankruptcy court below considered [certain] factors in determining the value of the collateral to be surrendered by Clarendon.” Clarendon II, Case No." }, { "docid": "10178998", "title": "", "text": "protected — the existence of an “equity cushion.” Nei ther periodic cash payments nor replacement liens were offered, see 11 U.S.C. 361(1), (2), although movants’ counsel stated that periodic cash payments equal to the per diem rate for the three mortgages, plus payment of the 1987 real estate taxes would protect the movants’ interests. An equity cushion has been defined as “the surplus of value remaining after the amount of indebtedness is subtracted from the fair market value of the collateral.” Commonwealth of Pennsylvania State Employees Retirement Fund v. Roane, 14 B.R. 542, 545 (Bankr.E.D.Pa.1981). In making this calculation, the court compares the value of the property to the sum of the movant’s secured claim and those secured claims senior to that of the movant. E.g., In re Jug End in the Berkshires, Inc., 46 B.R. at 901. As the debtor notes, and I agree, in certain circumstances, an equity cushion by itself can constitute adequate protection within the meaning of section 362(d)(1). See, e.g., In re Mellor, 734 F.2d 1396, 1400 (9th Cir.1984); In re Grundstrom, 14 B.R. 791, 793 (Bankr.D.Mass.1981) & cases cited therein. However, the existence of an equity cushion, by itself does not always adequately protect the interest of a secured creditor. Various factors must also be considered. Among them are: the size of the equity cushion (sometimes expressed as a percentage of fair market value); the rate at which the cushion will be eroded; whether periodic payments are to be made to prevent or mitigate the erosion of the cushion; and, if the property is to be liquidated, the likelihood of a reasonably prompt sale. See e.g., Ukrainian Savings and Loan Association v. Trident Corp.; Matter of Schaller; In re Grundstrom. As noted above, the conclusion that an equity cushion exists is “based upon approximations founded upon opinions and assumptions.” In re Tucker, 5 B.R. 180, 182 (Bankr.S.D.N.Y.1980). To the extent the cushion is small, it may not be sufficient to constitute adequate protection: A seven percent equity cushion will rarely provide sufficient protection because a key component of the ratio, the fair market value" }, { "docid": "1879424", "title": "", "text": "is whether the partial surrender of the collateral securing BLC’s original loan, as proposed by the debtor, is of sufficient value to provide to BLC the indubitable equivalent of its secured claim. It generally is understood that when a secured creditor receives all of the property to which its lien attaches, the creditor has received the full value— the “indubitable equivalent” — of its monetary claim, because “common sense tells us that property is the indubitable equivalent of itself.” Matter of Sandy Ridge Dev. Corp., 881 F.2d 1346, 1350 (5th Cir.1989). When a debtor’s plan calls for surrender of a portion of the property in full satisfac tion of the debt, however, the assessment becomes more complicated. An early dirt-for-debt forerunner in this district was In re Fazekas, Case No. 92-02262-8-JRL (Bankr.E.D.N.C. May 17, 1993), which is notable in that it articulated the then-fresh fact that partial dirt-for-debt is a viable option in appropriate circumstances. As this court explained in an earlier partial dirt-for-debt case, Banner-man I: In Fazekas, the “central issue” before the court was whether the debtor’s plan to convey to the creditor only three of the five properties securing the creditor’s claim in the original amount of $530,616.40 provided “sufficient value to be the indubitable equivalent of [the creditor’s] claim.” Fazekas. slip op. at 6. The court had no difficulty in generally accepting collateral payment as an appropriate method of satisfying a secured creditor’s claim and also approved of the concept of partial surrender in full satisfaction of a debt, noting that not only is there “nothing inherently improper about a collateral payment arrangement,” it is, in fact, specifically contemplated by the Bankruptcy Code. Fazekas, slip op. at 6 (citing 11 U.S.C. § 1123(a)(5)(B), which provides that a plan shall “provide adequate means for the plan’s implementation, such as ... transfer of all or any part of the property of the estate to one or more entities”). In Fazekas. the court relied on a three-step valuation process. Fazekas, slip op. at 7. First, the court determined the present fair market value for each property. Next, the fair" }, { "docid": "4748344", "title": "", "text": "intended by identical language in sentence one. It can be seen, therefore, that the value of the property to which a creditor’s lien attaches will vary with the purpose for the valuation or the proposed disposition of the property. However, the extent of the creditor’s interest in that property will never exceed the value of the property, under any appropriate standard, minus costs associated with selling or transferring the property and the amount of any senior liens. The equity to value ratios used by lenders recognize this fact. If the debt is not paid according to its terms and the creditor is forced to look to its collateral for satisfaction, there is a slippage between the value of the property, on whatever appropriate market or standard is chosen, and the amount the creditor will receive. It is the amount the creditor should reasonably be expected to realize if forced to look to its collateral that an allowed secured claim represents. That is expressed in sentence one of § 506(a). The changing standard of value recognized by the second sentence of that statute does not alter that result. Further, no legitimate policy would be advanced by permitting a secured creditor to improve its position with regard to realization of its collateral value merely because its debtor has filed a bankruptcy reorganization case. In conclusion, the fairer result recognizes that a creditor’s claim secured by a lien against property in which the estate has an interest must reflect transfer or sale costs which would always occur were the creditor forced to resort to the property for repayment. No argument has been advanced that 10% is an unreasonable estimate of those costs. Consequently, the Court sustains the debtor’s proposal to subtract from the appraised value of the collateral prior to determining the amount of Avco’s allowed secured claim, not only the amount of any mortgage or other lien prior to Avco’s, but also an allowance for estimated transfer or sale costs. B. Bifurcation of Avco’s Claim The second part of Avco’s objection challenges the debtors’ use of 11 U.S.C. § 506(a) to bifurcate" }, { "docid": "1879425", "title": "", "text": "was whether the debtor’s plan to convey to the creditor only three of the five properties securing the creditor’s claim in the original amount of $530,616.40 provided “sufficient value to be the indubitable equivalent of [the creditor’s] claim.” Fazekas. slip op. at 6. The court had no difficulty in generally accepting collateral payment as an appropriate method of satisfying a secured creditor’s claim and also approved of the concept of partial surrender in full satisfaction of a debt, noting that not only is there “nothing inherently improper about a collateral payment arrangement,” it is, in fact, specifically contemplated by the Bankruptcy Code. Fazekas, slip op. at 6 (citing 11 U.S.C. § 1123(a)(5)(B), which provides that a plan shall “provide adequate means for the plan’s implementation, such as ... transfer of all or any part of the property of the estate to one or more entities”). In Fazekas. the court relied on a three-step valuation process. Fazekas, slip op. at 7. First, the court determined the present fair market value for each property. Next, the fair market value was reduced by 10% in recognition of the sales commission typically charged by real estate brokers in the district, which the creditor would likely incur upon sale of a property. Fazekas, slip op. at 7. Last, the court applied a discount rate to the net value of each property to “reflect costs associated with [the creditor’s] loss of the use of its money during the time the properties remain unsold.” Fazekas, slip op. at 8. In re Bannerman Holdings, LLC (Bannerman I), Case No. 10-01053-SWH, 2010 WL 4260003, at *4 (Bankr.E.D.N.C. Oct. 20, 2010), reversed in part and vacated, Case No. 7:ll-CV-00009-H (E.D.N.C. Sept. 30, 2011) (Bannerman II). The most challenging aspect of the dirt-for-debt scenario typically is valuing the properties. See, e.g., In re Arnold & Baker Farms, 85 F.3d 1415, 1423 (9th Cir.1996) (noting that whether the amount of collateral given is sufficient to provide the indubitable equivalent of the claim is, in the context of partial surrender of secured property, “entirely” dependent on court’s valuation of the collateral). While a" }, { "docid": "1879472", "title": "", "text": "7:ll-CV-247-H, 2013 WL 8635348, at *2 (E.D.N.C.2013). Those factors were: Where a plan shifts to the creditor the burden to sell, and hence the risk of loss or potential for gain, the court must take these matters into consideration in valuing the property. If, for example, a depressed market makes the potential for loss greater than the potential for gain, valuation must be approached conservatively. Additionally, the valuation of property surrendered to a creditor should take into account the loss of income a creditor may encounter prior to the sale or liquidation of the property. Id. The court agrees that these factors, which are incorporated as a matter of course into appraisals employing the \"discounted cash flow” analyses, are of key importance. They also are components of the Fazekas analysis, which begins with a determination of fair market value before incorporating any necessary discounts. They are not, however, components of a liquidation analysis. This renders the precedential import of the district court’s opinion somewhat difficult to discern. For purposes of precedential clarity, the court emphasizes that it does not read Clarendon II to call for application of a liquidation analysis in dirt-for-debt cases, nor does that decision reject use of the fair market value standard. Instead, Clarendon II appears to vacate Clarendon I on more practical grounds, i.e., to require of the bankruptcy court a more overt consideration and discussion of the factors cited above. The single case discussed by the district court, Assocs. Commercial Corp. v. Rash, 520 U.S. 953, 962, 117 S.Ct. 1879, 138 L.Ed.2d 148 (1997), does examine the propriety of either a liquidation value or a replacement value standard, but Rash does so in the very different context of a debtor's retention of a motor vehicle over the creditor’s objection through cram down un der § 1325(a)(5)(B), and thus is not of probative weight in chapter 11 dirt-for-debt cases. Rash, 520 U.S. at 960, 117 S.Ct. 1879 (\"In such a 'cram down’ case, we hold, the value of the property (and thus the value of the secured claim under § 506(a)) is the price a willing" }, { "docid": "4594449", "title": "", "text": "Adam M. Goodman, Chapter 13 Practice and Procedure § 9C:9 at 682 (2010-11 ed.)) (additional citations omitted) (internal quotation marks omitted). While the creditor’s failure to foreclose might leave the debtors with continued liabilities, these are by-products of property ownership. Id. at 631. Although the debtors prefer to walk away from the property, their desire does not justify shifting these burdens to the lender. As Arsenault explains, the Code does not authorize bankruptcy courts “to create substantive rights” not otherwise available under applicable statutes; nor does it “constitute a roving commission to do equity.” Id; accord, In re Landbank Equity Corp., 973 F.2d 265, 271 (4th Cir.1992). Most courts that have considered the matter agree with Arsenault. As long as the secured creditor’s actions do not “constitute a subterfuge intended to coerce payment of a discharged debt,” the “secured creditor ... has the prerogative to decide whether to accept or reject the surrendered collateral.” Canning, 706 F.3d at 69-70; see also In re Khan, 504 B.R. 409, 410 (Bankr.D.Md.2014) (noting that a debtor cannot force a secured creditor to accept proffered property); In re Brown, 477 B.R. 915, 917 (Bankr.S.D.Ga. 2012) (finding no authority for court to require secured creditor to assume ownership obligations in property). Admittedly, two unpublished cases from our sister court in the Eastern District of North Carolina have permitted Chapter 13 debtors to surrender property by quitclaim deed to a mortgage lender absent consent. See In re Perry, No. 12-01633-8-RDD, 2012 WL 4795675, at *2 (Bankr.E.D.N.C. Oct. 9, 2012); In re Williams, No. 10-06243-8-SWH (Bankr.E.D.N.C. Jan. 30, 2014). However, it must be noted that these are unpublished decisions that do not identify a legal basis for their holdings. Notably, the lenders in these cases did not respond or defend against the motions. Thus, while pragmatic, Perry and Williams are of limited precedential value. B. Vesting Under 11 U.S.C. § 1822(b)(9) does not Require a Creditor to Accept Title to Property. Alternatively, it has been suggested that an encumbered property may be forced upon the lender under 11 U.S.C. § 1322(b)(9), which provides in relevant part: (b)" }, { "docid": "1879427", "title": "", "text": "case in which a partial surrender of collateral satisfies that standard generally is one in which the property to be surrendered has an “excess value” of some percentage or amount —i.e., an “equity cushion” — that is not always so. This court previously has cautioned that “an equity to value ratio will not always satisfy the standard and, in fact, an equity to value ratio may not always even be the relevant inquiry.” Bannerman I, Case No. 10-01053-SWH, 2010 WL 4260003, at *8. In this case, as in others before it, the parties offer appraisals that assign markedly different values to the real property. Bankruptcy courts are quite accustomed to this scenario, and are equipped to undertake the credibility assessment and layered fact-finding necessitated by it. As the court has said before: The extreme differential does not, however, preclude valuation. It is a fact that the properties have a fair market value. It is also a fact that determining what that value is, can be difficult. A third fact is this: The court has a duty to value property pursuant to § 506, that duty is not limited to those instances where valuation is easy or uncontested, and that duty encompasses those instances where the economy is uncertain and comparable sales are scarce. The fact that two appraisers have arrived at vastly different values cannot relieve the court of its obligation. Therefore the court will determine a fair market value number for the property offered for surrender in the debtor’s plan in satisfaction of § 506. Bath Bridgewater, Case No. 11-06817-8-SWH, 2012 WL 4325650, at *4. However, that said, the court is well aware that widely differing appraisals can serve as a red flag, signifying uncertainty with respect to some component of valuation. See Bannerman II, Case No. 7:11-CV-00009-H (E.D.N.C. Sept. 30, 2011) (slip op.) (concluding that “[t]he wide-ranging valuations presented to the bankruptcy court, even among [the creditor’s] own appraisers, are indicative of the uncertainty in the value of this particular property,” and therefore “weigh against a finding of indubitable equivalence”); In re SUD Props., Inc., Case No. 11-03833-8-RDD," }, { "docid": "1879471", "title": "", "text": "the confirmation hearing”). Discrepancies of this nature, and the \"wide variations” born of them, are typically susceptible to resolution through the court’s fact-finding process, and therefore should not, in and of themselves, preclude an indubitable equivalence determination. . In Clarendon I, the issue before this court was whether, on a motion for valuation of collateral under § 506(a), the court should value the real property a debtor proposed to surrender under § 1129(b)(2)(A)(iii) pursuant to a fair market value standard, or a liquidation value standard. In accordance with all of its previous decisions and the weight of prevailing authority, the court assessed the fair market value, using a conservative approach to valuation. On appeal, although the district court noted that the question of which standard to use was the \"sole issue” before it, the court vacated and remanded for rehearing on grounds that it was \"unclear from the record on appeal whether the bankruptcy court below considered [certain] factors in determining the value of the collateral to be surrendered by Clarendon.” Clarendon II, Case No. 7:ll-CV-247-H, 2013 WL 8635348, at *2 (E.D.N.C.2013). Those factors were: Where a plan shifts to the creditor the burden to sell, and hence the risk of loss or potential for gain, the court must take these matters into consideration in valuing the property. If, for example, a depressed market makes the potential for loss greater than the potential for gain, valuation must be approached conservatively. Additionally, the valuation of property surrendered to a creditor should take into account the loss of income a creditor may encounter prior to the sale or liquidation of the property. Id. The court agrees that these factors, which are incorporated as a matter of course into appraisals employing the \"discounted cash flow” analyses, are of key importance. They also are components of the Fazekas analysis, which begins with a determination of fair market value before incorporating any necessary discounts. They are not, however, components of a liquidation analysis. This renders the precedential import of the district court’s opinion somewhat difficult to discern. For purposes of precedential clarity, the court emphasizes" }, { "docid": "4546655", "title": "", "text": "creditor’s acceptance of the plan or the debtor’s surrender of the collateral, the creditor must retain its lien and receive property whose total “value, as of the effective date of the plan, ... is not less than the allowed amount of such claim.” 11 U.S.C. § 1325(a)(5)(B)(ii). As an additional requirement, if the property to be distributed is in the form of periodic payments, the payments “shall be in equal monthly amounts.” 11 U.S.C. § 1325(a)(5)(B)(iii)(I). As long as the requirements of section 1325(a)(5)(B) are met, claims subject to modification may be restructured “at an interest rate more favorable to the debtor than the rate on the original note.” In re Joyner, No. 08-05647-8-JRL, 2008 WL 4346467, at *2 (Bankr.E.D.N.C. Sept. 17, 2008); see also In re Paschen, No. 99-42771-JTL, 2000 WL 33743100, at *2 (Bankr.M.D.Ga. Aug. 10, 2000) (citing In re Leola Terrell, Case No. 99-70556-JTL (Bankr.M.D.Ga. Aug. 20, 1999)); In re Gray, No. 07-07380-ESL, 2008 WL 5068849, at *3 (Bankr.D.P.R. Nov. 25, 2008) (citing In re Ibarra, 235 B.R. 204, 209-13 (Bankr.D.P.R.1999)). The undisputed record clearly indicates the case at bar is one of the rare instances where the section 1322(c)(2) exception to the anti-modification provision applies. First, the parties do not dispute the Mortgage will mature prior to the due date for the final payment under the Debtor’s proposed sixty (60) month Plan. (See Dkt. # 17, ¶ 4). Second, at the contested hearing, counsel for the Debtor agreed to modify the proposed Plan to pay the present value of Dollar Bank’s claim, $12,061.39. (See Audio Recording of Hearing Held, Courtroom D, April 7, 2010, (10:10-10:11 AM)). Third, the Debtor’s proposed Plan allows for monthly payments in equal amounts. (See id. at (10:18-10:19 AM)). Therefore, as the requirements of section 1325(a)(5)(B) are satisfied, and the Debt- or’s Mortgage will mature prior to the due date for the last payment under the proposed Plan, the Mortgage interest rate is modifiable. To determine the appropriate rate of interest that should apply, this Court will join several others within the Third Circuit and utilize the “formula approach” adopted by the" }, { "docid": "1879431", "title": "", "text": "is discharged, remains the same. Competing appraisals aside, there are inherent uncertainties in any valuation undertaking. In awareness of this, courts take' a conservative approach to the process, the objective being to derive from it the conservative fair market value of the property. “Subsection 506(a)(1) of the Bankruptcy Code directs the court to determine the fair market value of property in evaluating the secured status of a creditor.” In re 4.98 Westgate Partners, LLC, Case No. 11-05768-8-JRL, 2012 WL 5879119, at *2 (Bankr.E.D.N.C. Nov. 21, 2012); see also, e.g. In re 8G Props., Case No. 10-04763-8-JRL, 2011 WL 5902504, at *6 (Bankr.E.D.N.C. July 12, 2011); In re Clarendon Holdings, LLC, Case No. 11-02479-8-SWH, 2011 WL 5909512, at *3 (Bankr.E.D.N.C. Oct. 19, 2011) (citing eases and assigning conservative fair market value to the debtor’s surrender of all real property subject to lien), vacated, 2013 WL 8635348 (E.D.N.C.2013) (remanding where record on appeal was unclear as to whether bankruptcy court considered depressed market conditions and the creditor’s loss of income pending sale, and holding that creditor surrendering real property was not entitled to “full fair market value”) (Clarendon II). Where the debtor retains the property being valued, “that value is what the debtor has to pay,” but “[i]f it chooses to surrender the property, that value is also the value at which it would start the unite down process to give the creditor the indubitable equivalent under 1129(b)(2)(A)(iii).” 4.98 Westgate Partners, Case No. 11-05768-8-JRL, 2012 WL 5879119, at *2 (emphasis added). By “write down,” the 4.98 West-gate Partners court refers to the calculation of discounts for a creditor’s sale costs and loss of money, undertaken as part of an indubitable equivalence analysis after first determining fair market value, as captured in the Fazekas analysis. Id. at *2. In practical terms, this means that courts must consider each appraisal, as well as the testimony in support of or in contradiction to it. Undergirding all aspects of this process is the court’s intentionally conservative approach to valuation. Another component of the court’s analysis in this particular case, and a significant one, is the determination" }, { "docid": "1879422", "title": "", "text": "may increase with the inclusion of additional attorneys’ fees and interest accrued prior to confirmation. At this stage of the proceedings, in light of the court’s rulings herein, and because the parties have not fully articulated any arguments regarding the propriety of a default rate of interest, a determination of the range of BLC’s claim will suffice. With the specific facts of this case now on the table, the court turns its attention to questions of law. Over the past few years, for reasons that seemingly are cosmic in nature and to which the bankruptcy judges of this district are not privy, the Eastern District of North Carolina has provided a non-stop bounty crop of dirt-for-debt cases, each with its own fresh, unique twist. The court would be delighted to share these eases out amongst its judicial neighbors, if only it were possible to deposit them at other districts’ doorways like a bumper harvest of sweet potatoes or tomatoes, accompanied by a cheery “Enjoy!” Sadly, case allocation just does not work that way, and the court ventures again into the dirt-for-debt arena. The fact that the terrain is familiar does not make it any less complicated to navigate. The “indubitable equivalent” evaluation is a particularly challenging component of dirt-for-debt cases in that the court must take guidance from multiple policies and procedures, and because precedent on this point conflicts. The starting line, at least, is clear: A bankruptcy court tasked with the responsibility of determining whether a debtor’s proffered surrender of collateral provides a creditor with the indubitable equivalent of its claim must take the amount of the creditor’s secured claim as its starting point, then set it against the present value of the property to be surrendered, which value the court must determine based on a conservative approach to valuation and the circumstances of the case. In re Bath Bridgewater S., LLC, Case No. 11-06817-8-SWH, 2012 WL 4325650, at *4 (Bankr.E.D.N.C. Sept. 20, 2012) (noting that the first step in the analysis is the setting of the claim). This being a “partial dirt-for-debt” case, the focus of the inquiry" }, { "docid": "1879430", "title": "", "text": "real property. And, of course, the variations might come down to appraisers’ genuine uncertainty about market conditions. These considerations and more, including the credibility of the witnesses, are among those weighed by the court as part of the fact-finding process, and all are significant in the context of valuation under § 506 and, separately, in any subsequent determination of whether the value found by the court is sufficient under § 1129(b)(2(A)(iii) to provide a creditor with the indubitable equivalent of its claim. ‘When two appraisal reports conflict, a court ‘must determine the value based on the credibility of the appraisers, the logic of their analy-ses and the persuasiveness of their subjec tive reasoning.’ ” In re Sailboat Props., LLC, Case No. 10-03718-8-SWH, 2011 WL 1299301, at *6 (Bankr.E.D.N.C. March 31, 2011) (quoting In re Atlanta S. Bus. Park. Ltd., 173 B.R. 444, 450 (Bankr.N.D.Ga.1994)) (internal citations omitted). It should go without saying that when more than two appraisal reports conflict, the responsibility of the court under § 506, and the process by which that responsibility is discharged, remains the same. Competing appraisals aside, there are inherent uncertainties in any valuation undertaking. In awareness of this, courts take' a conservative approach to the process, the objective being to derive from it the conservative fair market value of the property. “Subsection 506(a)(1) of the Bankruptcy Code directs the court to determine the fair market value of property in evaluating the secured status of a creditor.” In re 4.98 Westgate Partners, LLC, Case No. 11-05768-8-JRL, 2012 WL 5879119, at *2 (Bankr.E.D.N.C. Nov. 21, 2012); see also, e.g. In re 8G Props., Case No. 10-04763-8-JRL, 2011 WL 5902504, at *6 (Bankr.E.D.N.C. July 12, 2011); In re Clarendon Holdings, LLC, Case No. 11-02479-8-SWH, 2011 WL 5909512, at *3 (Bankr.E.D.N.C. Oct. 19, 2011) (citing eases and assigning conservative fair market value to the debtor’s surrender of all real property subject to lien), vacated, 2013 WL 8635348 (E.D.N.C.2013) (remanding where record on appeal was unclear as to whether bankruptcy court considered depressed market conditions and the creditor’s loss of income pending sale, and holding that creditor surrendering" }, { "docid": "1879432", "title": "", "text": "real property was not entitled to “full fair market value”) (Clarendon II). Where the debtor retains the property being valued, “that value is what the debtor has to pay,” but “[i]f it chooses to surrender the property, that value is also the value at which it would start the unite down process to give the creditor the indubitable equivalent under 1129(b)(2)(A)(iii).” 4.98 Westgate Partners, Case No. 11-05768-8-JRL, 2012 WL 5879119, at *2 (emphasis added). By “write down,” the 4.98 West-gate Partners court refers to the calculation of discounts for a creditor’s sale costs and loss of money, undertaken as part of an indubitable equivalence analysis after first determining fair market value, as captured in the Fazekas analysis. Id. at *2. In practical terms, this means that courts must consider each appraisal, as well as the testimony in support of or in contradiction to it. Undergirding all aspects of this process is the court’s intentionally conservative approach to valuation. Another component of the court’s analysis in this particular case, and a significant one, is the determination of the property’s “highest and best use.” The court previously has noted “the importance of case-by-case analyses wheh valuing property because of the various ways in which property can be disposed of or used, and the difficulty in determining the price such property would generate at a hypothetical sale, as well as the inherent vagaries in the valuation process.” In re Sailboat Props., LLC, No. 10-03718-8-SWH, 2011 WL 1299301, at *2. In Sailboat this court considered the subject property’s “highest and best use” in the context of a § 506 valuation. Id. (citing In re Peerman, 109 B.R. 718 (Bankr.W.D.Tex.1989)). The court reasoned that “[although some courts have determined value based on what the property is worth in the hands of a particular holder (i.e., the secured creditor), this court will adopt the four-step ‘highest and best use’ inquiry employed by the Peerman court.” Id. We now come back to the starting point: The first step in an indubitable equivalence evaluation is valuing the collateral. Turning to the specifics of this case, the debtor’s plan" }, { "docid": "1879467", "title": "", "text": "(Class 8), cast by Fores-tree, Inc., representing a claim in the amount of $8,000. . As of January 5, 2015, the interest component of the claim was $1,917,854.50 (per diem of $3,632.30 x 528 days) when calculated at the default rate of interest for a total claim of $15,411,284.12, and $1,438,393.44 (per diem of $2,724.23 x 528 days) when calculated at the contract rate of interest for a total claim of $14,931,823.06. . For example, this court did not reach the question in Bannerman I because, after a thorough and multi-layered valuation assessment and after days of testimony, the court determined that the value of the property the debtor proposed to surrender in a partial dirt-for-debt case established a sufficient equity cushion over and above the amount of the creditor’s secured claim to satisfy even the higher standard. In re Bannerman Holdings, LLC (Bannerman I), No. 10-01053-SWH, 2010 WL 4260003, at *4 (Bankr.E.D.N.C. Oct. 20, 2010), reversed in part and vacated on other grounds, Case No. 7:11-CV-00009-H (E.D.N.C. Sept. 30, 2011) (Bannerman II). . Additionally, the debtor testified that BLC had rejected requests for partial release fee satisfaction where the debtor had located a buyer for a portion of a particular tract. According to the debtor, the ability to sell partial tracts is important to its business success going forward. . The Statement of Financial Affairs, Doc. No. 37, pg. 21, provides that the debtor made a payment of $10,000 to Oliver Friesen Cheek, PLLC on July 2, 2013 for bankruptcy-related legal services. . BLC made additional artificial impairment arguments with regard to the unsecured class on the -basis that many of the claims were stale, and therefore the debtor acted in bad faith by proposing to pay such claims through the plan. As the court noted during the hearings, however, the appropriate avenue for disputing such claims on any basis, including statute of limitations, is the claims objection process, which will remain available to BLC post-confirmation. To date, BLC has not filed objections to any claims filed in the debtor’s case. . During the hearings, BLC noted various deposits" } ]

[ { "docid": "22717422", "title": "", "text": "constitutionally relevant sense. This view represents a fundamental misunderstanding of the law. It is irrelevant whether disenfranchisement or denial of welfare is the more potent deterrent to travel. Shapiro did not rest upon a finding that denial of welfare actually deterred travel. Nor have other “right to travel” cases in this Court always relied on the presence of actual deterrence. In Shapiro we explicitly stated that the compelling-state-interest test would be triggered by “any classification which serves to penalize the exercise of that right [to travel] Id., at 634 (emphasis added) ; see id., at 638 n. 21. While noting the frank legislative purpose to deter migration by the poor, and speculating that “[a]n indigent who desires to migrate . . . will doubtless hesitate if he knows that he must risk” the loss of benefits, id., at 629, the majority found no need to dispute the “evidence that few welfare recipients have in fact been deterred [from moving] by residence requirements.” Id., at 650 (Warren, C. J., dissenting); see also id., at 671-672 (Harlan, J., dissenting). Indeed, none of the litigants had themselves been deterred. Only last Term, it was specifically noted that because a durational residence requirement for voting “operates to penalize those persons, and only those persons, who have exercised their constitutional right of interstate migration . . . , [it] may withstand constitutional scrutiny only upon a clear showing that the burden imposed is necessary to protect a compelling and substantial governmental interest.” Oregon v. Mitchell, 400 U. S., at 238 (separate opinion of Brennan, White, and Marshall, JJ.) (emphasis added). Of course, it is true that the two individual interests affected by Tennessee’s durational residence requirements are affected in different ways. Travel is permitted, but only at a price; voting is prohibited. The right to travel is merely penalized, while the right to vote is absolutely denied. But these differences are irrelevant for present purposes. Shapiro implicitly realized what this Court has made explicit elsewhere: “It has long been established that a State may not impose a penalty upon those who exercise a right guaranteed" } ]

[ { "docid": "10285436", "title": "", "text": "the severity of the penalty imposed on those who exercise the right to travel. In determining the extent to which the interstate traveler is penalized, we understand the Supreme Court’s inquiry to focus on the gravity of the particular governmental benefit denied. “In Dunn v. Blumstein, supra, the Court found that the denial of the franchise, ‘a fundamental political right,’ Reynolds v. Sims, 377 U.S. 533, 562, 84 S.Ct. 1362, 1382, 12 L.Ed.2d 506 (1964), was a penalty requiring application of the compelling state interest test. In Shapiro, the Court found denial of the basic ‘necessities of life’ to be a penalty. Nonetheless, the Court has declined to strike down state statutes requiring one year of residence as a condition to lower tuition at state institutions of higher education. Whatever the ultimate parmeters of the Shapiro penalty analysis, it is at least clear that medical care is as much ‘a basic necessity of life’ to an indigent as welfare assistance. And, governmental privileges or benefits necessary to basic sustenance have often been viewed as being of greater constitutional significance than less essential forms of governmental entitlements.” Memorial Hospital, supra, 415 U.S. at 259, 94 S.Ct. at 1082-1083. Memorial Hospital suggests, then, that at least in the absence of hard evidence of a deterrent effect on interstate migration, only classifications which deprive newly arrived residents of “vital governmental benefits and privileges” will be held to impose penalties on the right to travel sufficient to trigger strict scrutiny analysis. Conversely, classifications which disadvantage interstate travelers, but to a considerly lesser degree, do not impinge on the fundamental right to travel and must withstand only rational relation examination. Further support for our view is provided by Huffman v. Montana Supreme Court, 372 F.Supp. 1175 (D.Mont.1974, 3-judge court), aff’d mem., 419 U.S. 955, 95 S.Ct. 216, 42 L.Ed.2d 172 (1974). In Huffman, plaintiffs challenged a Montana statute exempting graduates of the University of Montana Law School from the bar examination requirement demanded of all other applicants to the Montana bar. The district court in Huffman upheld the Montana diploma privilege in the face of" }, { "docid": "22566003", "title": "", "text": "not argue that NYTA’s toll policy actually deters travel or that it was enacted primarily for the purpose of impeding travel. They contend, rather, that the policy imposes a burden or penalty on their exercise of the right to travel, and should accordingly be subject to strict scrutiny, because it denies a benefit to all non-residents of New York (and all but a subset of New York residents) who exercise the right to travel on Interstate-190 through Grand Island. We disagree. In Evansville the Supreme Court explained that “[t]he principle that burdens on the right to travel are constitutional only if shown to be necessary to promote a compelling state interest has no application” where travelers pay a fee to use a “facility provided at public expense [that] aids rather than hinders the right to travel.” Evansville, 405 U.S. at 714, 92 S.Ct. 1349. Indeed, the Court observed in Soto-Lopez that its “recent eases [concerning the right to travel] have dealt with state laws that, by classifying residents according to the time they established residence, resulted in the unequal distribution of rights and benefits among otherwise qualified bona fide residents.” 476 U.S. at 903, 106 S.Ct. 2317. For example, the Supreme Court has subjected to strict scrutiny analysis state laws that imposed durational residence requirements for receipt of welfare benefits, Shapiro v. Thompson, 394 U.S. 618, 634, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969), overruled in part on other grounds by Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974); healthcare benefits, Mem’l Hosp., 415 U.S. at 254, 94 S.Ct. 1076; voting rights, see Dunn v. Blumstein, 405 U.S. 330, 342, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972); and a civil service preference for veterans who entered the armed forces while residing in a particular state, Soto-Lopez, 476 U.S. at 909, 106 S.Ct. 2317. But see Sosna v. Iowa, 419 U.S. 393, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975) (upholding a one-year residency requirement for maintaining an action for divorce); Starns v. Malkerson, 401 U.S. 985, 91 S.Ct. 1231, 28 L.Ed.2d 527 (1971) (summarily affirming a" }, { "docid": "1225654", "title": "", "text": "durational residence requirement imposes a potential cost on migration, the Court in Shapiro cautioned that some ‘waiting-period[s] ... may not be penalties.” 394 U.S., at 638 n. 21 [89 S.Ct. at 1333 n. 21]. In Dunn v. Blumstein, supra, the Court found that the denial of the franchise, ‘a fundamental political right,’ Reynolds v. Sims, 377 U.S. 533, 562 [84 S.Ct. 1362, 1381, 12 L.Ed.2d 506] (1964), was a penalty requiring application of the compelling-state-interest test. In Shapiro, the Court found denial of the basic ‘necessities of life’ to be a penalty. Nonetheless, the Court, has declined to strike down state statutes requiring one year of residence as a condition to lower tuition at state institutions of higher education. Whatever the ultimate parameters of the Shapiro penalty analysis, it is at least clear that medical care is as much ‘a basic necessity of life’ to an indigent as welfare assistance.” 415 U.S. at 258-259, 94 S.Ct. at 1082. (Original emphasis.) The crucial inquiry in the Supreme Court’s “penalty” analysis is whether the underlying benefit denied to recently arrived residents is itself a fundamental right (such as voting) or a basic necessity of life (such as welfare benefits for indigents). Tribe, supra at 1004; “Developments in the Law — Elections”, 88 Harv.L.Rev. 1111, 1228-1229. If the underlying benefit or privilege does not come within these two currently identified categories, then laws which deny the benefit to recently arrived residents do not “penalize” the fundamental right of interstate travel; therefore, such laws may be reviewed by the traditional rational basis test. Sosna v. Iowa, supra; “Developments”, supra at 1228-1229. The one year residency requirement for candidates to the Birmingham city com- . mission is not a penalty affecting the exercise of the fundamental right of interstate travel. Walker v. Yucht, supra at 97; Matthews v. Atlantic City, supra 417 A.2d at 1019. First, as demonstrated supra, the requirement does not impair any underlying fundamental right, such as voting or freedom of speech. Second, candidacy is not a basic necessity of life, the deprivation of which would have “dire” or “cruel” effects on" }, { "docid": "2886565", "title": "", "text": "face treated some residents (new arrivals from other states) less well than other (long-time) residents solely on the basis of their having exercised the right to travel from one state to another. See id. at 627, 89 S.Ct. at 1327. Because that right is fundamental, the Court reasoned, “any classification which serves to penalize the exercise of that right, unless shown to be necessary to promote a compelling government interest, is unconstitutional.” Id. at 634, 89 S.Ct. at 1331 (emphasis in original). On the facts of the case before it, the Court held that none of the state’s asserted justi fications for its minimum durational residency requirement survived the strict scrutiny test. See id. at 633-37, 89 S.Ct. at 1330-33. Since Shapiro, virtually all of the Court’s right to travel cases have involved closely analogous situations. Thus, under reasoning essentially the same as Shapiro’s, the Court has struck down minimum durational residency requirements imposed as conditions of eligibility to vote, see Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972), and to receive free nonemergency medical care, see Memorial Hospital v. Maricopa County, 415 U.S. 250, 94 S.Ct. 1076, 39 L.Ed.2d 306 (1974). However, discerning state interests of greater significance than those asserted in Shapiro, Dunn, or Maricopa County, the Court in Sosna v. Iowa, 419 U.S. 393, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975), upheld a minimum durational residency requirement as a condition of eligibility to be granted an in-state divorce. More recent cases involve similar statutes, but different reasoning. Thus, in Zobel v. Williams, 457 U.S. 55, 102 S.Ct. 2309, 72 L.Ed.2d 672 (1982), the Court reviewed a state statute distributing certain income to its citizens on the basis of the duration of each citizen’s in-state residency. The Court struck down the statute under rational basis review, expressly reserving the question “whether any enhanced scrutiny is called for” because the statute burdened fundamental rights. See id. at 61, 102 S.Ct. at 2313. And in Attorney General of New York v. Soto-Lopez, 476 U.S. 898, 106 S.Ct. 2317, 90 L.Ed.2d 899 (1986), Justice Brennan’s reassertion" }, { "docid": "17377170", "title": "", "text": "for tuition-free education, to obtain a license to practice a profession, to hunt or fish, and so forth. Such requirements may promote compelling state interests on the one hand, or, on the other, may not be penalties upon the exercise of the constitutional right of interstate travel.” Id. at 638, n. 21, 89 S.Ct. at 1333 n.21. The Court held, in Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972), and Memorial Hospital v. Maricopa County, 415 U.S. 250, 94 S.Ct. 1076, 39 L.Ed.2d 306 (1974), that durational residency requirements which involved deprivations of the right to vote and free non-emergency medical care triggered strict scrutiny. In Maricopa County, however, the Court noted that “The amount of im pact required to give rise to the compelling-state-interest test [has] not been made clear.” Id. at 256-7, 94 S.Ct. at 1081 (footnote omitted). In Fisher v. Reiser, 610 F.2d 629 (CA9 1979) cert. denied, 447 U.S. 930, 100 S.Ct. 3029, 65 L.Ed.2d 1124 (1980), we noted the importance of the “nature of the benefit denied.” Id. at 635. In fact, Judge Hufstedler, dissenting in Fisher, after reviewing the right to travel cases, commented that “The Court [has] indicated that the ‘penalty’ required to invoke strict scrutiny involves a genuinely significant deprivation, such as a denial of the basic ‘necessities of life’ (as in Shapiro), or the denial of a ‘fundamental political right’ (as in Dunn).” Id. at 639 (footnote omitted) (emphasis added). Judge Hufstedler also noted that “Deprivations which are only uncomfortable are not enough, such as conditioning lower tuition at state institutions of higher education upon a one-year residency requirement.” Id. at 639, n. 5. The district judge found that strict scrutiny was not applicable because the dura-tional residency requirement for preferential rates for mooring privileges in recreational boat harbors was not a significant penalty on the right to travel. To use Judge Hufstedler’s terminology, this “deprivation” was merely \"uncomfortable.” The district judge found that this case was more like the college tuition cases, which stand for the proposition that “conditioning lower tuition at state institutions of" }, { "docid": "4918584", "title": "", "text": "(1970). The problem is one that is more often associated with cases where the judicially cognizable injury requisite for standing has not been alleged, namely that courts may be dealing with problems of wide public significance without any specific context. Warth v. Seldin, supra, 95 S.Ct. at p. 2206. Of course, given a specific context, courts can and have decided such questions. Cf., Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L. Ed. 873 (1954). The constitutional right to travel is particularly susceptible to the lack of specificity presented by this lawsuit. The Supreme Court cases that have considered it have been concerned with actual travelling on interstate roads, United States v. Guest, 383 U.S. 745, 86 S.Ct. 1170, 16 L.Ed.2d 239 (1966); Griffin v. Breckenridge, 403 U.S. 88, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971), passage between states, Edwards v. California, 314 U.S. 160, 62 S.Ct. 164, 86 L.Ed. 119 (1941), or the conditioning of government functions on the recency of interstate travel. E. g., Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (denial of welfare benefits because of recency of state or District of Columbia residency); Memorial Hospital v. Maricopa County, 415 U.S. 250, 94 S.Ct. 1076, 39 L.Ed.2d 306 (1974) (denial of medical benefits which amounted to a basic necessity of life because of recency of county residency; indigent plaintiff had previously resided in another state); Dunn v. Blumstein, 405 U.S. 330, 92 S. Ct. 995, 31 L.Ed.2d 274 (1972) (durational residency requirement for voting). The residency cases have concerned either items necessary for life, or else independent fundamental rights (e. g., the right to vote). In Memorial Hospital the court explicitly reserved the question of whether the right extends to intrastate migration, 94 S.Ct. at 1081, and indicated . . the right of interstate travel must be seen as insuring new residents the same right to vital government benefits and privileges in the States to which they migrate as are enjoyed by other residents.” Id. at 1084 (emphasis added). See also, Sosna v. Iowa, 419 U.S. 393, 95" }, { "docid": "1225653", "title": "", "text": "durational residency restrictions on certain other benefits or privileges do sufficiently implicate the right to travel so as to require strict scrutiny: non-emergency medical care for indigents, Memorial Hospital v. Maricopa Co., supra, welfare benefits, Shapiro v. Thompson, supra; and voting, Dunn v. Blumstein, supra. The Supreme Court’s fullest explanation of these right of interstate travel cases is contained in Maricopa. The Court quoted Dunn v. Blumstein, supra, 405 U.S. at 340, 92 S.Ct. at 1002. “In Shapiro we explicitly stated that the compelling-state interest test would be triggered by ‘any classification which serves to penalize the exercise of that right [to travel] ...’” (Emphasis in original; footnote omitted.) The Supreme Court then explained: “Thus, Shapiro and Dunn stand for the proposition that a classification which ‘operates to penalize those persons ... who have exercised their constitutional right of interstate migration,’ must be justified by a compelling state interest. Oregon v. Mitchell, 400 U.S. 112, 238 [91 S.Ct. 260, 321,27 L.Ed.2d 272] (1970) (separate opinion of Brennan, White and Marshall, JJ.) (emphasis added). Although any durational residence requirement imposes a potential cost on migration, the Court in Shapiro cautioned that some ‘waiting-period[s] ... may not be penalties.” 394 U.S., at 638 n. 21 [89 S.Ct. at 1333 n. 21]. In Dunn v. Blumstein, supra, the Court found that the denial of the franchise, ‘a fundamental political right,’ Reynolds v. Sims, 377 U.S. 533, 562 [84 S.Ct. 1362, 1381, 12 L.Ed.2d 506] (1964), was a penalty requiring application of the compelling-state-interest test. In Shapiro, the Court found denial of the basic ‘necessities of life’ to be a penalty. Nonetheless, the Court, has declined to strike down state statutes requiring one year of residence as a condition to lower tuition at state institutions of higher education. Whatever the ultimate parameters of the Shapiro penalty analysis, it is at least clear that medical care is as much ‘a basic necessity of life’ to an indigent as welfare assistance.” 415 U.S. at 258-259, 94 S.Ct. at 1082. (Original emphasis.) The crucial inquiry in the Supreme Court’s “penalty” analysis is whether the underlying benefit denied" }, { "docid": "22566004", "title": "", "text": "resulted in the unequal distribution of rights and benefits among otherwise qualified bona fide residents.” 476 U.S. at 903, 106 S.Ct. 2317. For example, the Supreme Court has subjected to strict scrutiny analysis state laws that imposed durational residence requirements for receipt of welfare benefits, Shapiro v. Thompson, 394 U.S. 618, 634, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969), overruled in part on other grounds by Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974); healthcare benefits, Mem’l Hosp., 415 U.S. at 254, 94 S.Ct. 1076; voting rights, see Dunn v. Blumstein, 405 U.S. 330, 342, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972); and a civil service preference for veterans who entered the armed forces while residing in a particular state, Soto-Lopez, 476 U.S. at 909, 106 S.Ct. 2317. But see Sosna v. Iowa, 419 U.S. 393, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975) (upholding a one-year residency requirement for maintaining an action for divorce); Starns v. Malkerson, 401 U.S. 985, 91 S.Ct. 1231, 28 L.Ed.2d 527 (1971) (summarily affirming a one-year residency requirement for in-state tuition at state universities). Our observation that “minor restrictions on travel simply do not amount to the denial of a fundamental right,” Town of Southold, 477 F.3d at 54 (internal quotation marks omitted), is consistent with the Supreme Court’s jurisprudence, cf. Miller v. Reed, 176 F.3d 1202, 1205 (9th Cir.1999) (“[M]inor burdens impacting interstate travel, such as toll roads, do not constitute a violation [of the right to travel] .... ” (emphasis added)). In this case, plaintiffs do not allege that they or other members of the putative class routinely pay the full toll in order to commute to work or that the toll has otherwise had a substantial financial impact on them. As noted, they allege that they paid the toll en route to New Jersey for shopping and other activities. These facts suggest at most a “minor restriction” on plaintiffs’ right to travel, rather than a “penalty.” Nevertheless, plaintiffs’ allegations implicate a possible violation of the right to travel in the context discussed in Evansville inasmuch as they" }, { "docid": "5485300", "title": "", "text": "to travel.” See Lutz v. City of York, Pennsylvania, 899 F.2d 255, 265 (3d Cir.1990); see also Thomas R. McCoy, Recent Equal Protection Decisions — Fundamental Right to Travel or “Newcomers” as a Suspect Class?, 28 Vand. L.Rev. 987 (1975); Todd Zubler, The Right to Migrate and Welfare Reform: Time for Shapiro v. Thompson to Take a Hike, 31 Val.U.L.Rev. 893, 904-05 (1997). In the seminal right to travel case of Shapiro, 394 U.S. 618, 89 S.Ct. 1322, the Court subjected to strict scrutiny several state laws that created one-year durational residence requirements as a prerequisite to eligibility for any welfare benefits. In construing a strikingly similar Pennsylvania statute, the Court in Shapiro expressly held that “any classification which serves to penalize the exercise of th[e] right [to travel], unless shown to be necessary to promote a compelling governmental interest, is unconstitutional.” Id. at 634, 89 S.Ct. 1322. The Shapiro Court reasoned that the one-year residence requirement imposed on recent migrants as a condition of welfare eligibility, which resulted in a complete denial of benefits for those persons residing in the state for less than one year, was unconstitutional, because it discriminated based solely on length of residency ifi the state and thus unconstitutionally burdened the plaintiffs’ fundamental right to interstate travel and migration. Five years later, in Maricopa, County, the Court, applying Shapiro, similarly subjected to strict scrutiny an Arizona law that required one-year residency in a county as a prerequisite to receiving free nonemergency hospital or medical care. 415 U.S. 250, 94 S.Ct. 1076. The Maricopa County Court acknowledged that “any durational residence requirement impinges to some extent on the right to travel” and thus not all durational residency requirements are per se unconstitutional. Maricopa County, 415 U.S. at 256, 94 SUt. 1076. The Court further stressed, however, that “the right of interstate travel must be seen as insuring new residents the same right to vital government benefits and privileges in the States to which they migrate as are enjoyed by other residents.” Id. at 261, 94 S.Ct. 1076. Thus, because it found that “medical care is as" }, { "docid": "9343550", "title": "", "text": "have exercised their constitutional right of interstate travel comes under great suspicion and must be carefully scrutinized. Exactly what test must be applied in these cases is not entirely clear. While Shapiro and Dunn, supra, stand for the proposition that a classification which “operates to penalize those persons . . . who have exercised their constitutional right of interstate migration” must be justified by a compelling state interest. Oregon v. Mitchell, 400 U.S. 112, 91 S.Ct. 260, 27 L.Ed.2d 272 (1970) (separate opinion of Brennan, White and Marshall, JJ.), it is not clear when a classification serves to penalize and consequently when to apply the compelling state interest test. The Supreme Court of the United States itself recognized the confusion and ambiguity in Memorial Hospital, supra : “Although any durational residence requirement impinges to some extent on the right to travel, the Court in Shapiro did not declare such a requirement to be per se unconstitutional. The Court’s holding was conditioned, 394 U.S., at 638 n. 21, 89 S.Ct., at 1333, by the caveat that some ‘waiting-period or residence requirements . . . may not be penalties upon the exercise of the constitutional right of interstate travel.’ The amount of impact required to give rise to the compelling-state-interest test was not made clear.” Id. 415 U.S. at 256-257, 94 S.Ct. at 1081. More recently in Sosna v. Iowa, 419 U.S. 393, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975), the Supreme Court of the United States upheld a one-year residency requirement which Iowa established as a condition precedent to obtaining an Iowa divorce. More significantly, however, is the test the court applied in Sosna. It appears the court upheld the durational residency requirement without applying the compelling state interest test as announced in Shapiro and Dunn. As Mr. Justice Marshall wrote in his dissenting opinion in Sosna: “The Court today departs sharply from the course we have followed in analyzing durational residency requirements since Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969). Because I think the principles set out in that ease and its progeny compel" }, { "docid": "1225651", "title": "", "text": "bar because it has the imprimatur of the Sixth Circuit. In Green v. McKeon, the Sixth Circuit, after carefully sidestepping any reliance on fundamental rights of voting, candidacy, or political expression, found strict scrutiny anchored in the right to interstate travel. Unfortunately, Green v. McKeon contains only a cursory discussion of the reasons for this course: “The durational residency requirement at issue classifies Plymouth residents on the basis of recent travel. That classification alone requires that the requirement be strictly scrutinized because it operates to penalize the exercise of the basic constitutional right to travel. Dunn v. Blumstein, 405 U.S. 330, 338 [92 S.Ct. 995, 1001, 31 L.Ed.2d 274] (1972).” 468 F.2d at 884. The Sixth Circuit apparently considered further analysis unnecessary in light of the Supreme Court’s dictum in Dunn v. Blumstein; standing alone, the classification on the basis of recent travel was thought to necessitate close scrutiny. However, as mentioned above, it has since been established that durational residency requirements are not per se infringements of the right of interstate travel triggering strict scrutiny. Sosna v. Iowa, 419 U.S. 393, 406, 95 S.Ct. 553, 560, 42 L.Ed.2d 532 (1975); Memorial Hospital v. Maricopa Co., 415 U.S. 250, 258-259, 94 S.Ct. 1076, 1082, 39 L.Ed.2d 306 (1974); Matthews v. Atlantic City, supra at 1019; Walker v. Yucht, supra at 94-95; Cf. Shapiro v. Thompson, 394 U.S. 618, 638, n. 21, 89 S.Ct. 1322, 1333, n. 21, 22 L.Ed.2d 600 (1969). Thus the Sixth Circuit’s assumption in Green v. McKeon has been belied by developments in the Supreme Court. The Supreme Court, in the right to travel context, has now upheld state durational residency conditions on licenses to practice law, Rose v. Bondurant, 409 U.S. 1020,93 S.Ct. 460, 34 L.Ed.2d 312, aff’g mem. D.C., 339 F.Supp. 257 (6 months), lower tuition at state institutions of higher education, Sturgis v. Washington, 414 U.S. 1057, 94 S.Ct. 563, 38 L.Ed.2d 464, aff’g mem. D.C., 368 F.Supp. 38 (one year); and the right to obtain a divorce, Sosna v. Iowa, supra (one year). On the other hand, the Supreme Court has held that" }, { "docid": "10285458", "title": "", "text": "1971, 3-judge court). . Vlandis, supra, 412 U.S. at 452-453, 93 S.Ct. 2230. In this connection, the Court cited with approval Starns v. Malkerson, 326 F.Supp. 234 (D.Minn.1970, 3-judge court), in which, the district court, applying the rational relation test, upheld a one-year durational residency requirement to establish residency for university tuition purposes. . Memorial Hospital 415 U.S. at 257, 94 S.Ct. 1076, Dunn had earlier held that actual deterrence of interstate travel was unnecessary to a finding of infringement on the right to travel. Strict scrutiny is also appropriate where such travel is penalized by state action. Dunn, supra, 405 U.S. at 339-340, 89 S.Ct. 361. . That this comparison of benefits analysis is a proper reading of Memorial Hospital is reinforced by the Court’s approving citation of Starns v. Malkerson, 326 F.Supp. 234 (D.Minn.1970), aff’d mem., 401 U.S. 985, 91 S.Ct. 1231, 28 L.Ed.2d 527 (1971); and Kirk v. Board of Regents, 273 Cal.App.2d 430, 78 Cal.Rptr. 260 (1969), in which higher university tuition fees for nonresident students were upheld by contrasting the higher tuition rates with the vital benefits deprived in Shapiro. Memorial Hospital 415 U.S. at 260 n. 15, 94 S.Ct. 1076. . Other federal courts have rejected right-to-travel arguments in bar admission cases and applied the rational relation test to challenged requirements. Lipman v. Van Zant, supra; Suffling v. Bondurant, 339 F. Supp. 257 (D.N.M.1972, 3-judge court), aff’d sub nom. Rose v. Bondurant, 409 U.S. 1020, 93 S.Ct. 460, 34 L.Ed.2d 312 (1972); Kline v. Rankin, 352 F.Supp. 292 (N.D.Miss.1972), rev’d on other grounds, 489 F.2d 387 (5 Cir. 1974). . BAR EXAMINATION SUBJECTS REQUIRED BY § 73-3-19_ 1. Real property law) 2. Personal property law) 3. Pleading and evidence 4. Commercial law 5. Criminal law 6. Chancery and chancery pleading 7. Statute law of Miss. 8. Constitution of United States and Miss. 9. Federal and state practice 10. Federal statutes on the judiciary and bankruptcy 11. Professional ethics 12. “Other proper subjects” REQUIRED CURRICULUM OF THE UNIVERSITY OF MISSISSIPPI SCHOOL OF LAW Property (7 hrs. 1st year) Civil Procedure (2 hrs. 1st year) Evidence" }, { "docid": "4918585", "title": "", "text": "618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (denial of welfare benefits because of recency of state or District of Columbia residency); Memorial Hospital v. Maricopa County, 415 U.S. 250, 94 S.Ct. 1076, 39 L.Ed.2d 306 (1974) (denial of medical benefits which amounted to a basic necessity of life because of recency of county residency; indigent plaintiff had previously resided in another state); Dunn v. Blumstein, 405 U.S. 330, 92 S. Ct. 995, 31 L.Ed.2d 274 (1972) (durational residency requirement for voting). The residency cases have concerned either items necessary for life, or else independent fundamental rights (e. g., the right to vote). In Memorial Hospital the court explicitly reserved the question of whether the right extends to intrastate migration, 94 S.Ct. at 1081, and indicated . . the right of interstate travel must be seen as insuring new residents the same right to vital government benefits and privileges in the States to which they migrate as are enjoyed by other residents.” Id. at 1084 (emphasis added). See also, Sosna v. Iowa, 419 U.S. 393, 95 S.Ct. 553, 568, 42 L.Ed.2d 532 (1975) (Brennan, J., dissenting). While a number of courts have flatly indicated that durational residency requirements cannot cause a discrimination in the allocation of public housing openings, e. g., Cole v. Housing Authority of City of Newport, 435 F.2d 807 (1st Cir. 1970); accord, King v. New Rochelle Municipal Housing Authority, 442 F.2d 646 (2d Cir. 1971) cert. denied, 404 U.S. 863, 92 S.Ct. 113, 30 L.Ed.2d 107 (1972), they had prospective residents litigating before them, and they based their holdings on the equal protection clause. Public housing may be construed as a governmental benefit which must be distributed equally, vis á vis residency duration, once it is being distributed at all. A single prospective resident might narrowly present the question whether, for him, a particular housing unit or zoning ordinance should be so construed. Also, characteristics of the prospective resident may change the applicability of the right. The matter is even further complicated by the fact that the Supreme Court has in effect held that there is no" }, { "docid": "10285438", "title": "", "text": "right-to-travel arguments, applying rational relation analysis. We believe the Supreme Court’s summary disposition of Huffman is consistent with our analysis here, and that it supports the proposition that the governmental benefit there denied'— the ability to practice law without undergoing an examination of professional competence — is not sufficiently vital to infringe the plaintiffs’ fundamental right to interstate travel. It seems quite evident that the governmental benefit for which plaintiffs contend in this action has more in common with the tuition at stake in Vlandis than with the vital benefits at issue in Shapiro, Dunn, and Memorial Hospital. Indeed, we know of no judicial precedents that regard one’s ability to practice law without undergoing an examination of professional competence as a fundamental right, or as a benefit comparable in importance to welfare benefits, medical care or voting. Moreover, no evidence has been presented, and there is no basis for concluding, that Mississippi’s bar examination is apt to deter the migration of professionally qualified attorneys into the state. Whatever may be the impact of the bar admission plan on those who engaged in interstate travel, it does not offend the right of travel safeguarded by the Constitution. II. The Bar Admission Plan is Rationally Related to Proper State Goals We next consider the diploma privilege, reciprocity exemption and bar examination provisions in light of plaintiffs’ equal protection claims. The judicial precedents make clear that, absent suspect criteria, constitutional challenges to professional licensing statutes are to be judged by the rational relation standard of review. Martin v. Walton, 368 U.S. 25, 82 S.Ct. 1, 7 L.Ed.2d 5 (1961); Schware v. Board of Bar Examiners, supra; Konigsberg v. State Bar of California, 353 U.S. 252, 77 S.Ct.722, 1 L.Ed.2d 810 (1957); Kotch v. River Port Pilot Commissioners, 330 U. S. 552, 67 S.Ct. 910, 91 L.Ed. 1093 (1947); Douglas v. Noble, 261 U.S. 165, 43 S.Ct. 303, 67 L.Ed. 590 (1923); Whitfield v. Illinois Board of Bar Examiners, 504 F.2d 474 (7 Cir., 1974); Chaney v. State Bar of California, supra; Hackin v. Lockwood, supra; Kline v. Rankin, supra; Suffling v. Bondurant, supra;" }, { "docid": "10285437", "title": "", "text": "of greater constitutional significance than less essential forms of governmental entitlements.” Memorial Hospital, supra, 415 U.S. at 259, 94 S.Ct. at 1082-1083. Memorial Hospital suggests, then, that at least in the absence of hard evidence of a deterrent effect on interstate migration, only classifications which deprive newly arrived residents of “vital governmental benefits and privileges” will be held to impose penalties on the right to travel sufficient to trigger strict scrutiny analysis. Conversely, classifications which disadvantage interstate travelers, but to a considerly lesser degree, do not impinge on the fundamental right to travel and must withstand only rational relation examination. Further support for our view is provided by Huffman v. Montana Supreme Court, 372 F.Supp. 1175 (D.Mont.1974, 3-judge court), aff’d mem., 419 U.S. 955, 95 S.Ct. 216, 42 L.Ed.2d 172 (1974). In Huffman, plaintiffs challenged a Montana statute exempting graduates of the University of Montana Law School from the bar examination requirement demanded of all other applicants to the Montana bar. The district court in Huffman upheld the Montana diploma privilege in the face of right-to-travel arguments, applying rational relation analysis. We believe the Supreme Court’s summary disposition of Huffman is consistent with our analysis here, and that it supports the proposition that the governmental benefit there denied'— the ability to practice law without undergoing an examination of professional competence — is not sufficiently vital to infringe the plaintiffs’ fundamental right to interstate travel. It seems quite evident that the governmental benefit for which plaintiffs contend in this action has more in common with the tuition at stake in Vlandis than with the vital benefits at issue in Shapiro, Dunn, and Memorial Hospital. Indeed, we know of no judicial precedents that regard one’s ability to practice law without undergoing an examination of professional competence as a fundamental right, or as a benefit comparable in importance to welfare benefits, medical care or voting. Moreover, no evidence has been presented, and there is no basis for concluding, that Mississippi’s bar examination is apt to deter the migration of professionally qualified attorneys into the state. Whatever may be the impact of the bar" }, { "docid": "5485301", "title": "", "text": "for those persons residing in the state for less than one year, was unconstitutional, because it discriminated based solely on length of residency ifi the state and thus unconstitutionally burdened the plaintiffs’ fundamental right to interstate travel and migration. Five years later, in Maricopa, County, the Court, applying Shapiro, similarly subjected to strict scrutiny an Arizona law that required one-year residency in a county as a prerequisite to receiving free nonemergency hospital or medical care. 415 U.S. 250, 94 S.Ct. 1076. The Maricopa County Court acknowledged that “any durational residence requirement impinges to some extent on the right to travel” and thus not all durational residency requirements are per se unconstitutional. Maricopa County, 415 U.S. at 256, 94 SUt. 1076. The Court further stressed, however, that “the right of interstate travel must be seen as insuring new residents the same right to vital government benefits and privileges in the States to which they migrate as are enjoyed by other residents.” Id. at 261, 94 S.Ct. 1076. Thus, because it found that “medical care is as much ‘a basic necessity of life’ to an, indigent as [the] welfare assistance” at issue in Shapiro, and that the classification penalized those persons who had “exercised their constitutional right of interstate migration,[the statute] must be justified by a compelling state interest.” Id. at 258-59, 94 S.Ct. 1076 (citation omitted). The Court then struck down the law, finding that the Arizona statute created “an ‘invidious classification’ that impinges on the right of interstate travel by denying newcomers ‘basic necessities of life,’ ” and was not supported by compelling justifications or narrowly drawn. 415 U.S. at 269, 94 S.Ct. 1076. Since Shapiro and Maricopa County, a majority of the Court has never subjected a durational residency requirement to strict scrutiny. Instead, the Court sometimes employs some form of rational basis review, and, occasionally, analyzes such laws without even implicating the fundamental right to travel. See, e.g., Attorney General of New York v. Soto-Lopez, 476 U.S. 898, 106 S.Ct. 2317, 90 L.Ed.2d 899 (1986) (four of the justices applied strict scrutiny in an opinion which did not" }, { "docid": "14221577", "title": "", "text": "States v. Guest, 383 U.S. 745, 758, 86 S.Ct. 1170, 1178, 16 L.Ed.2d 239 (1966). Although the Supreme Court has declined to “ascribe the source of this right ... to a particular constitutional provision,” Shapiro v. Thompson, 394 U.S. 618, 630, 89 S.Ct. 1322, 1329, 22 L.Ed.2d 600 (1969), it has been said that the right to interstate travel finds its “most forceful expression in the context of equal protection analysis,” Zobel v. Williams, 457 U.S. 55, 67, 102 S.Ct. 2309, 2316, 72 L.Ed.2d 672 (1982) (Brennan, J., concurring). Cf. Lutz v. City of York, 899 F.2d 255, 258-68 (3d Cir.1990) (concluding that the right to intrastate travel emanates from the substantive component of the Fourteenth Amendment Due Process Clause). The Supreme Court’s modern right to travel jurisprudence originated in Shapiro v. Thompson. There the Supreme Court struck down under strict scrutiny a durational residency requirement for welfare benefits. Following Shapiro, the Court applied strict scrutiny in striking down durational residency requirements to vote, Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972); and to receive free nonemergency medical care, Memorial Hosp. v. Maricopa County, 415 U.S. 250, 258, 94 S.Ct. 1076, 1082, 39 L.Ed.2d 306 (1974). But cf. Sosna v. Iowa, 419 U.S. 393, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975) (upholding durational residency requirement for in-state divorce). In Zobel v. Williams, however, the Court employed rational basis review in striking down a legislative scheme for distribution of surplus oil revenues to citizens based on duration of residency. Three years later, in Hooper v. Bernalillo County Assessor, 472 U.S. 612, 105 S.Ct. 2862, 86 L.Ed.2d 487 (1985), the Court applied rational basis review in striking down a limited property tax exemption for Vietnam veterans with residency prior to May 8, 1976. In Attorney General of New York v. Soto-Lopez, 476 U.S. 898, 106 S.Ct. 2317, 90 L.Ed.2d 899 (1986), a plurality of the Court applied strict scrutiny to a civil service preference for Vietnam veterans with residency at the time they entered military service, but the fifth and sixth votes for striking down the preference" }, { "docid": "2886566", "title": "", "text": "to receive free nonemergency medical care, see Memorial Hospital v. Maricopa County, 415 U.S. 250, 94 S.Ct. 1076, 39 L.Ed.2d 306 (1974). However, discerning state interests of greater significance than those asserted in Shapiro, Dunn, or Maricopa County, the Court in Sosna v. Iowa, 419 U.S. 393, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975), upheld a minimum durational residency requirement as a condition of eligibility to be granted an in-state divorce. More recent cases involve similar statutes, but different reasoning. Thus, in Zobel v. Williams, 457 U.S. 55, 102 S.Ct. 2309, 72 L.Ed.2d 672 (1982), the Court reviewed a state statute distributing certain income to its citizens on the basis of the duration of each citizen’s in-state residency. The Court struck down the statute under rational basis review, expressly reserving the question “whether any enhanced scrutiny is called for” because the statute burdened fundamental rights. See id. at 61, 102 S.Ct. at 2313. And in Attorney General of New York v. Soto-Lopez, 476 U.S. 898, 106 S.Ct. 2317, 90 L.Ed.2d 899 (1986), Justice Brennan’s reassertion of the Shapiro strict scrutiny test garnered only a plurality. The fifth and sixth votes for striking down the statute under consideration, which provided benefits for certain veterans only if they had been residents of New York when they entered the service, relied on the rational basis approach employed in Zobel. The prevalence in the modern right to travel case law of challenges to statutes facially discriminating against recent interstate immigrants has two consequences that complicate the decision at hand. First, such cases presented the Supreme Court with no opportunity squarely to consider the question whether the right to travel includes the right to travel intra state — a major threshold issue in this case. Dicta from the recent travel cases is largely unhelpful on this score. For example, in Guest, the Court at different points referred to both “the constitutional right to travel from one State to another” and the “freedom to travel throughout the United States.” 383 U.S. at 757, 758, 86 S.Ct. at 1177, 1178. Similarly, Shapiro referred to both “the right" }, { "docid": "1225652", "title": "", "text": "scrutiny. Sosna v. Iowa, 419 U.S. 393, 406, 95 S.Ct. 553, 560, 42 L.Ed.2d 532 (1975); Memorial Hospital v. Maricopa Co., 415 U.S. 250, 258-259, 94 S.Ct. 1076, 1082, 39 L.Ed.2d 306 (1974); Matthews v. Atlantic City, supra at 1019; Walker v. Yucht, supra at 94-95; Cf. Shapiro v. Thompson, 394 U.S. 618, 638, n. 21, 89 S.Ct. 1322, 1333, n. 21, 22 L.Ed.2d 600 (1969). Thus the Sixth Circuit’s assumption in Green v. McKeon has been belied by developments in the Supreme Court. The Supreme Court, in the right to travel context, has now upheld state durational residency conditions on licenses to practice law, Rose v. Bondurant, 409 U.S. 1020,93 S.Ct. 460, 34 L.Ed.2d 312, aff’g mem. D.C., 339 F.Supp. 257 (6 months), lower tuition at state institutions of higher education, Sturgis v. Washington, 414 U.S. 1057, 94 S.Ct. 563, 38 L.Ed.2d 464, aff’g mem. D.C., 368 F.Supp. 38 (one year); and the right to obtain a divorce, Sosna v. Iowa, supra (one year). On the other hand, the Supreme Court has held that durational residency restrictions on certain other benefits or privileges do sufficiently implicate the right to travel so as to require strict scrutiny: non-emergency medical care for indigents, Memorial Hospital v. Maricopa Co., supra, welfare benefits, Shapiro v. Thompson, supra; and voting, Dunn v. Blumstein, supra. The Supreme Court’s fullest explanation of these right of interstate travel cases is contained in Maricopa. The Court quoted Dunn v. Blumstein, supra, 405 U.S. at 340, 92 S.Ct. at 1002. “In Shapiro we explicitly stated that the compelling-state interest test would be triggered by ‘any classification which serves to penalize the exercise of that right [to travel] ...’” (Emphasis in original; footnote omitted.) The Supreme Court then explained: “Thus, Shapiro and Dunn stand for the proposition that a classification which ‘operates to penalize those persons ... who have exercised their constitutional right of interstate migration,’ must be justified by a compelling state interest. Oregon v. Mitchell, 400 U.S. 112, 238 [91 S.Ct. 260, 321,27 L.Ed.2d 272] (1970) (separate opinion of Brennan, White and Marshall, JJ.) (emphasis added). Although any" }, { "docid": "1223657", "title": "", "text": "343, 92 S.Ct. at 1003 quoting Shelton v. Tucker, 364 U.S. 479, 488, 81 S.Ct. 247, 252, 5 L.Ed.2d 231 (1960). In Memorial Hospital v. Maricopa County, 415 U.S. 250, 94 S.Ct. 1076, 39 L.Ed.2d 214 (1974), the Court found unconstitutional an Arizona statute requiring one year of county residence as a condition to an indigent’s receiving hospitalization or medical care at the county’s expense. Conceding that the parameters of the Shapiro case were less than clearly defined, the Court applied a strict scrutiny standard of review, reasoning that “medical care is as much ‘a basic necessity of life’ to an indigent as welfare assistance”. 415 U.S. at 259, 94 S.Ct. at 1082. In applying this high standard of equal protection review, the Court found that the county had not carried its “heavy burden of justification, or demonstrated that the State, in pursuing legitimate objectives, has chosen means which do not unnecessarily impinge on constitutionally protected interests”. 415 U.S. at 269, 94 S.Ct. at 1088. Most recently, in Sosna v. Iowa, 419 U.S. 393, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975), the Supreme Court upheld the constitutionality of an Iowa statute imposing a one year residence requirement for commencing an action for divorce. There, the Court’s analysis of the right to travel was not expressed in terms of equal protection standards, strict scrutiny or compelling state interests. Rather, the Court categorized the statutes found unconstitutional in Shapiro, Dunn and Maricopa County as statutes defended only on grounds of administrative convenience or budgetary considerations. 419 U.S. at 406, 95 S.Ct. at 560. The Court then distinguished those earlier cases from Sosna in that Iowa’s one year residence requirement was justified by the state’s interest in “requiring that those who seek a divorce from [Iowa] courts be genuinely attached to the State, as well as a desire to insulate divorce decrees from the likelihood of collateral attack”. 419 U.S. at 409, 95 S.Ct. at 562. The Court further distinguished the Iowa divorce statute from the durational residence requirements held unconstitutional in the earlier cases, on the ground that the Iowa statute did" } ]

[ { "docid": "14570126", "title": "", "text": "occurred by foreclosing the discovery of evidence that they did occur, it is a privilege “not to be lightly invoked.” United States v. Reynolds, 345 U.S. 1, 7, 73 S.Ct. 528, 531, 97 L.Ed. 727 (1953). Its invocation must be carefully considered to assure that the proper balance is struck between the interest of the public and the litigant in vindicating private rights and the public’s interest in safeguarding of the national security. We turn to that consideration. 1. General principles The starting point for any analysis of a claim of the state secrets privilege is United States v. Reynolds, 345 U.S. 1, 73 S.Ct. 528, 97 L.Ed. 727 (1953). That case establishes that secrets of state — matters the revelation of which reasonably could be seen as a threat to the military or diplomatic interests of the nation — are absolutely privileged from disclosure in the courts. Although the courts in evaluating claims of the privilege may take cognizance of the need for the information demonstrated by the party seeking disclosure, such need is a factor only in determining the extent of the court’s inquiry into the appropriateness of the claim. Once the court is satisfied that the information poses a reasonable danger to secrets of state, “even the most compelling necessity cannot overcome the claim of privilege . . . . ” Id. at 11, 73 S.Ct. at 533. Therefore, the critical feature of the inquiry in evaluating the claim of privilege is not a balancing of ultimate interests at stake in the litigation. That balance has already been struck. Rather, the determination is whether the showing of the harm that might reasonably be seen to flow from disclosure is adequate in a given case to trigger the absolute right to withhold the information sought in that case. A second inquiry may be posed once the government — whether as a party to the litigation or simply as the person having legal control over the information involved — has successfully invoked the privilege. The question then becomes whether the ease is to proceed as if the privileged matter" } ]

[ { "docid": "21298678", "title": "", "text": "other privileges, such as the attorney-client privilege, a similar status-clear error as to factual determinations by the district court, but de novo review as to the application of legal principles to those facts. See United States v. Bauer, 132 F.3d 504, 507 (9th Cir.1997). Other circuits are in accord regarding review of the state secrets privilege. See El-Masri v. United States, 479 F.3d 296, 302 (4th Cir.2007); Molerio v. FBI, 749 F.2d 815, 820 (D.C.Cir.1984). Standing is also reviewed de novo. Buono v. Norton, 371 F.3d 543, 546 (9th Cir.2004). Analysis I. The State Seorets Privilege The state secrets privilege is a common law evidentiary privilege that permits the government to bar the disclosure of information if “there is a reasonable danger” that disclosure will “expose military matters which, in the interest of national security, should not be divulged.” United States v. Reynolds, 345 U.S. 1, 10, 73 S.Ct. 528, 97 L.Ed. 727 (1953). The privilege is not to be lightly invoked. Id. at 7, 73 S.Ct. 528. Although Reynolds is widely viewed as the first explicit recognition of the privilege by the Supreme Court, see Amanda Frost, The State Secrets Privilege and Separation of Powers, 75 Fordham L. Rev. 1931, 1936 (2007), the Supreme Court considered a form of the privilege-the non-justiciability of certain state secrets cases-in Totten v. United States, 92 U.S. 105, 23 L.Ed. 605 (1875). Totten arose out of a contract between President Lincoln and a secret agent who was allegedly dispatched to spy on enemy troops. As the Court explained in a very short opinion, “[i]t may be stated as a general principle, that public policy forbids the maintenance of any suit in a court of justice, the trial of which would inevitably lead to the disclosure of matters which the law itself regards as confidential, and respecting which it will not allow the confidence to be violated.” Id. at 107. The court then barred suit regarding the contract, as “[t]he secrecy which such contracts impose precludes any action for their enforcement,” and noted that “the existence of a contract of that kind is itself" }, { "docid": "23686274", "title": "", "text": "are precisely those that the Supreme Court said must be avoided in Harbury. And in such circumstances, it is our job to put “the trial court ... in a position as soon as possible in the litigation to know whether a potential constitutional ruling may be obviated.” Id. at 417, 122 S.Ct. 2179. For reasons that will be clear soon enough, it may well be that, on remand, this case would, for non-constitutional reasons, “fail to state a claim on which relief could be granted.” Id. at 417,122 S.Ct. 2179. That being so, the Supreme Court has told us, we must avoid constitutional pronouncements. For this Court to go out of its way to decide on Bivens grounds when it is not necessary is, therefore, a reaching out of a particularly dangerous sort, regardless of what conclusion the Court comes to on the Bivens question. If — as I would if I had to face the question — -we were to decide that Bivens applies, then some remedy would be necessary regardless of Congress’s preference. If, as the majority chooses to do, we rule that Bivens does not apply, we have said that, in a wide variety of cases, the Constitution fails to give protection. Both positions require a parsing of the Great Charter. When such a decision cannot be avoided, so be it: we do our job. But where it can be avoided, it should be. II So, how might the Bivens issue have been avoided? As Judge Sack explains in his eloquent dissent, this might be done through first examining the significance of the state secrets privilege to this case. That privilege has long required dismissal in those rare cases where national security interests so drastically limit the evidence that can be introduced as to deprive either a plaintiff or a defendant of an opportunity to make its case. See, e.g., Zuckerbraun v. Gen. Dynamics Corp., 935 F.2d 544, 547 (2d Cir.1991); see also United States v. Reynolds, 345 U.S. 1, 73 S.Ct. 528, 97 L.Ed. 727 (1953); El-Masri v. United States, 479 F.3d 296, 308 (4th Cir.2007)" }, { "docid": "8950965", "title": "", "text": "is not a party to the case. See, e.g., Fitzgerald v. Penthouse Int’l Ltd., 776 F.2d 1236 (4th Cir.1985). The privilege must be claimed by the head of the department with control over the matter in question after personal consideration by that officer. See Reynolds, 345 U.S. at 7-8, 73 S.Ct. at 531-32. Once properly invoked, the effect of the privilege is to exclude the evidence from the case. See Ellsberg v. Mitchell, 709 F.2d 51, 65 (D.C.Cir.1983), cert. denied, 465 U.S. 1038, 104 S.Ct. 1316, 79 L.Ed.2d 712 (1984). A court before which the privilege is asserted must assess the validity of the claim of privilege, satisfying itself that there is a reasonable danger that disclosure of the particular facts in litigation will jeopardize national security. In making this assessment, however, the court must not “forc[e] a disclosure of the very thing the privilege is designed to protect,” Reynolds, 345 U.S. at 8, 73 S.Ct. at 532, and, although the privilege is not to be lightly invoked, see id. at 7, 73 S.Ct. at 531, the court must accord the “ ‘utmost deference’ ” to the executive’s determination of the impact of disclosure on military or diplomatic security. Halkin v. Helms, 598 F.2d 1, 9 (D.C. Cir.1978) (Halkin I) (quoting United States v. Nixon, 418 U.S. 683, 710, 94 S.Ct. 3090, 3108, 41 L.Ed.2d 1039 (1974)). “[Ejven the most compelling necessity cannot overcome the claim of privilege if the court is ultimately satisfied that military secrets are at stake.” Reynolds 345 U.S. at 11, 73 S.Ct. at 533. In some cases, the effect of an invocation of the privilege may be so drastic as to require dismissal. Thus, if proper assertion of the privilege precludes access to evidence necessary for the plaintiff to state a prima facie claim, dismissal is appropriate. See Halkin v. Helms, 690 F.2d 977, 998-99 (D.C.Cir.1982) (Halkin II); Farnsworth Cannon, Inc. v. Grimes, 635 F.2d 268, 281 (4th Cir.1980) (en banc). Similarly, it has been held that, if the court determines that the privilege so hampers the defendant in establishing a valid defense that the" }, { "docid": "5280098", "title": "", "text": "in some instances, necessarily lead to dismissal. See Kasza v. Browner, 133 F.3d 1159, 1170 (9th Cir.1998) (affirming dismissal, on state secrets grounds, of action alleging that Air Force had unlawfully handled hazardous waste in classified operating area); Black v. United States, 62 F.3d 1115, 1118-19 (8th Cir.1995) (affirming dismissal, on state secrets grounds, of action alleging that executive branch officials had engaged in “campaign of harassment and psychological attacks” against plaintiff); Bareford v. Gen. Dynamics Corp., 973 F.2d 1138, 1140 (5th Cir.1992) (affirming dismissal, on state secrets grounds, of action alleging manufacturing and design defects in military weapons system); Halkin v. Helms, 690 F.2d 977, 981 (D.C.Cir.1982) (affirming dismissal, on state secrets grounds, of action alleging unlawful CIA surveillance); cf. Tenenbaum v. Simonini, 372 F.3d 776, 777-78 (6th Cir.2004) (affirming summary judgment because no defense was available without resort to privileged state secrets). 3. To summarize, our analysis of the Executive’s interposition of the state secrets privilege is governed primarily by two standards. First, evidence is privileged pursuant to the state secrets doctrine if, under all the circumstances of the case, there is a reasonable danger that its disclosure will expose military (or diplomatic or intelligence) matters which, in the interest of national security, should not be di vulged. See Reynolds, 345 U.S. at 10, 73 S.Ct. 528. Second, a proceeding in which the state secrets privilege is successfully interposed must be dismissed if the circumstances make clear that privileged information will be so central to the litigation that any attempt to proceed will threaten that information’s disclosure. See Sterling, 416 F.3d at 348; see also Reynolds, 345 U.S. at 11 n. 26, 73 S.Ct. 528; Totten, 92 U.S. at 107. With these controlling principles in mind, and being cognizant of the delicate balance to be struck in applying the state secrets doctrine, we proceed to our analysis of El-Masri’s contentions. B. 1. The question before us is whether the facts of this proceeding satisfy the governing standard for dismissal of an action on state secrets grounds, as the district court ruled. El-Masri essentially accepts the legal framework described" }, { "docid": "17128", "title": "", "text": "activities at the U.S. Air Force operating location near Groom Lake, Nevada constitutes military and state secrets. As a result, disclosure of this information in documentary or testimonial evidence must be barred in the interests of national security of the United States. Pursuant to the authority vested in me as Secretary of the Air Force, I hereby invoke a formal claim of military and state secrets privilege with respect to the disclosure of the national security information listed in paragraph four of this Declaration [the ten categories of information] and more fully discussed in the classified Declaration, whether through documentary or testimonial evidence. In her unclassified declaration, Widnall states that she is satisfied that the information described in her classified declaration is properly classified and that she has “determined that the information described in the classified Declaration, if released to the public, could reasonably be expected to cause exceptionally grave damage to the national security.” Further, she explains, “[i]t is not possible to discuss publicly the majority of information at issue without risking the very harm to the national security that protection of the information is intended to prevent.” Here, after actual personal consideration, the person that Reynolds requires to claim the privilege publicly claimed it. Elaborating the basis for the claim of privilege through in camera submissions is unexceptionable. See, e.g., Black v. United States, 62 F.3d 1115 (8th Cir.1995), cert. denied, — U.S. -, 116 S.Ct. 1541, 134 L.Ed.2d 645 (1996); Zuckerbraun v. General Dynamics Corp., 935 F.2d 544 (2d Cir.1991); Fitzgerald v. Penthouse Int’l, Ltd., 776 F.2d 1236 (4th Cir.1985); Molerio, 749 F.2d at 819, 822; Farnsworth Cannon, Inc. v. Grimes, 635 F.2d 268, 281 (4th Cir.1980) (en banc). Likewise, explaining through a competent official such as Moorman how the claim of privilege plays out in practice is consistent with Reynolds’s insistence that the decision to object be made at the highest level. See, e.g., In re United States, 872 F.2d at 474 (classified declaration of assistant director of the FBI’s Intelligence Division submitted for in camera review in support of Attorney General’s formal invocation of state" }, { "docid": "11131355", "title": "", "text": "public concerning the national defense or the international relations of the United States.” 8 Wright & Miller, Federal Practice and Procedure, § 2019, at 158 (1970). The Government only needs to show that “from all the circumstances of the case, ... there is a reasonable danger that compulsion of the evidence will expose matters which, in the interest of national security, should not be divulged.” Reynolds, 345 U.S. at 10, 73 S.Ct. at 533. In Reynolds, the Supreme Court discussed the dilemma facing a court evaluating a claim of privilege; “[t]oo much inquiry would force disclosure of the thing the privilege was meant to protect, while a complete abandonment would lead to intolerable abuses.” Id. at 8, 73 S.Ct. at 532 (discussing the analogous privilege against self-incrimination). Therefore, if a court is satisfied that a reasonable danger to security interests has been established, “the court should not jeopardize the security which the privilege is meant to protect by insisting upon an examination of the evidence, even by the judge alone, in chambers.” Id. at 10, 73 S.Ct. at 533. The requirements for an assertion of the state secrets privilege are that “[tjhere must be a formal claim of privilege, lodged by the head of the department which has control of the matter, after personal consideration by that officer.” Id. at 7-8, 73 S.Ct. at 531-32. The court must then evaluate the claim, according the utmost deference to the executive official, National Lawyers Guild v. Attorney General, 96 F.R.D. 390, 398 (S.D.N.Y.1982), yet not abdicating judicial control of the evidence of the case to executive officers. Reynolds, 345 U.S. at 9, 73 S.Ct. at 532. Once it is successfully invoked, the privilege is absolute. Although it “should not be lightly accepted, ... even the most compelling necessity cannot overcome the claim of privilege if the court is ultimately satisfied that military secrets are at stake.” Reynolds, 345 U.S. at 11, 73 S.Ct. at 533. “A party’s need for the information is not a factor in considering whether the privilege will apply.” Northrop Corp. v. McDonnell Douglas, 751 F.2d 395, 399 (D.C.Cir.1984)." }, { "docid": "14977670", "title": "", "text": "(quoting Gorin v. United States, 312 U.S. 19, 28, 61 S.Ct. 429, 434, 85 L.Ed. 488 (1941)). It is not proper to characterize this, as does Black, as some “creature” of the Cold War; the privilege preceded that state of affairs, and having an independent existence, cannot be held to have terminated with the (current, and perhaps temporary) demise of superpower rivalry. Indeed, it could be argued that the absence of a relatively stable world order of the sort that prevailed during the Cold War makes the availability of the privilege in appropriate cases all the more important. While the state secrets privilege is not to be lightly invoked, a process safeguarded by the Supreme Court’s requirement that the head of the relevant government department make a formal claim after personal perusal of the matter, see Reynolds, 345 U.S. at 7-8, 73 S.Ct. at 532, nevertheless “the court must accord the ‘ “utmost deference” ’ to the executive’s determination of the impact of disclosure on military or diplomatic security.” Zuckerbraun, 935 F.2d at 547 (citations to quoted cases omitted). Even the most compelling need cannot force a disclosure of the very thing the privilege is invoked to protect. See Reynolds, 345 U.S. at 8, 73 S.Ct. at 532. Care in protecting state secrets is necessary not only during a court’s review of the evidence, but in its subsequent treatment of the question in any holding; a properly phrased opinion should not strip the veil from state secrets even if ambiguity results in a loss of focus and clarity. Such proceedings, “involving delicate and sensitive intelligence communications,” should be distinguished from more ordinary forms of discovery, such as Freedom of Information Act (FOIA) requests. North Dakota ex rel. Olson v. Andrus, 581 F.2d 177, 182 n. 9 (8th Cir.1978). Assessment of a claim of state secrets privilege may require an in camera ex parte examination by the judge. See Ellsberg, 709 F.2d at 57 n. 31. Black’s argument that such proceedings “are an inappropriate means to resolve disputed issues of privilege,” Brief of Appellant at 19, is simply incorrect. The lower" }, { "docid": "4650131", "title": "", "text": "F.3d 76, 102 (2d Cir.2008) (“We review discovery rulings for abuse of discretion.”); and cf. Northrop Corp. v. McDonnell Douglas Corp., 751 F.2d 395 (D.C.Cir.1984) (applying abuse of discretion standard to review claims of both procedural and substantive eiTor in state-secrets assessment). In the case before us, however, we need not decide which standard of review to apply inasmuch as we would affirm in any event. II. The State-Secrets Privilege Whether the government properly invoked the state-secrets privilege and the district court properly dismissed this action are not questions before us for review' because the plaintiffs did not contest those issues in the district court. The question presented is, instead, whether the actions of the government in the course of invoking the privilege abridged the plaintiffs’ constitutional rights. In order to address this issue, we must first review the legal and procedural context in which those challenges are made. In United States v. Reynolds, 345 U.S. 1, 73 S.Ct. 528, 97 L.Ed. 727 (1953), the Supreme Court established the procedure by which federal courts police the government’s invocation of the common-law state-secrets privilege. Reynolds involved an FTCA action brought by the widows of civilians who had died in the crash of a B-29 bomber that was “testing secret electronic equipment.” Id. at 3, 73 S.Ct. 528. They sought discovery of an Air Force investigative report on the accident and statements provided by surviving members of the airplane’s crew. Id. at 3-5, 73 S.Ct. 528. The district court ordered the government to produce the documents for its review. Id. at 5, 73 S.Ct. 528. The government refused, initially not on state-secret grounds, but under regulations which it described as having been “ ‘designed to insure the collection of all pertinent information regarding aircraft accidents in order that all possible measures will be developed for the prevention of accidents and the optimum promotion of flying safety.’ ” Reynolds v. United States, 192 F.2d 987, 990 (3d Cir.1951) (Maris, J.) (“Reynolds Cir. Op.”). Later, on rehearing, the government asserted that disclosure would “seriously hamper[ ] national security ... and the development of highly" }, { "docid": "21298677", "title": "", "text": "stated that it would, however, permit Al-Haramain-related witnesses to file in camera affidavits attesting from memory to the contents of the document to support Al-Haramain’s assertion of standing and its prima facie case. Id. at 1229. The district court sua sponte certified its order for interlocutory appeal. The case was then transferred to the Northern District of California by the Multi-District Litigation panel to Chief Judge Vaughn Walker. We granted interlocutory review, and consolidated this appeal with Hepting v. AT & T Corp., Nos. 06-17132, 06-17137. Standard of Review Although we have not previously addressed directly the standard of review for a claim of the state secrets privilege, we have intimated that our review is de novo. See Kasza v. Browner, 133 F.3d 1159 (9th Cir.1998) (implying without stating that de novo review governs state secrets determination). De novo review as to the legal application of the privilege and clear error review as to factual findings make sense, as the determination of privilege is essentially a legal matter based on the underlying facts. We accord other privileges, such as the attorney-client privilege, a similar status-clear error as to factual determinations by the district court, but de novo review as to the application of legal principles to those facts. See United States v. Bauer, 132 F.3d 504, 507 (9th Cir.1997). Other circuits are in accord regarding review of the state secrets privilege. See El-Masri v. United States, 479 F.3d 296, 302 (4th Cir.2007); Molerio v. FBI, 749 F.2d 815, 820 (D.C.Cir.1984). Standing is also reviewed de novo. Buono v. Norton, 371 F.3d 543, 546 (9th Cir.2004). Analysis I. The State Seorets Privilege The state secrets privilege is a common law evidentiary privilege that permits the government to bar the disclosure of information if “there is a reasonable danger” that disclosure will “expose military matters which, in the interest of national security, should not be divulged.” United States v. Reynolds, 345 U.S. 1, 10, 73 S.Ct. 528, 97 L.Ed. 727 (1953). The privilege is not to be lightly invoked. Id. at 7, 73 S.Ct. 528. Although Reynolds is widely viewed as the" }, { "docid": "21298702", "title": "", "text": "next resolve how the litigation should proceed in light of the government’s successful privilege claim. See El-Masri, 479 F.3d at 304. The privilege, once found to exist, “cannot be compromised by any showing of need on the part of the party seeking the information.” In re Sealed Case, 494 F.3d 139, 144 (D.C.Cir.2007) (internal citation omitted). The effect of the government’s successful invocation of privilege “is simply that the evidence is unavailable, as though a witness had died, and the case will proceed accordingly, with no consequences save those resulting from the loss of evidence.” Ellsberg v. Mitchell, 709 F.2d 51, 64 (D.C.Cir.1983) (internal citation omitted). After correctly determining that the Sealed Document was protected by the state secrets privilege, the district court then erred in forging an unusual path forward in this litigation. Though it granted the government’s motion to deny Al-Hara-main access to the Sealed Document based on the state secrets privilege, the court permitted the Al-Haramain plaintiffs to file in camera affidavits attesting to the contents of the document from their memories. Al-Haramain, 451 F.Supp.2d at 1229. The district court’s approach — a commendable effort to thread the needle— is contrary to established Supreme Court precedent. If information is found to be a privileged state secret, there are only two ways that litigation can proceed: (1) if the plaintiffs can prove “the essential facts” of their claims “without resort to material touching upon military secrets,” Reynolds, 345 U.S. at 11, 73 S.Ct. 528, or (2) in accord with the procedure outlined in FISA. By allowing in camera review of affidavits attesting to individuals’ memories of the Sealed Document, the district court sanctioned “material touching” upon privileged information, contrary to Reynolds. See 345 U.S. at 11, 73 S.Ct. 528. Although FISA permits district court judges to conduct an in camera review of information relating to electronic surveillance, there are detailed procedural safeguards that must be satisfied before such review can be conducted. See, e.g., 50 U.S.C. § 1806(f). The district court did not address this issue nor do we here. Moreover, the district court’s solution is flawed: if" }, { "docid": "4650142", "title": "", "text": "systems of the most technically advanced and heavily relied upon of our nation’s warships may reasonably be viewed as inimical to nation al security.”); Sterling v. Tenet, 416 F.3d 338, 347 (4th Cir.2005) (accepting district court’s reliance on government declaration in approving state-secrets invocation, in light of the “highly classified” nature of covert CIA agent’s discrimination and retaliation claims), cert. denied, 546 U.S. 1093, 126 S.Ct. 1052, 163 L.Ed.2d 860 (2006); Ellsberg v. Mitchell, 709 F.2d 51, 58 (D.C.Cir.1983) (“[W]hen assessing claims of a state secrets privilege, a trial judge properly may rely on affidavits and other secondary sources more often than he might when evaluating assertions of other evidentiary privileges.”), cert. denied, 465 U.S. 1038, 104 S.Ct. 1316, 79 L.Ed.2d 712 (1984). Sometimes, however, review may require examination of the classified material itself. See El-Masri v. United States, 479 F.3d 296, 305 (4th Cir.) (“In some situations, a court may conduct an in camera examination of the actual information sought to be protected, in order to ascertain that the criteria set forth in Reynolds are fulfilled.”), cert. denied, — U.S. -, 128 S.Ct. 373, 169 L.Ed.2d 258 (2007); Ellsberg, 709 F.2d at 59 n. 37 (“When a litigant must lose if the claim is upheld and the government’s assertions are dubious in view of the nature of the information requested and the circumstances surrounding the case, careful in camera examination of the material is not only appropriate, but obligatory.” (citations omitted)). III. The Plaintiffs’ Contentions The plaintiffs argue that the government unconstitutionally denied their counsel access to the secure media he needed to draft an opposition to the government’s assertion of the state-secrets privilege. In particular, counsel was refused permission to review the un-redacted classified version of the complaint which he himself had drafted, and to use the secure facilities necessary to prepare and submit at least some of the purportedly privileged and classified information to the district court. In addition, counsel was denied access to secure means of communicating with Jane Doe in order to prepare an opposition to the government’s invocation, and Doe was unable to visit" }, { "docid": "1484539", "title": "", "text": "documents. A hearing was scheduled on February 14,1991. One day before the hearing, the government informed the plaintiffs’ counsel that it intended to make an in camera production of additional documents. On the same day, government attorneys conducted in camera production before the district court judge. The documents included an affidavit by an admiral and the unabridged version of the Navy Department’s official investigation of the Stark incident. The district court granted the government’s motion to dismiss. The district court found that the plaintiffs’ action was barred under the state secret privilege, because the trial of the case would require disclosure of classified information sensitive to national security. II. The privilege for state secrets allows the government to withhold information from discovery when disclosure would be inimical to national security. Zuckerbraun v. General Dynamics Corp., 935 F.2d 544, 546 (2d Cir.1991); United States v. Reynolds, 345 U.S. 1, 73 S.Ct. 528, 97 L.Ed. 727 (1953). The privilege may be invoked by the head of a governmental department with responsibility over the matter in question, and the head of the department must give personal consideration to the matter in question. United States v. Reynolds, 345 U.S. 1, 7-8, 73 S.Ct. 528, 531-32, 97 L.Ed. 727 (1953). A government department may intervene in litigation to which it is not a party and assert the privilege, thereby preventing either party in the litigation from obtaining sensitive government information in discovery. The effect of the privilege is generally to exclude the privileged evidence from the case. Ellsberg v. Mitchell, 709 F.2d 51, 65 (D.C.Cir.1983), cert. denied, 465 U.S. 1038, 104 S.Ct. 1316, 79 L.Ed.2d 712 (1984). The plaintiffs case then goes forward without the privileged information and would be dismissed only if the remaining information were insufficient to make out a prima facie case. Halkin v. Helms, 690 F.2d 977, 998-99 (D.C.Cir.1982). Some courts, however, have held that the privilege can lead to the dismissal of the plaintiffs’ ease in two other circumstances. First, if the privilege deprives the defendant of information that would otherwise give the defendant a valid defense to the claim," }, { "docid": "8950964", "title": "", "text": "General Dynamics Cory., 755 F.Supp. 1134 (D.Conn.1990). The court found that the state secrets privilege had been properly invoked as to the weapons systems on the U.S.S. Stark and as to the rules of engagement, thereby denying access to information essential to appellant’s establishing a prima facie case. Consequently, the court concluded, dismissal for failure to state a claim was appropriate. See id. at 1137-40. Alternatively, the district court found that the suit must be dismissed because it presents a nonjusticiable political question concerning military decision-making. See id. at 1140-42. DISCUSSION The state secrets privilege is a common law evidentiary rule that allows the government to withhold information from discovery when disclosure would be inimical to national security. See In re United States, 872 F.2d 472, 474 (D.C.Cir.1989). In United States v. Reynolds, 345 U.S. 1, 7-11, 73 S.Ct. 528, 531-34, 97 L.Ed. 727 (1953), the Supreme Court recognized this privilege and set forth standards governing its use. The privilege may be invoked only by the government and may be asserted even whén the government is not a party to the case. See, e.g., Fitzgerald v. Penthouse Int’l Ltd., 776 F.2d 1236 (4th Cir.1985). The privilege must be claimed by the head of the department with control over the matter in question after personal consideration by that officer. See Reynolds, 345 U.S. at 7-8, 73 S.Ct. at 531-32. Once properly invoked, the effect of the privilege is to exclude the evidence from the case. See Ellsberg v. Mitchell, 709 F.2d 51, 65 (D.C.Cir.1983), cert. denied, 465 U.S. 1038, 104 S.Ct. 1316, 79 L.Ed.2d 712 (1984). A court before which the privilege is asserted must assess the validity of the claim of privilege, satisfying itself that there is a reasonable danger that disclosure of the particular facts in litigation will jeopardize national security. In making this assessment, however, the court must not “forc[e] a disclosure of the very thing the privilege is designed to protect,” Reynolds, 345 U.S. at 8, 73 S.Ct. at 532, and, although the privilege is not to be lightly invoked, see id. at 7, 73 S.Ct. at" }, { "docid": "14977668", "title": "", "text": "2) in failing to recognize that the defendants were acting beyond their legal and constitutional authority and thus lacked the power to validly claim the state secrets privilege, and 3) in refusing to accept separate claims against all potential government agencies. II. Black’s first argument is that the trial court erred in granting the government’s motion to dismiss, because the claim of evi-dentiary state secrets was overbroad. The state secrets privilege is defined in United States v. Reynolds, 345 U.S. 1, 7-8, 73 S.Ct. 528, 532, 97 L.Ed. 727 (1953) (footnotes omitted), as protecting military and state secrets. [T]he principles which control the application of the privilege emerge quite clearly from the available precedents. The privilege belongs to the Government and must be asserted by it; it can neither be claimed nor waived by a private party. It is not to be lightly invoked. There must be a formal claim of privilege, lodged by the head of the department which has control over the matter, after actual personal consideration by that officer. The court itself must determine whether the circumstances are appropriate for the claim of privilege, and yet do so without forcing a disclosure of the very thing the privilege is designed to protect The state secrets privilege has been held to apply to information that would result in “impairment of the nation’s defense capabilities, disclosure of intelligence-gathering methods or capabilities, and disruption of diplomatic relations with foreign governments,” Ellsberg v. Mitchell, 709 F.2d 51, 57 (D.C.Cir.1983) (footnotes omitted), cert. denied, 465 U.S. 1038, 104 S.Ct. 1316, 79 L.Ed.2d 712 (1984), or where disclosure “would be inimical to national security,” Zuckerbraun v. General Dynamics Corp., 935 F.2d 544, 546 (2d Cir.1991). “Although the term ‘military or state secrets’ is amorphous in nature, it should be defined in the light of ‘reason and experience,’ much in the same way that the term ‘national defense’ has been defined ... [as] a ‘generic concept of broad connotations, referring to the military and naval establishments and the related activities of national preparedness.’ ” Jabara v. Kelley, 75 F.R.D. 475, 483 n. 25 (E.D.Mich.1977)" }, { "docid": "23686275", "title": "", "text": "If, as the majority chooses to do, we rule that Bivens does not apply, we have said that, in a wide variety of cases, the Constitution fails to give protection. Both positions require a parsing of the Great Charter. When such a decision cannot be avoided, so be it: we do our job. But where it can be avoided, it should be. II So, how might the Bivens issue have been avoided? As Judge Sack explains in his eloquent dissent, this might be done through first examining the significance of the state secrets privilege to this case. That privilege has long required dismissal in those rare cases where national security interests so drastically limit the evidence that can be introduced as to deprive either a plaintiff or a defendant of an opportunity to make its case. See, e.g., Zuckerbraun v. Gen. Dynamics Corp., 935 F.2d 544, 547 (2d Cir.1991); see also United States v. Reynolds, 345 U.S. 1, 73 S.Ct. 528, 97 L.Ed. 727 (1953); El-Masri v. United States, 479 F.3d 296, 308 (4th Cir.2007) (“[A] proceeding in which the state secrets privilege is successfully interposed must be dismissed if the circumstances make clear that privileged information will be so central to the litigation that any attempt to proceed will threaten that information’s disclosure.”). In a case such as this, where the Government asserts that the plaintiffs claim implicates vital national secrets, we must, before we move to the merits, examine the consequences of our duty to guard against any potentially harmful disclosures. The majority obviously shares our concerns about the protection of state secrets, as virtually every “special factor” identified in the majority opinion concerns clas sified material. But, as Judge Sack says, this amounts to double-counting of the Government’s interest in preserving state secrets. See dissenting opinion of Judge Sack at 601. We already possess a well-established method for protecting secrets, one that is more than adequate to meet the majority’s concern. Denying a Bivens remedy because state secrets might be revealed is a bit like denying a criminal trial for fear that a juror might be intimidated:" }, { "docid": "4650130", "title": "", "text": "should review the procedure by which a state-secrets privilege invocation is considered for abuse of discretion; the plaintiffs argue that the proper standard of review is de novo. We decline to resolve this issue because we conclude that the court’s judgment would survive review under either standard. Were we all in agreement that the merits of the government’s invocation of the state-secrets privilege were the question before us, we would likely review the district court’s decision de novo on the ground that it was either a question of law or of the application of the law to facts that are not in dispute. See, e.g., Hoblock v. Albany County Bd. of Elections, 422 F.3d 77 (2d Cir.2005). The majority is of the view, however, that the question before us on this appeal is the propriety of the procedures the district court used to obtain the facts necessary to assess the merits. We might well, for that reason, give substantial deference to the district court’s decision. See, e.g., In re Agent Orange Prod. Liability Litig., 517 F.3d 76, 102 (2d Cir.2008) (“We review discovery rulings for abuse of discretion.”); and cf. Northrop Corp. v. McDonnell Douglas Corp., 751 F.2d 395 (D.C.Cir.1984) (applying abuse of discretion standard to review claims of both procedural and substantive eiTor in state-secrets assessment). In the case before us, however, we need not decide which standard of review to apply inasmuch as we would affirm in any event. II. The State-Secrets Privilege Whether the government properly invoked the state-secrets privilege and the district court properly dismissed this action are not questions before us for review' because the plaintiffs did not contest those issues in the district court. The question presented is, instead, whether the actions of the government in the course of invoking the privilege abridged the plaintiffs’ constitutional rights. In order to address this issue, we must first review the legal and procedural context in which those challenges are made. In United States v. Reynolds, 345 U.S. 1, 73 S.Ct. 528, 97 L.Ed. 727 (1953), the Supreme Court established the procedure by which federal courts police" }, { "docid": "11131356", "title": "", "text": "73 S.Ct. at 533. The requirements for an assertion of the state secrets privilege are that “[tjhere must be a formal claim of privilege, lodged by the head of the department which has control of the matter, after personal consideration by that officer.” Id. at 7-8, 73 S.Ct. at 531-32. The court must then evaluate the claim, according the utmost deference to the executive official, National Lawyers Guild v. Attorney General, 96 F.R.D. 390, 398 (S.D.N.Y.1982), yet not abdicating judicial control of the evidence of the case to executive officers. Reynolds, 345 U.S. at 9, 73 S.Ct. at 532. Once it is successfully invoked, the privilege is absolute. Although it “should not be lightly accepted, ... even the most compelling necessity cannot overcome the claim of privilege if the court is ultimately satisfied that military secrets are at stake.” Reynolds, 345 U.S. at 11, 73 S.Ct. at 533. “A party’s need for the information is not a factor in considering whether the privilege will apply.” Northrop Corp. v. McDonnell Douglas, 751 F.2d 395, 399 (D.C.Cir.1984). A party’s need for the information is only to be considered to determine “how far the court should probe in satisfying itself that the occasion for invoking the privilege is appropriate.” Reynolds, 345 U.S. at 11, 73 S.Ct. at 533. See also Halkin v. Helms, 690 F.2d 977, 990 (D.C.Cir.1982). The effect a successful invocation of the privilege has on a case varies; the “court must consider whether and how the case may proceed in light of the privilege.” Fitzgerald v. Penthouse Internat'l, Ltd., 776 F.2d 1236, 1243 (4th Cir.1985). At the least, the privilege removes the sensitive information from the case completely. In re United States, 872 F.2d 472, 476 (D.C. Cir.1989). If the plaintiff is unable to establish a prima facie case without the privileged information, id., or if sensitive military secrets are “so central to the subject matter of the litigation that any attempt to proceed will threaten disclosure of the privilege,” dismissal of the case is appropriate. Fitzgerald v. Penthouse Internat’l, Ltd., 776 F.2d 1236, 1241-42 (4th Cir.1985). Similarly, if the" }, { "docid": "4650141", "title": "", "text": "evidence, and governmental “caprice” in asserting the privilege. See Reynolds, 345 U.S. at 10-11, 73 S.Ct. 528. The trial court may not “automatically” require the government to produce the material for which secrecy is claimed, however, even for perusal of the judge in chambers. Id. at 10, 73 S.Ct. 528. Of course, at the other extreme, it may not undertake an insufficient investigation of the assertion to satisfy itself that actual military secrets are at stake and the danger of their disclosure is reasonably likely. See id.; see also Zuckerbraun, 935 F.2d at 547. “[A] complete abandonment of judicial control would lead to intolerable abuses.” Reynolds, 345 U.S. at 8, 73 S.Ct. 528. In some cases, the required scrutiny will be relatively modest, permitting the court to rely on nothing more than the complaint and the government’s declaration. See, e.g., Zuckerbraun, 935 F.2d at 547 (“[W]e conclude that it is self-evident,” in light of the government’s declaration describing the subject matter of the information sought, “that disclosure of secret data and tactics concerning the weapons systems of the most technically advanced and heavily relied upon of our nation’s warships may reasonably be viewed as inimical to nation al security.”); Sterling v. Tenet, 416 F.3d 338, 347 (4th Cir.2005) (accepting district court’s reliance on government declaration in approving state-secrets invocation, in light of the “highly classified” nature of covert CIA agent’s discrimination and retaliation claims), cert. denied, 546 U.S. 1093, 126 S.Ct. 1052, 163 L.Ed.2d 860 (2006); Ellsberg v. Mitchell, 709 F.2d 51, 58 (D.C.Cir.1983) (“[W]hen assessing claims of a state secrets privilege, a trial judge properly may rely on affidavits and other secondary sources more often than he might when evaluating assertions of other evidentiary privileges.”), cert. denied, 465 U.S. 1038, 104 S.Ct. 1316, 79 L.Ed.2d 712 (1984). Sometimes, however, review may require examination of the classified material itself. See El-Masri v. United States, 479 F.3d 296, 305 (4th Cir.) (“In some situations, a court may conduct an in camera examination of the actual information sought to be protected, in order to ascertain that the criteria set forth in Reynolds" }, { "docid": "14977669", "title": "", "text": "must determine whether the circumstances are appropriate for the claim of privilege, and yet do so without forcing a disclosure of the very thing the privilege is designed to protect The state secrets privilege has been held to apply to information that would result in “impairment of the nation’s defense capabilities, disclosure of intelligence-gathering methods or capabilities, and disruption of diplomatic relations with foreign governments,” Ellsberg v. Mitchell, 709 F.2d 51, 57 (D.C.Cir.1983) (footnotes omitted), cert. denied, 465 U.S. 1038, 104 S.Ct. 1316, 79 L.Ed.2d 712 (1984), or where disclosure “would be inimical to national security,” Zuckerbraun v. General Dynamics Corp., 935 F.2d 544, 546 (2d Cir.1991). “Although the term ‘military or state secrets’ is amorphous in nature, it should be defined in the light of ‘reason and experience,’ much in the same way that the term ‘national defense’ has been defined ... [as] a ‘generic concept of broad connotations, referring to the military and naval establishments and the related activities of national preparedness.’ ” Jabara v. Kelley, 75 F.R.D. 475, 483 n. 25 (E.D.Mich.1977) (quoting Gorin v. United States, 312 U.S. 19, 28, 61 S.Ct. 429, 434, 85 L.Ed. 488 (1941)). It is not proper to characterize this, as does Black, as some “creature” of the Cold War; the privilege preceded that state of affairs, and having an independent existence, cannot be held to have terminated with the (current, and perhaps temporary) demise of superpower rivalry. Indeed, it could be argued that the absence of a relatively stable world order of the sort that prevailed during the Cold War makes the availability of the privilege in appropriate cases all the more important. While the state secrets privilege is not to be lightly invoked, a process safeguarded by the Supreme Court’s requirement that the head of the relevant government department make a formal claim after personal perusal of the matter, see Reynolds, 345 U.S. at 7-8, 73 S.Ct. at 532, nevertheless “the court must accord the ‘ “utmost deference” ’ to the executive’s determination of the impact of disclosure on military or diplomatic security.” Zuckerbraun, 935 F.2d at 547 (citations" }, { "docid": "17129", "title": "", "text": "harm to the national security that protection of the information is intended to prevent.” Here, after actual personal consideration, the person that Reynolds requires to claim the privilege publicly claimed it. Elaborating the basis for the claim of privilege through in camera submissions is unexceptionable. See, e.g., Black v. United States, 62 F.3d 1115 (8th Cir.1995), cert. denied, — U.S. -, 116 S.Ct. 1541, 134 L.Ed.2d 645 (1996); Zuckerbraun v. General Dynamics Corp., 935 F.2d 544 (2d Cir.1991); Fitzgerald v. Penthouse Int’l, Ltd., 776 F.2d 1236 (4th Cir.1985); Molerio, 749 F.2d at 819, 822; Farnsworth Cannon, Inc. v. Grimes, 635 F.2d 268, 281 (4th Cir.1980) (en banc). Likewise, explaining through a competent official such as Moorman how the claim of privilege plays out in practice is consistent with Reynolds’s insistence that the decision to object be made at the highest level. See, e.g., In re United States, 872 F.2d at 474 (classified declaration of assistant director of the FBI’s Intelligence Division submitted for in camera review in support of Attorney General’s formal invocation of state secrets privilege); Molerlo, 749 F.2d at 821 (suggesting that designee could determine that state secret was implicated in discovery); Halkin I, 598 F.2d at 9 (privilege invoked by Secretary of Defense, supported by in camera testimony of Deputy Director of NSA). In a case such as this, the Secretary, once she has properly invoked the claim of privilege and adequately identified categories of privileged information, cannot reasonably be expected personally to explain why each item of information arguably responsive to a discovery request affects the national interest. See Bareford, 973 F.2d at 1141 (where government does not target documents but objects to a claim that would require disclosure of sensitive information, agency head need only review “type of evidence” necessary to support claim). In sum, in camera review of both classified declarations was an appropriate means to resolve the applicability and scope of the state secrets privilege. No further disclosure or explanation is required. See Reynolds, 345 U.S. at 9, 73 S.Ct. at 532-33; see also Halkin v. Helms (Halkin II), 690 F.2d 977, 992-95" } ]

[ { "docid": "23390858", "title": "", "text": "Burlington argues that evidence of the adequacy of its crossing should have been excluded because federal law also preempts this aspect of common law negligence. Burlington’s preemption argument here is based solely on the Railroad Safety Act, since it is clear that the Boiler Inspection Act is not applicable. The question is whether the state is trying to regulate the same “subject matter” already regulated by the Secretary. 45 U.S.C. § 434 (1976). The Railroad Safety Act requires the Secretary to study and develop solutions to problems associated with railroad grade crossings. 45 U.S.C. § 433 (1976). The Highway Safety Act of 1966, Pub.L. No. 89-564, 80 Stat. 731 (1966) (as amended, codified at 23 U.S.C. §§ 401-404 (1982)), directs the Secretary to develop uniform standards and to approve state-designed highway safety programs that comply with them, which are then eligible to receive federal financial assistance. 23 U.S.C. § 402 (1982). The Secretary, through the Federal Highway Administration, prescribed procedures to obtain uniformity in highway traffic control devices and adopted the Manual on Uniform Traffic Control Devices on Streets and Highways, see 23 C.F.R. § 655.601 (1981), which also was adopted by Montana, see Mont.Code Ann. § 61-8-202 (1981). The manual prescribes that the selection of devices at grade crossings and the approval for federal funds is to be made by local agencies with jurisdiction over the crossing. Thus, the Secretary has delegated federal authority to regulate grade crossings to local agencies. The locality in charge of the crossing in question has made no determination under the manual regarding the type of warning device to be installed at the crossing. Until a federal decision is reached through the local agency on the adequacy of the warning devices at the crossing, the railroad’s duty under applicable state law to maintain a “good and safe” crossing, Mont. Code Ann. § 69-14-602 (1981), is not preempted. Evidence concerning the adequacy of the warning device at the crossing in question was properly admitted. III. Jury Instruction To establish Kenneth Marshall’s contributory negligence, Burlington requested the trial court to instruct the jury on the duty" } ]

[ { "docid": "20048962", "title": "", "text": "respect to federal aid highways), and Part 924 (dealing with all other public roads) contain regulations by the Secretary dealing with the upgrading of rail-highway crossings. For instance, 23 C.F.R. § 924.1 says its purpose “is to set forth policy for the development and implementation of a comprehensive highway safety improvement program in each State.” The planning component of this program notes that the states are to have a process which will establish “priorities for implementing highway safety improvement projects.” 23 C.F.R. § 924.9(a)(4). In addition, to establish such priorities the program is to consider, among other things, “[t]he relative hazard of public railroad-highway grade crossings based on a hazard index formula.” 23 C.F.R. § 924.9(a)(4)(iii). The railroad argues that the above regulations indicate the Secretary has promulgated rules dealing with the duty to install active warning devices at railroad crossings. More specifically, the railroad argues that since the MUTCD states that “[t]he determination of need and selection of devices at a grade crossing is made by the public agency with jurisdictional authority,” the state — not the railroad — has the duty to install active warning devices at dangerous railroad crossings. There are a few cases which have directly addressed the issue of the FRSA’s preemptive effect on a railroad’s common law duty to use reasonable care when passing through highway crossings. Those cases sharply differ, however, on the applicability and extent of preemption by the FRSA on such a claim. The pertinent cases can be divided into the following three categories: (1) strict preemption, Armijo v. The Atchinson, Topeka and Santa Fe Railway, Co., 754 F.Supp. 1526 (D.N.Mex.1990); (2) no preemption, Karl v. Burlington Northern R. Co., 880 F.2d 68 (8th Cir.1989); and (3) contingent preemption, Marshall v. Burlington Northern, Inc., 720 F.2d 1149, 1154 (9th Cir.1983). The railroad’s primary argument in this case relies on the strict preemption principles used by the very recent New Mexico case of Armijo. The New Mexico court found that the Secretary acted with regard to the installation of warning devices at railroad crossings by the promulgation of the procedures outlined in" }, { "docid": "2798825", "title": "", "text": "crossing at which the plaintiffs decedent was killed, and that an automatic gate with flashing lights should have been installed. The court noted that the Secretary of Transportation had promulgated regulations adopting the Manual on Uniform Traffic Control Devices on Streets and Highways (“MUTCD”), 23 C.F.R. § 655.601. The manual provides that local agencies with jurisdiction over grade crossings would select safety devices at those crossings. Thus, the court noted that the Secretary of Transportation had delegated to local agencies the authority to regulate crossings. 720 F.2d at 1154. However, in Marshall, The locality in charge of the crossing in question ha[d] made no determination under the manual regarding the type of warning device to be installed at the crossing. Until a federal decision is reached through the local agency on the adequacy of the warning devices at the crossing, the railroad’s duty under applicable state law to maintain a “good and safe” crossing, Mont.Code Ann. § 69-14-602 (1981), is not preempted. 720 F.2d at 1154. The local agency with jurisdiction over the Heaton Street crossing, IDOH, made a determination as to the safety devices necessary at the crossing. In February 1988, the agency determined that the safety devices at the crossing were those considered necessary by the IDOH to upgrade the crossing. Therefore, a federal decision had been reached on the adequacy of the warning devices at the crossing. Accordingly, 45 U.S.C. § 434 and the reasoning of Marshall indicate that federal law covering the same subject matter as the plaintiffs’ negligence claim has been adopted, and a state standard may only remain in effect if the three requirements of § 434 are met. In Karl v. Burlington Northern Railroad Co., 880 F.2d 68 (8th Cir.1989), the Eighth Circuit determined that the FRSA did not preempt the plaintiff’s negligence claim based on inadequacy of warning devices at the crossing. Citing Marshall, the court found that Congress did not intend to occupy the field of railroad safety. The court also found that there was no actual conflict between federal and state law, because the plaintiff was not forced to choose" }, { "docid": "20048968", "title": "", "text": "Because of the above reasons, the court declines to follow the strict preemptive view. Next, the court will address the no preemption theory used by Karl v. Burlington Northern R. Co., 880 F.2d 68 (8th Cir.1989). The court in Karl did not address the referenced explicit preemption language in 45 U.S.C. § 434 or the legislative history which clearly indicates a congressional intent for nationally uniform standards of railroad safety. Moreover, in setting forth general preemption standards, the Karl court said that, “state laws may be preempted if they actually conflict with an express or implied federal declaration, or if the state law is in a field that is so pervasively controlled by federal law that no room is left for state rulemaking.” Karl, 880 F.2d at 76. Thus, Karl did not recognize the first example of preemption used by the Supreme Court in English, — U.S. at-, 110 S.Ct. at 2275,110 L.Ed.2d at 74 (where Congress explicitly defines the extent to which it preempts state law, see Shaw v. Delta Air Lines, Inc., 463 U.S. at 95-98, 103 S.Ct. at 2898-2901). Since this court has already found that type of preemption applies to this case, the reasoning used in Karl is not persuasive. The only other circuit court to directly address the issue of whether the FRSA preempts the common law duty of a railroad to provide adequate warning at railroad crossings is Marshall v. Burlington Northern, Inc. There, in finding no preemption on the facts before the court, now-Justice Kennedy said: 720 F.2d at 1154 (emphasis added; citation omitted). The [MUTCD] prescribes that the selection of devices at grade crossings and the approval for federal funds is to be made by local agencies with jurisdiction over the crossing. Thus, the Secretary has delegated federal authority to regulate grade crossings to local agencies. The locality in charge of the crossing in question has made no determination under the manual regarding the type of warning device to be installed at the crossing. Until a federal decision is reached through the local agency on the adequacy of the warning devices at" }, { "docid": "14291866", "title": "", "text": "and when not incompatible with any Federal law, rule, regulation, order, or standard, and when not creating an undue burden on interstate commerce. Working from the language of the statute, Congress’ intent to preempt state law relating to railroad safety is clear: state laws concerning this subject matter remain in force “until such time” as the Secretary has, under one of the sources of authority listed in section 433(b), adopted a rule, regulation, order or standard covering the same subject matter. Conrail argues that the Secretary adopted such standards in the form of the Manual on Uniform Traffic Control Devices for Streets and Highways (“MUTCD”), 23 C.F.R. § 655.601(a), as “the national standard for all traffic control devices installed on any ... highway,” 23 C.F.R. § 655.-603(a), specifically to be applied to the improvement of traffic control devices at grade crossings. 23 C.F.R. 646.214(b). Part VIII of the MUTCD deals with “Traffic Control Systems for Railroad-Highway Crossings.” Section 8A-1 of this part of the MUTCD provides in part that “[t]he determination of need and selection of devices at a grade crossing is made by the public agency with jurisdictional authority.” Likewise, section 8D-1 provides that “[t]he selection of, traffic control devices at a grade crossing is determined by public agencies having jurisdiction responsibility at specific locations.” Conrail maintains that, by virtue of the adoption of the MUTCD, railroads are absolved of responsibility for determining the need for traffic control devices in favor of local authorities and that the standards dictated by the MUTCD have been substituted for common law duties previously imposed on railroads. The plaintiff does not contest that the MUTCD covers the same subject matter as the state common law claims which he asserts, or that the local safety hazard exception should apply. Instead, the plaintiff contends that the MUTCD did not set forth safety standards and did not absolve Conrail of its duty under Indiana law to maintain safe railroad crossings, and that to find preemption in this case would not further the safety goals of the FRSA. Before considering the plaintiff’s arguments on the preemption issue," }, { "docid": "20048969", "title": "", "text": "U.S. at 95-98, 103 S.Ct. at 2898-2901). Since this court has already found that type of preemption applies to this case, the reasoning used in Karl is not persuasive. The only other circuit court to directly address the issue of whether the FRSA preempts the common law duty of a railroad to provide adequate warning at railroad crossings is Marshall v. Burlington Northern, Inc. There, in finding no preemption on the facts before the court, now-Justice Kennedy said: 720 F.2d at 1154 (emphasis added; citation omitted). The [MUTCD] prescribes that the selection of devices at grade crossings and the approval for federal funds is to be made by local agencies with jurisdiction over the crossing. Thus, the Secretary has delegated federal authority to regulate grade crossings to local agencies. The locality in charge of the crossing in question has made no determination under the manual regarding the type of warning device to be installed at the crossing. Until a federal decision is reached through the local agency on the adequacy of the warning devices at the crossing, the railroad’s duty under applicable state law to maintain a “good and safe” crossing is not preempted. This court refers to the rule used in Marshall as contingent preemption because, as is evident from the above quote, it recognizes the preemptive effect of 45 U.S.C. § 434 but holds the extent of that preemption is limited, and, in that case, has not yet occurred. More specifically, Justice Kennedy found that under the regulatory scheme of the Secretary, preemption of a state-imposed duty on the railroad to provide adequate warnings at railroad crossings was not preempted until the responsible state agency made a determination regarding the type of warning device to be installed. This rule makes the most sense, given the present regulatory scheme and other practical considerations. For instance, as has already been noted, ¶ 8A-2 of the MUTCD indicates that the MUTCD does not apply to a crossing until a formal decision is made to install either a new or different warning device at the crossing. In addition, no regulations have been" }, { "docid": "9926219", "title": "", "text": "in favor of Santa Fe. This appeal followed. I Ms. Armijo contends the district court erred in concluding her state law failure to warn claims are preempted. In Easterwood, the Supreme Court considered whether certain regulations issued by the Secretary of Transportation pursuant to the Federal Railroad Safety Act of 1970, as amended, 45 U.S.C. § 434, preempt state law claims against a railroad, alleging the railroad acted negligently failing to erect and maintain adequate warning devices at a railroad grade crossing. The regulations in question require the states to “develop and implement, on a continuing basis, a highway safety improvement program which has the overall objective of reducing the number and severity of accidents and decreasing the potential for accidents on all highways.” 23 C.F.R. 924.5 (1995). As part of the program, the states are to establish priorities for addressing all manner of highway hazards, including railroad grade crossings. 23 C.F.R. § 924.9(a)(4) (1995). For all railroad grade crossings, the regulations require the states to use warning devices conforming with the Federal Highway Administration Manual on Uniform Traffic Control Devices for Streets and Highways (hereafter “the Manual”). 23 C.F.R. §§ 646.214(b)(1) and 655.603 (1995). However, “Adequate warning devices ... on any project where Federal-aid funds participate in the installation of the devices are to include automatic gates with flashing light signals” under certain circumstances, 23 C.F.R. § 646.214(b)(3)® (1995) (emphasis in original), or, if such devices are not required under the regulations, “the type of warning device to be installed, whether the determination is made by a State regulatory agency, State highway agency, and/or the railroad, is subject to the approval of FHWA.” 23 C.F.R. § 646.214(b)(4) (1995). The Supreme Court held § 924 and the requirement the states comply with the Manual do not preempt state law failure to warn claims. Easterwood, 507 U.S. at 668-70, 113 S.Ct. at 1739-41. The Court held, however, that when §§ 646.214(b)(3) and (4) apply, state tort law is preempted, because these regulations “displace state and private decisionmaking authority by establishing a federal-law requirement that certain protective devices be installed or federal" }, { "docid": "14291865", "title": "", "text": "U.S.C. § 431. The Secretary was directed to achieve this goal “insofar as practicable, under the authority provided by this subchapter and pursuant to his authority over highway, traffic, and motor vehicle safety, and highway construction....” 45 U.S.C. § 433(b). Conrail argues that the plaintiffs claims with respect to the need for additional grade crossing and/or traffic control devices and the failure to close the crossing are expressly and strictly preempted by 45 U.S.C. § 434, which provides: The Congress declares that laws, rules, regulations, orders, and standards relating to railroad safety shall be nationally uniform to the extent practicable. A State may adopt or continue in force any law, rule, regulation, order, or standard relating to railroad safety until such time as the Secretary has adopted a rule, regulation, order or standard covering the subject matter of such State requirement. A State may adopt or continue in force an additional or more stringent law, rule, regulation,- order, or standard relating to railroad safety when necessary to eliminate or reduce an essentially local safety hazard, and when not incompatible with any Federal law, rule, regulation, order, or standard, and when not creating an undue burden on interstate commerce. Working from the language of the statute, Congress’ intent to preempt state law relating to railroad safety is clear: state laws concerning this subject matter remain in force “until such time” as the Secretary has, under one of the sources of authority listed in section 433(b), adopted a rule, regulation, order or standard covering the same subject matter. Conrail argues that the Secretary adopted such standards in the form of the Manual on Uniform Traffic Control Devices for Streets and Highways (“MUTCD”), 23 C.F.R. § 655.601(a), as “the national standard for all traffic control devices installed on any ... highway,” 23 C.F.R. § 655.-603(a), specifically to be applied to the improvement of traffic control devices at grade crossings. 23 C.F.R. 646.214(b). Part VIII of the MUTCD deals with “Traffic Control Systems for Railroad-Highway Crossings.” Section 8A-1 of this part of the MUTCD provides in part that “[t]he determination of need and selection" }, { "docid": "14291870", "title": "", "text": "of a legal assessment and will accordingly be stricken. Turning to the preemption issue, this court finds persuasive the reasoning of those courts which have found state laws with respect to the need for railroad crossing devices to be preempted by the FRSA in light of the adoption of the MUTCD. Although the plaintiff skirts this point by focusing on policy and other considerations, the only conclusion that one can draw from reading 45 U.S.C. § 434 is that state laws on railroad safety are preempted by the Secretary’s -adoption of rules or regulations covering the same subject matter. The more difficult question is whether the MUTCD fits within section 434’s category of “laws, rules, regulations, orders, [or] standards” relating to the improvement of traffic control devices at grade crossings which would trigger preemption. In a sense, what the MUTCD does with respect to railroad crossing devices is delegate the decision-making process to local authorities rather than establish a standard in and of itself. This view of the MUTCD as delegation rather than standard underlies the decisions of those courts applying what has been termed contingent preemption. Foremost among these is the opinion of the Ninth Circuit in Marshall v. Burlington Northern, Inc., 720- F.2d 1149 (9th Cir.1983). The court found no preemption of a state law claim based on the railroad’s alleged negligence in failing to provide an adequate warning device at the crossing at issue. The court reasoned as follows: [T]he Secretary has delegated federal authority to regulate grade crossings to local agencies. The locality in charge of the crossing in question has made no determination under the [MUTCD] regarding the type of warning device to be installed at the crossing. Until a federal decision is reached through the local agency on the adequacy of the warning devices at the crossing, the railroad’s duty under applicable state law ... is not preempted. Id. at 1154. In this case, as in Marshall, no local standard pertaining to railroad crossing devices was in effect for the Swain Street crossing at the time of the accident. However, section 434 provides that" }, { "docid": "6852733", "title": "", "text": "114-23, Ill. House Rep., 82nd G.A. (Apr. 22, 1982) [hereinafter House Debate]. Defendants have not presented evidence that the ICC has made any determination under the Manual, or under the statutory provision quoted above, of the type of warning device to be installed at the crossing on Myelle Road where the collision at issue occurred. The Ninth Circuit has held that until a federal decision is reached, through the local agency with jurisdiction, on the adequacy of the warning devices at a rail crossing, the railroad’s common law duty of due care is not preempted. Marshall v. Burlington N., Inc. 720 F.2d 1149, 1154 (9th Cir.1983). Under the Marshall rule, Defendant Chicago Central’s duty of due care would be preempted only if the ICC has ruled that crossbucks and ordinary traffic warning signs are adequate and appropriate at the Myelle Road crossing. The Eighth Circuit has ruled that a railroad may be held liable in common law negligence even where the local agency with jurisdiction has approved the warning devices at a rail crossing. Karl v. Burlington N. R.R. Co., 880 F.2d 68, 76 (8th Cir.1989). Under Karl, Defendant Chicago Central would not be free from a common law negligence claim even if the ICC had approved the crossbuck devices at the Myelle Road crossing. In Illinois, a railroad has a common law duty to provide adequate warning devices at its rail crossings. Bassett v. Burlington N. R.R. Co., 131 Ill.App.3d 807, 86 Ill.Dec. 855, 476 N.E.2d 31 (1985). The Seventh Circuit has held that whether a train’s warning signals are adequate depends on the circumstances, and is a question for the jury. Puckett v. Soo Line R.R. Co., 897 F.2d 1423, 1427 (7th Cir.1990). The Puckett court suggested, in dicta, that the same analysis should apply to the question of whether warning devices at rail crossings are adequate. Id. at 1427-28. Under the standards of either the Eighth or Ninth Circuits, as noted above in Karl and Marshall, if the ICC had, at the time of the collision, made no determination of what warning devices were adequate and appropriate" }, { "docid": "14291871", "title": "", "text": "the decisions of those courts applying what has been termed contingent preemption. Foremost among these is the opinion of the Ninth Circuit in Marshall v. Burlington Northern, Inc., 720- F.2d 1149 (9th Cir.1983). The court found no preemption of a state law claim based on the railroad’s alleged negligence in failing to provide an adequate warning device at the crossing at issue. The court reasoned as follows: [T]he Secretary has delegated federal authority to regulate grade crossings to local agencies. The locality in charge of the crossing in question has made no determination under the [MUTCD] regarding the type of warning device to be installed at the crossing. Until a federal decision is reached through the local agency on the adequacy of the warning devices at the crossing, the railroad’s duty under applicable state law ... is not preempted. Id. at 1154. In this case, as in Marshall, no local standard pertaining to railroad crossing devices was in effect for the Swain Street crossing at the time of the accident. However, section 434 provides that the Secretary’s adoption of “a rule, regulation, order, or standard” covering a given subject matter preempts state law, and the Marshall court focussed solely on whether a particular type of standard had been established. In doing so, the Marshall court ignored the fact that the delegation to local authorities is only part of a regulatory regime relating to, among other things, warning devices at railroad. grade crossings. The Tenth Circuit recently declined to follow the Marshall approach in Hatfield v. Burlington Northern R.R. Co., 958 F.2d 320 (10th Cir.1992). The court summarized the preemptive effect of the FRSA as follows: The scheme of regulation is patent. Congress expressed an intent to invade the field of grade crossing safety devices, postponing that invasion only until the Secretary of Transportation adopted a rule, regulation, order, requirement, or standard relating to that field. The Secretary has responded by adopting the MUTCD and making it applicable to grade crossings. Recognizing the variability of conditions that arise at each intersection, the Secretary has delegated to local authority the responsibility of" }, { "docid": "2798828", "title": "", "text": "law is preempted because it is in a field that Congress intended to occupy exclusively. The Court notes, however, that state law placing the duty to determine the need for and selection of warning devices at railroad-highway crossings on the railroad is in direct conflict with the MUTCD which places this duty on the public agency with jurisdictional authority. Armijo, 754 F.Supp. at 1532 n. 4. In addition to Marshall and the Armijo court’s criticism of Karl, Norfolk cites Easterwood v. CSX Transportation, Inc., 142 F.Supp. 676 (N.D.Ga.1990), in which the district court determined that federal law preempted the claim that the railroad was negligent in not providing gate arms. In Easterwood, the Georgia Department of Transportation had shifted funds from a project that would have provided gate arms to the site of the accident. The district court found that the shifting of funds constituted a “federal decision” not to install gate arms. 742 F.Supp. at 678-79. However, the Eleventh Circuit reversed this portion of the district court’s opinion and held that the policymaker’s failure to act due to financial constraints and logistical problems is insufficient to constitute preemption of a negligence claim. Easterwood v. CSX Transportation, Inc., 933 F.2d 1548, 1555-56 (11th Cir.1991). The court found that “there is a qualitative difference between a failure of a policymaker to act and a case where the policymaker evaluates a situation and then decides not to act ‘because [he or she has] determined it is appropriate to do nothing.’ ” Easterwood, 933 F.2d at 1555-56 (quoting Missouri Pacific Railroad Co. v. Railroad Commission of Texas, 833 F.2d 570, 576 (5th Cir.1987)). Here, the policymaker, IDOH, evaluated the situation and determined the appropriate warning devices for the Heaton Street crossing. Therefore, this portion of East-erwood does not undermine Norfolk’s preemption argument. In Hatfield v. Burlington Northern Railroad Co., 751 F.Supp. 1198 (D.Kan. 1991), the district court classified the cases addressing the preemptive effect of 45 U.S.C. § 434. Armijo v. The Atchison, Topeka and Santa Fe Railway Co., 754 F.Supp. 1526, was a strict preemption case, finding that state law was preempted" }, { "docid": "20048958", "title": "", "text": "is “not incompatible with any Federal law, rule, regulation, order, or standard;” and does “not creat[e] an undue burden on interstate commerce.” 45 U.S.C. § 434. Since no claim is made in this case that the duty to install active warning devices at railroad crossings is essentially a local safety hazard, the second “exception” for preemption discussed above does not apply and will not be addressed herein. As a result, the only question the court must address is whether the Secretary has adopted standards “covering the subject matter” of the duty to install active warning devices at railroad crossings where unusually dangerous conditions exist. The preemption provision in 45 U.S.C. § 434 is keyed to action taken by the Secretary. Furthermore, the preemption provision in the FRSA does not merely relate to those regulations promulgated by the Federal Railroad Administration through powers delegated by the Secretary of Transportation; it relates to all rules and regulations regarding railroad safety promulgated by the Secretary. CSX Transp., Inc., 901 F.2d at 501. See also Burlington Northern Railroad Co., 880 F.2d at 1106, (the FRSA does not merely preempt state laws which are inconsistent with standards adopted by the Secretary; it preempts all state laws aimed at the same safety concern addressed by standards promulgated by the Secretary). In asserting that the Secretary has adopted relevant standards in this case, the railroad points out that 23 C.F.R. § 655.601(a) (1990) incorporates by reference the Manual on Uniform Traffic Control Devices for Streets and Highways (MUTCD). Part VIII of the MUTCD is titled, “Traffic Control Systems For Rail road — Highway Grade Crossings.” A relevant portion of Part VIII states as follows: 8A-1 Functions With due regard for safety and for the integrity of operations by highway and railroad users, the highway agency and the railroad company are entitled to jointly occupy the right-of-way in the conduct of their assigned duties. This requires joint responsibility in the traffic control function between the public agency and the railroad. The determination of need and selection of devices at a grade crossing is made by the public agency" }, { "docid": "6852732", "title": "", "text": "Commercial Transportation Law provides: The Commission shall have power, upon its own motion, or upon complaint, and after having made proper investigation, to require the installation of adequate and appropriate luminous reflective warning signs, luminous flashing signals, crossing gates illuminated at night or other protective devices in order to promote and safeguard the health and safety of the public. Luminous flashing signal or crossing gate devices installed at grade crossings, which have been approved by the Commission, shall be deemed adequate and appropriate. The Commission shall have authority to determine the number, type and location of such signs, signals, gates or other protective devices which, however, shall conform as near as may be with generally recognized national standards____ Ill.Rev.Stat. ch. 95V2, para. 18c-7401 (1989). Once the ICC has investigated and ordered the installation of a particular kind of warning device, its decision is conclusive, and the railroad is precluded from installing any other signal. Hunter v. Chicago & N.W. Transp. Co., 200 Ill.App.3d 458, 146 Ill.Dec. 253, 558 N.E.2d 216 (1990), citing Transcript of Debate 114-23, Ill. House Rep., 82nd G.A. (Apr. 22, 1982) [hereinafter House Debate]. Defendants have not presented evidence that the ICC has made any determination under the Manual, or under the statutory provision quoted above, of the type of warning device to be installed at the crossing on Myelle Road where the collision at issue occurred. The Ninth Circuit has held that until a federal decision is reached, through the local agency with jurisdiction, on the adequacy of the warning devices at a rail crossing, the railroad’s common law duty of due care is not preempted. Marshall v. Burlington N., Inc. 720 F.2d 1149, 1154 (9th Cir.1983). Under the Marshall rule, Defendant Chicago Central’s duty of due care would be preempted only if the ICC has ruled that crossbucks and ordinary traffic warning signs are adequate and appropriate at the Myelle Road crossing. The Eighth Circuit has ruled that a railroad may be held liable in common law negligence even where the local agency with jurisdiction has approved the warning devices at a rail crossing. Karl" }, { "docid": "22648675", "title": "", "text": "“joint responsibility” for traffic safety at crossings. As is made clear in the FHWA’s guide to the Manual, the MUTCD provides a description of, rather than a prescription for, the allocation of responsibility for grade crossing safety between the Federal and State Governments and between States and railroads: “8A-6 Grade-Crossing Responsibility “Jurisdiction “Jurisdiction over railroad-highway crossings resides almost exclusively in the States. Within some States, responsibility is frequently divided among several public agencies and the railroad.” U. S. Dept, of Transportation, Federal Highway Administration, Traffic Control Devices Handbook (1983). Rather than establishing an alternative scheme of duties incompatible with existing Georgia negligence law, the Manual disavows any claim to cover the subject matter of that body of law. The remaining potential sources of pre-emption are the provisions of 23 CFR §§ 646.214(b)(3) and (4), which, unlike the foregoing provisions, do establish requirements as to the installation of particular warning devices. Examination of these regulations demonstrates that, when they are applicable, state tort law is pre-empted. However, petitioner has failed to establish that the regulations apply to these cases, and hence we find respondent’s grade crossing claim is not pre-empted. As discussed supra, at 666-667, under §§ 646.214(b)(3) and (4), a project for the improvement of a grade crossing must either include an automatic gate or receive FHWA approval if federal funds “participate in the installation of the [warning] devices.” Thus, unlike the Manual, §§ 646.214(b)(3) and (4) displace state and private decision-making authority by establishing a federal-law requirement that certain protective devices be installed or federal approval obtained. Indeed, §§ 646.214(b)(3) and (4) effectively set the terms under which railroads are to participate in the improvement of crossings. The former section envisions railroad involvement in the selection of warning devices through their participation in diagnostic teams which may recommend the use or nonuse of crossing gates. §§ 646.214(b)(3)(i)(F) and (3)(ii). Likewise, § 646.214(b)(4), which covers federally funded installations at crossings that do not feature multiple tracks, heavy traffic, or the like, explicitly notes that railroad participation in the initial determination of “the type of warning device to be installed” at" }, { "docid": "2798824", "title": "", "text": "commerce. Thus, a state law concerning railway safety remains in effect until federal law covering the same subject matter is adopted, and may remain in effect even after federal law covering the same subject matter is adopted if the state law: (1) is necessary to reduce a local safety hazard; (2) is not incompatible with federal law; and (3) does not create an undue burden on interstate commerce. Several recent cases discuss the extent to which the FRSA affects a railroad company’s liability for negligence in actions arising out of accidents at railroad crossings. In Marshall v. Burlington Northern, Inc., 720 F.2d 1149 (9th Cir.1983), Judge (now Justice) Kennedy wrote that the FRSA preempts only those state laws where the government has acted with respect to the same “subject matter”, and that unlike the Federal Boiler Inspection Act which regulates locomotive equipment, the FRSA does not occupy the field of warning devices at railroad crossings. 720 F.2d at 1153. In Marshall, as in this case, the plaintiff contended that a crossbuck was inadequate for the crossing at which the plaintiffs decedent was killed, and that an automatic gate with flashing lights should have been installed. The court noted that the Secretary of Transportation had promulgated regulations adopting the Manual on Uniform Traffic Control Devices on Streets and Highways (“MUTCD”), 23 C.F.R. § 655.601. The manual provides that local agencies with jurisdiction over grade crossings would select safety devices at those crossings. Thus, the court noted that the Secretary of Transportation had delegated to local agencies the authority to regulate crossings. 720 F.2d at 1154. However, in Marshall, The locality in charge of the crossing in question ha[d] made no determination under the manual regarding the type of warning device to be installed at the crossing. Until a federal decision is reached through the local agency on the adequacy of the warning devices at the crossing, the railroad’s duty under applicable state law to maintain a “good and safe” crossing, Mont.Code Ann. § 69-14-602 (1981), is not preempted. 720 F.2d at 1154. The local agency with jurisdiction over the Heaton Street" }, { "docid": "20048963", "title": "", "text": "— not the railroad — has the duty to install active warning devices at dangerous railroad crossings. There are a few cases which have directly addressed the issue of the FRSA’s preemptive effect on a railroad’s common law duty to use reasonable care when passing through highway crossings. Those cases sharply differ, however, on the applicability and extent of preemption by the FRSA on such a claim. The pertinent cases can be divided into the following three categories: (1) strict preemption, Armijo v. The Atchinson, Topeka and Santa Fe Railway, Co., 754 F.Supp. 1526 (D.N.Mex.1990); (2) no preemption, Karl v. Burlington Northern R. Co., 880 F.2d 68 (8th Cir.1989); and (3) contingent preemption, Marshall v. Burlington Northern, Inc., 720 F.2d 1149, 1154 (9th Cir.1983). The railroad’s primary argument in this case relies on the strict preemption principles used by the very recent New Mexico case of Armijo. The New Mexico court found that the Secretary acted with regard to the installation of warning devices at railroad crossings by the promulgation of the procedures outlined in 23 C.F.R. § 646.200 et seq. and by the adoption of the MUTCD as the national standard. Armijo, at 1531. More specifically, the court noted that the MUTCD, Part VIII, ¶ 8A-1, states that “the determination of need and selection of devices at a grade crossing is made by the public agency with jurisdictional authority.” Armijo, at 1531. As a result, the court concluded that any New Mexico state common law or statutory law placing a duty on the railroad to determine the need and selection of the appropriate warning devices at a railroad crossing was preempted by the FRSA because the Secretary had adopted rules covering that subject matter within the meaning of § 434. Id. at 1530. The Armijo opinion is well reasoned and sets forth a persuasive argument for adoption of the strict preemption standard. However, the result of using that standard is terribly inequitable and contrary to the recognized view that “§ 434 manifests an intent to avoid gaps in safety regulations by allowing state regulation until federal standards are adopted.”" }, { "docid": "20048959", "title": "", "text": "880 F.2d at 1106, (the FRSA does not merely preempt state laws which are inconsistent with standards adopted by the Secretary; it preempts all state laws aimed at the same safety concern addressed by standards promulgated by the Secretary). In asserting that the Secretary has adopted relevant standards in this case, the railroad points out that 23 C.F.R. § 655.601(a) (1990) incorporates by reference the Manual on Uniform Traffic Control Devices for Streets and Highways (MUTCD). Part VIII of the MUTCD is titled, “Traffic Control Systems For Rail road — Highway Grade Crossings.” A relevant portion of Part VIII states as follows: 8A-1 Functions With due regard for safety and for the integrity of operations by highway and railroad users, the highway agency and the railroad company are entitled to jointly occupy the right-of-way in the conduct of their assigned duties. This requires joint responsibility in the traffic control function between the public agency and the railroad. The determination of need and selection of devices at a grade crossing is made by the public agency with jurisdictional authority. Subject to such determination and selection, the design, installation and operation shall be in accordance with the national standards contained herein. 8A-2 Use of Standard Devices The grade crossing traffic control devices, systems, and practices described herein are intended for use both in new installations and at locations where general replacement of present apparatus is made, consistent with Federal and State laws and regulations. 8D-1 Selection of Systems and Devices The selection of traffic control devices at a grade crossing is determined by public agencies having jurisdictional responsibility at specific locations ... Due to the large number of significant variables which must be considered there is no single standard system of active traffic control devices universally applicable for grade crossings. Based on an engineering and traffic investigation, a determination is made whether any active traffic control system is required at a crossing and, if so, what type is appropriate. Before a new or modified grade crossing traffic control system is installed, approval is required from the appropriate agency within a given State." }, { "docid": "18841328", "title": "", "text": "ORDER ON REMAND JOHN P. MOORE, Circuit Judge. This case is before us after our judgment, previously reported as Hatfield v. Burlington Northern R. Co., 958 F.2d 320 (10th Cir.1992), was vacated by the Supreme Court and remanded for further consideration in light of CSX Transportation, Inc. v. Easterwood, 507 U.S. -, 113 S.Ct. 1732, 123 L.Ed.2d 387 (1993). Having reconsidered, we conclude the case must be remanded for further proceedings. In the original appeal of this case, we held Kansas law did not apply to a grade crossing collision involving Mr. Hatfield because the adoption of the Manual on Uniform Traffic Control Devices on Streets and Highways by the Secretary of Transportation preempted state regulation of grade crossings. That holding was specifically invalidated in Easterwood, 507 U.S. at -, 113 S.Ct. at 1740. Nonetheless, the Court did not eschew entirely the concept of preemption. Indeed, it observed: The remaining potential sources of preemption are the provisions of 23 CFR §§ 646.214(b)(3) and (4), which ... do establish requirements as to the installation of particular warning devices. Examination of these regulations demonstrates that, when they are applicable, state tort law is pre-empted.... [A] project for the improvement of a grade crossing must either include an automatic gate or receive FHWA [Federal Highway Administration] approval if federal funds “participate in the installation of the [warning] devices-” In short, for projects in which federal funds participate in the installation of warning devices, the Secretary has determined the devices to be installed and the means by which railroads are to participate in their selection. The Secretary’s regulations therefore cover the subject matter of state law which ... seeks to impose an independent duty on a railroad to identify and/or repair dangerous crossings. 507 U.S. at -, 113 S.Ct. at 1740-41 (citations omitted). Thus, the precise issue to be resolved here is whether “federal-aid funds participate^] in the installation of La warning] device” prior to the collision involving Mr. Hatfield. The issue requires, first, that we determine the meaning of participation. Thereafter, within the context of that meaning, a factual determination must be made" }, { "docid": "6852730", "title": "", "text": "non-moving party. Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1106 (7th Cir.1984), cert. denied, 470 U.S. 1054, 105 S.Ct. 1758, 84 L.Ed.2d 821 (1985); Wolfolk v. Rivera, 729 F.2d 1114, 1116 (7th Cir.1984). Defendants argue that the doctrine of federal preemption applies here, so that a claim of common law negligence cannot stand against them. Federal law preempts state law if the two are in actual conflict; in other words, if it is impossible to comply with both state and federal law, or where the state law impedes the achievement of the objectives of the federal law. Consolidated Rail Corp. v. Smith, 664 F.Supp. 1228, 1236 (N.D.Ind.1987), citing California Coastal Comm ’n v. Granite Rock Co., 480 U.S. 572, 580-81, 107 S.Ct. 1419, 1424-25, 94 L.Ed.2d 577 (1987); Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 248, 104 S.Ct. 615, 621, 78 L.Ed.2d 443 (1984); Hines v. Davidowitz, 312 U.S. 52, 68, 61 S.Ct. 399, 404-05, 85 L.Ed. 581 (1941). Courts have interpreted that Congress intended that the Federal Railroad Safety Act, 45 U.S.C. §§ 421-445 (1988) (hereinafter FRSA) have total preemptive effect over state law. Consolidated Rail, 664 F.Supp. at 1236. However, the FRSA authorizes two specific exceptions to its preemptive effect. It allows states to adopt railway safety rules or continue such rules in force 1) until the Secretary of Transportation enacts a rules covering the same subject matter, or 2) when necessary to reduce a local safety hazard, so long as the state law is compatible with federal law and interstate commerce. 45 U.S.C. § 434 (1988). The FRSA requires the Secretary of Transportation to study and develop solutions to problems related to railroad grade crossings. Id. at § 433. The Secretary adopted the Manual on Uniform Traffic Control Devices on Streets and Highways. 23 C.F.R. § 655.601. The Manual requires that the local agency with jurisdiction over a given rail crossing is to select devices for grade crossings. Id. Illinois law has authorized the Illinois Commerce Commission (ICC) to require the installation of warning devices at rail crossings. The relevant provision of the Illinois" }, { "docid": "20048957", "title": "", "text": "434 is informed by its introductory language directing the establishment of national rail safety standards ‘to the extent practicable’ ”); National Ass’n of Regulatory Util. Com’rs v. Coleman, 542 F.2d 11, 13 (3d Cir.1976) (finding that the FRSA evinces a total preemptive intent); Donelon v. New Orleans Terminal Co., 474 F.2d 1108, 1112 (5th Cir.1973) (the FRSA only “authorizes a narrow spectrum of deviation from national uniformity”). But see Karl v. Burlington Northern R. Co., 880 F.2d 68, 76 (8th Cir.1989). Although Congress clearly expressed an intent to establish nationally uniform control of railroad safety in the FRSA, this court recognized in Sisk, 647 F.Supp. at 865, that § 434 of that Act specifically authorizes “exceptions” from such uniformity. For example, the plain language of § 434 indicates that preemption does not occur until the Secretary of Transportation adopts “a rule, regulation, order, or standard covering the subject matter” of the state law. In addition, the state law will not be preempted if it is “necessary to eliminate or reduce an essentially local safety hazard;” is “not incompatible with any Federal law, rule, regulation, order, or standard;” and does “not creat[e] an undue burden on interstate commerce.” 45 U.S.C. § 434. Since no claim is made in this case that the duty to install active warning devices at railroad crossings is essentially a local safety hazard, the second “exception” for preemption discussed above does not apply and will not be addressed herein. As a result, the only question the court must address is whether the Secretary has adopted standards “covering the subject matter” of the duty to install active warning devices at railroad crossings where unusually dangerous conditions exist. The preemption provision in 45 U.S.C. § 434 is keyed to action taken by the Secretary. Furthermore, the preemption provision in the FRSA does not merely relate to those regulations promulgated by the Federal Railroad Administration through powers delegated by the Secretary of Transportation; it relates to all rules and regulations regarding railroad safety promulgated by the Secretary. CSX Transp., Inc., 901 F.2d at 501. See also Burlington Northern Railroad Co.," } ]

[ { "docid": "3996977", "title": "", "text": "7 petition pursuant to 11 U.S.C. § 707(a). The grounds upon which debtor relies in support of her motion are as follows: debtor has received partial payment of the inheritance and has so advised the trustee; most of the discharged creditors have already been paid off, and debtor has the ability and intention to fully pay all remaining discharged debt; creditors will not be prejudiced as a result of the voluntary dismissal; debtor wishes to avoid the stigma of bankruptcy. Although the trustee objected to the voluntary dismissal, no objection has been raised by the creditors; however, the creditors have not affirmatively consented to the dismissal. Discussion and Conclusions Debtor seeks dismissal of her bankruptcy petition under § 707(a). Her trustee opposes dismissal. Section 707(a) provides that “[t]he court may dismiss a case under this chapter only after notice and a hearing and only for cause....” 11 U.S.C. § 707(a). Whether dismissal is granted is subject to the discretion of the court. In re Hand, 18 C.B.C. 206 (D.D.C. 1978); In re Blue, 4 B.R. 580 (Bankr.D.Md.1980). The primary consideration courts have used in making this determination is whether dismissal will “cause some plain legal prejudice to the creditors. Legal prejudice is found to exist where assets which would otherwise be available to creditors are lost because of the dismissal.” In re Higbee, 58 B.R. 71, 72 (Bankr.C.D.Ill.1986) (citation omitted). Other factors to be weighed include the good faith of the debt- or, whether the debtor is guilty of laches, and the absence or presence of creditor consent. In re Hand, 18 C.B.C. at 208. The court in Hand confronted a situation almost factually identical to the present case. The debtor sought dismissal of his voluntary petition because he was to receive a substantial inheritance sufficient to pay his entire indebtedness. He offered to put the funds in a trust for the benefit of the creditors. However, the court found that dismissal would prejudice the creditors since they would lose the “statutory protection afforded by a court appointed trustee in bankruptcy administering the estate for the benefit of all the" } ]

[ { "docid": "11808583", "title": "", "text": "at 1439. But Judge O’Scannlain’s concurrence never purported to speak broadly about the applicability of equitable doctrines to § 523(a)(3)(B) cases. Indeed, he cited very specific legislative history expressly disapproving the equitable notion of debtor good faith. Id. at 1439 n. 4. In re Lyman, 166 B.R. 333 (Bankr.S.D.Ill.1994), the one bankruptcy opinion that the BAP considered to have”dealt squarely” with the issue of the applicability of laches in •§ 523(a)(3)(B) actions, gave no hint as to why the “at any time” language in Rule 4007(b) should eliminate the laches defense in those actions. The district court in that case provided only the conelu-sory statement that “a debtor who fails to list a creditor loses the jurisdictional and time limit protections of Section 523(c) and Rule 4007[ (c) ],” and “[tjherefore, debtor’s argument that the complaint should be dismissed pursuant to laches ... is without merit.” Id. at 337 (emphasis added). In In re Santiago, 175 B.R. 48, 51-52 (9th Cir.BAP1994), also cited by the BAP in this case, the court addressed only the statutory time limitation applicable to § 523(a)(3)(B) actions, expressly declining to render any opinion as to whether laches might impose a time limit in these cases. Id. at 51 n. 4. For a number of reasons, we hold that laches is available as a defense in a § 523(a)(3)(B) action. First, an examination of other bankruptcy actions that are without time limitations reveals that Congress nevertheless intended laches to act as a constraint in. those actions. For example, a Chapter 7 debtor may move to reopen his case and bring a lien avoidance action at any time, and creditors are protected by a laches concept from having to face actions by debtors who prejudicially delay bringing such actions. Further, in both the Chapter 13 and the Chapter 11 bankruptcy contexts, courts have recognized that, while the failure to give a creditor notice of the bar date precludes the court from denying the creditor’s claim for failing to file it before that date, laches may nonetheless bar such a claim if there is unreasonable, prejudicial delay. Though" }, { "docid": "15578123", "title": "", "text": "the interests of debtor and creditors in deciding the motion. It found that creditors would be prejudiced by dismissal. The Appellate Panel affirmed. I conclude that the Ruckdaschel decision is not necessarily support for Timmer-mans’ motion. It appears that Judge Pap-pas might have decided Ruckdaschel differently had the motion to dismiss been filed by debtors, rather that the United States trustee. Also, I conclude that Timmermans are judicially estopped to bring the motion to dismiss. In their petition, they stated under penalty of perjury that they had obtained counseling within the 180 days prior to filing. The court relied on the statement in giving them an extension of time to file the certificates. Notwithstanding that the later-filed certificates showed that the petition’s statement on the matter was untrue, no party raised the issue, and Timmermans proceeded with their case. They seek now, after circumstances in the bankruptcy have changed, to assert a contrary position. Allowing Timmermans to dismiss to the prejudice of creditors would impair the integrity of the bankruptcy system. See In re Parker, 351 B.R. 790, 798 (Bankr.N.D.Ga.2006) (denying debtor’s motion to dismiss on ground of judicial estoppel); see also Hossaini v. Western Missouri Medical Center, 140 F.3d 1140, 1142-43 (8th Cir.1998) (discussing doctrine of judicial estoppel). The doctrine of laches also prevents the court from granting Timmer-mans’ motion. Laches is an equitable doctrine. It “prevents a court from granting relief to a claimant who has unreasonably delayed or been negligent in asserting a claim so that the opposing party has been prejudiced.” Strawn v. Missouri State Bd. of Educ, 210 F.3d 954, 956-57 n. 3 (8th Cir.2000) citing Black’s Law Dictionary 879 (7th ed.1999). For the foregoing reasons, IT IS ORDERED that the motion of Dean Timmerman and Ann Timmerman to dismiss their chapter 7 case is denied. Judgment shall enter accordingly." }, { "docid": "12726380", "title": "", "text": "under oath; (2) the statement was material to the bankruptcy case; (3) the statement was false; (4) Dini knew that the statement was false; and (5) the statement was made with an intent to de^ ceive. See Schechter v. Hansen (In re Hansen), 325 B.R. 746, 758 (Bankr. N.D. Ill. 2005). Sammarco alleges that Dini made multiple false oaths in connection with the Creel debt that Dini knew were- false and which he made with fraudulent intent. Specifically, Sammarco contends that Dini made inconsistent, conflicting statements under oath with respect to the amount of the Creel debt at the 707(b) Hearing in order to classify it as business debt. Those statements appeared in Dini’s answers to Sammarco’s interrogatories and requests for admission, as well as in his stipulations in connection with the 707(b) Hearing. (See PL’s Ex. 64 at 7.) Sammarco also alleges that Dini falsely represented in his testimony, as well as in a declaration supporting his objection to the 707(b) motion to dismiss (the “Declaration”), that the Creel debt was used to pay an NTMS overdraft of $70,000. According to Sammarco, Dini’s statements were false and made only for “litigation advantage.” (Compl. ¶ 119.) Applying the facts to the elements of § 727(a)(4)(A), the Court finds, that Sam-marco is able to satisfy only two. First, Dini made statements under oath, because trial testimony, declarations made under penalty of perjury, and answers to interrogatories and other discovery all constitute statements under oath for purposes of § 727(a)(4)(A). See Hunt v. O’Neal (In re O’Neal), 436 B.R. 646, 661 (Bankr. N.D. Ill. 2010); Buckeye Ret. Props, of Ind., LLC v. Tauber (In re Tauber), 349 B.R. 540, 560-61 (Bankr. N.D. Ind. 2006); Structured Asset Servs., L.L.C. v. Self (In re Self), 325 B.R. 224, 245 (Bankr. N.D. Ill. 2005). Second, all of the statements made by Dini concerned his financial affairs and are thus material to the bankruptcy case. See Neugebauer v. Senese (In re Senese), 245 B.R. 565, 574 (Bankr. N.D. Ill. 2000). As to the third element, Sammarco stumbles. He seems to suggest that Dini’s statements were false" }, { "docid": "11808602", "title": "", "text": "at any time.\"), rev'd on other grounds by Bankruptcy Reform Act of 1994, Pub. Law No. 103-394 § 303 (1994); In re Bianucci, 4 F.3d 526, 528 (7th Cir.1993) (noting that the lien avoidance provision sets no time limits on debtors' motions to avoid liens, but the “leading approach ... incorporates an equitable defense akin to laches, so that a debtor may reopen the bankruptcy case at any time to avoid a lien absent a finding of prejudice to the creditor”); In re Levy, 256 B.R. 563, 566 (D.NJ.2000) (noting the absence of a statutory time limitation for the bringing of avoidance actions, but apply ing the “recognized limitation” of laches to bar a prejudicially delayed filing). . See In re The Drexel Burnham Lambert Group, 157 B.R. 532, 538 (S.D.N.Y.1993) (allowing court to use doctrine of laches in a Chapter 11 case and noting “the distinction between a creditor’s rights to notice under the bankruptcy law and debtor's rights to resist dilatory claims under the equitable doctrine of laches”); In re Hunt, 146 B.R. 178, 184 (Bankr.N.D.Tex.1992) (\"[A Chapter 11] creditor's claim can be barred for failure to file a proof of claim prior to the bar date only if the creditor received reasonable notice of the bar date. It is undisputed that Plaintiffs did not receive notice of the bar date.... However, that does not end the Court's inquiry, for a creditor cannot wait indefinitely to file a claim. This Court may apply the equitable doctrine of laches to prevent the late filing of a proof of claim if Plaintiff's delay was unreasonable.” (citations omitted)); In re Barsky, 85 B.R. 550, 554 (C.D.Cal.1988), aff’d, 933 F.2d 1013 (9th Cir.1991) (holding that, in a Chapter 13 case, failure to provide notice “does not preclude a court from limiting the creditor's right to file a claim pursuant to the independent doctrine of laches”). FERNANDEZ, Circuit Judge, concurring: I concur in the result because I agree that laches does not bar Selinger’s complaint to determine the dischargeability of his judgment against Beaty for fraudulent, willful, and malicious conduct which injured Selinger." }, { "docid": "1574774", "title": "", "text": "Debtors and Mclnnis were both parties to the First Avoidance Motion and the Second Avoidance Motion; therefore, the doctrine of collateral estoppel is misplaced, and any issue preclusion between them is encompassed by claim preclusion. Doctrine of Laches Rarely Prohibits § 522 Avoidance Motions 21. The court already determined that the.Second Avoidance Motion is barred by the doctrine of res judicata and need not consider whether the Second Avoidance Motion is also barred by the doctrine of laches, which “is an equitable defense that a creditor may raise to bar the requested relief of a debtor upon a showing that the debtor was guilty of unreasonable delay which prejudiced the creditor.” Male, 362 B.R. at 242 (citing Saucier v. Quantum Varde Asset Fund, LLC (In re Saucier), 353 B.R. 383, 386 (Bankr.D.Conn.2006); Webb v. Boroughs (In re Webb), 48 B.R. 454, 458 (Bankr. E.D.Va.1985)). Without ruling on this issue, the court notes that exemption rights are liberally construed in favor of debtors, and “[pjassage of time in itself does not constitute prejudice.” Id. (quoting In re Bianucci, 4 F.3d 526, 528 (7th Cir.1993)); see also Matter of Baskins, 14 B.R. 110, 111 (Bankr.E.D.N.C.1981) (holding that debtors are not barred from bringing an avoidance action under 11 U.S.C. § 522(f) after their discharge has been granted); In re Tarrant, 19 B.R. 360, 364 (Bankr.D.Alaska 1982) (holding that absent showing that a creditor’s position was materially and detrimentally altered, lach-es does not apply, and “the fresh start policy embodied in the exemptions granted debtors by the Code outweighs any interest in finality which creditors might have”). CONCLUSION 22. An order either allowing or denying avoidance of judicial lien under § 522(f) is a final order and shall remain valid and enforceable unless the case in which the order was entered is dismissed. As a result, the doctrine of res judicata prohibits relitigation of a subsequent motion brought by the debtor in the same case to avoid the same lien held by the same creditor, even if the motion is made after conversion of the case to another chapter. Applying this holding to" }, { "docid": "14954769", "title": "", "text": "at least a question of whether Peat Mar-wick’s litigation against IRM was actually pending, which constitutes a genuine issue of material fact which the Bankruptcy Court should have resolved before granting the Trustee’s Settlement Motion. 2. Laches Despite the Bankruptcy Court’s failure to properly resolve the statute of limitations issue, its approval of the Settlement Motion was correct based on the application of the doctrine of laches. The common law doctrine of laches is codified under Michigan law under M.C.L.A. § 600.5815, which provides that “[t]he equitable doctrine of laches shall also apply in actions where equitable relief is sought.” The Michigan Supreme Court has defined laches as “an affirmative defense which depends.not on mere lapse of time but principally on the requisite of inter- veiling circumstances which would render inequitable any grant of relief to the dilatory plaintiff!.]” Lewis v. Poel, 376 Mich. 167, 169, 136 N.W.2d 7 (1965) (cites omitted). See also, Urbanco, Inc. v. Urban Systems Streetscape, Inc., 111 B.R. 134, 135 (W.D.Mich.1990) (court defined laches as “such neglect or omission to assert a right taken in conjunction with lapse of time and other circumstances causing prejudice to an adverse party, as well as operate as a bar in equity”). Here, there was uncontradieted evidence in the record to support the Bankruptcy Court’s ruling based on the application of the doctrine of laches. Peat Marwick first filed the Wayne County lawsuit in 1989, which was apparently stayed because of the Debtor’s filing of bankruptcy. However, Peat Marwick did not attempt to have the stay lifted, even though it now maintains that the Bankruptcy Court never had jurisdiction over IRM in the first place (which would mean that the state court had no authority to freeze the litigation against IRM, a non-Debtor party to the state court litigation). Further, Peat Marwick failed to reinstate the lawsuit against IRM until just before the Trustee’s Settlement Motion, despite having ample opportunity to do so. But perhaps most importantly, Peat Marwick failed to take any action even when the bankruptcy ease was dismissed in 1992, thereby lifting any automatic stay that" }, { "docid": "12726386", "title": "", "text": "under § 727(a)(4)(A), and, thus, Dini’s discharge will not be denied thereunder. All that remains now is Sammarco’s § 707(a) motion to dismiss Dini’s bankruptcy case and bar him from re-filing for three years. (Bankr. No. 13-25078, Docket No. 191.) Dini has already filed a “preliminary response” in which he argues that the motion should be denied under the equitable doctrine of laches. {See Bankr. No. 13-25078, Docket Ño. 192.) Dini is directed to file a “final” response by January 6, 2017. Sammarco is directed to file a reply by February 3, 2017. A status hearing on the motion is set for February 9, 2017 at 10:00 a.m. before the undersigned in Courtroom 615. Because a discharge cannot be entered while a motion to dismiss under § 707 is pending, Fed. R. Bankr. P. 4004(c)(1)(D), the Clerk is directed to delay the entry of discharge in Dini’s bankruptcy case until further notice. CONCLUSION For the foregoing reasons, the Court finds that Sammarco has failed to meet his burden to establish the elements required under §§ 727(a)(2), (a)(4), and (a)(7). As such, Dini’s discharge will not be denied. A separate order will be entered consistent with this Memorandum Opinion. . Unless otherwise noted, all statutory and rule references are to the Bankruptcy Code, 11 U.S.C. §§ 101 to 1532, and the Federal Rules of Bankruptcy Procedure. . All references to exhibits are to those submitted by the parties during the trial. . According to the first of the agreements, executed in May 2009, \"[a] default by [the] Group Borrowers] pursuant to the terms of the [Dini Loan] Instruments shall be deemed a default by [NTMS] pursuant to the terms of the [NTMS Loan] Instruments” and ‘‘[a] default by [NTMS] pursuant to the terms of the [NTMS Loan] Instruments shall be deemed a default by [the] Group Borrower[s] pursuant to the terms, of the [Dini Loan] Instruments.” (Pl.’s Ex, 8 ¶¶ 1(E) & 2(F)). The first agreement also provided that NTMS and the Group Borrowers would be \"jointly and severally liable for the obligations” of the other. (Id. ¶¶ 1(F) & ,2(G).)" }, { "docid": "12726379", "title": "", "text": "and the evidence put on by Sammarco’s attorney in connection with the cross-collateralization allegations in Count V, as well as allegations that Dini and the Bank conspired to put NTMS into bankruptcy to steer a 363 sale to the Stalking Horse, will not be admitted. As a result, Dini’s discharge will not be denied under § 727(a)(7). C. Section 727(a)(4)(A): False Oath in Connection with Dini’s Bankruptcy Case Finally, in Count VII of the Complaint, Sammarco argues that Dini’s discharge should be denied under § 727(a)(4)(A), because Dini knowingly and with fraudulent intent made false statements with respect to the debt that he owes to Creel (the “Creel debt”). Section 727(a)(4)(A) enforces the debtor’s obligation to provide full and accurate information about himself and his affairs by denying a discharge to a debtor who has “knowingly and fraudulently, in or in connection with the case[,] ... made a false oath or account[.]” 11 U.S.C. § 727(a)(4)(A); Bostrom, 286 B.R. at 359. To prevail under § 727(a)(4)(A), Sammarco must demonstrate that: (1) Dini made a statement under oath; (2) the statement was material to the bankruptcy case; (3) the statement was false; (4) Dini knew that the statement was false; and (5) the statement was made with an intent to de^ ceive. See Schechter v. Hansen (In re Hansen), 325 B.R. 746, 758 (Bankr. N.D. Ill. 2005). Sammarco alleges that Dini made multiple false oaths in connection with the Creel debt that Dini knew were- false and which he made with fraudulent intent. Specifically, Sammarco contends that Dini made inconsistent, conflicting statements under oath with respect to the amount of the Creel debt at the 707(b) Hearing in order to classify it as business debt. Those statements appeared in Dini’s answers to Sammarco’s interrogatories and requests for admission, as well as in his stipulations in connection with the 707(b) Hearing. (See PL’s Ex. 64 at 7.) Sammarco also alleges that Dini falsely represented in his testimony, as well as in a declaration supporting his objection to the 707(b) motion to dismiss (the “Declaration”), that the Creel debt was used to pay" }, { "docid": "12198896", "title": "", "text": "voluntary motion to dismiss under § 707(a), such as: 1. whether all of the creditors have consented; 2. whether the debtor is acting in good faith; 3. whether dismissal would result in a prejudicial delay in payment; 4. whether dismissal would result in a reordering of priorities; 5. whether there is another proceeding through which the payment of claims can be handled; 6. whether an objection to discharge, an objection to exemptions, or a preference claim is pending. See In re Timmerman, 379 B.R. at 845; In re Maixner, 288 B.R. 815, 817 (8th Cir. BAP 2003); In re Cink, 2007 WL 601585, at *2 (Bankr.D.S.D. Feb. 21, 2007); In re Fultz, 2004 WL 451258, at *1 (Bankr. N.D.Fla. Feb. 13, 2004); In re Terry, 2003 WL 21219818, at *1 (Bankr.M.D.N.C. May 23, 2003). Even courts that favor the “plain legal prejudice” test may slide into consideration of multiple “factors” in assessing voluntary motions to dismiss under § 707(a). See In re Hickman, 384 B.R. 832, 840 (9th Cir. BAP 2008) (“the totality of the circumstances” should be considered in evaluating cause for dismissal and plain legal prejudice); In re Branisel, 130 B.R. 502, 503-04 (Bankr.N.D.Ohio 1991) (referring to plain legal prejudice test, but also stating that interests of both debtor and creditors must be considered). Thus, while in the abstract, these three (3) lines of cases articulate a different legal standard for voluntary dismissal under § 707(a), all of the courts may be employing, at bottom, the same analysis — a factually intensive assessment of the debtor’s reasons for requesting dismissal and of the impact dismissal can be expected to have on the creditors. Such an approach is susceptible to being labeled a balancing test. I adopt a balancing of interests approach because I conclude that it affords bankruptcy courts the flexibility needed to make the equitable determination whether there is “cause” for a voluntary dismissal under § 707(a). See generally McDaniel, 363 B.R. at 245 (bankruptcy court “must ... undertake fact-sensitive inquiry that is guided by equitable considerations, which balances the benefit and harm to creditor and debtor" }, { "docid": "12726359", "title": "", "text": "to his discharge under § 727(a)(2) based on his transfers of the Cadillac and Lincoln. In Count V, Sam-marco objects to Dini’s discharge pursuant to § 727(a)(7), arguing that Dini knowingly made fraudulent statements in NTMS’s bankruptcy schedules while his individual bankruptcy case was pending. Finally, in Count VII, Sammarco alleges that Dini’s discharge should be denied under § 727(a)(4), because Dini knowingly and with fraudulent intent made false statements in connection with the debt that he owes to Creel. In response to the Complaint, Sammar-co filed an answer on August 17, 2015. (Adv. No. 13-1332, Docket No. 60.) After multiple continuances and status hearings, the trial was set for September 13, 2016. (See Adv. No. 13-1332, Docket No. 90.) On September 9, 2016, four days before the trial was scheduled to begin, Sammar-co filed a motion to dismiss Dini’s bankruptcy case pursuant to § 707(a). (Bankr. No. 13-25078, Docket No. 191.) Relying on the Seventh Circuit case In re Schwartz, 799 F.3d 760 (7th Cir. 2015), Sammarco argued in that motion that Dini’s case should be dismissed because both prior to and after filing his bankruptcy petition, Dini unnecessarily spent money on himself and his family while refusing to pay creditors like Sammarco. (Id. ¶ 1.) According to the motion, the Schwartz case “effected a new interpretation of § 707(a) which is directly applicable to Dini’s bankruptcy case.” (Id.) Also just days before the trial, Dini filed two motions in limine, asking the Court to bar Sammarco from presenting evidence or argument on various issues. (Adv. No. 13-1332, Docket Nos. 103 & 104.) In the first motion, Dini contended that Sammar-co’s cross-collaterization argument set forth in Count V was already decided by the Court and, thus, may not be litigated again under the doctrine of issue preclusion. (Adv. No. 13-1332, Docket No. 103.) In the second motion, Dini argued that Sammarco improperly seeks denial of Dini’s discharge based on new claims that do not appear in the Complaint: (1) that Dini and the Bank conspired to put NTMS into bankruptcy in order to “steer” a § 363 sale to" }, { "docid": "1952977", "title": "", "text": "of Moss’s estate. Peterson’s Motion to Dismiss asserted that the filing of Atlas’s bankruptcy petition was not authorized by the corporation since Moss was comatose and Cavasas had improperly appointed two new directors. In June 1984, the bankruptcy court denied this motion. Peterson filed a second motion in August 1984, and in August 1985, the bankruptcy judge set aside the order denying the first motion and held a hearing on the second motion. This motion, too, was denied. The bankruptcy judge issued a memorandum opinion with his denial of Peterson’s second motion. In that opinion, the judge cites no less than four separate bases for his denial of the motion to dismiss: (1) Cavasas’s appointment of the two new directors was valid since two vacancies existed, and so the bankruptcy petition was authorized; (2) even if the bankruptcy had not been authorized, under Fifth Circuit precedent the petition should not be dismissed because Peterson waited too long to complain; (3) Peterson was also barred by the doctrine of laches from pursuing her objection to the petition; and (4) even aside from laches, the motion to dismiss should be denied because it would prejudice the creditors. Peterson and McLain appealed to the district court, which affirmed the bankruptcy judge’s denial of the second motion to dismiss. Peterson and McLain now appeal from the district court’s judgment. II Peterson moved to dismiss the bankruptcy petition under section 707(a) of the Bankruptcy Code. Under that section a bankruptcy judge may dismiss cases “only for cause.” 11 U.S.C. § 707(a). Section 707(a) does not, however, provide an exhaustive list of factors to be considered in determining whether good cause exists to dismiss a bankruptcy petition. In re Carroll, 24 B.R. 83 (Bankr.N.D. Ohio 1982). Under past bankruptcy law, whether to grant a motion to dismiss has been guided by equitable principles: “The court must balance the equities and weigh the ‘benefits and prejudices’ of a dismissal.” In re Blue, 4 B.R. 580 (Bankr.D.Md.1980) (citations omitted). Section 707 itself does not preclude the application of equitable principles. In re Blackmon, 3 B.R. 167 (Bankr.S.D. Ohio" }, { "docid": "12726354", "title": "", "text": "Court granted the motion and entered an order converting Dini’s case. (Bankr. No. 13-25078, Docket No. 70.) About four months later, on June 4, 2014, Sammarco filed a motion to dismiss Dini’s case pursuant to § 707(b)(3) and requested a one-year bar to filing subsequent bankruptcy cases. (Pl.’s Ex. 63.) In that motion, Sammarco sought dismissal for “abuse,” arguing that Dini had filed his bankruptcy case in bad faith. (Id. ¶ 1.) Because dismissal under § -707(b) is authorized only in cases involving an individual debtor with “primarily consumer debts,” 11 U.S.C. § 707(b)(1), the Court agreed, at Dini’s request, to first consider the threshold issue of whether Dini’s debts are primarily consumer debts. (See Pl.’s Ex. 64 at 1.) Not surprisingly, Sammarco argued that Dini’s debts are primarily consumer debts. (Pl.’s Ex, 63.) After performing what he called a “detailed analysis” of the debts listed in Dini’s bankruptcy schedules and claims, Sammarco alleged that $3,877,310.39 of Dini’s total debts of $4,579,012.05, or nearly 85%, are consumer debts, including the $290,000 that Dini borrowed from Creel. (Id. ¶ 11.) In response, Dini filed an objection to Sammarco’s motion to dismiss, arguing that his debts are primarily non-consumer debts. (PL’s Ex. 59.) According to Dini, Sammarco incorrectly classified eight of the debts, totaling nearly $2,400,000, as consumer debts. (Id. § 2.1.) Of those, Dini argued, $70,000 of the $290,000 debt owed to Creel was to be used to fix the overdraft problem at NTMS and was, therefore, not consumer debt. (Id.) In support of that contention, Dini signed and submitted a “declaration” in which he stated under penalty of perjury that “[a]t one point, NTMS’s bank account at [the] Bank was overdrawn by $70,000, so [he] ■ borrowed money from Creel to cure the overdrawn account.” (Id. at Ex. A ¶ 14.) On October 21, 2014, .the Court heard evidence and testimony, primarily from Dini, as to whether the contested debts, including the one owed to Creel, are .primarily consumer or non-consumer debts (the “707(b) Hearing”). Thereafter, on January 20, 2015, the Court issued an order in which it concluded that" }, { "docid": "1952978", "title": "", "text": "petition; and (4) even aside from laches, the motion to dismiss should be denied because it would prejudice the creditors. Peterson and McLain appealed to the district court, which affirmed the bankruptcy judge’s denial of the second motion to dismiss. Peterson and McLain now appeal from the district court’s judgment. II Peterson moved to dismiss the bankruptcy petition under section 707(a) of the Bankruptcy Code. Under that section a bankruptcy judge may dismiss cases “only for cause.” 11 U.S.C. § 707(a). Section 707(a) does not, however, provide an exhaustive list of factors to be considered in determining whether good cause exists to dismiss a bankruptcy petition. In re Carroll, 24 B.R. 83 (Bankr.N.D. Ohio 1982). Under past bankruptcy law, whether to grant a motion to dismiss has been guided by equitable principles: “The court must balance the equities and weigh the ‘benefits and prejudices’ of a dismissal.” In re Blue, 4 B.R. 580 (Bankr.D.Md.1980) (citations omitted). Section 707 itself does not preclude the application of equitable principles. In re Blackmon, 3 B.R. 167 (Bankr.S.D. Ohio 1980). Since equitable principles may be applied under the present Bankruptcy Code, the decision whether to grant a motion to dismiss a petition in bankruptcy lies within the discretion of the bankruptcy judge. Cf. In re International Airport Inn Partnership, 517 F.2d 510, 511 (9th Cir.1975) (“the granting of a voluntary motion to dismiss (under the Bankruptcy Act) lies within the sound discretion of the Referee and is reversible only for an abuse of that discretion”). The bankruptcy judge did not abuse his discretion in denying Peterson’s motion to dismiss. Sufficient considerations were present to support the judge’s decision. First, neither Atlas nor its creditors stands to benefit by dismissal. Nobody questions the fact that Atlas did not have the ability to pay its creditors. The appellants do not claim that the corporation could have been saved or that they are presently able to pay off the creditors outside a bankruptcy proceeding. Peterson’s only apparent interest is the life insurance policy. She does not assert, however, that her interest in the life insurance policy constitutes" }, { "docid": "11808577", "title": "", "text": "facts in reaching its decision,” under the de novo standard that traditionally governs summary judgment review. Jarrow Formulas, 304 F.3d at 833-34. But our review of the application of the laches doctrine to the facts is for abuse of discretion. Id.; see also Hot Wax, Inc. v. Turtle Wax, Inc., 191 F.3d 813, 819 (7th Cir.1999) (“The traditional standard of review in summary judgment cases must be considered in light of the notion that a district court enjoys considerable discretion in determining whether to apply the doctrine of laches to claims pending before it.... Therefore, while our review of the record is de novo in determining whether there are any disputed issues of material fact, our review of whether the district court properly applied the doctrine of laches is under an abuse of discretion standard.” (internal quotations and citations omitted)); see also Natl Ass’n of Gov’t Employees v. City Pub. Serv. Bd. of San Antonio, 40 F.3d 698, 707 (5th Cir.1994) (“[A]s long as the district court applies the correct legal standard on summary judgment and does not resolve disputed issues of material fact against the nonmovant, its determination of whether the undisputed facts warrant an application of laches is reviewed for abuse of discretion.”). Ill The initial question is whether laches is .available as an affirmative defense at all in § 523(a)(3)(B) cases. This is a question of law. Section 523(a)(3)(B) provides for the exception from discharge of certain debts — most notably, for purposes of this case, debts involving fraud on the part of the debtor' — when those debts were not listed by the debtor in the schedule of creditors. The Bankruptcy Code and Rules treat these debts differently from debts of the same sort that have been properly scheduled. Specifically, § 523(a)(3)(B) creates a nondischargeability action for defrauded, creditors who were neither listed nor scheduled and had no notice or actual knowledge of the case in time to permit the timely filing of a proof of claim or a timely request for a determination of dischargeability. Section 523(c)(1), which provides for the possible exception from discharge" }, { "docid": "12726360", "title": "", "text": "should be dismissed because both prior to and after filing his bankruptcy petition, Dini unnecessarily spent money on himself and his family while refusing to pay creditors like Sammarco. (Id. ¶ 1.) According to the motion, the Schwartz case “effected a new interpretation of § 707(a) which is directly applicable to Dini’s bankruptcy case.” (Id.) Also just days before the trial, Dini filed two motions in limine, asking the Court to bar Sammarco from presenting evidence or argument on various issues. (Adv. No. 13-1332, Docket Nos. 103 & 104.) In the first motion, Dini contended that Sammar-co’s cross-collaterization argument set forth in Count V was already decided by the Court and, thus, may not be litigated again under the doctrine of issue preclusion. (Adv. No. 13-1332, Docket No. 103.) In the second motion, Dini argued that Sammarco improperly seeks denial of Dini’s discharge based on new claims that do not appear in the Complaint: (1) that Dini and the Bank conspired to put NTMS into bankruptcy in order to “steer” a § 363 sale to the Stalking Horse, and (2) that Dini concealed records from which NTMS’s financial condition could be determined, by failing to notify Sammarco of “fraudulent” invoices created at NTMS which masked the poor financial condition of the company. (Adv. No. 13-1332, Docket No. 104.) • Sammarco filed his response to these motions on September 13, 2016, just hours before the trial was to start. (Adv. No. 13-1332, Docket No. 106.) In addition to addressing the substantive arguments in Dini’s motions, Sammarco argued that both motions should be denied “outright” for being untimely and prejudicial. (Id. at 1.) Receiving the response only about an hour before the trial was set to begin, the Court declined to consider the motions and, thus, denied them. (Adv. No. 13-1332, Docket Nos. 109 & 110; Trial Tr. vol. 1, 4:8-5:14.) The Court explained, however, that those denials were without prejudice and that Dini could renew the motions and/or the objections therein either during the trial or at its conclusion. (Trial Tr. vol. 1, 5:15-21.) Counsel for Dini renewed the objections set" }, { "docid": "12726353", "title": "", "text": "Motion to Amend was denied as moot. (Sale Approval Trial Tr., 11:14-17, 15:20-23; Bankr. No. 13-25077, Docket No. 156.) An order authorizing and approving the sale was entered on December 19, 2013. (Bankr. No. 13-25077, Docket No. 160.) Subsequently, NTMS filed a motion to dismiss its bankruptcy case. (Bankr. No. 13-25077, Docket No. 188.) On March 25, 2014, the Court granted that motion, and the case was closed on March 31, 2014. (Bankr. No. 13-25077, Docket Nos. 193 & 195.) Sammarco’s Motion to Dismiss Dini’s Bankruptcy Case Under § 707(b) On February 12, 2014, approximately two months after the Court approved the sale of NTMS’s assets to the Stalking Horse, Dini filed a motion to convert his chapter 11 bankruptcy case to a case under chapter 7. (Bankr. No. 13-25078, Docket No. 62.) According to the motion, Dini was not able to generate enough income to pay both his expenses and his unsecured creditors, and, thus, he did not believe that he could propose a feasible plan. (Id. ¶ 9.) On February 19, 2014, the Court granted the motion and entered an order converting Dini’s case. (Bankr. No. 13-25078, Docket No. 70.) About four months later, on June 4, 2014, Sammarco filed a motion to dismiss Dini’s case pursuant to § 707(b)(3) and requested a one-year bar to filing subsequent bankruptcy cases. (Pl.’s Ex. 63.) In that motion, Sammarco sought dismissal for “abuse,” arguing that Dini had filed his bankruptcy case in bad faith. (Id. ¶ 1.) Because dismissal under § -707(b) is authorized only in cases involving an individual debtor with “primarily consumer debts,” 11 U.S.C. § 707(b)(1), the Court agreed, at Dini’s request, to first consider the threshold issue of whether Dini’s debts are primarily consumer debts. (See Pl.’s Ex. 64 at 1.) Not surprisingly, Sammarco argued that Dini’s debts are primarily consumer debts. (Pl.’s Ex, 63.) After performing what he called a “detailed analysis” of the debts listed in Dini’s bankruptcy schedules and claims, Sammarco alleged that $3,877,310.39 of Dini’s total debts of $4,579,012.05, or nearly 85%, are consumer debts, including the $290,000 that Dini borrowed from" }, { "docid": "6643155", "title": "", "text": "the changed offer. However, the certificates were issued in the form just as the investors were promised, but without any claim at the time that the certificates were meaningless. In effect, Debtors’ argument is that they marketed investments in TIC 0 through a private placement memorandum, investors in turn returned a subscription agreement purporting to purchase a membership interest TIC 0, Debtors issued certificates purporting to grant memberships in TIC 0, but that somehow, in actuality, the investors received memberships in a different entity altogether, TIC Member. It must be concluded that the uncontested documents submitted are enough to show more probably than not that TIC 0 was not authorized by its many members to file for bankruptcy. The burden to rebut the showing of a lack of authority to file then shifted to the putative debtors, a burden which it has not carried because they have not offered to introduce any evidence supporting their position. Laches Debtors arg-ue that the motion is barred by laches because although § 1112(b) contains no express limitations period, “courts exercise their equitable discretion to deny a § 1112(b) motion as untimely.” In re Shea & Gould, 214 B.R. 739, 749 (Bankr.S.D.N.Y.1997). Laches is appropriate when there is (1) delay in the assertion of a claim; (2) the delay is inexcusable; and (3) undue prejudice results from the delay. Geyen v. Marsh, 775 F.2d 1303, 1310 (5th Cir.1985). The delay in filing the Thomas dismissal motion was not inexcusable and did not cause prejudice under the circumstances. Debtors’ cases applying laches involved a 15-month delay, (In re Mirant Corp., 03-46590, 2005 WL 2148362 (Bankr.N.D.Tex. Jan. 26, 2005)), a 19-month delay, (In re Shea & Gould, 214 B.R. at 749), and a twelve-month delay (In re I.D. Craig Serv. Corp., 118 B.R. 335, 337 (Bankr.W.D.Pa.1990)). All of those cases also involved a showing of harm resulting from the delay. In comparison, the six-month delay here was quite short. Thomas filed his motion to dismiss within a month of retaining counsel, and Debtors were not shown to have been prejudiced. Debtors argued that they were subject" }, { "docid": "13677742", "title": "", "text": "lack of standing). Defendant contends Plaintiff lacks standing to seek cancellation of Modernica’s registrations of the NELSON and GEORGE NELSON marks with the U.S. Patent and Trademark Office because Plaintiff does not have any pecuniary interest in the marks. This argument reasserts Defendant’s arguments for abandonment. Plaintiff has standing to seek cancellation of the marks for the same reasons it has a protectable interest in the marks, as discussed above. 2. Laches “Defendant’s proof in its lach-es defense must show that plaintiff had knowledge of defendant’s use of its marks, that plaintiff inexcusably delayed in taking action with respect thereto, and that defendant will be prejudiced by permitting plaintiff inequitably to assert its rights at this time.” Lehman, 625 F.2d at 1040. While “actual knowledge is usually required to prove laches, a defendant may be barred when the plaintiffs conduct has been open and no adequate justification for ignorance is offered.” Grotrian, Helfferich, Schulz, Th. Steinweg Nachf. v. Steinway & Sons, 365 F.Supp. 707, 718 (S.D.N.Y.1973) (entering judgment for the defendant after a bench trial) aff'd 523 F.2d 1331 (2d Cir.1975). Since the Lan-ham Act does not specify a limitations period, the Second Circuit looks to the analogous six-year limitation on claims under the fraud statute to impose a time limit on trademark infringement claims. Conopco, Inc. v. Campbell Soup Co., 95 F.3d 187, 191 (2d Cir.1996) (affirming judgment on partial findings for the defendant). A defendant must show the delay caused prejudice by demonstrating the “defendant has changed his position in a way that would not have occurred if the plaintiff had not delayed.” Id. at 192. Laches is an affirmative defense and is generally not available on a motion to dismiss. Lennon v. Seaman, 63 F.Supp.2d 428, 439 (S.D.N.Y.1999) (denying a motion to dismiss on laches). “However, in certain circumstances, when the defense of laches is clear on the face of the complaint, and where it is clear that the plaintiff can prove no set of facts to avoid the insuperable bar, a court may consider the defense on a motion to dismiss.” Id. (finding disputed issues of" }, { "docid": "12726385", "title": "", "text": "accurate to the best of his knowledge at the time they were made. In that regard, Dini- testified that his focus at NTMS was on sales and that he had no practical experience in accounting, bookkeeping, or finance. Accordingly, he relied on others the NTMS controller, his attorneys, and the Bank employees with whom he did business when he needed financial information, including the figures alleged to be business debt in connection with the 707(b) motion to dismiss. (Trial Tr. vol. 1, 109:25-110:21; Trial Tr. vol. 2, 152:16-156:20). The record does not support a finding that Dini knowingly made false statements in order to gain some advantage with respect to that motion, and, in any event, his statements had no impact on the ultimate outcome of the matter. For the reasons discussed above, the Court simply cannot find that Dini’s statements regarding the Creel debt were false for purposes of § 727(a)(4)(A). As such, the remaining elements under that statutory provision need not be addressed. The Court finds that Sammarco has not satisfied his burden under § 727(a)(4)(A), and, thus, Dini’s discharge will not be denied thereunder. All that remains now is Sammarco’s § 707(a) motion to dismiss Dini’s bankruptcy case and bar him from re-filing for three years. (Bankr. No. 13-25078, Docket No. 191.) Dini has already filed a “preliminary response” in which he argues that the motion should be denied under the equitable doctrine of laches. {See Bankr. No. 13-25078, Docket Ño. 192.) Dini is directed to file a “final” response by January 6, 2017. Sammarco is directed to file a reply by February 3, 2017. A status hearing on the motion is set for February 9, 2017 at 10:00 a.m. before the undersigned in Courtroom 615. Because a discharge cannot be entered while a motion to dismiss under § 707 is pending, Fed. R. Bankr. P. 4004(c)(1)(D), the Clerk is directed to delay the entry of discharge in Dini’s bankruptcy case until further notice. CONCLUSION For the foregoing reasons, the Court finds that Sammarco has failed to meet his burden to establish the elements required under §§" }, { "docid": "1574773", "title": "", "text": "to utilize § 522(f) to avoid a judicial lien is not dependent upon the debtor receiving a discharge .... ”). Collateral Estoppel Inapplicable to Issues Between Identical Parties 20. Mclnnis contends that the Second Avoidance Motion should also be barred by the doctrine of collateral estoppel, or issue preclusion, which “is a subset of the res judicata genre.” In re Microsoft Corp. Antitrust Litigation, 355 F.3d 322, 326 (4th Cir.2004). “Applying collateral estoppel ‘forecloses the relitigation of issues of fact or law that are identical to issues which have been actually determined and necessarily decided in prior litigation in which the party against whom [collateral estoppel] is asserted had a full and fair opportunity to litigate.-”’ Id. (quoting Sedlack v. Braswell Servs. Group, Inc., 134 F.3d 219, 224 (4th Cir.1998) (internal quotation marks and citations omitted)). Collateral estoppel thus applies when an identical issue was determined in a prior litigation between the party against whom collateral estoppel is asserted and a different party from the one asserting collateral estoppel in the subsequent litiga tion. The Debtors and Mclnnis were both parties to the First Avoidance Motion and the Second Avoidance Motion; therefore, the doctrine of collateral estoppel is misplaced, and any issue preclusion between them is encompassed by claim preclusion. Doctrine of Laches Rarely Prohibits § 522 Avoidance Motions 21. The court already determined that the.Second Avoidance Motion is barred by the doctrine of res judicata and need not consider whether the Second Avoidance Motion is also barred by the doctrine of laches, which “is an equitable defense that a creditor may raise to bar the requested relief of a debtor upon a showing that the debtor was guilty of unreasonable delay which prejudiced the creditor.” Male, 362 B.R. at 242 (citing Saucier v. Quantum Varde Asset Fund, LLC (In re Saucier), 353 B.R. 383, 386 (Bankr.D.Conn.2006); Webb v. Boroughs (In re Webb), 48 B.R. 454, 458 (Bankr. E.D.Va.1985)). Without ruling on this issue, the court notes that exemption rights are liberally construed in favor of debtors, and “[pjassage of time in itself does not constitute prejudice.” Id. (quoting In" } ]

[ { "docid": "14563695", "title": "", "text": "Clean Water Act, the determinative issue is whether section 404 “require[sj” disputes to be “determined on the record after opportunity for an agency hearing.” Buttrey claims that it does, and the government claims that it does not. We agree with the government. Section 404 seems relatively simple. It says, quite plainly, that the Corps of Engineers “may issue permits, after notice and opportunity for public hearings for the discharge of dredged or fill material into the navigable waters at specified disposal sites.” 33 U.S.C. § 1344(a) (Supp. IV 1980). Buttrey argues that “public hearings” means the trial-type hearing provided for in the APA. There are, however, many different kinds of “hearing,” and resolution of the issue must turn on “the substantive nature of the hearing Congress intended to provide.” Seacost Anti-Pollution League v. Costle, 572 F.2d 872, 876 (1st Cir.), cert. denied, 439 U.S. 824, 99 S.Ct. 94, 58 L.Ed.2d 117 (1978) (footnote omitted). Three other circuits have construed virtually identical language in section 402 of the Clean Water Act, 33 U.S.C. § 1342(a)(1) (1976) (“after opportunity for public hearing”), to require a trial-type hearing. Seacoast, supra; Marathon Oil Co. v. Environmental Protection Agency, 564 F.2d 1253 (9th Cir. 1977); United States Steel Corp. v. Train, 556 F.2d 822 (7th Cir. 1977). The question, then, is whether section 402 can be distinguished from section 404, despite the similarity of language and despite the fact that both sections are part of the same statutory scheme. We begin with the observation that none of the three opinions construing section 402 held that the phrase found in both sections — “after opportunity for public hearing[s]” — was so clear that there was no need to look behind it for other indications of congressional intent. See Costle v. Pacific Legal Foundation, 445 U.S. 198, 218, 100 S.Ct. 1095, 1107, 63 L.Ed.2d 329 (1980) (commenting that statute’s “opportunity for public hearing” requirement is “rather amorphous”). It is, moreover, very possible “for a term to have different meanings, even in the same statute.” Environmental Defense Fund, Inc. v. Costle, 631 F.2d 922, 927 (D.C.Cir.1980) (footnote omitted)," } ]

[ { "docid": "19808385", "title": "", "text": "“very possible ‘for a term to have different meanings even in the same statute.’ ” Id. at 1175, quoting Environ mental Defense Fund, Inc., v. Costle, 631 F.2d 922, 927 (D.C.Cir.1980), cert. denied, 449 U.S. 1112, 101 S.Ct. 923, 66 L.Ed.2d 841 (1981). After examining the CWA’s legislative history, which stressed the need for simplified permit procedures, Buttrey concluded that whatever procedures section 402 may mandate, section 404 requires only an informal hearing. Id. at 1175-76. That informal hearing is only a “speech-making hearing” at which “proponents and opponents of the project are allowed to be heard.” Id. at 1176, quoting Taylor v. District Engineer, 567 F.2d 1332, 1338 (5th Cir.1978). The scope of such a hearing is suggested by the Army’s regulations: Public hearing means a public proceeding conducted for the purpose of acquiring information or evidence which will be considered in evaluating a proposed Department of the Army permit action, or Federal project, and which affords to the public the opportunity to present their views, opinions, and information on such permit actions or Federal projects. Buttrey, 690 F.2d at 1176, quoting 33 C.F.R. § 327.3(a). In sum, the plaintiffs had no right under section 404 of the CWA to a formal adjudicatory hearing on the merits of the permit application. However, this Court’s determination that section 404 in conjunction with the APA requires only an informal, rather than a formal or trial-type, adjudicatory proceeding does not completely dispose of National Wildlife’s claim. Section 404 provides for “public hearings”; the Army’s regulations provide that there be an opportunity for “meaningful comments.” 33 C.F.R. § 325.-3(a). Even in an informal adjudicatory setting, if the public is not apprised of the rationale behind a proposed decision, or if the public is informed of the rationale only after the close of the comment and hearing period, then the agency cannot be said to have provided a realistic opportunity for public hearings or meaningful comments. The requirements that an agency ... provide initial notices of proposed action, .,. disclose internal reports, and ... state its reasons for acting as it did, all rest" }, { "docid": "23673693", "title": "", "text": "denied the request. The Administrator’s final decision followed the technical panel’s recommendations and, with the additional information submitted, reversed the Regional Administrator’s decision, finding that PSCO had met its burden under § 316. It is this decision that petitioners have brought before us for review. Applicability of the Administrative Procedure Act Petitioners assert that the proceedings by which the EPA decided this case contravened certain provisions of the APA governing adjudicatory hearings, 5 U.S.C. §§ 554, 556, and 557. Respondents answer that the APA does not apply to proceedings held pursuant to § 316 or § 402 of the FWPCA, 33 U.S.C. §§ 1326, 1342. The dispute centers on the meaning of the introductory phrases of § 554(a) of the APA: “This section applies ... in every case of adjudication required' by statute to be determined on the record after opportunity for an agency hearing . . .” Both § 316(a) and § 402(a)(1) of the FWPCA provide for public hearings, but neither states that the hearing must be “on the record”. We are now the third court of appeals to face this issue. The Ninth Circuit and the Seventh Circuit have each found that the APA does apply to proceedings pursuant to § 402. Marathon Oil Co. v. EPA, 564 F.2d 1253 (9th Cir. 1977); United States Steel Corp. v. Train, 556 F.2d 822 (7th Cir. 1977). We agree. At the outset we reject the position of intervenor PSCO that the precise words “on the record” must be used to trigger the APA. The Supreme Court has clearly rejected such an extreme reading even in the context of rule making under § 553 of the APA. See United States v. Florida East Coast Ry. Co., 410 U.S. 224, 245, 93 S.Ct. 810, 35 L.Ed.2d 223 (1973); United States v. Allegheny-Ludlum Steel Corp., 406 U.S. 742, 757, 92 S.Ct. 1941, 32 L.Ed.2d 453 (1972). Rather, we think that the resolution of this issue turns on the substantive nature of the hearing Congress intended to provide. We begin with the nature of the decision at issue. The EPA Administrator must make" }, { "docid": "14563694", "title": "", "text": "denied. II. WHAT KIND OF HEARING? Buttrey’s claim that he was wrongfully denied a full trial-type hearing is both statutory and constitutional. The statutory claim is based on a reading of the Administrative Procedure Act, 5 U.S.C. § 554(a) (1976), together with section 404(a) of what is now called the Clean Water Act, 33 U.S.C. § 1344(a) (Supp. IV 1980). The constitutional claim is based on the due process clause. Because the statutory argument is the more straightforward, we shall address it first. A. The Administrative Procedure Act. The formal trial-type hearing procedures that Buttrey wants are set out in sections 7 and 8 of the Administrative Procedure Act, 5 U.S.C. §§ 556-557 (1976), and are triggered by language at the beginning of section 5: “This section applies ... in every case of adjudication required by statute to be determined on the record after opportunity for an agency hearing . .. . ” 5 U.S.C. § 554(a) (1976). Since in the present case the Corps has acted under the authority of section 404 of the Clean Water Act, the determinative issue is whether section 404 “require[sj” disputes to be “determined on the record after opportunity for an agency hearing.” Buttrey claims that it does, and the government claims that it does not. We agree with the government. Section 404 seems relatively simple. It says, quite plainly, that the Corps of Engineers “may issue permits, after notice and opportunity for public hearings for the discharge of dredged or fill material into the navigable waters at specified disposal sites.” 33 U.S.C. § 1344(a) (Supp. IV 1980). Buttrey argues that “public hearings” means the trial-type hearing provided for in the APA. There are, however, many different kinds of “hearing,” and resolution of the issue must turn on “the substantive nature of the hearing Congress intended to provide.” Seacost Anti-Pollution League v. Costle, 572 F.2d 872, 876 (1st Cir.), cert. denied, 439 U.S. 824, 99 S.Ct. 94, 58 L.Ed.2d 117 (1978) (footnote omitted). Three other circuits have construed virtually identical language in section 402 of the Clean Water Act, 33 U.S.C. § 1342(a)(1) (1976)" }, { "docid": "19808386", "title": "", "text": "Federal projects. Buttrey, 690 F.2d at 1176, quoting 33 C.F.R. § 327.3(a). In sum, the plaintiffs had no right under section 404 of the CWA to a formal adjudicatory hearing on the merits of the permit application. However, this Court’s determination that section 404 in conjunction with the APA requires only an informal, rather than a formal or trial-type, adjudicatory proceeding does not completely dispose of National Wildlife’s claim. Section 404 provides for “public hearings”; the Army’s regulations provide that there be an opportunity for “meaningful comments.” 33 C.F.R. § 325.-3(a). Even in an informal adjudicatory setting, if the public is not apprised of the rationale behind a proposed decision, or if the public is informed of the rationale only after the close of the comment and hearing period, then the agency cannot be said to have provided a realistic opportunity for public hearings or meaningful comments. The requirements that an agency ... provide initial notices of proposed action, .,. disclose internal reports, and ... state its reasons for acting as it did, all rest on the fundamental proposition that the right to comment or the opportunity to be heard on questions relating to the public interest is of little or no significance when one is not apprised of the issues and positions to which argument is relevant. Only when the public is adequately informed can there be any exchange of views and any real dialogue as to the final decision. And without such dialogue any notion of real public participation is necessarily an illusion. U.S. Lines v. Federal Maritime Commission, 584 F.2d 519, 540 (D.C.Cir.1978) (footnotes omitted). In U.S. Lines, because the rationale for the agency’s decision in an informal adjudicatory process was not disclosed to the public prior to the close of the comment and hearing period, the proceeding was remanded to the agency. See Portland Cement Association v. Ruckelshaus, 486 F.2d 375, 392-93, 393 n. 67 (D.C.Cir.1973), cert. denied, 417 U.S. 921, 94 S.Ct. 2628, 41 L.Ed.2d 226 (1974). Based on U.S. Lines, this Court holds that even in the informal adjudicatory process under section 404 of" }, { "docid": "809305", "title": "", "text": "adjudicatory hearings, id. at 1336-37, and that the Corps procedures “easily satisfy the requirements of due process.” Id. at 1338. Accord, Joseph G. Moretti, Inc. v. Hoffman, 526 F.2d 1311 (5th Cir. 1976). Moreover, it is clear from decisions in cases involving statutes other than the Rivers and Harbors Act that the APA does not require formal, trial-type hearings in all adjudications. See United States v. Independent Bulk Transport, Inc., 480 F.Supp. 474, 478-79 (S.D.N.Y.1979), and the cases cited therein. Nevertheless, the plaintiff argues that a formal adjudicatory hearing was required in the instant case, because the permit program under which it applied is governed by section 1344 (the Federal Water Pollution Control Act permit provision) as well as by section 403, and because courts have held another section of the Federal Water Pollution Control Act to require formal adjudicatory hearings. The cases the plaintiff cites are Seacoast Anti-Pollution League v. Costle, 572 F.2d 872 (1st Cir.), cert. denied, 439 U.S. 824, 99 S.Ct. 94, 58 L.Ed.2d 117 (1978); Marathon Oil Co. v. Environmental Protection Agency, 564 F.2d 1253 (9th Cir. 1977); and United States Steel Corp. v. Train, 556 F.2d 822 (7th Cir. 1977), all of which con cerned section 402 of the Federal Water Pollution Control Act, 33 U.S.C. § 1342, which established a national pollutant discharge elimination system. The starting point for ascertaining whether a certain type of adjudication is “required by statute to be determined on the record after opportunity for an agency hearing” — and thus is governed by the procedural requirements of the APA for formal, trial-type hearings — is the statute that provides for the adjudication. See, e. g., Marathon Oil Co. v. Environmental Protection Agency, supra, 564 F.2d at 1262-63. As is noted above, here there are two statutes, section 403 and section 1344. Section 403 does not mention any type of hearing, but simply forbids, inter alia, the building of structures or filling or excavating in the navigable waters of the United States “unless the work has been recommended by the Chief of Engineers and authorized by the Secretary of the" }, { "docid": "19808383", "title": "", "text": "7 and 8 of the APA, 5 U.S.C. §§ 556-57. Under section 5(a), 5 U.S.C. § 554(a), the formal procedures of sections 7 and 8 are applicable to any “adjudication required by statute to be determined on the record after an opportunity for agency hearing.” Thus, the determination of whether section 404 of the CWA mandates a formal, trial-type hearing, hinges on the question of whether its language, “after notice and opportunity for public hearing,” constitutes a statute requiring an “adjudication ... to be determined on the record after an opportunity for agency hearing” under section 5(a) of the APA. The Court is empowered to make this determination by virtue of section 10(e)(2)(D) of the APA, 5 U.S.C. § 706(2)(D), which states that a reviewing court shall set aside agency findings found to be “without observance of procedure required by law.” In support of its argument that section 404 requires a formal hearing, National Wildlife analogizes section 404 to section 402 of the CWA, 42 U.S.C. § 1342, which governs the issuance of permits by the Environmental Protection Agency for the discharge of pollutants. Three circuit courts have , held that the language in section 402, “opportunity for public hearing,” — language virtually identical to that of section 404 — requires a formal adjudicatory hearing. See Seacoast Anti-Pollution League v. Costle, 572 F.2d 872 (1st Cir.), cert. denied, 439 U.S. 824, 99 S.Ct. 94, 58 L.Ed.2d 117 (1978); Marathon Oil Co. v. Environmental Protection Agency, 564 F.2d 1253 (9th Cir. 1977); United States Steel Corp. v. Train, 556 F.2d 822 (7th Cir.1977). The plaintiffs want the same sort of adjudicatory hearing to apply to the permit sought under section 404. The Court, however, agrees with the Secretary, that the plaintiffs are entitled to no more than an informal adjudicatory hearing. Recently the Fifth Circuit in Buttrey v. United States, 690 F.2d 1170 (5th Cir. 1982), cert. denied,-U.S.-, 103 S.Ct. 2087, 77 L.Ed.2d 298 (1983), decided that section 404 requires nothing more. Though aware of the similarity in language between sections 402 and 404, the court pointed out that it is" }, { "docid": "809306", "title": "", "text": "Agency, 564 F.2d 1253 (9th Cir. 1977); and United States Steel Corp. v. Train, 556 F.2d 822 (7th Cir. 1977), all of which con cerned section 402 of the Federal Water Pollution Control Act, 33 U.S.C. § 1342, which established a national pollutant discharge elimination system. The starting point for ascertaining whether a certain type of adjudication is “required by statute to be determined on the record after opportunity for an agency hearing” — and thus is governed by the procedural requirements of the APA for formal, trial-type hearings — is the statute that provides for the adjudication. See, e. g., Marathon Oil Co. v. Environmental Protection Agency, supra, 564 F.2d at 1262-63. As is noted above, here there are two statutes, section 403 and section 1344. Section 403 does not mention any type of hearing, but simply forbids, inter alia, the building of structures or filling or excavating in the navigable waters of the United States “unless the work has been recommended by the Chief of Engineers and authorized by the Secretary of the Army.” Section 1344, on the other hand, states that permits for the discharge of dredged or fill material may be issued “after notice and opportunity for public hearings.” Although this language does not specify what kind of hearing is contemplated and does not track the language of the APA, it is similar to the language of section 1342, which provides that the Administrator of the Environmental Protection Agency (“EPA”) may issue permits for the discharge of pollutants, on certain conditions, “after opportunity for public hearing.” And, as has been noted, courts have held that formal adjudicatory hearings are required for section 1342 permits. In so holding, however, those courts found the language of the statute unclear and thus looked beyond it to find other indications of “the substantive nature of the hearing Congress intended to provide.” Seacoast Anti-Pollution League v. Costle, supra, 572 F.2d at 876. When one looks beyond the words “opportunity for public hearings,” one finds many differences between the permit program envisioned for section 1344 and that contemplated for section 1342. The" }, { "docid": "9389982", "title": "", "text": "file entry documents. See 19 C.F.R. § 142.13(a)(1) (1981). Accordingly, we hold that the present case is not moot. III. The plaintiffs contend that customs brokers such as Gallagher and Alltransport have a right to a full adjudicatory hearing under the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 556, 557 (1976), before their term special permits can be suspended under the authority of the applicable customs regulation. 19 C.F.R. § 142.7(a) (1976). We hold that customs brokers are not entitled to an adjudicatory hearing under the APA prior to the suspension of their term special permits and that the additional procedural requirements contained in 5 U.S.C. § 558(c) (1976), were satisfied in the instant ease. The APA provides that the formal adjudicatory procedures described in sections 556 and 557 must be followed “in every case of adjudication required by statute to be determined on the record after opportunity for an agency hearing . . . . ” 5 U.S.C. § 554(a) (1976). The APA, as many courts have recognized, does not itself mandate that a trial-type hearing be held where none is required under the administrative agency’s own governing statute; the APA simply dictates the procedures to be followed when another statute provides for a hearing. Colorado v. Veterans Administration, 602 F.2d 926, 928 (10th Cir. 1979), cert. denied, 444 U.S. 1014, 100 S.Ct. 663, 62 L.Ed.2d 643 (1980); Sisselman v. Smith, 432 F.2d 750, 754 (3d Cir. 1970). Thus, if the governing statute does not require that a hearing be conducted in connection with a particular agency action, sections 556 and 557 do not come into play. Illinois v. Nuclear Regulatory Commission, 591 F.2d 12, 14 (7th Cir. 1979); Taylor v. District Engineer, U. S. Army Corps of Engineers, 567 F.2d 1332, 1336 (5th Cir. 1978); Briscoe v. Levi, 535 F.2d 1259, 1265 n.28 (D.C.Cir.1976), vacated and remanded, 432 U.S. 404, 97 S.Ct. 2428, 53 L.Ed.2d 439 (1977); Reed v. Morton, 480 F.2d 634, 643 (9th Cir.), cert. denied, 414 U.S. 1064, 94 S.Ct. 571, 38 L.Ed.2d 469 (1973). In the instant case, the regulation authorizing the District Director" }, { "docid": "23513084", "title": "", "text": "the record” requirement of APA Section 554, according to the City has been relevant primarily in cases involving rulemaking, not adjudication, eg., United States v. Allegheny-Ludlum Steel Corp., 406 U.S. 742, 92 S.Ct. 1941, 32 L.Ed.2d 453; United States v. Florida East Coast Ry., 410 U.S. 224, 93 S.Ct. 810, 35 L.Ed.2d 223; in adjudication, the City claims the absence of the “on the record” requirement is not decisive. For example, Section 402 of the Federal Water Pollution Control Act (FWPCA), 33 U.S.C. § 1342(a)(1), which provides for a “public hearing,” has been held by three courts including this one to require a formal hearing pursuant to Section 554. Seacoast Anti-Pollution League v. Costle, 572 F.2d 872 (1st Cir.), certiorari denied sub nom. Public Serv. Co. v. Seacoast Anti-Pollution League, 439 U.S. 824, 99 S.Ct. 94, 58 L.Ed.2d 117 (1978); Marathon Oil Co. v. EPA, 564 F.2d 1253 (9th Cir.1977); United States Steel Corp. v. Train, 556 F.2d 822 (7th Cir.1977). The First Circuit relied principally on the adjudicative nature of the decision at issue — issuance of a permit to allow discharge of a pollutant — finding that primarily the rights of the particular applicant would be affected, and that resolution of the issues required specific factual findings by the EPA Administrator. Seacoast Anti-Pollution League v. Costle, supra at 876. The court also mentioned the judicial review provision of Section 509 of the FWPCA, which provides for review of a determination required under the FWPCA to be made “on the record.” Id. at 876 n. 6. The Ninth Circuit in Marathon Oil Co. v. EPA, 564 F.2d 1253, relied principally on the judicial review provision, id. at 1263, though it also found that the “setting of effluent limitations under section 402 of the [Federal Water Pollution] Control Act * * falls squarely within the mainstream of tra ditional adjudications,” id. This Court in United States Steel Corp. v. Train, 556 F.2d 822, relied principally on the judicial review provision of Section 509, but also found that Section 558(c) of the APA mandated a formal hearing independently of Section 554." }, { "docid": "7540868", "title": "", "text": "controversy at hand. Before the EPA either issues an NPDES permit or authorizes a thermal variance, it must offer an “opportunity for public hearing.” 33 U.S.C. §§ 1326(a), 1342(a). No definition of “public hearing” is contained within the four corners of the CWA. The Administrative Procedure Act (APA), 5 U.S.C. § 551 et seq., is also part of the relevant legal landscape. Most pertinent here are those sections that combine to describe the procedures for formal administrative adjudications. See id. §§ 554, 556, 557.. These procedures apply “in every case of adjudication required by statute to be determined on the record after opportunity for an agency hearing.” Id. § 554(a). The APA does not directly address whether these procedures apply when a statute simply calls for an “opportunity for public hearing” without any specific indication that the hearing should be “on the record.” In Seacoast, this court interpreted “public hearing” (as used in sections 402(a) and 316(a) of the CWA) to mean “evidentiary hearing” — in other words, a hearing that comports with the APA’s requirements for a formal adjudication. 572 F.2d at 878. Examining the legislative history of the APA, we adopted a presumption that “unless a statute otherwise specifies, an adjudicatory hearing subject to judicial review must be [an evidentiary hearing] on the record.” Id. at 877. Applying that presumption to the CWA, we concluded that “the statute certainly does not indicate that the determination need not be on the record.” Id. at 878 (emphasis in original). So viewed, Seacoast established a rebut-table presumption that, in the context of an adjudication, an organic statute that calls for a “public hearing” should be read to require an evidentiary hearing in compliance with the formal adjudication provisions of the APA. Two other circuit courts reached the same conclusion, albeit through different reasoning. See Marathon Oil Co. v. EPA, 564 F.2d 1253, 1264 (9th Cir.1977); U.S. Steel Corp. v. Train, 556 F.2d 822, 833-34 (7th Cir.1977). Acquiescing in this construction, the EPA promulgated regulations that memorialized the use of formal evidentiary hearings in the NPDES permit process. See NPDES; Revision of" }, { "docid": "23513078", "title": "", "text": "dictate the type of hearing to which a party is entitled; rather it triggers the formal hearing provisions of Sections 556 and 557 of the APA if the adjudication in question is required by the agency’s governing statute to be “determined on the record after opportunity for an agency hearing * * United States v. Allegheny-Ludlum Steel Corp., 406 U.S. 742, 757, 92 S.Ct. 1941, 1950, 32 L.Ed.2d 453. The City argues that Section 189(a) of the AEA triggers the formal hearing provisions of the APA because it provides that the “Commission shall grant a hearing upon the request of any person whose interest may be affected by the proceeding, and shall admit any such person as a party to such proceeding.” See supra note 2. Although Section 554 specifies that the governing statute must satisfy the “on the record” requirement, those three magic words need not appear for a court to determine that formal hearings are required. See, e.g., Seacoast Anti-Pollution League v. Costle, 572 F.2d 872, 876 (1st Cir.), certiorari denied sub nom. Public Serv. Co. v. Seacoast Anti-Pollution League, 439 U.S. 824, 99 S.Ct. 94, 58 L.Ed.2d 117 (1978); Marathon Oil Co. v. EPA, 564 F.2d 1253, 1263 (9th Cir.1977). However, even the City agrees that in the absence of these magic words (Br. at 24), Congress must clearly indicate its intent to trigger the formal, on-the-record hearing provisions of the APA. United States Lines v. FMC, 584 F.2d 519, 536 (D.C.Cir.1978); Nofelco Realty Corp. v. United States, 521 F.Supp. 458, 461-462 (S.D.N.Y.1981); see also United States v. Florida East Coast Ry., 410 U.S. 224, 234-238, 93 S.Ct. 810, 815-18, 35 L.Ed.2d 223; United States v. AlleghenyLudlum Steel Corp., 406 U.S. 742, 756-758, 92 S.Ct. 1941, 1950, 32 L.Ed.2d 453. We find no such clear intention in the legislative history of the AEA, and therefore conclude that formal hearings are not statutorily required for amendments to materials licenses. The parties agree that the legislative history of the 1954 AEA sheds little light on the hearing requirement of the first sentence of Section 189(a). City Br. at 18;" }, { "docid": "22796693", "title": "", "text": "record.” The phrase “on the record” appears in § 80b-3 (f), and while it does not appear in § 80a-9 (b), see n. 1, supra, the absence of the specific phrase from § 80a-9 (b)' does not make the instant proceeding not subject to § 554. See United States v. Florida East Coast R. Co., 410 U. S. 224, 238 (1973); United States v. Allegheny-Ludlum Steel Corp., 406 U. S. 742, 757 (1972); Seacoast Anti-Pollution League v. Costle, 572 F. 2d 872, 876 (CA1), cert. denied, 439 U. S. 824 (1978). Rather, the “on the record” requirement for § 80a-9 (b) is satisfied by the substantive content of the adjudication. Title 15 U. S. C. § 80a-42 provides for judicial review of Commission orders issued pursuant to § 80a-9 (b). Substantial-evidence review by the Court of Appeals here required a hearing on the record. See Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U. S. 402, 415 (1971); Seacoast Anti-Pollution League v. Costle, 572 F. 2d, at 877. Otherwise effective review by the Court of Appeals would have been frustrated. Ibid. In addition, the substantive violations to be proved pursuant to §§ 80a-9 (b) (l)-(3) are virtually identical to the substantive violations stated in §§ 80b-3 (e) (1), (4), and (5), which are incorporated by reference into § 80b-3 (f). The only substantive difference between § 80b-3 (f) and § 80a-9 (b) is that the former permits the Commission to impose sanctions on persons affiliated with an investment adviser and the latter on persons affiliated with an investment company. In both statutes, the Commission is required to prove violations of the securities law provisions enumerated, precisely the type of proceeding for which the APA’s adjudicatory procedures were intended. See generally 410 U. S., at 246. Section 5 (b), 5 U. S. C. § 554 (c)(2), provides that “[t]he agency shall give all interested parties opportunity for . . . hearing and decision on notice and in accordance with sections 556 and 557 of this title.” Petitioner makes no claim that the Federal Constitution requires application of a clear-and-convincing-evidence standard." }, { "docid": "9389989", "title": "", "text": "these statements from the legislative history, we hold that section 558(c) does not itself create a right to a full adjudicatory hearing before a license may be suspended or revoked, but simply imposes separate procedural requirements in addition to those procedures that may otherwise be required under section 554(a) of the APA. These separate procedural requirements afford a licensee faced with the revocation or suspension of its license an opportunity for a “second chance,” George Steinberg and Son, Inc. v. Butz, 491 F.2d 988, 993-94 (2d Cir.), cert. denied, 419 U.S. 830, 95 S.Ct. 53, 42 L.Ed.2d 55 (1974), or an opportunity to put its house in lawful order before more formal agency proceedings are undertaken, Blackwell College of Business v. Attorney General, 454 F.2d 928, 933-34 (D.C.Cir.1971). Whether a formal adjudicatory hearing is required under the APA in connection with an agency decision to revoke or suspend a license, however, continues to depend on whether the decision is “required by statute to be determined on the record after opportunity for an agency hearing . . . . ” 5 U.S.C. § 554(a) (1976). In support of their argument that section 558(c) entitles customs brokers to an adjudi- catory hearing prior to the suspension of their term special permits, the plaintiffs also invoke this court’s decision in United States Steel Corp. v. Train, 556 F.2d 822 (7th Cir. 1977). The issue in that case was whether the Environmental Protection Agency’s decision to grant a permit to discharge pollutants was subject to the procedural requirements of sections 556 and 557 of the APA. We held on two alternative grounds that an adjudicatory hearing was in fact required. First, we concluded that the substantive statute, the Federal Water Pollution Control Act, 33 U.S.C. § 1342(a)(1) (1976), in providing an “opportunity for public hearing,” triggered sections 554, 556 and 557. Second, we found an independent basis for the right to a full adjudicatory hearing located in section 558(c). Our complete discussion of section 558(c) follows: Sections 556 and 557 are applicable for another reason: § 558(c) of the APA provides, independently of §" }, { "docid": "19808384", "title": "", "text": "the Environmental Protection Agency for the discharge of pollutants. Three circuit courts have , held that the language in section 402, “opportunity for public hearing,” — language virtually identical to that of section 404 — requires a formal adjudicatory hearing. See Seacoast Anti-Pollution League v. Costle, 572 F.2d 872 (1st Cir.), cert. denied, 439 U.S. 824, 99 S.Ct. 94, 58 L.Ed.2d 117 (1978); Marathon Oil Co. v. Environmental Protection Agency, 564 F.2d 1253 (9th Cir. 1977); United States Steel Corp. v. Train, 556 F.2d 822 (7th Cir.1977). The plaintiffs want the same sort of adjudicatory hearing to apply to the permit sought under section 404. The Court, however, agrees with the Secretary, that the plaintiffs are entitled to no more than an informal adjudicatory hearing. Recently the Fifth Circuit in Buttrey v. United States, 690 F.2d 1170 (5th Cir. 1982), cert. denied,-U.S.-, 103 S.Ct. 2087, 77 L.Ed.2d 298 (1983), decided that section 404 requires nothing more. Though aware of the similarity in language between sections 402 and 404, the court pointed out that it is “very possible ‘for a term to have different meanings even in the same statute.’ ” Id. at 1175, quoting Environ mental Defense Fund, Inc., v. Costle, 631 F.2d 922, 927 (D.C.Cir.1980), cert. denied, 449 U.S. 1112, 101 S.Ct. 923, 66 L.Ed.2d 841 (1981). After examining the CWA’s legislative history, which stressed the need for simplified permit procedures, Buttrey concluded that whatever procedures section 402 may mandate, section 404 requires only an informal hearing. Id. at 1175-76. That informal hearing is only a “speech-making hearing” at which “proponents and opponents of the project are allowed to be heard.” Id. at 1176, quoting Taylor v. District Engineer, 567 F.2d 1332, 1338 (5th Cir.1978). The scope of such a hearing is suggested by the Army’s regulations: Public hearing means a public proceeding conducted for the purpose of acquiring information or evidence which will be considered in evaluating a proposed Department of the Army permit action, or Federal project, and which affords to the public the opportunity to present their views, opinions, and information on such permit actions or" }, { "docid": "23513085", "title": "", "text": "— issuance of a permit to allow discharge of a pollutant — finding that primarily the rights of the particular applicant would be affected, and that resolution of the issues required specific factual findings by the EPA Administrator. Seacoast Anti-Pollution League v. Costle, supra at 876. The court also mentioned the judicial review provision of Section 509 of the FWPCA, which provides for review of a determination required under the FWPCA to be made “on the record.” Id. at 876 n. 6. The Ninth Circuit in Marathon Oil Co. v. EPA, 564 F.2d 1253, relied principally on the judicial review provision, id. at 1263, though it also found that the “setting of effluent limitations under section 402 of the [Federal Water Pollution] Control Act * * falls squarely within the mainstream of tra ditional adjudications,” id. This Court in United States Steel Corp. v. Train, 556 F.2d 822, relied principally on the judicial review provision of Section 509, but also found that Section 558(c) of the APA mandated a formal hearing independently of Section 554. Section 558(c) provides: [w]hen application is made for a license required by law, the agency, with due regard for the rights and privileges of all the interested parties or adversely affected persons and within a reasonable time, shall set and complete proceedings required to be conducted in accordance with sections 556 and 557 of this title or other proceedings required by law and shall make its decision. This Court held in Train that the FWPCA Section 402 application was a license application proceeding and that the applicant was entitled to a formal hearing under APA Sections 556 and 557. The First, Fifth and Ninth Circuits rejected the Section 558(c) analysis of this Circuit, see Seacoast, 572 F.2d at 878 n. 11 and Marathon Oil, 564 F.2d at 1260-1261 n. 25; see also Taylor v. District Engineer, United States Army Corps of Engineers, 567 F.2d 1332, 1337 (5th Cir.1978). After reconsideration, we have decided herein to abandon our position in Train insofar as we relied on APA Section 558(c) to order a formal hearing. See Gallagher" }, { "docid": "9389990", "title": "", "text": ". . . ” 5 U.S.C. § 554(a) (1976). In support of their argument that section 558(c) entitles customs brokers to an adjudi- catory hearing prior to the suspension of their term special permits, the plaintiffs also invoke this court’s decision in United States Steel Corp. v. Train, 556 F.2d 822 (7th Cir. 1977). The issue in that case was whether the Environmental Protection Agency’s decision to grant a permit to discharge pollutants was subject to the procedural requirements of sections 556 and 557 of the APA. We held on two alternative grounds that an adjudicatory hearing was in fact required. First, we concluded that the substantive statute, the Federal Water Pollution Control Act, 33 U.S.C. § 1342(a)(1) (1976), in providing an “opportunity for public hearing,” triggered sections 554, 556 and 557. Second, we found an independent basis for the right to a full adjudicatory hearing located in section 558(c). Our complete discussion of section 558(c) follows: Sections 556 and 557 are applicable for another reason: § 558(c) of the APA provides, independently of § 554 of that Act, that “[w]hen application is made for a license required by law” the agency shall hold proceedings which shall be “conducted in accordance with sections 556 and 557.” Because this is a license application proceeding, §§ 556 and 557 apply whether or not § 554 does. 556 F.2d at 833-34 (footnote omitted). Since our decision in U. S. Steel, at least three other circuits have expressly rejected its interpretation of section 558(c). Seacoast Anti-Pollution League v. Costle, 572 F.2d 872, 878 n.11 (1st Cir.), cert. denied, 439 U.S. 824, 99 S.Ct. 94, 58 L.Ed.2d 117 (1978); Taylor v. District Engineer, U. S. Army Corps of Engineers, 567 F.2d 1332, 1337 (5th Cir. 1978); Marathon Oil Co. v. Environmental Protection Agency, 564 F.2d 1253, 1260-61 n.25 (9th Cir. 1977); see also Lincoln Transit Co. v. U. S., 256 F.Supp. 990, 994 (S.D.N.Y.1966) (three-judge court); 2 K. Davis, Administrative Law Treatise § 12:10, at 450 (2d ed. 1979). These decisions, which involved license applications, concluded that there is no independent right to an adjudicatory" }, { "docid": "23513083", "title": "", "text": "by statute in reactor licensing cases under the second, third, and fourth sentences of Section 189(a), we do not accept the City’s argument that this by necessity indicates that all hearings under the first sentence must be formal as well (City Br. at 20). While the first sentence of Section 189(a) speaks in terms of “any license or construction permit,” it does so in the context of a statute that distinguishes between the licensing of nuclear materials and reactor facilities. See, e.g., 42 U.S.C. §§ 2071-2078 (licensing of special nuclear material); id. §§ 2091-2099 (licensing of source material); id. §§ 2111-2114 (licensing of byproduct material); id. §§ 2131-2141 (licensing of commercial and test reactor facilities). In this case, we have no difficulty ascribing different meanings to the word “hearing” even though it appears in succeeding sentences of the same statutory section. The City argues that under the APA, agency action is classified either as rule-making or adjudication, and since licensing is adjudication, NRC is obliged to provide a formal hearing in this case. The “on the record” requirement of APA Section 554, according to the City has been relevant primarily in cases involving rulemaking, not adjudication, eg., United States v. Allegheny-Ludlum Steel Corp., 406 U.S. 742, 92 S.Ct. 1941, 32 L.Ed.2d 453; United States v. Florida East Coast Ry., 410 U.S. 224, 93 S.Ct. 810, 35 L.Ed.2d 223; in adjudication, the City claims the absence of the “on the record” requirement is not decisive. For example, Section 402 of the Federal Water Pollution Control Act (FWPCA), 33 U.S.C. § 1342(a)(1), which provides for a “public hearing,” has been held by three courts including this one to require a formal hearing pursuant to Section 554. Seacoast Anti-Pollution League v. Costle, 572 F.2d 872 (1st Cir.), certiorari denied sub nom. Public Serv. Co. v. Seacoast Anti-Pollution League, 439 U.S. 824, 99 S.Ct. 94, 58 L.Ed.2d 117 (1978); Marathon Oil Co. v. EPA, 564 F.2d 1253 (9th Cir.1977); United States Steel Corp. v. Train, 556 F.2d 822 (7th Cir.1977). The First Circuit relied principally on the adjudicative nature of the decision at issue" }, { "docid": "809304", "title": "", "text": "33 C.F.R. § 320.2(g) (1980). The regulations governing the issuance of those permits are found in 33 C.F.R. §§ 325.1 et seq. (1980) and are essentially the same as those for section 403 permits. See 40 C.F.R. § 124.1(a) (1980). The plaintiff has not alleged that the defendants failed to follow the Corps procedures outlined above. Instead, the plaintiff argues that those procedures are inadequate under the standards of the APA and under the due process standard. The plaintiff complains particularly about the failure of the Corps to conduct a formal adjudicatory hearing, as provided for in the APA for adjudications “required by statute to be determined on the record after opportunity for an agency hearing.” 5 U.S.C. § 554(a). The challenged Corps procedures, however, have been upheld, at least in cases involving permits under section 403 (the Rivers and Harbors Act permit provision). For example, the court in Taylor v. District Engineer, 567 F.2d 1332 (5th Cir. 1978), held that the Corps procedures are not governed by the standards of the APA for formal adjudicatory hearings, id. at 1336-37, and that the Corps procedures “easily satisfy the requirements of due process.” Id. at 1338. Accord, Joseph G. Moretti, Inc. v. Hoffman, 526 F.2d 1311 (5th Cir. 1976). Moreover, it is clear from decisions in cases involving statutes other than the Rivers and Harbors Act that the APA does not require formal, trial-type hearings in all adjudications. See United States v. Independent Bulk Transport, Inc., 480 F.Supp. 474, 478-79 (S.D.N.Y.1979), and the cases cited therein. Nevertheless, the plaintiff argues that a formal adjudicatory hearing was required in the instant case, because the permit program under which it applied is governed by section 1344 (the Federal Water Pollution Control Act permit provision) as well as by section 403, and because courts have held another section of the Federal Water Pollution Control Act to require formal adjudicatory hearings. The cases the plaintiff cites are Seacoast Anti-Pollution League v. Costle, 572 F.2d 872 (1st Cir.), cert. denied, 439 U.S. 824, 99 S.Ct. 94, 58 L.Ed.2d 117 (1978); Marathon Oil Co. v. Environmental Protection" }, { "docid": "809307", "title": "", "text": "Army.” Section 1344, on the other hand, states that permits for the discharge of dredged or fill material may be issued “after notice and opportunity for public hearings.” Although this language does not specify what kind of hearing is contemplated and does not track the language of the APA, it is similar to the language of section 1342, which provides that the Administrator of the Environmental Protection Agency (“EPA”) may issue permits for the discharge of pollutants, on certain conditions, “after opportunity for public hearing.” And, as has been noted, courts have held that formal adjudicatory hearings are required for section 1342 permits. In so holding, however, those courts found the language of the statute unclear and thus looked beyond it to find other indications of “the substantive nature of the hearing Congress intended to provide.” Seacoast Anti-Pollution League v. Costle, supra, 572 F.2d at 876. When one looks beyond the words “opportunity for public hearings,” one finds many differences between the permit program envisioned for section 1344 and that contemplated for section 1342. The permit program under section 1344 was entrusted to the Secretary of the Army and the Corps, whereas the section 1342 permit program was to be administered by the EPA. The procedural rules adopted for the section 1344 permit program appear in volume 33 of the Code of Federal Regulations, entitled Navigation and Navigable Waters, whereas those for the section 1342 permit program are in volume 40 of the Code of Federal Regulations, entitled Protection of Environment. Even though the phrase “public hearing[s]” is used in both section 1342 and section 1344, the public hearings of section 1344 have been held to be something very different from a trial-type adjudicatory hearing for the benefit of the applicant. The court in United States v. Alleyne, 454 F.Supp. 1164 (S.D.N.Y.1978), stated that “the notice and hearing provisions of Section 1344 and regulations thereunder are addressed to objectors to a permit application, not to the applicant. Id. at 1172. The court continued: “Thus it is clear that defendant has no statutory interest in, or right to, notice and a" }, { "docid": "9389991", "title": "", "text": "554 of that Act, that “[w]hen application is made for a license required by law” the agency shall hold proceedings which shall be “conducted in accordance with sections 556 and 557.” Because this is a license application proceeding, §§ 556 and 557 apply whether or not § 554 does. 556 F.2d at 833-34 (footnote omitted). Since our decision in U. S. Steel, at least three other circuits have expressly rejected its interpretation of section 558(c). Seacoast Anti-Pollution League v. Costle, 572 F.2d 872, 878 n.11 (1st Cir.), cert. denied, 439 U.S. 824, 99 S.Ct. 94, 58 L.Ed.2d 117 (1978); Taylor v. District Engineer, U. S. Army Corps of Engineers, 567 F.2d 1332, 1337 (5th Cir. 1978); Marathon Oil Co. v. Environmental Protection Agency, 564 F.2d 1253, 1260-61 n.25 (9th Cir. 1977); see also Lincoln Transit Co. v. U. S., 256 F.Supp. 990, 994 (S.D.N.Y.1966) (three-judge court); 2 K. Davis, Administrative Law Treatise § 12:10, at 450 (2d ed. 1979). These decisions, which involved license applications, concluded that there is no independent right to an adjudicatory hearing under section 558(c), relying on the APA legislative history, portions of which we have already set forth. Our interpretation of section 558(c) in U. S. Steel may bear reexamination in light of these cited decisions, but we need not undertake such an examination in the instant case. U. S. Steel was a license application case, which is governed by the first sentence of section 558(c), while the instant case involves a license suspension within the ambit of section 558(c)’s second sentence. This distinction is not without substance because the U. S. Steel court reached its conclusion largely on the basis of the reference in the first sentence to section 556-557 procedures. That reference is not repeated in the second sentence dealing with license suspensions and revocations. Thus, we restrict our holding that section 558(c) does not confer an independent right to an adjudicatory hearing to cases falling within the ambit of the second sentence of section 558(c). Reconsideration of our decision in U. S. Steel must wait until another day when a genuine license" } ]

[ { "docid": "7473787", "title": "", "text": "of the electric railway of the defendant railway company. The remainder of the claim was for material furnished and work done in and upon the Ho Lei Victory, which did not belong to the railway company. These facts are not now denied. It follows that, under the statutes of Ohio, cited by Judge SWAN, complainant was entitled to a lien upon the railway only for $861.23. The averment that more than $2,000 in work and material was furnished in the construction of the railway was falsely made, and for the collusive purpose of invoking the equitable jurisdiction of the federal court. The whole object of the bill was to enable Tillotson, a defendant, a citizen of Ohio, to file a cross bill against codefendants named in the bill, citizens of Ohio and other states, and thus obtain in the federal court an adjudication of a controversy ordinarily cognizable only in the state courts. It was clearly a case where the jurisdiction of the federal court had been collusively sought. This appeared at the hearing upon the motion to continue the injunction, and should have led the circuit court to dissolve the injunction. It is said that the jurisdictional question involved ought to have been regularly raised upon the record, by plea or otherwise. We are not concerned with that question of procedure here. The issue before the circuit court, •was whether an order enjoining the defendants from selling certain bonds should be continued pending the trial of issues raised upon bill and answer and cross bill and answer. The circuit court wasc made to know that its equitable jurisdiction had been collusively and improperly invoked. It then became its duty not to continue the injunction. This is the sole ground upon which I vote for a reversal of the order appealed from. I do not see how the question of the preliminaries necessary to the issue ex parte of an injunction has any place in this discussion. The order appealed from was one continuing an injunction. ' The appellant and Carrol,hers, the only two defendants against whom the injunction had" } ]

[ { "docid": "22752845", "title": "", "text": "a suit originally brought in that court, upon the ground that the suit was one arising under the Constitution, laws or treaties of the U nited States, unless that appeared in the plaintiff’s statement of his own claim. This was distinctly adjudged, and the reasons clearly stated, in Metcalf v. Watertown, 128 U. S. 586, 589, in which Mr. Justice Harlan, after pointing out that the cases, in which it had been held sufficient that the Federal question upon which the case depended was first presented by the answer or plea of the defendant, were cases of removal,.in which, therefore, the requisite of jurisdiction appeared on the record at the time when the jurisdiction of the Circuit Court of the United, States attached, said: “Where, however, the original jurisdiction of a Circuit Court of the United States is invoked upon the sole ground that the .determination! of the suit depends upon some question of a Federal nature, it must appear, at the outset, from the declaration or the bill of the party suing, that the suit is of that character; in other words, it must appear, in that class of 'cases, that the suit was one of which the Circuit Court, at the time its jurisdiction is invoked, could properly take cognizance. If it does not so appear, then the court, upon demurrer or motion, or upon its own inspection of the pleading, must dismiss the suit; just as it would remand to the state court á suit which the record, at the time of removal, failed to show was within the jurisdiction of the Circuit Court. It’cannot retain it in order to see whether the defendant may not raise some question of a Federal nature upon which the right of recovery will finally depend; and if so retained, the want of jurisdiction, at the commencement of the suit, is not cured by an answer or plea which may suggest a question of that kind.” That .view has been affirmed and acted on at the present term in Colorado Co. v. Turck, 150 U. S. 138, 143. The same rule" }, { "docid": "20075560", "title": "", "text": "PICARD, District Judge. Hearing on motion to dismiss plaintiff’s action and on order to show cause why preliminary injunction should not issue. Upon filing of the complaint an ex parte order issued restraining defendants (and requiring them to show cause why a preliminary injunction should not issue enjoining them) from continuing with pending State Bar proceedings against plaintiff. Defendants, appearing specially, moved for dismissal on five points: 1. The court herein has no jurisdiction over the subject matter of plaintiff’s alleged cause of action; 2. Plaintiff’s suit herein is not within the jurisdiction of the court; 3. The court herein has no power to grant the, or any of the, relief prayed for in plaintiff’s complaint; 4. The court herein has no jurisdiction over defendants or any of them; and 5. Plaintiff has failed to state a claim upon which relief can be granted. Because of the natural interest of Michigan’s bench and bar and developed attention of the public in the above matter, this court believes that in rendering this opinion we should clarify the scope of issues involved in clear, precise and direct language, particularly since we find that in this case there has been somewhat of a general tendency to read some things into opinions of several courts which are not there. It is believed further that because the result interprets some phases of the relationship existing between the highest court of Michigan and the federal court, it becomes important to review the powers of a federal court concerning the questions at hand. At the outset we desire to stress this important fact: We do not, in this opinion, decide whether plaintiff, Harold H. Emmons, was or was not guilty of unethical practices as a lawyer. The inquiry before us is simply: Has this court jurisdiction to try the issues presented by the pleadings which at this point consists of a complaint, a motion to dismiss, certain affidavits and exhibits and a motion to expunge those affidavits and exhibits from the record? No other question is before us. If we do have jurisdiction then the motion to" }, { "docid": "22162759", "title": "", "text": "liability also was properly brought in the federal district court. The situation then being that one statute afforded the right to a common law remedy, and another the right to seek a limitation of liability, we said that a case was presented for the exercise of the sound discretion of the district court whether to dissolve the restraining order and permit the state court to proceed, or to retain complete jurisdiction; and, upon consideration of the matter, we held that such discretion should have been exercised so as to permit the state court to proceed. But we .also said that the district court, as a matter of precaution, should retain the petition for a limitation of liability “ to be dealt with in the possible but (since it must be assumed that respondent’s motion was not an idle gesture but was made with full appreciation of the state court’s entire lack of admiralty jurisdiction) the unlikely event that the right of petitioner to a limited liability might be brought into question in the state court, or the case otherwise assume such form in that court as to bring it within the exclusive power of a court of admiralty.” As authority for that disposition of the matter we cited The Lotta,, 150 Fed. 219, where Judge Brawley, dealing with a similar situation, had taken that course. We quoted from his opinion, among other things, the following (p. 223): “All that the petitioner can fairly claim is that he’ should not be subject to a personal judgment for an indefinite amount and beyond the value of his interest in the Lotta and her freight. ... if it should hereafter appear in the course of the proceedings in the state court that a question is raised as to the right of petitioner to a limited liability, this court has exclusive cognizance of such a question . . . and the decision upon the question of the injunction is predicated upon the assumption that that question is not involved in the suit in the state court, and that the only questions to be decided" }, { "docid": "22991440", "title": "", "text": "It is evident that ' the statement^! the Assistant Secretary, October 4,1889, was quite correct, that “the business of the legation [of Guatemala], was conducted by Consul General Baiz, but without diplomatic character.” Jt is objected that we ought not to have allowed these official papers to come before us, but. should have prohibited .the District Court from exercising jurisdiction, because the evidence that established it had not all been before that court when the question was raised; but the rule governing this clafes of cases involves no such consequences. The district .judge was of opinion that inasmuch as there were two kinds of direct evidence which would show that the defendant was a ■“ public minister,” to wit: (1) A certificate of the Secretary of State that he was such, was received as such and was exercising such functions; or (2) pi’oof of the exercise by the :defendant of “the principal diplomatic functions,”' under, some one off the titles of diplomatic' office, as recognized by oui* statutes and the law of nations; and as such direct evidence had not been furnished, and the plaintiff was not required to produce his counter evidence on a motion like .that under consideration instead of at the trial, he was justified in retaining jurisdiction until the issue raised by the pleadings was regularly determined. But to this latter suggestion, counsel for petitioner answered in argument:. “ At any rate, in this court, exercising its appropriate jurisdiction to entertain an application for a writ of prohibition or mandamus, the respondent here is called upon to produce any evidence that exists to countervail the petitioner’s proof of his privilege.” This is undoubtedly the correct view. The question here is whether the District Court had jurisdiction, and not whether its order refusing to set aside the service of summons and the subsequent proceedings' in the action, and dismissing the same, should be reversed.. ; The practice in prohibition was formerly to file a suggestion, an affidavit in support of which was. required where the pro-' hibition was moved for upon anything not appearing upon the facé" }, { "docid": "21349459", "title": "", "text": "If separate and unrelated non-federal controversies are joined in the same complaint, they should not be removed, or, if removed, should be remanded. Where the federal question is basic, not merely collateral, and where the dispute as to the validity or construction of the federal law is real and substantial, not feigned, the federal courts in exercising their original or removal jurisdiction will decide all issues necessary for decision, whether they be local or federal; but the rule does not go so far as to permit a federal court to assume jurisdiction of a separate and distinct cause of action because it is joined in the same controversy with one involving a federal question. In order to sustain the jurisdiction of the United States District Court on the ground of a federal question in a case removed thereto from a state court, it is not sufficient for the question to be raised in the answer of the defendant or in the petition for removal. The federal question must clearly appear on the face of the declaration or complaint as an essential and integral part of the plaintiff’s statement of his own case, not in anticipation of a defense that may be interposed by an adversary party. A federal question merely incidental or collateral to the main controversy is not the basis of the suit and is not enough to deprive the state court of jurisdiction upon petition for removal by the defendant. When we apply these principles to the alleged federal immunity from foreclosure that is the origin of the violated right for which damages are sought in one of the tort claims here asserted, we do not find on the face of the complaint the elements of federal removal jurisdiction. The bill of complaint filed by the appellant in the Chancery Court of Adams County contains several distinct claims or causes of action, in only one of which is there any suggestion that a federal question may be raised either by way of a defense or otherwise. It is impossible to tell from the allegations of the complaint what" }, { "docid": "23267182", "title": "", "text": "appeared clearly that the Pendleton pasture, which the plaintiff sought to recover against all the defendants, was of a value much in e-Ncess of the jurisdictional amount. There was not a word of evidence reflecting upon the plaintiff’s good faith in bringing the action, in joining the defendants, or in framing his petition. He doubtless preferred to try his controversy in the Federal courts, and whatever the motive of his preference may have been, he had the right to act upon it. Blair v. Chicago, 201 U. S. 400; Chicago v. Mills, decided February 4, this term, ante, p. 321. Therefore the validity of the order qf dismissal must be considered, after an elimination of the finding that the plaintiff’s claim was fraudulently made. The plaintiff’s claim, which we now assume to have been made in good faith, was that the defendants, acting together, took and held from him land of the value of' $5,000, and at the same time inflicted damages upon him of $2,000. Upon any possible theory of law this claim states the plaintiff’s side of a controversy, which is unquestionably within the jurisdiction of the Circuit .Court. 'When it is duly put in issue by the defendants’ pleadings - the record upon its face discloses a controversy between citizens of different States, in which “the matter in dispute exceeds two thousand dollars in value,” and, therefore, one which is within-the exact words of the act conferring jurisdiction upon that court. It is legally possible for the plaintiff to recover the full amount of all the land and the full amount of the damages claimed. We know of no case that holds that in such a situation the judge of - the Circuit Court is authorized to interpose and try a sufficient part of the controversy between the parties to satisfy, himself that 'the plaintiff ought to recover less than the jurisdictional amount, and to conclude, therefore, that the real controversy between the parties is concerning a subject of less than the jurisdictional value, and we think that by sound■ principle he is forbidden to do so." }, { "docid": "22065919", "title": "", "text": "■ Mb. Justice HablaN, after stating the case, delivered the opinion of the court. It is unnecessary to decide whether the Circuit Court erre in overruling the plea of former adjudication, or in rendering the decree appealed from; for we are of opinion that the motion.to dismiss the suit, as one not really involving a con troversy within its jurisdiction, should have been sustained'. It is provided'by the fifth section of the act of March 3, 1875, (18 Stat. 472,) determining the jurisdiction of the Circuit Courts of the United States, that if in any suit commenced in one of. such courts “it shall appear to the satisfaction of said Circuit Court, at any time after such suit has been brought or removed thereto, that such suit does not really and substantially involve a dispute or controversy properly within the jurisdiction of said Circuit Court, or that the parties to said suit have been improperly or collusively made or joined, either as plaintiffs or defendants, for the purpose of creating a case cognizable or removable under this act, the said Circuit Court shall proceed no further therein, but shall dismiss the suit or remand it to the court from which it was removed, as justice may require* and shall make-such order as to costs as shall be just.” The case presents no question of a Federal nature, and the jurisdiction of the .Circuit Court v?as invoked solely upon thé ground that the plaintiff was a citizen of Tennessee, and the defendants citizens of Alabama. But if the plaintiff, who was a citizen of. Alabama when the suit in the state court was determined, had not become, in fact, a citizen of Tennessee when the present suit was instituted, then, clearly, the controversy between him and the defendants was not one of which the'.Circuit Court could properly take cognizance; in which case, it became the duty of that court to dismiss it. It is true that, by the words of the statute, this duty arose only when it appeared to the satisfaction of the court that the suit was not one" }, { "docid": "22996156", "title": "", "text": "only for the collusive purposé aforesaid. Prior to the passage of the act of 1875,' such a question could only be raised by a plea in abatement in the nature of a plea to the jurisdiction; but the fifth section of that act provided that if “ it shall appear to the satisfaction of said Circuit Court at any time after such suit has been brought that such suit does not really and substantially involve a dispute or controversy properly within the jurisdiction of said Circuit Court, or that the parties to said suit have been improperly or collusively made or joined, either as plaintiffs or defendants, for the purpose of creating a case cognizable under this act, the sajd Circuit Court shall proceed no further therein, but shall dismiss the suit ; but its order dismissing the cause shall be -rev viewable by the Supreme. Court on writ of error or appeal, as1 the case, may be.” 18 Stat. 472. The application here was made more than a year and a half after the second trial, and although the petitioner avers that he “ did not have knowledge of the above facts before the trial of this cause,” we remark in passing that such an objection ought tp be raised at the first opportunity, and delay in its presentation should be consid ered in examining into the grounds upon which it is alleged to . rest. The issue of fact raised upon this petition was tried by the Circuit Court without a jury, and the application denied. No question of law was reserved by the defendant. during the hearing, but he entered an exception to the final order, and now asks us to hold that it was the duty of the Circuit-Court to dismiss the case' because collusively brought. We do not care to enter upon a discussion as to how far in an action at law, where there are no special findings upon, an issue of .fact such as this, a party has the right to demand a' review of. the final order of the Circuit Court on" }, { "docid": "22788942", "title": "", "text": "exercise its summary jurisdiction. And as the proceeding is in the nature of an attachment for a contempt, the respondent ought to be permitted to purge himself by his oath. “ If he clear himself'by his answers,” says Justice Blackstone, “the complaint is totally dismissed.” All, then, that we are concerned 'to ascertain and decide on this motion is, whether the respondent retains the money in his hands in bad faith, and is therefore guilty of any such misconduct as will justify the court in interposing its authority in a summary way. Upon a consideration of the facts disclosed by the answer and affidavits, the result to which the court has come, in relation to the money retained by the respondent, is, that he has not been guilty of any misconduct which calls for the exercise of summary jurisdiction. We see no reason to suppose that he is not acting in good faith; and whether his claim to the entire amount be valid or not — (a point which we are not called- upon to decide) — it is clear thgt the claim is honestly made. The case is one in which the parties should be left to the usual remedy at law, where the questions of law and fact which are mooted-between them can be more satisfactorily settled than they can be in a summary proceeding. A good deal has been said in the argument on the question whether the respondent has, or has not, a lien on the moneys in his hands. We do not think that the decision of this motiqn depends alone on that question. For, even if he has n,ot a Lien coextensive with the sum received, yet if he has a fair and honest set-off, which ought in equity to be allowed by the complainant, that fact has a material bearing on the implied charge of misconduct which underlies the motion for an order to pay over the money. And when, as in this ease, there exists a technical barrier to prevent the respondent from instituting an action against his client (for it is" }, { "docid": "13907424", "title": "", "text": "a civil action in which any party, by assignment or otherwise, has been improperly or collusively made or joined to invoke the jurisdiction of such court.” “Section 1359 is designed to prevent the litigation of claims in federal court by suitors who by sham, pretense, or other fiction acquire a spurious status that would allow them to invoke the limited jurisdiction of the federal courts.” Nolan v. Boeing Co., 919 F.2d 1058, 1067 (5th Cir.1990). Its purpose is “to prevent the manipulation of jurisdictional facts where none existed before.” Id. And it has generally been restricted to circumstances involving assignment of interests from non-diverse to diverse parties to collusively create diversity jurisdiction. See, e.g., Kramer v. Caribbean Mills, Inc., 394 U.S. 823, 89 S.Ct. 1487, 23 L.Ed.2d 9 (1969). Because Plaintiffs did not aver that Defendants had manufactured Dead Sea’s status as a foreign sovereign or their claims for contribution or indemnity against Dead Sea, the district court was not persuaded that any jurisdictional facts had been collu-sively manipulated in contravention of § 1359. We believe that the district court was correct in holding that § 1359 was not applicable. On appeal, Plaintiffs do not appear to challenge the district court’s § 1359 analysis. Rather, they question the district court’s reliance on that statute as opposed to an analysis predicated on the fraudulent joinder doctrine. As we previously noted, the district court declined to apply that doctrine because it perceptively realized that fraudulent joinder is normally reserved for cases where a third party is alleged to have been joined to defeat diversity jurisdiction as a basis for removal. Accordingly, we are wary of recognizing the applicability of that judicially constructed doctrine in a new context. Moreover, whether we ought to apply the fraudulent joinder doctrine to situations where a third-party, foreign sovereign is alleged to have been joined willingly and cooperatively to create jurisdiction as a basis for removal is complicated by the doctrine’s intersection with Congress’s paramount desire that a foreign sovereign have access to a federal forum to ensure uniformity in procedure and substance. See, e.g., Nolan, 919" }, { "docid": "14285368", "title": "", "text": "the allegation that the defendant was a citizen of Kentucky except the belief of the attorney for the plaintiff. As stated, we have serious doubts as to whether a record of this character could be sustained in face of a direct jurisdictional attack. We need not come to a decision in this respect, however, and only discuss it in the beginning for the purpose of showing that plaintiff’s premise of good jurisdictional averments is somewhat insecure. Whether this premise be sound or otherwise, we now come to the more important question as to whether the court was duty bound to consider the jurisdictional question raised by the amended answer sought to be filed, or by the motion to dismiss supported by affidavit showing no diversity of citizenship. Defendant relies, of course, upon Section 5 of the Act of March 3, 1875, 28 U.S.C.A. § 80, and the decisions of the courts construing it. The pertinent language of the act provides: “If * * * it shall appear to the satisfaction of the said district court, at any time after such suit has been brought * * *, that such suit does not really and substantially involve a dispute or controversy properly within the jurisdiction of said district court, or that the parties to said suit have been improperly or collusively made or joined, either as plaintiffs or defendants, for the purpose of creating a case cognizable * * under this chapter, the said district court shall proceed no further therein, but shall dismiss the suit * * In McNutt v. General Motors Acceptance Corp, 298 U.S. 178, 56 S.Ct. 780, 80 L.Ed. 1135, the court made an extensive analysis of this provision, including a review of previous authorities. We do not regard the case as determinative of the question before us for the reason that the court was there dealing with a situation where the defendant had denied the jurisdictional averments. The case was reversed, the court holding that the burden was upon the plaintiff to prove its jurisdictional averments, which it had failed to do. In discussing the general" }, { "docid": "17150928", "title": "", "text": "The Yosemite Valley Case, previously discussed. We have found but one case in the Federal courts, Mumford v. Rock Springs Grazing Ass’n, 8 Cir., 261 F. 842 (1919), wherein injunctive relief against interference with grazing privileges upon the public domain was sought. There the plaintiffs alleged that the defendants were interfering with the plaintiffs’ right of access to the public domain for grazing, and sought to restrain the defendants by injunction. The court held that the plaintiffs’ proofs did not support their allegations, and accordingly denied the injunction. The opinion, however, assumes the existence of equity jurisdiction, and the court said therein: “A different situation would be presented, here, if the record disclosed appellant and others similarly situated in a position where it was necessary to drive sheep, in the control of those in charge, over the lands of the appellee to reach the government lands, that a demand had been made upon the appellee for a reasonable way, and that appellee had failed or refused to designate such reasonable ways; such refusal being accompanied by proof of threats preventing appellant and others similarly situated from designating and using such a reasonable way.” [261 F. at page 849] These state and Federal cases also do not, we think, determine the question whether the appellants’ rights are such as a court of equity has jurisdiction to protect. We recognize that the rights under the Taylor Grazing Act do not fall within the conventional category of vested rights in property. Yet, whether they be called rights, privileges, or bare licenses, or by whatever name, while they exist they are something of real value to the possessors and something which have their source in an enactment of the Congress. The jurisdiction of equity is flexible and should not be confined to rigid categories so that the granting of an injunction will depend upon nomenclature rather than upon substance. Pomeroy emphasizes this flexibility in stating the basis for equitable relief by injunction : “Wherever a right exists or is created, by contract, by the ownership of property or otherwise, cognizable by law, a violation" }, { "docid": "22065923", "title": "", "text": "upon the Circuit Court the duty of dismissing a suit, if it appears at any time after it is brought and before it is finally disposed of, that it does not really and substantially involve a controversy of which it may properly take cognizance. Williams v. Nottawa, 104 U. S. 209, 211; Farmington v. Pillsbury, 114 U. S. 138, 143; Little v. Giles, 118 U. S. 596, 602. And the statute does not prescribe any particular mode in which such fact may be brought to the attention of the court. It may be dong by affidavits, or the depositions taken in the cause may be used for that purpose. However done, it should be upon due notice to the parties to be affected by -the dismissal. It is contended that the defendant precluded himself from raising the question of jurisdiction, by inviting the action of the court upon his plea of former adjudication, and by waiting until the court had ruled that plea to be insufficient in law. In support of this position Hartog v. Memory, 116 U. S. 588, is cited.. We have already seen that this court must, upon its own motion, guard against any invasion of the jurisdiction of the Circuit Court of the United States as defined bi\" law, where the want of jurisdiction appears from the record brought here on appeal or writ of error. ■ At the present term it was held that whether the Circuit Court has or has not jurisdiction is a question which this court must examine and determine, even if the parties forbear to make it or consent that the case be considered upon its merits. Metcalf v. Watertown, 128 U. S. 586. Nor does the case of Hartog v. Memory sustain the position taken by the defendant; for it was there said that “ if, from any source, the court is led to suspect that its jurisdiction has been imposed, upon by the collusion of the parties or in any other way, it may at once, of its own motion, cause the necessary inquiry to be made, either by" }, { "docid": "23281441", "title": "", "text": "and the constitutional questions as having been eliminated when it refused to order up the record for review, that conclusion is sustained by its express declaration made in refusing the writ of error that there was no question under the state, or Federal Constitution involved, — a conclusion which if it had not been in so many words declared would, by necessary implication have resulted from the dismissal of the writ of error for want of jurisdiction since under the constitution and laws of Ohio if a question under the Constitution of the United States or the state constitution had existed, the duty to take jurisdiction would have been obvious. But assuming that we are not controlled by the statement of the Supreme Court of Ohio on this subject and must determine it upon our own conception as to what was done by the court whose judgment is under review, the result would be the same. We so conclude because looked at from the point of view of the action of the trial court and of the Court of Appeals, the case presents the single question of what principle is to be applied where from an absence of an opinion expressed by the court below it is impossible to say whether its judgment was rested upon state questions adequate to sustain it independent of the federal questions or upon such federal questions, both being in the case. But the rule which controls such a situation has long prevailed and was clearly expressed in Allen v. Arguimbau, 198 U. S. 149, 154-155, where a writ of error to the Supreme Court of Florida was dismissed, as follows: “The Supreme Court of Florida gave no opinion, and, therefore, we are left to conjecture as to the grounds on which the pleas were held to be bad, but if the judgment rested on two grounds, one involving a Federal question and the other not, or if it does not appear on which of two grounds the judgment was based, and the ground independent of a Federal question is sufficient in itself to sustain" }, { "docid": "22244903", "title": "", "text": "were made for the benefit of the corporation. (3) Whether the requested injunction should issue. The Court answers the first two of these questions in the affirmative, and will direct present counsel for plaintiff to terminate their representation of plaintiff in this case and to refrain from aiding, consulting or advising new counsel retained by plaintiff, except to the limited extent reasonably necessary to the transfer of their duties to new counsel. The request for an injunction will be denied. One preliminary matter remains. In its opposition to Brown’s motion, Hutton has not questioned the Court’s power to grant any of the relief Brown seeks, although it has defended the motion vigorously on the merits. Similarly, in arguing to the Court that the relief he seeks should be granted, Brown has done no more than cite and discuss previous decisions in which courts have granted motions to disqualify. The Court has given very careful consideration to the question of its power to grant relief, particularly against the New York attorneys. The reported decisions are far from satisfactory. Courts asked to entertain motions to disqualify invariably have not considered whether an order of disqualification would be enforceable. This apparently is a question which is left unresolved pending subsequent enforcement proceedings. Upon reflection, this Court believes the better course to be to resolve this issue now, and will conclude this preface by discussing its power to grant the relief sought by Brown. Following the discussion of jurisdiction, in the central portion of this necessarily extended memorandum opinion, the events which occurred at the SEC and bankruptcy hearings will be found as facts, as a predicate for finding the ultimate fact of representation. The remainder of the opinion will be devoted to a discussion of the issues raised by the parties’ respective legal positions. In making its findings of fact, the Court has relied primarily on the transcripts of the two hearings at which Brown appeared and the undisputed facts set out in the pleadings and affidavits filed by the parties. Where the parties have disagreed, except as is otherwise manifest, the Court" }, { "docid": "22406475", "title": "", "text": "petition for a writ of habeas corpus making the necessary allegations would quickly reveal whether the Supreme Court of Missouri flagrantly disregarded a law of Missouri older than the State itself, let alone a right sanctioned by the Constitution of the United States. Petitioner is now represented by able and devoted counsel who would quickly enough bring to light any such disregard. Certainly we ought not to attribute illegality to the Supreme Court of Missouri when the assumption of obedience to its own traditions lies so readily on the surface of this record. The petition should be dismissed for want of jurisdiction. Mr. Justice Roberts joins in this opinion. “The rules which govern the action of this court in cases of this sort are well settled. Where it appears by the record that the judgment of the State court might have been based either upon a law which would raise a question of repugnancy to the Constitution, laws, or treaties of the United States, or upon some other independent ground; and it appears that the court did, in fact, base its judgment on such independent ground, and not on the law raising the Federal question, this court will not take jurisdiction of the case, even though it might think the position of the State court an unsound one. But where it does not appear on which of the two grounds the judgment was based, then, if the independent ground on which it might have been based was a good and valid one, sufficient of itself to sustain the judgment, this court will not assume jurisdiction of the case; but if such independent ground was not a good and valid one, it will be presumed that the State court based its judgment on the law raising the Federal question, and this court will then take jurisdiction.” Klinger v. Missouri, 13 Wall. 257, 263. These settled principles were very recently again summarized in a per curiam opinion in Southwestern Bell Tel. Co. v. Oklahoma, 303 U. S. 206, 212-213: “We have repeatedly held that it is essential to the jurisdiction of this" }, { "docid": "22996155", "title": "", "text": "averment must be taken as true under the practice in the courts of record in Nebraska. Neb. Code Civ. Proc. §§ 134, 135; Comp. Stat. 1885, p. 645. Clearly, where the jurisdictional allegation is not traversed, no question involving the capacity of the parties in the cause to litigate in the Circuit Court can be raised before the jury, Railroad Co. v. Quigley, 21 How. 202, 214; or treated as within the issues they might be impanelled tó determine: The Circuit Court properly proceeded to judgment, although the special verdict contained no finding upon this point. After the case had been twice tried on its merits, and stood on the special verdict upon motions by the parties'for judgment in their favor respectively, the defendant assailed the jurisdiction of the court by petition, upon the ground that the. title had been placed in the plaintiff collusively and with -the view of enabling suit to be brought in the United States Court, when in fact the plaintiff did not own the property and had accepted, the title only for the collusive purposé aforesaid. Prior to the passage of the act of 1875,' such a question could only be raised by a plea in abatement in the nature of a plea to the jurisdiction; but the fifth section of that act provided that if “ it shall appear to the satisfaction of said Circuit Court at any time after such suit has been brought that such suit does not really and substantially involve a dispute or controversy properly within the jurisdiction of said Circuit Court, or that the parties to said suit have been improperly or collusively made or joined, either as plaintiffs or defendants, for the purpose of creating a case cognizable under this act, the sajd Circuit Court shall proceed no further therein, but shall dismiss the suit ; but its order dismissing the cause shall be -rev viewable by the Supreme. Court on writ of error or appeal, as1 the case, may be.” 18 Stat. 472. The application here was made more than a year and a half after the" }, { "docid": "15008854", "title": "", "text": "supporting reasons have been advanced by courts holding the majority view on this question. Among them are that: (1) plaintiff should not be allowed, by an indirect route, to sue a co-citizen under diversity jurisdiction when he is not permitted to sue that party directly: (2) the majority rule prevents collusion between plaintiff and defendant to obtain federal jurisdiction over a party who would otherwise not be within the court’s reach; (3) the rule which generally does not require diversity as between plaintiff and third-party defendant proceeds on the assumption that the plaintiff is seeking no relief against the third-party defendant; and (4) federal dockets are so overcrowded that the federal courts should not reach out for state law based litigation, [footnote citations omitted]. 512 F.2d 890, 893. In Revere Copper and Brass, Inc. v. Aetna Casualty & Surety Co., 426 F.2d 709 (5th Cir. 1970), this Court dealt with a related but distinctly different situation than that presented by the instant case. There the Court considered the necessity of an independent ground of federal jurisdiction to support a third-party defendant’s claim against the plaintiff and held that no such independent ground was required. Acknowledging the dissimilarity between the Revere situation and the one sub judice, the Court noted: Suffice it to say that the two situations are the converse of each other only superficially and that there are differences which militate against identical treatment. First of all, the plaintiff has the option of selecting the forum where he believes he can most effectively assert his claims, he has not been involuntarily brought to a forum, faced with the prospect of defending himself as best he can under the rules that forum provides, or defending himself not at all. Since a plaintiff could not initially join a non-diverse defendant, it is arguable he should not be allowed to do so indirectly by way of a fortuitous impleader. Moreover, there is the possibility, whether real or fanciful, of collusion between the plaintiff and an overly cooperative defendant impleading just the right third party. Whatever the merit or demerit of these reasons," }, { "docid": "7473786", "title": "", "text": "by the master of the times and places of examination, and to be permitted to appear and submit testimony, and cross-examine the witnesses produced by the receiver. The compensation of the receiver should be borne by Tillotson, at whose instance he was appointed, and would seem to be recoverable from the obligors of the injunction bond. The decree of the circuit court continuing the injunction is therefore reversed, and a decree will be entered in accordance with this opinion, dismissing the original and cross bills for want of juris- ■ diction, with costs, as herein directed. Note by the Cleric. The circuit judges, regarding the question of the-jurisdiction of tho circuit court as the only point presented by the record necessary to be determined, limit their concurrence in this opinion to what is said on that point. TAFT, Circuit Judge, (concurring.) The order appealed from should be reversed, and the injunction dissolved. But $861.23 of the claim for $2,787.04 set up in the complainant’s bill was for articles furnished and work, done in the construction of the electric railway of the defendant railway company. The remainder of the claim was for material furnished and work done in and upon the Ho Lei Victory, which did not belong to the railway company. These facts are not now denied. It follows that, under the statutes of Ohio, cited by Judge SWAN, complainant was entitled to a lien upon the railway only for $861.23. The averment that more than $2,000 in work and material was furnished in the construction of the railway was falsely made, and for the collusive purpose of invoking the equitable jurisdiction of the federal court. The whole object of the bill was to enable Tillotson, a defendant, a citizen of Ohio, to file a cross bill against codefendants named in the bill, citizens of Ohio and other states, and thus obtain in the federal court an adjudication of a controversy ordinarily cognizable only in the state courts. It was clearly a case where the jurisdiction of the federal court had been collusively sought. This appeared at the hearing upon" }, { "docid": "23231532", "title": "", "text": "less than their face value, and took his note therefor, with an agreement that he should give them one half of what he might recover, and the transferee then brought suit in the Circuit Court of the United States, we held that this was a collusive transfer, and within the provisions of the fifth section of the Act of 1875. The Chief Justice, in delivering the opinion of the court, after showing that the question of colorable transfers' to create a case for the Federal courts was formerly presented for. the most part in writs for the recovery of real property, and could only be raised by plea in abatement; and that if the transfer was shown to be fictitious and colorable such plea would be sustained, added: “ Such was the condition of the law when the Act of 1875 was passed, which allowed suits to be brought by the assignees of promissory notes negotiable by the law merchant, as well as of foreign and domestic bills of exchange, if the necessary citizenship of the parties existed. This opened wide the door for frauds upon the jurisdiction of the court by collusive transfers, so as to make colorable parties and create cases cognizable by the courts of the United States. To protect the courts as well as parties against such frauds upon their jurisdiction, it was made the duty of a court, at any time when it satisfactorily appeared that a suit did not ‘ really and substantially involve a dispute or controversy ’ properly within its jurisdiction, or that the parties ‘ had been improperly or collusively made or joined . . . for the purpose of creating a case cognizable ’ under that act, ‘ to proceed, no further therein,’ but to dismiss the suit, or remand it to the State court from which it had been removed. . . . The old rule established by the decisions, which required all objections to the citizenship of the parties, unless shown on the face of the record, to be taken by plea in abatement before pleading to the" } ]

[ { "docid": "22540479", "title": "", "text": "for Yniguez had raised in response to the mootness suggestion “[t]he possibility that [she] may seek nominal damages,” ibid.; see App. 197-200 (Appellee Yniguez’s Response Regarding Mootness Considerations). At that stage of the litigation, however, Yniguez’s plea for nominal damages was not the possibility the Ninth Circuit imagined. Yniguez’s complaint rested on 42 U. S. C. § 1983. See supra, at 49-50, and n. 3. Although Governor Mofford in her official capacity was the sole defendant against whom the District Court’s February 1990 declaratory judgment ran, see supra, at 55, the Ninth Circuit held the State answerable for the nominal damages Yniguez requested on appeal. See 69 F. 3d, at 948-949 (declaring Yniguez “entitled to nominal damages for prevailing in an action under 42 U. S. C. § 1983” and noting that “[t]he State of Arizona expressly waived its right to assert the Eleventh Amendment as a defense to the award of nominal damages”). We have held, however, that § 1983 actions do not lie against a State. Will v. Michigan Dept. of State Police, 491 U. S. 58, 71 (1989). Thus, the claim for relief the Ninth Circuit found sufficient to overcome mootness was nonexistent. The barrier was not, as the Ninth Circuit supposed, Eleventh Amendment immunity, which the State could waive. The stopper was that § 1983 creates no remedy against a State. Furthermore, under the Ninth Circuit’s ruling on intervention, the State of Arizona was permitted to participate in the appeal, but not as a party. 939 F. 3d, at 738-740. The Court of Appeals never revised that ruling. To recapitulate, in July 1991, two months prior to the Attorney General’s suggestion of mootness, the Court of Appeals rejected the Attorney General’s plea for party status, as representative of the State. Ibid. The Ninth Circuit accorded the Attorney General the “right [under 28 U. S. C. § 2403(b)] to argue the constitutionality of Article XXVIII... contingent upon AOE and Park’s bringing the appeal.” Id., at 740; see supra, at 59. But see Maine v. Taylor, 477 U. S. 131, 136-137 (1986) (State’s § 2403(b) right to urge" } ]

[ { "docid": "13696903", "title": "", "text": "1181 (10th Cir.2002). Because all of the defendants are state officials who were acting in their official capacities, then, the court lacks jurisdiction over plaintiffs’ official capacity claims for damages. Kikumura v. Osagie, 461 F.3d 1269, 1299 (10th Cir.2006); see, e.g., White v. State of Colo., 82 F.3d 364, 366 (10th Cir.1996) (affirming district court’s grant of summary judgment on § 1983 claims asserted against prison officials in their official capacities based on Eleventh Amendment sovereign immunity). To this extent, plaintiffs’ claims are dismissed for lack of jurisdiction. Nonetheless, “the Ex parte Young doctrine enables a plaintiff to circumvent the Eleventh Amendment.” Frazier v. Simmons, 254 F.3d 1247, 1253 (10th Cir.2001). Under this doctrine, a suit against a state official in his official capacity seeking prospective equitable relief is permitted, while a suit requesting retroactive relief is considered to be a suit against the state. Id.; see also Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71 n. 10, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989) (“Of course a state official in his or her official capacity, when sued for injunctive relief, would be a person under § 1983 because official-capacity actions for prospective relief are not treated as actions against the State.”). In determining whether the plaintiffs seek prospective injunctive relief, the court must examine the complaint to see whether it gives “any indication” that plaintiffs might be entitled to prospective injunctive relief. Frazier, 254 F.3d at 1255. The court has examined the request for relief contained in plaintiffs’ complaint, and concludes that it sufficiently indicates that plaintiffs are seeking prospective injunctive relief. Plaintiffs seek “[a] declaratory judgment ... re. the rights to receive the magazines quoted herein, and what constitutes nudity,” and “[finjunctive relief ... that grants [them the right] to receive such magazines as quoted herein ... and an order prohibiting prison officials from unlawful censor-ships, and seizures, based on their controlling policies as they are [interpreting] them now.” Plaintiffs’ complaint contains references to the March 2006 issue of Stuff as well as to the magazines “King, FHM, Vibe, Stuff, GQ, etc.” Liberally construing these" }, { "docid": "11257475", "title": "", "text": "appeal, Rahman raises a plethora of arguments. This court’s review of a grant of summary judgment is de novo. See EEOC v. University of Detroit, 904 F.2d 331, 334 (6th Cir.1990). Summary judgment is proper if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). Although there is no genuine issue of material fact, McGinnis is entitled to judgment as a matter of law in part for reasons other than those stated by the district court. See Foster v. Kassulke, 898 F.2d 1144, 1146 (6th Cir.1990). The district court originally dismissed Rahman’s complaint as frivolous with regards to the Department of Corrections on Eleventh Amendment grounds. Rahman has not appealed this decision. Thus, McGinnis is the only defendant before this court. In his complaint, Rahman did not state in what capacity he sued McGinnis. However, in his reply to McGinnis’s motion for summary judgment, Rahman makes it clear that he intended to sue McGinnis in his individual and official capacities. Under Pelfrey v. Chambers, 43 F.3d 1034, 1038 (6th Cir.), cert. denied, — U.S. -, 115 S.Ct. 2269, 132 L.Ed.2d 273 (1995), Rahman’s response to McGinnis’s motion for summary judgment is sufficient notice to McGinnis that he is being sued in his individual capacity. McGinnis is not subject to suit for monetary damages in his official capacity under § 1983. Will v. Michigan Dep’t of State Police, 491 U.S. 58, 70-71 & n.10, 109 S.Ct. 2304, 2312, 105 L.Ed.2d 45 (1989). It is further noted that Rahman has been transferred from the State Prison of Southern Michigan in Jackson, Michigan. Therefore, because of Rahman’s transfer, his request for injunctive relief is now moot. See Secretary of Labor v. Burger King Corp., 955 F.2d 681, 685 (11th Cir.1992); Cooper v. Sheriff, Lubbock County, 929 F.2d 1078, 1084 (5th Cir.1991) (per curiam). Thus, this case only concerns Rahman’s request for monetary relief against McGinnis in his individual capacity. The prison did not violate" }, { "docid": "8917238", "title": "", "text": "the violation of federal law. Hafer, 502 U.S. at 25, 112 S.Ct. 358; Graham, 473 U.S. at 166, 105 S.Ct. 3099; Monell, 436 U.S. at 690, 98 S.Ct. 2018; Burrell, 307 F.3d at 7. Defendants point to the absence of any such allegation in Count II as fatal to the Plaintiffs claim. Plaintiffs respond by noting Count II demands injunctive relief against Defendants Hoff, Dana, and Whelan, and monetary relief against all individual Defendants. Because the § 1983 claim is directed against neither the University of Maine as a state entity nor the individual Defendants in their official capacities, Burrell, they argue, is inapplicable. Pl.’s Reply Mem. at 4. To the extent the Plaintiffs seek monetary damages, it is against the individual Defendants in their individual capacities, not against the State. In Will v. Michigan Department of State Police, the Supreme Court held: Of course a state official in his or her official capacity, when sued for injunc-tive relief, would be a person under section 1983 because ‘official-capacity actions for prospective relief are not treated as actions against the State.’ 491 U.S. 58, 71 n. 10, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989); see Graham, 473 U.S. at 167 n. 14, 105 S.Ct. 3099; Ex Parte Young, 209 U.S. 123, 159-60, 28 S.Ct. 441, 52 L.Ed. 714 (1908). In O’Neill v. Baker, 210 F.3d 41, 47 (1st Cir.2000), the First Circuit stated, “[a] plaintiff may, subject to a number of caveats, obtain injunctive relief against state officials and also, if she sues the officials in their individual capacities, recover monetary relief from them.” Focusing on the limitation that a demand for injunctive relief against an individual in his official capacity must be “for prospective relief,” Will, 491 U.S. at 71 n. 10, 109 S.Ct. 2304, the Defendants respond that even though a plaintiff may seek to enjoin government action through a § 1983 claim, the remedy the Plaintiffs seek is “prospective in nature” and “not available to remedy past violations.” Def’s Mem. at 2. In the Court’s view, taking the Plaintiffs’ allegations as true, the request for injunctive relief to" }, { "docid": "23280042", "title": "", "text": "his claims against them because they retain both absolute and qualified immunity. The district court did not address this issue, since it determined that Appellant’s constitutional rights were not violated under § 1983. See Martinez v. Mafchir, 35 F.3d 1486, 1490 (10th Cir.1994) (“To reach the question of whether a defendant official is entitled to qualified immunity, a court must first ascertain whether the plaintiff has sufficiently asserted the violation of a constitutional right at all.”). Having found such a violation, however, we now consider Defendants’ immunity claims. Defendants correctly aver that “neither a State nor its officials acting in their official capacities are ‘persons’ under § 1983.” Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989); see also Ruark v. Solano, 928 F.2d 947, 950 (10th Cir.1991). Thus, neither POST, as a governmental entity, nor the individual Defendants, in their official capacities for the State, may be sued for damages under that section. However, as Appellant points out, this does not provide the individual Defendants with absolute immunity. The Supreme Court in Will was careful to note: “Of course a state official in his or her official capacity, when sued for injunctive relief, would be a person under § 1983 because official-capacity actions for prospective relief are not treated as actions against the State.” Will, 491 U.S. 58, 71 n. 10, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989) (citations and quotations omitted). To that end, Appellant’s complaint includes a number of requests for injunctive relief. See Complaint, ApltApp. at 29. The complaint seeks to compel the individual Defendants to: (1) provide him with copies of all information, records, and documents in their possession that pertain to him; (2) cease disseminating any information about Appellant that is not authorized by statute; (3) purge its files of false information not authorized by statute. See id.; see also Reply Br. at 14-15. Thus, the individual Defendants do not retain absolute immunity from Appellant’s requests for injunctive relief. Next, Defendant Groll — POST’s director — claims qualified immunity from Appellant’s suit for damages against" }, { "docid": "16531961", "title": "", "text": "in determining whether an individual meets the essential eligibility requirements). C. Section 1983 claims SRS contends that plaintiffs action against it under § 1983 is subject to dismissal because the state is not a “person” for purposes of section 1983. See Harris v. Champion, 51 F.3d 901, 905-06 (10th Cir.1995) (explaining that a state or state agency is not a person under § 1983 except to the extent that the plaintiff sues for prospective injunctive relief only). Plaintiff counters that because the state has waived its immunity under the Rehabilitation Act, it is deemed a “person” for purposes of § 1983. The court agrees with SRS. The state’s waiver of its Eleventh Amendment immunity in a § 504 action does not transform it into a “person” under § 1983, because the scope of eleventh amendment immunity and the scope of § 1983 are different issues. Will, 491 U.S. at 64-65, 109 S.Ct. 2304. See Bellamy v. Borders, 727 F.Supp. 247 (D.S.C.1989) (finding a state’s waiver of eleventh amendment immunity irrelevant to the issue of whether a state is a person for purposes of § 1983). “A state official in his or her official capacity, when sued for injunctive relief, would be a person under § 1983 because ‘official-capacity actions for prospective relief are not treated as actions against the State.’ ” Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71 n. 10, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989) (quoting Kentucky v. Graham, 473 U.S. 159, 167 n. 14, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985)). Accordingly, the court examines whether plaintiffs claims against the individual defendants in their official capacities, brought pursuant to § 1983, withstand defendant’s motion to dismiss. Medicaid statutes Plaintiff alleges that the Medicaid statute creates a federal right to particular medical equipment which is enforceable under 42 U.S.C. § 1983 and which defendants violated. Specifically, plaintiff contends that the three official defendants “fail[ed] to provide medically necessary durable medical equipment” in violation of the Medicaid statutes stated below. Defendants counter that the alleged violations of the Medicaid statute cannot be enforced by Medicaid" }, { "docid": "16190534", "title": "", "text": "a preliminary and permanent injunction against Defendants from engaging in the unconstitutional actions alleged in the complaint; and a preliminary and permanent injunction against Defendants from applying and enforcing the statutes and protocols in an unconstitutional manner. However, the CPS Defendants have provided no authority to support their request for summary judgment regarding the equitable relief. Accordingly, the Court will deny judgment for Defendants at this time. (8) Eleventh Amendment State Sovereign Immunity; Official Capacity § 1983 Claims — Whether Defendants are Persons The CPS Defendants contend that the principle of state sovereign immunity embodied in the Eleventh Amendment bars jurisdiction over Plaintiffs’ claims for money damages against them in their official capacities. The Eleventh Amendment bars suits against states absent consent or congressional abrogation. Seminole Tribe of Florida v. Florida, 517 U.S. 44, 54-55, 116 S.Ct. 1114, 1122-23, 134 L.Ed.2d 252 (1996). Plaintiffs counter that they seek money damages against the CPS Defendants in their individual, not official, capacities. State sovereign immunity does not bar Plaintiffs’ claims as framed in this manner because they are not claims against the state. Thus, the Court will deny summary judgment for the CPS Defendants based on the Eleventh Amendment. Next, the CPS Defendants contend that they are officers of the State of Michigan and thus not “persons” within the meaning of 42 U.S.C. § 1983 and not subject to suit in their official capacities. See Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 2312, 105 L.Ed.2d 45 (1989) (holding that state officials acting in their official capacities are not “persons” under § 1983). The Court agrees with the CPS Defendants that offi-cial capacity claims against them are barred, but Plaintiffs once again state that they seek money damages against these Defendants only in their individual capacities. For this reason, the Court will deny summary judgment for the CPS Defendants on the individual capacity claims. IV. Conclusion For the reasons stated above, each of the parties’ motions for summary judgment will be granted in part and denied in part. An Order consistent with this Opinion will follow." }, { "docid": "9421428", "title": "", "text": "officials acting in their official capacities are “persons” for purposes of a § 1983 suit seeking monetary damages. Will v. Michigan Department of State Police, 491 U.S. 58, 70-71, 109 S.Ct. 2304, 2311-12, 105 L.Ed.2d 45 (1989). State officials acting-in their official capacity, however, are “persons” for the purposes of § 1983 when sued only for prospective injunctive relief. Of course a state official acting in his or her official capacity, when sued for injunc-tive relief, would be a person under § 1983 because “official-capacity actions for prospective relief are not treated as actions against the State.” Kentucky v. Graham, 473 U.S. at 167 n. 14[, 105 S.Ct. at 3106 n. 14]; Ex Parte Young, 203 [209] U.S. 123, 159—60[, 28 S.Ct. 441, 453-54, 52 L.Ed. 714] (1908). The distinction is “commonplace in sovereign immunity doctrine.” L. Tribe, American Constitutional Law § 3-27, p. 190, n. 3 (2d ed.1988), and would not have been foreign to the 19th-century Congress that enacted § 1983[.] Will, 491 U.S. at 71 n. 10, 109 S.Ct. at 2312 n. 10; see Chaloux, 886 F.2d at 252. In this suit, plaintiffs only seek declaratory and in-junctive relief For this reason, Eleventh Amendment sovereign immunity is not a bar to plaintiffs’ claims for prospective injunctive relief against state officials acting in their official capacities. The state officials with the statutory duty to enforce and administer the allegedly unconstitutional state statute are the proper defendants in a suit for prospective injunctive relief Ex Parte Young, 209 U.S. at 157-61, 28 S.Ct. at 452-54; Chaloux, 886 F.2d at 251-52. The members of the CBBC are authorized to regulate the practices of barbering and cosmetology in the State of California, to issue licenses, to discipline people who violate the Barbering and Cosmetology Act, and to oversee inspections of barbering and cosmetology establishments. Cal. Bus. & Prof.Code § 7312. The California Attorney General has the authority to seek an injunction against any acts or practices in violation of any state law that the director of a state regulatory agency finds may cause harm to consumers. Cal. Bus. & Prof Code" }, { "docid": "23011334", "title": "", "text": "justicia-bility doctrine, see Jacobus, 338 F.3d at 1104, we retain the ability to grant relief in a legally significant way — to wit, ordering the expungement from Flint’s record all evidence of his 2003 censure and the 2004 denial of his ASUM Senate seat. Such expungement is certainly a “ ‘form of meaningful relief.’ ” Dream Palace, 384 F.3d at 1000 (quoting Pattullo, 271 F.3d at 901). If we were to determine that Flint’s First Amendment rights were violated, declaratory relief would require the University to expunge any and all records of Flint’s censure and Senate seat denial; therefore, we hold that Flint’s case is not rendered moot by his graduation. B. Having determined that Flint’s claims are not moot, we now consider whether defendants are entitled to immunity under the Eleventh Amendment. The Eleventh Amendment limits § 1983 claims such as Flint’s. In Will v. Michigan Department of State Police, 491 U.S. 58, 70, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989), the Supreme Court held that “States or governmental entities that are considered ‘arms of the State’ for Eleventh Amendment purposes” are not “persons” under § 1983. Moreover, Will clarified that “a suit against a state official in his or her official capacity .... is no different from a suit against the State itself.” Id. at 71, 109 S.Ct. 2304. We have held that a state university is an arm of the state entitled to Eleventh Amendment immunity. See, e.g., Armstrong v. Meyers, 964 F.2d 948, 949-50 (9th Cir.1992) (per curiam). Therefore, state officials sued in their official capacities, including university officials, are not “persons” within the meaning of § 1983 and are therefore generally entitled to Eleventh Amendment immunity. Will recognized one vital exception to this general rule: When sued for prospective injunctive relief, a state official in his official capacity is considered a “person” for § 1983 purposes. Will, 491 U.S. at 71 n. 10, 109 S.Ct. 2304 (“Of course a state official in his or her official capacity, when sued for injunctive relief, would be a person under § 1983 because ‘official-capacity actions for prospective relief" }, { "docid": "12664525", "title": "", "text": "the Band’s arguments on these motions. The United States agrees that a state officer acting in his official capacity is a statutory person, but argues that the State itself is not a statutory person. It asserts that the issue of whether the Band is a statutory person should not be decided because it is novel and the individual plaintiffs are clearly statutory persons. State officers acting in their official capacities are persons under Section 1983: Of course a state official in his or her official capacity, when sued for injunctive relief, would be a person under § 1983 because “official capacity actions for prospective relief are not treated as actions against the State.” Will v. Michigan Dept. of State Police, 491 U.S. 58, 71, n. 10, 109 S.Ct. 2304, 2312, n. 10, 105 L.Ed.2d 45 (1989) (quoting Kentucky v. Graham, 473 U.S. 159, 167, n. 14, 105 S.Ct. 3099, 3105-06, n. 14, 87 L.Ed.2d 114 (1985)). In this case plaintiffs seek declaratory and injunctive relief against defendants, including Sando, a state official in his official capacity. Under Will he is a person under Section 1983. The Band’s motion for summary judgment on the State’s defense that its officers acting in their official capacities are not persons under Section 1983 should be granted. The parties do not dispute that the State itself is not a statutory person and so this defense may be viable for this party. Quern v. Jordan, 440 U.S. 332, 342-43, 99 S.Ct. 1139, 1146, 59 L.Ed.2d 358 (1979); Will v. Michigan Dept. of State Police, 491 U.S. 58, 66, 109 S.Ct. 2304, 2309-10, 105 L.Ed.2d 45 (1989). The parties also do not dispute that the individual plaintiffs are statutory persons entitled to pursue Section 1983 claims. The State has presented no arguments in support of its defense that the Band is not a statutory person. Labor unions, corporations, and non-profit organizations are all statutory persons. See Metropolitan Life Ins. Co. v. Ward, 470 U.S. 869, 881 n. 9, 105 S.Ct. 1676, 1683 n. 9, 84 L.Ed.2d 751 (1985) (corporation); Allee v. Medrano, 416 U.S. 802, 819 n." }, { "docid": "11014422", "title": "", "text": "(1st Cir.1989). However, because the Magistrate Judge denominated his action as a “Recommendation,” the Court will review it, too, under the more stringent de novo standard. DISCUSSION I. The Motion for Summary Judgment It is well settled that “neither a State nor its officials acting in their official capacities are ‘persons’ amenable to suit for monetary damages under 42 U.S.C. § 1983.” Will v. Michigan, 491 U.S. 58, 71, 109 S.Ct. 2304, 2312, 105 L.Ed.2d 45 (1989) (emphasis added). The immunity thereby conferred on state officials is based on the recognition that “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.” Id. However, even when acting in their official capacities, state officials are not insulated from suit tor declaratory or injunctive relief. Official capacity actions for non-monetary or prospective relief are not treated as suits against the State. Therefore, for purposes of such actions, state officials are deemed “persons.” Id. at 71 n. 10, 109 S.Ct. at 2311-12 n. 10 (citations omitted). By the same token, state officials sued in their individual capacities are considered “persons” regardless of the natdre of the relief sought. State officers sued for damages in their official capacity are not “persons” for purposes of the suit because they assume the identity of the government that employs them. By contrast, officers sued in their personal capacity come to court as individuals. A government official in the role of personal-capacity defendant thus fits comfortably within the statutory term “person.” Hafer v. Melo, — U.S. -, -, 112 S.Ct. 358, 362, 116 L.Ed.2d 301 (1991) (citations omitted). The Charrons concede that their original complaint cannot be construed as asserting a claim against Picaño individually. However, they contend that it should be construed as asserting such a claim against Fraieli. The Court rejects that contention primarily because the Charrons did not specify that they were suing Fraieli individually. The complaint is silent as to whether the claims made against Fraieli were made against him in his official capacity or his" }, { "docid": "13200736", "title": "", "text": "99 S.Ct. 1139, 59 L.Ed.2d 358 (1979) (section 1983 does not override the Eleventh Amendment); cf. Will v. Michigan Dep’t of State Police, 491 U.S. 58, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989) (neither states, nor state agencies, nor state officials acting in their official capacities are “persons” under section 1983). Defendants Mack, Jischke, and Brown are sued in both their individual and official capacities. Suits brought against state officials in their official capacities seeking damages are treated as being no different than a suit against the State itself. Will, 491 U.S. at 71, 109 S.Ct. at 2312. But official-capacity actions seeking prospective, injunctive relief are not treated as actions against the State for purposes of the Eleventh Amendment. Id. at 71 n. 10, 109 S.Ct. at 2312 n. 10; Pennhurst, 465 U.S. at 102-03, 104 S.Ct. at 909. Therefore, plaintiffs claims under Iowa Code chapter 216 and 42 U.S.C. § 1983 against defendants Mack, Jischke, and Brown, in so far as it is brought against them in their official capacities, will be limited to requests for prospective, injunctive relief. Orders IT IS ORDERED that plaintiffs claims under Iowa Code chapter 216 and 42 U.S.C. § 1983 against defendants State of Iowa, Iowa State Board of Regents, and I.S.U. are DISMISSED. IT IS FURTHER ORDERED that to the extent plaintiffs claims under Iowa Code chapter 216 and 42 U.S.C. § 1983 are brought against defendants Mack, Jischke, and Brown in their official capacities, plaintiff is limited to seeking prospective, injunctive relief. . For the 1992-93 fiscal year, the breakdown of I.S.U.’s budget is as follows: A) 37.5% from direct appropriations from the state; B) 13.1% from tuition; C) 20.7% from federal appropriations, grants, and contracts; D) 2.0% from reimbursed indirect costs; E) 1.6% from sales and services; F) 25.0% from donated funds, endowment income, and auxiliary activities (residence halls, athletic events, university bookstore, etc.). . An exception is Kovats v. Rutgers, The State Univ., 822 F.2d 1303 (3d Cir.1987) (holding Rutgers not entitled to Eleventh Amendment immunity). As the Kovats court points out, Rutgers ■University is unique in many respects," }, { "docid": "16317127", "title": "", "text": "Amendment Immunity Mr. Davie alleges that Defendants violated his constitutional rights. Claims for violations of constitutional rights are brought through 42 U.S.C. § 1983, which provides: Every person who under color of [law] ... subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress____ 42 U.S.C. § 1983 (1994). Section 1983 applies to “person[s].” 42 U.S.C. § 1983 (1994). The United States Supreme Court has held that a state is not a “person” for purposes of 42 U.S.C. § 1983. Will v. Michigan Department of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 2312, 105 L.Ed.2d 45 (1989). The Court found that Congress did not intend to disturb the states’ Eleventh Amendment immunity from suit when it enacted § 1983. Id. at 66, 109 S.Ct. at 2309-10. Therefore, the Court interpreted § 1983 to be consistent with the Eleventh Amendment, and held that the term “person” in § 1983 does not include a state. Id. To the extent a defendant is entitled to Eleventh Amendment immunity, the defendant is not a “person” within the meaning of § 1983. See Grabow v. Southern State Correctional Facility, 726 F.Supp. 537 (D.N.J.1989). Claims for monetary damages brought against state officials in their official capacities are considered suits against the state and hence are not claims against “person[s]” within the meaning of § 1983. See Will v. Michigan Dept. of State Police, 491 U.S. 58 71, 109 S.Ct. 2304, 2312, 105 L.Ed.2d 45 (1989). The Eleventh Amendment does not bar federal claims for prospective injunctive relief against state officials named in their official capacities. Kentucky v. Graham, 473 U.S. 159, 167 n. 14, 105 S.Ct. 3099, 3106 n. 14, 87 L.Ed.2d 114 (1985). Such actions are not considered suits against the state. See Id. Mr. Davie has brought claims against Defendants in their official and individual capacities. Any § 1983 claims for monetary relief" }, { "docid": "3541309", "title": "", "text": "1355-56 (“[A] suit by private parties seeking to impose a liability which must be paid from public funds in the state treasury is barred by the Eleventh Amendment.”). Doe’s claims for injunctive and declaratory relief against the defendants in their official capacity, however, do not seek to remedy a past constitutional violation, but instead seek to prevent future ones. (See app. at 30-31; 46-47; 59-60.) Since these claims only seek “compliance in the future,” they are claims for prospective relief. They accordingly are not deemed to be against Kentucky, and hence are not barred by the Eleventh Amendment. Edelman, 415 U.S. at 668, 94 S.Ct. at 1358; Ex parte Young, 209 U.S. at 159-60, 28 S.Ct. at 453-54. The magistrate judge erred by holding to the contrary. The material facts relating to Doe’s claims for injunctive and declaratory relief are not in dispute, because the parties manifest no real disagreement about the requirements of Policy 13.5 or the circumstances leading to the disclosure to Abbott of Doe’s HIV infection. We therefore go on to consider the merits of those claims. Section 1983 provides: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia. 42 U.S.C. § 1983. Each of the individual defendants is a “person” under § 1983 for purposes of Doe’s official-capacity claims for injunctive and declaratory relief. Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71 n. 10, 109 S.Ct. 2304, 2312, 105 L.Ed.2d 45 (1989). To establish a § 1983 claim against these “persons,” Doe must prove that" }, { "docid": "16849642", "title": "", "text": "for their actions. The qualified immunity doctrine protects, state officials from civil liability under § 1983 so long as their conduct does not violate a clearly established constitutional right of which a reasonable official would have been cognizant. Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982); Ringuette v. City of Fall River, 146 F.3d 1, 5 (1st Cir.1998). The essence of Defendants argument is that since Plaintiffs’ complaint fails to state a claim for relief, the Department and its officials should be granted immunity. However, the Court has already rejected this contention by finding a valid § 1983 claim. Since the Court is obliged at this stage of the proceedings to take as true Plaintiffs’ allegations in their complaint, the Court denies Defendants’ request for qualified immunity. They may, of course, after significant discovery raise this issue again in a motion for summary judgment. Eleventh Amendment Immunity Finally, Defendants argue that the Eleventh Amendment mandates the Court to dismiss all monetary claims against the Department and all Defendants in their official capacity. State actors acting in their official capacity are not subject to § 1983 suits for money damages. Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 2312, 105 L.Ed.2d 45 (1989); Negron Gaztambide v. Hernández Torres, 145 F.3d 410, 416 n. 7 (1st Cir.1998). Plaintiffs have not refuted this contention in their opposition. Accordingly, the Court dismisses all monetary claims against the Department of Education and all Defendants in their official capacity. Plaintiff Hatfield shall continue with her claims for injunctive relief against ah the Defendants and for monetary relief against the Defendants solely in their personal capacity. WHEREAS, the Court hereby grants in part and denies in part Defendants motion to dismiss. IT IS SO ORDERED. . Docket # 35. . Docket # 35. . Docket# 19. . This should in no way impact Plaintiff's § 1983 claim. The courts have explicitly held that transitory employees that do not have a property interest in their employment are still entitled to First Amendment protection when their" }, { "docid": "7520327", "title": "", "text": "to be transferred, the court finds that summary judgment is due to granted against the plaintiff on his § 1983 action based on the Fourteenth Amendment. 3. Absolute and Qualified Immunity First, both parties agree that defendants State of Alabama and ADCNR are entitled to absolute immunity under 42 U.S.C. § 1983. See Will v. Michigan Dept. of State Police, 491 U.S. 58, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989). Accordingly, summary judgment is due to granted for the State of Alabama and ADCNR for the remaining § 1983 actions, i.e. Counts 4 and 7. Next, the defendants contend that the individual defendants in their official capacities are immune from suit in the § 1983 actions because they are not “persons” within the meaning of § 1983. This is partially true. The Supreme Court in Will held that state officials sued in their official capacities are immune from suit under § 1983 for damages since such suits were actually suits against the state. Will, 491 U.S. at 70-71, 109 S.Ct. at 2312 (emphasis added). However, the Court noted that “a state official in his or her official capacity, when sued for injunctive relief, would be a person under § 1983 because ‘official-capacity actions for prospective relief are not treated as actions against the State.’ ” Will, 491 U.S. at 71 n. 10, 109 S.Ct. at 2312 n. 10 (citing Kentucky v. Graham, 473 U.S. 159, 167, 105 S.Ct. 3099, 3106, 87 L.Ed.2d 114 (1985) (emphasis added)). In the complaint, the plaintiff seeks injunctive relief against the defendants. Accordingly, the court finds that the individual defendants are immune from suit in their official capacities for any claim of money damages under § 1983. However, the court finds that the defendants are not immune from suit in their official capacities for plaintiffs claims of prospective relief. Finally, the individual defendants argue that they are entitled to qualified immunity in their individual capacities under § 1983. Qualified immunity is available to “government officials performing discretionary functions ... insofar as their conduct does not violate clearly established statutory or constitutional rights of which a" }, { "docid": "9421427", "title": "", "text": "in the light most favorable to plaintiff NL Industries, Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir.1986); Parks School of Business, Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir.1995). The court need not, however, accept every allegation in the complaint as true; rather, the court “will examine whether eon-clusory allegations follow from the description of facts as alleged by the plaintiff.” Holden v. Hagopian, 978 F.2d 1115, 1121 (9th Cir.1992) (citation omitted). B. Whether Plaintiffs Claims Against the DCA are Barred by Eleventh Amendment Immunity The Eleventh Amendment does not preclude suits against state officers for prospective injunctive relief, even when the remedy will enjoin the implementation of an official state policy. Ex Parte Young, 209 U.S. 123, 161-62, 28 S.Ct. 441, 454-55, 52 L.Ed. 714 (1908); Kentucky v. Graham, 473 U.S. 159, 167 n. 14, 105 S.Ct. 3099, 3106 n. 14, 87 L.Ed.2d 114 (1985); Chaloux v. Killeen, 886 F.2d 247, 252 (9th Cir.1989); Hoohuli v. Ariyoshi, 741 F.2d 1169, 1173-75 (9th Cir.1984). Defendants are correct that neither state agencies nor state officials acting in their official capacities are “persons” for purposes of a § 1983 suit seeking monetary damages. Will v. Michigan Department of State Police, 491 U.S. 58, 70-71, 109 S.Ct. 2304, 2311-12, 105 L.Ed.2d 45 (1989). State officials acting-in their official capacity, however, are “persons” for the purposes of § 1983 when sued only for prospective injunctive relief. Of course a state official acting in his or her official capacity, when sued for injunc-tive relief, would be a person under § 1983 because “official-capacity actions for prospective relief are not treated as actions against the State.” Kentucky v. Graham, 473 U.S. at 167 n. 14[, 105 S.Ct. at 3106 n. 14]; Ex Parte Young, 203 [209] U.S. 123, 159—60[, 28 S.Ct. 441, 453-54, 52 L.Ed. 714] (1908). The distinction is “commonplace in sovereign immunity doctrine.” L. Tribe, American Constitutional Law § 3-27, p. 190, n. 3 (2d ed.1988), and would not have been foreign to the 19th-century Congress that enacted § 1983[.] Will, 491 U.S. at 71 n. 10, 109 S.Ct. at 2312 n." }, { "docid": "16147961", "title": "", "text": "§ 1983 because neither the State of New York nor its agencies are “persons” under Section 1983, and that this prohibition against suing the State or its agencies under Section 1983 carries through to State officers acting in their official capacity. Second, the defendant argues that the Eleventh Amendment bars the plaintiffs claims because New York State has not consented to suit under Section 1983. The defendant is correct that state officers “acting in their official capacities” are outside the class of “persons” subject to liability under Section 1983. Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 2312, 105 L.Ed.2d 45 (1989); see also Huminski v. Corsones, 386 F.3d 116, 133 (2d Cir.2004). However, state officers sued in their official capacities are “persons” under Section 1983 in suits for injunctive or other prospective relief. See Will, 491 U.S. at 71 n. 10, 109 S.Ct. at 2312 n. 10 (“Of Course a state official in his or her official capacity, when sued for injunctive relief, would be a person under § 1983 because ‘official-capacity actions for prospective relief are not treated as actions against the state.’ ”) (citations omitted); Huminski, 386 F.3d at 133 (“[Sjtate officials can be subject to suit [under Section 1983] in their official capacities for injunctive or other prospective relief.”) (citation omitted). In this case the plaintiff is not seeking damages. Primarily, the plaintiff seeks an injunction lifting his curfew. The plaintiff also asks the Court to direct the defendant to “stop retaliating” against him, and to enjoin her from retaliating against him for filing this lawsuit. An order lifting the plaintiffs curfew would be prospective relief. Accordingly, the defendant’s motion to dismiss the plaintiffs official capacity claims based on the “person” requirement of Section 1983 is denied. Similarly, the Eleventh Amendment is no bar to the plaintiffs claims against Kane in her official capacity, because the plaintiff is only seeking prospective injunctive relief. See Verizon Maryland, Inc. v. Public Service Comm’n of Maryland 535 U.S. 635, 645, 122 S.Ct. 1753, 1760, 152 L.Ed.2d 871 (2002) (“In determining whether the doctrine" }, { "docid": "16147960", "title": "", "text": "process violation. B. As to the Defendant’s Motion to Dismiss The defendant advances three arguments in support of its motion to dismiss the complaint: (1) the plaintiffs cause of action asserted under 42 U.S.C. § 1983 against Kane in her official capacity is barred by the Eleventh Amendment and the terms of 42 U.S.C. § 1983; (2) the complaint against the defendant Kane in her individual capacity fails to state a claim because the plaintiff has no protected liberty interest in parole, and thus the provisions of the Due Process Clause are inapplicable; and (3) the defendant Kane is entitled to qualified immunity. As an initial matter, the pro se plaintiff does not specify whether he is suing the defendant in her official capacity, her individual capacity, or both. The Court will liberally construe the complaint as alleging both official and individual capacity claims. 1. As to the Official Capacity Claims The defendant’s first argument is twofold. First, she argues that there can be no claim against her in her official capacity under 42 U.S.C. § 1983 because neither the State of New York nor its agencies are “persons” under Section 1983, and that this prohibition against suing the State or its agencies under Section 1983 carries through to State officers acting in their official capacity. Second, the defendant argues that the Eleventh Amendment bars the plaintiffs claims because New York State has not consented to suit under Section 1983. The defendant is correct that state officers “acting in their official capacities” are outside the class of “persons” subject to liability under Section 1983. Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 2312, 105 L.Ed.2d 45 (1989); see also Huminski v. Corsones, 386 F.3d 116, 133 (2d Cir.2004). However, state officers sued in their official capacities are “persons” under Section 1983 in suits for injunctive or other prospective relief. See Will, 491 U.S. at 71 n. 10, 109 S.Ct. at 2312 n. 10 (“Of Course a state official in his or her official capacity, when sued for injunctive relief, would be a person under" }, { "docid": "9948374", "title": "", "text": ". See Will v. Mich. Dept. of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989) (holding that suits for monetary damages against state officials in their official capacity are precluded by the Eleventh Amendment). The Supreme Court clarified its decision in Will in Hafer v. Melo, 502 U.S. 21, 27, 112 S.Ct. 358, 116 L.Ed.2d 301 (1991). “Hafer seeks to overcome the distinction between official— and personal-capacity suits by arguing that § 1983 liability turns not on the capacity in which state officials are sued, but on the capacity in which they acted when injuring the plaintiff. Under Will, she asserts, state officials may not be held liable in their personal capacity for actions they take in their official capacity. Although one Court of Appeals has endorsed this view, see Cowan v. University of Louisville School of Medicine, 900 F.2d 936, 942-943 (C.A.6 1990), we find it both unpersuasive as an interpretation of § 1983 and foreclosed by our prior decisions.” The Supreme Court having rejected this Court's interpretation of Will, it made clear that suits under section 1983 are cognizable against “a state official in his or her official capacity, when sued for injunctive relief” Will, 491 U.S. at 71, n. 10, 109 S.Ct. 2304, and against individual defen dants in their personal capacities. Thus, Flaim's claim against the state officials in their official capacities is for prospective in-junctive relief requiring his readmittance to medical school and his claim against the same defendants in their personal capacities is for monetary damages. . We need not consider here all the circumstances under which an accused may have a right to counsel. See Jaksa, 597 F.Supp. at 1252 n. 8 (discussing diversify of decisions on the right to counsel). . Flaim did of course receive a letter from Dean Gohara informing him that he was expelled for the conduct that gave rise to his felony conviction. Flaim apparently desired more formal findings, and while it would be helpful to us and perhaps more just for the college to explain the basis for its decision, the Due" }, { "docid": "3361681", "title": "", "text": "plaintiffs to seek prospective relief, and only when a state official and not the State or a state agency is the named defendant. See Metcalf, 506 U.S. at 146, 113 S.Ct. 684. The exception has no application where the lawsuit, although naming a state official, is more correctly construed as a suit against the State, which is completely barred by the Eleventh Amendment regardless of the relief sought. See id. The determination of whether the State rather than the named state official is really the party at interest generally turns on the relief sought. See Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989). Lawsuits seeking retroactive relief, usually in the form of monetary damages and declaratory judgment for past conduct, against a state official are generally construed as suits against the State because a judgment for damages against an official would necessarily require payment from the government. See Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 464, 65 S.Ct. 347, 89 L.Ed. 389 (1945). However, it is clear that “a state official in his or her official capacity, when sued for injunctive relief, would be a per son under § 1983 because ‘official capacity-actions for prospective relief are not treated as actions against the State.’” Will, 491 U.S. at 71 n. 10, 109 S.Ct. 2304; see also Hafer v. Melo, 502 U.S. 21, 30, 112 S.Ct. 358, 116 L.Ed.2d 301 (1991) (holding that the Eleventh Amendment provides no shield for a state official confronted by a claim that he deprived another of a federal right). Therefore, a suit for prospective equitable relief challenging the constitutionality of a state official’s action does not constitute a lawsuit against the State. See Death Row Prisoners of Pennsylvania v. Ridge, 948 F.Supp. 1258, 1265 (E.D.Pa.1996) (quoting Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984)). In other words, the United States Supreme Court has recognized the “accepted rule” that federal court actions to restrain activities of state officials do not violate the Eleventh" } ]

[ { "docid": "11813813", "title": "", "text": "we find a remand unnecessary because the case can be decided upon an alternative ground which, under the circumstances, does not require another evi dentiary hearing. Bailey contends he was denied due process of law because the court did not advise him of the consequences of his plea. In examining whether Bailey fully understood the consequences of his plea, we limit ourselves to the direct consequences — the length of the sentence to be served. Whether Bailey understood the consequences of his plea depends upon whether he understood the plea agreement. He claims the agreement meant he would be imprisoned not more than ten years. The state says the agreement provided only that he would be recommended for parole or pardon at the end of ten years. In Kercheval v. United States, 274 U.S. 220, 223, 47 S.Ct. 582, 583, 71 L.Ed. 1009 (1927), the Court said: “A plea of guilty differs in purpose and effect from a mere admission or an extrajudicial confession; it is itself a conviction. Like a verdict of a jury, it is conclusive. More is not required: the court has nothing to do but give judgment and sentence. Out of just consideration for persons accused of crime, courts are careful that a plea of guilty shall not be accepted unless made voluntarily after proper advice and with full understanding of the consequences.” No particular form or ritual is required, but it must appear that the defendant understood the consequences of his plea. The evidence discloses, how ever, that no inquiry was made by anyone to determine Bailey’s understanding of the consequences of his plea. The judge asked him no questions. Indeed, it appears from the record that the judge himself did not know the full consequences. Bailey’s attorney did his best to explain it, but he testified at the habeas corpus hearing that he could not say that Bailey or his brother understood the proposition. Apparently the court and Bailey’s attorney assumed that Bailey understood. Bailey challenges the validity of this assumption. He claims he thought the consequences would be not more than ten years’" } ]

[ { "docid": "11813812", "title": "", "text": "Court held: “A guilty plea, if induced by promises or threats which.deprive it of the character of a voluntary act, is void. A conviction based upon such a plea is open to collateral attack. See Walker v. Johnston, 312 U.S. 275, 61 S.Ct. 574, 85 L.Ed. 830; Waley v. Johnston, 316 U.S. 101, 62 S.Ct. 964, 86 L.Ed. 1302; Shelton v. United States, 356 U.S. 26, 78 S.Ct. 563, 2 L.Ed.2d 579, reversing 5 Cir., 246 F.2d 571.” The voluntariness of Bailey’s plea does not depend upon whether he was the victim of a false promise. The question remains: Did the promise, even if fulfilled, induce the plea and deprive it of the character of a voluntary act? Whether Bailey’s plea was voluntary raises issues of fact, upon which the state courts differed. The state appellate court’s rejection of the state habeas court’s findings ordinarily would require us to remand the case to the federal district court for an evidentiary hearing. Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963). However, we find a remand unnecessary because the case can be decided upon an alternative ground which, under the circumstances, does not require another evi dentiary hearing. Bailey contends he was denied due process of law because the court did not advise him of the consequences of his plea. In examining whether Bailey fully understood the consequences of his plea, we limit ourselves to the direct consequences — the length of the sentence to be served. Whether Bailey understood the consequences of his plea depends upon whether he understood the plea agreement. He claims the agreement meant he would be imprisoned not more than ten years. The state says the agreement provided only that he would be recommended for parole or pardon at the end of ten years. In Kercheval v. United States, 274 U.S. 220, 223, 47 S.Ct. 582, 583, 71 L.Ed. 1009 (1927), the Court said: “A plea of guilty differs in purpose and effect from a mere admission or an extrajudicial confession; it is itself a conviction. Like a verdict of a jury," }, { "docid": "9505046", "title": "", "text": "failed to inform the defendant of a mandatory minimum sentence. In Serrano v. United States, 442 F.2d 923 (2d Cir.), cert. denied, 404 U.S. 844, 92 S.Ct. 145, 30 L.Ed.2d 80 (1971), the defendant, who had pleaded guilty in exchange for the government’s promise to recommend a prison sentence of seven years, contended that his plea was involuntary because the court had not informed him of a five-year mandatory minimum sentence. The Second Circuit rejected the defendant’s claim, finding that his alleged ignorance of the mandatory minimum sentence could not have affected his decision to plead guilty since he had no reason to expect a sentence of less than seven years. Id. at 925. Cf. Hill v. Estelle, 653 F.2d 202, 206 (5th Cir. 1981), cert. denied, 454 U.S. 1036, 102 S.Ct. 577, 70 L.Ed.2d 481 (1982) (“In the context of a guilty plea with a recommended sentence well above the minimum under either statute, when the minimum serves no limiting effect on Hill’s parole eligibility, there is no basis on which to conclude that the difference between the two possible ranges of punishment would reasonably have had an effect on Hill’s decision to plead guilty, and the voluntary, intelligent character of his guilty plea is thus not destroyed.”). We have reviewed the record in this case and conclude that Bryant was aware of all the “direct consequences” of his decision to plead guilty. Bryant had entered into a plea agreement with the understanding that the State would recommend that he receive two consecutive life sentences. When the trial court questioned Bryant regarding the voluntariness of his plea, he indicated that his plea was voluntary and that he expected to receive two consecutive life sentences. We find, under these circumstances, that Bryant’s alleged ignorance of the mandatory minimum sentence of seven years for armed robbery could not reasonably have affected his otherwise voluntary and intelligent decision to enter a guilty plea. The order of the district court dismissing Bryant’s petition for habeas corpus relief, therefore, is affirmed. AFFIRMED. . Section 15A-1022 of the North Carolina General Statutes provides that before" }, { "docid": "11813806", "title": "", "text": "BUTZNER, Circuit Judge: Ray S. Bailey was sentenced to life imprisonment in 1936 upon a plea of guilty to murder. Now Bailey challenges the validity of his plea, which was entered after the chief of police and the state’s solicitor promised in writing they would recommend parole or pardon after Bailey had served a term not exceeding ten years. We hold that Bailey’s arraignment was defective and the record fails to establish he understood the consequences of his plea. We remand the case for proceedings consistent with this opinion. Bailey applied for a writ of habeas corpus in 1964 in the Court of Common Pleas for Richland County, South Caro lina. After a full evidentiary hearing, the court found that Bailey’s guilty plea was not voluntary, and ordered a new trial. Upon appeal the Supreme Court of South Carolina reversed and entered final judgment discharging the writ. Bailey then applied to the United States District Court for a writ of habeas corpus, which was denied upon the basis of the state records without a plenary hearing. A policeman, attempting to thwart a bank robbery, was killed in 1932 in Greenville, South Carolina. A few days later Bailey was charged with murder. Following an unsuccessful fight against extradition from North Carolina, Bailey fled to Georgia. He was captured and returned to Greenville for trial. His brother, C. M. Bailey, and other members of his family retained a capable and experienced lawyer to defend him. He steadfastly maintained that he was not in Greenville the night of the murder, and upon his arraignment he pleaded not guilty. The mainstay of the prosecution’s case was a witness named Corea, who identified Bailey as the murderer of the policeman. Corea was sentenced to prison for robbery and refused to testify unless he was pardoned. The South Carolina solicitor who was prosecuting the case knew that another eyewitness was unable to identify Bailey positively. He also knew a number of witnesses would support Bailey’s alibi. The solicitor suggested to Bailey’s lawyer that Bailey plead guilty “with a recommendation to mercy.” This plea would result in" }, { "docid": "15777626", "title": "", "text": "entered a plea of guilty to the charge of forcible rape. In accordance with the agreement, the trial court sentenced the petitioner to a ten to forty year prison term. Four days later, the prosecutor prepared an Official Statement of State’s Attorney and Trial Judge, commonly referred to as a “pen letter”, which was signed by both the prosecutor and the sentencing judge. The “pen letter” was sent to the Illinois Parole and Pardon Board pursuant to Ill.Rev.Stat. (1971), ch. 108, § 203, now codified at Ill.Rev.Stat. (1977), ch. 38, §§ 1005 — 4-1. The “pen letter” contained the prosecutor’s statement to the parole board of the facts and circumstances surrounding the petitioner’s crime, and concluded with the prosecutor’s and sentencing judge’s recommendation on the petitioner’s future eligibility for parole, as follows: “Recommendation to Parole Board: It is recommended that this defendant serve the maximum time possible under the 10 — 40 year sentence imposed upon him.” Petitioner subsequently discovered the existence of the “pen letter” upon reviewing his prison file and in January, 1973, filed a post-conviction petition challenging the entry of his guilty plea. This petition was denied by the trial court at the conclusion of an evidentiary hearing, and the denial was affirmed by the Illinois Appellate Court in June, 1974. People v. Robinson, 20 Ill.App.3d 112, 312 N.E.2d 703 (3rd Dist. 1974) (Justice Stouder dissenting). The Illinois Supreme Court denied petition for leave to appeal in September, 1974. In February, 1976, petitioner brought the present action, seeking federal habeas corpus relief on the grounds that his plea was induced by false promises of the prosecutor and the trial judge, and that he did not knowingly and voluntarily enter his plea of guilty because at the time of his plea he was not sufficiently advised of the consequences of his plea. Following a plenary hearing, the district court dismissed the petition on February 15, 1977, and the petitioner appealed from that judgment to this Court. On August 22, 1978, a three-judge panel of this Court reversed and remanded the district court order. United States ex rel. Robinson" }, { "docid": "11813808", "title": "", "text": "a mandatory life sentence. Bailey’s lawyer did not know Corea refused to testify. He thought the evidence would be sufficient to take the case to the jury and he knew that public sentiment was aroused over the killing. He said that he could advise his client to plead guilty to manslaughter, but the solicitor declined this offer. The lawyers finally agreed that if Bailey would enter a plea of guilty to murder with recommendation to mercy, the solicitor and the chief of police would recommend a pardon or parole after Bailey had served not more than ten years. The defense attorney advised Bailey that if he did not participate in the shooting he should not plead guilty. The attorney explained that the plea arrangement meant a life sentence would be imposed, and it did not mean the Governor would have to grant parole or pardon. He added that ordinarily the Governor would give great weight to the recommendation of the solicitor and the chief of police. Bailey agreed to plead guilty. His attorney, out of an abundance of caution, required the solicitor and chief of police to put their promise in writing. They signed this statement: “This will confirm our conversation that in the event that Ray Bailey enters a plea of guilty with recommendation to mercy in the case now pending against him in the General Sessions Court for Greenville County that I will, knowing the facts of the case and the circumstances surrounding same, after the said Ray Bailey has served for a period not exceeding ten years, recommend to the Board of Pardons or Governor a pardon or parole.” Bailey withdrew his original plea and pleaded guilty with recommendation to mercy. He was sentenced to life imprisonment. No one mentioned the agreement. No inquiry was made to determine whether Bailey’s plea was voluntary or whether he understood the charges against him and the consequences of his plea. In the state habeas hearing the solicitor testified that he believed the trial judge was not aware of the agreement. Bailey’s lawyer placed the statement in his safety deposit box." }, { "docid": "11813814", "title": "", "text": "it is conclusive. More is not required: the court has nothing to do but give judgment and sentence. Out of just consideration for persons accused of crime, courts are careful that a plea of guilty shall not be accepted unless made voluntarily after proper advice and with full understanding of the consequences.” No particular form or ritual is required, but it must appear that the defendant understood the consequences of his plea. The evidence discloses, how ever, that no inquiry was made by anyone to determine Bailey’s understanding of the consequences of his plea. The judge asked him no questions. Indeed, it appears from the record that the judge himself did not know the full consequences. Bailey’s attorney did his best to explain it, but he testified at the habeas corpus hearing that he could not say that Bailey or his brother understood the proposition. Apparently the court and Bailey’s attorney assumed that Bailey understood. Bailey challenges the validity of this assumption. He claims he thought the consequences would be not more than ten years’ confinement in prison. Ordinarily there is no great difficulty in ascertaining that the defendant understood the consequences of his plea even when the parties have engaged in plea bargaining. The bargain itself generally is laid before the court through the recommendation and motions of the prosecuting attorney. The difficulty arises in Bailey’s case because the promise made by the prosecuting officers was extrajudicial. It was never revealed in open court, although Bailey’s attorney and the solicitor both recognized that it was indispensable to securing Bailey’s plea and that it had an important bearing upon Bailey’s punishment. Regardless of whether we accept the state’s or Bailey’s version of the plea arrangement, the uncontradicted evidence shows that no effort was made at Bailey’s arraignment to determine which version he understood. The dispute about the plea agreement, which must be adjudicated thirty years after arraignment, demonstrates the fundamental unfairness and the lack of due process in placing upon a prisoner the burden of showing by a preponderance of the evidence the terms of an admittedly secret, extrajudicial proviso" }, { "docid": "15965455", "title": "", "text": "to a plea bargain, one term of which was the defendant’s eligibility for parole after ten years and six months, rendered Hayes’ plea involuntary. That case summarized what must be established before an unkept plea bargain may constitute a basis for habeas relief: the petitioner must prove “(1) exactly what the terms of the alleged promise were; (2) exactly when, where, and by whom such a promise was made; and (3) the precise identity of an eyewitness to the promise.” Hayes met that burden. Self’s “understanding,” however, that he would serve only ten years and six months of a life sentence, does not constitute a promise or a plea bargain, and hence his continued confinement does not demonstrate that a plea bargain was violated. It, therefore, does not undermine the voluntariness of his guilty plea. Self testified that he understood that parole required “a good conduct record.” He has not established that any plea agreement with the state contained any promise of parole eligibility after a certain number of years. The facts found in the magistrate’s report indicate that Self was not told that parole after ten years and six months was automatic. Self’s attorney testified that he informed Self that a good record and approval by the parole board were necessary preconditions to parole. Self’s lawyer did tell him that parole would be “probable” in ten years and six months, given the treatment of similar cases. The lawyer testified that he told Self that he and the prosecutor “foresaw” parole in ten and one-half years as “a probable duration of sentence.” The prosecutor was present during some of the conversations leading to the guilty plea and it may be inferred that he led Self to believe that his lawyer’s forecast was accurate. But the lawyer’s prediction was not a guarantee of parole eligibility. There is no evidence of a promise of parole by the state. The forecast was accurate based on the situation at the time it was made. That conditions have now changed does not make the plea involuntary for there was no factual misrepresentation. Self also argues" }, { "docid": "22664319", "title": "", "text": "last two lines of the “plea statement,” just above petitioner’s signature, read: “I am aware of everything in this document. I fully understand what my rights are, and I voluntarily plead guilty because I am guilty as charged.” Petitioner appeared before the trial judge at the plea hearing, recounted the events that gave rise to the charges against him, affirmed that he had signed and understood the written “plea statement,” reiterated that no “threats or promises” had been made to him other than the plea agreement itself, and entered a plea of guilty to both charges. The trial judge accepted the guilty plea and sentenced petitioner in accordance with the State’s recommendations. The trial judge also granted petitioner credit for the time he had already served in prison, and told petitioner that “[y]ou will be required to serve at least one-third of your time before you are eligible for parole.” More than two years later petitioner filed a federal habeas corpus petition alleging, inter alia, that his guilty plea was involuntary by reason of ineffective assistance of counsel because his attorney had misinformed him as to his parole eligi bility date. According to petitioner, his attorney had told him that if he pleaded guilty he would become eligible for parole after serving one-third of his prison sentence. In fact, because petitioner previously had been convicted of a felony in Florida, he was classified under Arkansas law as a “second offender” and was required to serve one-half of his sentence before becoming eligible for parole. Ark. Stat. Ann. §43-2829B(3) (1977). Petitioner asked the United States District Court for the Eastern District of Arkansas to reduce his sentence to a term of years that would result in his becoming eligible for parole in conformance with his original expectations. The District Court denied habeas relief without a hearing. The court noted that neither Arkansas nor federal law required that petitioner be informed of his parole eligibility date prior to pleading guilty, and concluded that, even if petitioner was misled by his attorney’s advice, parole eligibility “is not such a consequence of [petitioner’s] guilty" }, { "docid": "11813815", "title": "", "text": "confinement in prison. Ordinarily there is no great difficulty in ascertaining that the defendant understood the consequences of his plea even when the parties have engaged in plea bargaining. The bargain itself generally is laid before the court through the recommendation and motions of the prosecuting attorney. The difficulty arises in Bailey’s case because the promise made by the prosecuting officers was extrajudicial. It was never revealed in open court, although Bailey’s attorney and the solicitor both recognized that it was indispensable to securing Bailey’s plea and that it had an important bearing upon Bailey’s punishment. Regardless of whether we accept the state’s or Bailey’s version of the plea arrangement, the uncontradicted evidence shows that no effort was made at Bailey’s arraignment to determine which version he understood. The dispute about the plea agreement, which must be adjudicated thirty years after arraignment, demonstrates the fundamental unfairness and the lack of due process in placing upon a prisoner the burden of showing by a preponderance of the evidence the terms of an admittedly secret, extrajudicial proviso that could substantially affect the length of his sentence. A prisoner’s liberty should not depend upon the astuteness of his attorney in demanding and preserving written memoranda of a plea agreement or upon the vagaries of human recollection decades after arraignment. The defect in Bailey’s arraignment lies in the fact that no one — court or counsel — ascertained that Bailey understood the consequences of his plea. Nevertheless, if Bailey in fact understood, the error was harmless. Gundlach v. United States, 262 F.2d 72 (4th Cir. 1958), cert. denied 360 U.S. 904, 79 S.Ct. 1283, 3 L.Ed.2d 1255 (1959). The state, however, has the burden of proving harmless error. Cf. Munich v. United States, 337 F.2d 356, 360 (9th Cir. 1964). The result does not depend upon the prisoner’s subjective testimony alone. The issue is one of fact, which must be resolved by an examination of “reasonable inferences to be drawn from all the surrounding facts and circumstances.” Ordinarily this issue could be decided only in a plenary hearing in the district court, but this" }, { "docid": "11813817", "title": "", "text": "rule is not inexorable. Cf. Fields v. Peyton, 375 F.2d 624 (4th Cir. 1967). Counsel for both Bailey and the respondent have assured us that all evidence that can be marshalled is contained in the record. We find the material facts for the determination of this issue to be uncontradicted. Aside from Bailey, the only witnesses who knew about the agreement at the time it was made were the solicitor, the assistant solicitor, and Bailey’s attorney. The solicitor never discussed the matter with Bailey and consequently could offer no testimony on this issue. The assistant solicitor testified that at the time of the arraignment he was convinced, barring misbehavior, Bailey would be released after ten years. Thus, he tends to corroborate Bailey. The only witness who actually discussed with Bailey the meaning of the agreement was Bailey’s attorney. With regard to Bailey’s claim, “I accepted a life sentence with the distinct understanding that I would be free in ten years,” Bailey’s attorney testified, “He may have understood it that way * * * even though I tried to explain to him the circumstances of it, not being a lawyer and not being familiar with legalities and things of that kind. It’s possible that Mr. Bailey felt that that would happen.” This evidence does not establish whether the state’s version or Bailey’s version of the plea agreement should be accepted. The evidence demonstrates, however, that the state has not carried its burden of proving harmless error by showing Bailey understood what the state claims to be the consequences of his plea. Under familiar principles of due process, a guilty plea cannot be accepted unless the defendant understands its consequences. At the arraignment the court made no effort to ascertain what Bailey understood, either through its own efforts or through counsel, and the state has failed to show this error was harmless. The judgment of the district court is reversed and this case is remanded for the issuance of a writ of habeas corpus. Execution of the writ may be stayed for a reasonable time to permit the State of South Carolina" }, { "docid": "11813809", "title": "", "text": "an abundance of caution, required the solicitor and chief of police to put their promise in writing. They signed this statement: “This will confirm our conversation that in the event that Ray Bailey enters a plea of guilty with recommendation to mercy in the case now pending against him in the General Sessions Court for Greenville County that I will, knowing the facts of the case and the circumstances surrounding same, after the said Ray Bailey has served for a period not exceeding ten years, recommend to the Board of Pardons or Governor a pardon or parole.” Bailey withdrew his original plea and pleaded guilty with recommendation to mercy. He was sentenced to life imprisonment. No one mentioned the agreement. No inquiry was made to determine whether Bailey’s plea was voluntary or whether he understood the charges against him and the consequences of his plea. In the state habeas hearing the solicitor testified that he believed the trial judge was not aware of the agreement. Bailey’s lawyer placed the statement in his safety deposit box. At the expiration of the ten year period, the solicitor, the chief of police, and Bailey’s attorney unsuccessfully asked the Governor and the State Parole Board to pardon or parole Bailey. At the state habeas corpus hearing, Bailey testified that he was not in Green-ville at the time the police officer was killed, and that at first he refused to plead guilty. He agreed to change his plea because he was certain any agreement the solicitor made would be carried out. He testified that there wasn’t any doubt in his mind that he would be released in ten years. Bailey was not alone in testifying he believed he would serve only ten years. The assistant solicitor, who investigated the case and was present at the arraignment, testified that “ * * * when that plea was entered by that boy, at that time, I was convinced that, after service of these ten years, without doing something in the penitentiary to prevent it, he would have been released. I was convinced of it and I am" }, { "docid": "11813810", "title": "", "text": "At the expiration of the ten year period, the solicitor, the chief of police, and Bailey’s attorney unsuccessfully asked the Governor and the State Parole Board to pardon or parole Bailey. At the state habeas corpus hearing, Bailey testified that he was not in Green-ville at the time the police officer was killed, and that at first he refused to plead guilty. He agreed to change his plea because he was certain any agreement the solicitor made would be carried out. He testified that there wasn’t any doubt in his mind that he would be released in ten years. Bailey was not alone in testifying he believed he would serve only ten years. The assistant solicitor, who investigated the case and was present at the arraignment, testified that “ * * * when that plea was entered by that boy, at that time, I was convinced that, after service of these ten years, without doing something in the penitentiary to prevent it, he would have been released. I was convinced of it and I am sure that everybody in the courtroom that knew anything about it was.” Bailey raises several questions about plea bargaining. He does not urge the practice in itself is unconstitutional. He does claim the promise rendered his plea involuntary and that his arraignment was constitutionally defective. The state habeas judge found Bailey believed he would serve not more than ten years and that the agreement leading to his change of plea “vitiated the voluntary nature of the guilty plea.” The Supreme Court of South Carolina concluded this judgment was erroneous. The State Supreme Court emphasized that the promise was only to recommend parole or pardon and that it had been kept, that the written statement was unambiguous, and that Bailey’s attorney had explained to him that the Governor might not follow the recommendation. It concluded that the evidence did not disclose that the plea was induced by coercion, false promises, or misrepresentation, and that Bailey’s plea was voluntary. In Machibroda v. United States, 368 U.S. 487, 493, 82 S.Ct. 510, 513, 7 L.Ed.2d 473 (1962), the" }, { "docid": "22664318", "title": "", "text": "that would have entitled him to a hearing. Under Arkansas law, the murder charge to which petitioner pleaded guilty carried a potential sentence of 5 to 50 years or life in prison, along with a fine of up to $15,000. Ark. Stat. Ann. §§41-1502(3), 41-901(l)(a), 41-1101(l)(a) (1977). Petitioner’s court-appointed attorney negotiated a plea agreement pursuant to which the State, in return for petitioner’s plea of guilty to both the murder and theft charges, agreed to recommend that the trial judge impose concurrent prison sentences of 35 years for the murder and 10 years for the theft. Petitioner signed a written “plea statement” indicating that he understood the charges against him and the consequences of pleading guilty, that his plea had not been induced “by any force, threat, or promise” apart from the plea agreement itself, that he realized that the trial judge was not bound by the plea agreement and retained the sole “power of sentence,” and that he had discussed the plea agreement with his attorney and was satisfied with his attorney’s advice. The last two lines of the “plea statement,” just above petitioner’s signature, read: “I am aware of everything in this document. I fully understand what my rights are, and I voluntarily plead guilty because I am guilty as charged.” Petitioner appeared before the trial judge at the plea hearing, recounted the events that gave rise to the charges against him, affirmed that he had signed and understood the written “plea statement,” reiterated that no “threats or promises” had been made to him other than the plea agreement itself, and entered a plea of guilty to both charges. The trial judge accepted the guilty plea and sentenced petitioner in accordance with the State’s recommendations. The trial judge also granted petitioner credit for the time he had already served in prison, and told petitioner that “[y]ou will be required to serve at least one-third of your time before you are eligible for parole.” More than two years later petitioner filed a federal habeas corpus petition alleging, inter alia, that his guilty plea was involuntary by reason of ineffective" }, { "docid": "13621358", "title": "", "text": "ample opportunity to be aware of” the potential parole consequences of his entering a guilty plea. 769 F.2d at 721. In the other case, the Eleventh Circuit found that the defendant clearly understood the potential consequences of his guilty plea and therefore his attorney’s erroneous predictions of the time to be served under a sentence imposed on the plea did not render the plea involuntary. United States v. Restrepo, No. 83-5761 (11th Cir. April 16, 1985) (unpublished opinion). Based on these two decisions, the district court found that Holmes was not deprived effective assistance of counsel because “Holmes understood or at least had ample opportunity to be aware of the potential sentencing consequences of his entering a guilty plea.” Subsequent to the Eleventh Circuit decisions in Harris and Restrepo, the Supreme Court addressed the interrelationship of ineffective assistance claims and guilty pleas in Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). In Hill, a state prisoner filed a federal habeas corpus petition alleging that his guilty plea was involuntary because of ineffective assistance of counsel. The petitioner in Hill based his claim upon his counsel’s affirmative misrepresentation as to what portion of an imposed sentence he would be required to serve before becoming eligible for release on parole. The Supreme Court held that “the two-part Strickland v. Washington test applies to challenges to guilty pleas based on ineffective assistance of counsel.” 474 U.S. at 58, 106 S.Ct. at 370. To satisfy this test, petitioner must show not only “that counsel’s representations fell below an objective standard of reasonableness,” Strickland, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), but also that he was prejudiced by counsel’s unprofessional errors. Id., 466 U.S. at 694, 104 S.Ct. at 2068. In order to satisfy the second or “prejudice” requirement in the context of a guilty plea, the Supreme Court emphasized that “the defendant must show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill, 474 U.S. at 59, 106 S.Ct." }, { "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": "1180213", "title": "", "text": "EDITH H. JONES, Circuit Judge: Ezra Davis, a state prisoner sentenced to life imprisonment after pleading guilty to charges of second degree murder, appeals the denial of his federal habeas corpus petition, 28 U.S.C. § 2254. On the third day of his trial, Davis changed his plea to guilty and was sentenced to life imprisonment with no possibility of parole, probation or suspension of sentence for forty years. He unsuccessfully sought postcon-viction relief in the Louisiana state courts, and was subsequently denied relief in federal district court. In his federal habeas petition, Davis raised three issues: (1) his guilty plea was involuntary because it was entered without an understanding of the charge and without adequate notice of its nature; (2) the plea of guilty was involuntary in that it was motivated by his belief that he would be pardoned after serving a term of three years; and (3) his counsel was ineffective because he failed to give him any advice regarding his plea of guilty, and because he gave him inadequate information about the nature of the charge to which he was pleading guilty and about the consequences of his plea. The district court denied relief and dismissed the petition, concluding that the transcript of the guilty plea proceeding refuted Davis’s contentions that he had not understood the nature of the charges or the consequences of his plea. The court also found that the sentencing judge’s explanations rendered any inadequacies in Davis’s attorney’s explanation of the charges and sentence harmless. We affirm in part, reverse in part, and remand. Davis alleges that his guilty plea was not knowing and voluntary because his attorney failed to advise him of the elements and nature of the crime of second degree murder and because the court did not explain the charges during the plea proceeding. We disagree. “[A] guilty plea cannot be voluntary unless the defendant has ‘real notice of the true nature of the charge against him.’ ” Bonvillain v. Blackburn, 780 F.2d 1248, 1250 (5th Cir.), cert. denied, — U.S. -, 106 S.Ct. 2253, 90 L.Ed.2d 699 (1986) (quoting Henderson v." }, { "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": "1180215", "title": "", "text": "Morgan, 426 U.S. 637, 96 S.Ct. 2253, 2257, 49 L.Ed.2d 108 (1976)). However, “a guilty plea [will] be upheld as voluntary even if the trial judge failed to explain the offense if the record show[s] that the defendant understood the charge and its consequences.” Bonvillain, 780 F.2d at 1250. The colloquy between Davis and the court concerning his guilty plea, which we have reviewed, indicates that Davis was carefully and fully apprised of the elements of second degree murder. The court did not read the charge and state the specific elements of the crime. Rather, the court explained why Davis’s admissions made him guilty of second degree murder, clarified with Davis that he did not intend to kill the victim, and emphasized that he would become eligible for parole in 40 years. The court repeatedly asked if Davis understood his remarks, and Davis answered affirmatively. Davis also said his attorney explained the charge to him. Davis has not suggested, either in the district court or in his brief before this court, any misunderstanding of any particular aspect of the second degree murder charge. The knowing and voluntary nature of Davis’s plea therefore cannot be assailed on the ground that he did not understand the charges against him. Second, Davis asserts that he pleaded guilty because his attorney told him that he would be pardoned in three years. If Davis’s attorney did promise a pardon within three years, it could have rendered Davis’s guilty plea unknowing and involuntary. “When a defendant pleads guilty on the basis of a promise by his defense attorney or the prosecutor, whether or not such promise is fulfillable, breach of that promise taints the voluntariness of his plea.” McKenzie v. Wainwright, 632 F.2d 649, 651 (5th Cir.1980). See also McNeil v. Blackburn, 802 F.2d 830, 832 (5th Cir.1986) (per curiam); Smith v. Blackburn, 785 F.2d 545, 548 (5th Cir.1986). The district court rejected Davis’s claims concerning the pardon, concluding that the trial judge fully informed him of the sentence he would receive, that Davis had stated he understood the sentence, that he responded negatively when asked" }, { "docid": "22705900", "title": "", "text": "or the habeas corpus proceeding.” Id. at 19-20. Defendant clearly and repeatedly stated that he understood that he was giving up these rights. See id. at 20. The record is full of similar representations with respect to the plea agreement as well. The court followed the requirements of Fed.R.Crim.P. 11, explaining and determining if Defendant understood the nature of the charges; the possible penalties including supervised release and the court’s role in sentencing and applying the sentencing guidelines; Defendant’s right to plead not guilty and to be tried by a jury; the possibility that his answers to the court’s questions could be used against him in a prosecution for perjury; and, as reviewed above, the terms and implications of the waiver provision. To all these inquiries, Defendant responded that he understood his rights and what he was giving up by way of his plea. When asked whether his guilty plea was “made voluntarily and completely of [his] own free choice,” Defendant answered, “Yes,” R., Supp. Vol. I at 13, and he testified that his plea was not obtained by any use of force or compulsion. The court also questioned whether Defendant understood the terms and conditions of the plea agreement, and Defendant stated that he did. In sum, the court determined that Defendant was mentally competent to understand the consequences of his plea and that the plea was “made voluntarily and with [an] understanding of the nature of the charges ... [and] the consequences of [the] plea.” See id. at 34. In light of these statements by the court and Mr. Cockerham, we hold that Defendant entered the plea and made the waiver knowingly and voluntarily. We therefore affirm the district court’s decision enforcing the waiver and dismissing the § 2255 motion as it relates to the sentencing for Defendant’s drug convictions. C. Section 924(c) Conviction Finally, we address the second component of Defendant’s ineffective assistance claim. In his § 2255 motion, Defendant contended that the evidence was insufficient under Bailey, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472, to sustain a § 924(c) conviction for using or carrying" }, { "docid": "13621357", "title": "", "text": "consequences of a guilty plea of which a defendant need not be informed if he does not inquire, a defendant is deprived of his constitutional right to counsel when his attorney grossly misinforms him of his parole eligibility and he relies upon that erroneous advice in deciding to enter a guilty plea. Strader v. Garrison, 611 F.2d 61 (4th Cir.1979); see O’Tuel v. Osborne, 706 F.2d 498 (4th Cir.1983). In the present case, the district court properly noted that, unlike the Fourth Circuit, the Eleventh Circuit “has not answered the question whether or under what circumstances a lawyer’s prediction of parole consequences may give rise to an ineffectiveness claim.” Harris v. United States, 769 F.2d 718 (11th Cir.1985). On two occasions, the Eleventh Circuit has had the opportunity but declined to reach the question. In both cases, the court found that on the facts of the cases the defendants’ ineffectiveness claim was without merit. In Harris, the Eleventh Circuit held that the ineffectiveness of counsel claim was without merit where the defendant “was, or had ample opportunity to be aware of” the potential parole consequences of his entering a guilty plea. 769 F.2d at 721. In the other case, the Eleventh Circuit found that the defendant clearly understood the potential consequences of his guilty plea and therefore his attorney’s erroneous predictions of the time to be served under a sentence imposed on the plea did not render the plea involuntary. United States v. Restrepo, No. 83-5761 (11th Cir. April 16, 1985) (unpublished opinion). Based on these two decisions, the district court found that Holmes was not deprived effective assistance of counsel because “Holmes understood or at least had ample opportunity to be aware of the potential sentencing consequences of his entering a guilty plea.” Subsequent to the Eleventh Circuit decisions in Harris and Restrepo, the Supreme Court addressed the interrelationship of ineffective assistance claims and guilty pleas in Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). In Hill, a state prisoner filed a federal habeas corpus petition alleging that his guilty plea was involuntary because" } ]

[ { "docid": "15071167", "title": "", "text": "U.S. Trotting Ass’n v. Chicago Downs Ass’n., Inc., 665 F.2d 781 (7th Cir.1981). Thus, we do not believe that it is necessary for us to go into an extended discussion describing the differences between the per se versus rule of reason analyses. Suffice it to say both “are employed 'to form a judgment about the competitive significance of the restraint.”1 N.C.A.A. v. Bd. of Regents of Univ. of Okl., — U.S. —, 104 S.Ct. 2948, 2962, 82 L.Ed.2d 70 (1984) (quoting National Society of Professional Engineers v. United States, 435 U.S. 679, 98 S.Ct. 1355, 55 L.Ed.2d 637 (1978)). Traditionally, per se treatment is reserved to that type of conduct which courts have had experience with and have found to have a pernicious effect on competition, while the rule of reason analysis requiring an evaluation of the effect of the conduct upon the relevant market is reserved for all other types of challenged activity. In assessing the conduct of the defendants in implementing their certification program,. the district court commented \"[i]f such programs are carried out arbitrarily and unreasonably, however, to call that a perse violation because it is a naked restraint or to call it a violation because it is an unreasonable restraint seems to be of little moment.\" Certainly where there has been a full-blown trial assessing the validity of the defendants’ conduct, it does indeed become less important whether we label the conduct a per se violation or a violation of the rule of reason. In instances where exclusionary action is taken and justified by reference to industry self-regulation, which may make it more difficult for a firm to compete, “the scope of the analysis is so spacious as it matters little whether the inquiry is described as one aimed at determining whether a per se rule governs or is one in which the rule of reason is being applied____” L. Sullivan, Handbook of Antitrust, § 88, at 247-48 (1977). . The district court concluded: \"There is no dispute here that the manufacturers were operating in a national market____” . In Trotting, the sanctioning organization, the United" } ]

[ { "docid": "19821433", "title": "", "text": "Integrated to prepare bid specifications amounts to a restraint of trade because it gave Integrated more time to prepare its bids than other bidders, because the specifications required use of a product whose local distributor is Integrated, and because defendants concealed Integrated’s status as a bidder until a few days before the bids were due. Additionally, Hoffman claims that defendants violated an Anti-Collusion affidavit when Integrated received the contract to prepare specifications despite the fact that it had no employer capable of preparing the specifications. Hoffman claims that allowing a firm to both prepare specifications and bid on a project violated local custom and usage, as did the failure to publish Integrated’s status as a bidder in an industry newsletter. A complaint fails to state a cause of action under the antitrust laws if the alleged conduct is not the type of activity that the antitrust laws were intended to prevent. Brunswick Corp. v. Pueblo Bowl-O-Mat, 429 U.S. 477, 489, 97 S.Ct. 690, 697, 50 L.Ed.2d 701 (1977). Section 1 of the Sherman Act is broadly worded to prohibit “[ejvery combination ... or conspiracy, in restraint of trade or commerce.” 15 U.S.C. § 1. But the courts have construed section 1 to prohibit only those combinations which unreasonably restrain competition. Northern Pacific Railway v. United States, 356 U.S. 1, 4-5, 78 S.Ct. 514, 517-18, 2 L.Ed.2d 545 (1958); Bunker Ramo Corp. v. United Business Forms, Inc., 713 F.2d 1272, 1283 (7th Cir.1983). Some conduct is so destructive of competition that it is considered per se violations of the Sherman Act, United States v. Topeo Associates, Inc., 405 U.S. 596, 607-08, 92 S.Ct. 1126, 1133-34, 31 L.Ed.2d 515 (1972). When a per se of fense is alleged, a showing of anticompetitive effect is not required to establish a Sherman Act violation. Continental T. V., Inc. v. GTE Sylvania, Inc., 433 U.S. 36, 49-50, 97 S.Ct. 2549, 2557, 53 L.Ed.2d 568 (1977). But the “rule of reason” is the general test for determining whether an antitrust violation has been stated. Standard Oil v. United States, 221 U.S. 1, 31 S.Ct. 502, 55" }, { "docid": "22007148", "title": "", "text": "Assocs., Inc., 405 U.S. 596, 92 S.Ct. 1126, 31 L.Ed.2d 515 (1972); Timken Roller Bearing Co. v. United States, 341 U.S. 593, 71 S.Ct. 971, 95 L.Ed. 1199 (1951). . Northern Pacific Ry. v. United States, 356 U.S. 1, 78 S.Ct. 514, 2 L.Ed.2d 545 (1958); International Salt Co. v. United States, 332 U.S. 392, 68 S.Ct. 12, 92 L.Ed. 20 (1947). . United States v. General Motors Corp., 384 U.S. 127, 86 S.Ct. 1321, 16 L.Ed.2d 415 (1966); Klor’s, Inc. v. Broadway-Hale Stores, Inc., 359 U.S. 207, 79 S.Ct. 705, 3 L.Ed.2d 741 (1959); Fashion Originators’ Guild of America, Inc. v. FTC, 312 U.S. 457, 61 S.Ct. 703, 85 L.Ed. 949 (1941). But see Oreck Corp. v. Whirlpool Corp., 579 F.2d 126 (2d Cir. 1978) (en banc), cert. denied, - U.S. -, 99 S.Ct. 340, 58 L.Ed.2d 338 (1978). . Continental T.V., Inc. v. GTE Sylvania, Inc., 433 U.S. 36, 49-50, 97 S.Ct. 2549, 2557-2558, 53 L.Ed.2d 568 (1977); see id. at 50 n.16, 97 S.Ct. at 2558: Per se rules . . . require the Court to make broad generalizations about the social utility of particular commercial practices. The probability that anticompetitive consequences will result from a practice and the severity of those consequences must be balanced against its pro-competitive consequences. Cases that do not fit the generalization may arise, but a per se rule reflects the judgment that such cases are not sufficiently common or important to justify the time and expense necessary to identify them. Once established, per se rules tend to provide guidance to the business community and to minimize the burdens on litigants and the judicial system of the more complex rule-of-reason trials, see Northern Pac. R. Co. v. United States, 356 U.S. 1, 5, 78 S.Ct. 514, 518, 2 L.Ed.2d 545 (1958); United States v. Topco Associates, Inc., 405 U.S. 596, 609-10, 92 S.Ct. 1126, 1134, 31 L.Ed.2d 515 (1972), but those advantages are not sufficient in themselves to justify the creation of per se rules. If it were otherwise, all of antitrust law would be reduced to per se rules, thus introducing" }, { "docid": "16110598", "title": "", "text": "framework of analysis under section 1 of the Sherman Act is familar and does not require extended discussion. Section 1 prohibits “[e]very contract, combination . .., or conspiracy, in restraint of trade or commerce.” Since the early years of this century a judicial gloss on this statutory language has established the “rule of reason\" as the prevailing standard of analysis. Standard Oil Co. v. United States, 221 U.S. 1 [31 S.Ct. 502, 55 L.Ed. 619] (1911). Under this rule, the factfinder weighs all of the circumstances of a case in deciding whether a restrictive practice should be prohibited as imposing an unreasonable restraint on competition. Per se rules of illegality are appropriate only when they relate to conduct that is manifestly anti-competitive. Continental T. V., Inc. v. GTE Sylvania Inc., 433 U.S. 36, 49-50, 97 S.Ct. 2549, 2557, 53 L.Ed.2d 568 (1977) (footnote omitted). To be considered “manifestly anticompetitive” and illegal per se, a restrictive agreement must have a “pernicious effect on competition and lack of any redeeming virtue . . .. ” Northern Pacific Railway Co. v. United States, 356 U.S. 1, 5, 78 S.Ct. 514, 518, 2 L.Ed.2d 545 (1958). While restrictive agreements among independent business entities at the same level of the market, so-called “horizontal” agreements, are illegal per se, United States v. Topco Associates, Inc., 405 U.S. 596, 92 S.Ct. 1126, 31 L.Ed.2d 515 (1972), restraints imposed by a manufacturer or supplier upon its distributor-or retailer-customers, so-called “vertical” restraints, can significantly benefit competition and are permissible unless they violate the rule of reason. Continental T.V., Inc. v. GTE Sylvania Inc., 433 U.S. 36, 97 S.Ct. 2549, 53 L.Ed.2d 568 (1977). In the instant case we have a dual distributorship — a business structure in which one party, in this case TAI, operates a branch or dealership on the same market level as one or more of its customers. Since TAI was a supplier of Copy-Data, the parties were vertically related. Since both Copy-Data and TAI were engaged in the wholesale distribution of copiers, they were also horizontally related. A dual distributorship like the one in this" }, { "docid": "22560285", "title": "", "text": "constitute a per se violation. In support of their argument, the plaintiffs have referred us to decisions condemning vertical and horizontal agreements for resale price maintenance, as well as concerted refusals to deal. Of course, the plaintiffs' attachment of the per se label is simply inadequate in itself to sustain the complaint; the defendants’ alleged activity must be scrutinized to determine whether such a characterization is appropriate. Bunker Ramo Corp. v. United Business Forms, Inc., 713 F.2d 1272, 1284 (7th Cir. 1983). After considering the allegations, we find that the lines of authority relied upon by the plaintiffs are simply inapposite and that no per se violation has been alleged. First, only those vertical arrangements that accompany or implement a price-fixing scheme are considered per se violations; other vertical arrangements must be tested under the Rule of Reason. Monsanto Co. v. Spray-Rite Sen. Corp., — U.S. —, 104 S.Ct. 1464, 1469, 79 L.Ed.2d 775 (1984); Continental T.V., supra. The plaintiffs have not alleged a price-fixing scheme, and price-cutting by Car Carriers was in no way a factor in its dispute with Ford. Cf. Dunn & Mavis, Inc. v. Nu-Car Driveaway, Inc., 691 F.2d 241, 245 (6th Cir.1982). In fact, the clear inference is that Car Carriers continually sought to raise its prices. In addition, the market structure described in the complaint is not analogous to a hierarchy of manufacturer, distributors, and resellers. Ford is simply a purchaser of hauling services and the plaintiffs are sellers of those services. The invocation of decisions finding per se violations in concerted refusals to deal is also unavailing. It is well settled in this circuit that “group boycotts” are considered a per se violation only if they are used to enforce agreements that are themselves illegal per se. See Vogel v. American Soc’y of Appraisers, 744 F.2d 598 at 600 (7th Cir.1984); Products Liab. Ins. Agency, Inc. v. Crum & Forster Ins. Cos., 682 F.2d 660, 663 (7th Cir.1982); United States Trotting Ass’n v. Chicago Downs Ass’n, 665 F.2d 781, 787-90 (7th Cir.1981) (en banc); Contractor Util., supra, 638 F.2d at 1072 n. 9." }, { "docid": "16110599", "title": "", "text": "Railway Co. v. United States, 356 U.S. 1, 5, 78 S.Ct. 514, 518, 2 L.Ed.2d 545 (1958). While restrictive agreements among independent business entities at the same level of the market, so-called “horizontal” agreements, are illegal per se, United States v. Topco Associates, Inc., 405 U.S. 596, 92 S.Ct. 1126, 31 L.Ed.2d 515 (1972), restraints imposed by a manufacturer or supplier upon its distributor-or retailer-customers, so-called “vertical” restraints, can significantly benefit competition and are permissible unless they violate the rule of reason. Continental T.V., Inc. v. GTE Sylvania Inc., 433 U.S. 36, 97 S.Ct. 2549, 53 L.Ed.2d 568 (1977). In the instant case we have a dual distributorship — a business structure in which one party, in this case TAI, operates a branch or dealership on the same market level as one or more of its customers. Since TAI was a supplier of Copy-Data, the parties were vertically related. Since both Copy-Data and TAI were engaged in the wholesale distribution of copiers, they were also horizontally related. A dual distributorship like the one in this case can generate agreements which at once appear horizontal and unredeemably damned under Topeo, and vertical and conditionally approved under Sylvania. Thus the question is whether market restraints emanating from a dual distributorship are so plainly anticompetitive that we should declare them illegal “without elabo rate inquiry as to the precise harm they have caused or the business excuse for their use.” Northern Pacific Railway Co. v. United States, 356 U.S. 1, 5, 78 S.Ct. 514, 518, 2 L.Ed.2d 545 (1958). Courts differ on whether restrictions imposed by a dual distributor are subject to per se or rule of reason analysis. While some courts have held that the rule of reason is the proper standard by which to judge such restrictions, see Abadir & Co. v. First Mississippi Corp., 651 F.2d 422 (5th Cir. 1981); Donald B. Rice Tire Co. v. Michelin Tire Corp., 638 F.2d 15 (4th Cir. 1981), cert. denied,-U.S.-, 102 S.Ct. 324, 70 L.Ed.2d 164 (1981); Red Diamond Supply, Inc. v. Liquid Carbonic Corp., 637 F.2d 1001 (5th Cir. 1981); Cowley v." }, { "docid": "283125", "title": "", "text": "summary judgment, arguing inter alia, that its temporary refusal to admit Tolkan as a member did not constitute a per se antitrust violation, that Tolkan Datsun was not entitled to participate in the special 210 promotion and that, absent such an entitlement, Tolkan had suffered no competitive injury as a result of the Association’s actions or the operation of its by-laws. On February 12, 1981, the district court granted the Association’s motion for summary judgment and dismissed Tolkan’s complaint. The district court held that the Association’s conduct was not per se illegal, and that under the rule of reason, Tolkan had failed to allege sufficient anti-competitive injury to establish a violation of § 1 of the Sherman Act. On appeal, Tolkan challenges both of these conclusions. II. As this court recently re-emphasized, the rule of reason is the standard traditionally applied to most anticompetitive practices challenged under § 1 of the Sherman Act. United States Trotting Association v. Chicago Downs Association, 665 F.2d 781, 787 (7th Cir. 1981) (en banc). There are, however, a limited number of practices “which, because of their pernicious effect on competition and lack of any redeeming virtue are conclusively presumed to be unreasonable and therefore illegal” without the often elaborate inquiry into anticompetitive effect which is characteristic of rule of reason analysis. Northern Pac. Ry. Co. v. United States, 356 U.S. 1, 5, 78 S.Ct. 514, 518, 2 L.Ed.2d 545 (1958). Only after courts have had considerable experience with a particular type of conduct, and application of the rule of reason has inevitably resulted in a finding of anticompetitive effect, will the practice in question generally be deemed a per se violation. Havoco of America, Ltd. v. Shell Oil Co., 626 F.2d 549, 555 (7th Cir. 1980); see Continental T.V., Inc. v. GTE Sylvania Inc., 433 U.S. 36, 97 S.Ct. 2549, 53 L.Ed.2d 568 (1977). The Supreme Court has long characterized certain types of group boycotts as per se antitrust violations. For example, in Fashion Originators’ Guild of America, Inc. v. Federal Trade Comm’n., 312 U.S. 457, 61 S.Ct. 703, 85 L.Ed. 949 (1941), the" }, { "docid": "17280474", "title": "", "text": "their business relations with Dunnivant, this does not alter our conclusion. It is of no moment that Spence’s independent actions may have caused Dunnivant economic harm. See Garment District, Inc., v. Belk Store Services, Inc., 799 F.2d 905 (4th Cir. 1986), cert. denied, — U.S. —, 108 S.Ct. 1728, 100 L.Ed.2d 193 (1988) (where the court in applying the Monsanto standard held that termination may be justified in order to avoid losing a disgruntled customer); see also Golf City, Inc., v. Wilson Sporting Goods, Co., Inc., 555 F.2d 426 (5th Cir.1977). We emphasize that mere complaints are not sufficient proof where the complaints are equally consistent with both an independent and a collusive interpretation. Dunnivant must produce evidence which tends to exclude the possibility of unilateral action. Helicopter, 818 F.2d at 1534. In this case, Dunnivant has failed to meet the standard. II. Vertical Competition The Supreme Court has long established that vertical agreements on resale prices are per se illegal. See Dr. Miles Medical Co. v. John D. Park & Sons Co., 220 U.S. 373, 31 S.Ct. 376, 55 L.Ed. 502 (1911). The Court, however, is careful to narrow this per se rule. See Continental TV, Inc. v. GTE Sylvania, Inc., 433 U.S. 36, 58, 97 S.Ct. 2549, 2561, 53 L.Ed.2d 568 (1977) (where the Supreme Court refused to extend per se illegality to vertical non- price restraints). In Business Electronics Corporation v. Sharp Electronic Corp., — U.S. -, 108 S.Ct. 1515, 99 L.Ed.2d 808 (1988), the Supreme Court held that “vertical nonprice restraints had not been shown to have such a ‘pernicious effect on competition’ ... as to justify per se illegality.” Sharp, 108 S.Ct. at 1519 (quoting Northern Pacific R. Co. v. United States, 356 U.S. 1, 5, 78 S.Ct. 514, 518, 2 L.Ed.2d 545 (1958)). “[T]he legality of arguably anticompetitive conduct should be judged primarily by its ‘market impact.’ ” Monsanto, 465 U.S. at 762, 104 S.Ct. at 1470 (citing GTE Sylvania, 433 U.S. at 51, 97 S.Ct. at 2558). If interbrand competition exists, this will afford a safeguard against “any attempt to exploit intrabrand market" }, { "docid": "16565544", "title": "", "text": "an anti-trust complaint setting forth a valid cause of action be entitled to a full-dress trial notwithstanding the absence of any significant probative evidence tending to support the complaint. See also Aladdin Oil Co. v. Texaco, Inc., 603 F.2d 1107, 1110-12 (5th Cir. 1979). Like the district court, we must view the evidence in the light most favorable to the nonmoving party, giving that party the benefit of all reasonable inferences without assessing credibility. Only if the evidence is so one-sided that it leaves no room for any reasonable difference of opinion as to any material fact should the case be decided by the court as a matter of law rather than be submitted to the jury. See, e.g., Admiral Theatre Corp. v. Douglas Theatre Co., 585 F.2d 877, 883 (8th Cir. 1978). “Vertical” Horizontal Restraint or “Horizontal” Vertical Agreement ? This case presented the following question of law: after Continental T.V., Inc. v. GTE Sylvania, Inc., 433 U.S. 36, 97 S.Ct. 2549, 53 L.Ed.2d 568 (1977) (GTE Sylvania), is the per se rule or the rule of reason appropriate in determining whether a technically vertical restraint of trade, which smacks of horizontal pricing interference, unduly restrains trade under § 1 of the Sherman Act. If the rule of reason is the appropriate test to prove a violation of § 1, a plaintiff must show that the combination or conspiracy produced actual anti-competitive effects within the relevant market. Appellants in the present case made no attempt to proffer such market evidence but instead argued that the alleged conspiracy constitutes a per se violation of the Act, thus requiring no proof of actual harmful impact on the market. Per se violations are exceptions to the rule of reason. Northern Pacific R.R. v. United States, 356 U.S. 1, 5, 78 S.Ct. 514, 518, 2 L.Ed.2d 545 (1958), set forth the standard for a per se violation: “agreements or practices which because of their pernicious effect on competition and lack of any redeeming virtue are conclusively presumed to be unreasonable and therefore illegal.” “Among those business practices that have been treated as per" }, { "docid": "15657599", "title": "", "text": "with the distinction between these two unlawful acts. Without the instruction given, the court’s instruction on the purpose of the Sherman Act likely would have misled the jury into believing that it could find for plaintiffs upon a showing that nothing more than a business tort occurred. The Sherman Act requires more than mere injury to a competitor. Plaintiffs must show also that the “effect upon competition in the marketplace is substantially adverse.” United States v. Arnold, Schwinn & Co., 388 U.S. 365,375, 87 S.Ct. 1856, 1863, 18 L.Ed.2d 1249 (1967); see Continental T.V., Inc. v. GTE Sylvania Inc., 433 U.S. 36, 97 S.Ct. 2549, 53 L.Ed.2d 568 (1977); Magnus Petroleum Co. v. Skelly Oil Co., 599 F.2d 196, 204 (7th Cir.), cert. denied, 444 U.S. 916, 100 S.Ct. 231, 62 L.Ed.2d 171 (1979); Lee Klinger Volkswagen, Inc. v. Chrysler Corp., 583 F.2d 910, 914-15 & n. 6 (7th Cir.), cert. denied, 439 U.S. 1004, 99 S.Ct. 616, 58 L.Ed.2d 680 (1978). The instruction is thus a fair statement of the law phrased in language fair to both parties. Absent the instruction, the jury might have been led to believe by the other instruction that it could award damages for injuries arising from conduct that had no impact on the relevant market merely because plaintiffs and defendants were competitors in that market. Plaintiffs’ reliance on Radiant Burners, Inc. v. Peoples Gas Light & Coke Co., 364 U.S. 656, 81 S.Ct. 365, 5 L.Ed.2d 358 (1961), and Klor’s Inc. v. Broadway-Hale Stores, Inc., 359 U.S. 207, 79 S.Ct. 705, 3 L.Ed.2d 741 (1959), for the proposition that it need not show actual injury to competition is misplaced. Those cases involved group boycotts, a per se antitrust violation. Unlike the present case, which was properly analyzed using the rule of reason, see pp. 812-813 infra, per se violations are by nature presumed to have a “pernicious effect on competition.” Northern Pacific Railway v. United States, 356 U.S. 1, 5, 78 S.Ct. 514, 518, 2 L.Ed.2d 545 (1958). Absent that presumption, the instruction given m this case properly apprised the jury of plaintiffs’" }, { "docid": "283126", "title": "", "text": "number of practices “which, because of their pernicious effect on competition and lack of any redeeming virtue are conclusively presumed to be unreasonable and therefore illegal” without the often elaborate inquiry into anticompetitive effect which is characteristic of rule of reason analysis. Northern Pac. Ry. Co. v. United States, 356 U.S. 1, 5, 78 S.Ct. 514, 518, 2 L.Ed.2d 545 (1958). Only after courts have had considerable experience with a particular type of conduct, and application of the rule of reason has inevitably resulted in a finding of anticompetitive effect, will the practice in question generally be deemed a per se violation. Havoco of America, Ltd. v. Shell Oil Co., 626 F.2d 549, 555 (7th Cir. 1980); see Continental T.V., Inc. v. GTE Sylvania Inc., 433 U.S. 36, 97 S.Ct. 2549, 53 L.Ed.2d 568 (1977). The Supreme Court has long characterized certain types of group boycotts as per se antitrust violations. For example, in Fashion Originators’ Guild of America, Inc. v. Federal Trade Comm’n., 312 U.S. 457, 61 S.Ct. 703, 85 L.Ed. 949 (1941), the Court held that the refusal of an organization of dress manufacturers and designers to do business with any retailer or manufacturer who sold copies of their original designs constituted a per se violation of the Sherman Act. Similarly, in Klor’s Inc. v. Broadway-Hale Stores, Inc., 359 U.S. 207, 79 S.Ct. 705, 3 L.Ed.2d 741 (1959), the Court condemned as a per se offense an agreement among a department store chain and as many as ten national manufacturers of household appliances to refuse to sell (or to sell only on highly unfavorable terms) to a retail outlet competing with the department store chain. Central to the Court’s holdings in both Fashion Originators’ Guild and Klor’s was its perception that the behavior in question represented a “naked restraint[ ] of trade with no purpose except stifling of competition.” White Motor Co. v. United States, 372 U.S. 253, 263, 83 S.Ct. 696, 702, 9 L.Ed.2d 738 (1963); see E. A. McQuade Tours, Inc. v. Consolidated Air Tour Manual Committee, 467 F.2d 178, 179 (5th Cir. 1972), cert. denied," }, { "docid": "11910561", "title": "", "text": "has been unreasonable — an inquiry so often wholly fruitless when undertaken. Northern Pac. Ry. Co. v. United States, 356 U.S. 1, 5, 78 S.Ct. 514, 2 L.Ed.2d 545 (1958). Examples of per se illegal conduct include group boycotts, division of markets, and tying arrangements. See id. These categories reflect judicial experience with the rule of reason. See Arizona v. Maricopa County Med. Soc’y, 457 U.S. 332, 344, 102 S.Ct. 2466, 73 L.Ed.2d 48 (1982) (“Once experience with a particular kind of restraint enables the Court to predict with confidence that the rule of reason will condemn it, it has applied a conclusive presumption that the restraint is unreasonable.”). Only “manifestly anticompetitive” conduct, however, is appropriately designated per se illegal. See Continental T.V., Inc. v. GTE Sylvania, Inc., 433 U.S. 36, 49-50, 97 S.Ct. 2549, 53 L.Ed.2d 568 (1977). The majority of allegedly anticompetitive conduct continues to be examined under the rule of reason. See Capital Imaging Assocs. v. Mohawk Valley Med. Assocs., 996 F.2d 537, 543 (2d Cir.1993). Where cooperation is inherent in an enterprise, per se treatment is not always the appropriate measure of antitrust illegality. See Northwest Wholesale Stationers, Inc. v. Pacific Stationery & Printing Co., 472 U.S. 284, 295, 105 S.Ct. 2613, 86 L.Ed.2d 202 (1985). Absent a showing that a presumption of anticompetitive effect is appropriate, we apply the rule of reason. See id. at 297, 105 S.Ct. 2613. Courts have been reluctant to expand the categories of per se illegality. See Bunker Ramo Corp. v. United Business Forms, Inc., 713 F.2d 1272, 1284 (7th Cir.1983) (“A particular course of conduct will not be termed a per se violation ... until the courts have had considerable experience with that type of conduct and application of the rule of reason has inevitably resulted in a finding of anti-competitive effects.”). The Supreme Court has warned against “indiscriminately” expanding “the category of restraints classed as group boycotts,” noting that “the per se approach has generally been limited to cases in which firms with market power boycott suppliers or customers in order to discourage them from doing business with" }, { "docid": "2660196", "title": "", "text": "626 (1965) (opinion of White, J.). I start with the basic proposition that the rule of reason is the prevailing standard of analysis. Continental T.V., Inc. v. GTE Sylvania Inc., 433 U.S. 36, 49, 97 S.Ct. 2549, 53 L.Ed.2d 568 (1977); Sitkin Smelting & Refining Co. v. FMC Corp., 575 F.2d 440, 446 (3d Cir. 1978), and that the per se standard is applicable only in limited situations. As the Court explained in Northern Pacific Railway v. United States, 356 U.S. 1, 5, 78 S.Ct. 514, 518, 2 L.Ed.2d 545 (1958): “[Tjhere are certain agreements or practices which because of their pernicious effect on competition and lack of any redeeming virtue are conclusively presumed to be unreasonable and therefore illegal without elaborate inquiry as to the precise harm they have caused or the business excuse for their use.” The majority opinion correctly points out that some refusals to deal have been classified as per se violations. All of the cited cases, however, reviewed fact situations involving business competitors. The Supreme Court has never held that all boycotts, even those involving noncompetitors are per se violations, nor is there any present indication that that position will prevail. Indeed, in De Filippo v. Ford Motor Co., 516 F.2d 1313, 1317-18 (3d Cir. 1975), we cautioned that a consequence of an overreliance on the “boycott” label would be the indiscriminate extension of the per se principle. The case at bar does not represent a. classic commercial boycott because the union is not a competitor of the shipping association or of the stevedoring companies. Its aim was not the elimination of competition but work preservation or acquisition. Concededly, a boycott may include noncompetitors and be a violation of the Clayton Act, but that does not answer the question whether a per se violation is involved. See St. Paul Fire & Marine Insurance Co. v. Barry, 438 U.S. 531, 98 S.Ct. 2923, 57 L.Ed.2d 932 (1978). A political, religious, racial, or consumer group that promotes a boycott of particular products to enforce its aims would not be guilty of a per se violation. In these" }, { "docid": "18694907", "title": "", "text": "L.Ed.2d 515 (1972). The per se rule is applied only to “agreements or practices which because of their pernicious effect on competition and lack of any redeeming virtue are conclusively presumed to be unreasonable and therefore illegal without elaborate inquiry as to the precise harm they have caused or the business excuse for their use.” Northern Pacific Railway Co. v. United States, 356 U.S. 1, 5, 78 S.Ct. 514, 518, 2 L.Ed.2d 545 (1958). Moreover, “[i]t is only after considerable experience with certain business relationships that courts classify them as per se violations of the Sherman Act.” United States v. Topeo Associates, supra, 405 U.S. at 607-08, 92 S.Ct. at 1133-1134. Two of the types of business practices restraining trade that have been found presumptively unreasonable and thus subject to the per se rule, however, are price-fixing, see, e. g., United States v. Trenton Potteries Co., 273 U.S. 392, 47 S.Ct. 377, 71 L.Ed. 700 (1927), and group boycotts. See, e. g., Klor’s, Inc. v. Broadway-Hale Stores, Inc., 359 U.S. 207, 79 S.Ct. 705, 3 L.Ed.2d 741 (1959). These, of course, are the types of business relationships the Government alleges that the defendants have established in the Premiere agreement. The defendants contend, first, that their agreement does not provide for price-fixing or a group boycott (at least, as those terms are defined for purposes of the antitrust laws) and, second, that even if it does so provide, the circumstances of this case preclude application of the per se rule to their agreement. Arguing that the per se rule should be used only in rare situations, the defendants cite recent cases in both the Supreme Court and the lower courts that reveal a reluctance to apply the per se rule. See Broad-east Music, Inc. v. CBS, Inc., 441 U.S. 1, 99 S.Ct. 1551, 60 L.Ed.2d 1 (1979); Continental T.V., Inc. v. GTE Sylvania, Inc., 433 U.S. 36, 97 S.Ct. 2549, 53 L.Ed.2d 568 (1977); Evans v. S.S. Kresge Co., 544 F.2d 1184 (3d Cir. 1976), cert. denied, 433 U.S. 908, 97 S.Ct. 2973, 53 L.Ed.2d 1092 (1977). Those cases are distinguishable" }, { "docid": "5284547", "title": "", "text": "and Cross-Appellant at 46. The contention that a horizontal conspiracy to suppress competition through the elimination of a competitor by unfair means constitutes a per se violation is derived from Albert Pick-Barth Co. v. Mitchell Woodbury Corp., 57 F.2d 96 (1st Cir.1932), cert. denied, 286 U.S. 552, 52 S.Ct. 503, 76 L.Ed. 1288 (1932). Some courts have viewed this Court’s decision in Perry-ton Wholesale, Inc. v. Pioneer Distributing Co., 353 F.2d 618 (10th Cir.1965), cert. denied, 383 U.S. 945, 86 S.Ct. 1202, 16 L.Ed.2d 208 (1966), as adopting the Pick-Barth per se rule. See, e.g., Havoco of America, Ltd. v. Shell Oil Co., 626 F.2d 549, 555 (7th Cir.1980); Northwest Power Products, Inc. v. Omark Industries, Inc., 576 F.2d 83, 86 (5th Cir.1978), cert. denied, 439 U.S. 1116, 99 S.Ct. 1021, 59 L.Ed.2d 75 (1979). But in Craig v. Sun Oil Co., 515 F.2d 221, 224 (10th Cir.1975), cert. denied, 429 U.S. 829, 97 S.Ct. 88, 50 L.Ed.2d 92 (1976), we said Perryton Wholesale “is not necessarily a per se case despite the citation of the First Circuit cases.” This Circuit has not held that a conspiracy to eliminate a competitor by unfair means constitutes a per se violation, and we decline to do so now. Generally, conduct alleged to violate the Sherman Act is scrutinized under the rule of reason rather than the per se rule, and “departure from the rule-of-reason standard must be based upon demonstrable economic effect.” Continental T.V., Inc. v. GTE Sylvania, Inc., 433 U.S. 36, 58-59, 97 S.Ct. 2549, 2561-2562, 53 L.Ed.2d 568 (1977). “It is only after considerable experience with certain business relationships that courts classify them as per se violations of the Sherman Act.” United States v. Topco Associates, Inc., 405 U.S. 596, 607-08, 92 S.Ct. 1126, 1133-1134, 31 L.Ed.2d 515 (1972). Per se rules are fashioned to promote litigation efficiency and business certainty by prohibiting conduct that is characterized by a “pernicious effect on competition and lack of any redeeming virtue.” Northern Pacific Railway v. United States, 356 U.S. 1, 5, 78 S.Ct. 514, 518, 2 L.Ed.2d 545 (1958). However, despite the" }, { "docid": "9544462", "title": "", "text": "business enterprises that restrains trade, § 1 was intended to prohibit only unreasonable restraints of trade. Business Electronics Corp. v. Sharp Electronics Corp., 485 U.S. 717, 108 S.Ct. 1515, 1519, 99 L.Ed.2d 808 (1988). Thus, with the exception of “certain agreements or practices which because of their pernicious effect on competition and lack of any redeeming virtue are conclusively presumed to be unreasonable and therefore illegal without elaborate inquiry as to the precise harm they have caused or the business excuse for their use,” Northern Pacific Ry. v. United States, 356 U.S. 1, 5, 78 S.Ct. 514, 518, 2 L.Ed.2d 545 (1958), courts analyze alleged concerted conduct under the rule of reason standard. Rule of reason analysis requires a case-by-case balancing of the economic effects of the concerted action to determine whether it constitutes an unreasonable restraint on competition. Business Electronics Corp., 108 S.Ct. at 1519. Horizontal restraints are a classic example of a combination that is unlawful per se, United States v. Topco Assocs., 405 U.S. 596, 608, 92 S.Ct. 1126, 1133, 31 L.Ed.2d 515 (1972), while vertical agreements between a manufacturer and distributors to divide markets are typically analyzed under the rule of reason. Continental T. V., Inc. v. GTE Sylvania, Inc., 433 U.S. 36, 58, 97 S.Ct. 2549, 2561, 53 L.Ed.2d 568 (1977). Plaintiff contends that the agreement between Van Wagenen and Central National was horizontal in nature and, therefore, a per se violation of § 1 because Action, which was owned by Central National, was a competitor. Apparently, plaintiffs argument is that an agreement with a subsidiary’s parent is automatically an agreement with the subsidiary. Defendants respond that there was no agreement between Van Wagenen and Central National, but rather a unilateral statement of policy made by Central National. Defendants, citing Pink Supply Corp. v. Hiebert, 788 F.2d 1313 (8th Cir.1986), further assert that even if there was an agreement, Van Wagenen and Central National were legally incapable of conspiring. Therefore, even if there was an agreement, that agreement was not per se unlawful and is subject to a rule of reason analysis. Finally, defendants contend" }, { "docid": "19821434", "title": "", "text": "broadly worded to prohibit “[ejvery combination ... or conspiracy, in restraint of trade or commerce.” 15 U.S.C. § 1. But the courts have construed section 1 to prohibit only those combinations which unreasonably restrain competition. Northern Pacific Railway v. United States, 356 U.S. 1, 4-5, 78 S.Ct. 514, 517-18, 2 L.Ed.2d 545 (1958); Bunker Ramo Corp. v. United Business Forms, Inc., 713 F.2d 1272, 1283 (7th Cir.1983). Some conduct is so destructive of competition that it is considered per se violations of the Sherman Act, United States v. Topeo Associates, Inc., 405 U.S. 596, 607-08, 92 S.Ct. 1126, 1133-34, 31 L.Ed.2d 515 (1972). When a per se of fense is alleged, a showing of anticompetitive effect is not required to establish a Sherman Act violation. Continental T. V., Inc. v. GTE Sylvania, Inc., 433 U.S. 36, 49-50, 97 S.Ct. 2549, 2557, 53 L.Ed.2d 568 (1977). But the “rule of reason” is the general test for determining whether an antitrust violation has been stated. Standard Oil v. United States, 221 U.S. 1, 31 S.Ct. 502, 55 L.Ed. 619 (1911). A finder of fact must weigh all circumstances presented by a particular case to decide whether a restrictive practice is an unreasonable restraint on competition which must be prohibited. Continental T.V., Inc. v. GTE Sylvania, Inc., 433 U.S. 36, 49, 97 S.Ct. 2549, 2557, 53 L.Ed.2d 568 (1977). In contrast to a per se violation, under the rule of reason anticompetitive effects or actual harm to competition must be shown to establish an antitrust cause of action. Independence Tube Corp. v. Copperweld Corp., 691 F.2d 310, 322 (7th Cir.1982). In the present case, the parties agree that the rule of reason provides the analytical framework for resolution of the pending motions. The key to our present inquiry under the rule of reason is whether Hoffman has alleged any anticompetitive effect arising from defendants’ conduct or whether we are able to infer such an effect. Bunker Ramo Corp. v. United Business Forms, Inc., 713 F.2d 1272, 1285 (7th Cir. 1983). While industry customs and usages may indeed become part of a contract and" }, { "docid": "16453840", "title": "", "text": "the Sherman Act’s ban against contracts, conspiracies, and combinations in restraint of trade, the Court has held that certain agreements or practices are so “plainly anti-competitive,” National Society of Professional Engineers v. United States, 435 U.S. 679, 692, 98 S.Ct. 1355, 1365, 55 L.Ed.2d 637 (1978); Continental TV, Inc. v. GTE Sylvania, Inc., 433 U.S. 36, 50, 97 S.Ct. 2549, 2558, 53 L.Ed.2d 568 (1977), and so often “lack ... any redeeming virtue,” Northern Pac. R. Co. v. United States, 356 U.S. 1, 5, 78 S.Ct. 514, 518, 2 L.Ed.2d 545 (1958), that they are conclusively presumed illegal without further examination under the rule of reason generally applied in Sherman Act cases. Broadcast Music, Inc. v. Columbia Broadcasting Co., 441 U.S. 1, 99 S.Ct. 1551, 1556, 60 L.Ed.2d 1 (1979). (hereinafter cited as BMI) When a class of restraints is determined to fall within this category, a court’s task in evaluating its legality is considerably abbreviated. A court need not then inquire whether the restraint’s authors actually possess the power to inflict public injury, Klor’s, Inc. v. Broadway-Hale Stores, Inc., 359 U.S. 207, 79 S.Ct. 705, 709, 3 L.Ed.2d 741 (1959); United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 60 S.Ct. 811, 845 n. 59, 84 L.Ed. 1129 (1940), nor will the court accept argument that the restraint in the circumstances is justified by any procompetitive purpose or effect. Continental T.V., Inc. v. GTE Sylvania, Inc., 433 U.S. 36, 97 S.Ct. 2549, 2557 n. 16, 53 L.Ed.2d 568 (1977); Klor’s, supra, 79 S.Ct. at 709; Northern Pacific Railway Co. v. United States, 356 U.S. 1, 78 S.Ct. 514, 518, 2 L.Ed.2d 545 (1958). The per se rule is the trump card of antitrust law. When an antitrust plaintiff successfully plays it, he need only tally his score. Properly applied, the per se rule is “a valid and useful tool of antitrust enforcement.” BMI, supra, 99 S.Ct. at 1556. In light of the potency of the per se rule, however, the Supreme Court has recently re-emphasized that the invocation of this conversation-stopper must be limited to those situations which fairly" }, { "docid": "8792723", "title": "", "text": "356 U.S. 1, 5, 78 S.Ct. 514, 2 L.Ed.2d 545 (1958). As the Supreme Court has recently pointed out in Continental T.V., Inc. v. GTE Sylvania, Inc., 433 U.S. 36, 97 S.Ct. 2549, 53 L.Ed.2d 568 (1977), the prevailing standard of analysis under the Sherman Act is the rule of reason. The rule of reason requires the fact-finder to weigh all circumstances of the case in deciding whether a practice should be condemned because it unreasonably restrains trade. Certain relationships, however, are considered to be in violation of the Sherman Act without regard to any consideration of their reasonableness. The per se category of antitrust violations is made up of “agreements or practices which because of their pernicious effect on competition and lack of any redeeming virtue are conclusively presumed to be unreasonable and therefore illegal without elaborate inquiry as to the precise harm they have caused or the business excuse for their use.” Northern Pacific Ry. v. United States, 356 U.S. 1, 5, 78 S.Ct. 514, 518, 2 L.Ed.2d 545 (1958). Courts must appraise the market impact of practices challenged on the grounds they are violative of the Sherman Act unless there is a per se violation. Since a per se violation is conclusively presumed to be unreasonable, no trial is necessary to show the nature, extent, and degree of the market effect of the practice. White Motor Co. v. United States, 372 U.S. 253, 83 S.Ct. 696, 9 L.Ed.2d 738 (1963). While plaintiffs contend that the agreement was per se violative of § 1, it is difficult to isolate any specific factors relied upon by them which would allow us to support their contention. They argue that the agreement amounted to price-fixing, a practice widely acknowledged to be a per se violation of the Sherman Act. The price-fixing within the scope of the per se prohibition of § 1, however, is an agreement to fix the price to be charged in transactions with third parties, not between the contracting parties themselves. Thus, in United States v. General Motors Corp., 384 U.S. 127, 86 S.Ct. 1321, 16 L.Ed.2d 415" }, { "docid": "18810947", "title": "", "text": "is reduced does not significantly affect commerce insofar as it reduces the opportunities of would-be franchisees to obtain franchises, though not to compete for them. Plaintiff seeks to neutralize the inadequacy of its pleadings by characterizing the agreement as a per se violation. Per se violations do not require a showing of deleterious impact on competition. The acts involved are considered so repugnant to the policies underlying antitrust law that they create a presumption of anticompetitive effect. See Klor’s Inc. v. Broadway-Hale Stores, Inc., 359 U.S. 207, 212-13, 79 S.Ct. 705, 709-710, 3 L.Ed.2d 741 (1959); Copy-Data Systems, Inc. v. Toshiba America, Inc., 663 F.2d 405, 408 (2d Cir.1981). Only a narrow class of practices, however, warrant classification as per se violations. Continental T.V., Inc., v. GTE Sylvania Inc., 433 U.S. 36, 49-50, 97 S.Ct. 2549, 2557-2558, 53 L.Ed.2d 568 (1977); Northern Pacific Railway Co. v. United States, 356 U.S. 1, 5, 78 S.Ct. 514, 518, 2 L.Ed.2d 545 (1958). In Klor’s, for example, a group of retailers combined for the sole purpose of eliminating competition from a retailer who sold competing products at a discount. 359 U.S. at 212-13, 79 S.Ct. at 709-710. Agreements that lack an obvious anticompetitive effect, and that may be supported by rational business planning, cannot be treated as per se violations. Rather, Section 1 challenges to these agreements must be resolved under a rule of reason approach which weighs all relevant circumstances to decide whether they justify the practice notwithstanding demonstrated anticompetitive effects. Plaintiff has failed to provide evidence of anticompetitive effect. That Gianna and the other former state franchisees lost their franchises is insufficient. See Copy-Data, Systems, Inc. v. Toshiba America, Inc., supra, 663 F.2d at 408; Nifty Foods Corp. v. Great Atlantic & Pacific Tea Co., supra, 614 F.2d at 841; Oreck Corp. v. Whirlpool Corp., supra, 579 F.2d at 133. ■Plaintiff cannot convert the losses it may have sustained as a result of alleged breaches of contract and misrepresentations into an antitrust claim, without demonstrating the type of injury against which the antitrust laws were intended to protect. Plaintiff also lacks" }, { "docid": "22560284", "title": "", "text": "against the precipitate application of the per se doctrine. As the Court stated in Broadcast Music, Inc. v. Columbia Broadcasting Sys., Inc., 441 U.S. 1, 19-20, 99 S.Ct. 1551, 1562-1563, 60 L.Ed.2d 1 (1979), a practice could only be considered a per se violation if its effect and purpose was “to threaten the proper operation of our predominantly free-market economy,” that is, if the practice “facially appears to be one that would always or almost always tend to restrict competition and decrease output.” See also Continental T. V., Inc. v. GTE Sylvania, Inc., 433 U.S. 36, 97 S.Ct. 2549, 53 L.Ed.2d 568 (1977). Thus, the per se label must be applied with caution and we will expand that class of violations “only after the courts have had considerable experience with the type of conduct challenged and application of the Rule of Reason has inevitably resulted in a finding of anticom-petitive effects.” Havoco, supra, 626 F.2d at 555. Although their argument is less than clear, the plaintiffs apparently maintain that the activities alleged in the complaint constitute a per se violation. In support of their argument, the plaintiffs have referred us to decisions condemning vertical and horizontal agreements for resale price maintenance, as well as concerted refusals to deal. Of course, the plaintiffs' attachment of the per se label is simply inadequate in itself to sustain the complaint; the defendants’ alleged activity must be scrutinized to determine whether such a characterization is appropriate. Bunker Ramo Corp. v. United Business Forms, Inc., 713 F.2d 1272, 1284 (7th Cir. 1983). After considering the allegations, we find that the lines of authority relied upon by the plaintiffs are simply inapposite and that no per se violation has been alleged. First, only those vertical arrangements that accompany or implement a price-fixing scheme are considered per se violations; other vertical arrangements must be tested under the Rule of Reason. Monsanto Co. v. Spray-Rite Sen. Corp., — U.S. —, 104 S.Ct. 1464, 1469, 79 L.Ed.2d 775 (1984); Continental T.V., supra. The plaintiffs have not alleged a price-fixing scheme, and price-cutting by Car Carriers was in no way" } ]

[ { "docid": "18896860", "title": "", "text": "Federal Judgeship Act of 1984 added a new section 1325(b) which authorizes courts to confirm a plan in which all of the debtor’s disposable income for three years is applied to make payments under the plan. 11 U.S.C. § 1325(b). In Education Assistance Corp. v. Zellner, 827 F.2d 1222 (8th Cir.1987), we considered the effect of the new section 1325(b) on the Estus analysis of good faith. We stated that the new section’s “ability to pay” criteria subsumed most of the Estus factors and thus narrowed the focus of the good faith inquiry. Id. at 1227. We described the narrower focus as depending upon “whether the debtor has stated his debts and expenses accurately; whether he has made any fraudulent misrepresentation to mislead the bankruptcy court; or whether he has unfairly manipulated the Bankruptcy Code.” Id. Although Zellner modified the good faith determination in response to the new section 1325(b), it is recognized that Zell-ner preserved the traditional “totality of circumstances” approach with respect to Estus factors not addressed by the legislative amendments. See In re Smith, 848 F.2d 813, 820 n. 8 (7th Cir.1988). Thus, in considering whether LeMaire proposed his plan in good faith, factors such as the type of debt sought to be discharged and whether the debt is nondischargeable in Chapter 7, and the debtor’s motivation and sincerity in seeking Chapter 13 relief are particularly relevant. Estus, 695 F.2d at 317. These are factual findings made by the bankruptcy court which we review under a clearly erroneous standard. “When a district court reviews a bankruptcy court’s judgment, it acts as an appellate court.” Wegner v. Grunewaldt, 821 F.2d 1317, 1320 (8th Cir.1987). In turn, when the case is appealed to this court, we perform the same appellate function as the district court of reviewing legal conclusions on a de novo basis and factual findings under a clearly erroneous standard. Id. The Supreme Court carefully articulated the principles governing a court examining factual findings under the clearly erroneous standard in Anderson v. City of Bessemer City, 470 U.S. 564, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985). “A" } ]

[ { "docid": "14713966", "title": "", "text": "faith ...” If a creditor objects to confirmation on the ground that the debtor does not meet this element, the Bankruptcy Court must make ... a separate, independent determination ... [T]he proper inquiry should [analyze] whether the plan constitutes an abuse of the provisions, purpose or spirit of Chapter 13. The Bankruptcy Court must utilize its fact-finding expertise and judge each case on its own facts after considering all the circumstances of the case. In re Estus, 695 F.2d 311, 316 (8th Cir. 1982). See also In re Schyma, 68 B.R. at 68-69. The Eighth Circuit recently reaffirmed the applicability of this totality-of-circumstances analysis in In re LeMaire, 898 F.2d at 1349 (en banc), and in Noreen v. Slattengren, 974 F.2d 75, 76 (8th Cir. 1992). Because the 1984 enactment of § 1325(b) subsumed most of the financially-based objections to confirmation under § 1325(a)(3) that had been recognized under In re Estus, the good-faith element now involves considerations of a more subjective nature. Education Assistance Corp. v. Zellner, 827 F.2d at 1227. They include the debtor’s motivation in seeking Chapter 13 relief; the financial and personal goals the debtor would accomplish through Chapter 13; and the debtor’s manifested attitude toward the integrity of the bankruptcy process. In re Cordes, 147 B.R. at 503. The Eighth Circuit has identified a half-dozen specific factors relevant to this inquiry: 1. Whether the debtor has accurately stated his debts and expenses on his bankruptcy statements and schedules, Education Assistance Corp. v. Zellner, 827 F.2d at 1227; 2. Whether the debtor has made any fraudulent misrepresentation in connection with the case, to mislead the Bankruptcy Court or his creditors, id.; 3. The type of debt which the debtor seeks to discharge in Chapter 13, In re LeMaire, 898 F.2d at 1349; 4. Whether any of the debtor’s debt would be nondischargeable in a Chapter 7 case, id.; 5. “The debtor’s motivations and sincerity in seeking Chapter 13 relief,” id.; and 6. Whether the debtor has “unfairly manipulated the Bankruptcy Code” in any aspect of his plan, Education Assistance Corp. v. Zellner, 827 F.2d at 1227." }, { "docid": "18782532", "title": "", "text": "faith” is left undefined by the [Bankruptcy] Code. In the context of a Chapter 11 reorganization, however, a plan is considered proposed in good faith “if there is a reasonable likelihood that the plan will achieve a result consistent with the standards prescribed under the Code.” Hanson v. First Bank of South Dakota, N.A., 828 F.2d 1310, 1315 (8th Cir.1987) (citation omitted). See also In re Marion St. Partnership, 108 B.R. at 223 (to determine debtor’s good faith in context of motions for dismissal or conversion and for relief from stay, Bankruptcy Court should “look to the totality of the circumstances ... to determine, on an objective basis, whether there is some reasonable possibility of successful reorganization without inordinate delay ... ”). These pronouncements fully comport with the Eighth Circuit’s treatment of Chapter 13’s parallel provision, 11 U.S.C. § 1325(a)(3). One can fairly take a page from an early decision construing that section, where the Eighth Circuit held that, on a creditor’s objection to confirmation founded on allegations of bad faith, the Bankruptcy Court must make ... the separate, independent determination ... [T]he proper inquiry should [analyze] whether the plan constitutes an abuse of the provisions, purpose or spirit of Chapter 13. The Bankruptcy Court must utilize its fact-finding expertise and judge each case on its own facts after considering all the circumstances of the case. In re Estus, 695 F.2d 311, 316 (8th Cir. 1982). Under this approach, the financial goals that the debtor would accomplish through bankruptcy, and the debtor’s manifested attitude toward the integrity of the bankruptcy process, are crucial factors. In re Sitarz, 150 B.R. 710, 721 (Bankr.D.Minn.1993); In re Cordes, 147 B.R. 498, 503 (Bankr.D.Minn.1992). Admittedly, these precepts emerge from the cases of consumer-debtors with meager assets and modest debts, who seemingly have little in common with large business concerns in Chapter 11, other than their common predicament of financial distress. However, given the identity of the statutory language, the aspects of the Chapter 13 good-faith analysis that have some factual comparability to the goals and motivations of artificial business entities and their principals are" }, { "docid": "18586846", "title": "", "text": "v. Johns-Manville Corp. (In re Johns-Manville Corp.), 843 F.2d 636, 649 (2d Cir.1988) (citations and quotations omitted). A plan proponent satisfies the good faith test “‘if there is a likelihood that the plan will achieve a result consistent with the standards prescribed under the Code.’ ” In re Texaco Inc., 84 B.R. 893, 907 (Bankr.S.D.N.Y.) (citing Hanson v. First Bank of South Dakota, 828 F.2d 1310, 1315 (8th Cir.1987) (quotation omitted)), appeal dismissed, Trans World Airlines, Inc. v. Texaco, Inc. (In re Texaco, Inc.), 92 B.R. 38 (S.D.N.Y.1988). “The evaluation of good faith is not based on the plan proponents’ behavior prior to the filing of the bankruptcy petition(,)” In re General Homes Corp., 134 B.R. 853, 862 (Bankr.S.D.Tex.1991), but instead, “in light of the totality of the circumstances surrounding confirmation.” In re Jandous Elec. Constr. Corp., 115 B.R. 46, 52 (Bankr.S.D.N.Y.1990) (citing Sandy Ridge Dev. Corp. v. Louisiana Nat’l Bank (In re Sandy Ridge Dev. Corp.), 881 F.2d 1346, 1353 (5th Cir.1989)). Section 1129(a)(ll)’s feasibility requirement provides that: Confirmation of the plan is not likely to be followed by the liquidation, or the need for further financial reorganization, of the debtor or any successor to the debtor under the plan, unless such liquidation or reorganization is proposed in the plan. 11 U.S.C. § 1129(a)(ll). As I stated in In re Johns-Manville, 68 B.R. 618 (Bankr.S.D.N.Y.1986), aff'd, 78 B.R. 407 (S.D.N.Y.1987), aff'd sub nom. Kane v. Johns-Manville Corp., 843 F.2d 636 (2d Cir.1988): A Bankruptcy Court, in determining the feasibility of a proposed plan of reorganization should “scrutinize the plan carefully to determine whether it offers a reasonable prospect of success and is workable.” In re Monnier Brothers, 755 F.2d 1336, 1341 (8th Cir.1985). The plan proponent is not required to guarantee the ultimate success of the reorganized company. Id.; In re Wolf, 61 B.R. 1010, 1011 (Bankr.N.D.Iowa 1986). Rather, the plan proponent is only required to provide a “reasonable assurance of success”. In re Trail’s End Lodge, Inc., 54 B.R. 898, 904 (Bankr.D.Vt.1985). Id. at 635. The Second Circuit, in construing the feasibility requirement under Chapter XII of the" }, { "docid": "22911604", "title": "", "text": "the Bankruptcy Code in the Bankruptcy Amendments and Federal Judgeship Act of 1984. Id. at ¶ 1325.08[1]. By the time that section 1325(b) was adopted, many courts had already rejected the theory that section 1325(a)(3) required a minimum level of payment to unsecured creditors. See Deans v. O’Donnell, 692 F.2d 968 (4th Cir.1982); In re Rimgale, 669 F.2d 426 (7th Cir.1982); In re Goeb, 675 F.2d 1386 (9th Cir.1982)'. These decisions typically stated that the basic inquiry in determining good faith should be whether the proposed plan involved an abuse of the “provisions, purpose, or spirit” of Chapter 13 and directed that such determination be based upon the totality of the circumstances of the case. E.g., Deans v. O’Donnell, 692 F.2d at 972. The circumstances that were considered by the courts included the debtor’s financial situation, the amount of the debtor’s proposed payments as compared with the debtor’s disposable income, the amount of the payment to creditors, the period of time payment would be made, the debtor’s employment history and prospects, the nature and amount of unsecured claims, the debtor’s past bankruptcy filings, the debtor’s honesty in representing facts, and any unusual or exceptional circumstances facing the particular debtor. Id. Following the adoption of section 1325(b), most of the courts that considered the issue concluded that the adoption of section 1325(b) narrowed the focus for determining good faith under section 1325(a)(3) because the factors related to the debtor’s ability to pay previously considered under the totality of the circumstances test were subsumed by the ability-to-pay test adopted in section 1325(b). Noreen v. Slattengren, 974 F.2d 75, 76 (8th Cir.1992) (“Most of these factors were ‘subsumed’ by 11 U.S.C. § 1325(b) ... which narrowed the focus of the bankruptcy court to ‘look at factors such as whether the debtor has stated his debts and expenses accurately; whether he has made any fraudulent misrepresentation to mislead the bankruptcy court or whether he has unfairly manipulated the Bankruptcy Code.’ ”); In re Smith, 848 F.2d 813, 820 (7th Cir.1988) (the adoption of 1325(b) eliminates “some of the old factors related to minimal payments”" }, { "docid": "23676543", "title": "", "text": "the Disclosure Statement Order, including this Court’s finding that the Disclosure Statement contains adequate information within the meaning of section 1125. 3. Section 1129(a)(3) (Good Faith). Section 1129(a)(3) requires that a plan have been “proposed in good faith and not by any means forbidden by law”. Although the term “good faith” is left undefined by the Code, “[i]n the context of a Chapter 11 reorganization ... a plan is considered proposed in good faith ‘if there is a likelihood that the plan will achieve a result consistent with the standards prescribed under the Code.’ ” Hanson v. First Bank of South Dakota, 828 F.2d 1310, 1315 (8th Cir.1987) (quoting In re Toy & Sports Warehouse, Inc., 37 B.R. 141, 149 (Bankr.S.D.N.Y.1984)). “[T]he bankruptcy judge is in the best position to assess the good faith of the parties’ proposals.” Jasik v. Conrad (In re Jasik), 727 F.2d 1379, 1383 (5th Cir.1984). “According to the good faith requirement of section 1129(a)(3), the court looks to the debtor’s plan and determines, in light of the particular facts and circumstances, whether the plan will fairly achieve a result consistent with the Bankruptcy Code.” In re Madison Hotel Associates, 749 F.2d 410, 425 (7th Cir.1984) (distinguishing between “the good faith that is required to confirm a plan under section 1129(a)(3) and the good faith that has been established as a prerequisite to filing a Chapter 11 petition for reorganization.”) (emphasis in original); accord In re Johns-Manville Corp., 68 B.R. 618, 631 (Bankr.S.D.N.Y.1986), aff'd, 78 B.R. 407 (S.D.N.Y.1987). The Plan embodies the means for resolving all of the litigation resulting from Texaco’s acquisition of Getty Oil and the Pennzoil Judgment (other than the Class Action), and permits the Debtors to turn their full attention to the operation of their businesses. The Plan also enables the Debtors to bring current, and resume future payments on, all of their obligations. Further, the Plan allows Texaco to resume the payment of dividends to shareholders to any extent that Texaco’s Board of Directors believes appropriate. The Plan permits the Debtors to emerge from Chapter 11 promptly, leaves all classes of" }, { "docid": "10181287", "title": "", "text": "119 B.R. at 1001. See also In re Lindsey, 122 B.R. at 158 (debt-service payments on large nonexempt assets build up equity in debtors’ favor, and amount to investments; such investments are made with disposable income, not with the gross income from which one calculates disposable income under the statute). The import, of course, is that § 1325(b)(1)(B) does not afford a basis for objecting to proposals such as the one at bar. 11 U.S.C. § 1325(a)(3) does, however. As a condition of confirmation, it requires the proponent of a Chapter 13 plan to demonstrate that “the plan has been proposed in good faith ...” In applying this provision, the Bankruptcy Court must make: ... a separate, independent determination .... [T]he proper inquiry should [analyze] whether the plan constitutes an abuse of the provisions, purpose or spirit of Chapter 13. The Bankruptcy Court must utilize its fact-finding expertise and judge each case on its own facts after considering all the circumstances of the case. In re Estus, 695 F.2d 311, 316 (8th Cir. 1982). See also In re LeMaire, 898 F.2d at 1349 (en banc) (reaffirming applicability of Estus’s totality-of-circumstances analysis); Noreen v. Slattengren, 974 F.2d 75, 76 (8th Cir.1992). Before the enactment of 11 U.S.C. § 1325(b), the Eighth Circuit suggested that some eleven non-exclusive factors would be relevant to a determination on good faith under § 1325(a)(3). In re Estus, 695 F.2d at 317. In the wake of that enactment, it concluded that most of the financially-related factors under Estus had been “subsume[d]” by § 1325(b). The court is now to ... look at factors such as whether the debtor has stated his debts and expenses accurately; whether he has made any fraudulent misrepresentation to mislead the bankruptcy court; or whether he has unfairly manipulated the Bankruptcy Code. Education Assistance Corp. v. Zellner, 827 F.2d 1222, 1227 (8th Cir.1987). It must also consider the type of debt which the debtor seeks to discharge in Chapter 13; whether any of that debt would be nondis-chargeable in a Chapter 7 case; and “the debtor’s motivation and sincerity in seeking Chapter" }, { "docid": "20669271", "title": "", "text": "there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” Anderson v. City of Bessemer, 470 U.S. 564, 573, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985) (quoting U.S. v. U.S. Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 541-42, 92 L.Ed. 746 (1948)). The determination of good faith in proposing a chapter 13 plan is a factual finding reviewed under the clearly erroneous standard. Handeen v. LeMaire, (In re LeMaire), 898 F.2d 1346, 1350 (8th Cir.1990). IV Before a bankruptcy court confirms a chapter 13'plan, it must find “the plan has been proposed in good faith and not by any means forbidden by law.” 11 U.S.C. § 1325(a)(3). Good faith is not defined in the Bankruptcy Code nor is it discussed in the legislative history. Prior to 1984, Eighth Circuit courts focused on “whether the plan constitutes an abuse of the provisions, purpose or spirit of Chapter 13” and employed an eleven factor test in determining whether the plan has been proposed in good faith. In re Estus, 695 F.2d 311, 317 (8th Cir.1982)(listing factors). The Bankruptcy Amendments and Federal Judgeship Act of 1984 added subsection (b) to § 1325 which allows a bankruptcy court to confirm a plan in which all the debtor’s disposable income for three years was devoted to repayment of creditors. After the 1984 amendments, the Eighth Circuit concluded that the “ability to pay” criteria narrowed the good faith inquiry. In re Education Assistance Corp. v. Zellner, 827 F.2d 1222, 1227 (8th Cir.1987). The good faith inquiry now turns on “whether the debtor has stated his debts and expenses accurately; whether he has made any fraudulent misrepresentation to mislead the bankruptcy court; or whether he has unfairly manipulated the Bankruptcy Code.” Id. at 1227; see also LeMaire, 898 F.2d at 1349. In making this determination, courts must employ a “totality of circumstances approach.” LeMaire, 898 F.2d at 1348 (8th Cir.1990)(“[I]t is recognized that Zellner preserved the traditional ‘totality of circumstances’ approach with respect to the Estus factors" }, { "docid": "11442845", "title": "", "text": "re Molitor), 76 F.3d 218, 220 (8th Cir.1996); In re Buchanan, 225 B.R. 672, 673 (Bankr.D.Minn.1998). Second, Bankruptcy Code § 1325(a)(3) provides that, in order to be confirmed, a Chapter 13 plan must be proposed in good faith and not by any means forbidden by law. 11 U.S.C. § 1325(a)(3). The Objecting Creditors in this case assert that the Debtors have acted in bad faith in both respects. However, the difference between good faith in filing a case and good faith in proposing a plan is nominal, and the evidence of each may be properly considered together. Buchanan, 225 B.R. at 673; In re Belden, 144 B.R. 1010, 1019 (Bankr.D.Minn.1992). Indeed, the Eighth Circuit has articulated the same standard for finding bad faith in both instances. Compare Molitor, 76 F.3d at 220-21 with Handeen v. LeMaire (In re LeMaire), 898 F.2d 1346, 1349 (8th Cir.1990). The only distinction between the two may be in the burden of proof. Under § 1307(c), the objecting creditor bears the burden of proof, while under § 1325(a)(3), the debtor bears the burden. In re Love, 957 F.2d 1350, 1355 (7th Cir.1992). In the Eighth Circuit and in this District, the standard for determining bad faith has undergone substantial adjustment. The first ease, United States v. Estus (In re Estus), 695 F.2d 311 (8th Cir.1982), held that, after weighing all of the facts and circumstances, the proper inquiry is whether the plan constitutes an abuse of the provisions, purpose or spirit of Chapter 13. Id. at 316. The court outlined several non-exclusive factors to consider when making the determination. Many of these factors addressed the debt- or’s ability to pay ánd whether the plan proposed a fair economic treatment of creditors. Id. at 317; see Buchanan, 225 B.R. at 674. The remaining factors considered the debtor’s integrity in the bankruptcy process. Estus, 695 F.2d at 317; see Buchanan, 225 B.R. at 674. Following amendment to the Code in 1984, the requirements for confirming a Chapter 13 plan changed, subsuming many of the economic factors outlined in Estus. Education Assistance Corp. v. Zellner, 827 F.2d 1222," }, { "docid": "22911605", "title": "", "text": "of unsecured claims, the debtor’s past bankruptcy filings, the debtor’s honesty in representing facts, and any unusual or exceptional circumstances facing the particular debtor. Id. Following the adoption of section 1325(b), most of the courts that considered the issue concluded that the adoption of section 1325(b) narrowed the focus for determining good faith under section 1325(a)(3) because the factors related to the debtor’s ability to pay previously considered under the totality of the circumstances test were subsumed by the ability-to-pay test adopted in section 1325(b). Noreen v. Slattengren, 974 F.2d 75, 76 (8th Cir.1992) (“Most of these factors were ‘subsumed’ by 11 U.S.C. § 1325(b) ... which narrowed the focus of the bankruptcy court to ‘look at factors such as whether the debtor has stated his debts and expenses accurately; whether he has made any fraudulent misrepresentation to mislead the bankruptcy court or whether he has unfairly manipulated the Bankruptcy Code.’ ”); In re Smith, 848 F.2d 813, 820 (7th Cir.1988) (the adoption of 1325(b) eliminates “some of the old factors related to minimal payments” but leaves for consideration other factors not related to ability to pay or the amount of the plan payment); Education Assistance Corp. v. Zellner, 827 F.2d 1222, 1227 (8th Cir.1987) (“This section’s [1325(b)] ‘ability to pay’ criteria subsumes most of the Estus factors and allows the court to confirm a plan in which the debtor uses all of his disposable income for three years to make payments to creditors.... The bankruptcy court must look at factors such as whether the debtor has stated his debts and expenses accurately; whether he has made any fraudulent misrepresentation to mislead the bankruptcy court; or whether he has unfairly manipulated the Bankruptcy Code.”); Keach v. Boyajian (In re Reach), 243 B.R. 851 (1st BAP Cir.2000). See generally 8 COLLIER ON BANKRUPTCY ¶ 1325.04 (15th ed. rev.2005) (“Because Congress dealt with the issue [amount of plan payment] quite specifically in the ability-to-pay provisions, there is no longer any reason for the amount of a debtor’s payments to be considered even as a part of the good faith standard.”). It thus" }, { "docid": "14713965", "title": "", "text": "had been throughout his scheme. Such ambiguities, of course, would prompt meritorious denials and defenses, were the recipients of the transfers to be sued; a zealous defense would lead to extended litigation. Common sense would suggest that the money is gone forever, and that the recipients would not or could not respond to any judgment which the Debtor might obtain. Almost certainly, counsel formulated this argument; it is the mark of a technically-minded advocate intent only on throwing out as many high-sounding impediments to his adversary as possible, without really appraising whether the case can support them. Lacking any grounding in reality, this objection must be rejected out of hand. The record otherwise demonstrates that the Debtor’s Chapter 7 estate would bear no assets; the Debtor’s creditors unquestionably are better off with him in Chapter 13. He has met the “best interests of creditors” requirement, then. C. § 1325(a)(3): Good Faith Requirement. 11 U.S.C. § 1325(a)(3) requires the debtor proposing a plan of debt adjustment to demonstrate that “the plan has been proposed in good faith ...” If a creditor objects to confirmation on the ground that the debtor does not meet this element, the Bankruptcy Court must make ... a separate, independent determination ... [T]he proper inquiry should [analyze] whether the plan constitutes an abuse of the provisions, purpose or spirit of Chapter 13. The Bankruptcy Court must utilize its fact-finding expertise and judge each case on its own facts after considering all the circumstances of the case. In re Estus, 695 F.2d 311, 316 (8th Cir. 1982). See also In re Schyma, 68 B.R. at 68-69. The Eighth Circuit recently reaffirmed the applicability of this totality-of-circumstances analysis in In re LeMaire, 898 F.2d at 1349 (en banc), and in Noreen v. Slattengren, 974 F.2d 75, 76 (8th Cir. 1992). Because the 1984 enactment of § 1325(b) subsumed most of the financially-based objections to confirmation under § 1325(a)(3) that had been recognized under In re Estus, the good-faith element now involves considerations of a more subjective nature. Education Assistance Corp. v. Zellner, 827 F.2d at 1227. They include the" }, { "docid": "11442847", "title": "", "text": "1227 (8th Cir.1987). This change in the Code narrowed the focus of the good faith analysis. Id. According to the Zellner. court, the remaining factors for the court to consider were (1) whether the debtor has stated his debts and expenses accurately; (2) whether he has made any fraudulent misrepresentations to mislead the bankruptcy court; and (3) whether he has unfairly manipulated the Bankruptcy Code. Id. Following Zellner, the Eighth Circuit decided LeMaire, which clarified the changes to the good faith test. LeMaire found that the totality of the circumstances test first announced in Estus remained the proper standard for the good faith inquiry. LeMaire, 898 F.2d at 1349. The court specifically focused on the type of debt sought to be discharged, whether the debt is non-dischargeable in Chapter 7, and the debtor’s motivation and sincerity in seeking Chapter 13 relief. Id. When looking to the dischargeability of the debt, the court recognized that a Chapter 13 plan may be confirmed despite even the most egregious pre-filing conduct where other factors suggest that the plan nevertheless represents a good faith effort by the debt- or to satisfy his creditors’ claims. Id. at 1352. However, the court further noted that while pre-filing conduct is not determinative of the good faith issue, it is nevertheless relevant. Id. The final Eighth Circuit case on this subject was Noreen v. Slattengren, 974 F.2d 75 (8th Cir.1992). In that case, the court found an abuse of the provisions, purpose, and spirit of the Bankruptcy Code where a major portion of the claims arose out of pre-petition wrongful conduct and the debtor proposed only a minimal repayment. The Debtor had filed the bankruptcy petition only 11 days before trial in a civil suit in anticipation of a damage award and proposed a meager repayment plan, which was increased only in response to an objection. Id. There are a number of cases in this District interpreting the Eighth Circuit’s decisions on this subject. These cases suggest the importance of determining the debtor’s purpose in filing the bankruptcy and proposing the plan. E.g., In re Vance, 49 B.R." }, { "docid": "18548662", "title": "", "text": "one spouse is liable on the debt. Accordingly, by proposing to pay their personal unsecured debts 33% and 35% respectively, each plan technically satisfies § 1325(a)(4). IV. Good Faith Trustee alternatively argues that spouses filing nearly identical schedules with thirty six (36) month plans within one (1) day of each other constitutes a lack of good faith on the Debtors’ part. As a requirement to confirmation of a Chapter 13 plan, the Bankruptcy Code requires that “the plan has been proposed in good faith and not by any means forbidden by law.” § 1325(a)(3). In determining good faith, this Court must deny confirmation “[i]f, after weighing all the facts and circumstances, the plan is determined to constitute an abuse of the provisions, purpose or spirit of Chapter 13 ...” In re Estus, 695 F.2d 311, 316 (8th Cir.1982). In Estus, the court listed eleven (11) criteria which a bankruptcy court should consider in the § 1325(a)(3) analysis. 695 F.2d at 317. The Bankruptcy Amendments and Federal Judgeship Act of 1984 narrowed this inquiry by adding § 1325(b). See Noreen v. Slattengren, 974 F.2d 75, 76 (8th Cir.1992) (discussing evolution of good faith analysis in Eighth Circuit). However, the Estus totality of circumstances approach continues to apply in good faith determinations in this circuit. Noreen, 974 F.2d at 76; In re LeMaire, 898 F.2d 1346, 1349 (8th Cir.1990) (en banc) see also Education Assistance Corp. v. Zellner, 827 F.2d 1222 (8th Cir.1987). Four (4) of the Estus factors force the Court to conclude that the Debtors’ plan were not proposed in good faith: (3) the probable or expected duration of the plan (7) the type of debt sought to be discharged (8) the existence of special circumstances such as inordinate medical expenses (10) the motivation and sincerity of the debtor. 695 F.2d at 317. First, the duration of each plan is thirty six (36) months, the minimum allowable under Chapter 13. See § 1322(d). Next, Debtors seek to discharge credit card debts for cash advances, “electronic items and mise. hhg.”. This fact combined with the absence of any “special circumstances” further" }, { "docid": "12534226", "title": "", "text": "confirmable because it was not proposed in good faith as required by subsection 1325(a)(3). Id. at 1352. The Circuit Court applied the relevant Estus factors, most particularly: LeMaire’s motivation and sincerity in seeking Chapter 13 relief, and whether the debt to be discharged was of a type that could be discharged in a Chapter 7 proceeding. Id. at 1350. In evaluating LeMaire’s motivation and sincerity, the Circuit Court considered the public policy factors implicated by the discharge of the debt owed to Handeen. Id. at 1351. The In re LeMaire court recognized that “ ‘a Chapter 13 plan may be confirmed despite even the most egregious pre-filing conduct where other factors suggest that the plan nevertheless represents a good faith effort by the debtor to satisfy his creditor’s claims.’ ” Id. at 1352 (quoting Neufeld v. Freeman, 794 F.2d 149, 153 (4th Cir:1986)). Stating that “there is a particularly strong policy prohibiting the discharge of a debt resulting from a willful and malicious injury following an attempted murder,” 898 F.2d at 1352, and pointing to the fact that LeMaire had not scheduled the contingent liability related to his fellowship, the Eighth Circuit concluded that LeMaire had not demonstrated god faith in seeking Chapter 13 protection. Id. In Noreen v. Slattengren, 974 F.2d 75 (8th Cir.1992), the Eighth Circuit was again called upon to evaluate a debtor’s good faith in proposing a Chapter 13 plan. In that case, the Debtor, Noreen, was sued by Slattengren approximately a year before he filed bankruptcy. Id. Slattengren alleged that Noreen had sexually assaulted her when she was a child. Id. Eleven days before Slattengren’s case was to be tried, Noreen filed a bankruptcy petition. Id. Noreen proposed a Chapter 13 plan in which he would pay $200.00 a month for three years. Id. After Slattengren objected to his plan, Noreen increased the proposed monthly payment under his plan to $500.00. Id. at 76. The bankruptcy court determined that Noreen’s Chapter 13 plan had been filed in bad faith. Id. The bankruptcy court based its finding of bad faith on three factors: that Noreen filed" }, { "docid": "17933755", "title": "", "text": "“GOOD FAITH” Section 1129(a)(3) requires that a plan have been “proposed in good faith and not by any means forbidden by law.” Although the term “good faith” is left undefined by the Code, “[i]n the context of a Chapter 11 reorganization ... a plan is considered proposed in good faith ‘if there is a reasonable likelihood that the Plan will achieve a result consistent with the standards prescribed under the Code.’ ” Hanson v. First Bank of South Dakota, 828 F.2d 1310, 1315 (8th Cir.1987) (quoting In re Toy & Sports Warehouse, Inc., 37 B.R. 141, 149 (Bankr.S.D.N.Y.1984)); accord Stolrow v. Stolrow’s, Inc. (In re Stolrow’s, Inc.), 84 B.R. 167,172 (Bankr. 9th Cir.1988) (“Good faith requires that a plan will achieve a result consistent with the objectives and purposes of the Code.”) Undoubtedly, “[t]he bankruptcy judge is in the best position to assess the good faith of the parties’ proposals.” Jasik v. Conrad (In re Jasik), 727 F.2d 1379, 1383 (5th Cir.1984); accord In re Stolrow’s, Inc., 84 B.R. at 172. “According to the good faith requirement of section 1129(a)(3), the court looks to the Debtor’s plan and determines, in light of the particular facts and circumstances, whether the plan will fairly achieve a result consistent with the Bankruptcy Code.” In re Madison Hotel Associates, 749 F.2d 410, 425 (7th Cir.1984) (distinguishing between “the good faith that is required to confirm a plan under section 1129(a)(3) and the good faith that has been established as a prerequisite to filing a Chapter 11 petition for reorganization.” (emphasis in original)); accord In re Stolrow’s, Inc., 84 B.R. at 171-72. Two of the primary objectives of Chapter 11 are “the expeditious resolution of disputes and speedy payment to creditors.” In re Hoosier Hi-Reach, Inc., 64 B.R. 34, 38 (Bankr.S.D.Ind.1986). The Court does not question good faith at the time of filing of Debtor’s Petition, only that the Plan is not filed in good faith. The Court finds that a payment of $4,000 per month to the debtor’s ex-wife for the next ten years to satisfy her $300,-000 judgment does not comply with the" }, { "docid": "10181288", "title": "", "text": "also In re LeMaire, 898 F.2d at 1349 (en banc) (reaffirming applicability of Estus’s totality-of-circumstances analysis); Noreen v. Slattengren, 974 F.2d 75, 76 (8th Cir.1992). Before the enactment of 11 U.S.C. § 1325(b), the Eighth Circuit suggested that some eleven non-exclusive factors would be relevant to a determination on good faith under § 1325(a)(3). In re Estus, 695 F.2d at 317. In the wake of that enactment, it concluded that most of the financially-related factors under Estus had been “subsume[d]” by § 1325(b). The court is now to ... look at factors such as whether the debtor has stated his debts and expenses accurately; whether he has made any fraudulent misrepresentation to mislead the bankruptcy court; or whether he has unfairly manipulated the Bankruptcy Code. Education Assistance Corp. v. Zellner, 827 F.2d 1222, 1227 (8th Cir.1987). It must also consider the type of debt which the debtor seeks to discharge in Chapter 13; whether any of that debt would be nondis-chargeable in a Chapter 7 case; and “the debtor’s motivation and sincerity in seeking Chapter 13 relief.” In re LeMaire, 898 F.2d at 1349. The court is not to determine and consider these factors mechanically, or in light of any precise formula; it is, however, to “consider the totality of the circumstances in light of the purposes of Chapter 13,” and the general policies underlying bankruptcy relief. In re LeMaire, 898 F.2d at 1353. See also Noreen v. Slattengren, 974 F.2d at 76. Under Zellner and LeMaire, the good faith requirement focuses on the debtor’s motivation for seeking Chapter 13 relief; the financial and personal goals he seeks to accomplish through his case; and his attitude toward the integrity of the bankruptcy process, as manifested on the face of his statements, schedules, pleadings, and plan. An objecting party need not prove that the debtor is committing actual fraud in the common-law sense. In re Fischer, 136 B.R. 819, 830 (D.Alaska 1992). Nor need it prove that the debtor harbors actual malice toward a creditor, or toward creditors generally. In re Waldron, 785 F.2d 936, 941 (11th Cir.1986). A determination of" }, { "docid": "17933754", "title": "", "text": "MEMORANDUM OPINION RICHARD T. FORD, Bankruptcy Judge. The hearing on the Confirmation of First Amended Chapter 11 Plan of Reorganization came on regularly before the above-entitled court on October 23, 1991. An objection to confirmation was filed by creditor Carrie Sattley. No other written objections were filed. The debtor was represented by D. Max Gardner of the law firm Noriega & Alexander. Creditor Sattley was represented by Michael D. Warner of the law firm Robinson, Diamant, Brill & Klausner. The U.S. Trustee’s Office was represented by James Snyder, who interposed an oral objection to confirmation. DISCUSSION A Plan of Reorganization may be confirmed if each of the requirements set forth in 11 U.S.C. § 1129(a) are satisfied. The proponent has the burden of proving to the Court that each requirement is satisfied. If all of the requirements except 11 U.S.C. § 1129(a)(8) are satisfied, then the Court may confirm a Plan under § 1129(b) if the debtor proves that the Plan is not discriminatory and if it is fair and equitable. 11 U.S.C. § 1129(a)(3) “GOOD FAITH” Section 1129(a)(3) requires that a plan have been “proposed in good faith and not by any means forbidden by law.” Although the term “good faith” is left undefined by the Code, “[i]n the context of a Chapter 11 reorganization ... a plan is considered proposed in good faith ‘if there is a reasonable likelihood that the Plan will achieve a result consistent with the standards prescribed under the Code.’ ” Hanson v. First Bank of South Dakota, 828 F.2d 1310, 1315 (8th Cir.1987) (quoting In re Toy & Sports Warehouse, Inc., 37 B.R. 141, 149 (Bankr.S.D.N.Y.1984)); accord Stolrow v. Stolrow’s, Inc. (In re Stolrow’s, Inc.), 84 B.R. 167,172 (Bankr. 9th Cir.1988) (“Good faith requires that a plan will achieve a result consistent with the objectives and purposes of the Code.”) Undoubtedly, “[t]he bankruptcy judge is in the best position to assess the good faith of the parties’ proposals.” Jasik v. Conrad (In re Jasik), 727 F.2d 1379, 1383 (5th Cir.1984); accord In re Stolrow’s, Inc., 84 B.R. at 172. “According to the good" }, { "docid": "18896153", "title": "", "text": "other known parties in interest in the reorganization case. Proof of effective service of those documents, by mail and by publication, on all of the above parties, together with the Disclosure Statement Order and an appropriate Ballot, were filed before the confirmation hearing. Thus, this Court finds that pursuant to section 1129(a)(2) of the Bankruptcy Code, the Debtors, as proponents of the Plan, have complied with the applicable provisions of the Bankruptcy Code, including the disclosure requirements of section 1125 of the Bankruptcy Code. 3.Section 1129(a)(3) — Good Faith Section 1129(a)(3) conditions plan confirmation upon a determination that the debtor has proposed the plan in good faith and not by unlawful means. To satisfy this good faith test, the court should consider whether, in light of the particular facts and circumstances, the plan will fairly achieve a result consistent with the Code. In re Madison Hotel Associates, 749 F.2d 410, 425 (7th Cir.1984). The Eighth Circuit has stated that a plan has been proposed in good faith “if there is a likelihood that the Plan will achieve a result consistent with the standards prescribed under the Code”. Hanson v. First Bank of South Dakota, 828 F.2d 1310, 1315 (8th Cir.1987) (quoting In re Toy & Sports Warehouse, Inc., 37 B.R. 141, 149 (Bankr.S.D.N.Y.1984)). The Debtors’ objectives in filing their voluntary petitions for relief under Chapter 11 of the Bankruptcy Code and in proposing and confirming the Plan were and are: a. To preserve and protect their viable businesses through reorganization under Chapter 11 of the Bankruptcy Code; and b. To maximize the value of money and property available for distribution to their creditors. Additionally, no party has made a valid objection to the confirmation of the Plan pursuant to section 1129(a)(3). Thus, for these reasons the Court finds that the Debtors have proposed the Plan in good faith and not by any means forbidden by law, in compliance with that section. See Bankruptcy Rule 3020(b)(2). 4. Section 1129(a)(4) — Payment For Services In Connection With The Case Part (a)(4) of section 1129 requires that: Any payment made or to be" }, { "docid": "18548663", "title": "", "text": "§ 1325(b). See Noreen v. Slattengren, 974 F.2d 75, 76 (8th Cir.1992) (discussing evolution of good faith analysis in Eighth Circuit). However, the Estus totality of circumstances approach continues to apply in good faith determinations in this circuit. Noreen, 974 F.2d at 76; In re LeMaire, 898 F.2d 1346, 1349 (8th Cir.1990) (en banc) see also Education Assistance Corp. v. Zellner, 827 F.2d 1222 (8th Cir.1987). Four (4) of the Estus factors force the Court to conclude that the Debtors’ plan were not proposed in good faith: (3) the probable or expected duration of the plan (7) the type of debt sought to be discharged (8) the existence of special circumstances such as inordinate medical expenses (10) the motivation and sincerity of the debtor. 695 F.2d at 317. First, the duration of each plan is thirty six (36) months, the minimum allowable under Chapter 13. See § 1322(d). Next, Debtors seek to discharge credit card debts for cash advances, “electronic items and mise. hhg.”. This fact combined with the absence of any “special circumstances” further illustrates lack of good faith on the Debtors’ behalf. Furthermore, the proximity of the filings and the blatant attempt to retain a large amount of non-exempt equity evidences a concerted effort to manipulate of the bankruptcy system to the disadvantage of creditors. When comparing the amount of equity in Debtors’ residence to the aggregate amount of unsecured debt, the Court strongly believes that Chapter 13 is not the only avenue of financial relief available to the Debtors. The Court found no Chapter 13 cases— including those discussed previously in this opinion — where married debtors sought to use § 522(b)(2)(B) to shield entirety equity from individual creditors by filing separate Chapter 13 petitions. To find good faith in this case would be to allow married debtors with a substantial amount of equity in property held in tenancy by the entirety to recklessly incur debt without regard to its consequences; they could simply file separate Chapter 13 petitions and pay their creditors a minimum amount. Although the Bankruptcy Code technically exempts entirety equity in this anomalous" }, { "docid": "19283949", "title": "", "text": "the Sitarz decision, and if the debtor is not proposing through a plan to make the claimant substantially whole financially then bankruptcy affords no remedy. The debtor has to be in bad faith, the plan can’t be confirmed and the case should be dismissed ... Debtor appeals the dismissal of his chapter 13 case. On appeal, the Debtor argues that the bankruptcy court erred in concluding that the plan was not proposed in good faith as a matter of law. II A bankruptcy appellate panel shall not set aside findings of fact unless clearly erroneous, and due regard shall be given to the opportunity of the bankruptcy court to judge the credibility of the witness. Fed. R.Bankr.P. 8013. We review the legal conclusions of the bankruptcy court de novo. First Nat’l Bank of Olathe, Kansas v. Pontow, 111 F.3d 604, 609 (8th Cir.1997); Estate of Sholdan v. Dietz (In re Sholdan), 108 F.3d 886, 888 (8th Cir.1997). “A finding is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” Anderson v. City of Bessemer, 470 U.S. 564, 573, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985)(quoting U.S. v. U.S. Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948)). The determination of good faith in proposing a chapter 13 plan is a factual finding reviewed under the clearly erroneous standard. Handeen v. LeMaire (In re LeMaire), 898 F.2d 1346, 1350 (8th Cir.1990). III As a requirement of confirmation, a bankruptcy court must find that a chapter 13 plan “has been proposed in good faith and 'not by any means forbidden by law.” 11 U.S.C. § 1325(a)(3). This good faith inquiry turns on “whether the debtor has stated his debts and expenses accurately; whether he has made any fraudulent misrepresentations to the bankruptcy court; or whether he has unfairly manipulated the Bankruptcy Code.” Education Assistance Corp. v. Zellner, 827 F.2d 1222, 1227 (8th Cir.1987) see also Handeen v. LeMaire (In re LeMaire), 898 F.2d 1346," }, { "docid": "19283950", "title": "", "text": "entire evidence is left with the definite and firm conviction that a mistake has been committed.” Anderson v. City of Bessemer, 470 U.S. 564, 573, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985)(quoting U.S. v. U.S. Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948)). The determination of good faith in proposing a chapter 13 plan is a factual finding reviewed under the clearly erroneous standard. Handeen v. LeMaire (In re LeMaire), 898 F.2d 1346, 1350 (8th Cir.1990). III As a requirement of confirmation, a bankruptcy court must find that a chapter 13 plan “has been proposed in good faith and 'not by any means forbidden by law.” 11 U.S.C. § 1325(a)(3). This good faith inquiry turns on “whether the debtor has stated his debts and expenses accurately; whether he has made any fraudulent misrepresentations to the bankruptcy court; or whether he has unfairly manipulated the Bankruptcy Code.” Education Assistance Corp. v. Zellner, 827 F.2d 1222, 1227 (8th Cir.1987) see also Handeen v. LeMaire (In re LeMaire), 898 F.2d 1346, 1350 (8th Cir.1990). In the instant case, there is no evidence in the record that Debtor misstated his expenses or debts nor is there any evidence (or .even accusations) of misrepresentations to the bankruptcy court. Further, there was no objection by Ms. Hill that the Debtor’s plan would not pay unsecured creditors more than they would receive in a chapter 7 case. See § 1325(a)(4)(the “best intei'est of creditors test”). Instead, the bankruptcy court determined that Debtor sought to unfairly manipulate the Bankruptcy Court by using chapter 13 to mitigate the financial impact of Ms. Hill’s claim. We cannot agree with the dissent’s position that thwarting state court litigation is manifestly bad faith constituting unfair manipulation of the Bankruptcy Code. It is common for Debtors to seek refuge in bankruptcy court from a variety of state court proceedings including foreclosure actions, garnishments and tort actions. Nor can we agree that there are no special circumstances that warrant the Debtor’s chapter 13 filing. Indeed, the Debtor has spent in excess of $22,000 defending himself against Ms." } ]

[ { "docid": "18813153", "title": "", "text": "701 F.2d 800, 807 (9th Cir.1983). In considering the prerequisite, the primary focus must be on the evidence presented at trial. Johnson at 1234. There must be some evidence that would justify conviction for the lesser included offense. Stolarz at 492. 18 U.S.C. § 3 defines accessory after the fact. In essence, it provides that a person who, knowing that a federal offense “has been committed,” relieves or assists the offender in order to hinder or prevent the offender’s apprehension, trial or punishment, is an accessory after the fact. The acts that make a person an accessory after the fact can only occur after the substantive crime has been committed. United States v. Barlow, 470 F.2d 1245, 1252-3 (D.C.Cir.1972); Government of Virgin Islands v. Aquino, 378 F.2d 540, 553 (3rd Cir.1967); United States v. Balano, 618 F.2d 624, 633 (10th Cir.1979). For the purpose of determining whether a person is an aider and abettor or an accessory after the fact, the substantive crime continues so long as the perpetrator of that crime indicates that he has not yet reached his destination. See Barlow at 1253; United States v. York, 578 F.2d 1036, 1040 (5th Cir.1978). The aiding and abetting statute, 18 U.S.C. § 2, makes punishable as a principal one who aids or abets another in the commission of a federal offense. Londono-Gomez v. I.N.S., 699 F.2d 475, 476 (9th Cir.1983). However, it does not define a crime. Id. at 477; Baumann v. United States, 692 F.2d 565, 571 (9th Cir.1982). Therefore, an indictment under the statute must be accompanied by an indictment for a substantive offense. Londono-Gomez at 477; United States v. Cowart, 595 F.2d 1023, 1031 n. 10 (5th Cir.1979). Defendant Nava-Maldonado was indicted for transporting illegal aliens and aiding and abetting the transporting of illegal aliens. No matter which was proved, he would have been punished as a principal. However, he was acquitted. He was not indicted for smuggling illegal aliens into this country. Since any lesser included offense must have been included in the offense with which he was charged, as discussed above, he could not" } ]

[ { "docid": "23322807", "title": "", "text": "cannot join in this part of the majority opinion, and concur only in its result. Our opinion is very narrow: it concerns only the Guidelines in effect at the time of Innie’s arrest. Under the categorical approach of those Guidelines, we may “not look to the specific conduct” of which the defendant was convicted, “but only to the statutory definition of the crime.” United States v. Becker, 919 F.2d 568, 570 (9th Cir.1990), cert. denied, 499 U.S. 911, 111 S.Ct. 1118, 113 L.Ed.2d 226 (1991). Innie pleaded guilty to being an accessory after the fact to murder for hire in violation of 18 U.S.C. § 3. This statute provides that “[wjhoever, knowing that an offense against the United States has been committed, receives, relieves, comforts or assists the offender in order to hinder or prevent his apprehension, trial or punishment, is an accessory after the fact.” I agree with the majority that, under this statutory definition, the accessory after the fact offense is not a crime of violence. Maj. op. at 851. Our cases do carve out a limited exception to the general rule that a court may only look to the fact of conviction and the. statutory definition of the prior offense. However, the exception is limited to those situations where the language of the statute itself defines crimes of both violence and nonviolence. Thus, in United States v. Selfa, 918 F.2d 749 (9th Cir.), cert. denied, 498 U.S. 986, 111 S.Ct. 521, 112 L.Ed.2d 532 (1990), the district court determined that the defendant’s two prior convictions for bank robbery in violation of 18 U.S.C. § 2113(a) constituted crimes of violence. The first paragraph of section 2113(a) prohibits bank robbery committed “by force and violence, or by intimidation” while the second paragraph criminalizes the act of entering or attempting to enter a bank with intent to commit a felony in it. As we discussed in Selfa, only the first paragraph describes a crime of violence. Id. at 751-52 & n. 2. Nonetheless we upheld the district court’s decision to apply U.S.S.G. § 4B1.1 because the presentence report, “based upon" }, { "docid": "23322802", "title": "", "text": "See Preston, 910 F.2d at 86-87 (conspiracy to commit robbery); United States v. Morrison, 972 F.2d 269, 270-71 (9th Cir.1992) (aiding and abetting malicious destruction). The government argues that being an accessory after the fact to a crime of violence is analogous. However, the offense of being an accessory after the fact is clearly different from aiding and abetting. Unlike one who aids or abets a crime of violence, an accessory after the fact does not aid in the commission of the underlying offense. Similarly, unlike one who conspires to commit a crime of violence, an accessory after the fact does not agree to commit the crime of violence. Cf. Preston, 910 F.2d at 86 (conspirator must agree to do an unlawful act). The Guidelines now in effect reflect this difference: the Guidelines specifically provide that “ ‘crime of violence’ ... include the offenses of aiding and abetting, conspiring, and attempting to commit such offenses.” U.S.S.G. § 4B1.2, comment, (n. 1); see also Morrison, 972 F.2d at 270-71. No mention is made in the Guidelines of the offense of being an accessory after the fact to a crime of violence. In short, the proposed analogy fails. C Under the Guidelines in effect at the time of Innie’s 1989 arrest, the crime of being an accessory after the fact under 18 U.S.C. § 3 was not a crime of violence. Nor are we persuaded that, under the categorical approach, being an accessory after the fact to murder for hire is a crime of violence. Ac cordingly, we vacate the district court’s determination that Innie was a career offender under the Sentencing Guidelines and remand for resentencing. VI There was sufficient evidence to convict Innie of possession of methamphetamine with intent to distribute. The sentencing judge properly took into account the entire amount of the liquid mixture containing methamphetamine. Denial of a two-level reduction for acceptance of responsibility was not clearly erroneous. The career offender status determination was improper since being an accessory after the fact was not a crime of violence. AFFIRMED in part, VACATED in part, and REMANDED for resentencing." }, { "docid": "22059611", "title": "", "text": "v. Innie, 7 F.3d 840, 850 (9th Cir.1993) (explaining that the generic crime of violence includes the element of attempted or threatened use of physical force against the person or property of another but that accessory-after-the-faet liability under 18 U.S.C. § 3 does not); id. at 852 (“[T]he offense of being an accessory after the fact is clearly different from aiding and abetting.... [because] an accessory after the fact does not aid in the commission of the underlying offense.”); see also United States v. Gomez-Mendez, 486 F.3d 599, 604-05 (9th Cir.2007) (holding that a conviction for statutory rape could encompass “aiding and abetting or for participating as an accessory before the fact” but describing accessory-after-the-fact liability as “as a separate and distinct criminal offense”). Application Note 4 to U.S.S.G. § 2L1.2 (2002) does not alter this analysis. The note instructs that “[p]rior convictions of offenses counted under subsection (b)(1) [listing specific offense characteristics] include the offenses of aiding and abetting, conspiring, and attempting, to commit such offenses.” As discussed above, modern criminal law treats aiders and abetters as principals. 2 LaFave, supra, § 13.1. The rationale behind the inchoate offenses of conspiracy and attempt is similarly to criminalize conduct that contributes to the commission of the underlying offense. See 2 id. § 11.2 (describing attempt); § 12.1 (describing conspiracy). Aecessory-after-the-fact liability, in contrast, is aimed at post-offense conduct that aids the offender in evading law enforcement. As LaFave explains in his treatise Substantive Criminal Law: This development whereby the accessory after the fact is dealt with in a distinct way is a most appropriate one and does not conflict at all with the modern tendency to abolish the distinctions between principals in the first degree, principals in the second degree, and accessories before the fact. The latter three types of offenders have all played a part in the commission of the crime and are quite appropriately held accountable for its commission. The accessory after the fact, on the other hand, had no part in causing the crime; his offense is instead that of interfering with the processes of justice and" }, { "docid": "23322798", "title": "", "text": "to find all the elements of a violent felony). We leave for another day the question whether we can look to the charging papers to determine the underlying offense to an accessory after the fact conviction, because we conclude below that, even under the government’s approach, being an accessory after the fact to murder for hire is not a crime of violence as defined in the 1989 Guidelines. i Under the government’s proposed approach, we first must ask whether being an accessory after the fact to murder for hire has, as an element, the use, attempted use, or threatened use of physical force against the person or property of another. Even if the underlying murder for hire offense is considered to be an element of the accessory offense, culpability for the murder is not attributed to the accessory defendant. The accessory defendant is liable for the act of receiving, relieving, comforting, or assisting a murderer after the use of force, not for the murderer’s use of force. For that reason, an accessory after the fact is not liable as a principal. Cf. 18 U.S.C. § 2 (whoever aids, abets, counsels, commands, induces or procures the commission of an offense is punishable as a principal). Thus, being an accessory after the fact to murder for hire does not fit the definition of crime of violence found in subsection (a) of 18 U.S.C. § 16. ii We next must ask whether being an accessory after the fact to murder for hire, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of its commission. The government contends that the harboring and concealment of a known professional killer necessarily poses a substantial risk of continued violence. On that basis, the government argues that conviction as an accessory after the fact to murder for hire falls within subsection (b) of 18 U.S.C. § 16. We recognize that the situation created by someone convicted as an accessory after the fact to murder for hire includes the potential reactions of law enforcement officials" }, { "docid": "23322793", "title": "", "text": "against the person or property of another may be used in the course of its commission. 18 U.S.C. § 16(b). As noted above, because we apply the Guidelines in effect prior to the November 1, 1989 amendment, we are prohibited from inquiring into the conduct actually charged. Instead, we may only ask whether, generically, the crime of being an accessory after the fact to an offense against the United States involves a substantial risk that physical force may be used in its commission. We simply cannot say that, by its nature, receiving, relieving, comforting or assisting someone who has committed an offense against the United States in order to hinder or prevent his apprehension, trial or punishment involves a substantial risk in every case that physical force may be used. Cf Becker, 919 F.2d at 571 n. 5 (in every case of first degree burglary there is a substantial risk force will be used against the person or property of a lawful occupant of the dwelling). Thus, the accessory offense cannot be considered a crime of violence as defined in 18 U.S.C. § 16(b). B The government argues that we should consider the offense underlying Innie’s accessory conviction to be an element of the accessory offense. In other words, the government asks us to consider Innie’s predicate conviction to have been as an “accessory after the fact to murder for hire ” rather than as an “accessory after the fact.” Under the government’s theory, the statutory definition of the accessory offense includes as an element the violation of the underlying offense. The government’s argument has some appeal. Commission of the underlying offense is a prerequisite for conviction as an accessory after the fact. United States v. Nava-Maldonado, 566 F.Supp. 1436, 1439 (D.Nev.1983); see also United States v. Balano, 618 F.2d 624, 633 (10th Cir.1979), cert. denied, 449 U.S. 840, 101 S.Ct. 118, 66 L.Ed.2d 47 (1980). For that reason, an indictment charging one as an accessory after the fact must plead the underlying offense as well as the accessory offense. See United States v. McLennan, 672 F.2d 239, 243 (1st" }, { "docid": "23322790", "title": "", "text": "presents a serious potential risk of physical injury to another. U.S.S.G. § 4B1.2(1) (1991). “The amendment shifted the emphasis from an analysis of the ‘nature’ of the crime charged to an analysis of the elements of the crime charged or whether the actual charged ‘conduct’ of the defendant presented a serious risk of physical injury to another.” United States v. Sahakian, 965 F.2d 740, 742 (9th Cir.1992). We have since held that, under the current version of the Guidelines, “[i]n determining whether an offense ‘involves conduct that presents a serious potential risk of physical injury to another,’ U.S.S.G. § 4B1.2(l)(ii), courts may consider the statutory definition of the crime and may also consider the conduct ‘expressly charged[] in the count of which the defendant was convicted.’ U.S.S.G. § 4B1.2, comment, (n. 2).” United States v. Young, 990 F.2d 469, 472 (9th Cir.1993). Because application of the Guidelines in effect at the time of Innie’s sentencing would result in a harsher sentence for Innie, the Ex Post Facto Clause prohibits using those Guidelines. See United States v. Warren, 980 F.2d 1300, 1304 (9th Cir.1992). For that reason, the government concedes that the applicable Guidelines are those that were in effect at the time the offense was committed. Under the 1989 Guidelines, we must apply the “so-called ‘categorical approach’” to determine whether Innie’s predicate conviction as an accessory after the fact to murder for hire was a crime of violence. See Becker, 919 F.2d at 570. In doing so, we “do not look to the specific conduct which occasioned [Innie’s] conviction, but only to the statutory definition of the crime.” Id.; see also United States v. Selfa, 918 F.2d 749, 751 (9th Cir.1990) (applying categorical approach); United States v. O’Neal, 910 F.2d 663, 667 (9th Cir.1990) (same); cf. Young, 990 F.2d at 472 (examining actual charged conduct under current Guidelines). A i We begin our inquiry, under subsection (a) of 18 U.S.C. § 16, by asking whether the predicate offense has as an element the use, attempted use, or threatened use of physical force against the person or property of another. This" }, { "docid": "23322809", "title": "", "text": "a review of relevant portions of the record underlying the prior convictions, including a review of the charging documents, ... showed that this defendant had been convicted of actual bank robbery pursuant to the first paragraph of 18 U.S.C. § 2113(a).” Id.; see also United States v. Mendez, 992 F.2d 1488, 1490-92 (9th Cir.1993) {Mendez) (holding conspiracy to rob in violation of 18 U.S.C. § 1951 a crime of violence for purposes of 18 U.S.C. § 924(c) even though section 1951 also covers conspiracy to extort among other crimes), cert. denied, — U.S. -, 114 S.Ct. 262, 126 L.Ed.2d 214 (1993). Likewise, in Taylor v. United States, 495 U.S. 575, 602, 110 S.Ct. 2143, 2160, 109 L.Ed.2d 607 (1990), the Supreme Court suggested that the categorical approach ... may permit the sentencing court to go beyond the mere fact of conviction in a narrow range of eases where a jury was actually required to find all the elements of generic burglary. For example, in a State whose burglary statutes include entry of an automobile as well as a building, if the indictment or information and jury instructions show that the defendant was charged only with a burglary of a building, and that the jury necessarily had to find an entry of a building to convict, then the Government should be allowed to use the conviction for en hancement [pursuant to 18 U.S.C. § 924(e)], (Emphasis added.) 18 U.S.C. § 3 does not describe the accessory after the fact crime “using several permutations, any one of which constitutes the same offense.” Mendez, 992 F.2d at 1490. Rather, the same statutory definition applies to every accessory after the fact conviction regardless of the nature of the underlying federal offense, whether it be murder for hire or tax evasion. Under the categorical approach, therefore, we are barred from going beyond the statutory definition of the offense in determining whether Innie’s prior felony conviction as an accessory after the fact to murder for hire was a crime of violence. Indeed, any different interpretation would leave United States v. Young, 990 F.2d 469, 472 (9th" }, { "docid": "23322810", "title": "", "text": "well as a building, if the indictment or information and jury instructions show that the defendant was charged only with a burglary of a building, and that the jury necessarily had to find an entry of a building to convict, then the Government should be allowed to use the conviction for en hancement [pursuant to 18 U.S.C. § 924(e)], (Emphasis added.) 18 U.S.C. § 3 does not describe the accessory after the fact crime “using several permutations, any one of which constitutes the same offense.” Mendez, 992 F.2d at 1490. Rather, the same statutory definition applies to every accessory after the fact conviction regardless of the nature of the underlying federal offense, whether it be murder for hire or tax evasion. Under the categorical approach, therefore, we are barred from going beyond the statutory definition of the offense in determining whether Innie’s prior felony conviction as an accessory after the fact to murder for hire was a crime of violence. Indeed, any different interpretation would leave United States v. Young, 990 F.2d 469, 472 (9th Cir.1993), petition for cert. filed, (U.S. Aug. 19, 1993) (No. 93-5647), superfluous." }, { "docid": "23322788", "title": "", "text": "two prior felony convictions of either a crime of violence or a controlled substance offense. It is undisputed that Innie meets the first two requirements of section 4B1.1. Innie contends, however, that the district court erred by finding that his prior felony conviction as an accessory after the fact to murder for hire was a crime of violence. We review the district court’s determination that Innie is a career offender de novo. United States v. Becker, 919 F.2d 568, 570 (9th Cir.1990), cert. denied, 499 U.S. 911, 111 S.Ct. 1118, 113 L.Ed.2d 226 (1991). Innie was arrested on February 16, 1989 which, because the crimes were ongoing, was the date of commission of the offenses charged in this case. He was sentenced on March 30, 1992. The version of the Guidelines in effect at the time of Innie’s 1989 arrest defined the term “crime of violence” by reference to 18 U.S.C. § 16. Thus, under section 4B1.2, a crime of violence was (a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or (b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense. 18 U.S.C. § 16 (1988); see also Becker, 919 F.2d at 569; United States v. O’Neal, 937 F.2d 1369, 1374 (9th Cir.1990). Guideline § 4B1 was amended effective November 1, 1989, subsequent to the date that Innie committed the offenses at issue here. The amendment eliminated all reference to 18 U.S.C. § 16. See United States v. O’Neal, 937 F.2d 1369, 1374 n. 8 (9th Cir.1990). The amendment in effect at the time of Innie’s sentencing redefined crime of violence to be an offense that (i) has as an element the use, attempted use, or threatened use of physical force against the person of another, or (ii) is a burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that" }, { "docid": "22059610", "title": "", "text": "criminal codes, has retained accessories after the fact as a separate category. Compare 18 U.S.C. § 2(a) (allowing accessories before the fact to be punished as principals), with 18 U.S.C. § 3 (limiting accessories after the fact to one half of the principal’s maximum punishment); see also Bollenbach v. United States, 326 U.S. 607, 611, 66 S.Ct. 402, 90 L.Ed. 350 (1946) (“Congress has not made accessories after the fact principals. Their offense is distinct and is differently punished.” (citation omitted)); LaFave, supra, § 13.1 (“[The] category [of accessory after the fact] has ... remained distinct from the others, and today the accessory after the fact is not deemed a participant in the felony but rather one who has obstructed justice, subjecting him to different and lesser penalties.”). We have therefore held that a prior felony conviction for being an accessory after the fact to murder for hire does not fall within the generic definition of “crime of violence” so as to trigger the career offender enhancement in U.S.S.G. § 4B1.1 (1989). See United States v. Innie, 7 F.3d 840, 850 (9th Cir.1993) (explaining that the generic crime of violence includes the element of attempted or threatened use of physical force against the person or property of another but that accessory-after-the-faet liability under 18 U.S.C. § 3 does not); id. at 852 (“[T]he offense of being an accessory after the fact is clearly different from aiding and abetting.... [because] an accessory after the fact does not aid in the commission of the underlying offense.”); see also United States v. Gomez-Mendez, 486 F.3d 599, 604-05 (9th Cir.2007) (holding that a conviction for statutory rape could encompass “aiding and abetting or for participating as an accessory before the fact” but describing accessory-after-the-fact liability as “as a separate and distinct criminal offense”). Application Note 4 to U.S.S.G. § 2L1.2 (2002) does not alter this analysis. The note instructs that “[p]rior convictions of offenses counted under subsection (b)(1) [listing specific offense characteristics] include the offenses of aiding and abetting, conspiring, and attempting, to commit such offenses.” As discussed above, modern criminal law treats aiders" }, { "docid": "23322803", "title": "", "text": "of the offense of being an accessory after the fact to a crime of violence. In short, the proposed analogy fails. C Under the Guidelines in effect at the time of Innie’s 1989 arrest, the crime of being an accessory after the fact under 18 U.S.C. § 3 was not a crime of violence. Nor are we persuaded that, under the categorical approach, being an accessory after the fact to murder for hire is a crime of violence. Ac cordingly, we vacate the district court’s determination that Innie was a career offender under the Sentencing Guidelines and remand for resentencing. VI There was sufficient evidence to convict Innie of possession of methamphetamine with intent to distribute. The sentencing judge properly took into account the entire amount of the liquid mixture containing methamphetamine. Denial of a two-level reduction for acceptance of responsibility was not clearly erroneous. The career offender status determination was improper since being an accessory after the fact was not a crime of violence. AFFIRMED in part, VACATED in part, and REMANDED for resentencing. . Innie evidences some confusion by framing his sufficiency of the evidence challenge as a sentencing issue. In fact, as the government points out, the district court refused Innie's motion for entry of judgment of acquittal under Fed. R.Crim.P. 29 after the government rested and again at the end of trial. Therefore, Innie has properly raised a sufficiency of the evidence claim. . The footnote to § 2D1.1 was amended in 1989 to specifically provide that to determine the offense level in the case of a mixture or substance containing methamphetamine, the court should use the entire weight of the mixture or substance or the weight of the pure methamphetamine, whichever is greater. U.S.S.G. § 2D 1.1(c) n.* (1989). . The Fifth Circuit reaffirmed Walker in United States v. Sherrod, 964 F.2d 1501, 1509-11 (5th Cir.), cert. denied, - U.S. -, 113 S.Ct. 832, 121 L.Ed.2d 701 (1992) and cert. dismissed, - U.S. -, 113 S.Ct. 834, 122 L.Ed.2d 111 (1992) and cert. denied, - U.S. -, 113 S.Ct. 1367, 122 L.Ed.2d 745 (1993) and" }, { "docid": "23322794", "title": "", "text": "of violence as defined in 18 U.S.C. § 16(b). B The government argues that we should consider the offense underlying Innie’s accessory conviction to be an element of the accessory offense. In other words, the government asks us to consider Innie’s predicate conviction to have been as an “accessory after the fact to murder for hire ” rather than as an “accessory after the fact.” Under the government’s theory, the statutory definition of the accessory offense includes as an element the violation of the underlying offense. The government’s argument has some appeal. Commission of the underlying offense is a prerequisite for conviction as an accessory after the fact. United States v. Nava-Maldonado, 566 F.Supp. 1436, 1439 (D.Nev.1983); see also United States v. Balano, 618 F.2d 624, 633 (10th Cir.1979), cert. denied, 449 U.S. 840, 101 S.Ct. 118, 66 L.Ed.2d 47 (1980). For that reason, an indictment charging one as an accessory after the fact must plead the underlying offense as well as the accessory offense. See United States v. McLennan, 672 F.2d 239, 243 (1st Cir.1982). In this ease, the offense underlying Innie’s prior conviction as an accessory after the fact was murder for hire in violation of 18 U.S.C. § 1959. Under the government’s theory, the statutory elements of Innie’s conviction would include (1) the commission of a murder for hire in violation of 18 U.S.C. § 1959 by another individual; (2) the defendant’s knowledge of that offense; and (3) assistance after the fact by the defendant to prevent the apprehension, trial, or punishment of the offender. See 18 U.S.C. §§ 3 and 1959; see also United States v. Lepanto, 817 F.2d 1463, 1467 (10th Cir.1987) (defining the elements of the accessory statute). Taking the government’s approach, we should then ask whether being an accessory after the fact to murder for hire (a) has as an element the use, attempted use, or threatened use of physical force against the person or property of another or (b) by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course" }, { "docid": "18928748", "title": "", "text": "of Caruana as an instance of alleged relevant conduct to be con sidered on remand, the crime of harboring a fugitive is not a RICO predicate act under 18 U.S.C. § 1961(1). There remains, however, a serious question whether the crime of being an accessory after the fact to murder is a RICO predicate act. Section 1961(1) defines “racketeering activity” as, among other things, “any act ... involving murder.” The defendant correctly argues that in contrast to criminal liability as an aider and abettor or coconspirator, accessory after the fact liability presupposes completion of the underlying crime before the defendant’s acts take place. See, e.g., United States v. Balano, 618 F.2d 624, 631 (10th Cir.1979). If the defendant acted to assist before the crime was complete, he would be an aider and abettor. See United States v. Barlow, 470 F.2d 1245, 1252 (D.C.Cir.1972). In contrast to an aider and abettor who is, under 18 U.S.C. § 2, subject to punishment as a principal, an accessory after the fact, under 18 U.S.C. § 3, may receive only one-half of the maximum sentence prescribed for a principal. In deciding that a prior conviction for being an accessory after the fact to murder did not constitute a “crime of violence” for the. purpose of the Career Offender provision of the Guidelines, § 4B1.1, the Court of Appeals for the Ninth Circuit emphasized the distinction between being an aider and abettor and being an accessory after the fact, stating that: the offense of being an accessory after the fact is clearly different from aiding and abetting. Unlike one who aids or abets a crime of violence, an accessory after the fact does not aid in the commission of the underlying offense. Similarly, unlike one who conspires to commit a crime of violence, an accessory after the fact does not agree to commit the crime of violence. United States v. Innie, 7 F.3d 840, 852 (9th Cir.1993), cert. denied, — U.S. -, 114 S.Ct. 1567, 128 L.Ed.2d 212 (1994) (emphasis added). Nevertheless, this court concludes that the crime of accessory after the fact to murder" }, { "docid": "1720454", "title": "", "text": "not always plead required scienter elements in precise statutory terms such as “willfully” or “knowingly” so long as other words or facts contained in the indictment “necessarily or fairly import guilty knowledge.” Madsen v. United States, 165 F.2d 507, 509-10 (10th Cir. 1947). See also Hughes v. United States, 338 F.2d 651, 652 (1st Cir. 1964) (scienter element is sufficiently pleaded if “other allegations in the indictment compel an inference of intent”); Griffith v. United States, 230 F.2d 607 (6th Cir. 1956) (word “knowingly” not required when other words “plainly and definitely indicate . . . the essential ingredient of scienter”). In Portnoy, the defendant was convicted of assaulting a United States marshal. Before trial he moved to dismiss his indictment because it failed to state that, at the time of the assault, he knew his victim was a federal officer. The indictment did state, however, that the defendant committed the assault “on account of [the officer’s] official duties.” Examining this language, this court found that the words “on account of” necessarily implied that the defendant had the requisite knowledge of the victim’s official status at the time of the attack and upheld the indictment. By contrast, in Hughes v. United States, we held that the word “unlawfully” was alone insufficient to import the specific felonious intent which constituted a necessary element of the statutory crime. The present case comes somewhere between these two examples, but we think it closer to Portnoy. We observe initially that an indictment charging one as an accessory after the fact must plead the underlying offense, meaning here the bail jumping offense, as well as the accessory offense. See United States v. Balano, 618 F.2d 624, 633 (10th Cir. 1979), cert. denied, 449 U.S. 840, 101 S.Ct. 118, 66 L.Ed.2d 47 (1980) (accessory crime “presupposes the completion of an underlying crime”); 42 C.J.S. § 149. In the present case “willfully” is undoubtedly a necessary element of bail jumping under section 3150: were one to fail to appear negligently or for good cause, the statutory crime would not be committed. The question is thus whether, in" }, { "docid": "1720455", "title": "", "text": "defendant had the requisite knowledge of the victim’s official status at the time of the attack and upheld the indictment. By contrast, in Hughes v. United States, we held that the word “unlawfully” was alone insufficient to import the specific felonious intent which constituted a necessary element of the statutory crime. The present case comes somewhere between these two examples, but we think it closer to Portnoy. We observe initially that an indictment charging one as an accessory after the fact must plead the underlying offense, meaning here the bail jumping offense, as well as the accessory offense. See United States v. Balano, 618 F.2d 624, 633 (10th Cir. 1979), cert. denied, 449 U.S. 840, 101 S.Ct. 118, 66 L.Ed.2d 47 (1980) (accessory crime “presupposes the completion of an underlying crime”); 42 C.J.S. § 149. In the present case “willfully” is undoubtedly a necessary element of bail jumping under section 3150: were one to fail to appear negligently or for good cause, the statutory crime would not be committed. The question is thus whether, in the absence of an express allegation in the present indictment that Chagra’s bail jump was “willful,” the allegation is nonetheless so implicit in the language constituting the indictment as to render the omission immaterial. We think it is. The indictment states that Jamiel Chagra was convicted of a federal crime “on or about August 15, 1979”; that about a week later he “failed to appear” before the district court “after having been ordered to do so”; that this failure constituted a “violation of 18 U.S.C. § 3150”; and that Chagra was “defaulted” by the court for this act. In addition, the indictment asserts that Earl McLennan knowingly and willfully aided Chagra during a period of some eight months “in order to hinder and prevent [Chagra’s] apprehension and punishment.” The obvious import of this last assertion is that Chagra was fleeing the authorities during this period with the “willful” assistance of McLennan. Defendant strenuously argues that none of these allegations, taken separately, adequately supplies Chagra’s missing “willfulness.” All of them together, however, strongly imply that Chagra’s" }, { "docid": "23322806", "title": "", "text": "To help define what constitutes a \"category” of criminal conduct for purposes of the Guidelines, this circuit has looked to cases interpreting the nearly identical language of the Armed Career Criminal Act, 18 U.S.C. § 924. Becker, 919 F.2d at 570. Subsection (i) of the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B), is identical to subsection (a) of 18 U.S.C. § 16. Subsection (i) provides that a violent felony must have \"as an element the use, attempted use, or threatened use of physical force against the person of another....” 18 U.S.C. § 924(e)(2)(B)(i) (emphasis added). Thus, the language of both sections requires determining the \"elements” of a given crime. . Under 18 U.S.C. § 1959 (formerly § 1952B), it is a federal crime to murder, kidnap, maim, assault with a dangerous weapon, commit assault resulting in serious bodily injury, or threaten to commit a crime of violence, for the receipt of consideration from an enterprise engaged in racketeering activity. WALLACE, Chief Judge, concurring: I concur in the majority opinion except for section VB. I cannot join in this part of the majority opinion, and concur only in its result. Our opinion is very narrow: it concerns only the Guidelines in effect at the time of Innie’s arrest. Under the categorical approach of those Guidelines, we may “not look to the specific conduct” of which the defendant was convicted, “but only to the statutory definition of the crime.” United States v. Becker, 919 F.2d 568, 570 (9th Cir.1990), cert. denied, 499 U.S. 911, 111 S.Ct. 1118, 113 L.Ed.2d 226 (1991). Innie pleaded guilty to being an accessory after the fact to murder for hire in violation of 18 U.S.C. § 3. This statute provides that “[wjhoever, knowing that an offense against the United States has been committed, receives, relieves, comforts or assists the offender in order to hinder or prevent his apprehension, trial or punishment, is an accessory after the fact.” I agree with the majority that, under this statutory definition, the accessory after the fact offense is not a crime of violence. Maj. op. at 851. Our cases do" }, { "docid": "23322795", "title": "", "text": "Cir.1982). In this ease, the offense underlying Innie’s prior conviction as an accessory after the fact was murder for hire in violation of 18 U.S.C. § 1959. Under the government’s theory, the statutory elements of Innie’s conviction would include (1) the commission of a murder for hire in violation of 18 U.S.C. § 1959 by another individual; (2) the defendant’s knowledge of that offense; and (3) assistance after the fact by the defendant to prevent the apprehension, trial, or punishment of the offender. See 18 U.S.C. §§ 3 and 1959; see also United States v. Lepanto, 817 F.2d 1463, 1467 (10th Cir.1987) (defining the elements of the accessory statute). Taking the government’s approach, we should then ask whether being an accessory after the fact to murder for hire (a) has as an element the use, attempted use, or threatened use of physical force against the person or property of another or (b) by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of its commission. It is not clear whether our previous cases prevent us from employing the government’s proposed approach. A violation of 18 U.S.C. § 1959 is not a constituent part of the accessory offense which must be proved by the prosecution in every case to sustain a conviction under the accessory statute; 18 U.S.C. § 3 merely requires proof that some federal offense has been committed. Thus, to determine that a prior conviction as an accessory after the fact included the violation of 18 U.S.C. § 1959, we might have to look beyond the certified record of conviction to the charging papers or jury instructions. See United States v. Preston, 910 F.2d 81, 87 (3d Cir.1990), cert. denied, 498 U.S. 1103, 111 S.Ct. 1002, 112 L.Ed.2d 1085 (1991); United States v. Taylor, 882 F.2d 1018, 1030 (6th Cir.1989) (using indictment to determine defendant’s prior offense), cert. denied, 496 U.S. 907, 110 S.Ct. 2592, 110 L.Ed.2d 273 (1990). We are uncertain, however, whether, under the 1989 Guidelines, we can look to the charging papers and" }, { "docid": "23322797", "title": "", "text": "jury instructions to determine the offense underlying an accessory conviction. We certainly are precluded from looking at the actual charged conduct in the particular case. See Becker, 919 F.2d at 570; Selfa, 918 F.2d at 751; see also Young, 990 F.2d at 472 (defining the inquiry into actual charged conduct as a limited inquiry into the facts charged in the indictment or information). On the other hand, some of our cases suggest that, under the categorical approach, we can look to the charging papers and jury instructions for the limited purpose of determining the nature of a predicate offense where an offense has various permutations. See United States v. Mendez, 992 F.2d 1488, 1491 (9th Cir.1993) (deciding whether conspiracy to rob is a crime of violence under section 924(c)); see also Taylor v. United States, 495 U.S. 575, 602, 110 S.Ct. 2143, 2160, 109 L.Ed.2d 607 (1990) (in the context of section 924(e), sentencing court can go beyond the mere fact of conviction in a narrow range of cases where the jury was actually required to find all the elements of a violent felony). We leave for another day the question whether we can look to the charging papers to determine the underlying offense to an accessory after the fact conviction, because we conclude below that, even under the government’s approach, being an accessory after the fact to murder for hire is not a crime of violence as defined in the 1989 Guidelines. i Under the government’s proposed approach, we first must ask whether being an accessory after the fact to murder for hire has, as an element, the use, attempted use, or threatened use of physical force against the person or property of another. Even if the underlying murder for hire offense is considered to be an element of the accessory offense, culpability for the murder is not attributed to the accessory defendant. The accessory defendant is liable for the act of receiving, relieving, comforting, or assisting a murderer after the use of force, not for the murderer’s use of force. For that reason, an accessory after the fact" }, { "docid": "23322791", "title": "", "text": "v. Warren, 980 F.2d 1300, 1304 (9th Cir.1992). For that reason, the government concedes that the applicable Guidelines are those that were in effect at the time the offense was committed. Under the 1989 Guidelines, we must apply the “so-called ‘categorical approach’” to determine whether Innie’s predicate conviction as an accessory after the fact to murder for hire was a crime of violence. See Becker, 919 F.2d at 570. In doing so, we “do not look to the specific conduct which occasioned [Innie’s] conviction, but only to the statutory definition of the crime.” Id.; see also United States v. Selfa, 918 F.2d 749, 751 (9th Cir.1990) (applying categorical approach); United States v. O’Neal, 910 F.2d 663, 667 (9th Cir.1990) (same); cf. Young, 990 F.2d at 472 (examining actual charged conduct under current Guidelines). A i We begin our inquiry, under subsection (a) of 18 U.S.C. § 16, by asking whether the predicate offense has as an element the use, attempted use, or threatened use of physical force against the person or property of another. This court has defined “an ‘element’ of a crime” as “a ‘constituent part’ of the offense which must be proved by the prosecution in every case to sustain a conviction under a given statute.” United States v. Sherbondy, 865 F.2d 996, 1010 (9th Cir.1988) (applying 18 U.S.C. § 924(e)(2)(B)(i)). 18 U.S.C. § 3 provides that “[w]hoever, knowing that an offense against the United States has been committed, receives, relieves, comforts or assists the offender in order to hinder or prevent his apprehension, trial or punishment, is an accessory after the fact.” 18 U.S.C. § 3 does not require, as an element, the use, attempted use, or threatened use of physical force against the person or property of another. Nor must the use or threat of force be proven in every case to sustain a conviction as an accessory after the fact. Thus, the accessory offense is not a crime of violence as defined in 18 U.S.C. § 16(a). ii We next must ask whether, by its nature, the offense involves a substantial risk that physical force" }, { "docid": "18928749", "title": "", "text": "only one-half of the maximum sentence prescribed for a principal. In deciding that a prior conviction for being an accessory after the fact to murder did not constitute a “crime of violence” for the. purpose of the Career Offender provision of the Guidelines, § 4B1.1, the Court of Appeals for the Ninth Circuit emphasized the distinction between being an aider and abettor and being an accessory after the fact, stating that: the offense of being an accessory after the fact is clearly different from aiding and abetting. Unlike one who aids or abets a crime of violence, an accessory after the fact does not aid in the commission of the underlying offense. Similarly, unlike one who conspires to commit a crime of violence, an accessory after the fact does not agree to commit the crime of violence. United States v. Innie, 7 F.3d 840, 852 (9th Cir.1993), cert. denied, — U.S. -, 114 S.Ct. 1567, 128 L.Ed.2d 212 (1994) (emphasis added). Nevertheless, this court concludes that the crime of accessory after the fact to murder is a RICO predicate. In Innie, the court was interpreting a section of Guidelines which required it to determine whether a prior conviction was “a crime of violence.” See U.S.S.G. § 4B1.1. In contrast, § 1961(1) does not provide that only murder is a RICO predicate. Nor does it state that the defendant must have been “involved in a murder” to have committed a RICO predicate. If § 1961(1) was written in this fashion, the distinction between being an aider and abettor and an accessory after the fact would be legally significant. Section 1961(1), however, states that “any act ... involving murder” is a RICO predicate. In this context, to “involve” means “to relate closely.” See Webster’s New International Dictionary Unabridged 1191 (3d ed. 1981). The court finds that being an accessory after the fact to murder relates closely to murder. Thus, § 1961(1) makes the crime a RICO predicate. Accordingly, Patriarca’s status as an accessory after the fact to the Berns’ murder constitutes relevant conduct. The Base Offense Level for the offense is 30." } ]

[ { "docid": "8396137", "title": "", "text": "(1982), which provides in part: (b) Notwithstanding any Act of Congress that confers exclusive jurisdiction on a court or courts other than the district courts, the district courts shall have original but not exclusive jurisdiction of all civil proceedings arising under title 11 or arising in or related to cases under title 11. (c) The bankruptcy court for the district in which a case under title 11 is commenced shall exercise all the jurisdiction conferred by this section on the district courts. In enacting section 1471(b), Congress intended to grant comprehensive jurisdiction to the bankruptcy courts so that they might deal efficiently and expeditiously with all matters connected with the bankruptcy estate. See H.Rep. No. 598, 95th Cong., 2d Sess., 43-48, reprinted in 1978 U.S.Code Cong. & Ad.News 5963, 6004-08. See also Young v. Sultan, Ltd. (In re Lucasa International, Ltd.), 6 B.R. 717, 719 (Bankr.S.D.N.Y.1980) (§ 1471(b) jurisdiction is “pervasive”); Westinghouse Credit Corp. v. Yeary (In re Brothers Coal Co.), 6 B.R. 567, 570-71 (Bankr.W.D.Va.1980) (§ 1471(b) jurisdiction is “broad.”). The jurisdiction of the bankruptcy courts to hear cases related to bankruptcy is not without limit, however, and there is a statutory, and eventually constitutional, limitation to the power of a bankruptcy court. For subject matter jurisdiction to exist, therefore, there must be some nexus between the “related” civil proceeding and the title 11 case. See In re Hall, 30 B.R. 799, 802 (M.D.Tenn.1983); 1 Collier on Bankruptcy 113.01, at 3-48 to 3-49 (15th ed. 1982). We find that nexus to be absent here. As a threshold matter, it should be noted that the Higgins-Pacor suit is one between two parties, neither of which has filed in bankruptcy, in contrast to the Pacor-Man-ville third party claim, where the defendant Manville is engaged in bankruptcy proceedings and which is therefore clearly “related to” bankruptcy. It must therefore be determined whether the primary action between Higgins and Pacor, although not one directly involving the debtor Manville, is still sufficiently connected with the Man-ville bankruptcy estate, such that jurisdiction lies under 28 U.S.C. § 1471(b). The usual articulation of the test for" } ]

[ { "docid": "14956507", "title": "", "text": "-, -, 114 S.Ct. 1673, 1675, 128 L.Ed.2d 391 (1994) (internal citations omitted). Congress enacted FOIA “ ‘to open agency action to the light of public scrutiny.’ ” Department of the Air Force v. Rose, 425 U.S. 352, 372, 96 S.Ct. 1592, 1604, 48 L.Ed.2d 11 (1976). The Act’s “basic purpose reflect[s] ‘a general philosophy of full agency disclosure unless information is exempted under clearly delineated statutory language.’ ” Id. at 360-61, 96 S.Ct. at 1599 (quoting S.Rep. No. 813, 89th Cong., 1st Sess., 3 (1965)). FOIA thus confers jurisdiction on a district court to prevent an agency from withholding records, unless the information sought falls within one of the nine exemptions enumerated in 552(b). The Supreme Court has explained that “federal jurisdiction [to order disclosure] is dependent on a showing that an agency has (1) ‘improperly’ (2) “withheld’ (3) ‘agency records.’ ” Kissinger v. Reporters Committee for Freedom of the Press, 445 U.S. 136, 150, 100 S.Ct. 960, 968, 63 L.Ed.2d 267 (1980). “Unless each of these criteria is met, a district court lacks jurisdiction to devise remedies to force an agency to comply with the FOIA’s disclosure requirements.” Department of Justice v. Tax Analysts, 492 U.S. 136, 142, 109 S.Ct. 2841, 2846-47, 106 L.Ed.2d 112 (1989). Thus, if agency records do not fall within one of the nine exemptions, they have been “ ‘improperly withheld’ ” and must be disclosed. On the other hand, “[i]f an agency refuses to disclose agency records that indisputably fall within one of the subsection (b) exemptions, the agency has ‘withheld’ the records, albeit not ‘improperly’ given the legislative authorization to do so.” Id. at 153 n. 13, 109 S.Ct. at 2852 n. 13. Accord FBI v. Abramson, 456 U.S. 615, 631, 102 S.Ct. 2054, 2064, 72 L.Ed.2d 376 (1982) (“Once it is established that [disclosure of] information ... would lead to one of the listed harms, the information is exempt. Congress thus creat ed a scheme of categorical exclusion; it did not invite a judicial weighing of the benefits and evils of disclosure on a case-by-case basis.”). Here, the district court partially" }, { "docid": "17175778", "title": "", "text": "L.Ed.2d 774 (1989) (citation omitted). FOIA confers jurisdiction on the district courts “to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld.” 5 U.S.C. § 552(a)(4)(B); U.S. Dep’t of Justice v. Tax Analysts, 492 U.S. 136, 142, 109 S.Ct. 2841, 106 L.Ed.2d 112 (1989). However, “jurisdiction is dependent on a showing that an agency has (1) improperly (2) withheld (3) agency records. Unless each of these criteria is met, a district court lacks jurisdiction to devise remedies to force an agency to comply with the FOIA’s disclosure requirements.” Tax Analysts, 492 U.S. at 142, 109 S.Ct. 2841 (internal quotations and citation omitted). By the terms of the statute, any person has a right to access federal agency records, unless those records are protected from disclosure by one of nine exemptions. See 5 U.S.C. § 552(c); A. Michael’s Piano, Inc., 18 F.3d at 143; Ortiz v. Dep’t of Health and Human Servs., 70 F.3d 729, 732 (2d Cir.1995), cert. denied, 517 U.S. 1136, 116 S.Ct. 1422, 134 L.Ed.2d 546 (1996). These exemptions are to be narrowly construed, in light of FOIA’s objective of the fullest possible agency disclosure “consistent with a responsible balancing of competing concerns included in [the] nine categories of documents exempted[.]” Halpern, 181 F.3d at 284; accord FBI v. Abramson, 456 U.S. 615, 630, 102 S.Ct. 2054, 72 L.Ed.2d 376 (1982); see also Tigue v. U.S. Dep’t of Justice, 312 F.3d 70, 76 (2d Cir.2002) (“The Supreme Court has counseled that these exceptions are to be interpreted narrowly in the face of the overriding legislative intention to make records public.”) (citing Dep’t of the Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 7, 121 S.Ct. 1060, 149 L.Ed.2d 87 (2001)). Implicated in this case is Exemption 5. See 5 U.S.C. § 552(b)(5). Exemption 5 protects “inter-agency or intra-agency memorandums or letters which would not be available by law to a party ... in litigation with the agency.” 5 U.S.C. § 552(b)(5). This exemption thus protects documents ordinarily privileged in the civil discovery context. See FTC v. Grolier," }, { "docid": "16895859", "title": "", "text": "control of the White House.” MOU ¶¶ 17-18. B As both the Supreme Court and this court have repeatedly noted, while FOIA “limited access to ‘agency records,’” it “did not provide any definition of ‘agency records.’” Forsham v. Harris, 445 U.S. 169, 178, 100 S.Ct. 977, 63 L.Ed.2d 293 (1980); see U.S. Dep’t of Justice v. Tax Analysts, 492 U.S. 136, 142, 109 S.Ct. 2841, 106 L.Ed.2d 112 (1989); Consumer Fed’n, 455 F.3d at 287; Tax Analysts v. U.S. Dep’t of Justice, 845 F.2d 1060, 1067 (D.C.Cir.1988), aff'd, 492 U.S. 136, 109 S.Ct. 2841, 106 L.Ed.2d 112 (1989); McGehee v. CIA, 697 F.2d 1095, 1106 (D.C.Cir.1983). Nonetheless, we do know two things that help us define the scope of the term. The first thing we know is that, as the Supreme Court held in Kissinger v. Reporters Committee for Freedom of the Press, Congress did not intend the word “agency” to include the President, his “ ‘immediate personal staff[,] or units in the Executive Office whose sole function is to advise and assist the President.’ ” 445 U.S. 136, 156, 100 S.Ct. 960, 63 L.Ed.2d 267 (1980) (quoting H.R. REP. NO. 93-1380, at 232 (1974) (Conf.Rep.)). We have collectively referred to those staff and units as the “Office of the President,” Armstrong v. Exec. Office of the President, 1 F.3d 1274, 1295 (D.C.Cir.1993); see also Kissinger, 445 U.S. at 156, 100 S.Ct. 960, and do so here as well for ease of reference. Because the Office of the President is not an agency for FOIA purposes, documents generated by staff or units within that Office are “not ‘agency records’ when they [are] made.” Kissinger, 445 U.S. at 156, 100 S.Ct. 960. It is therefore undisputed that a requester could not use FOIA to compel the President or his advisors to disclose their own appointment calendars or visitor logs. See Oral Arg. Recording at 23:45 (acknowledgment by Judicial Watch). In part, Congress exempted such records from FOIA — and later subjected them to the Presidential Records Act instead — in order to avoid serious separation-of-powers concerns that would be raised by" }, { "docid": "17175777", "title": "", "text": "of withholding the remaining information pursuant to Exemption 5. Spe cifically, after in camera review of the documents, the Court concludes that the redacted version of the second document meets the disclosure requirements of FOIA because the remaining redacted information is properly withheld under Exemption 5. Moreover, with respect to the first document, the Court concludes that there is no non-exempt information contained therein that has not already been disclosed within the contents of the second document and that is reasonably segregable from exempt material. Accordingly, defendant’s motion for summary judgment on the FOIA claim is granted in its entirety, and plaintiffs cross-motion is denied. A. Exemption 5 The central purpose of FOIA is to “ensure an informed citizenry ... [which is] needed to check against corruption and to hold the governors accountable to the governed.” NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242, 98 S.Ct. 2311, 57 L.Ed.2d 159 (1978); accord U.S. Dep’t of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 773, 109 S.Ct. 1468, 103 L.Ed.2d 774 (1989) (citation omitted). FOIA confers jurisdiction on the district courts “to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld.” 5 U.S.C. § 552(a)(4)(B); U.S. Dep’t of Justice v. Tax Analysts, 492 U.S. 136, 142, 109 S.Ct. 2841, 106 L.Ed.2d 112 (1989). However, “jurisdiction is dependent on a showing that an agency has (1) improperly (2) withheld (3) agency records. Unless each of these criteria is met, a district court lacks jurisdiction to devise remedies to force an agency to comply with the FOIA’s disclosure requirements.” Tax Analysts, 492 U.S. at 142, 109 S.Ct. 2841 (internal quotations and citation omitted). By the terms of the statute, any person has a right to access federal agency records, unless those records are protected from disclosure by one of nine exemptions. See 5 U.S.C. § 552(c); A. Michael’s Piano, Inc., 18 F.3d at 143; Ortiz v. Dep’t of Health and Human Servs., 70 F.3d 729, 732 (2d Cir.1995), cert. denied, 517 U.S. 1136, 116 S.Ct. 1422, 134" }, { "docid": "13689717", "title": "", "text": "constitutes the Court’s plenary ruling on the motions to transfer the Friction Product Claims to this Court. DISCUSSION 1. Subject Matter Jurisdiction The bankruptcy removal statute is 28 U.S.C. § 1452(a): A party may remove any claim or cause of action in a civil action other than a proceeding before the United States Tax Court or a civil action by a governmental unit to enforce such governmental unit’s police or regulatory power, to the district court for the district where such civil action is pending, if such district court has jurisdiction of such claim under section 1334 of this title. Section 1334(a) establishes subject matter jurisdiction in the United States District Courts for all cases under Title 11, but extends this power as well to “civil proceedings ... arising in or related to cases under title 11.” See id. § 1334(b). “Related to” is a term of art, and jurisdiction under the “related to” clause has been defined by the United States Supreme Court to include litigation of claims owned by the debtor’s estate and, relevant here, litigation between third parties that has an effect on the estate. Celotex Corp. v. Edwards, 514 U.S. 300, 308 n. 5, 115 S.Ct. 1493, 131 L.Ed.2d 403 (1995). The leading case in this area is our own Third Circuit’s Pacor, Inc. v. Higgins, 743 F.2d 984 (3d Cir.1984). Pacor addressed whether an asbestos-related personal injury lawsuit against a non-debt- or was related to the Johns-Manville chapter 11 proceeding on the ground that the non-debtor defendant had asserted a third-party claim of indemnification against Johns-Manville as the original manufacturer of the asbestos. While acknowledging the wide jurisdiction granted by Congress to federal bankruptcy courts to facilitate the administration of debtors’ estates, the Court of Appeals noted that this jurisdiction is “not without limit.” “Related to” jurisdiction still requires “some nexus between the ‘related’ civil proceeding and the title 11 case,” the court explained. Id. at 994. The usual articulation of the test for determining whether a civil proceeding is related to bankruptcy is whether the outcome of that proceeding could conceivably have any effect" }, { "docid": "21960647", "title": "", "text": "Swacina Aff. ¶ 9; Masters Aff. ¶ 9; Derfler Aff. ¶ 9. Four of those calendars had distribution lists of a length similar to that of Administrator McKee. However, the distribution list of Assistant Administrator Derfler, the least senior of the subject USDA officials, was considerably shorter than the others. Derfler, alone among the subject officials, distributed his calendar only to his secretary. On July 28, 2005, the district court issued an opinion concluding that “the officials’ appointment calendars maintained on their personal computers are not ‘agency records’ within the meaning of the statute.” Consumer Fed’n of Am., 383 F.Supp.2d at 2. It therefore granted USDA’s motion for summary judgment and dismissed GFA’s complaint. This appeal followed. II FOIA grants the district court “jurisdiction to enjoin [an] agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant.” 5 U.S.C. § 552(a)(4)(B). Hence, the court must determine whether the defendant agency has “(1) ‘improperly’; (2) ‘withheld’; (3) ‘agency records.’ ” Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 150, 100 S.Ct. 960, 63 L.Ed.2d 267 (1980) (quoting 5 U.S.C. § 552(a)(4)(B)). The only question at issue on this appeal is the validity of the district court’s determination that the USDA calendars are not “agency records.” We review the district court’s grant of summary judgment on this question de novo. See Students Against Genocide v. Department of State, 257 F.3d 828, 834 (D.C.Cir.2001). “In the FOIA context this requires that we ascertain whether the agency has sustained its burden of demonstrating that the documents requested are not ‘agency records.’ ” Gallant v. NLRB, 26 F.3d 168, 171 (D.C.Cir.1994); see United States Dep’t of Justice v. Tax Analysts, 492 U.S. 136, 142 n. 3, 109 S.Ct. 2841, 106 L.Ed.2d 112 (1989); Grand Cent. P’ship, Inc. v. Cuomo, 166 F.3d 473, 478 (2d Cir. 1999). Under FOIA, “[sjummary judgment may be granted on the basis of agency affidavits if they contain reasonable specificity of detail rather than merely conclusory statements, and if they are not called into question by contradictory evidence" }, { "docid": "12970035", "title": "", "text": "under title 11 nor arises in a case under title 11 is non-core. A bankruptcy judge may nonetheless hear the proceeding if it “is otherwise related to a case under title 11.” 28 U.S.C.A. § 157(c)(1) (West 1993); see Wood, 825 F.2d at 97. In Robinson v. Michigan Consolidated Gas Co., 918 F.2d 579 (6th Cir.1990), the Sixth Circuit adopted the test for relatedness as set forth in Pacor, Inc. v. Higgins (In re Pacor, Inc.), 743 F.2d 984 (3d Cir.1984): “The usual articulation of the test for determining whether a civil proceeding is related to bankruptcy is whether the outcome of [that] proceeding could conceivably have any effect on the estate being administered in bankruptcy. Thus, the proceeding need not necessarily be against the debtor or against the debtor’s property. An action is related to bankruptcy if the outcome could alter the debtor’s rights, liabilities, options, or freedom of action (either positively or negatively) and which in any way impacts upon the handling and administration of the bankrupt estate.” Robinson, 918 F.2d at 583 (quoting Pacor, Inc., 743 F.2d at 994) (citations omitted). To this test, the Sixth Circuit has added “the caveat that ‘situations may arise where an extremely tenuous connection to the estate would not satisfy the jurisdictional requirement.’ ” Robinson, 918 F.2d at 584 (quoting Kelley v. Nodine (In re Salem Mortgage Co.), 783 F.2d 626, 634 (6th Cir.1986)); accord Lindsey v. O’Brien, Tanksi, Tanzer and Young Health Care Providers (In re Dow Corning Corp.), 86 F.3d 482, 489 (6th Cir.1996), cert. denied, _ U.S. _, 117 S.Ct. 718, 136 L.Ed.2d 636 (1997). The Supreme Court, in Celotex Corp. v. Edwards, 514 U.S. 300, 307-09, 115 S.Ct. 1493, 1499, 131 L.Ed.2d 403 (1995), has noted that the “related to” jurisdiction of a bankruptcy court is “comprehensive” but not “limitless.” It does extend to suits between non-debtor parties, but only if the action has “an effect on the bankruptcy estate.” Id. at 308 n. 5, 115 S.Ct. at 1499 n. 5. There must be some nexus between the action and the debtor’s bankruptcy case. Dow Corning Corp.," }, { "docid": "18933818", "title": "", "text": "v. Citizens for a Better Env’t, 523 U.S. at 90, 118 S.Ct. 1003 (internal quotation marks omitted). Some statutes use “jurisdiction” to reference subject-matter jurisdiction, that is, a court’s “statutory or constitutional power to adjudicate the case.” Id. at 89, 118 S.Ct. 1003. Other statutes, however, use “jurisdiction” to “specify! ] the remedial powers of the court.” Id. at 90, 118 S.Ct. 1003 (emphasis omitted). The latter use does not implicate subject-matter jurisdiction. See id. Based on its text, we construe § 552(a)(4)(B) to reference remedial power, not subject-matter jurisdiction. The highlighted language does not speak to the court’s ability to adjudicate a claim, but only to the remedies that the court may award. See id. at 91-92, 118 S.Ct. 1003 (rejecting “principle that a statute saying ‘the district court shall have jurisdiction to remedy violations [in specified ways]’ renders the existence of a violation necessary for subject-matter jurisdiction” (brackets in original)). Admittedly, the Supreme Court has previously referred to § 552(a)(4)(B) as jurisdictional. See United States Dep’t of Justice v. Tax Analysts, 492 U.S. 136, 142, 109 S.Ct. 2841, 106 L.Ed.2d 112 (1989); Kissinger v. Reporters Comm, for Freedom of the Press, 445 U.S. at 150, 100 S.Ct. 960. In those cases, however, the Court appears to have used the term in the sense of remedial power rather than subject-matter jurisdiction. See United States Dep’t of Justice v. Tax Analysts, 492 U.S. at 142, 109 S.Ct. 2841 (discussing “jurisdiction to devise remedies to force an agency to comply with the FOIA’s disclosure requirements”); Kissinger v. Reporters Comm, for Freedom of the Press, 445 U.S. at 150, 100 S.Ct. 960 (discussing “[jludicial authority to devise remedies and enjoin agencies”). Moreover, in Steel Co., the Supreme Court held that prior opinions referring to statutes as “jurisdictional” without indicating that they meant subject-matter jurisdiction, or whether the jurisdictional treatment made a substantive or procedural difference, “have no prece-dential effect.” Steel Co. v. Citizens for a Better Env’t, 523 U.S. at 91, 118 S.Ct. 1003. Accordingly, the Court’s earlier descriptions of § 552(a)(4)(B) as jurisdictional are not controlling here. Because § 552(a)(4)(B) does" }, { "docid": "19004399", "title": "", "text": "operations against Castro and, inevitably, their legality.” Id. An investigation of an illegal agency operation satisfies the dictates of § 431(c)(3), and thus our holding that the Church Committee investigated agency “impropriety, or violation of law” is not in tension with Sullivan. For these reasons, we hold that Morley’s FOIA request meets the § 431(c)(3) criteria for mandating the search of the CIA’s operational files under the FOIA. Because the CIA did not search these files, we remand the case to the district court so that the CIA may do so. 2. Search of Records Released to NARA. Morley also correctly contends that the search was inadequate because the CIA did not search records that had been transferred to NARA pursuant to the JFK Act. The Supreme Court has held that “an agency has [) “withheld’ a document under its control when, in denying an otherwise valid request, it directs the requester to a place outside of the agency where the document may be publicly available.” U.S. Dep’t of Justice v. Tax Analysts, 492 U.S. 136, 150, 109 S.Ct. 2841, 106 L.Ed.2d 112 (1989). The FOIA has a “settled policy” of “ ‘full agency disclosure.’ ” Tax Analysts v. U.S. Dep’t of Justice, 845 F.2d 1060, 1064 (D.C.Cir.1988) (quoting S.Rep. No. 89-813, at 3 (1965)), aff'd, 492 U.S. 136, 109 S.Ct. 2841, 106 L.Ed.2d 112. Congress has authorized only nine categories of exemption from this policy, and practical considerations that documents exist in another forum outside of the agency is not amongst them. “[A] categorical refusal to release documents that are in the agency’s ‘custody’ or ‘control’ for any reason other than those set forth in the Act’s enumerated exceptions would constitute ‘withholding.’ ” McGehee v. CIA, 697 F.2d 1095, 1110 (D.C.Cir.1983) (quoting Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 150-51, 100 S.Ct. 960, 63 L.Ed.2d 267 (1980)). Because the CIA does not deny that it has retained copies of the records transferred to NARA and concedes that some transferred records are likely to be responsive, it was obligated to search those records in response" }, { "docid": "14857604", "title": "", "text": "the Vaughns argue that the affidavits from IRS personnel were too vague to allow review of the IRS’s decision and that the IRS should be required to submit a “Vaughn Index.” II. In enacting the FOIA, Congress sought “ ‘to open agency action to the light of public scrutiny.’ ” Department of Justice v. Reporters Committee for Freedom of Press, 489 U.S. 749, 772, 109 S.Ct. 1468, 1481, 103 L.Ed.2d 774 (1989) (quoting Department of Air Force v. Rose, 425 U.S. 352, 372, 96 S.Ct. 1592, 1604, 48 L.Ed.2d 11 (1976)). This basic purpose reflected “ ‘a general philosophy of full agency disclosure unless information is exempted under clearly delineated statutory language.’ ” Rose, 425 U.S. at 360-61, 96 S.Ct. at 1599 (quoting S.Rep. No. 813, 89th Cong., 1st Sess., 3 (1965)). Therefore, under- the FOIA an agency must disclose all records requested by “any person,” 5 U.S.C. § 552(a)(3), unless the information sought falls within one of the nine enumerated exemptions listed in section 552(b). Although the exemptions “must be narrowly construed,” Rose, 425 U.S. at 361, 96 S.Ct. at 1599, they are “intended to have mean ingful reach and application.” John Doe Agency, 110 S.Ct. at 475. The FOIA confers jurisdiction on the district courts to enjoin an agency from withholding records and to order the production of any agency records improperly withheld. 5 U.S.C. § 552(a)(4)(B). The Supreme Court has held that under this provision, “federal jurisdiction is dependent on a showing that an agency has (1) ‘improperly’ (2) ‘withheld’ (3) ‘agency records.’ ” Kissinger v. Reporters Committee for Freedom of Press, 445 U.S. 136, 150, 100 S.Ct. 960, 968, 63 L.Ed.2d 267 (1980). Unless each of these criteria is met, a district court lacks jurisdiction to devise remedies to force an agency to comply with the FOIA’s disclosure requirements. Department of Justice v. Tax Analysts, 492 U.S. 136, 142, 109 S.Ct. 2841, 2846, 106 L.Ed.2d 112 (1989). The burden is on the agency to demonstrate, not the requester to disprove, that the materials sought may be withheld due to an exemption. Id. at 142 n. 3," }, { "docid": "5428968", "title": "", "text": "in the district courts to enjoin an agency from improperly withholding agency records. 5 U.S.C. § 552(a)(4)(B); Kissinger v. Reporters Committee for Freedom of the Press, 445 U.S. 136, 150, 100 S.Ct. 960, 63 L.Ed.2d 267 (1980). “Judicial authority to devise remedies and enjoin agencies can only be invoked, under the jurisdictional grant conferred by § 552, if the agency has contravened all three components of this obligation.” Id. The Supreme Court has noted, albeit in dicta, that “[ejven when an agency does not deny a FOIA request outright, the requesting party may still be able to claim ‘improper’ withholding by alleging that the agency has responded in an inadequate manner.” United States Dep’t of Justice v. Tax Analysts, 492 U.S. 136, 151 n. 12, 109 S.Ct. 2841, 106 L.Ed.2d 112 (1989) (citations omitted) (referring to time limit violations for FOIA compliance as set forth in 5 U.S.C. § 552(a)(6)(C)). Other courts, including the Ninth Circuit, have similarly recognized that the Court has jurisdiction to hear a claim alleging a pattern and practice of unreasonable delay in responding to FOIA requests, even where the plaintiffs FOIA request had already been resolved. See, e.g., Mayock v. Nelson, 938 F.2d 1006, 1006 (9th Cir.1991); Payne Enter., Inc. v. United States, 837 F.2d 486, 491 (D.C.Cir.1988); see also Long v. United States IRS, 693 F.2d 907, 909 (9th Cir.1982) (citation omitted) (“In utilizing its equitable powers to enforce the provisions of the FOIA, the district court may consider injunctive relief where appropriate ... to bar future violations that are likely to occur.”) Accordingly, the Court found in its summary judgment opinion that even though Gilmore’s FOIA request was properly denied, Gilmore has an independent cause of action against the DOE for violating the FOIA by failing to respond to his request and others within the statutory time limits. See Payne, 837 F.2d at 491 (internal quotation marks deleted) (quoting Lybarger v. Cardwell, 577 F.2d 764, 767 (1st Cir.1978)) (“Courts have long recognized that there may very well be circumstances in which prolonged delay in making information available or unacceptably onerous opportunities for viewing" }, { "docid": "9487835", "title": "", "text": "157. Section 1334 provides that district courts shall have “original but not exclusive jurisdiction of all civil proceedings arising under title 11, or arising in or related to cases under title 11.” 28 U.S.C. § 1334(b). Section 157(a) gives district courts the power to refer such proceedings to bankruptcy judges within their districts. 28 U.S.C. § 157(a). This court has issued a standing order referring all such eases and proceedings to the bankruptcy court. See Local Rule 77.4, United States District Court for the District of New Hampshire. Section 157 divides the matters over which the bankruptcy court has jurisdiction into core and non-core proceedings. Section 157(b)(2) grants bankruptcy judges the power to hear and determine “all cases under title 11, and all core proceedings arising under title 11 or arising in a case under title 11.” 28 U.S.C. § 157(b)(2). The section also provides a non-exclusive list of matters that qualify as core proceedings. See id. A bankruptcy court’s factual findings in core proceedings are subject to clear error review while its legal determinations are reviewed de novo. See Briden v. Foley, 776 F.2d 379, 381 (1st Cir.1985). Non-core proceedings are matters that do not qualify as core proceedings but that are “otherwise related to a case under title 11.” 28 U.S.C. § 157(c)(1). “Related to” jurisdiction encompasses both “causes of action owned by the debtor ... and suits between third parties which have an effect on the bankruptcy estate.” Celotex v. Edwards, 514 U.S. 300, 308 n. 5, 115 5.Ct. 1493, 131 L.Ed.2d 403 (1995). The most common test for assessing “related to” jurisdiction asks whether the proceeding under examination “could conceivably have any effect on the estate” Id. at 308 n. 6, 115 S.Ct. 1493 (1995) (quoting Pacor, Inc. v. Higgins, 743 F.2d 984, 994 (3d Cir.1984)); see also In re G.S.F. Corp., 938 F.2d 1467, 1475 (1st Cir.1991) (applying the Pacor formulation). In the absence of consent by all parties to be bound by the bankruptcy court’s determinations in such “related” proceedings, the court may only recommend findings of fact and conclusions of law, subject to" }, { "docid": "21960648", "title": "", "text": "the Press, 445 U.S. 136, 150, 100 S.Ct. 960, 63 L.Ed.2d 267 (1980) (quoting 5 U.S.C. § 552(a)(4)(B)). The only question at issue on this appeal is the validity of the district court’s determination that the USDA calendars are not “agency records.” We review the district court’s grant of summary judgment on this question de novo. See Students Against Genocide v. Department of State, 257 F.3d 828, 834 (D.C.Cir.2001). “In the FOIA context this requires that we ascertain whether the agency has sustained its burden of demonstrating that the documents requested are not ‘agency records.’ ” Gallant v. NLRB, 26 F.3d 168, 171 (D.C.Cir.1994); see United States Dep’t of Justice v. Tax Analysts, 492 U.S. 136, 142 n. 3, 109 S.Ct. 2841, 106 L.Ed.2d 112 (1989); Grand Cent. P’ship, Inc. v. Cuomo, 166 F.3d 473, 478 (2d Cir. 1999). Under FOIA, “[sjummary judgment may be granted on the basis of agency affidavits if they contain reasonable specificity of detail rather than merely conclusory statements, and if they are not called into question by contradictory evidence in the record or by evidence of agency bad faith.” Gallant, 26 F.3d at 171 (internal quotation marks omitted). Although FOIA “limited access to ‘agency records,’ [it] did not provide any definition” of the term. Forsham v. Harris, 445 U.S. 169, 178, 100 S.Ct. 977, 63 L.Ed.2d 293 (1980) (internal citation omitted). We must nonetheless be careful to ensure that “[t]he term ‘agency records’ ... not be manipulated to avoid the basic structure of the FOIA: records are presumptively disclosable unless the government can show that one of the enumerated exemptions applies.” Bureau of Nat’l Affairs, Inc. v. United States Dep’t of Justice, 742 F.2d 1484, 1494 (D.C.Cir.1984). As the Supreme Court has repeatedly reminded us, in enacting FOIA, “Congress sought to open agency action to the light of public scrutiny.” Tax Analysts, 492 U.S. at 142, 109 S.Ct. 2841 (internal quotation marks omitted); see Department of Justice v. Reporters Comm. for Freedom of Press, 489 U.S. 749, 772, 109 S.Ct. 1468, 103 L.Ed.2d 774 (1989); Department of Air Force v. Rose, 425 U.S. 352," }, { "docid": "856160", "title": "", "text": "its motion for summary judgment. First, the Secret Service argues that the WAVES and ACR records are Presidential records, and therefore not agency records subject to FOIA. Second, the Secret Service argues that the FOIA should be construed not to cover the WAVES and ACR records in order to avoid a serious Constitutional separation of powers question. Third, the Secret Service argues that, even if the WAVES and ACR records are subject to FOIA, the FOIA request in this case would be “virtually impossible to process without creating the unacceptable risk that sensitive records implicating national security concerns would be inappropriately released.” Def.’s Mem. in Supp. of Cross-Mot. for Summ. J. and in Opp’n to PL’s Mot. for Partial Summ. J. (“Def.’s Mem.”) at 2. For the reasons explained below, the Court will grant the plaintiffs motion for partial summary judgment and will deny the defendant’s cross-motion for summary judgment. A. WAVES and ACR Records are Agency Records Under the FOIA The central argument the Secret Service advances is that the WAVES and ACR records are not “agency documents” subject to FOIA, which is a prerequisite to federal jurisdiction. See CREW, 527 F.Supp.2d at 88 (“Under 5 U.S.C. § 552(a)(4)(B) federal jurisdiction is dependent upon a showing that an agency has (1) improperly; (2) withheld; (3) agency records.” (quoting Kissinger v. Reporters Comm. for Freedom of Press, 445 U.S. 136, 150, 100 S.Ct. 960, 63 L.Ed.2d 267 (1980)) (internal quotations omitted)). The Court disagrees. The Supreme Court has established a two-part test for evaluating whether a record is an agency record within the meaning of FOIA. “First, an agency must either create or obtain the requested materials.... Second, the agency must be in control of the requested materials at the time the FOIA request is made.” U.S. Dep’t of Justice v. Tax Analysts, 492 U.S. 136, 14445, 109 S.Ct. 2841, 106 L.Ed.2d 112 (1989) (internal quotations omitted). Applying this test, the Court finds the records are subject to FOIA. Two other judges in this District have previously applied this standard to WAVES and ACR records, and both determined that the" }, { "docid": "12228949", "title": "", "text": "of New York in which the defendant has an interest. On the basis of diversity jurisdiction, LIR removed the action to this court on January 14, 1998, and now moves to transfer the proceedings to bankruptcy court. II. Analysis A. Scope of District Court and Bankruptcy Court Jurisdiction District courts are vested with non-exclusive jurisdiction “of all civil proceedings arising under Title 11, or arising in or related to cases under Title 11.” 28 U.S.C. § 1334(b). 28 U.S.C. § 157(a) further provides district courts with discretion to refer “any or all cases under Title 11 and any or all proceedings arising under Title 11 or arising in or related to a case under Title 11 ... to the bankruptcy judges for the district.” The jurisdiction of the bankruptcy court encompasses all cases under Title 11, all “core” proceedings arising under Title 11 as defined in Section 157(b)(2)(A)-(0), and includes the power to enter orders and judgments in such “core” proceedings. 28 U.S.C. § 157(b)(1). Bankruptcy judges may only hear a “non-core” matter if it is related to a case under Title 11, but must submit proposed findings of fact and conclusions of law for final order or judgement by the district court unless the parties consent to final judgment by the bankruptcy court. 28 U.S.C. § 157(c)(1). A proceeding is “related” to a bankruptcy case if it could have some “conceivable effect” on the administration of the bankrupt’s estate. Equimark Commercial Finance Co. v. First Nat. Bank of Cincinnati (In re Showcase Natural Casing Co.), 54 B.R. 138, 141 (Bankr.S.D.Ohio 1984). See also Pacor, Inc. v. Higgins, 743 F.2d 984, 994 (3rd Cir.1984) (“The usual articulation of the test for determining whether a civil proceeding is related to bankruptcy is whether the outcome of that proceeding could conceivably have any effect on the estate being administered in bankruptcy ...”). Thus, whether a matter can be referred to a bankruptcy judge under Section 157(a) and whether the matter is within the jurisdiction of the bankruptcy court involve the same inquiry: if a ease concerns core proceedings or non-core proceedings that" }, { "docid": "5428967", "title": "", "text": "to disclosure under the FOIA, and requested further briefing on the extent of the DOE’s compliance with the FOIA time limitations. Gilmore seeks a declaratory judgment that the DOE’s failure to comply with FOIA time limits is unlawful and seeks an order enjoining the DOE from failing to process FOIA requests within the statutory period. II. The DOE now moves to dismiss the action for lack of subject matter jurisdiction, contending that because the Court found that the DOE did not improperly withhold any agency records, the Court is without jurisdiction to hear Gilmore’s other FOIA claims. Alternatively, the DOE moves to dismiss Gilmore’s pattern or practice claim for delay in the processing of FOIA requests because he lacks standing. Failing that, the DOE requests that the Court limit the relief Gilmore may seek on his pattern or practice claim. A. The DOE’s contention that the Court lacks subject matter jurisdiction over Gilmore’s claim that the DOE has a pattern or practice of delay in processing FOIA requests is unpersuasive. The FOIA expressly grants jurisdiction in the district courts to enjoin an agency from improperly withholding agency records. 5 U.S.C. § 552(a)(4)(B); Kissinger v. Reporters Committee for Freedom of the Press, 445 U.S. 136, 150, 100 S.Ct. 960, 63 L.Ed.2d 267 (1980). “Judicial authority to devise remedies and enjoin agencies can only be invoked, under the jurisdictional grant conferred by § 552, if the agency has contravened all three components of this obligation.” Id. The Supreme Court has noted, albeit in dicta, that “[ejven when an agency does not deny a FOIA request outright, the requesting party may still be able to claim ‘improper’ withholding by alleging that the agency has responded in an inadequate manner.” United States Dep’t of Justice v. Tax Analysts, 492 U.S. 136, 151 n. 12, 109 S.Ct. 2841, 106 L.Ed.2d 112 (1989) (citations omitted) (referring to time limit violations for FOIA compliance as set forth in 5 U.S.C. § 552(a)(6)(C)). Other courts, including the Ninth Circuit, have similarly recognized that the Court has jurisdiction to hear a claim alleging a pattern and practice of unreasonable" }, { "docid": "16625895", "title": "", "text": "enter appropriate orders and judgments, subject to review under section 158 of this title.” 28 U.S.C. § 157(b)(1). Conversely, if the pending matter is classified as a non-core proceeding “that is otherwise related to [the] case,” jurisdiction is more limited, in that a bankruptcy judge “may hear” but not determine the matter. 28 U.S.C. § 157(c)(1). In the latter ease, the bankruptcy judge has the power to “submit proposed findings of fact and conclusions of law to the district court,” which will then enter any final orders or judgments after de novo review. Id. Only if all parties to a proceeding consent may a bankruptcy judge “hear and determine” a non-core proceeding that is “related to” the case. 28 U.S.C. § 157(c)(2). “An objection to a claim is a contested matter within the meaning of Bankruptcy Rule 9014.” 4 Collier on Bankruptcy ¶ 502.02[3][b] (15th ed. rev.1997). See also Aquaslide, 85 B.R. at 546; F.R.Bankr.P. 9014, Advisory Committee Note. Therefore the Debtor’s Disease-Claim Objection commenced a contested matter. This contested matter implicates the Court’s responsibility to allow or disallow claims. Langenkamp v. Culp, 498 U.S. 42, 44, 111 S.Ct. 330, 331, 112 L.Ed.2d 343 (1990) (per curiam) (“[B]y filing a claim against a bankruptcy estate the creditor triggers the process of “allowance and disallowance of claims_”) (quoting Granfinanciera v. Nordberg, 492 U.S. 33, 58, 109 S.Ct. 2782, 2799, 106 L.Ed.2d 26 (1989)). For purposes of 28 U.S.C. §§ 1334(a) and 157(b)(1), proceedings “arising in” a case under title 11 are “those ‘administrative’ matters that arise only in bankruptcy cases.... [Such] proceedings are those that are not based on any right expressly created by title 11, but nevertheless, would have no existence outside of bankruptcy.” In re Harris Pine Mills, 44 F.3d 1431, 1435 (9th Cir.1995) (quoting In re Wood, 825 F.2d 90, 96-97 (5th Cir.1987)). See also In re ACI-HDT Supply Co., 205 B.R. 231, 234-35 (9th Cir. BAP 1997); In re Dow Corning Corp., No. 95-CV-72397-DT, 1996 WL 511646 at *2 (E.D.Mich. July 30, 1996). The claims-allowance process, which is governed by § 502 of the Bankruptcy Code, is" }, { "docid": "14857605", "title": "", "text": "U.S. at 361, 96 S.Ct. at 1599, they are “intended to have mean ingful reach and application.” John Doe Agency, 110 S.Ct. at 475. The FOIA confers jurisdiction on the district courts to enjoin an agency from withholding records and to order the production of any agency records improperly withheld. 5 U.S.C. § 552(a)(4)(B). The Supreme Court has held that under this provision, “federal jurisdiction is dependent on a showing that an agency has (1) ‘improperly’ (2) ‘withheld’ (3) ‘agency records.’ ” Kissinger v. Reporters Committee for Freedom of Press, 445 U.S. 136, 150, 100 S.Ct. 960, 968, 63 L.Ed.2d 267 (1980). Unless each of these criteria is met, a district court lacks jurisdiction to devise remedies to force an agency to comply with the FOIA’s disclosure requirements. Department of Justice v. Tax Analysts, 492 U.S. 136, 142, 109 S.Ct. 2841, 2846, 106 L.Ed.2d 112 (1989). The burden is on the agency to demonstrate, not the requester to disprove, that the materials sought may be withheld due to an exemption. Id. at 142 n. 3, 109 S.Ct. at 2846 n. 3; 5 U.S.C. § 552(a)(4)(B). In this case there is no dispute that the IRS has withheld agency records. The question is whether the IRS has met its burden of showing that those records were withheld properly, that is, in accordance' with one or more of the enumerated statutory exemptions. III. Our review of a district court’s determinations under the FOIA is normally two-pronged. We determine first whether the district court had an adequate factual basis for its decision, and second, decide whether upon that basis the court’s decision was clearly erroneous. Ingle v. Department of Justice, 698 F.2d 259, 267 (6th Cir.1983). The Vaughns appeal only with respect to the first aspect having to do with the factual basis of the District Court’s decision. That is, “[t]he Appellant has not disputed whether a particular document should be released or whether or not it [is] subject to an FOIA exemption.” Rather, the Vaughns only assignment of error is that the District Court erred “by not requiring the government to file" }, { "docid": "18933819", "title": "", "text": "136, 142, 109 S.Ct. 2841, 106 L.Ed.2d 112 (1989); Kissinger v. Reporters Comm, for Freedom of the Press, 445 U.S. at 150, 100 S.Ct. 960. In those cases, however, the Court appears to have used the term in the sense of remedial power rather than subject-matter jurisdiction. See United States Dep’t of Justice v. Tax Analysts, 492 U.S. at 142, 109 S.Ct. 2841 (discussing “jurisdiction to devise remedies to force an agency to comply with the FOIA’s disclosure requirements”); Kissinger v. Reporters Comm, for Freedom of the Press, 445 U.S. at 150, 100 S.Ct. 960 (discussing “[jludicial authority to devise remedies and enjoin agencies”). Moreover, in Steel Co., the Supreme Court held that prior opinions referring to statutes as “jurisdictional” without indicating that they meant subject-matter jurisdiction, or whether the jurisdictional treatment made a substantive or procedural difference, “have no prece-dential effect.” Steel Co. v. Citizens for a Better Env’t, 523 U.S. at 91, 118 S.Ct. 1003. Accordingly, the Court’s earlier descriptions of § 552(a)(4)(B) as jurisdictional are not controlling here. Because § 552(a)(4)(B) does not implicate subject-matter jurisdiction, we conclude that the district court properly dismissed the complaint on the merits pursuant to Fed.R.Civ.P. 12(b)(6), and we affirm that judgment. G. The District Court Did Not Abuse Its Discretion in Denying Discovery In opposing dismissal, Main Street argued that the district court could easily conclude from publicly available materials that the NSC was an agency subject to the FOIA. If the district court was inclined otherwise, however, Main Street sought sweeping discovery into “the complete scope of’ the NSC’s “current powers and responsibilities.” PL’s Opp’n to Mot. to Dismiss 19. The district court agreed with Main Street that publicly available materials were “wholly sufficient for a proper adjudication” of the agency question, but not with the conclusion Main Street urged therefrom. Main St. Legal Servs. v. Nat’l Sec. Council, 962 F.Supp.2d at 478 n. 4. Accordingly, it granted the NSC’s motion for dismissal, but denied Main Street further discovery. We review a denial of discovery only for abuse of discretion, see Allied Mar., Inc. v. Descatrade SA, 620 F.3d" }, { "docid": "22819577", "title": "", "text": "quotation omitted). However, access to governmental information must be “orderly and not so unconstrained as to disrupt the government’s daily business.” Ethyl Corp., 25 F.3d at 1245. Importantly, the Act is to be “construed broadly to provide information to the public in accordance with its purposes; for the same reason, the exemptions from production are to be construed narrowly.” Id. (citing United States Dep’t of Justice v. Julian, 486 U.S. 1, 8, 108 S.Ct. 1606, 1611, 100 L.Ed.2d 1 (1988)); see also Local 3, Int’l Bhd. of Elec. Workers v. NLRB, 845 F.2d 1177, 1180 (2d Cir.1988) (exemptions are to be “narrowly construed with all doubts resolved in favor of disclosure”). (2) As noted by the Supreme Court, under FOIA, “federal jurisdiction is dependent on a showing that an agency has (1) ‘improperly’ (2) ‘withheld’ (3) ‘agency records.’ ” United States Dep’t of Justice v. Tax Analysts, 492 U.S. 136, 142, 109 S.Ct. 2841, 2846, 106 L.Ed.2d 112 (1989) (quoting Kissinger v. Reporters Comm. for Freedom of Press, 445 U.S. 136, 150, 100 S.Ct. 960, 968, 63 L.Ed.2d 267 (1980)). Only when each of these criteria is met may a district court “force an agency to comply with the FOIA’s disclosure requirements.” Id. The Supreme Court has also held that where the question is whether requested documents are “agency records” subject to disclosure under FOIA, “[t]he burden is on the agency to demonstrate, not the requester to disprove, that the materials sought are not ‘agency rec-ords_’” Id. at n. 3 (citing S.Rep. No. 813, 89th Cong., 1st Sess., 8 (1965)). A district court in a FOIA case may grant summary judgment in favor of an agency “ ‘on the basis of agency affidavits if they contain reasonable specificity of detail rather than merely conclusory statements, and if they are not called into question by contradictory evidence in the record or by evidence of agency bad faith.’” Gallant v. NLRB, 26 F.3d 168, 171 (D.C.Cir.1994) (citation omitted) (emphasis added). HUD first claimed that eight of the documents, numbers 1, 2, 6, 12, 13, 14, 15 and 16, sought by GCP are" } ]

[ { "docid": "22358611", "title": "", "text": "was not executed to the bank ;‘and, second, ás a loan upon real-estate security. Yiewed in the first aspect, the court held that as. a mortgage the deed of trust was mefély an- incident to the note, and a right to its benefit, whether it was delivered or not with the note, passed with the transferof the latter. If the loan had been made upon the note alone, the benefit of the deed as a mortgage would have inured to the bank by operation of law. Of course that which the law would give independently of a direct transfer by the mortgagee, the statute did not' intend to defeat because such transfer was made, Yiewed in the second., asoect, as a Man upon real-estate security, the court observed that, so treating it, the consequence insisted upon did not follow; that the statute did not declare such security void, but was silent on the subject; that had Congress so ■ intended it would have been easy to say so, and it can hardly be presumed that this would not have been done, instead of leaving the question to be settled by the uncertain result of litigation and judicial decision. And after citing numerous cases where a disregard of statutory prohibitions has not been held to vitiate the contracts of parties, but only to authorize actions by the government against them, the court held .that the prohibitory clause of the banking law did not vitiate real-estate securities taken for loans, and that a disregard of them only laid the association open to proceedings by the government. “ The impending danger,” said the court, “ of a judgment of ouster and dissolution was, we think, the check, and none other, contemplated by Congress. That has been always the punishment prescribed for the wanton violation of a charter, and it may be made to follow whenever the proper public authority shall see fit to enforce its application.” The construction of the act of Congress thus given has been acted upon by the national banks throughout the country ever since it was published. It is" } ]

[ { "docid": "22565849", "title": "", "text": "likely to come into existence, although the unlawful act of the officer of the bank in certifying may aid in creating the debt. In order to adjudge a contract unlawful, as prohibited by a statute, the prohibition must be found in the statute. The subjection of the bank to the penalty prescribed by the statute for its violation cannot operate to destroy the security for the debt created by the forbidden certification. If the testator of the plaintiffs had pledged the bonds to the defendant, he could not, after receiving the defendant’s money, have replevied the bonds; and after possession of the bonds had been given by him to Capron & Merriam, and after they had been subsequently taken by the defendant in good faith, neither he nor his executors can set up the statute to destroy the debt. This construction of the statute in question is strengthened by the subsequent enactment, on July 12, 1882, of § 13 of the act of that date, c; 288, 22 Stat. 16.6, making it a criminal offence in an officer, clerk or agent of a national bank to violate the provisions of the act of . March 3, 1869. This shows that Congress only intended to impose, as penalties for over-certifying- checks, a forfeiture of the franchises of the bank and a punishment of the delinquent officer or clerk, and did not intend to invalidate commercial transactions connected with forbidden certifications. As the defendant was bound to make good the checks to the holders of them, because the act of 1869 declaims that the checks shall be good and valid obligations against!the-defendant, it follows that Capron & Merriam were bound to make good the amounts to the defendant It necessarily results that the defendant, on paying the checks, was as much entitled to resort to the securities which Capron & Merriam had put into its hands, as it would have been to apply money which they might have deposited to meet the checks. Moreover, it has been held repeatedly by this court that where the provisions of the national banking act prohibit" }, { "docid": "22565842", "title": "", "text": "Mr. Justice Blatcheord, after stating the ease as above reported, delivered the opinion of the court. ■ The Federal question involved is the only one which we can consider on this writ of error. It arises under the act of March 8, 1869,15 Stat. 335, c. 135, which was the statute in force on April 18, 1874, and read as follows: “ It shall be unlawful for any officer, clerk or agent of any national bank to certify any check drawn upon said bank, unless the person or company drawing said check shall have on deposit in said bank, at the time such check is certified, an amount of money equal to the amount specified in such check; and any check so certified by duly authorized officers shall be a good and valid obligation against such bank; and any officer, clerk or agent of any national bank violating the provisions of this act shall subject such bank to the liabilities and proceedings on the part of the comptroller as provided for in section fifty bf the national banking law, approved June third, eighteen hundred and sixty-four.” 13 Stat. 114, c. 106. The provisions of that § 50 were that the comptroller of the currency might forthwith appoint a receiver to wind up the affairs of the banking association. The provisions of the act of March 3, 1869, are now embodied in § 5208 of the Revised Statutes. In regard to the Federal question' involved, namely, the certification of checks by the defendant for Capron & Merriam without having on deposit an equivalent amount of money to meet them, and the contention that the defendant did not become a Iona fide holder of the bonds in virtue of payments made in pursuance of the agreement with that firm, the Court of Appeals remarked, in its opinion, given by Ruger, C. J.; that the statute of the United States affirmed the validity of the contract of certification, and expressly provided the consequences which should follow its violation; that the penalty incurred was impliedly limited to a forfeiture of the bank’s charter and" }, { "docid": "13345916", "title": "", "text": "21 N.E. 57. The defendants had acquired the bonds, which were negotiable instruments, without notice of the plaintiff’s rights, and consequently were entitled to deal with them as though Alma & Co. had been the true owners. In Thompson v. St. Nicholas Nat. Bank, supra, Capron & Merriam, a firm of brokers, had wrongfully pledged to the St. Nicholas Bank certain bonds belonging to Thompson, giving the bank authority to sell them at public or private sale without notice and to apply the proceeds in payment of any present or future indebtedness due to it. The bank took the bonds without notice of Thompson’s rights, but, after notice of such rights and demand for the return of the bonds, sold them and applied the proceeds to its claim against the brokers. In an action to recover possession of the bonds the court directed a verdict for the defendant bank. The New York Court of Appeals said in its opinion (113 N.Y. 325, at page 336, 21 N.E. 57, 59): “The bank, having acquired a valid title to the bonds, was authorized to deal with them for the purpose of effecting the object for which they were transferred by Capron & Merriam. Talty v. Freedman’s Savings & Trust Co., 93 U.S. 321 [23 L. Ed. 886], Its right to hold the bonds continued so long as any part of the debt against Capron & Merriam remained unpaid. The plaintiffs’ intestate could undoubtedly at any time have established his equitable right to a return of the bonds, and procured their surrender, by paying the amount for which they were pledged; but this he not only refrained from doing, but impliedly denied any right in the defendant, by demanding the unconditional surrender of the bonds. This he never became entitled to, and, of course, is not authorized to recover their possession in this action.” The decision in Smith v. Savin, 141 N. Y. 315, 36 N.E. 338, is relied on by the plaintiff. But it in no way modified Thompson v. St. Nicholas Nat. Bank, supra. Indeed, Peckham, J., who wrote the opinion" }, { "docid": "22190453", "title": "", "text": "the act of Congress. This court conceded that the statute by clear implication forbade a national bank from making a loan on' real estate security, but held that the violation of the statute by the bank wiis a matter, of which the borrower could not complain, saying: “We cannot believe it was meant that stockholders, and perhaps depositors and other creditors, should be punished and the borrower rewarded, bjr giving success to this defence whenever the offensive act shall occur. The impending danger of a judgment of ouster and dissolution was, we think, the check, and none other contemplated by Congress. That has been always the punishment prescribed for the wanton violation of a charter, and it may be made to follow whenever the proper public authority shall see fit to invoke its application. A private person cannot, directly or indirectly, usurp this function of the Government.” The doctrine of the Matthews case has been often reaffirmed. Whitney v. Wyman, 101 U. S. 392, 397; Jones v. Guaranty and Indemnity Co., 101 U. S. 622, 628; Fritts v. Palmer, 132 U. S. 282, 291; Logan County Nat. Bank v. Townsend, 139 U. S. 67, 76; Thompson v. St. Nicholas Nat. Bank, 146 U. S. 240, 251. By section 5201 of the Revised Statutes it is provided that “ no association shall make any loan or discount on the security of the shares of its own capital stock, nor be the purchaser or holder of any such shares, unless such security or purchase shall be necessary to prevent loss upon a debt previously contracted in good faith; and stock so purchased or acquired shall, within six months from the time of its purchase, be sold or disposed of at public or private- sale; or, in default thereof, a receiver may be appointed to close up the business of the association.” “While this section,” this court said in National Bank of Xenia v. Stewart, 107 U. S. 676, 677, “in terms prohibits a banking association from making a loan upon the security of shares of its own stock, it imposes no penalty," }, { "docid": "23043751", "title": "", "text": "not to declare the contract void as to principal and legal interest. That would add a penalty not prescribed by the statute. This question, substantially as now presented, has often arisen in cases under the section of the national banking act, providing that the knowingly taking, receiving, reserving, or charging a rate of interest, in excess of that allowed by the act, shall be adjudged a forfeiture of the. entire interest, and, in case a greater rate is paid, gives the person paying it, and his legal representatives, a right, by suit brought within a specified time, to recover back twice the amount so paid. In reference to that act this court has said that “ where a statute prescribes a rate of interest and simply forbids the taking of •more, and more is contracted for, the contract is good for what might lawfully be taken. . . . \"Where a statute creates a new offence and denounces the penalty, or gives a new right and declares the remedy, the punishment or the remedy can be only that which the statute prescribes.” Farmers' & Mechanics' National Bank v. Dearing, 91 U. S. 29, 35. So, in Oates v. National Bank, 100 U. S. 239, 249, where one of the questions was whether a bank could be deemed a liona fide holder of a negotiable note, having received it under a contract which, in its execution, involved a violation of the usury laws of the State, this court said: “ The statute under which the bank was organized, known as the National Banking act, does not declare the contract under which the usurious interest is paid to be void. It denounces no penalty other than a forfeiture of the interest which the note or bill carries, giving to the debtor the right to sue for and recover twice the amount of interest so paid. If we should declare the contract of indorsement void, and, consequently, that no right of action passed to the bank on the note transferred as collateral security, an additional penalty would thus be added beyond those imposed" }, { "docid": "22565844", "title": "", "text": "the winding up of its affairs; that it was thus clearly implied that no other consequences were intended to follow a violation of the statute; and that it would defeat the very policy of an act intended to promote the security and strength of the national banking system, if its provisions should be so construed as to inflict a loss upon the banks and a consequent impairment of their financial responsibility. The court then cited, to support that view, National Bank v. Matthews, 98 U. S. 621, National Bank v. Whitney, 103 U. S. 99, and National Bank of Xenia v. Stewart, 107 U. S. 676. The Court of Appeals further said that it was of opinion that the statute in question had no application to the question involved in this suit, which concerned only the relations between Capron & Merriam and the defendant; that, by the deposit of the bonds, the former secured the promise of the defendant to protect their checks of a certain day for a specified amount; that the certification of the checks was entirely aside from the agreement .between Capron & Merriam and the defendant, and -was a contract between the defendant and' the anticipated holders of the checks; that Capron & Merriam had received the consideration of their pledge, when the defendant agreed w'ith them to honor their checks, and that would have been equally effectual, between the parties, without any certification; that the certification was simply a promise to such persons as might receive the checks that they should be paid on presentation to the defendant, in accordance with its previous agreement with Capron & Merriam; that the legal effect of the agreement'was that tue defendant should loan a certain amount to Capron '& Merriam, and would pay it out on their checks to the persons holding such chécks; that it was entirely legal for the defendant to contract to pay Capron & Merriam’s checks, and it did not affect the legality of that transaction that the defendant also represented to third parties that it had made such an agreement and would pay" }, { "docid": "23250891", "title": "", "text": "Mr. Chief Justice Fuller, after stating the case, delivered the opinion of the court. It was not denied that defendant certified the cheques, and that the account of Dobbins and Dazey was overdrawn when the certifications took place. The questions for determination were defendant’s knowledge of the state of Dobbins and Dazey’s account when the cheques were certified and his intent in the certifications. . Section 5208 made it unlawful for any officer, clerk or agent of any national banking association to certify any cheque drawn upon it, unless the drawer of the check had on deposit at the time such cheque was certified an amount of money equal to the amount specified therein, and provided the consequences which should follow on a violation of the section. Then came section 13 of thé act of July 12, 1882, which made a wilful violation of section 5208 criminal, and denounced a penalty thereon. These sections were under consideration in Potter v. United States, 155 U. S. 438, 445, and the court said: “The charge is of a wilful violation. That is the language of the statute. Section 5208 of the Revised Statutes makes it unlawful for any officer of a national bank to certify a cheque unless the drawer has on deposit at the time an equal amount of money. But this section carries with it no penalty against the wrongdoing officer. Section 13 of the act of 1882 imposes the penalty, and imposes it upon one ‘ who shall wilfully violate,’ etc., as well as upon one ‘ who shall resort to any device,’ etc., ‘to evade the provisions of the act;’ ‘or who shall certify cheques before the amount thereof shall have been regularly entered to the credit of the dealer upon the books of the banking association.’ The word ‘wilful’ is omitted from the description of offences in the latter part of this section. Its presence in the first cannot be regarded as mere surplusage; it means something. It implies on the part of the officer knowledge and a purpose to do wrong. Something more is required than" }, { "docid": "22565846", "title": "", "text": "such checks; that Capron & Merriam could not dispute their liability for the amount paid out in .pursuance of such agreement, nor could any other party, icanding in the shoes of Capron & Merriam; that the fact that the defendant, in connection with the agreement to pay such checks, had also promised third parties to pay them, could not invalidate the liability previously incurred, of impair the security which had previously been given to the defendant upon a valid consideration; that the fact of the certification was entirely immaterial in respect to the liability incurred by Capron & Merriam to the defendant; that there was no evidence impairing the title to. the bonds acquired by the defendant through the transfer of them to it by Capron & Merriam; that the purpose for which the bonds were transferred by the testator of the plaintiffs to Capron & Merriam contemplated their transfer and sale by the latter to third persons; that the defendant acquired a valid title to them by their transfer to it; that the transaction between Capron & Merriam and the defendant was in the ordinary course of business pursued by the latter ; that it received the bonds in good faith, for a valuable consideration, and within all the authorities this gave it a good title to the bonds; that it was authorized to deal with them for the purpose óf effecting the object for which they were transferred to it; that its right to hold the bonds continued so long as any part of its'debt against Capron & Merriam remained unpaid; that the testator of the plaintiffs could at any time have established his equitable right to a return of the bonds, and could have procured their surrender, by paying the amount for which they were pledged, but he refrained from doing so, and impliedly denied any right in the defendant by demanding the unconditional surrender of the bonds; and that he never became entitled to such surrender, and of course was not authorized to recover possession of them. Ve regard those views as sound, and as covering" }, { "docid": "13345917", "title": "", "text": "title to the bonds, was authorized to deal with them for the purpose of effecting the object for which they were transferred by Capron & Merriam. Talty v. Freedman’s Savings & Trust Co., 93 U.S. 321 [23 L. Ed. 886], Its right to hold the bonds continued so long as any part of the debt against Capron & Merriam remained unpaid. The plaintiffs’ intestate could undoubtedly at any time have established his equitable right to a return of the bonds, and procured their surrender, by paying the amount for which they were pledged; but this he not only refrained from doing, but impliedly denied any right in the defendant, by demanding the unconditional surrender of the bonds. This he never became entitled to, and, of course, is not authorized to recover their possession in this action.” The decision in Smith v. Savin, 141 N. Y. 315, 36 N.E. 338, is relied on by the plaintiff. But it in no way modified Thompson v. St. Nicholas Nat. Bank, supra. Indeed, Peckham, J., who wrote the opinion in the former case, distinguished the latter and allowed recovery'because Savin, to whom Smith’s brokers had wrongfully pledged Smith’s stock, sold the stock without notice to either Smith or his brokers, though Savin had no contract empowering him to sell the stock without notice in order to satisfy his lien. The decision in Le Marchant v. Moore, 150 N.Y. 209, 44 N.E. 770, likewise did not modify Thompson v. St. Nicholas Nat. Bank. The plaintiff in that case apparently sued as the successor in interest of one who had wrongfully pledged plaintiff’s securities. The defendant-pledgee, who had no knowledge of plaintiff’s rights, sold the securities without notice and was held liable for conversion. No arrangement whereby the pledgee was authorized to make sales of collateral without notice was shown. We think that Le Marchant v. Moore has no bearing on the case at bar. In view of the decision in Thompson v. Nicholas Nat. Bank, supra, the question before us is whether there was any conversion as against Alma & Co. We think there was" }, { "docid": "22565845", "title": "", "text": "the checks was entirely aside from the agreement .between Capron & Merriam and the defendant, and -was a contract between the defendant and' the anticipated holders of the checks; that Capron & Merriam had received the consideration of their pledge, when the defendant agreed w'ith them to honor their checks, and that would have been equally effectual, between the parties, without any certification; that the certification was simply a promise to such persons as might receive the checks that they should be paid on presentation to the defendant, in accordance with its previous agreement with Capron & Merriam; that the legal effect of the agreement'was that tue defendant should loan a certain amount to Capron '& Merriam, and would pay it out on their checks to the persons holding such chécks; that it was entirely legal for the defendant to contract to pay Capron & Merriam’s checks, and it did not affect the legality of that transaction that the defendant also represented to third parties that it had made such an agreement and would pay such checks; that Capron & Merriam could not dispute their liability for the amount paid out in .pursuance of such agreement, nor could any other party, icanding in the shoes of Capron & Merriam; that the fact that the defendant, in connection with the agreement to pay such checks, had also promised third parties to pay them, could not invalidate the liability previously incurred, of impair the security which had previously been given to the defendant upon a valid consideration; that the fact of the certification was entirely immaterial in respect to the liability incurred by Capron & Merriam to the defendant; that there was no evidence impairing the title to. the bonds acquired by the defendant through the transfer of them to it by Capron & Merriam; that the purpose for which the bonds were transferred by the testator of the plaintiffs to Capron & Merriam contemplated their transfer and sale by the latter to third persons; that the defendant acquired a valid title to them by their transfer to it; that the transaction" }, { "docid": "22565843", "title": "", "text": "the national banking law, approved June third, eighteen hundred and sixty-four.” 13 Stat. 114, c. 106. The provisions of that § 50 were that the comptroller of the currency might forthwith appoint a receiver to wind up the affairs of the banking association. The provisions of the act of March 3, 1869, are now embodied in § 5208 of the Revised Statutes. In regard to the Federal question' involved, namely, the certification of checks by the defendant for Capron & Merriam without having on deposit an equivalent amount of money to meet them, and the contention that the defendant did not become a Iona fide holder of the bonds in virtue of payments made in pursuance of the agreement with that firm, the Court of Appeals remarked, in its opinion, given by Ruger, C. J.; that the statute of the United States affirmed the validity of the contract of certification, and expressly provided the consequences which should follow its violation; that the penalty incurred was impliedly limited to a forfeiture of the bank’s charter and the winding up of its affairs; that it was thus clearly implied that no other consequences were intended to follow a violation of the statute; and that it would defeat the very policy of an act intended to promote the security and strength of the national banking system, if its provisions should be so construed as to inflict a loss upon the banks and a consequent impairment of their financial responsibility. The court then cited, to support that view, National Bank v. Matthews, 98 U. S. 621, National Bank v. Whitney, 103 U. S. 99, and National Bank of Xenia v. Stewart, 107 U. S. 676. The Court of Appeals further said that it was of opinion that the statute in question had no application to the question involved in this suit, which concerned only the relations between Capron & Merriam and the defendant; that, by the deposit of the bonds, the former secured the promise of the defendant to protect their checks of a certain day for a specified amount; that the certification of" }, { "docid": "22078958", "title": "", "text": "then has reasonable cause to believe that he is receiving a preference. In re Broadway Savings Trust Co., 152 Fed. Rep. 152, and see Wilson v. Nelson, 183 U. S. 191. What actually occurred was that a contract in. writing was made in November, 1902, between I. B. Merriam and his co-owner, parties of the first part, and Thomas Merriam and an other, parties of the second part, whereby the parties of the first part agreed to sell and the parties of the second part agreed to buy the coal lands for a named price. Nothing whatever in this contract required that I. B. Merriam’s share of the consideration should be paid to Thomas Merriam or on debts .for which he was liable. Moreover, the contract and a deed which was drawn in pursuance of its terms were not delivered, but were deposited in escrow with a bank in Syracuse, N. Y., and never became operative instruments. Nothing more need be said of them, or of the question supposed to be raised. When Thomas Merriam came to file his answer in the suit, he alleged, in substance, that several years before the conveyance, which has been referred to, and the adjudication in bankruptcy, which followed, I. B. Merriam had executed and delivered, for an expressed consideration of $35,000, a trust deed of the coal lands, which was intendéd to be a security to Thomas Merriam for loans which he had made or might make to his brother, up to that amount. This trust deed, ais subsequently appeared by the evidence, was executed but not registered. A registration of the deed was not required by the law of the State of Tennessee to make it a valid instrument inter partes. The defendant therefore contended that so far as the payments from the purchase money of the coal lands were applied to the indebtedness secured by the trust deed •they were payments for the extinguishment of a valid, subsisting lien upon the land, fixed upon it more than four months before bankruptcy, and therefore not a preference. It may be assumed, without" }, { "docid": "22879850", "title": "", "text": "an application of the principle announced by this court in several ca^es involving the validity of transactions by national banks. In National Bank v. Matthews, 98 U. S. 621, it appeared that a national bank loaned money upon the security of a note and a deed of trust of lands, both of which were assigned to it. The statute declared that a national' banking association could loan money “ on personal security,” and could purchase, hold and convey real estate for. certain named purposes,' “ and for no others,” among which was not included the securing of a present loan of money by a deed of trust or mortgage on real property. • The court, while assuming that the statute, by clear implication, forbade the bank from making a loan on real estate, refused to restrain the bank from enforcing the deed of trust. The.decision went upon these grounds: That the bank parted with its money in good faith; that the ques tion as to the violation of its charter, by taking title to real estate for purposes unauthorized by law, could be raised only by the government in a direct proceeding for that purpose; and that it was not open to the plaintiff in that suit, who had contracted with the bank, to raise any such question in order to defeat the collection of the amount loaned. If any doubt' existed as to the scope of the decision in that case, it was removed by National Bank v. Whitney, 103 U. S. 99, where it was held that the right of a national bank to enforce a mortgage of real estate taken by it to secure indebtedness then existing, as well as future advances, could not be questioned by the debtor, and that a disregard by the bank of the provisions of the act of Congress upon that subject only laid the association open to proceedings .by the government for exercising powers not conferred by law. The bank having then the right to hold the bonds until reimbursed for its advances, but being bound, upon implied contract, to return" }, { "docid": "22565850", "title": "", "text": "in an officer, clerk or agent of a national bank to violate the provisions of the act of . March 3, 1869. This shows that Congress only intended to impose, as penalties for over-certifying- checks, a forfeiture of the franchises of the bank and a punishment of the delinquent officer or clerk, and did not intend to invalidate commercial transactions connected with forbidden certifications. As the defendant was bound to make good the checks to the holders of them, because the act of 1869 declaims that the checks shall be good and valid obligations against!the-defendant, it follows that Capron & Merriam were bound to make good the amounts to the defendant It necessarily results that the defendant, on paying the checks, was as much entitled to resort to the securities which Capron & Merriam had put into its hands, as it would have been to apply money which they might have deposited to meet the checks. Moreover, it has been held repeatedly by this court that where the provisions of the national banking act prohibit certain acts by banks or their officers, without imposing any penalty or forfeiture applicable to particular transactions which have been executed, their validity can be questioned only by the United States, and not by private parties. National Bank v. Matthews, 98 U. S. 621; National Bank v. Whitney, 103 U. S. 99 ; National Bank of Xenia v. Stewart, 107 U. S. 676. The bonds in question came into the possession of the defendant before it certified the checks. They were not pledged to it under any agreement or knowledge on its part, or in fact on the part of Capron & Merriam, that subsequent certifications would be made. The certifications were made after the pledge, and created a debt of Capron & Merriam- to the defendant, which, arose after the pledge. The agreement of December 2, 1873, applied and became operative simultaneously with the certifications, but independently of them, as a legal proposition. In Logan County Bank v. Townsend, 139 U. S. 67, 77, decided in March, 1891, after the present case was decided" }, { "docid": "22190452", "title": "", "text": ".extent of the stock subscribed and paid for by him. That the bank, after obtaining authority to increase its capital, issued certificates of stock without the knowledge or approval of the Comptroller and proceeded to do business upon the basis of such increase before the ’ whole amount of the proposed increase of capital had been paid in, was a matter between it and the Government under whose laws it was organized, and did not render void subscriptions or certificates of stock based upon capital actually paid in, nor have the effect to relieve a shareholder, who became such by paying into the bank the amount subscribed by him, from the individual liability imposed by section 5151. In National Bank v. Matthews, 98 U. S. 621, 629, it appeared that a national bank had made a loan of money, the repayment of which by the borrower was in part secured by a deed of trust on real estate. The borrower .insisted that the taking of the deed of trust as security was in violation of the act of Congress. This court conceded that the statute by clear implication forbade a national bank from making a loan on' real estate security, but held that the violation of the statute by the bank wiis a matter, of which the borrower could not complain, saying: “We cannot believe it was meant that stockholders, and perhaps depositors and other creditors, should be punished and the borrower rewarded, bjr giving success to this defence whenever the offensive act shall occur. The impending danger of a judgment of ouster and dissolution was, we think, the check, and none other contemplated by Congress. That has been always the punishment prescribed for the wanton violation of a charter, and it may be made to follow whenever the proper public authority shall see fit to invoke its application. A private person cannot, directly or indirectly, usurp this function of the Government.” The doctrine of the Matthews case has been often reaffirmed. Whitney v. Wyman, 101 U. S. 392, 397; Jones v. Guaranty and Indemnity Co., 101 U. S. 622," }, { "docid": "22565848", "title": "", "text": "this case. The agreement of December 2, 1873, between Capron & Merriam and the defendant, did not call for any act violating the statute. There was nothing illegal in providing that the securities which the bank might hold to secure the debt to it of Capron & Merriam should be available to make good such debt. The statute does not declare void a contract to secure a debt arising on the certifications which it prohibits. In addition to that, the statute expressly provides that a check certified by a duly authorized officer of the bank, when the customer has not on deposit an amount of money equal to the amount specified in the check certified, shall nevertheless be a good and valid obligation against the bank; and there is nothing in the statute which, expressly or by implication, prohibits the bank from taking security for the protection of its stockholders against the debt thus created. There is mo prohibition against a contract by the bank for security for a debt which the statute contemplates as likely to come into existence, although the unlawful act of the officer of the bank in certifying may aid in creating the debt. In order to adjudge a contract unlawful, as prohibited by a statute, the prohibition must be found in the statute. The subjection of the bank to the penalty prescribed by the statute for its violation cannot operate to destroy the security for the debt created by the forbidden certification. If the testator of the plaintiffs had pledged the bonds to the defendant, he could not, after receiving the defendant’s money, have replevied the bonds; and after possession of the bonds had been given by him to Capron & Merriam, and after they had been subsequently taken by the defendant in good faith, neither he nor his executors can set up the statute to destroy the debt. This construction of the statute in question is strengthened by the subsequent enactment, on July 12, 1882, of § 13 of the act of that date, c; 288, 22 Stat. 16.6, making it a criminal offence" }, { "docid": "13345915", "title": "", "text": "3 bonds which remained unsold. The plaintiff has appealed from the judgment entered on the verdict on the ground that the court applied a wrong measure of damages and should have directed a verdict based upon the par value of the bonds alleged to be converted, plus the interest coupons discounted as of the date of judgment, rather than their highest market value within a reasonable time after the plaintiff learned of the conversion. The defendants have appealed on the ground that the plaintiff was only entitled to recover the 3 bonds and $3,304.39, which was a surplus of cash in defendants’ hands after properly crediting the proceeds of sales upon the balances due the defendants from‘the pledgor Alma & Co. Though it be assumed that the bonds alleged to have been converted were the property of the plaintiff, the latter cannot complain of any acts of the defendants which would have been lawful as against Alma & Co. Such is the law of New York. Thompson v. St. Nicholas Nat. Bank, 113 N.Y. 325, 21 N.E. 57. The defendants had acquired the bonds, which were negotiable instruments, without notice of the plaintiff’s rights, and consequently were entitled to deal with them as though Alma & Co. had been the true owners. In Thompson v. St. Nicholas Nat. Bank, supra, Capron & Merriam, a firm of brokers, had wrongfully pledged to the St. Nicholas Bank certain bonds belonging to Thompson, giving the bank authority to sell them at public or private sale without notice and to apply the proceeds in payment of any present or future indebtedness due to it. The bank took the bonds without notice of Thompson’s rights, but, after notice of such rights and demand for the return of the bonds, sold them and applied the proceeds to its claim against the brokers. In an action to recover possession of the bonds the court directed a verdict for the defendant bank. The New York Court of Appeals said in its opinion (113 N.Y. 325, at page 336, 21 N.E. 57, 59): “The bank, having acquired a valid" }, { "docid": "23043752", "title": "", "text": "be only that which the statute prescribes.” Farmers' & Mechanics' National Bank v. Dearing, 91 U. S. 29, 35. So, in Oates v. National Bank, 100 U. S. 239, 249, where one of the questions was whether a bank could be deemed a liona fide holder of a negotiable note, having received it under a contract which, in its execution, involved a violation of the usury laws of the State, this court said: “ The statute under which the bank was organized, known as the National Banking act, does not declare the contract under which the usurious interest is paid to be void. It denounces no penalty other than a forfeiture of the interest which the note or bill carries, giving to the debtor the right to sue for and recover twice the amount of interest so paid. If we should declare the contract of indorsement void, and, consequently, that no right of action passed to the bank on the note transferred as collateral security, an additional penalty would thus be added beyond those imposed by the law itself.” These decisions are in harmony with prior and subsequent decisions of this court. In Fleckner v. Bank of the United States, 8 Wheat. 338, 355, 353, where one of the questions was whether a certain discount was usurious, the court said : “The statutes of usury of the States, as well as of England, contain an express provision that usurious contracts shall be utterly void'; and without such an enactment the contract would be valid, at least in respect to persons who were strangers to the usury. The taking of interest by the bank beyond the sum. authorized by the charter would doubtless be a violation of its charter, for which a remedy might be applied by the government; but as the act of Congress does not declare that it shall avoid the contract, it is not perceived how the original defendant could avail himself of this ground to defeat a recovery.” Again, in the same case: “ The act has not pronounced that such a violation [the dealing in notes]" }, { "docid": "22565847", "title": "", "text": "between Capron & Merriam and the defendant was in the ordinary course of business pursued by the latter ; that it received the bonds in good faith, for a valuable consideration, and within all the authorities this gave it a good title to the bonds; that it was authorized to deal with them for the purpose óf effecting the object for which they were transferred to it; that its right to hold the bonds continued so long as any part of its'debt against Capron & Merriam remained unpaid; that the testator of the plaintiffs could at any time have established his equitable right to a return of the bonds, and could have procured their surrender, by paying the amount for which they were pledged, but he refrained from doing so, and impliedly denied any right in the defendant by demanding the unconditional surrender of the bonds; and that he never became entitled to such surrender, and of course was not authorized to recover possession of them. Ve regard those views as sound, and as covering this case. The agreement of December 2, 1873, between Capron & Merriam and the defendant, did not call for any act violating the statute. There was nothing illegal in providing that the securities which the bank might hold to secure the debt to it of Capron & Merriam should be available to make good such debt. The statute does not declare void a contract to secure a debt arising on the certifications which it prohibits. In addition to that, the statute expressly provides that a check certified by a duly authorized officer of the bank, when the customer has not on deposit an amount of money equal to the amount specified in the check certified, shall nevertheless be a good and valid obligation against the bank; and there is nothing in the statute which, expressly or by implication, prohibits the bank from taking security for the protection of its stockholders against the debt thus created. There is mo prohibition against a contract by the bank for security for a debt which the statute contemplates as" }, { "docid": "22565851", "title": "", "text": "certain acts by banks or their officers, without imposing any penalty or forfeiture applicable to particular transactions which have been executed, their validity can be questioned only by the United States, and not by private parties. National Bank v. Matthews, 98 U. S. 621; National Bank v. Whitney, 103 U. S. 99 ; National Bank of Xenia v. Stewart, 107 U. S. 676. The bonds in question came into the possession of the defendant before it certified the checks. They were not pledged to it under any agreement or knowledge on its part, or in fact on the part of Capron & Merriam, that subsequent certifications would be made. The certifications were made after the pledge, and created a debt of Capron & Merriam- to the defendant, which, arose after the pledge. The agreement of December 2, 1873, applied and became operative simultaneously with the certifications, but independently of them, as a legal proposition. In Logan County Bank v. Townsend, 139 U. S. 67, 77, decided in March, 1891, after the present case was decided by the Court of Appeals of New York, this court approved the decision in National Bank v. Whitney, 103 U. S. 99, and said that a disregard by a national' bank of the provisions of the act of Congress forbidding it to'take a mortgage to secure an indebtedness then existing, as well as future advances, could not be taken advantage of by the debtor, but “ only laid the institution open to proceedings by the government for exercising powers net conferred by law.” Judgment affirmed." } ]

[ { "docid": "22630055", "title": "", "text": "F.3d 1143, 1145 (4th Cir.1995). Under the statute, the Government has the “burden of demonstrating the amount of the loss sustained by a victim as a result of the offense.” 18 U.S.C. § 3664(e). In addition, in making a restitution award, the court must consider various factors, including the amount of loss sustained by the victim, the financial resources of the defendant, the financial needs and earning ability of the defendant and his dependants, and such other factors as the court deems appropriate. See Blake, 81 F.3d at 505. A district court’s statement that it waives a fine because of the defendant’s inability to pay suggests that the defendant also cannot make restitution. See United States v. Piche, 981 F.2d 706, 718 (4th Cir.1992). A court’s failure to make findings on these factors mandates a remand in this respect. Id. The district court failed to make the statutorily mandated findings of the actual losses suffered by the victim(s) of the offense to which Onyekonwu pleaded guilty, or to make any specific finding on Onyekonwu’s assets. See Blake, 81 F.3d at 505. It is clear that a general restitution order payable to the Government, such as we have here, is contrary to the provisions of the VWPA, which only authorizes a district court to grant a future property right to a victim. See supra note 6. The narrow statutory exceptions to this rule do not apply in this ease. An order that a defendant make restitution to the Government rather than to a victim improperly converts that purported restitu tion payment into a fíne. Cf 18 U.S.C. § 3572(b) (providing that a fine or other monetary penalty may not impair the ability of a defendant’s obligation to make restitution to a victim who is other than the United States). We find no indication in the record that specific victims have either assigned any property interests to the Government or have authorized the Government to act as their trustee. Four conditions must be met to correct plain error: there must be (1) an error, such as a deviation from a legal rule;" } ]

[ { "docid": "22166978", "title": "", "text": "determined that SEI could not recover material profits by charging the Navy for the price, rather than the cost, of the GRI parts because under the terms of the contract SEI was obligated to pass on the cost savings that the profits represented. The district court also properly found that the material profits were a correct measure of loss because the Navy did not receive the benefit of what it bargained for under the contract (OEM-approved parts). Therefore, we find no clear error in the district court’s conclusion that the amount of loss was the stipulated value of between $200,000 and $350,000, and affirm the calculation of Appellants’ sentences based upon that conclusion. IV. Appellants argue the district court erred when it failed to rely on specific findings of fact as required by this Circuit concerning each Appellant’s ability to pay a fine, 18 U.S.C.A. § 3572(a) (West Supp.1994), and restitution, 18 U.S.C.A. § 3664(a) (West Supp.1994). United States v. Piche, 981 F.2d 706, 718 (4th Cir.1992) (restitution), cert. denied, — U.S. -, 113 S.Ct. 2356, 124 L.Ed.2d 264 (1993); United States v. Harvey, 885 F.2d 181, 182 (4th Cir.1989) (fines); United States v. Bruchey, 810 F.2d 456, 459 (4th Cir.1987) (restitution under predecessor to § 3664). Specific findings of fact on the factors set forth in § 3572(a) and § 3664(a) are necessary “to assure effective appellate review of restitution orders” and fines imposed. United States v. Molen, 9 F.3d 1084, 1086 (4th Cir.1993) (restitution), cert. denied, — U.S. -, 114 S.Ct. 1649, 128 L.Ed.2d 368 (1994); United States v. Walker, 39 F.3d 489, 492 (4th Cir.1994) (fines). In determining the imposition and the amount of restitution under § 3664(a), the district court must “consider [factors such as] ... the financial resources of the defendant [and] the financial needs and earning ability of the defendant and [his] dependents.” 18 U.S.C. § 3664(a). The district court must make explicit factual findings as to these factors, and should key these findings “to the specific type and amount of restitution ordered.” United States v. Plumley, 993 F.2d 1140, 1143 (4th Cir.) (per" }, { "docid": "23573075", "title": "", "text": "on supervised release ... you shall pay any outstanding restitution at the rate of $100 per month or 10 percent of your gross income, whichever is greater.... The court did not impose a fine or the cost of incarceration and supervised release. Kinloek did not object to the restitution order at the time of sentencing. Kinloek now appeals his sentence. Former appellate counsel filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), seeking permission to withdraw as counsel. This court relieved him and appointed new counsel to address, among other things, whether the district court failed to consider the factors required by 18 U.S.C. § 3664(a) in setting terms for the payment of restitution. DISCUSSION I. Standards This court reviews an order of restitution for abuse of discretion. See United States v. Thompson, 113 F.3d 13, 14 (2d Cir.1997). Defendant’s failure to object to the restitution order at the time of sentencing does not preclude appellate review because an improper order of restitution constitutes an illegal sentence and, therefore, plain error. See United States v. Mortimer, 52 F.3d 429, 436 (2d Cir.1995) (“Mortimer I ”). In order to impose restitution as part of the defendant’s sentence, the district court must first consider: 1) the amount of loss sustained by each victim as a result of the offense; 2) the financial resources of the defendant; 3) the financial needs and earning ability of the defendant and his dependents; and 4) any other factors which the court wishes to address. See United States v. Giwah, 84 F.3d 109, 114 (2d Cir.1996), citing former 18 U.S.C. § 3664(a), now codified at 18 U.S.C. § 3664(f)(l)(B)(2). “If the record fails to demonstrate that the court considered these mandatory factors, then this court will vacate a restitution order.” Id. While the district court need not make detailed factual findings on each factor, the record must demonstrate that the court considered the factors. See id. Moreover, “[e]ven if the [presentence report] adequately considers the [statutory] factors, that fact alone is not enough to insulate a restitution order" }, { "docid": "22786300", "title": "", "text": "18 U.S.C.A. § 3553(a). Moreover, to the extent the district court intends to rely on the Government’s assertions regarding the scope of Davenport’s criminal activities and his leadership role in the enterprise, the parties should be given an opportunity to present evidence to the court if the facts are disputed. See U.S.S.G. § 6A1.3(a), p.s. (“When any factor important to the sentencing determination is reasonably in dispute, the parties shall be given an adequate opportunity to present information to the court regarding that factor.”); United States v. Cropp, 127 F.3d 354, 362 (4th Cir.1997) (recognizing “Due Process right to present evidence relevant to sentencing”). III. We next consider Davenport’s challenge to the restitution order entered by the district court. Prior to sentencing, the Government submitted a list of victims for purposes of restitution. The list included five financial institutions that suffered losses from fraudulent charges on stolen credit cards. The list also included four individuals who alleged losses arising from the theft of personal possessions. The total loss reported was $8,738.76. The PSR contained no findings concerning restitution; it did note, however, that Davenport had no reported assets and thus could not pay a fine. At sentencing, the district court ordered Davenport to make restitution in the full amount set forth on the Government’s list, but made no findings regarding restitution. Although the Mandatory Victims Restitution Act of 1996 (MVRA), see 18 U.S.C.A. § 3663A(a)(l), (c)(l)(A)(ii) (West 2000 & Supp.2005), required the district court to order restitution, Davenport maintains that the court exceeded its authority under the MVRA by ordering restitution not statutorily authorized. See United States v. Bok, 156 F.3d 157, 166 (2d Cir.1998) (holding that restitution is proper only when it is statutorily authorized). Because Davenport failed to object to the order at sentencing, our review is for plain error. See Fed.R.Crim.P. 52(b); United States v. Olano, 507 U.S. 725, 731-32, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). To establish plain error, Davenport must show that an error occurred, that the error was plain, and that the error affected his substantial rights. See Olano, 507 U.S. at 732," }, { "docid": "8472651", "title": "", "text": "no further arguments to the sentencing court regarding the discrepancy but now argues on appeal that the restitution award improperly included attorney fees and prejudgment interest. Although Defendant failed to specifically object to the inclusion of attorney fees and prejudgment interest, we address these issues because the imposition of an illegal restitution order constitutes plain error. United States v. Herndon, 982 F.2d 1411, 1420 (10th Cir.1992) (citing United States v. Wainwright, 938 F.2d 1096, 1098 (10th Cir.1991)). Under the plain error standard, we will not review a district court’s factual findings relating to sentencing, United States v. Saucedo, 950 F.2d 1508, 1518 (10th Cir.1991), cert. denied, — U.S. —, 113 S.Ct. 1343, 122 L.Ed.2d 725 (1993), but will review for “particularly egregious” or “obvious” and “substantial” legal error, which our failure to consider would result in a “miscarriage of justice.” Id. at 1511, 1516-17. See also United States v. Young, 470 U.S. 1, 15, 105 S.Ct. 1038, 1046, 84 L.Ed.2d 1 (1985). A. There must be “specific statutory authority for an award of attorney[ ] fees and expenses.” United States v. Diamond, 969 F.2d 961, 968 (10th Cir.1992). Under the Victim Witness Protection Act (“VWPA”), 18 U.S.C. §§ 3663-3664, a victim can recover only those losses “sustained by any victim as a result of the offense,” 18 U.S.C. § 3664; see also Hughey v. United States, 495 U.S. 411, 418, 110 S.Ct. 1979, 1983, 109 L.Ed.2d 408 (1990), or as we defined in Diamond, 969 F.2d at 968, those expenditures that are “directly related” to the defendant’s criminal conduct. Diamond states: In the absence of specific statutory authority for an award of attorney’s fees and expenses, we believe Hughey is decisive as it limits the substantive boundaries of restitution under the VWPA to the specific conduct underlying the offense of conviction. 495 U.S. at 413, 110 S.Ct. at 1981. Expenses generated in recovering a victim’s losses, therefore, generally are too far removed from the underlying criminal conduct to form the basis of a restitution order. Accordingly, we hold the fees and expenses accrued in liquidating [defendant’s company] are not recoverable" }, { "docid": "19673265", "title": "", "text": "argues that he is not subject to this provision since the crime to which he pled, conspiracy to transmit wagering information in violation of 18 U.S.C. § 1084, is not an offense committed by fraud or deceit, and therefore is not covered by the MVRA. The resolution of this issue turns on whether the language “committed by fraud or deceit” refers to the elements of an offense or the manner in which the defendant commits the offense. If it is the former, Battista prevails. If it is the latter, as the government argues, he is subject to the MVRA and must pay restitution. Neither party has provided any caselaw that addresses the issue. A plain reading of the statute suggests that the government has the better argument since the phrase “committed by fraud or deceit” appears to refer to the way in which a particular offense was carried out rather than its elements. Accordingly, on the unique facts of this case, where the success of Battista’s wagering was dependent on Donaghy’s fraudulent conduct, this Court concludes that Battista is subject to the MVRA. S. Battista May be Ordered to Pay Restitution Pursuant to the VWPA Alternatively, Battista is accountable for restitution pursuant to the VWPA. The VWPA provides that the court, when sentencing “a defendant convicted of [any offense under Title 18 and others], may order ... that the defendant make restitution to any victim of such offense.” 18 U.S.C. § 3663(a)(1)(A). In determining whether or not to order restitution pursuant to the VWPA, the district court must consider (1) the amount of the loss sustained by each victim as a result of the offense, (2) the financial resources of the defendant, (3) the financial needs and earning ability of the defendant and the defendant’s dependents and (4) such other factors as the court deems appropriate. 18 U.S.C. § 3663(a)(1)(B)(i)(I). “Courts are statutorily required to consider the enumerated restitution factors, but not to make detailed factual findings as to each factor.” United States v. Stevens, 211 F.3d 1, 6 (2d Cir.2000). The Second Circuit has held that, although it is" }, { "docid": "19653769", "title": "", "text": "that her particular vulnerabilities made it more likely the theft would go undetected. Taking this money to pay his mother was meant to prevent his family from reporting the theft and allow it to continue. We, therefore, find that the District Court did not err in enhancing Hawes’ offense level under § 3Al.l(b) and affirm its application of the vulnerable victim enhancement. 2. Failure to consider 18 U.S.C. § 3663 in entering the restitution order Hawes contends that the District Court failed to consider “the financial resources of the defendant, the financial needs and earning ability of the defendant, and the defendant’s dependents, and such other factors as the court deems appropriate” as required by 18 U.S.C. § 3663(a)(1)(B)(i)(II). The parties agree that Hawes failed to raise this objection at sentencing. We, therefore, review the order of restitution for plain error. Fed. R.Crim.P. 52(b); United States v. Lloyd, 469 F.3d 319, 320 (3d Cir.2006). We find no plain error on the record here. Hawes entered into a plea agreement with the government pursuant to which the parties agreed to the amount of loss and restitution. The Second Adden dum to the Presentence Report included a spreadsheet reflecting the agreed-to amounts and was adopted by the District Court when it issued the restitution order. During the sentencing hearing, the Court was informed that, with the exception of two victims, the parties had “agreed to what the restitution is and ... agreed to what the amount of loss attributable to each victim is.” App. 370. Hawes’ current or future ability to pay restitution was never before the District Court. Although the Court was not required to accept the parties’ agreement as to restitution, the Court committed no plain error in accepting it. We will therefore affirm the order of restitution. 3. Reasonableness of Hawes’ sentence Hawes also argues that his sentence was unreasonable because the District Court gave presumptive weight to the guidelines and imposed a sentence greater than necessary to meet the purposes of sentencing. Because we find that the miscalculation of the Guideline range was not harmless error, we cannot" }, { "docid": "22599292", "title": "", "text": "a sentencing court must make a factual finding keying the statutory factors to the type and manner of restitution ordered; it must find that the manner of restitution ordered is feasible. Cf. United States v. Bailey, 975 F.2d 1028, 1031-32 (4th Cir.1992) (stating that, under predecessor to MVRA, district court must make factual finding keying defendant’s financial condition to the restitution order and determining that the defendant can feasibly comply with the order). Such fact-finding requirements are necessary to facilitate effective appellate review. See United States v. Molen, 9 F.3d 1084, 1086 (4th Cir.1993); United States v. Bruchey, 810 F.2d 456, 458 (4th Cir.1987). A court may comply with these requirements by “announcing its findings on the record or by adopting adequate proposed findings contained within a presentence report.” United States v. Blake, 81 F.3d 498, 505 (4th Cir.1996). Our review of the record indicates that the district court did not make all of the necessary factual findings. The court adopted the proposed findings of the pre-sentence report (PSR), which contained a section concerning Dawkins’ financial condition. The PSR adequately described Dawkins’ financial resources and assets, see 18 U.S.C.A. § 3664(f)(2)(A), and his projected earnings, see id. § 3664(f)(2)(B). Although the PSR did not offer a tremendous breadth of information regarding Dawkins’ financial obligations, it did note that Dawkins owed no money on his vehicles or the home in which he lived and that he had no financial dependents; adopting these facts adequately discharged the statutory obligation of the district court. See id. § 3664(f)(2)(C). However, the record is devoid of any factual finding that keys Dawkins’ financial situation to the restitution schedule ordered or finds that the order is feasible. See Bailey, 975 F.2d at 1031-32. We therefore instruct the district court, when it reconsiders the restitution order on remand, to make such a finding on the record. See Blake, 81 F.3d at 505. D. Dawkins argues that the district court illegally delegated its judicial authority by allowing the probation office to adjust the restitution payment schedule after considering Dawkins’ economic status. A district court may not delegate to" }, { "docid": "22166979", "title": "", "text": "2356, 124 L.Ed.2d 264 (1993); United States v. Harvey, 885 F.2d 181, 182 (4th Cir.1989) (fines); United States v. Bruchey, 810 F.2d 456, 459 (4th Cir.1987) (restitution under predecessor to § 3664). Specific findings of fact on the factors set forth in § 3572(a) and § 3664(a) are necessary “to assure effective appellate review of restitution orders” and fines imposed. United States v. Molen, 9 F.3d 1084, 1086 (4th Cir.1993) (restitution), cert. denied, — U.S. -, 114 S.Ct. 1649, 128 L.Ed.2d 368 (1994); United States v. Walker, 39 F.3d 489, 492 (4th Cir.1994) (fines). In determining the imposition and the amount of restitution under § 3664(a), the district court must “consider [factors such as] ... the financial resources of the defendant [and] the financial needs and earning ability of the defendant and [his] dependents.” 18 U.S.C. § 3664(a). The district court must make explicit factual findings as to these factors, and should key these findings “to the specific type and amount of restitution ordered.” United States v. Plumley, 993 F.2d 1140, 1143 (4th Cir.) (per curiam) (citing Bruchey, 810 F.2d at 459), cert. denied, — U.S. -, 114 S.Ct. 279, 126 L.Ed.2d 230 (1993). In determining the imposition and amount of a fine under § 3572(a), the district court must consider, among other things, the income, financial resources, and earning capacity of the defendant, as well as “the burden that the fine will impose upon the defendant” and his dependents. 18 U.S.C. § 3572(a). A district court may satisfy these requirements if it adopts a defendant’s presentence investigation report (PSR) that contains adequate factual findings to allow effective appellate review of the fine or restitution. See United States v. Gresham, 964 F.2d 1426, 1431 (4th Cir.1992) (affirming $80,200 fine when PSR indicated defendant’s potential earning capacity was “above average”); Molen, 9 F.3d at 1086-87 (noting that incomplete or unclear findings in the PSR may preclude effective review of restitution). Because Appellants failed to object during sentencing to the calculation of fines and restitution, they have waived appellate review absent plain error. Fed.R.Crim.P. 52(b); United States v. Grubb, 11 F.3d 426," }, { "docid": "22072175", "title": "", "text": "is not appropriate. Unless a guideline provision expressly prohibits consideration of a factor previously used in applying another guideline section, the factor may be used to determine whether that provision applies as well. United States v. Curtis, 934 F.2d 553, 556 (4th Cir.1991). Neither § 4B1.3 nor § 4A1.3 includes a provision prohibiting double counting. As a result, even if double counting occurred, it did not result in an improper application of the guidelines. Therefore, we conclude that the district court did not err in departing upward. III. We next consider Blake’s challenges to the restitution order. The decision to order restitution pursuant to the Victim and Witness Protection Act of 1982 (VWPA), as amended, 18 U.S.C.A. §§ 3663-3664 (West 1985 & Supp.1995), is within the discretion of the district court, and we will not disturb that decision absent an abuse of discretion. United States v. Piche, 981 F.2d 706, 718 (4th Cir.1992), cert. denied, 508 U.S. 916, 113 S.Ct. 2356, 124 L.Ed.2d 264 (1993). A. This court has repeatedly held that in order to ensure effective appellate review of restitution orders, sentencing courts must make explicit findings of fact on each of the factors set forth in 18 U.S.C.A. § 3664(a) (West Supp.1995). United States v. Molen, 9 F.3d 1084, 1086 (4th Cir.1993), cert. denied, — U.S. -, 114 S.Ct. 1649, 128 L.Ed.2d 368 (1994); accord United States v. Plumley, 993 F.2d 1140, 1142-43 (4th Cir.) (per curiam), cert. denied, — U.S. -, 114 S.Ct. 279, 126 L.Ed.2d 230 (1993); Piche, 981 F.2d at 717; United States v. Bailey, 975 F.2d 1028, 1031 (4th Cir.1992); United States v. Bruchey, 810 F.2d 456, 458 (4th Cir.1987) (interpreting predecessor to § 3664(a)). Such findings must tie the amount and type of restitution ordered to the financial resources, financial needs, and earning ability of the defendant. See, e.g., Molen, 9 F.3d at 1086. Moreover, the court must make a specific finding that the defendant feasibly can comply with the order without undue hardship to himself or his dependents. Id. The district court may satisfy this requirement by announcing its findings on the" }, { "docid": "23327151", "title": "", "text": "Pursuant to the Victim and Witness Protection Act of 1982 (VWPA), 18 U.S.C. §§ 3663-64, the district court “shall consider ... the financial resources of the defendant, [and] the financial needs and earning ability of the defendant and the defendant’s dependents” before imposing restitution. 18 U.S.C. § 3664(a) (1994); see also United States v. Davis, 117 F.3d 459, 463 (11th Cir.1997). The burden rests with the defendant to demonstrate financial resources (or lack thereof) by a preponderance of the evidence. United States v. Twitty, 107 F.3d 1482, 1494 n. 14 (11th Cir.1997). “District courts are not obligated to make explicit factual findings of a defendant’s ability to pay restitution if the record provides an adequate basis for review.” Twitty, 107 F.3d at 1493. “In order to warrant a reversal of the restitution order, the challenging party must show that the ‘record is devoid of any evidence that the defendant is able to satisfy the restitution order.’” Davis, 117 F.3d at 463 (quoting United States v. Remillong, 55 F.3d 572, 574 (11th Cir.1995)). Ordinarily, we review the factual determinations comprising the district court’s restitution order for an abuse of discretion. Davis, 117 F.3d at 462. The record before us reveals, however, that Floyd did not raise an objection to the PSR on this issue or contest it in response to the district court’s Jones inquiry. A defendant’s failure to challenge a restitution order at sentencing constitutes a waiver of the objection. United States v. Stinson, 97 F.3d 466, 468 n. 1 (11th Cir.1996), cert. denied, — U.S. -, 117 S.Ct. 1007, 136 L.Ed.2d 885 (1997). This waiver limits this court’s inquiry to a search for plain error. We will only entertain this issue where the failure to address a perceived error will result in manifest injustice. United States v. Obasohan, 73 F.3d 309, 310-11 (11th Cir.1996). The facts at issue do not lead us to question the integrity of the sentencing process. The district court’s imposition of joint and several restitution in the amount of $593,-456.82 was not manifestly unjust. The record reveals that Floyd, whose net worth is over $120,000" }, { "docid": "14934577", "title": "", "text": "the district court’s reference to the post-1988 amendment version of 47 U.S.C. § 605. Because the evidence supported a finding that the actual loss caused by Manzer’s conduct was far greater than $2.7 million, because the civil statute in question was merely referred to for guidance in measuring loss but did not directly control, and because in any event the amount of loss determined was consistent with the statute in effect at the time of Manzer’s conduct (and before the statute’s amendment) we find no ex post facto violation. C. Restitution The district court ordered Manzer to pay $2.7 million in restitution pursuant to the Victim and Witness Protection Act of 1982 (VWPA), 18 U.S.C. §§ 3663, 3664 (amended 1990) (formerly 18 U.S.C. §§ 3579, 3580). Manzer argues that the district court erred in several respects. We note that “[district courts have wide discretion in sentencing, including the ordering of restitution.” United States v. Bartsh, 985 F.2d 930, 933 (8th Cir.1993), cert. denied, — U.S. —, 114 S.Ct. 1204, 127 L.Ed.2d 551 (1994). Because Manzer failed to object to the restitution order at the sentencing hearing, we review this issue for “plain error resulting in a miscarriage of justice.” United States v. Wivell, 893 F.2d 156, 161 (8th Cir.1990) (quotation omitted). 1. Ability to Pay Manzer argues that the district court erred by failing to make any specific findings regarding his ability to pay $2.7 million. The sentencing transcript shows, however, that the district court based its decision to impose restitution on the presen-tence report’s assessment of Manzer’s high earning potential, particularly his proven business acumen and history of successful entrepreneurship. See United States v. Rogat, 924 F.2d 983, 985 (10th Cir.) (restitution order may be upheld solely on defendant’s earning potential), cert. denied, 499 U.S. 982, 111 S.Ct. 1637, 113 L.Ed.2d 732 (1991). Even absent such findings, Manzer’s argument is unavailing. While we encourage sentencing courts to make specific findings of fact regarding the defendant’s financial resources, financial needs and earning ability and the defendant’s financial obligations to his or her dependents, United States v. Owens, 901 F.2d 1457," }, { "docid": "9753672", "title": "", "text": "Cir.1992) (quoting Chapman v. United States, 500 U.S. 453, 463, 111 S.Ct. 1919, 1926, 114 L.Ed.2d 524 (1991)). It “is not to be applied where to do so would conflict with the implied or expressed intent of Congress.” Liparota v. United States, 471 U.S. 419, 427, 105 S.Ct. 2084, 2089, 85 L.Ed.2d 434 (1985). If we were to adopt Turcks’ reading of § 1029, our holding would conflict with Congress’ intent. Thus, the rule has no application here. IV Turcks finally contends that the district court failed to make the requisite factual findings to justify the restitution order. While we review for “plain error” because Turcks did not object, we will reverse and remand for resentencing because the district court failed to comply with oür express statement that such findings are essential for our review, thus prejudicing Turcks. Indeed, the government has conceded that resentencing must take place. The district court ordered restitution pursuant to the Victim and Witness Protection Act, 18 U.S.C. § 3663-64, which provides in § 3664: The court, in determining whether to order restitution under section 3663 of this title and the amount of such restitution, -shall consider the amount of the loss sustained by any victim as a result of the offense, the financial resources of the defendant, the financial needs and earning ability of the defendant and the defendant’s dependents, and such other factors as the court deems appropriate. 18 U.S.C. § 3664(a) (emphasis added). Consistent with the statute’s mandate, we require that district courts make particular factual findings prior to ordering restitution. United States v. Copple, 24 F.3d 535, 549 (3d Cir.), cert. denied, — U.S. —, 115 S.Ct. 488, 130 L.Ed.2d 400 (1994); United States v. Logar, 975 F.2d 958, 961 (3d Cir.1992); United States v. Palma, 760 F.2d 475, 480 (3d Cir.1985). Specifically, the district court must make factual findings based on the record of: 1) the amount of loss, 2) the defendant’s ability to pay and the financial need of the defendant and the defendant’s dependents, and 3) the relationship between the restitution imposed and the loss caused by the" }, { "docid": "22269373", "title": "", "text": "n. 2 (4th Cir.1993) (affirming restitution order under 18 U.S.C. §§ 3663-3664 where defendant argued her actions did not directly harm a robbed bank because she only drove the getaway car); see also United States v. Davis, 117 F.3d 459, 463 (11th Cir.1997) (not plain error to impose restitution on each member in conspiracy based on the acts of all). We agree with and adopt the view of our sister circuits. The district court did not err by holding Mr. Nichols is subject to full restitution. The more difficult issue raised, however, is whether the district court properly considered Mr. Nichols’ ability to pay restitution. Under the VWPA, the court must consider “the amount of loss sustained by each victim as a result of the offense; and the financial resources of the defendant, the financial needs and earning ability of the defendant and the defendant’s dependents, and other such factors as the court deems appropriate.” 18 U.S.C. § 3663(a)(l)(B)(i) (Supp. II 1996). The VWPA was amended in 1996 by the Mandatory Victim’s Restitution Act (MVRA) which now requires restitution be ordered for crimes of violence “without consideration of the economic circumstances of the defendant.” 18 U.S.C. § 3664(f)(1)(A) (Supp. II 1996). The district court did not apply the amended version of the act because it found a constitutional impediment to doing so. The basis for the district court’s refusal to apply the MVRA is set forth in this bench ruling at the hearing of May 13, 1998, on restitution: [I]t is my view that the significant difference between these two statutes [the VWPA and MVRA] and the reason for the change is that this is a mandatory restitution order. It is not dependent upon ability to pay now or in the future. It does not relate really to the situation of the defendant at all but focuses directly on the victims and what is needed to compensate them for the consequences of the crime for which the sentence is being imposed. I think that is different. I think that is different in its thrust and effect; and accordingly, it is" }, { "docid": "11587511", "title": "", "text": "district court erred in ordering restitution given her present and future inability to pay that award. Under Title 18 U.S.C. § 3664(d), a defendant has the burden of demonstrating that she lacks the financial resources to comply with a restitution order. 18 U.S.C. § 3664(d); United States v. Reese, 998 F.2d 1275, 1281 (5th Cir.1993). In determining whether restitution should be ordered, a district court is required to consider “[t]he amount of the loss sustained by any victim as a result of the offense, the financial resources of the defendant, the financial needs and earning ability of the defendant and the defendant’s dependents-, and such other factors as the court deems appropriate.” 18 U.S.C. § 3664(a). Normally, when a restitution order is appealed the standard of review is whether the district court abused its discretion in directing restitution. Reese, 998 F.2d at 1282. However, because Greer never raised this issue in the district court, we review the decision for plain error. United States v. Stedman, 69 F.3d 737, 741 (5th Cir.1995), cert. denied, 517 U.S. 1250, 116 S.Ct. 2512, 135 L.Ed.2d 201 (1996). Here, Greer has not shown that the district court committed plain error in ordering restitution. At sentencing the district court expressly adopted the findings of fact contained in Greer’s presentence report. Those findings include numerous references to Greer’s financial status that satisfy the mandatory factors that a district court must consider under 18 U.S.C. § 3664(a). Because Greer’s ability to pay was considered, we cannot say that the restitution decision constitutes the type of clear or obvious error required under our plain error standard. Greer’s challenge to the restitution order is rejected. III. For the foregoing reasons, the district court is AFFIRMED. . Greer had worked for the Postal Service for more than ten years. It is unclear what positions she held before becoming head window teller. . All of the station’s employees knew the code for deactivating the alarms. . An \"error correct” is an entry made by the clerk to correct an erroneous entry for the sale of item (like stamps) from the window drawer." }, { "docid": "22816065", "title": "", "text": "that the Federal Government does all that is possible within limits of available resources to assist victims and witnesses of crime without infringing on the constitutional rights of the defendant.” Pub.L. No. 97-291, 96 Stat. 1249. Toward that end, the VWPA authorizes a sentencing court to order a defendant to make restitution to his victim and sets up the procedure for such an order. Under 18 U.S.C. § 3663, the district court has the authority to issue a restitution order, but is not required to do so. 18 U.S.C. § 3663(a)(1) (Supp.1991). Section 3664(a) provides that in determining whether to order restitution and the amount of restitution, the court “shall consider the amount of the loss sustained by any victim as a result of the offense, the financial resources of the defendant, the financial needs and earning ability of the defendant and the defendant’s dependents, and such other factors as the court deems appropriate.” 18 U.S.C. § 3664(a) (Supp.1991). Mills contends that the restitution order is invalid because the district court failed to consider the needs of his dependent child. We review a sentence that falls within the statutory limits of the VWPA for abuse of discretion. United States v. Smith, 944 F.2d 618, 623 (9th Cir.1991), cert. denied, — U.S.-, 112 S.Ct. 1515, 117 L.Ed.2d 651 (1992). Although the district court must consider the factors listed in § 3664(a), the court is not required to make findings of fact, United States v. Cannizzaro, 871 F.2d 809, 811 (9th Cir.), cert. denied, 493 U.S. 895, 110 S.Ct. 245, 107 L.Ed.2d 195 (1989), or even to discuss the factors on the record, United States v. Grewal, 825 F.2d 220, 223 (9th Cir.1987). Instead, in reviewing restitution orders, we have required that the record reflect “that the district judge had at his disposal information bearing on the considerations enumerated in section 3664.” Cannizzaro, 871 F.2d at 811. There must also be some indication that the judge gave thought to the relevant information. See Smith, 944 F.2d at 623; Cannizzaro, 871 F.2d at 812; United States v. Ruffen, 780 F.2d 1493, 1495 (9th" }, { "docid": "17865090", "title": "", "text": "the defendant’s ability to pay and that we must vacate the restitution order. The Victim and Witness Protection Act of 1982 (the “VWPA”) empowers the district court to award restitution to victims. See 18 U.S.C. § 3663-64. The VWPA provisions for restitution were substantially amended by the Mandatory Victims Restitution Act of 1996 (the “MVRA”), which became effective April 24, 1996. Prior to the 1996 amendment, awarding restitution was discretionary and “the court was required to consider ‘the amount of the loss sustained by any victim as a result of the offense, the financial resources of the defendant, the financial needs and earning ability of the defendant and the defendant’s dependants, and such other factors as the court deems appropriate.’ ” See United States v. Siegel, 153 F.3d 1256, 1260 (11th Cir.1998), citing 18 U.S.C.A § 8664(a) (West 1985). Storace’s fraudulent activities took place between October 22, 1993 and March 10, 1994, before the amendments to the VWPA. The amended provisions do not apply to persons whose criminal conduct occurred before April 24, 1996, the effective date of the amendments. See United States v. Siegel, 153 F.3d 1256, 1260 (11th Cir.1998). Therefore, the sentencing court must consider his ability to pay when setting restitution. The record indicates that Storace may be unable to pay $91,397.05 in restitution. Storace has a negative net worth, a low monthly income, a disabled wife who is unable to work, and a daughter who relies on him for support. Furthermore, the district court even acknowledged that Storace would probably be unable to pay this amount. Accordingly, we vacate the restitution award and remand for the district court to consider Storace’s financial resources, financial needs, and earning ability. Two other defendants also appealed their restitution orders, Alta Thayer and Dan Lemrond. However, neither of these defendants objected to the restitution at sentencing. A court of appeals may only review an issue not raised in the trial court if there is a plain error that would result in injustice. See United States v. Olano, 507 U.S. 725, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). Plain error is" }, { "docid": "23700914", "title": "", "text": "is 55-years-old, he has been sentenced to six years in prison, and he is bankrupt. We review the amount of a restitution order for an abuse of discretion. United States v. Patty, 992 F.2d 1045, 1052 (10th Cir.1993). The district court ordered restitution pursuant to the Victim and Witness Protection Act (VWPA), 18 U.S.C. §§ 3663-64, which contains the requirements governing restitution orders. When determining the appropriate amount of restitution, “a sentencing court ‘shall consider the amount of the loss sustained by any victim as a result of the offense, the financial resources of the defendant, the financial needs and earning ability of the defendant and the defendant’s dependents, and such other factors as the court deems appropriate.’ ” United States v. Rogat, 924 F.2d 983, 985 (10th Cir.), cert. denied, 499 U.S. 982, 111 S.Ct. 1637, 113 L.Ed.2d 732 (1991) (quoting 18 U.S.C. § 3664(a)). The fact that a defendant is without financial resources at the time of sentencing is not a bar to a restitution order. United States v. Gabriele, 24 F.3d 68, 73 (10th Cir.1994). The order “will be upheld if the evidence indicates a defendant has some assets or earning potential and thus possibly may be able to pay the amount ordered.” Rogat, 924 F.2d at 985 (emphasis added). A sentencing court is not required to make specific findings as to a defendant’s ability to pay, provided sufficient information was available to and considered by the court. Gabriele, 24 F.3d at 73. The district court did not make any specific findings as to Kunzman’s ability to pay the amount of restitution ordered. However, during the sen tencing hearing, the judge stated that he had considered the presentence report, the evidence and the witnesses’ testimony at trial. The judge also stated that the amount of restitution was based only upon amounts specifically presented into evidence. This is sufficient to establish that the district court considered the information available to it. Thus, we must determine whether the court abused its discretion when it ordered restitution in the amount of $331,756.09 in reliance upon the information before it. The" }, { "docid": "4419203", "title": "", "text": "court gave adequate consideration to Mortimer’s financial status as required under 18 U.S.C. § 3664(a), but erred by failing to consider (1) the effect of this financial status on his ability to pay the restitution immediately and (2) pursuant to 18 U.S.C. § 3663(e)(1), the significance of any payments made by third parties to the victims of Mortimer’s crimes. We therefore vacate the district court’s order of restitution and remand for reconsideration consistent with this opinion. In United States v. Helmsley, 941 F.2d 71, 102 (2d Cir.1991), cert. denied, 502 U.S. 1091, 112 S.Ct. 1162, 117 L.Ed.2d 409 (1992), we held that a defendant who adopts the figures used in a pre-sentence report in argument before the district court, without registering an objection to them, has waived any right to challenge the amount of restitution on appeal. More recently, however, we have held that “because ‘[[Improperly ordered restitution constitutes an illegal sentence and amounts to plain error,’ ” the failure to object before the district court “is not a bar to [appellate] review.” United States v. Soto, 47 F.3d 546, 550 (2d Cir.1995) (citing United States v. Coleman, 9 F.3d 1480, 1486 n. 4 (10th Cir.1993), cert. denied, — U.S. -, 114 S.Ct. 1234, 127 L.Ed.2d 578 (1994)). Mortimer’s challenges to his sentence are therefore reviewed as though an objection had been timely interposed. Mortimer argues that the district court inadequately considered his financial situation. Although a sentencing court is not required to set forth its findings in detail, the record must reflect that it has considered the statutorily mandated factors. United States v. Tortora, 994 F.2d 79, 81 (2d Cir.1993). Under § 3664(a), the sentencing court must consider: the amount of loss sustained by any victim as a result of the offense, [2] the financial resources of the defendant, [3] the financial needs and earning ability of the defendant and the defendant’s dependents, and [4] such other factors as the court deems appropriate. We have recently held that the fact that a pre-sentence report examines a defendant’s financial status does not, in and of itself, satisfy the requirement of" }, { "docid": "22599291", "title": "", "text": "paid, in consideration of — ■ (A) the financial resources and other assets of the defendant, including whether any of these assets are jointly controlled; (B) projected earnings and other income of the defendant; and (C) any financial obligations of the defendant; including obligations to dependents. 18 U.S.C.A. § 3664(f)(2). Dawkins argues that the district court did not satisfy its statutory obligation to specify the manner and schedule by which he was to pay restitution because the court ordered the entire restitution amount immediately due. We, however, consider the district court to have effectively discharged its responsibility to set a payment schedule when it instructed that if Dawkins were unable to pay the full restitution amount immediately, he could pay $200 per month beginning 60 days after his release. We therefore reject this assignment of error. Dawkins also asserts that the district court failed to make certain factual findings. The MVRA clearly requires a sentencing court to consider the factors listed in 18 U.S.C.A. § 3664(f)(2) when determining how restitution is to be paid. Additionally, a sentencing court must make a factual finding keying the statutory factors to the type and manner of restitution ordered; it must find that the manner of restitution ordered is feasible. Cf. United States v. Bailey, 975 F.2d 1028, 1031-32 (4th Cir.1992) (stating that, under predecessor to MVRA, district court must make factual finding keying defendant’s financial condition to the restitution order and determining that the defendant can feasibly comply with the order). Such fact-finding requirements are necessary to facilitate effective appellate review. See United States v. Molen, 9 F.3d 1084, 1086 (4th Cir.1993); United States v. Bruchey, 810 F.2d 456, 458 (4th Cir.1987). A court may comply with these requirements by “announcing its findings on the record or by adopting adequate proposed findings contained within a presentence report.” United States v. Blake, 81 F.3d 498, 505 (4th Cir.1996). Our review of the record indicates that the district court did not make all of the necessary factual findings. The court adopted the proposed findings of the pre-sentence report (PSR), which contained a section concerning Dawkins’" }, { "docid": "22786301", "title": "", "text": "findings concerning restitution; it did note, however, that Davenport had no reported assets and thus could not pay a fine. At sentencing, the district court ordered Davenport to make restitution in the full amount set forth on the Government’s list, but made no findings regarding restitution. Although the Mandatory Victims Restitution Act of 1996 (MVRA), see 18 U.S.C.A. § 3663A(a)(l), (c)(l)(A)(ii) (West 2000 & Supp.2005), required the district court to order restitution, Davenport maintains that the court exceeded its authority under the MVRA by ordering restitution not statutorily authorized. See United States v. Bok, 156 F.3d 157, 166 (2d Cir.1998) (holding that restitution is proper only when it is statutorily authorized). Because Davenport failed to object to the order at sentencing, our review is for plain error. See Fed.R.Crim.P. 52(b); United States v. Olano, 507 U.S. 725, 731-32, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). To establish plain error, Davenport must show that an error occurred, that the error was plain, and that the error affected his substantial rights. See Olano, 507 U.S. at 732, 113 S.Ct. 1770. Even if Davenport makes this three-part showing, correction of the error remains within our discretion, which we “should not exercise ... unless the error ‘seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.’ ” Id. (quoting United States v. Young, 470 U.S. 1, 15, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985)) (second alteration in original). The Government concedes that the restitution order is plainly erroneous, and we agree. We first conclude that the district court failed to make factual findings sufficient to support the restitution order. The MVRA requires the district court to consider and make findings with respect to “the financial resources and other assets of the defendant,” his “projected earnings and other income,” and his “financial obligations.” 18 U.S.C.A. § 3664(f)(2) (West 2000); see 18 U.S.C.A. § 3663A(d) (West 2000) (“An order of restitution under this section shall be issued and enforced in accordance with section 3664.”). The district court was also required to “make a factual finding keying the statutory factors to the type and manner of" } ]

[ { "docid": "22542590", "title": "", "text": "S. 296; Cox v. New Hampshire, 312 U. S. 569; Largent v. Texas, 318 U. S. 418; Saia v. New York, 334 U. S. 558; Kovacs v. Cooper, 336 U. S. 77; Niemotko v. Maryland, 340 U. S. 268; Kunz v. New York, 340 U. S. 290; Poulos v. New Hampshire, 345 U. S. 395. From these decisions certain ‘dear principles emerge. The rights of free speech and assembly, while fundamental in our democratic society, still do not mean that everyone with opinions or beliefs to express may address a group at any public place and at any time. The constitutional guarantee of liberty implies the existence of an organized society maintaining public order, without which liberty itself would be lost in the excesses of anarchy. The control of travel on the streets is a clear example of governmental responsibility to insure this necessary order. A restriction in that relation, designed to promote the public convenience in the interest of all, and not susceptible to abuses of discriminatory application, cannot be disregarded by the attempted exercise of some civil right which, in other circumstances, would be entitled to protection. One would not be justified in ignoring the familiar red light because this was thought to be a means of social protest. Nor could one, contrary to traffic regulations, insist upon a street meeting in the middle of Times Square at the rush hour as a form of freedom of speech or assembly. Governmental, authorities have the duty and responsibility to keep their streets open and available for movement. A group of demonstrators could not insist upon the right to cordon off a street, or entrance to a public or private building, and allow no one to pass who did not agree to listen to their exhortations. See Lovell v. Griffin, supra, at 451; Cox v. New Hampshire, supra, at 574; Schneider v. State, supra, at 160-161; Cantwell v. Connecticut, supra, at 306-307; Giboney v. Empire Storage & Ice Co., 336 U. S. 490; Poulos v. New Hampshire, supra, at 405-408; see also, Edwards v. South Carolina, supra, at 236. We" } ]

[ { "docid": "22561263", "title": "", "text": "enjoin criminal prosecutions under Mississippi’s breach-of-peace statutes, since they do not allege that they have been prosecuted or threatened with prosecution under them”). A standing limitation on overbreadth challenges to an abortion statute has roots in a context hardly analogous to the instant case. For while we have frequently ruled that criminal defendants lack standing to challenge a statute’s overbreadth when their conduct indisputedly falls within the statute’s legitimate core, e. g., United States v. National Dairy Products Corp., 372 U. S. 29 (1963); United States v. Harriss, 347 U. S. 612 (1954); Williams v. United States, 341 U. S. 97 (1951), these rulings bear little relationship to appellant’s challenge to a State’s restriction of her exercise of a fundamental right. See Planned Parenthood of Central Mo. v. Danforth, 428 U. S. 52 (1976); Doe v. Bolton, 410 U. S. 179 (1973). More relevant, I believe, is our analysis of standing to claim that a statute’s overbreadth affects fundamental liberties, primarily those guaranteed by the First Amendment. Because of the risk that exercise of personal freedoms may be chilled by broad regulation, we permit facial overbreadth challenges without a showing that the moving party’s conduct falls within the protected core. Gooding v. Wilson, 405 U. S. 518 (1972); Coates v. Cincinnati, 402 U. S. 611 (1971); United States v. Robel, 389 U. S. 258 (1967); Shuttlesworth v. City of Birmingham, 394 U. S. 147 (1969); Cox v. Louisiana, 379 U. S. 536 (1965); Aptheker v. Secretary of State, 378 U. S. 500 (1964); Kunz v. New York, 340 U. S. 290 (1951). See also United States v. Reese, 92 U. S. 214 (1876) (facial challenge under Fifteenth Amendment). See n. 1, swpra. The Court does not question that exceptions from a parental notice requirement are necessary for minors emancipated from the custody or control of their parents, see n. 48, infra, and for minors able to demonstrate their maturity for the purpose of choosing to have an abortion, ante, at 406-407. See also Bellotti II, 443 U. S., at 651 (Powell, J.); id., at 653 (Stevens, J.). Nor does the" }, { "docid": "22561211", "title": "", "text": "(1976), Justice Marshall took note of the impropriety of deciding constitutional questions “in the absence of ‘an adequate and full-bodied record.’ ” Id., at 546, quoting Public Affairs Associates, Inc. v. Rickover, 369 U. S. Ill, 113 (1962). Justice Powell, with whom Justice Stewart joins, concurring. I This case requires the Court to consider again the divisive questions raised by a state statute intended to encourage parental involvement in the decision of a pregnant minor to have an abortion. See Planned Parenthood of Central Mo. v. Danforth, 428 U. S. 52 (1976); Bellotti v. Baird, 443 U. S. 622 (1979) (Bellotti II). I agree with the Court that Utah Code Ann. § 76-7-304 (2) (1978) does not unconstitutionally burden this appellant’s right to an abortion. I join the opinion of the Court on the understanding that it leaves open the question whether § 76-7-304 (2) unconstitutionally burdens the right of a mature minor or a minor whose best interests would not be served by parental notification. See ante, at 412, n. 22. I write to make clear that I continue to entertain the views on this question stated in my opinion in Bel-lotti II. See n. 8, infra. II Section 76-7-304 (2) requires that a physician “[njotify, if possible, the parents or guardian of the woman upon whom the abortion is to be performed, if she is a minor.” Appellant attacks this notice requirement on the ground that it burdens the right of a minor who is emancipated, or who is mature enough to make the abortion decision independently of parental involvement, or whose parents will react obstructively upon notice. See ante, at 405. The threshold question, as the Court’s opinion notes, is whether appellant has standing to make such a challenge. Standing depends initially on what the complaint alleges, Warth v. Seldin, 422 U. S. 490, 498, 501 (1975), as courts have the power “only to redress or otherwise to protect against injury to the complaining party.” Id., at 499. The complaint in this case was carefully drawn. Appellant’s allegations about herself and her familial situation are few and" }, { "docid": "23346801", "title": "", "text": "with only one parent. Ibid. Given its broad sweep and its failure to serve the purposes asserted by the State in too many cases, I join the Court’s striking of subdivision 2. II In a series of cases, this Court has explicitly approved judi cial bypass as a means of tailoring a parental consent provision so as to avoid unduly burdening the minor’s limited right to obtain an abortion. See Bellotti v. Baird, 428 U. S. 132, 147-148 (1976); Planned Parenthood of Central Mo. v. Danforth, 428 U. S. 52 (1976); Bellotti II, 443 U. S., at 642-644 (opinion of Powell, J.). In Danforth, the Court stated that the “primary constitutional deficiency lies in [the notification statute’s] imposition of an absolute limitation on the minor’s right to obtain an abortion. ... [A] materially different constitutional issue would be presented under a provision requiring parental consent or consultation in most cases but providing for prompt (i) judicial resolution of any disagreement between the parent and the minor, or (ii) judicial determination that the minor is mature enough to give an informed consent without parental concurrence or that abortion in any event is in the minor’s best interest. Such a provision would not impose parental approval as an absolute condition upon the minor’s right but would assure in most instances consultation between the parent and child.” 428 U. S., at 90-91. Subdivision 6 passes constitutional muster because the interference with the internal operation of the family required by subdivision 2 simply does not exist where the minor can avoid notifying one or both parents by use of the bypass procedure. Justice Marshall, with whom Justice Brennan and Justice Blackmun join, concurring in part, concurring in the judgment in part, and dissenting in part. I concur in Parts I, II, IV, and VII of Justice Stevens’ opinion for the Court in No. 88-1309. Although I do not believe that the Constitution permits a State to require a minor to notify or consult with a parent before obtaining an abortion, compare ante, at 445, with infra, at 463-472, I am in substantial agreement with" }, { "docid": "22561210", "title": "", "text": "Inc. v. City of Cleveland, 450 F. Supp. 796, 798 (ND Ohio), affirmance order, 582 F. 2d 1281 (CA6), cert. denied, 439 U. S. 983 (1978). Appellant argues that the statute violates her right to secure necessary treatment from a physician who, in the exercise of his best medical judgment, does not believe the parents should be notified. Since there is no evidence that the physician had such an opinion, we decline to reach this question. See supra, at 401, n. 3, and 405-407. The dissenting opinion purports to see in the Court’s opinion “a clear signal” as to how the Court will decide a future case concerning this or a similar statute, and goes on to forecast a successful challenge on the merits. Today, of course, the Court’s function is to decide only the question properly presented in this case, and there is no occasion to intimate or predict a view as to the proper resolution of some future case. Speaking for the unanimous Court in Kleppe v. New Mexico, 426 U. S. 529 (1976), Justice Marshall took note of the impropriety of deciding constitutional questions “in the absence of ‘an adequate and full-bodied record.’ ” Id., at 546, quoting Public Affairs Associates, Inc. v. Rickover, 369 U. S. Ill, 113 (1962). Justice Powell, with whom Justice Stewart joins, concurring. I This case requires the Court to consider again the divisive questions raised by a state statute intended to encourage parental involvement in the decision of a pregnant minor to have an abortion. See Planned Parenthood of Central Mo. v. Danforth, 428 U. S. 52 (1976); Bellotti v. Baird, 443 U. S. 622 (1979) (Bellotti II). I agree with the Court that Utah Code Ann. § 76-7-304 (2) (1978) does not unconstitutionally burden this appellant’s right to an abortion. I join the opinion of the Court on the understanding that it leaves open the question whether § 76-7-304 (2) unconstitutionally burdens the right of a mature minor or a minor whose best interests would not be served by parental notification. See ante, at 412, n. 22. I write to" }, { "docid": "22124067", "title": "", "text": "equipment be available for office abortions. See id., at 57. I have no doubt that the State has a compelling interest to ensure that these or other requirements are met, and that this legitimate concern would justify state regulation for health reasons even in the first trimester of pregnancy. See Bellotti v. Baird, 428 U. S. 132, 147 (1976) (Bellotti I) (State may not “impose undue burdens upon a minor capable of giving an informed consent.” In Bellotti I, the Court left open the question whether a judicial hearing would unduly burden the Roe right of an adult woman. See 428 U. S., at 147); Bellotti v. Baird, 443 U. S. 622, 640 (1979) (Bellotti II) (opinion of Powell, J.) (State may not “unduly burden the right to seek an abortion”); Harris v. McRae, 448 U. S. 297, 314 (1980) (“The doctrine of Roe v. Wade, the Court held in Maher, 'protects the woman from unduly burdensome interference with her freedom to decide whether to terminate her pregnancy,’ [432 U. S.], at 473-474, such as the severe criminal sanctions at issue in Roe v. Wade, supra, or the absolute requirement of spousal consent for an abortion challenged in Planned Parenthood of Central Missouri v. Danforth, 428 U. S. 52”); Beal v. Doe, 432 U. S. 438, 446 (1977) (The state interest in protecting potential human life “does not, at least until approximately the third trimester, become sufficiently compelling to justify unduly burdensome state interference . . .”); Carey v. Population Services International, 431 U. S. 678, 705 (1977) (Powell, J., concurring in part and concurring in judgment) (“In my view, [Roe and Griswold v. Connecticut, 381 U. S. 479 (1965),] make clear that the [com--pelling state interest] standard has been invoked only when the state regulation entirely frustrates or heavily burdens the exercise of constitutional rights in this area. See Bellotti v. Baird, 428 U. S. 132, 147 (1976)”). Even though the Court did not explicitly use the “unduly burdensome” standard in evaluating the informed-consent requirement in Planned Parenthood of Central Missouri v. Danforth, supra, the informed-consent requirement for first-trimester" }, { "docid": "22561281", "title": "", "text": "Current Issues in Adolescent Psychiatry 129, 136 (J. Schoolar ed. 1973) (study showing that approximately one-fourth of female minors who attempt suicide do so because they are or believe they are pregnant). It is the presence of the notice requirement, and not merely its implementation in a particular case, that signifies the intrusion. Cf. Planned Parenthood of Central Mo. v. Danforth, 428 U. S. 52 (1976) (availability of veto, not exercise of veto, found unconstitutional). Despite the Court’s objection today that we have in the past “expressly declined to equate notice requirements with consent requirements,” ante, at 411, n. 17, in Bellotti II the Court rejected a statute authorizing judicial review of a minor’s abortion decision — as an alternative to parental consent — precisely because a parent notified of the court action might interfere. Thus, Justice Powell wrote for four Members of the Court: “[A]s the District Court recognized, ‘there are parents who would obstruct, and perhaps altogether prevent, the minor’s right to go to court.’ . . . There is no reason to believe that this would be so in the majority of cases where consent is withheld. But many parents hold strong views on the subject of abortion, and young pregnant minors, especially those living at home, are particularly vulnerable to their parents’ efforts to obstruct both an abortion and their access to court.” 443 U. S., at 647. Thus, the notice requirement produces not only predictable disincentives to choose to abort, Harris v. McRae, 448 U. S., at 338 (Marshall, J., dissenting); id., at 330 (Brenkan, J., dissenting); but also “ ‘direct state interference with a protected activity,’ ” id., at 315 (quoting with approval Maher v. Roe, 432 U. S. 464, 475 (1977)). See Doe v. Bolton, 410 U. S. 179 (1973) (invalidating procedural restrictions on availability of abortions); Carey v. Population Services International, 431 U. S., at 687-689 (partial restrictions on access to contraceptives subject to constitutional challenge). Regardless of the personal views each of us may hold, the privacy right by definition secures latitude of choice for the pregnant minor without state approval" }, { "docid": "22124068", "title": "", "text": "the severe criminal sanctions at issue in Roe v. Wade, supra, or the absolute requirement of spousal consent for an abortion challenged in Planned Parenthood of Central Missouri v. Danforth, 428 U. S. 52”); Beal v. Doe, 432 U. S. 438, 446 (1977) (The state interest in protecting potential human life “does not, at least until approximately the third trimester, become sufficiently compelling to justify unduly burdensome state interference . . .”); Carey v. Population Services International, 431 U. S. 678, 705 (1977) (Powell, J., concurring in part and concurring in judgment) (“In my view, [Roe and Griswold v. Connecticut, 381 U. S. 479 (1965),] make clear that the [com--pelling state interest] standard has been invoked only when the state regulation entirely frustrates or heavily burdens the exercise of constitutional rights in this area. See Bellotti v. Baird, 428 U. S. 132, 147 (1976)”). Even though the Court did not explicitly use the “unduly burdensome” standard in evaluating the informed-consent requirement in Planned Parenthood of Central Missouri v. Danforth, supra, the informed-consent requirement for first-trimester abortions in Danforth was upheld because it did not “unduly burde[n] the right to seek an abortion.” Bellotti I, supra, at 147. The only case in which the Court invalidated regulations that were not “undue burdens” was Doe v. Bolton, 410 U. S. 179 (1973), which was decided on the same day as Roe. In Doe, the Court invalidated a hospitalization requirement because it covered first-trimester abortion. The Court also invalidated a hospital accreditation requirement, a hospital-committee approval requirement, and a two-doctor concurrence requirement. The Court clearly based its disapproval of these requirements on the fact that the State did not impose them on any other medical procedure apart from abortion. But the Court subsequent to Doe has expressly rejected the view that differential treatment of abortion requires invalidation of regulations. See Danforth, 428 U. S., at 67, 80-81; Maher v. Roe, 432 U. S. 464, 480 (1977); Harris, 448 U. S., at 325. See also Planned Parenthood Assn. of Kansas City, Mo., Inc. v. Ashcroft, post, p. 476. In his amicus curiae brief in" }, { "docid": "23346806", "title": "", "text": "grant her permission to have an abortion. See post, at 497-501 (opinion of Kennedy, J.). Cf. ante, at 448-449 (opinion of Stevens, J.) (finding that requiring minor to wait 48 hours after notifying one parent reasonably furthers legitimate state interest). First, the parental notification and delay requirements significantly restrict a young woman’s right to reproductive choice. I base my conclusion not on my intuition about the needs and attitudes of young women, but on a sizable and impressive collection of empirical data documenting the effects of parental notification statutes and of delaying an abortion. Second, the burdensome restrictions are not narrowly tailored to serve any compelling state interest. Finally, for the reasons discussed in Part III, infra, the judicial bypass procedure does not save the notice and delay requirements. A Neither the scope of a woman’s privacy right nor the magnitude of a law’s burden is diminished because a woman is a minor. Bellotti v. Baird, 443 U. S. 622, 642 (1979) (Bellotti II) (opinion of Powell, J.); Planned Parenthood of Central Mo. v. Danforth, 428 U. S. 62, 74 (1976). Rather, a woman’s minority status affects only the nature of the State’s interests. Although the Court considers the burdens that the two-parent notification requirement imposes on a minor woman’s exercise of her right to privacy, ante, at 450-451, and n. 36, it fails to recognize that forced notification of only one parent also significantly burdens a young woman’s right to have an abortion, see ante, at 459-460 (opinion of O’Connor, J.); post, at 491-497 (opinion of Kennedy, J.). Cf. ante, at 448-449 (opinion of Stevens, J.). A substantial proportion of pregnant minors voluntarily consult with a parent regardless of the existence of a notification requirement. See, e. g., Torres, Forrest, & Eisman, Telling Parents: Clinic Policies and Adolescents’ Use of Family Planning and Abortion Services, 12 Family Planning Perspectives 284, 287, 288, 290 (1980) (51% of minors discussed abortion with parents in the absence of a parental consent or notification requirement). Minors 15 years old or younger are even more likely voluntarily to discuss the abortion decision with their" }, { "docid": "22698693", "title": "", "text": "to go unpunished is outweighed by the possibility that protected speech of others may be muted and perceived grievances left to fester because of the possible inhibitory effects of overly broad statutes. Over- breadth attacks have also been allowed where the Court thought rights of association were ensnared in statutes which, by their broad sweep, might result in burdening innocent associations. See Keyishian v. Board of Regents, 385 U. S. 589 (1967); United States v. Robel, 389 U. S. 258 (1967); Aptheker v. Secretary of State, 378 U. S. 500 (1964); Shelton v. Tucker, [364 U. S. 479 (1960)]. Facial overbreadth claims have also been entertained where statutes, by their terms, purport to regulate the time, place, and manner of expressive or communicative conduct, see Grayned v. City of Rockford, supra, at 114-121; Cameron v. Johnson, 390 U. S., at 617-619; Zwickler v. Koota, 389 U. S. 241, 249-250 (1967) ; Thornhill v. Alabama, 310 U. S. 88 (1940), and where such conduct has required official approval under laws that delegated stand-ardless discretionary power to local functionaries, resulting in virtually unreviewable prior restraints on First Amendment rights. See Shuttlesworth v. Birmingham, 394 U. S. 147 (1969); Cox v. Louisiana, 379 U. S. 536, 553-558 (1965); Kunz v. New York, 340 U. S. 290 (1951); Lovell v. Griffin, 303 U. S. 444 (1938).” Broadrick v. Oklahoma, 413 U. S. 601, 612-613. Reasonable regulations of the time, place, and manner of protected speech, where those regulations are necessary to further significant governmental interests, are permitted by the First Amendment. See, e. g., Kovacs v. Cooper, 336 U. S. 77 (limitation on use of sound trucks); Cox v. Louisiana, 379 U. S. 559 (ban on demonstrations in or near a courthouse with the intent to obstruct justice); Grayned v. City of Rockford, 408 U. S. 104 (ban on willful making, on grounds adjacent to a school, of any noise which disturbs the good order of the school session). S. Tallentyre, The Friends of Voltaire 199 (1907). See Hague v. CIO, 307 U. S. 496, 516 (opinion of Roberts, J.). Terminiello v. Chicago, 337" }, { "docid": "22561265", "title": "", "text": "Court depart from the view, made explicit in Justice Powell’s opinion in Bellotti II, supra, at 651, that a State cannot require parental notice when it would not be in the minor’s best interests to do so. This position is articulated anew today by Justice Powell, ante, at 420, and bolstered by the majority, which acknowledges the need for exception where parental notification interferes with emergency medical treatment, ante, at 407, n. 14, and which leaves open the possibility of relief where the minor makes a “claim or showing as to . . . her relations with her parents,” ante, at 407, or demonstrates a “hostile home situatio[n],” ante, at 407, n. 14. See also L. R. v. Hansen, Civil No. C-80-0078J (Utah, Feb. 8, 1980, and Oct. 24, 1980). It is especially noteworthy that we have not refrained from according to physicians, threatened with the personal risk of prosecution, standing to challenge abortion restrictions by asserting the rights of any of their patients. E. g., Planned Parenthood of Central Mo. v. Danforth, supra, at 62; Doe v. Bolton, supra; Griswold v. Connecticut, 381 U. S. 479 (1965). In the instant case, application of the prudential rule causes undue commingling of jurisdictional and merits issues. For here, the third-party interests do not even come into play until appellant wishes to rebut the State’s interests, which themselves are asserted only after appellant has established a burden on her protected interests. First, the appellant must satisfy a court that, on the merits, her fundamental right to privacy in consulting her physician about an abortion is burdened by the Utah statute. Only then need the State assert its countervailing state interests, which here include promoting family autonomy and parental authority. And only in rebuttal would appellant next challenge as overbroad the means employed by the State, for the absolute ban regulates the abortion decision of emancipated and mature minors, and others whose best interests call for an abortion without parental notice. Thus, in the name of prudence, the majority’s standing analysis depends upon its evaluation of the complicated merits. Appellant’s consultation with three" }, { "docid": "23346748", "title": "", "text": "a burdensome court appearance actively interferes with the parent-child communication voluntarily initiated by the child, communication assertedly at the heart of the State’s purpose in requiring notification of both parents. In these cases, requiring notification of both parents affirmatively discourages parent-child communication.” Id., at 777-778. V Three separate but related interests — the interest in the welfare of the pregnant minor, the interest of the parents, and the interest of the family unit — are relevant to our consideration of the constitutionality of the 48-hour waiting period and the two-parent notification requirement. The State has a strong and legitimate interest in the welfare of its young citizens, whose immaturity, inexperience, and lack of judgment may sometimes impair their ability to exercise their rights wisely. See Bellotti II, 443 U. S., at 634-639 (opinion of Powell, J.); Prince v. Massachusetts, 321 U. S. 158, 166-167 (1944). That interest, which justifies state-imposed requirements that a minor obtain his or her parent’s consent before undergoing an operation, marrying, or entering military service, see Parham v. J. R., 442 U. S. 584, 603-604 (1979); Planned Parenthood of Central Mo. v. Danforth, 428 U. S., at 95 (White, J., concurring in part and dissenting in part); id., at 102-103 (Stevens, J., concurring in part and dissenting in part), extends also to the minor’s decision to terminate her pregnancy. Although the Court has held that parents may not exercise “an absolute, and possibly arbitrary, veto” over that decision, Danforth, 428 U. S., at 74, it has never challenged a State’s reasonable judgment that the decision should be made after notification to and consultation with a parent. See Ohio v. Akron Center for Reproductive Health, post, at 510-511; Akron v. Akron Center for Reproductive Health, Inc., 462 U. S. 416, 428, n. 10, 439 (1983); H. L. v. Matheson, 450 U. S., at 409-410; Bellotti II, 443 U. S., at 640-641 (opinion of Powell, J.); Danforth, 428 U. S., at 75. As Justice Stewart, joined by Justice Powell, pointed out in his concurrence in Danforth: “There can be little doubt that the State furthers a constitutionally permissible" }, { "docid": "22561264", "title": "", "text": "freedoms may be chilled by broad regulation, we permit facial overbreadth challenges without a showing that the moving party’s conduct falls within the protected core. Gooding v. Wilson, 405 U. S. 518 (1972); Coates v. Cincinnati, 402 U. S. 611 (1971); United States v. Robel, 389 U. S. 258 (1967); Shuttlesworth v. City of Birmingham, 394 U. S. 147 (1969); Cox v. Louisiana, 379 U. S. 536 (1965); Aptheker v. Secretary of State, 378 U. S. 500 (1964); Kunz v. New York, 340 U. S. 290 (1951). See also United States v. Reese, 92 U. S. 214 (1876) (facial challenge under Fifteenth Amendment). See n. 1, swpra. The Court does not question that exceptions from a parental notice requirement are necessary for minors emancipated from the custody or control of their parents, see n. 48, infra, and for minors able to demonstrate their maturity for the purpose of choosing to have an abortion, ante, at 406-407. See also Bellotti II, 443 U. S., at 651 (Powell, J.); id., at 653 (Stevens, J.). Nor does the Court depart from the view, made explicit in Justice Powell’s opinion in Bellotti II, supra, at 651, that a State cannot require parental notice when it would not be in the minor’s best interests to do so. This position is articulated anew today by Justice Powell, ante, at 420, and bolstered by the majority, which acknowledges the need for exception where parental notification interferes with emergency medical treatment, ante, at 407, n. 14, and which leaves open the possibility of relief where the minor makes a “claim or showing as to . . . her relations with her parents,” ante, at 407, or demonstrates a “hostile home situatio[n],” ante, at 407, n. 14. See also L. R. v. Hansen, Civil No. C-80-0078J (Utah, Feb. 8, 1980, and Oct. 24, 1980). It is especially noteworthy that we have not refrained from according to physicians, threatened with the personal risk of prosecution, standing to challenge abortion restrictions by asserting the rights of any of their patients. E. g., Planned Parenthood of Central Mo. v. Danforth, supra, at" }, { "docid": "22539069", "title": "", "text": "the Court has altered its traditional rules of standing to permit — in the First Amendment area — “attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with the requisite narrow specificity.” Dombrowski v. Pfister, 380 U. S., at 486. Litigants, therefore, 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. Such claims of facial overbreadth have been entertained in cases involving statutes which, by their terms, seek to regulate “only spoken words.” Gooding v. Wilson, 405 U. S. 518, 520 (1972). See Cohen v. California, 403 U. S. 15 (1971); Street v. New York, 394 U. S. 576 (1969); Brandenburg v. Ohio, 395 U. S. 444 (1969); Chaplinsky v. New Hampshire, 315 U. S. 568 (1942). In such cases, it has been the judgment of this Court that the possible harm to society in permitting some unprotected speech to go unpunished is outweighed by the possibility that protected speech of others may be muted and perceived grievances left to fester because of the possible inhibitory effects of overly broad statutes. Overbreadth attacks have also been allowed where the Court thought rights of association were ensnared in statutes which, by their broad sweep, might result in burdening innocent associations. See Keyishian v. Board of Regents, 385 U. S. 589 (1967); United States v. Robel, 389 U. S. 258 (1967); Aptheker v. Secretary of State, 378 U. S. 500 (1964); Shelton v. Tucker, supra. Facial overbreadth claims have also been entertained where statutes, by their terms, purport to regulate the time, place, and manner of expressive or communicative conduct, see Grayned v. City of Rockford, supra, at 114-121; Cameron v. Johnson, 390 U. S., at 617-619; Zwickler v. Koota, 389 U. S. 241, 249-250 (1967); Thornhill v. Alabama, 310 U. S. 88 (1940), and where such conduct has" }, { "docid": "22561262", "title": "", "text": "Court concludes that because appellant neglected to make specific allegations about herself and her situation, she “lacks 'the personal stake in the controversy needed to confer standing’ to advance the overbreadth argument,” ante, at 406 (quoting Harris v. McRae, 448 U. S. 297, 320 (1980)). The majority thus assumes that a plaintiff raising an overbreadth challenge to an abortion statute must allege that she herself falls within the statute’s overbroad reach. The quotation from Harris actually refers to an entirely different kind of standing issue: there the plaintiffs lacked standing because they failed to allege that they were in a position either to seek abortions or to receive Medicaid, and thus they lacked the concrete adverseness necessary to advance their challenge to the Medicaid limit on abortion funding. None of the cases cited for this point in Harris apply to the instant appeal. See O’Shea v. Littleton, 414 U. S. 488 (1974) (plaintiffs lack standing because of failure to allege specific injury); Bailey v. Patterson, 369 U. S. 31, 32 (1962) (petitioners “lack standing to enjoin criminal prosecutions under Mississippi’s breach-of-peace statutes, since they do not allege that they have been prosecuted or threatened with prosecution under them”). A standing limitation on overbreadth challenges to an abortion statute has roots in a context hardly analogous to the instant case. For while we have frequently ruled that criminal defendants lack standing to challenge a statute’s overbreadth when their conduct indisputedly falls within the statute’s legitimate core, e. g., United States v. National Dairy Products Corp., 372 U. S. 29 (1963); United States v. Harriss, 347 U. S. 612 (1954); Williams v. United States, 341 U. S. 97 (1951), these rulings bear little relationship to appellant’s challenge to a State’s restriction of her exercise of a fundamental right. See Planned Parenthood of Central Mo. v. Danforth, 428 U. S. 52 (1976); Doe v. Bolton, 410 U. S. 179 (1973). More relevant, I believe, is our analysis of standing to claim that a statute’s overbreadth affects fundamental liberties, primarily those guaranteed by the First Amendment. Because of the risk that exercise of personal" }, { "docid": "22561242", "title": "", "text": "privacy protects both the woman’s “interest in independence in making certain kinds of important decisions” and her “individual interest in avoiding disclosure of personal matters.” Whalen v. Roe, 429 U. S. 589, 599-600 (1977). In the abortion context, we have held that the right to privacy shields the woman from undue state intrusion in, and external scrutiny of, her very personal choice. Thus, in Roe v. Wade, supra, at 164, we held that during the first trimester of the pregnancy, the State’s interest in protecting maternal health or the potential life of the fetus could not override the right of the pregnant woman and the attending physician to make the abortion decision through private, unfettered consultation. We further emphasized the restricted scope of permissible state action in this area when, in Doe v. Bolton, supra, at 198-200, we struck down state-imposed procedural requirements that subjected the woman’s private decision with her physician to review by other physicians and a hospital committee. It is also settled that the right to privacy, like many constitutional rights extends to minors. Planned Parenthood of Central Mo. v. Danforth, 428 U. S. 52 (1976); Bellotti v. Baird, 443 U. S. 622, 639 (1979) (Bellotti II) (Powell, J.); id., at 653 (Stevens, J.); T. H. v. Jones, 425 F. Supp. 873, 881 (Utah 1975), summarily aff’d on other grounds, 425 U. S. 986 (1976). Indeed, because an unwanted pregnancy is probably more of a crisis for a minor than for an adult, as the abortion decision cannot be postponed until her majority, “there are few situations in which denying a minor the right to make an important decision will have consequences so grave and indelible.” Bellotti II, supra, at 646 (Powell, J.). Thus, for both the adult and the minor woman, state-imposed burdens on the abortion decision can be justified only upon a showing that the restrictions advance “important state interests.” Roe v. Wade, 410 U. S., at 154; accord, Planned Parenthood of Central Mo. v. Danforth, supra, at 61. Before examining the state interests asserted here, it is necessary first to consider Utah’s claim that" }, { "docid": "22539070", "title": "", "text": "been the judgment of this Court that the possible harm to society in permitting some unprotected speech to go unpunished is outweighed by the possibility that protected speech of others may be muted and perceived grievances left to fester because of the possible inhibitory effects of overly broad statutes. Overbreadth attacks have also been allowed where the Court thought rights of association were ensnared in statutes which, by their broad sweep, might result in burdening innocent associations. See Keyishian v. Board of Regents, 385 U. S. 589 (1967); United States v. Robel, 389 U. S. 258 (1967); Aptheker v. Secretary of State, 378 U. S. 500 (1964); Shelton v. Tucker, supra. Facial overbreadth claims have also been entertained where statutes, by their terms, purport to regulate the time, place, and manner of expressive or communicative conduct, see Grayned v. City of Rockford, supra, at 114-121; Cameron v. Johnson, 390 U. S., at 617-619; Zwickler v. Koota, 389 U. S. 241, 249-250 (1967); Thornhill v. Alabama, 310 U. S. 88 (1940), and where such conduct has required official approval under laws that delegated stand-ardless discretionary power to local functionaries, resulting in virtually unreviewable prior restraints on First Amendment rights. See Shuttlesworth v. Birmingham, 394 U. S. 147 (1969); Cox v. Louisiana, 379 U. S. 536, 553-558 (1965); Kunz v. New York, 340 U. S. 290 (1951); Lovell v. Griffin, 303 U. S. 444 (1938). The consequence of our departure from traditional rules of standing in the First Amendment area is that any enforcement of a statute thus placed at issue is totally forbidden until and unless a limiting construction or partial invalidation so narrows it as to remove the seeming threat or deterrence to constitutionally protected expression. Application of the overbreadth doctrine in this manner is, manifestly, strong medicine. It has been employed by the Court sparingly and only as a last resort. Facial overbreadth has not been invoked when a limiting construction has been or could be placed on the challenged statute. See Dombrowski v. Pfister, 380 U. S., at 491; Cox v. New Hampshire, 312 U. S. 569 (1941);" }, { "docid": "22124009", "title": "", "text": "States). In addition, the Court repeatedly has recognized that, in view of the unique status of children under the law, the States have a “significant” in terest in certain abortion regulations aimed at protecting children “that is not present in the case of an adult.” Planned Parenthood of Central Missouri v. Danforth, 428 U. S., at 75. See Carey v. Population Services International, 431 U. S. 678, 693, n. 15 (1977) (plurality opinion). The right of privacy includes “independence in making certain kinds of important decisions,” Whalen v. Roe, 429 U. S. 589, 599-600 (1977), but this Court has recognized that many minors are less capable than adults of making such important decisions. See Bellotti v. Baird, 443 U. S., at 633-635 (Bellotti II) (plurality opinion); Danforth, supra, at 102 (Stevens, J., concurring in part and dissenting in part). Accordingly, we have held that the States have a legitimate interest in encouraging parental involvement in their minor children’s decision to have an abortion. See H. L. v. Matheson, 450 U. S. 398 (1981) (parental notice); Bellotti II, supra, at 639, 648 (plurality opinion) (parental consent). A majority of the Court, however, has indicated that these state and parental interests must give way to the constitutional right of a mature minor or of an immature minor whose best interests are contrary to parental involvement. See, e. g., Matheson, 450 U. S., at 420 (Powell, J., concurring); id., at 450-451 (Marshall, J., dissenting). The plurality in Bellotti II concluded that a State choosing to encourage parental involvement must provide an alternative procedure through which a minor may demonstrate that she is mature enough to make her own decision or that the abortion is in her best interest. See Bellotti II, supra, at 643-644. Roe identified the end of the first trimester as the compelling point because until that time — according to the medical literature available in 1973 — “mortality in abortion may be less than mortality in normal childbirth.” 410 U. S., at 163. There is substantial evidence that developments in the past decade, particularly the development of a much safer" }, { "docid": "22331056", "title": "", "text": "that is apparently intended to convey a message. By its terms, the ordinance is inapplicable to assemblies that are designed to demonstrate a group’s support of, or opposition to, a particular point of view. Cf. Clark v. Community for Creative Non-Violence, 468 U. S. 288 (1984); Gregory v. Chicago, 394 U. S. 111 (1969). Its impact on the social contact between gang members and others does not impair the First Amendment “right of association” that our cases have recognized. See Dallas v. Stanglin, 490 U. S. 19, 23-25 (1989). On the other hand, as the United States recognizes, the freedom to loiter for innocent purposes is part of the “liberty” protected by the Due Process Clause of the Fourteenth Amendment. We have expressly identified this “right to remove from one place to another according to inclination” as “an attribute of personal liberty” protected by the Constitution. Williams v. Fears, 179 U. S. 270, 274 (1900); see also Papachristou v. Jacksonville, 405 U. S. 156, 164 (1972). Indeed, it is apparent that an individual’s decision to remain in a public place of his choice is as much a part of his liberty as the freedom of movement inside frontiers that is “a part of our heritage” Kent v. Dulles, 357 U. S. 116, 126 (1958), or the right to move “to whatsoever place one’s own inclination may direct” identified in Blaekstone’s Commentaries. 1 W. Blackstone, Commentaries on the Laws of England 130 (1765). There is no need, however, to decide whether the impact of the Chicago ordinance on constitutionally protected liberty alone would suffice to support a facial challenge under the overbreadth doctrine. Cf. Aptheker v. Secretary of State, 378 U. S. 500, 515-517 (1964) (right to travel); Planned Parenthood of Central Mo. v. Danforth, 428 U. S. 52, 82-83 (1976) (abortion); Kolender v. Lawson, 461 U. S., at 355, n. 3, 358-360, and n. 9. For it is clear that the vagueness of this enactment makes a facial challenge appropriate. This is not an ordinance that “simply regulates business behavior and contains a scienter requirement.” See Hoffman Estates v. Flipside," }, { "docid": "23346796", "title": "", "text": "concurring in the judgment in part. I I join all but Parts III and VIII of Justice Stevens’ opinion. While I agree with some of the central points made in Part III, I cannot join the broader discussion. I agree that the Court has characterized “[a] woman’s decision to conceive or to bear a child [as] a component of her liberty that is protected by the Due Process Clause of the Fourteenth Amendment to the Constitution.” Ante, at 434. See, e. g., Carey v. Population Services International, 431 U. S. 678, 685, 687 (1977); Griswold v. Connecticut, 381 U. S. 479, 502-503 (1965) (White, J., concurring in judgment). This Court extended that liberty interest to minors in Bellotti v. Baird, 443 U. S. 622, 642 (1979) (Bellotti II), and Planned Parenthood of Central Mo. v. Danforth, 428 U. S. 52, 74 (1976), albeit with some important limitations: “[P]arental notice and consent are qualifications that typically may be imposed by the State on a minor’s right to make important decisions. As immature minors often lack the ability to make fully informed choices that take account of both immediate and long-range consequences, a State reasonably may determine that parental consultation often is desirable and in the best interest of the minor.” Bellotti II, supra, at 640-641 (opinion of Powell, J.); see also H. L. v. Matheson, 450 U. S. 398, 423 (1981) (Stevens, J., concurring in judgment); cf. Thompson v. Oklahoma, 487 U. S. 815, 835 (1988) (“Inexperience, less education, and less intelligence make the teenager less able to evaluate the consequences of his or her conduct while at the same time he or she is much more apt to be motivated by mere emotion or peer pressure than is an adult”); Stanford v. Kentucky, 492 U. S. 361, 395 (1989) (Brennan, J., dissenting) (“[Mjinors are treated differently from adults in our laws, which reflects the simple truth derived from communal experience, that juveniles as a class have not the level of maturation and responsibility that we presume in adults and consider desirable for full participation in the rights and duties of" }, { "docid": "22561243", "title": "", "text": "to minors. Planned Parenthood of Central Mo. v. Danforth, 428 U. S. 52 (1976); Bellotti v. Baird, 443 U. S. 622, 639 (1979) (Bellotti II) (Powell, J.); id., at 653 (Stevens, J.); T. H. v. Jones, 425 F. Supp. 873, 881 (Utah 1975), summarily aff’d on other grounds, 425 U. S. 986 (1976). Indeed, because an unwanted pregnancy is probably more of a crisis for a minor than for an adult, as the abortion decision cannot be postponed until her majority, “there are few situations in which denying a minor the right to make an important decision will have consequences so grave and indelible.” Bellotti II, supra, at 646 (Powell, J.). Thus, for both the adult and the minor woman, state-imposed burdens on the abortion decision can be justified only upon a showing that the restrictions advance “important state interests.” Roe v. Wade, 410 U. S., at 154; accord, Planned Parenthood of Central Mo. v. Danforth, supra, at 61. Before examining the state interests asserted here, it is necessary first to consider Utah’s claim that its statute does not “imping[e] on a woman’s decision to have an abortion” or “plac[e] obstacles in the path of effectuating such a decision.” Brief for Appellees 9. This requires an examination of whether the parental notice requirement of the Utah statute imposes any burden on the abortion decision. The ideal of a supportive family so pervades our culture that it may seem incongruous to examine “burdens” imposed by a statute requiring parental notice of a minor daughter’s decision to terminate her pregnancy. This Court has long deferred to the bonds which join family members for mutual sustenance. See Pierce v. Society of Sisters, 268 U. S. 510, 534-535 (1925); May v. Anderson, 345 U. S. 528, 533 (1953); Griswold v. Connecticut, 381 U. S., at 486; Stanley v. Illinois, 405 U. S. 645, 651 (1972); Moore v. East Cleveland, 431 U. S. 494, 504-505 (1977) (plurality opinion of Powell, J.). Especially in times of adversity, the relationships within a family can offer the security of constant caring and aid. See id., at 505. Ideally," } ]

[ { "docid": "654403", "title": "", "text": "accounts and transferred the funds to the Swiss American banks from other foreign locations. On these facts, the government’s plea reduces to an assertion that the defendants derived substantial revenue from within the commonwealth because the deposits originated with a Massachusetts resident. The statute specifies that substantial revenue must be derived from services which are “rendered ... in” Massachusetts, Mass. Gen. Laws ch. 223A, § 3(d), and the residency connection, standing alone, is simply too attenuated to satisfy this benchmark. For aught that appears, any services rendered by the defendants in the instant case were rendered in Antigua. Inasmuch as the government has not met either of the dispositive criteria for authorization of personal jurisdiction under section 3(d), we uphold the district court’s ruling that personal jurisdiction cannot be premised on the Massachusetts long-arm statute. See Swiss American, 23 F.Supp.2d at 134. C. Jurisdiction Under Rule 4(h)(2). The government claims, in the alternative, that the district court possessed in personam jurisdiction under Rule 4(k)(2). The rule, first enacted in December 1993, provides: If the exercise of jurisdiction is consistent with the Constitution and laws of the United States, serving a summons or filing a waiver of service is also effective, with respect to claims arising under federal law, to establish personal jurisdiction over the person of any defendant who is not subject to the jurisdiction of the courts of general jurisdiction of any state. Fed.R.Civ.P. 4(k)(2). The rule’s fabric contains three strands: (1) the plaintiffs claim must be one arising under federal law; (2) the putative defendant must be beyond the jurisdictional reach of any state court of general jurisdiction; and (3) the federal courts’ exercise of personal jurisdiction over the defendant must not offend the Constitution or other federal law. Despite a suggestion that the government had waived the right to rely on Rule 4(k)(2), the district court reached the merits of the government’s claim and found it wanting on the second of these grounds. See Swiss American, 23 F.Supp.2d at 136. Taking our cue from the district court, we begin with this element. 1. The Negation Requirement. By" } ]

[ { "docid": "15993530", "title": "", "text": "Jamahiriya, 294 F.3d 82 (D.C.Cir.2002), “foreign states are not ‘persons’ protected by the Fifth Amendment.” Id. at 96. Therefore, the courts addressing the AEDPA claims did not have to consider the individual interests and freedoms protected by the due process analysis for personal jurisdiction which are presented in this case. As our Court of Appeals explained in Price: [Ujnlike private entities, foreign nations are the juridical equals of the government that seeks to assert jurisdiction over them ... If they believe that they have suffered harm by virtue of being haled into court in the United States, foreign states have available to them a panoply of mechanisms in the international arena through which to seek vindication or redress. Id. at 98 (internal citations omitted). The individually named Defendants in this action do not have such mechanisms, and therefore this Court’s assertion of jurisdiction over them must comport with due process under the Constitution. For these reasons, the Court finds the analysis of the only two courts that have addressed the issue of personal jurisdiction over individual defendants sued under the ATA to be persuasive. See Biton, 310 F.Supp.2d 172; Ungar v. Palestinian Authority, 153 F.Supp.2d 76, 93-95 (D.R.I. 2001). Therefore, Plaintiffs must satisfy the Court that it has personal jurisdiction under Federal Rule of Civil Procedure 4(k)(2). Under that Rule, the Court can find personal jurisdiction if the following requirements are met: (1) the plaintiffs claim arises under federal law; (2) the putative defendant is beyond the jurisdictional reach of any state court of general jurisdiction; and (3) the federal courts’ exercise of personal jurisdiction over the defendant must not offend the Constitution or other federal law. United States v. Swiss Am. Bank, Ltd., 191 F.3d 30, 38 (1st Cir.1999); In re Vitamins Litigation, 94 F.Supp.2d 26, 34-35 (D.D.C.2000). With respect to the third requirement, a court must assure itself that “the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ ” Int’l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945) (quoting Milliken v. Meyer, 311 U.S." }, { "docid": "20002106", "title": "", "text": "that Plaintiff has not provided any support for the prop osition that it is not properly subject to the jurisdiction of any state so that Rule 4(k)(2) is satisfied. ConTeyor Multibag also contends that because Plaintiff is requesting that this case be transferred to Michigan, Plaintiff would appear to be arguing that Michigan has jurisdiction over conTeyor Multibag, in which case Rule 4(k)(2) would not apply. Finally, conTeyor Multibag argues that Plaintiff cannot use its motion to dismiss as an opportunity to move for a change of venue. Fed.R.Civ.P. 4(k)(2) provides: For a claim that arises under federal law, serving a summons or filing a waiver of service establishes personal jurisdiction over a defendant if: (A) the defendant is not subject to jurisdiction in any state’s courts of general jurisdiction; and (B) exercising jurisdiction is consistent with the United States Constitution and laws. Therefore, to establish personal jurisdiction under Rule 4(k)(2), there must be: (1) a claim arising under federal law; (2) the defendant must be beyond the jurisdictional reach of any state court of general jurisdiction; and (3) the defendant must have sufficient contacts with the United States so that the court’s exercise of personal jurisdiction over the defendant comports with the due process requirements of the Constitution or other federal law. See U.S. v. Swiss American Bank, Ltd., 191 F.3d 30, 38 (1st Cir.1999); Saudi v. Acomarit Maritimes Services, S.A., 114 Fed. Appx. 449, 455 (3rd Cir.2004) (not reported in Fed. Reporter) (citing BP Chemicals Ltd. v. Formosa Chem. & Fibre Corp., 229 F.3d 254, 262 (3rd Cir.2000)). The third prong of the test under Rule 4(k)(2) is similar to the “continuous and systematic” contacts requirement for general jurisdiction under the test of personal jurisdiction for a particular state. Saudi, 114 Fed.Appx. at 455 (citing BP Chemicals, 229 F.3d at 262) (citing Helicopteros, 466 U.S. at 416, 104 S.Ct. 1868). Plaintiff has not shown that the exercise of jurisdiction under Rule 4(k)(2) is proper. Plaintiff has not alleged contacts by conTe-yor Multibag with the state of Michigan which, when considered together with conTeyor Multibag’s contacts with Ohio, demonstrate" }, { "docid": "8865322", "title": "", "text": "methods of discovery.” Thompson v. Chrysler Motors Corp., 755 F.2d 1162, 1165 (5th Cir.1985). QTI contends that it presented a prima facie case for specific jurisdiction under Federal Rule of Civil Procedure 4(k)(2). Rule 4(k)(2) states: If the exercise of jurisdiction is consistent with the Constitution and laws of the United States, serving a summons or filing a waiver of service is also effective, with respect to claims arising under federal law, to establish personal jurisdiction over the person of any defendant who is not subject to the jurisdiction of the courts of general jurisdiction of any state. “Rule 4(k)(2) thus sanctions personal jurisdiction over foreign defendants for claims arising under federal law when the defendant has sufficient contacts with the nation as a whole to justify the imposition of United States’ law but without sufficient contacts to satisfy the due process concerns of the long-arm statute of any particular state.” World Tanker Carriers Corp. v. M/V Ya Mawlaya, 99 F.3d 717 720 (5th Cir.1996) (emphasis omitted). “The due process required in federal cases governed by Rule 4(k)(2) is measured with reference to the Fifth Amendment, rather than the Fourteenth Amendment.” Submersible Sys., Inc. v. Perforadora Central, S.A., 249 F.3d 413, 420 (5th Cir.2001). Furthermore, “[sjpecific jurisdiction over a nonresident corporation is appropriate when the corporation has purposefully directed its activities at the forum state and the litigation results from alleged injuries that arise out of or relate to those activities.” Alpine View Co. v. Atlas Copco AB, 205 F.3d 208, 215 (5th Cir.2000) (internal quotations omitted). In this case, there is no dispute that QTI’s trademark infringement claims arise under federal law and neither side has claimed that Sage Group is subject to the jurisdiction of the courts of any state. Thus, the only issue is whether exercise of jurisdiction is “consistent with the Constitution and laws of the United States.” Fed. R. Civ. PRO. 4(k)(2). In order to determine whether the exercise of jurisdiction satisfies the Fifth Amendment, we must conduct the “now familiar minimum contacts analysis ... to determine whether the assertion of personal jurisdiction would offend" }, { "docid": "14842202", "title": "", "text": "(D.R.I.2001); see also Biton v. Palestinian Interim Self-Gov’t Auth., 310 F.Supp.2d 172, 179 (D.D.C.2004) (dismissing complaint pursuant to 18 U.S.C. § 2333 because individual defendants lacked contacts with the United States). “The relevant inquiry under such circumstances is whether the defendant has minimum contacts with the United States as a whole [to satisfy Fifth Amendment due process requirements], rather than ... with the particular state in which the federal court sits.” Ungar, 153 F.Supp.2d at 87. Many of the moving Defendants either dispute the manner in which they were served or were not served in the United States. Accordingly, the Court must consider an alternative basis for personal jurisdiction. If the New York long-arm statute or the ATA does not establish personal jurisdiction, the Court will engage in a Rule 4(k)(2) analysis. Rule 4(k)(2) states: If the exercise of jurisdiction is consistent with the Constitution and laws of the United States, serving a summons or filing a waiver of service is also effective, with respect to claims arising under federal law, to establish personal jurisdiction over the person of any defendant who is not subject to the jurisdiction of the courts of general jurisdiction of any state. Fed.R.Civ.P. 400(2). Rule 4(k)(2) “fill[s] a gap in the enforcement of federal law” for courts to exercise personal jurisdiction over defendants with sufficient contacts with the United States generally, but insufficient contacts with any one state in particular. Fed.R.Civ.P. 4(k)(2) advisory committee’s note; United States v. Int’l Bhd. of Teamsters, 945 F.Supp. 609, 616-17 (S.D.N.Y.1996). For jurisdiction under Rule 4(k)(2), there must be a federal claim, personal jurisdiction must not exist over the defendant in New York or any other state, and the defendant must have sufficient contacts with the United States as a whole such that the exercise of jurisdiction does not violate Fifth Amendment due process. Int’l Bhd. of Teamsters, 945 F.Supp. at 617. a. Purposefully Directed Activities Theory Personal jurisdiction based on Rule 4(k) requires minimum contacts with the United States to satisfy Fifth Amendment due process requirements. Plaintiffs claim these requirements are met because Defendants purposefully directed their activities" }, { "docid": "3407863", "title": "", "text": "PA and defendant PLO pursuant to the nationwide service of process provision of 18 U.S.C. § 2334(a) and Rule 4(k)(l)(D). Defendant PA and defendant PLO have minimum contacts with the United States as a whole, and each defendant was served through the delivery of a copy of the summons and complaint to a managing or general agent of each defendant. Therefore, this Court may exercise personal jurisdiction over defendant PA and defendant PLO consistent with the Due Process Clause of the Fifth Amendment. Individual PA Defendants This Court must now determine whether it has personal jurisdiction over the individual PA defendants. Plaintiffs argue that personal jurisdiction has been established pursuant to Federal Rule of Civil Procedure 4(k)(2). Rule 4(k)(2) states: If the exercise of jurisdiction is consistent with the Constitution and laws of the United States, serving a summons or filing a waiver of service is also effective, with respect to claims arising under federal law, to establish personal jurisdiction over the person of any defendant who is not subject to the jurisdiction of the courts of general jurisdiction of any state. Fed.R.Civ.P. 4(k)(2). The PA defendants strenuously argue that plaintiffs cannot establish personal jurisdiction pursuant to Rule 4(k)(2) because plaintiffs cannot show that this Court’s exercise of personal jurisdiction over the individual PA defendants would be consistent with the United States Constitution. The PA defendants’ argument is based in large part on United States v. Swiss Am. Bank, Ltd., 191 F.3d 30 (1st Cir.1999), wherein the First Circuit delineated the circumstances under which a plaintiff may utilize Rule 4(k)(2) to establish personal jurisdiction over a defendant. By its terms, Rule 4(k)(2) requires that the following factors be present: (1) the plaintiffs claim must arise under federal law, (2) no state court of general jurisdiction can have personal jurisdiction over the putative defendant, and (3) the federal court’s exercise of personal jurisdiction over the defendant must be consistent with the Constitution or other federal law. Id. at 38; Fed.R.Civ.P. 4(k)(2). However, the First Circuit recognized that requiring a plaintiff to prove the so-called “negation prong” (that the defendant is beyond" }, { "docid": "14407065", "title": "", "text": "the plaintiffs’ claims: (1) the lack of personal jurisdiction over it; (2) the claims are “non justiciable, under the political question doctrine[;]” (3) the plaintiffs’ claims are time barred; and (4) venue in this District is improper “under the doctrine of forum, non conveniens.” See Def. RCH’s Mem. at 1-2. The Court agrees, for the reasons discussed below, that the plaintiffs have not established sufficient minimum contacts of Defendant RCH with the United States to support the exercise of personal jurisdiction over it. This conclusion obviates the need to address Defendant RCH’s alternative arguments for dismissal of the claims against it. The plaintiffs contend that Defendant RCH may be haled into court in the United States based upon Federal Rule of Civil Procedure 4(k)(2). This rule provides that “[fjor a claim that arises under federal law, serving a summons ... establishes personal jurisdiction over a defendant if: (A) the defendant is not subject to jurisdiction in any state’s courts of general jurisdiction; and (B) exercising jurisdiction is consistent with the United States Constitution and laws.” Fed. R. Civ. P. 4(k)(2); see FAC ¶ 86 (“While [Defendant RCH] is not subject to jurisdiction in any state’s courts of general jurisdiction, the exercise of federal jurisdiction is consistent with the United States [Constitution and laws in that the claim arises under federal law, and [Defendant RCH] has substantial contacts with the United States as a whole.”). In essence, Rule 4(k)(2) operates as a federal long-arm statute, requiring the plaintiffs to meet a four-pronged test: (1) the claim against the defendant arises under federal law; (2) “a summons has been served;” (3) the defendant is not subject to personal jurisdiction in any state court of general jurisdiction; and (4) the exercise of personal jurisdiction by this federal court comports with due process. Mwani, 417 F.3d at 10. The parties do not dispute that the first three prongs of this test are met but contest whether Defendant RCH has the requisite contacts with the United States to allow the exercise of jurisdiction “consistent with the United States Constitution and laws.” See Fed. R. Crv." }, { "docid": "23637797", "title": "", "text": "we turn first to the district court’s dismissal of ATEC, the British company, for lack of personal jurisdiction. According to Plaintiffs, ATEC is subject to personal jurisdiction in California pursuant to Federal Rule of Civil Procedure 4(k)(2). This Rule, which is commonly known as the federal long-arm statute, permits federal courts to exercise personal jurisdiction over a defendant that lacks contacts with any single state if the complaint alleges federal claims and the defendant maintains sufficient contacts with the United States as a whole. Rule 4(k)(2), titled “Federal Claim Outside State-Court Jurisdiction,” provides: For a claim that arises under federal law, serving a summons or filing a waiver of service establishes personal jurisdiction over a defendant if: (A) the defendant is not subject to jurisdiction in any state’s courts of general jurisdiction; and (B) exercising jurisdiction is consistent with the United States Constitution and laws. The only question presented here is whether Plaintiffs satisfy the first part of Rule 4(k)(2). That is, do any of their claims against ATEC — pure state-law claims for product liability, negligence, wrongful death, and loss of consortium— arise under federal law? Until now, we have not examined the precise parameters of the arising-under-federal-law element of Rule 4(k)(2). We need not, however, navigate through uncharted terrain without a compass. Here, the commentary to the Rule and the well-reasoned decisions of our sister circuits agree that Rule 4(k)(2)’s reach is limited to substantive federal claims. First, the commentary explains that Rule 4(k)(2) was enacted to “correct[] a gap in the enforcement of federal law.” Fed.R.Civ.P. 4(k)(2), Advisory Committee Note. Under the former rules for service of process, federal courts looked to state law, even in federal question cases, whenever a federal statute was silent about the proper mechanism for service. Id.; see also Omni Capital Int'l v. Rudolf Wolff & Co., 484 U.S. 97, 111, 108 S.Ct. 404, 98 L.Ed.2d 415 (1987) (recognizing the predecessor rule’s limitations). As a result, foreign defendants having sufficient contacts with the United States as a whole, but not satisfying the applicable state long-arm statute, would be “shielded from the enforcement" }, { "docid": "15993527", "title": "", "text": "181-83. Accordingly, Defendants’ Motion to Dismiss based on failure to state a claim must be denied. D. The Court Lacks Personal Jurisdiction over the Individual Defendants Finally, Defendants claim that none of the named individual Defendants have any connection to the United States, and therefore the Court may not exercise personal jurisdiction over them. Plaintiffs argue that the Court has personal jurisdiction over the individual Defendants pursuant to Federal Rule of Civil Procedure 4(k)(2), which provides: If the exercise of jurisdiction is consistent with the Constitution and laws of the United States, serving a summons or filing a waiver of service is also effective, with respect to claims arising under federal law, to establish personal jurisdiction over the person of any defendant who is not subject to the jurisdiction of the courts of general jurisdiction of any state. Plaintiffs contend that, “the exercise of jurisdiction is consistent with the Constitution and laws of the United States,” under a specific personal jurisdiction analysis outlined in a line of cases arising under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), an amendment to the Foreign Sovereign Immunities Act, which provides an exception to a foreign state’s sovereign immunity in certain limited circumstances. See, e.g., Eisenfeld v. Islamic Republic of Iran, 172 F.Supp.2d 1 (D.D.C.2000); Daliberti v. Republic of Iraq, 97 F.Supp.2d 38 (D.D.C.2000); Fla-tow v. Islamic Republic of Iran, 999 F.Supp. 1 (D.D.C.1998); Rein v. Socialist People’s Libyan Arab Jamahiriya, 995 F.Supp. 325 (E.D.N.Y.1998), aff'd Rein v. Socialist People’s Libyan Arab Jamahiriya, 162 F.3d 748 (2d Cir.1998). In those cases, the courts held that the act of committing a terrorist act against a United States national abroad, even if the defendant did not have actual contacts with the United States, constituted sufficient minimum contacts to satisfy due process for personal jurisdiction purposes. In Eisenfeld, for example, the court held that “a foreign state that causes the death of a United States national through an act of state-sponsored terrorism has the requisite ‘minimum contacts’ with the United States so as not to offend ‘traditional notions of fair play and substantial justice.’" }, { "docid": "16200231", "title": "", "text": "The district court’s denial of Captain Saudi’s motion to transfer venue is reviewed for abuse of discretion. See Nichols v. G.D. Searle & Co., 991 F.2d 1195, 1200 (4th Cir.1993); Coté v. Wadel, 796 F.2d 981, 985 (7th Cir.1986). A. Captain Saudi contends that the district court erred in concluding that it lacked personal jurisdiction over Keppel. Saudi’s only asserted basis for jurisdiction is Federal Rule of Civil Procedure 4(k)(2). Rule 4(k)(2) is in essence a federal long-arm statute. United States v. Swiss Am. Bank, Ltd., 191 F.3d 30, 40 (1st Cir.1999). It provides: If the exercise of jurisdiction is consistent with the Constitution and laws of the United States, serving a summons or filing a waiver of service is also effective, with respect to claims arising under federal law, to establish personal jurisdiction over the person of any defendant who is not subject to the jurisdiction of the courts of general jurisdiction of any state. In order to obtain jurisdiction under Rule 4(k)(2), therefore, three requirements must be met. Base Metal Trading, Ltd. v. OJSC “Novokuznetsky Aluminum Factory”, 283 F.3d 208, 215 (4th Cir.2002). First, the suit must arise under federal law. Fed.R.Civ.P. 4(k)(2). Second, the defendant must not be subject to personal jurisdiction in any state. Id.; Base Metal Trading, 283 F.3d at 215. Third, the defendant must have contacts with the United States “consistent with the Constitution and laws of the United States.” Fed. R.Civ.P. 4(k)(2). We conclude that Keppel is not subject to jurisdiction under Rule 4(k)(2) because Captain Saudi has clearly not satisfied the third part of this test. New Wellington Fin. Corp., 416 F.3d at 294 (plaintiff bears the burden of proving personal jurisdiction by a preponderance of the evidence). In the context of 4(k)(2), the requirement that Keppel’s contacts be “consistent with the Constitution and laws of the United States” is founded upon the Due Process Clause of the Fifth Amendment. See Mwani v. bin Laden, 417 F.3d 1, 11 (D.C.Cir.2005). This Clause ensures that a defendant has fair warning before it is subjected to the coercive power of a court. See Burger" }, { "docid": "3407862", "title": "", "text": "this claim, but merely reiterate the same arguments made in Klinghoffer. Therefore, the argument must fail here as well. This Court also rejects the PA defendants’ claim that the FMA confers immunity from service of process on Rah-man. As noted by plaintiffs, the PA defendants have not cited any specific provision or interpretation of the FMA to support this position. The sole provision in the Act related to immunities is 22 U.S.C. § 4310, which provides in pertinent part that “[n]o act or omission by any foreign mission ... in compliance with this chapter shall be deemed to be an implied waiver of any immunity otherwise provided for by law.” 22 U.S.C. § 4310 (1994). This provision does not render representatives of foreign missions immune from service; it simply preserves immunities that may be provided for by law. The PA defendants have not identified any such immunity. Therefore, the FMA does not render Mr. Rah-man immune from service of process. Accordingly, it is the determination of this Court that it has personal jurisdiction over defendant PA and defendant PLO pursuant to the nationwide service of process provision of 18 U.S.C. § 2334(a) and Rule 4(k)(l)(D). Defendant PA and defendant PLO have minimum contacts with the United States as a whole, and each defendant was served through the delivery of a copy of the summons and complaint to a managing or general agent of each defendant. Therefore, this Court may exercise personal jurisdiction over defendant PA and defendant PLO consistent with the Due Process Clause of the Fifth Amendment. Individual PA Defendants This Court must now determine whether it has personal jurisdiction over the individual PA defendants. Plaintiffs argue that personal jurisdiction has been established pursuant to Federal Rule of Civil Procedure 4(k)(2). Rule 4(k)(2) states: If the exercise of jurisdiction is consistent with the Constitution and laws of the United States, serving a summons or filing a waiver of service is also effective, with respect to claims arising under federal law, to establish personal jurisdiction over the person of any defendant who is not subject to the jurisdiction of the" }, { "docid": "7782022", "title": "", "text": "the High Seas Act, 46 U.S.C. app. §§ 761-768 (1994), and general federal maritime law. When a complaint asserts federal jurisdiction, Rule 4 of the Federal Rules of Civil Procedure now “extends the reach of federal courts to impose jurisdiction over the person of all defendants against whom federal law claims are made and who can be constitutionally subjected to the jurisdiction of the courts of the United States.” Purposes of Revision, Advisory Committee Notes, 1993 Amendments. Rule 4(k) provides, in relevant part: (1) Service of a summons or filing a waiver of. service is effective to establish jurisdiction over the person of a defendant (A) who could be subjected to the jurisdiction of a court of general jurisdiction in the state in which the district court is located, or (2) If the exercise of jurisdiction is consistent with the Constitution and laws of the United States, serving a summons or filing a waiver of service is also effective, with respect to claims arising under federal law, to establish personal jurisdiction over the person of any defendant who is not subject to the jurisdiction of the courts of general jurisdiction of any state. Fed.R.Civ.P. 4(k). As noted above, the record does not indicate how Dietrich was served with process. Since he abandoned any claim of improper service in the District Court, we must proceed on the basis that he was properly served. Consequently, the only question that remains is whether his contacts with either Rhode Island or the United States are sufficient to support the exercise of personal jurisdiction. Even if we were to assume in this case that the District Court was correct in holding that Rhode Island would not exercise personal jurisdiction over Dietrich, there still is jurisdiction over him pursuant to Rule 4(k), provided that such exercise of jurisdiction satisfies the Fifth Amendment due process standard. The principles to be applied in determining the due process limits on personal jurisdiction were set forth in a recent decision of this Court: The due process clause of the Fourteenth Amendment permits a state to exercise personal jurisdiction over a" }, { "docid": "10656050", "title": "", "text": "and amending the articles of incorporation of, its many subsidiaries. Id. at 55. The court does not find that Syngenta AG and Participations have availed themselves of the general jurisdiction of Delaware. C. Fed.R.Civ.P. 4(K)(2) When a foreign defendant does not have sufficient minimum contacts with any single forum to comport with due process, Rule 4(k)(2) allows an alternate jurisdictional basis to pursue a claim arising under federal law, where defendant has sufficient nationwide contacts. If the exercise of jurisdiction is consistent with the Constitution and laws of the United States, serving a summons or filing a waiver of service of process is also effective, with respect to claims arising under federal law, to establish personal jurisdiction over the person of any defendant who is not subject to the jurisdiction of the courts of general jurisdiction of any state. Fed.R.Civ.P. (4)(k)(2). The court must first determine that: (1) The case arises under federal law, and is not pending before the court pursuant to the court’s diversity jurisdiction; and (2) The foreign defendant lacks sufficient contacts with any single state to subject it to personal jurisdiction there. United States v. Int’l Brotherhood of Teamsters, 945 F.Supp. 609, 617 (D.Del.1996). The court can then ascertain whether plaintiff has demonstrated that defendant has sufficient aggregate contacts with the United States to comport with constitutional notions of due process. Id. The court’s analysis stops at the first step. The court finds that Monsanto has not satisfied its burden of proving the lack of state-specific contacts. See CFMT, Inc. v. Steag Microtech, Inc., 1997 WL 313161 (D.Del.1997). Rule 4(k)(2) “provides a narrow exception which may subject an alien defendant to a federal court’s personal jurisdiction.” Id. at *7. “To satisfy this requirement, plaintiffs are required to make an affirmative representation that the defendant is not subject to the general jurisdiction of any state court.” Id.; Telcordia Techs. v. Alcatel S.A., 2005 WL 1268061, at *5 (D.Del. May 27, 2005) (“The court agrees with the Third Circuit district courts that have addressed the negation requirement and concludes that [the plaintiff] bears the burden of demonstrating that" }, { "docid": "23516796", "title": "", "text": "purposes of establishing personal jurisdiction, in conjunction with proper service of process, under Rule 4(k)(2) of the Federal Rules of Civil Procedure. Rule4(k)(2) states: If the exercise of jurisdiction is consistent with the Constitution and laws of the United States, serving a summons or filing a waiver of service is also effective, with respect to claims arising under federal law, to establish personal jurisdiction over the person of any defendant who is not subject to the jurisdiction of the courts of general jurisdiction of any state. Fed. R. Civ. P. 4(k)(2). The Rule therefore “allows a district court to acquire jurisdiction over a foreign defendant which has insufficient contacts with any single state but has ‘contacts with the United States as a whole ....’” In re Vitamins Antitrust Litig., 94 F.Supp.2d 26, 31 (D.D.C.2000) (citing Advisory Comm. Note to 1993 Amendment). In United States v. Swiss American Bank, Ltd., 191 F.3d 30 (1st Cir.1999), the First Circuit discussed the parameters of this procedural device. The rule’s fabric contains three strands: (1) the plaintiffs claim must be one arising under federal law; (2) the putative defendant must be beyond the jurisdictional reach of any state court of general jurisdiction; and (3) the federal courts’ exercise of personal jurisdiction over the defendant must not offend the Constitution or other federal law. Id. at 38. In applying this tripartite test here, the question is whether the named individual defendants have sufficient contacts with the United States to satisfy the Due Process Clause of the Fifth Amendment to the U.S. Constitution. The plaintiffs urge the Court to adopt “a due process analysis specifically fitted to the unique circumstances of civil actions against foreign terrorists and them sponsors” that has been applied by a fellow district judge of this Court, as well as a district judge on the United States District Court for the Eastern District of New York. Pl.’s Opp. to Mot. to Dismiss at 49. In a case involving the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 1605(a)(7) — which amended the Foreign Sovereign Immunities Act (“FSIA”), 28" }, { "docid": "23516797", "title": "", "text": "be one arising under federal law; (2) the putative defendant must be beyond the jurisdictional reach of any state court of general jurisdiction; and (3) the federal courts’ exercise of personal jurisdiction over the defendant must not offend the Constitution or other federal law. Id. at 38. In applying this tripartite test here, the question is whether the named individual defendants have sufficient contacts with the United States to satisfy the Due Process Clause of the Fifth Amendment to the U.S. Constitution. The plaintiffs urge the Court to adopt “a due process analysis specifically fitted to the unique circumstances of civil actions against foreign terrorists and them sponsors” that has been applied by a fellow district judge of this Court, as well as a district judge on the United States District Court for the Eastern District of New York. Pl.’s Opp. to Mot. to Dismiss at 49. In a case involving the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 1605(a)(7) — which amended the Foreign Sovereign Immunities Act (“FSIA”), 28 U.S.C. § 1602, to permit lawsuits against state sponsors of terrorism — Judge Royce C. Lamberth of this Court concluded that “a foreign state that causes the death of a United States national through an act of state-sponsored terrorism has the requisite ‘minimum contacts’ with the United States so as not to offend ‘traditional notions of fair play and substantial justice.’ ” Eisenfeld v. Islamic Republic of Iran, 172 F.Supp.2d 1, 7 (D.D.C.2000) (quoting International Shoe Co. v. Washington, 326 U.S. 310, 326, 66 S.Ct. 154, 90 L.Ed. 95 (1945)); see also Flatow v. Islamic Republic of Iran, 999 F.Supp. 1, 22 (D.D.C.1998) (same). Judge Thomas C. Platt made a similar ruling in Rein v. Socialist People’s Libyan Arab Jamahiriya, 995 F.Supp. 325 (E.D.N.Y.1998), aff'd in part and appeal dismissed in part, 162 F.3d 748 (2d Cir.1998), which also dealt with the 1996 amendment to the FSIA. Judge Platt stated that “the relevant inquiry with respect to the minimum contacts analysis is whether the effects of a foreign state’s actions upon the United States are" }, { "docid": "23237260", "title": "", "text": "the district court’s determination that its exercise of personal jurisdiction over a nonresident defendant is proper. Nuovo Pignone, SpA v. STORMAN ASIA M/V, 310 F.3d 374, 378 (5th Cir.2002). When, as in the instant case, “the district court decides the motion to dismiss without holding an evidentiary hearing, [the plaintiff] must make only a prima facie showing of the facts on which jurisdiction is predicated.” Id. In determining whether that prima facie case exists, we “must accept as true [the plaintiffs] ‘uncontroverted allegations and resolve in [his] favor all conflicts between the [jurisdictional] facts contained in the parties’ affidavits and other documentation.’ ” Id. (quoting Kelly v. Syria Shell Petroleum Dev. B.V., 213 F.3d 841, 854 (5th Cir.2000)); see also 5A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure, § 1351 (2d ed.1990). The district court found both specific and general personal jurisdiction in this ease. See Adams v. Unions Mediterranea Di Sicurta, 234 F.Supp.2d, 614, 621-25 (E.D.La.2002). The district court also suggested that jurisdiction might be available under Fed.R.Civ.P. 4(k)(2). Id. at 625-26. Rule 4(k)(2) provides for service of process and personal jurisdiction in any district court for cases arising under federal law where the defendant has contacts with the United States as a whole sufficient to satisfy due process concerns and the defendant is not subject to jurisdiction in any particular state: If the exercise of jurisdiction is consistent with the Constitution and laws of the United States, serving a summons or filing a waiver of service is also effective, with respect to claims arising under federal law, to establish personal jurisdiction over the person of any defendant who is not subject to the jurisdiction of the courts of general jurisdiction of any state. Fed.R.Civ.P. 4(k)(2). The Rule was enacted to fill an important gap in the jurisdiction of federal courts in cases arising under federal law: Thus, there was gap in the courts’ jurisdiction: while a defendant may have sufficient contacts with the United States as a whole to satisfy due process concerns, if she had insufficient contacts with any single state, she would" }, { "docid": "15993531", "title": "", "text": "individual defendants sued under the ATA to be persuasive. See Biton, 310 F.Supp.2d 172; Ungar v. Palestinian Authority, 153 F.Supp.2d 76, 93-95 (D.R.I. 2001). Therefore, Plaintiffs must satisfy the Court that it has personal jurisdiction under Federal Rule of Civil Procedure 4(k)(2). Under that Rule, the Court can find personal jurisdiction if the following requirements are met: (1) the plaintiffs claim arises under federal law; (2) the putative defendant is beyond the jurisdictional reach of any state court of general jurisdiction; and (3) the federal courts’ exercise of personal jurisdiction over the defendant must not offend the Constitution or other federal law. United States v. Swiss Am. Bank, Ltd., 191 F.3d 30, 38 (1st Cir.1999); In re Vitamins Litigation, 94 F.Supp.2d 26, 34-35 (D.D.C.2000). With respect to the third requirement, a court must assure itself that “the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ ” Int’l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 85 L.Ed. 278 (1940)). “While the courts and legislatures have developed numerous approaches to ascertaining whether a defendant meets the ‘minimum contacts’ test, the single most important consideration is whether a defendant’s ‘conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there.’ ” Pugh v. Socialist People’s Libyan Arab Jamahiriya, 290 F.Supp.2d 54, 59 (D.D.C.2003) (quoting World-Wide Volkswagen Corp. v. Wood-son, 444 U.S. 286, 297, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980)). While Plaintiffs can easily satisfy the first two prongs of the test for personal jurisdiction under Federal Rule of Civil Procedure 4(k)(2), see Pis.’ Opp’n at 38-39, they do not provide any evidence whatsoever to show that haling the individually named Defendants into this Court would “not offend the Constitution.” Plaintiffs do not even allege that the individual Defendants had any contact with the United States. Without such a proffer, the Court is not satisfied that the individually named Defendants’ “conduct and connection with the forum State are such" }, { "docid": "18148541", "title": "", "text": "has yet cited that revision, the Rules now contain their own long-arm provision which, in some circumstances, eliminates the need to employ the forum state’s long-arm statute. Rule 4(k)(2) now provides: If the exercise of jurisdiction is consistent with the Constitution and laws of the United States, serving a summons ... is also effective, with respect to claims arising under federal law, to establish personal jurisdiction over the person of any defendant who is not subject to the jurisdiction of the courts of general jurisdiction of any state. Fed. R. Crv. P. 4(k)(2). Rule 4(k)(2) thus permits a federal court to exercise personal jurisdiction over a defendant (1) for a claim arising under federal law, (2) where a summons has been served, (3) if the defendant is not subject to the jurisdiction of any single state court, (4) provided that the exercise of federal jurisdiction is consistent with the Constitution (and laws) of the United States. In the instant case, the claims arise under federal law (the ATOA), and the summons was served by publication pursuant to Rule 4(f). Whether the exercise of jurisdiction is consistent with the Constitution turns on whether a defendant has sufficient contacts with the nation as a whole to satisfy due process. See Fed. R. Civ. P. 4(k) advisory committee’s notes to 1993 amendments. We address that question in Part II.B.2. The remaining question here is whether bin Laden and al Qaeda are “subject to the jurisdiction of the courts of general jurisdiction of any state.” Fed. R. Civ. P. 4(k)(2). Determining whether a defendant is subject to the jurisdiction of a court “of any state” presents no small problem. One could, of course, ponderously “traipse through the 50 states, asking whether each could entertain the suit.” ISI Int’l, Inc. v. Borden Ladner Gervais LLP, 256 F.3d 548, 552 (7th Cir.2001). To avoid that daunting task, the Seventh Circuit has adopted the following burden-shifting framework: A defendant who wants to preclude use of Rule 4(k)(2) has only to name some other state in which the suit could proceed. Naming a more appropriate state would amount" }, { "docid": "23516795", "title": "", "text": "conclusions. Alexis v. District of Columbia, 44 F.Supp.2d 331, 336-37 (D.D.C.1999). “[An amended] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff[s] can prove no set of facts in support of [their] claim which would entitle [them] to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). III. ANALYSIS A. Personal Jurisdiction Over the Named Individual Defendants The defendants begin their motion to dismiss by arguing that the Court may not exercise personal jurisdiction over the five named individual defendants, President Arafat and Messrs. Dahlan, Abu Shabak, Jabali, and Issa. As far as the record reveals, these defendants have no personal connection with the United States. Indeed, the plaintiffs acknowledge that “none of the individual defendants is a resident of the United States or has any commercial or other activities within the United States.” Pis.’ Opp. to Mot. to Dismiss at 49. The plaintiffs nonetheless assert that the named individual defendants have sufficient contacts with the United States for purposes of establishing personal jurisdiction, in conjunction with proper service of process, under Rule 4(k)(2) of the Federal Rules of Civil Procedure. Rule4(k)(2) states: If the exercise of jurisdiction is consistent with the Constitution and laws of the United States, serving a summons or filing a waiver of service is also effective, with respect to claims arising under federal law, to establish personal jurisdiction over the person of any defendant who is not subject to the jurisdiction of the courts of general jurisdiction of any state. Fed. R. Civ. P. 4(k)(2). The Rule therefore “allows a district court to acquire jurisdiction over a foreign defendant which has insufficient contacts with any single state but has ‘contacts with the United States as a whole ....’” In re Vitamins Antitrust Litig., 94 F.Supp.2d 26, 31 (D.D.C.2000) (citing Advisory Comm. Note to 1993 Amendment). In United States v. Swiss American Bank, Ltd., 191 F.3d 30 (1st Cir.1999), the First Circuit discussed the parameters of this procedural device. The rule’s fabric contains three strands: (1) the plaintiffs claim must" }, { "docid": "14842201", "title": "", "text": "defendant was a member of the conspiracy). Accordingly, for Prince Sultan, Prince Turki, Mohammed Abdullah Aljomaih, Sheik Hamad Al-Husani, and Abdulrahman bin Mahfouz, personal jurisdiction cannot be based on a New York long-arm conspiracy theory. The Court will examine the possibility of exercising conspiracy theory personal jurisdiction over the remaining moving Defendants when it examines the specific claims against each of them below. 2. Federal Rule of Civil Procedure 4(k) Under Federal Rule of Civil Procedure 4(k)(1)(D), service of process will establish personal jurisdiction over a defendant when so authorized by a federal statute. Here, the ATA contains a nationwide service of process provision, such that proper service will confer personal jurisdiction. 18 U.S.C. § 2334(a) (providing for nationwide service of process and venue); Burnett I, 274 F.Supp.2d at 95-96. Courts asked to analyze personal jurisdiction under the ATA’s national service of process provision have concluded that a plaintiff “must demonstrate that the defendant has sufficient minimum contacts to satisfy a traditional due process analysis.” Estates of Ungar v. Palestinian Auth., 153 F.Supp.2d 76, 95 (D.R.I.2001); see also Biton v. Palestinian Interim Self-Gov’t Auth., 310 F.Supp.2d 172, 179 (D.D.C.2004) (dismissing complaint pursuant to 18 U.S.C. § 2333 because individual defendants lacked contacts with the United States). “The relevant inquiry under such circumstances is whether the defendant has minimum contacts with the United States as a whole [to satisfy Fifth Amendment due process requirements], rather than ... with the particular state in which the federal court sits.” Ungar, 153 F.Supp.2d at 87. Many of the moving Defendants either dispute the manner in which they were served or were not served in the United States. Accordingly, the Court must consider an alternative basis for personal jurisdiction. If the New York long-arm statute or the ATA does not establish personal jurisdiction, the Court will engage in a Rule 4(k)(2) analysis. Rule 4(k)(2) states: If the exercise of jurisdiction is consistent with the Constitution and laws of the United States, serving a summons or filing a waiver of service is also effective, with respect to claims arising under federal law, to establish personal jurisdiction" }, { "docid": "14407066", "title": "", "text": "Fed. R. Civ. P. 4(k)(2); see FAC ¶ 86 (“While [Defendant RCH] is not subject to jurisdiction in any state’s courts of general jurisdiction, the exercise of federal jurisdiction is consistent with the United States [Constitution and laws in that the claim arises under federal law, and [Defendant RCH] has substantial contacts with the United States as a whole.”). In essence, Rule 4(k)(2) operates as a federal long-arm statute, requiring the plaintiffs to meet a four-pronged test: (1) the claim against the defendant arises under federal law; (2) “a summons has been served;” (3) the defendant is not subject to personal jurisdiction in any state court of general jurisdiction; and (4) the exercise of personal jurisdiction by this federal court comports with due process. Mwani, 417 F.3d at 10. The parties do not dispute that the first three prongs of this test are met but contest whether Defendant RCH has the requisite contacts with the United States to allow the exercise of jurisdiction “consistent with the United States Constitution and laws.” See Fed. R. Crv. P. 4(k)(2). The Court first reviews the evolving legal principles governing the exercise of personal jurisdiction under the Due Process Clauses of the Fourteenth and Fifth Amendments before examining, as required under Rule 4(k)(2), “whether [this] defendant has sufficient contacts with the United States as a whole to justify the exercise of personal jurisdiction under the Due Process Clause of the Fifth Amendment.” Mwani, 417 F.3d at 11. In making that examination, the Court must heed the caution that “ ‘great care and reserve should be exercised when extending our notions of personal jurisdiction into the international field.’ ” Fed. R. Crv. P. 4(k) advisory committee’s note (1993) (quoting Asahi Metal Indus. v. Super. Ct. of Cal., Solano Cnty, 480 U.S. 102, 115, 107 S.Ct. 1026, 94 L.Ed.2d 92 (1987) (internal quotation marks omitted). 1. Personal Jurisdiction Principles In cases involving foreign corporations, such as Defendant RCH, “United States courts may not exercise personal jurisdiction over a foreign corporation unless the corporation has ‘minimum contacts’ with the relevant forum.” GSS Grp. Ltd. v. Nat’l Port" } ]

[ { "docid": "4963123", "title": "", "text": "arbitration. Therefore, defendant has “conceded the existence and amount of withdrawal liability owed to the Fund.” Combs v. Adkins & Adkins Coal Co., 597 F.Supp. at 127. Accordingly, the Court finds that there are no material facts in dispute, and that plaintiffs are entitled to summary judgment. Id.; Parsons, 5 E.B.C. at 2278-80; Ceazan, 559 F.Supp. at 1218. THE APPLICATION OF THE MPPAA TO DEFENDANT DOES NOT VIOLATE DUE PROCESS Before calculating defendant’s withdrawal liability, the Court must briefly respond to defendant’s constitutional argument. Citing no authority, Western/Stockton contends that the MPPAA’s requirements that it accept and pay the Trustees’ determination of withdrawal liability, without an opportunity to be heard, deprives it of Due Process of law. This exact claim has been rejected by the Court of Appeals for this Circuit. Washington Star Co. v. International Typographical Union Negotiated Pension Plan, 729 F.2d 1502, 1511 (D.C.Cir.1984). Accord, Republic Industries, Inc. v. Teamsters Joint Council No. 83 of Virginia Pension Fund, 718 F.2d 628, 639-42 (4th Cir.1983), cert. denied, — U.S. -, 104 S.Ct. 3553, 82 L.Ed.2d 855 (1984). In light of these holdings, the Court need not give further consideration to defendant’s contention. Western/Stockton has not been deprived of Due Process. PLAINTIFFS ARE ENTITLED TO THE ASSERTED WITHDRAWAL LIABILITY Western/Stockton has not paid any of its withdrawal liability, and accordingly is in default under section 4219(c)(5) of ERISA, 29 U.S.C. § 1399(c)(5). The entire amount of its withdrawal liability is now due and owing. Id.; see also id. § 1401(b)(1). Defendant contends that 29 U.S.C. § 1405 governs the calculation of withdrawal liability for Western/Stockton. This contention is incorrect. The Plans are covered by section. 404(c) of the Internal Revenue Code, 26 U.S.C. § 404(c). Gilleland dec. 113; Combs v. Adkins & Adkins Coal Co., 597 F.Supp. at 128. ERISA provides that 29 U.S.C. § 1405 does not apply to a plan covered under section 404(c) of the Internal Revenue Code. 29 U.S.C. § 1391(d)(2). Accordingly, 29 U.S.C. § 1405 does not apply, and 29 U.S.C. § 1132(g), used by the Plans in their calculations of defendant’s liability, governs Western/Stockton’s" } ]

[ { "docid": "23561014", "title": "", "text": "arbitration proceedings in favor of one of the parties,” MPPAA permits “any party thereto” to bring an action “to enforce, vacate or modify the arbitrator’s award” in the appropriate federal district court. 29 U.S.C. § 1401(b)(2) (1982). Regardless of whether the employer requests review by a plan’s trustees or initiates arbitration, however, the employer must begin making interim payments of the withdrawal liability in accordance with the plan’s schedule within 60 days of notice of liability. See 29 U.S.C. §§ 1399(c)(2), 1401(d) (1982); see also Banner Indus., Inc. v. Central States, Southeast & Southwest Areas Pension Fund, 663 F.Supp. 1292, 1297-98 (N.D.Ill.1987) (“Congress has clearly established the balance it deems appropriate with respect to which party should have use of the money during the pendency of a dispute over withdrawal liability.”); Robbins v. Pepsi-Cola Metro. Bottling Co., 636 F.Supp. 641, 677 (N.D.Ill.) (“The MPPAA contemplates a ‘pay now, dispute later’ procedure.”), petition for supersedeas bond or entry of stay pending appeal denied, 800 F.2d 641 (7th Cir.1986). II. BACKGROUND OF THIS DISPUTE Appellant Tiger International, Inc. (“Tiger”), is a holding company engaged through its subsidiaries — which include appellants The Flying Tiger Line, Inc. and Warren Transport, Inc. — in the air cargo, transportation, and trucking businesses. On January 2,1980, Tiger acquired 100% of the stock of Hall’s Motor Transit Co. (“Hall’s”), a large interstate trucking company. Pursuant to collective bargaining agreements, Hall’s had contributed for many years until early 1986 to a number of multiemployer pension plans on behalf of most of its approximately 3,500 employees. A number of factors, including deregulation of the trucking industry, caused Hall’s to incur operating losses each year from 1981 through 1984. These losses occurred notwithstanding the extensive financial support Hall’s received from Tiger during that time period. In January 1985, Tiger sold 75% of its Hall’s stock to Hall’s Acquisition Corporation (“HAC”), a corporation wholly owned by Alvin Bodford, Hall’s Chief Financial Officer. In consideration for the stock it received in this deal, HAC gave Tiger a $10.5 million promissory note that memorialized Hall’s preexisting indebtedness to Tiger. To secure this note," }, { "docid": "23094367", "title": "", "text": "hold that Ala. R. Civ. P. 17(a) is not the type of state law that is intended to survive the broad scope of ERISA preemption. . According to the deemer clause, no employee benefit plan \"shall be deemed to be an insurance company or other insurer, bank, trust, company, or investment company or to be engaged in the business of insurance or banking for purposes of any law of any State purporting to regulate insurance companies, insurance contracts, banks, trust companies, or investment companies.” 29 U.S.C. § 1144(b)(2)(B). . No relevant limitations period is found in 29 U.S.C. § 1132, see Blue Cross & Blue Shield of Ala. v. Weitz, 913 F.2d 1544, 1551 n. 12 (11th Cir.1990) (stating that 29 U.S.C. § 1132 does not specify a limitations period), or in any other ERISA provision, cf. 29 U.S.C. § 1113 (providing limitations periods for suits brought “under this subchapter with respect to a fiduciary’s breach of any responsibility, duty, or obligation under this part, or with respect to a violation of this part”); Trustees of Wyo. Laborers Health and Welfare Plan v. Morgen & Oswood Constr. Co., Inc. of Wyo., 850 F.2d 613, 618 n. 8 (10th Cir.1988) (\"The statute of limitations contained in 29 U.S.C. § 1113 applies only to actions brought to redress a fiduciary’s breach of its obligations to enforce the provisions of ERISA.”). . Other circuits have used state contract law to establish limitations periods for civil enforcement actions brought under 29 U.S.C. § 1132. See Pierce County Hotel Employees & Restaurant Employees Health Trust v. Elks Lodge, 827 F.2d 1324, 1328 (9th Cir.1987); Dameron v. Sinai Hosp. of Baltimore, Inc., 815 F.2d 975, 981 (4th Cir.1987); Miles v. N.Y.S. Teamsters Conference Pension & Retirement Fund Employee Pension Benefit Plan, 698 F.2d 593, 598 (2d Cir.1983). . The Sanderses cite two inapposite cases in support of their contention that a two-year statute of limitations applies. See Musick v. Goodyear Tire & Rubber Co., Inc., 81 F.3d 136 (11th Cir.1996); O'Neal v. Kennamer, 958 F.2d 1044 (11th Cir.1992). In Musick, this court determined the appropriate Alabama" }, { "docid": "10529263", "title": "", "text": "fees; alternatively, the amount of the award was unreasonable. The meritless protestations of the group to the contrary, when a fund is successful in a suit to recover delinquent contributions attorneys fees are mandatory not discretionary. See 29 U.S.C. 1132(g). The fund, nevertheless, contends that attorney’s fees are not permitted when a delinquent contribution action constitutes an insignificant part of a case, and, instead, the predominant issue is statutory interpretation. See H.C. Elliott, Inc. v. Carpenters Pension Trust Fund for Northern California, 663 F.Supp. 1016 (N.D.Cal.1987), aff'd, 859 F.2d 808 (9th Cir.1988), cert. denied, 490 U.S. 1036, 109 S.Ct. 1934, 104 L.Ed.2d 406 (1989). As noted earlier the instant case does not fall within the statutory construction exception. It is, therefore, essentially a collection action. Thus, fees are mandatory. See e.g., Trustees of Amalgamated Insurance Fund v. Sheldon Hall Clothing, Inc., 862 F.2d 1020, 1023-24 (3d Cir.1988), cert. denied, 490 U.S. 1082, 109 S.Ct. 2104, 104 L.Ed.2d 665 (1989); and Teamsters Pension Fund v. Allyn Transportation Co., 832 F.2d 502, 507 (9th Cir.1987). Moreover, reviewing the amount of fees awarded we find no abuse of discretion. III. For the reasons set forth in the preceding discussion we affirm the decision of the district court. AFFIRMED. . By corporate group, we refer to the defendants. When referring to a set of corporations under common control, we use the term \"control group.\" . See generally 26 U.S.C.A. (I.R.C.) § 1563(a). . See, e.g., I.A.M. Nat’l Pension Fund Benefit Plan C v. Stockton TRI Indus., 727 F.2d 1204, 1207-09 (D.C.Cir.1984); T.I.M.E.-D.C., Inc. v. Management-Labor Welfare & Pension Funds, 756 F.2d 939, 944-45 (2d Cir.1985); Central States, Southeast and Southwest Pension Fund v. 888 Corp., 813 F.2d 760, 764 (6th Cir.1987); Robbins v. Admiral Merchants Motor Freight, Inc., 846 F.2d 1054, 1056 (7th Cir.1988); Crown Cork & Seal Co. v. Central States, Southeast and Southwest Areas Pension Fund, 881 F.2d 11, 19 (3d Cir.1989)." }, { "docid": "20587560", "title": "", "text": "applicable statute of limitations has run. Chirco, 474 F.3d at 233; Tandy Corp., 769 F.2d at 366. Recently, the Supreme Court held that, where Congress has established a statute of limitations (such as the three-year limitations period in the Copyright Act), laches may not be invoked to bar damages relief if the action was brought within the limitations period. Petrella v. Metro-Goldwyn-Mayer, Inc., - U.S.-, 134 S.Ct. 1962, 1972-74, 188 L.Ed.2d 979 (2014). Laches, the Court explained, “is a defense developed by courts of equity; its principal application was, and remains, to claims of an equitable cast for which the Legislature has provided no fixed time limitation.” Id. at 1973 (quoting 1 D. Dobbs, Law of Remedies § 2.4(4), p. 104 (2d ed.1993) (“laches ... may have originated in equity because no statute of limitations applied, ... suggesting] that laches should be limited to cases in which no statute of limitations applies”)). Both before and after the merger of law and equity, the Supreme Court “has cautioned against invoking laches to bar legal relief.” Id. (citing, among other cases, United States v. Mack, 295 U.S. 480, 489, 55 S.Ct. 813, 79 L.Ed. 1559 (1935) (“Laches within the term of the statute of limitations is no defense at law”)). Because ERISA does not provide a statute of limitations for ERISA collection actions, we, like other circuits, apply the limitations period for the state cause of action that is most analogous to the ERISA claim at issue. Cent. States Se. & Sw. Areas Pension Fund v. Kraftco, Inc., 799 F.2d 1098, 1107 (6th Cir.1986) (en banc); Trs. of Wyo. Laborers Health & Welfare Plan v. Morgen & Oswood Constr. Co., Inc. of Wyo., 850 F.2d 613, 620-21 (10th Cir.1988) (listing cases). We apply the forum state’s general limitations period for contract actions, Kraftco, Inc., 799 F.2d at 1107, and here, the parties agree that Michigan’s six-year statute of limitations for contract actions applies to the Funds’ collection suit. See Mich. United Food & Commercial Workers Unions & Drug & Mercantile Emps. Joint Health & Welfare Fund v. Muir Co., 992 F.2d 594," }, { "docid": "5335479", "title": "", "text": "be construed by reference to Code and case law decided under it, without considering the different concerns which underlie ERISA. Particularly to the extent that they claim that the Center City Motors court did not consider the legislative history of ERISA or § 1301(b)(1), their argument is incorrect as well as unpersuasive. See Center City Motors, 609 F.Supp. at 412. In summary, because both Center City Motors and United Food appear to be based on sound reasoning, and because the Saltzes have not offered compelling reasons to disregard those cases, their net lease arrangement with the Corporation is held to have been a “trade or business” for the purposes of § 1301(b)(1). The Saltzes are therefore liable as members of a common control group for the Corporation’s withdrawal liability to the Fund. Because notice to one member of the control group is considered as notice to all members, Teamsters Pension Trust Fund v. Allyn Transportation Co., 832 F.2d 502, 506-07 (9th Cir.1987); IUE AFL-CIO Pension Fund v. Barker & Williamson, Inc., 788 F.2d 118 (3d Cir.1986), the Saltzes’ time to contest the Fund’s assessment of withdrawal liability, either by responding to the Fund itself or by seeking arbitration, appears to have expired. Cf. ILGWU National Retirement Fund v. Levy Bros. Frocks, Inc., 846 F.2d 879 (2d Cir.1988); ILGWU National Retirement Fund v. B.B. Liquidating Corp., 759 F.Supp. 128 (S.D.N.Y.1991) (failure to initiate timely arbitration, even where employer contested characterization as employer subject to liability, warranted summary judgment against employer). Therefore, the Saltzes have no further defense to the Fund’s action, and summary judgment is warranted. Conclusion For all of the foregoing reasons, the Fund’s motion for summary judgment is granted. Submit judgment on notice. It is so ordered." }, { "docid": "23561013", "title": "", "text": "collected) without regard to such transaction.” 29 U.S.C. 1392(c) (1982). Provisions for the quick and informal resolution of withdrawal liability disputes are an integral part of MPPAA’s statutory scheme. The Act requires a plan’s trustees to determine initially whether a withdrawal has occurred. 29 U.S.C. §§ 1382(1), 1399(b)(l)(A)(i) (1982). When the trustees conclude that a withdrawal has taken place, they must then notify the employer of the amount of liability and demand payment in accordance with an amortization schedule. 29 U.S.C. §§ 1382(2), 1382(3), 1399(b)(1)(B) (1982). Thereafter, the employer may within 90 days ask the trustees to conduct a reasonable “review” of the computed liability. 29 U.S.C. § 1399(b)(2)(A)(i) (1982). If a dispute remains, either party may initiate arbitration proceedings. MPPAA provides that [a]ny dispute between an employer and the plan sponsor of a multiemployer plan concerning a determination made under sections 1381 through 1399 of ... title [29] shall be resolved through arbitration. Either party may initiate the arbitration proceeding within [specified time periods]. 29 U.S.C. § 1401(a)(1) (1982). Finally, “[u]pon completion of the arbitration proceedings in favor of one of the parties,” MPPAA permits “any party thereto” to bring an action “to enforce, vacate or modify the arbitrator’s award” in the appropriate federal district court. 29 U.S.C. § 1401(b)(2) (1982). Regardless of whether the employer requests review by a plan’s trustees or initiates arbitration, however, the employer must begin making interim payments of the withdrawal liability in accordance with the plan’s schedule within 60 days of notice of liability. See 29 U.S.C. §§ 1399(c)(2), 1401(d) (1982); see also Banner Indus., Inc. v. Central States, Southeast & Southwest Areas Pension Fund, 663 F.Supp. 1292, 1297-98 (N.D.Ill.1987) (“Congress has clearly established the balance it deems appropriate with respect to which party should have use of the money during the pendency of a dispute over withdrawal liability.”); Robbins v. Pepsi-Cola Metro. Bottling Co., 636 F.Supp. 641, 677 (N.D.Ill.) (“The MPPAA contemplates a ‘pay now, dispute later’ procedure.”), petition for supersedeas bond or entry of stay pending appeal denied, 800 F.2d 641 (7th Cir.1986). II. BACKGROUND OF THIS DISPUTE Appellant Tiger International," }, { "docid": "18623742", "title": "", "text": "a Failure to Timely Initiate Arbitration Under the MPPAA, “[a]ny dispute between an employer and the plan sponsor of a multiemployer plan concerning a determination [of withdrawal liability] shall be resolved through arbitration.” 29 U.S.C. § 1401(a)(1) (emphasis added). “If no arbitration proceeding has been initiated pursuant to [section 1401(a)(1) ], the amounts demanded by the plan sponsor ... shall be due and owing ... [and the sponsor] may bring an action ... for collection.” 29 U.S.C. § 1401(b)(1). Defenses which should be referred to arbitration are waived by a failure to timely initiate arbitration (unless some exception to the exhaustion-of-remedies doctrine applies). Central States Pension Fund v. Skyland Leasing Co., 691 F.Supp. 6, 14 (W.D.Mich.1987); New York State Teamsters Conference Pension & Retirement Fund v. McNicholas Transp. Co., 658 F.Supp. 1469, 1475 (N.D.N.Y.1987), aff'd, 848 F.2d 20 (2d Cir.1988). The Trustees argue that this rule bars Centric from raising any defense to their withdrawal liability claim, but the MPPAA only requires arbitration of disputes “concerning” an assessment of withdrawal liability. Generally, therefore, the only defenses which are waived by a failure to timely initiate arbitration are those which go to the merits of the liability assessment itself. See, e.g., Carl Colteryahn Dairy v. Western Pa. Teamsters & Employers Pension Fund, 847 F.2d 113, 118 (3d Cir.1988) (“how and when withdrawal liability is to be assessed”); Teamsters Pension Trust Fund v. Allyn Transp. Co., 832 F.2d 502, 506 (9th Cir.1987) (“ ‘the establishment or amount of withdrawal liability’ ” (quoting Shelter Framing Corp. v. Pension Benefit Guaranty Corp., 705 F.2d 1502, 1509 (9th Cir.1983), rev’d on other grounds sub nom. Pension Benefit Guaranty Corp. v. R.A. Gray & Co., 467 U.S. 717, 104 S.Ct. 2709, 81 L.Ed.2d 601 (1984))); T.I.M.E.-DC, Inc. v. Management-Labor Welfare & Pension Funds, 756 F.2d 939, 945 (2d Cir.1985) (“issues the resolution of which is necessary to calculate withdrawal liability”); Central States Pension Fund v. Skyland Leasing Co., 691 F.Supp. at 14 (“the amount of liability assessed and the method of calculating such liability”); see also Mason & Dixon Tank Lines, Inc. v. Central States Pension" }, { "docid": "18623746", "title": "", "text": "n (1982); cf. In re Whitney-Forbes, Inc., 770 F.2d 692, 698 (7th Cir.1985); Coleman v. Block, 663 F.Supp. 1315, 1329 (D.N.D.1987), vacated as moot, 864 F.2d 604 (8th Cir.1988). After the district court terminated without prejudice the Trustees’ counterclaim for withdrawal liability, the Trustees got the bankruptcy court to lift the automatic stay on May 13,1986. However, it was not until January 29, 1988 — over twenty months later — that the Trustees moved to reopen the district court litigation. The district court held that the claim had become barred by laches: “[DJespite the issuance of the order granting relief from stay, thereby permitting the [Tjrustees to prosecute their counterclaim in this civil action, the [Tjrustees' former legal counsel decided to proceed through the proof of claim filed in the bankruptcy proceedings and then neglected to prosecute that claim in a timely manner. Current counsel for the [Tjrustees then discovered that ... a bond had been posted in this civil action to secure payment of withdrawal liability.... Accordingly, the [Tjrustees seek to recover on that bond_ [Tjhe failure of the [Tjrustees to prosecute the counterclaim here for more than 20 months after receiving the order granting relief from stay is inexcusable and would cause substantial detriment to the plaintiff by proceeding with the litigation of the counterclaim.” R. Vol. I, Tab 20 at 3. “Laches consists of two elements: (1) inexcusable delay in instituting a suit; and (2) resulting prejudice to defendant from such delay.” Brunswick Corp. v. Spinit Reel Co., 832 F.2d 513, 523 (10th Cir.1987). We will not disturb a finding of laches unless the district court abused its discretion. Id. The Trustees claim that, rather than sleeping on their rights, their counsel spent the twenty-month interval trying to work out an amicable settlement. Generally, a delay caused by settlement negotiations is not unreasonable. See, e.g., Stone v. Williams, 873 F.2d 620, 625 (2d Cir.1989); Mogavero v. McLucas, 543 F.2d 1081, 1083 (4th Cir.1976). Unfortunately for the Trustees, this argument appears to be an afterthought. No evidence in the record supports it. We agree with the district court’s" }, { "docid": "20587561", "title": "", "text": "(citing, among other cases, United States v. Mack, 295 U.S. 480, 489, 55 S.Ct. 813, 79 L.Ed. 1559 (1935) (“Laches within the term of the statute of limitations is no defense at law”)). Because ERISA does not provide a statute of limitations for ERISA collection actions, we, like other circuits, apply the limitations period for the state cause of action that is most analogous to the ERISA claim at issue. Cent. States Se. & Sw. Areas Pension Fund v. Kraftco, Inc., 799 F.2d 1098, 1107 (6th Cir.1986) (en banc); Trs. of Wyo. Laborers Health & Welfare Plan v. Morgen & Oswood Constr. Co., Inc. of Wyo., 850 F.2d 613, 620-21 (10th Cir.1988) (listing cases). We apply the forum state’s general limitations period for contract actions, Kraftco, Inc., 799 F.2d at 1107, and here, the parties agree that Michigan’s six-year statute of limitations for contract actions applies to the Funds’ collection suit. See Mich. United Food & Commercial Workers Unions & Drug & Mercantile Emps. Joint Health & Welfare Fund v. Muir Co., 992 F.2d 594, 597 (6th Cir.1993) (applying Mich. Comp. Laws Ann. § 600.5807(8) in an ERISA collection action). The Funds filed this action in February 2011 seeking unpaid contributions for the period “from January 2007.” Because the suit was brought within the six-year statute of limitations for contract actions in Michigan, the defendants may not shorten the limitations period by asserting a laches defense against the Funds. See Petrella, 134 S.Ct. at 1972-74; Herman Miller, Inc., 270 F.3d at 321. The defendants rely on Teamsters & Employers Welfare Trust of Ill. v. Gorman Bros. Ready Mix, 283 F.3d 877 (7th Cir.2002), to argue that their laches defense is viable. In that case, the Seventh Circuit relied upon its longstanding rule that “just as various tolling doctrines can be used to lengthen the period for suit specified in a statute of limitations, so laches can be used to contract it.” Id. at 881. While acknowledging its precedent, the opinion recognized that “some courts have invoked a presumption against the use of laches to shorten the statute of limitations,” citing," }, { "docid": "2652666", "title": "", "text": "ERISA and no federal common law right to recovery); Whitworth Bros. Storage Co. v. Central States, 794 F.2d 221, 236 (6th Cir.) (Ending federal common law of action to recover on a contractual claim), cert. denied, — U.S. -, 107 S.Ct. 645, 93 L.Ed.2d 701 (1986); Crews v. Central States, Southeast and Southwest Areas Pension Fund, 788 F.2d 332, 337 n. 3 (6th Cir.1986) (allowing action to recover under contract); Award Service, Inc. v. Northern California Retail Clerks Union & Food Employers Joint Pension Trust Fund, 763 F.2d 1066, 1068 (9th Cir.1985) (finding implied cause of action under ERISA), cert. denied, 474 U.S. 1081, 106 S.Ct. 850, 88 L.Ed.2d 890 (1986); Chase v. Trustees of Western Conference of Teamsters Pension Trust Fund, 753 F.2d 744, 749 (9th Cir.1985) (finding implied cause of action when equitable principles would allow restitution); Peckham v. Board of Trustees, 719 F.2d 1063, 1066 (10th Cir.1983) (permitting restitution when trust fund would not be underfunded as a result); Van Orman v. American Ins. Co., 680 F.2d 301, 312 (3d Cir.1982) (no federal common law cause of action under doctrine of unjust enrichment when \"such a right would override a contractual provision”); Teamsters Local 639-Employers Health Trust v. Cassidy Trucking, Inc., 646 F.2d 865, 868 (4th Cir.1981) (finding that determination that payment was made due to a mistake of fact does not make return automatic unless traditional equitable principles point toward return); Soft Drink Industry Local Union No. 744 Pension Fund v. Coca-Cola Bottling Co. of Chicago, 679 F.Supp. 743, 747-51 (N.D.Ill.1988) (finding a common law right of action but no implied right of action); Ryan-Walsh Stevedoring Co. v. Cormier, 675 F.Supp. 337, 340 (E.D.La.1987) (finding a federal common law cause of action for breach of contractual duties and fiduciary obligations); Carpenters Local 1471 v. Bar-Con, Inc., 668 F.Supp. 560, 568-69 (S.D.Miss.1987) (no implied right of action); McHugh v. Teamsters Pension Trust Fund of Philadelphia, 638 F.Supp. 1036, 1048-49 (E.D.Pa.1986) (no implied right of action); Crown Cork & Seal Co., Inc. v. Teamsters Pension Fund of Philadelphia & Vicinity, 549 F.Supp. 307, 311 (E.D.Pa.1982) (no implied cause" }, { "docid": "4408872", "title": "", "text": "F.Supp. 986, 992-93 (E.D.Pa.), aff'd, 862 F.2d 1020 (3d Cir.1988); but see Niagara of Wisconsin Paper Corp. v. Paper Indus. Union-Management Pension Fund, 603 F.Supp. 1423, 1429-30 (D.Minn.1984), aff'd, 800 F.2d 742 (8th Cir.1986). In light of this precedent, this Court rejects Malden’s argument that it should not have to pay fees and costs because the Fund did not initiate this action. Therefore, the Fund, as the prevailing party in this case, is entitled to reasonable attorneys’ fees and other costs as provided under section 1132(g)(2), with respect to its delinquent contributions claims. The Fund also argues that it is entitled to recover its attorneys’ fees and costs incurred with respect to the withdrawal liability portion of this case. Section 1451(b) provides that the employer’s failure to make withdrawal liability payments within the time prescribed “shall be treated in the same manner as a delinquent contribution (within the meaning of section 1145 of this title).” 29 U.S.C.A. § 1451(b) (1980). Relying on this section, some courts have held a pension fund’s withdrawal liability claim should be treated in the same manner as a suit for the recovery of delinquent contributions within the meaning of section 1145. See Robbins v. B & B Lines, Inc., 830 F.2d 648, 651 (7th Cir.1987); Sheldon Hall, 862 F.2d at 1023; Penn Elastic, 792 F.2d at 47; Debreceni v. J.C. Campbell Paper Co., C.A. No. 84-507-WF (D.Mass.1988) (LEXIS, GENFED Library). Due to the fact that the law is unclear under section 1451(b) with respect to whether the Fund is entitled to costs with respect to the withdrawal liability portion of its award, the Court requests that the parties submit a memorandum of law on this issue, pursuant to the Order issued on this date. For all the reasons stated above, the defendants’, ILGWU National Retirement Fund and certain of its trustees, motion for summary judgment should be granted as to Counts I and II of the defendants' Amended Counterclaims (C.A. No. 88 — 0681—C), and the plaintiff’s, Malden Mills Industries, Inc., motion for summary judgment as to Count I of the plaintiff's Complaint (C.A. No." }, { "docid": "21572501", "title": "", "text": "conclude their financial affairs. It is apparent that the parties entered into the settlements, because they wished to avoid arbitration or litigation and realized that the outcome of any judicial proceedings involving the interpretation of section 4225(a) would be uncertain. Preserving settlement agreements promotes the MPPAA policy that “disputes over withdrawal liability issues [shjould be resolved quickly.” ILGWU National Retirement Fund v. Levy Bros. Frocks, 846 F.2d 879, 887 (2d Cir.1988). The Fund cannot shield itself from liability by hiding behind its fiduciary status. Although it was advised by counsel to consider pursuing additional withdrawal liability payments from the Employers, this advice does not serve to insulate it from an unreasonable decision. See Davidson v. Keenan, 740 F.2d 129, 133 (2d Cir.1984). The Fund was warned in the second opinion letter from its counsel that “fiduciaries must weigh the expected cost of pursuit against the magnitude and likelihood of the expected recovery.” None of the opinion letters indicate that the Fund sought advice as to, or considered, the amount it could reasonably expect to collect from the Employers, the likelihood of success, or even the possibility of being assessed attorney’s fees. Such considerations would have been necessary to properly evaluate whether a demand for additional withdrawal liability payments was warranted. See Restatement (Second) of Trusts § 177 comment c (1959). There were a number of uncertainties that mandated careful evaluation by the Fund of its post-settlement position. First, the district court was not bound by the Ninth Circuit decision in Geltman. See Beck v. Manufacturers Hanover Trust Co., 650 F.Supp. 48, 50 (S.D.N.Y.1986), aff'd, 820 F.2d 46 (2d Cir.1987), cert. denied, 484 U.S. 1005, 108 S.Ct. 698, 98 L.Ed.2d 650 (1988); United States v. Barth, 591 F.Supp. 91, 97 (D.Conn.), affd in part and rev’d in part on other grounds, 745 F.2d 184 (2d Cir.1984), cert. denied, 470 U.S. 1004, 105 S.Ct. 1356, 84 L.Ed.2d 378 (1985); see also SEC v. Shapiro, 494 F.2d 1301, 1306 n. 2 (2d Cir.1974). In fact, the Fund was informed that this was so in the opinion letter of February 10, 1987. Second, the" }, { "docid": "16202248", "title": "", "text": "the pension plan trustees and affirm the trial court on this issue. The courts holding that all defenses are barred if not initially arbitrated cite several reasons for so ruling — the congressional preference for a nonjudicial, possibly speedier resolution for disputes, as reflected by the establishment of an arbitration scheme; the fact that 29 U.S.C. § 1401 declares that “[a]ny dispute” concerning a determination related to a withdrawal liability assessment is to be arbitrated; the arbitrator’s likely expertise in pension matters; the consideration that factual questions are especially amenable to resolution by an arbitrator; and the promotion of judicial economy and efficient use of judicial resources by the potential for resolution of most issues outside the court system. See, e.g., Robbins v. Admiral Merchants Motor Freight, Inc., 846 F.2d 1054, 1056-57 (7th Cir.1988), and Teamsters Pension Trust Fund v. Align Transportation Co., 832 F.2d 502, 504-06, 505 n. 4 (9th Cir.1987). Even the cases allowing certain defenses to bypass arbitration state that the existence of a question of statutory interpretation is not, by itself, sufficient to eliminate the arbitration requirement and that factual issues must always be arbitrated. See, e.g., Mason and Dixon Tank Lines, Inc. v. Central States, Southeast and Southwest Areas Pension Fund, 852 F.2d 156, 164 (6th Cir.1988); New York State Teamsters Conference Pension and Retirement Fund v. McNicholas Transportation Co., 848 F.2d 20, 22-23 (2d Cir.1988); Flying Tiger Line v. Teamsters Pension Trust Fund, 830 F.2d 1241, 1254-55 (3d Cir.1987); I.A.M. National Pension Fund v. Clinton Engines Corp., 825 F.2d 415, 416-18, 422, 428 n. 23, 429 (D.C.Cir.1987); and Republic Industries, Inc. v. Teamsters Joint Council No. 83, 718 F.2d 628, 634-35 (4th Cir.1983), cert. denied, 467 U.S. 1259, 104 S.Ct. 3553, 82 L.Ed.2d 855 (1984). One appellate court has held that defenses not going to the merits of the actual assessment need not be arbitrated. See In re Centric Corp., 901 F.2d 1514, 1518 (10th Cir.1990), cert. denied, — U.S.-, 111 S.Ct. 145, 112 L.Ed.2d 112 (1990). That court described a claim that a pension plan’s trustees brought a suit so late as to" }, { "docid": "16202253", "title": "", "text": "taken place at the time the liability for the withdrawal assessment arose. They argue, thus, that the trial court’s grant of summary judgment as to that issue was incorrect. At the very least, they contend, a genuine issue of material fact still exists on the question. The pension plan trustees argue that summary judgment was appropriate on the question of whether the trust’s activities make it a trade or business. They further argue that the defendants failed to raise in the trial court the issue of when the trust may have become a trade or business and are thus barred from raising it now. We agree with the pension plan trustees and affirm the trial court on this issue. The cases interpreting the meaning of “trade or business” under ERISA have held the following fact patterns to have established the existence of a trade or business liable under the law: vehicle leasing operations conducted for profit; vehicle and real property leases between two entities under common control; and the subsistence of one commonly controlled entity, directly or indirectly, partly or entirely, upon the revenues generated by a second commonly controlled entity. See, e.g., Lafrenz, 837 F.2d at 894-95; Trustees of the Amalgamated Insurance Fund v. Saltz, 760 F.Supp. 55, 57-58 (S.D.N.Y.1991); Central States, Southeast and Southwest Areas Pension Fund v. Sztanyo Trust, 693 F.Supp. 531, 537-38 (E.D.Mich.1988); Central States, Southeast and Southwest Areas Pension Fund v. Bay, 684 F.Supp. 483, 485 (E.D.Mich.1988); Central States, Southeast and Southwest Areas Pension Fund v. Skyland Leasing Co., 691 F.Supp. 6, 12 (W.D.Mich.1987), aff'd without opinion, 892 F.2d 1043 (6th Cir.1990); Central States, Southeast and Southwest Areas Pension Fund v. Long, 687 F.Supp. 298, 301 (E.D.Mich.1987); United Food and Commercial Workers Union v. Progressive Supermarkets, 644 F.Supp. 633, 639 (D.N.J.1986); and Pension Benefit Guaranty Corp. v. Center City Motors, Inc., 609 F.Supp. 409, 412 (S.D.Cal.1984). In this case, it is undisputed that the trust, established in 1980, had leased real property in 1986 and 1987 to Williams Meat and SLC. Without addressing the question of when those activities occurred, the trial court held that" }, { "docid": "18623743", "title": "", "text": "defenses which are waived by a failure to timely initiate arbitration are those which go to the merits of the liability assessment itself. See, e.g., Carl Colteryahn Dairy v. Western Pa. Teamsters & Employers Pension Fund, 847 F.2d 113, 118 (3d Cir.1988) (“how and when withdrawal liability is to be assessed”); Teamsters Pension Trust Fund v. Allyn Transp. Co., 832 F.2d 502, 506 (9th Cir.1987) (“ ‘the establishment or amount of withdrawal liability’ ” (quoting Shelter Framing Corp. v. Pension Benefit Guaranty Corp., 705 F.2d 1502, 1509 (9th Cir.1983), rev’d on other grounds sub nom. Pension Benefit Guaranty Corp. v. R.A. Gray & Co., 467 U.S. 717, 104 S.Ct. 2709, 81 L.Ed.2d 601 (1984))); T.I.M.E.-DC, Inc. v. Management-Labor Welfare & Pension Funds, 756 F.2d 939, 945 (2d Cir.1985) (“issues the resolution of which is necessary to calculate withdrawal liability”); Central States Pension Fund v. Skyland Leasing Co., 691 F.Supp. at 14 (“the amount of liability assessed and the method of calculating such liability”); see also Mason & Dixon Tank Lines, Inc. v. Central States Pension Fund, 852 F.2d 156, 164 (6th Cir.1988). Laches in the prosecution of an action to collect the amount assessed is not such a defense, for it goes to the effect of the delay in bringing suit, not to the merits of the claim. Moreover, a failure to arbitrate does not waive a defense that the employer does not yet have. Crown Cork & Seal Co. v. Central States Pension Fund, 881 F.2d 11, 16-17 (3d Cir.1989); see also, e.g., Central States Pension Fund v. 888 Corp., 813 F.2d 760, 764 (6th Cir.1987); Combs v. Leishman, 691 F.Supp. 424, 429 (D.D.C.1988). At the time the Trustees argue Centric should have initiated arbitration, the delay giving rise to the laches defense had not yet occurred. Therefore, whether or not Centric’s civil action tolled the time for initiating arbitration, Centric did not lose its right to claim that the Trustees were guilty of laches. B. The Trustees’ Claim Was Barred By Laches The defense of laches is available in a suit to collect a claim for withdrawal liability." }, { "docid": "13711806", "title": "", "text": "sponsor ... beginning no later than 60 days after the date of the demand notwithstanding any request for review or appeal. ... 29 U.S.C.A. § 1399(c)(2) (1985) (emphasis added). If the employer wishes to challenge the sponsors’ determinations, the Act further provides that [a]ny dispute between an employer and the plan sponsor ... concerning a determination made under sections 1381 through 1399 of this title shall be resolved through arbitration. 29 U.S.C.A. § 1401(a)(1) (1985). As many courts have noted, this statutory scheme unambiguously established a “pay now, dispute later” dispute resolution procedure designed to protect the financial stability of multi-employer pension plans from unnecessary risk caused by protracted delay in the collection of withdrawal liability payments. See, e.g., Debreceni v. Merchants Terminal Corp., 889 F.2d 1, 5 (1st Cir.1989); Robbins v. Pepsi-Cola Metropolitan Bottling Co., 637 F.Supp. 1014, 1018 (N.D.Ill.1986), aff'd, 800 F.2d 641 (7th Cir.1986). Courts in the majority of circuits have held that ERISA empowers a court to order the making of interim withdrawal liability payments. Debreceni, supra; Robbins v. Pepsi-Cola, supra; Marvin Hayes Lines, Inc. v. Central States, Southeast & Southwest Areas Pension Fund, 814 F.2d 297, 299 (6th Cir.1987); United Retail & Wholesale Employees Teamsters Union Local No. 115 Pension Plan v. Yahn & McDonnell, Inc., 787 F.2d 128, 134 (3d Cir.1986), aff'd mem., 481 U.S. 735, 107 S.Ct. 2171, 95 L.Ed.2d 692 (1987); Trustees of Amalgamated Ins. Fund v. Geltman Indus. Inc., 784 F.2d 926, 931 (9th Cir.1986), cert. denied, 479 U.S. 822, 107 S.Ct. 90, 93 L.Ed.2d 42 (1986); Trustees of the Retirement Fund of the Fur Manufacturing Industry v. Lazar-Wisotzky, Inc., 550 F.Supp. 35, 38 (S.D.N.Y.1982), aff'd, 738 F.2d 419 (2d Cir.1984). Generally, courts have allowed an exception to the statutory directive only where an employer makes a facial constitutional attack or shows that irreparable injury will result from being forced to make the interim payments. See, e.g., McDonald v. Centra, 118 B.R. 903, 922 (D.Md.1990); Flying Tiger Line v. Teamsters Pension Trust Fund of Philadelphia, 830 F.2d 1241, 1249 (3d Cir.1987). The burden of qualifying for this exception, however, is extremely" }, { "docid": "16202249", "title": "", "text": "sufficient to eliminate the arbitration requirement and that factual issues must always be arbitrated. See, e.g., Mason and Dixon Tank Lines, Inc. v. Central States, Southeast and Southwest Areas Pension Fund, 852 F.2d 156, 164 (6th Cir.1988); New York State Teamsters Conference Pension and Retirement Fund v. McNicholas Transportation Co., 848 F.2d 20, 22-23 (2d Cir.1988); Flying Tiger Line v. Teamsters Pension Trust Fund, 830 F.2d 1241, 1254-55 (3d Cir.1987); I.A.M. National Pension Fund v. Clinton Engines Corp., 825 F.2d 415, 416-18, 422, 428 n. 23, 429 (D.C.Cir.1987); and Republic Industries, Inc. v. Teamsters Joint Council No. 83, 718 F.2d 628, 634-35 (4th Cir.1983), cert. denied, 467 U.S. 1259, 104 S.Ct. 3553, 82 L.Ed.2d 855 (1984). One appellate court has held that defenses not going to the merits of the actual assessment need not be arbitrated. See In re Centric Corp., 901 F.2d 1514, 1518 (10th Cir.1990), cert. denied, — U.S.-, 111 S.Ct. 145, 112 L.Ed.2d 112 (1990). That court described a claim that a pension plan’s trustees brought a suit so late as to prejudice the employer as such a defense and characterized it as based on laches. Id.; see also Trustees of Colorado Pipe Industry Pension Trust v. Howard Electrical and Mechanical, Inc., 909 F.2d 1379, 1386 (10th Cir.1990), cert. denied, — U.S. -, 111 S.Ct. 958, 112 L.Ed.2d 1046 (1991). In the case at bar, however, the alleged delay at issue was the pension plan trustees’ submission of notice and demand for payment to the defendants, not any delay in bringing suit. As far as we can tell, only one court has specifically considered whether arbitration is required when an employer claims that notice from pension plan trustees was not made “[a]s soon as practicable,” see 29 U.S.C. § 1399(b)(1). In that case, the court held that a defense of laches based on that provision was waived if not arbitrated. See ILGWU National Retirement Fund v. Smart Modes of California, Inc., 735 F.Supp. 103, 106-07 (S.D.N.Y.1990); see also Joyce v. Clyde Sandoz Masonry, 871 F.2d 1119, 1127 (D.C.Cir.1989), cert. denied, 493 U.S. 918, 110 S.Ct. 280, 107" }, { "docid": "18623745", "title": "", "text": "See ILGWU Nat’l Retirement Fund v. Levy Bros. Frocks, Inc., 846 F.2d 879, 887 (2d Cir.1988); Central States Pension Fund v. Lloyd L. Sztanyo Trust, 693 F.Supp. 531, 541 (E.D.Mich.1988); Jaspan v. Certified Indus., Inc., 645 F.Supp. 998, 1007 (E.D.N.Y.1985); cf. Trustees of Wyo. Laborers Health & Welfare Plan v. Morgen & Oswood Constr. Co., 850 F.2d 613, 624 (10th Cir.1988); Trustees of Colo. Statewide Iron Workers Fund v. A & P Steel, Inc., 812 F.2d 1518, 1528 (10th Cir.1987) (both considering a laches defense to a claim under ERISA for delinquent contributions to pension funds). But see Robbins v. Pepsi-Cola Metro. Bottling Co., 636 F.Supp. 641, 681 n. 6 (N.D.Ill.1986); Combs v. Western Coal Corp., 611 F.Supp. 917, 920 (D.D.C.1985). The defense is available whether or not the amount assessed has become “due and owing.” See Jaspan v. Certified Indus., Inc., 645 F.Supp. at 1005. Laches is just as applicable to a delay in re initiating litigation as it is to a delay in initiating litigation. See Restatement (Second) of Judgments § 20 comment n (1982); cf. In re Whitney-Forbes, Inc., 770 F.2d 692, 698 (7th Cir.1985); Coleman v. Block, 663 F.Supp. 1315, 1329 (D.N.D.1987), vacated as moot, 864 F.2d 604 (8th Cir.1988). After the district court terminated without prejudice the Trustees’ counterclaim for withdrawal liability, the Trustees got the bankruptcy court to lift the automatic stay on May 13,1986. However, it was not until January 29, 1988 — over twenty months later — that the Trustees moved to reopen the district court litigation. The district court held that the claim had become barred by laches: “[DJespite the issuance of the order granting relief from stay, thereby permitting the [Tjrustees to prosecute their counterclaim in this civil action, the [Tjrustees' former legal counsel decided to proceed through the proof of claim filed in the bankruptcy proceedings and then neglected to prosecute that claim in a timely manner. Current counsel for the [Tjrustees then discovered that ... a bond had been posted in this civil action to secure payment of withdrawal liability.... Accordingly, the [Tjrustees seek to recover on that" }, { "docid": "14336692", "title": "", "text": "previous cases and need not be repeated here. Pension Benefit Guaranty Corp. v. R.A. Gray & Co., 467 U.S. 717, 104 S.Ct. 2709, 81 L.Ed.2d 601 (1984); Board of Trustees v. Thompson Bldg. Materials, Inc., 749 F.2d 1396 (9th Cir.1984), cert. denied, 471 U.S. 1054, 105 S.Ct. 2116, 85 L.Ed.2d 481 (1985); Peick v. PBGC, 724 F.2d 1247 (7th Cir.1983), cert. denied, 467 U.S. 1259, 104 S.Ct. 3554, 82 L.Ed.2d 855 (1984); Robbins v. Pepsi Cola Metro. Bottling, 636 F.Supp. 641 (N.D.Ill. 1986). It is sufficient to say that ERISA is a comprehensive statutory scheme designed to insure that employees and their beneficiaries do not lose expected pension benefits because their pension plan was terminated. Gray, 467 U.S. at 720, 104 S.Ct. at 2713. To accomplish this, Congress enacted ERISA which, inter alia, established minimum funding standards. In addition, the MEPPAA amended ERISA to define an employer’s liability to contribute to a pension plan upon its withdrawal from the fund. Although Century Factors is correct in asserting that withdrawal liability does not arise until an employer withdraws from a plan, this does not prove that the Debtor did not owe a debt to the pension fund on the transfer dates which approximated the amount of its subsequent withdrawal liability. ERISA requires that employee pension plans should provide vested benefits to employees after a designated terms of service. Amalgamated Ins. Fund v. William B. Kessler, Inc., 55 B.R. 735, 737 (S.D.N.Y. 1985). Under ERISA, each plan must meet minimum funding standards, 29 U.S.C. § 1001(c), by maintaining a minimum funding account to which certain statutorily defined credits and debits are charged. See id. § 1082(b). If the charges to the funding account exceed the credits, an accumulated funding deficiency exists. 29 U.S.C. § 1082; see Columbia Packing Co. v. Pension Benefit Guaranty Corp., 81 B.R. 205, 206 (D.Mass.1988); Amalgamated Ins. Fund, 55 B.R. at 737. Accumulations of funding deficiencies must be brought up to date and the failure to do so can result in employer liability. See Amalgamated Ins. Fund, 55 B.R. at 737, Novikoff & Polebaum, Pension-Related Claims in Bankruptcy" }, { "docid": "18623744", "title": "", "text": "Fund, 852 F.2d 156, 164 (6th Cir.1988). Laches in the prosecution of an action to collect the amount assessed is not such a defense, for it goes to the effect of the delay in bringing suit, not to the merits of the claim. Moreover, a failure to arbitrate does not waive a defense that the employer does not yet have. Crown Cork & Seal Co. v. Central States Pension Fund, 881 F.2d 11, 16-17 (3d Cir.1989); see also, e.g., Central States Pension Fund v. 888 Corp., 813 F.2d 760, 764 (6th Cir.1987); Combs v. Leishman, 691 F.Supp. 424, 429 (D.D.C.1988). At the time the Trustees argue Centric should have initiated arbitration, the delay giving rise to the laches defense had not yet occurred. Therefore, whether or not Centric’s civil action tolled the time for initiating arbitration, Centric did not lose its right to claim that the Trustees were guilty of laches. B. The Trustees’ Claim Was Barred By Laches The defense of laches is available in a suit to collect a claim for withdrawal liability. See ILGWU Nat’l Retirement Fund v. Levy Bros. Frocks, Inc., 846 F.2d 879, 887 (2d Cir.1988); Central States Pension Fund v. Lloyd L. Sztanyo Trust, 693 F.Supp. 531, 541 (E.D.Mich.1988); Jaspan v. Certified Indus., Inc., 645 F.Supp. 998, 1007 (E.D.N.Y.1985); cf. Trustees of Wyo. Laborers Health & Welfare Plan v. Morgen & Oswood Constr. Co., 850 F.2d 613, 624 (10th Cir.1988); Trustees of Colo. Statewide Iron Workers Fund v. A & P Steel, Inc., 812 F.2d 1518, 1528 (10th Cir.1987) (both considering a laches defense to a claim under ERISA for delinquent contributions to pension funds). But see Robbins v. Pepsi-Cola Metro. Bottling Co., 636 F.Supp. 641, 681 n. 6 (N.D.Ill.1986); Combs v. Western Coal Corp., 611 F.Supp. 917, 920 (D.D.C.1985). The defense is available whether or not the amount assessed has become “due and owing.” See Jaspan v. Certified Indus., Inc., 645 F.Supp. at 1005. Laches is just as applicable to a delay in re initiating litigation as it is to a delay in initiating litigation. See Restatement (Second) of Judgments § 20 comment" } ]

[ { "docid": "23310565", "title": "", "text": "the ADA, an aggrieved employee must show that he or she (1) is disabled within the meaning of the ADA, (2) is qualified (with or without reasonable accommodation) to perform the essential functions of the job at issue, and (3) has suffered an adverse employment decision because of the disability. See Treanor v. MCI Telecommunications Corp., 200 F.3d 570, 574 (8th Cir.2000). The determination of qualification involves a two-fold inquiry: (1) whether the individual meets the necessary prerequisites for the job, such as education, experience, training, and the like; and (2) whether the individual can perform the essential job functions, with or without reasonable accommodation. See Benson v. Northwest Airlines, Inc., 62 F.3d 1108, 1111-12 (8th Cir.1995) (Benson). Although the employee at all times retains the burden of persuading the trier of fact that he or she has been the victim of illegal disability discrimination, “once the plaintiff makes ‘a facial showing that reasonable accommodation is possible,’ the burden of production shifts to the employer to show that it is unable to accommodate the employee.” Id. at 1112 (quoting Mason v. Frank, 32 F.3d 315, 318-19 (8th Cir.1994)). Qualified Individual with a Disability / Reassignment as Reasonable Accommodation: We have carefully reviewed the record in the present case and the parties’ arguments on appeal. It is undisputed that Cravens is disabled within the meaning of the ADA and that, absent reasonable accommodation, she was unable to perform the essential functions of her position as Senior Operations Specialist. It is also undisputed that BCBS could not have rea sonably accommodated her within that position so as to enable her to do her job despite her blanket “no keying” restriction. Instead, the only reasonable accommodation that would have allowed Cravens to continue working for BCBS was reassignment to another position within the company. As stated supra, 42 U.S.C. § 12111(8) defines a “qualified individual with a disability” as “an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” BCBS initially argues that Cravens does not fall" } ]

[ { "docid": "8767476", "title": "", "text": "required by law, and that “ ‘[discouraging discretionary accommodations would undermine Congress’ stated purpose of eradicating discrimination against disabled persons.’ ” Id. (quoting Myers, 50 F.3d at 284). The court held that the employers’ provision of a certain accommodation to one disabled employee did not automatically entitle the plaintiff to the same accommodation. Id. Since there were no vacancies at the time plaintiff sought another position, Honda did not violate the ADA’s accommodation requirements by failing to place plaintiff in another job. 2. Job Coach as Reasonable Accommodation Plaintiff contends that he could have performed other positions at Honda with the assistance of a job coach. Plaintiff bears the initial burden of establishing that this accommodation is reasonable. Walsh v. United Parcel Service, 201 F.3d 718, 725 (6th Cir.2000). Honda argues that a job coach would not have been a reasonable accommodation in this case because there is no evidence that plaintiff would only have required the job coach on a temporary basis. Dr. Mysiw indicated on the work capacity form that he did not know how long the restriction of supervision, including a job coach, would be in place. Although the use of a temporary job coach to assist in the training of a qualified disabled individual can be a reasonable accommodation, a full-time job coach providing more than training is not a reasonable accommodation. Equal Employment Opportunity Comm’n v. Dollar General Corp., 252 F.Supp.2d 277, 291-92 (M.D.N.C.2003) (for job coach to be reasonable accommodation, plaintiff had to show that plaintiff performed essential functions of job independently with verbal prompting or a bare minimum of physical prompting needed to demonstrate proper technique; job coach must not be called upon to perform essential functions of job held by disabled employee); 29 C.F.R. pt. 1630, App. at § 1630.9. Honda was not required under the ADA to provide a permanent job coach to supervise plaintiffs activities. See Equal Employment Opportunity Comm’n v. Hertz Corp., No. 96-72421 (unreported), 1998 WL 5694 (E.D.Mich.1998) (employer had no duty under ADA to provide job coach); Ricks v. Xerox Corp., 877 F.Supp. 1468 (D.Kan.1995) (employee’s request" }, { "docid": "3958155", "title": "", "text": "of the final examination, as well as the classroom environment training. Unable to identify any other available positions for which Malabarba was qualified, the Tribune terminated his employment. Malabarba now claims that his placement in the CSR II position was not a “reasonable accommodation” because he did not possess the requisite typing and computer skills. We disagree. Even if this were true, it is nevertheless irrelevant, as Mala-barba’s failure to pass the CSR training program arose out of his lack of comprehension of the course materials, not his poor typing or computer skills. Malabarba claims that there were jobs other than the CSR II position to which the Tribune could have assigned him, jobs that were within his physical limitations. His proposed alternatives include working as a control room operator, a material handler driving a fork-lift, or a packager on an inserting machine with an automatic lift. In our view, these suggested accommodations are unreasonable; each one would have saddled the Tribune with a duty that is not compelled by the ADA. As for the control room operator position, Malabarba readily admits that the job “has a higher grade position than a packager.” But, as noted above, an employer is not obligated to accommodate a disabled employee by promoting him or her to a higher level position. See Shiring, 90 F.3d at 832. While Congress enacted the ADA to establish a “level playing field” for our nation’s disabled workers, see Schmidt, 89 F.3d at 344, it did not do so in the name of discriminating against persons free from disability. Restated, the ADA does not mandate a policy of “affirmative action in favor of individuals with disabilities, in the sense of requiring that disabled person be given priority in hiring or reassignment over those who are not disabled.” Daugherty v. City of El Paso, 56 F.3d 695, 700 (5th Cir.1995). Malabarba seeks just such preferential treatment to which the ADA does not entitle him. Malabárba’s argument with respect to the material handler position runs into a similar roadblock. We have already held that his physical limitations and, in turn, his" }, { "docid": "4349692", "title": "", "text": "certain function of the job is nonessential or that he or she can do the job with a reasonable accommodation. Monette, 90 F.3d at 1182; see also Hile v. Pepsi-Cola General Bottlers, Inc., 108 F.3d 1377, 1997 WL 112404, at *4 (6th Cir.1997) (unpublished). The dispute in the matter at hand is primarily centered on the first of these two categories. Plaintiff has not requested a specific reasonable accommodation nor challenged a job function as nonessential; he mainly argues that he was qualified for other vacant positions with Defendant. From October 1997 through Plaintiffs termination in November 1997, when Plaintiff wanted to come back to work and when the alleged discrimination took place, Defendant asserts that it did not have any vacant positions for which Plaintiff was qualified. Plaintiff asked for reinstatement to his former temporary position of installation clerk. The Court is mindful of Plaintiffs desire and efforts to return to work and respects Plaintiffs past efforts to do so, although those efforts were unsuccessful because of Plaintiffs physical condition. An employer, however, is not required by law to create a new job or displace other employees in order to accommodate a disabled employee. Cassidy, 138 F.3d at 634. Plaintiff neither offered an objectively reasonable accommodation nor challenged a specific job criterion as essential to any of the positions that Defendant had available. Thus, the burden remains on Plaintiff to demonstrate that he was in fact qualified for a job, but was discriminated against because of his disability. Plaintiff admitted that he was not qualified for his original job of receiving clerk because of his lifting and carrying restrictions. (McQuain Dep. at 81.) The second position of quality control inspector no longer existed. (Weigand Dep. at 111.) The third position of temporary installation clerk was no longer available either. (Weigand Dep. at 110-11.) According to Mr. Weigand’s affidavit (“[A]n affidavit that I, I guess I participated in.... That was signed by me.” (Wei-gand Dep. at 116.)), in October or November 1997 there were eight positions available at Ebner: receptionist, administrative assistant, two CAD designer positions, buyer, cost accountant, security" }, { "docid": "10117234", "title": "", "text": "position is a required accommodation only if there is a vacant position available for which the employee is otherwise qualified.” Aso, the regulations contemplate that the issue of whether an employee is an otherwise qualified individual and whether a reasonable ac commodation can be made for that employee is determined by reference to a specific position. See 29 C.F.R. § 1630.2(m) (“Qualified individual with a disability means an individual with a disability who satisfies the requisite skill, experience, education and other job-related requirements of the employment position such individual holds or desires, and who, with or without reasonable accommodation, can perform the essential functions of such position.”) (emphasis added). We need not decide whether, and under what circumstances, the ADA requires reassignment to a substantially different position as a reasonable accommodation; nor do we need to decide whether “otherwise qualified individual” is defined as broadly as Plaintiff says it is. It is clear in this case that transferring Plaintiff would not have been a reasonable accommodation. We are aware of no case under either the ADA or the Rehabilitation Act where an employer has been required to transfer an employee to another position where the employer (independent of concerns about disability) has a business policy against the pertinent kind of transfer. That Defendant has a policy against “rolling back” salaried employees into production positions within the bargaining unit is undisputed. It is also undisputed that the only salaried jobs available on the date of Plaintiffs termination were both supervisory positions. As Plaintiff notes, Defendant, at times, would promote employees from production positions to salaried positions, but then allow the employee to return to his previous job in the bargaining unit when things did not work out as planned. In the few instances where this event has occurred, however, the employee was rolled back into the bargaining unit within a matter of months after the initial promotion to a salaried position: basically, an employment experiment that failed. Plaintiff, on the other hand, was employed as a supervisor for almost all of his 18 years with Defendant. Also, the evidence indicates that" }, { "docid": "1907870", "title": "", "text": "a reasonable accommodation because it would “require the elimination of essential functions of the job”). The reasoning of these cases is equally persuasive here. The accommodation the Plaintiff suggests would require the Defendant to assign several physical duties that she would otherwise be expected to perform herself on a regular basis to other members of the medical team, and would thus require the elimination of essential functions of her job. Further, such an accommodation would potentially jeopardize the welfare and safety of the Defen dant’s patients in emergency situations, which customarily occur in hospital settings. Therefore, it does not qualify as a reasonable accommodation. 2. Provision of Medical Treatment as a Reasonable Accommodation The Plaintiff also argues that the Defendant was required to provide her with medical treatment as a reasonable accommodation, along with sufficient time to heal following the treatment. The Defendant, on the other hand, asserts that the provision of medical treatment by an employer is not a reasonable accommodation under the ADA. The ADA defines “reasonable accommodation” as including “job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.” 42 U.S.C. § 12111(9)(B); see also Lovejoy-Wilson v. NOCO Motor Fuel, Inc., 263 F.3d 208, 217 (2d Cir.2001). Regulations promulgated by the EEOC under the ADA further define accommodations as (i) Modifications or adjustments to the job application process that enable a qualified applicant with a disability to be considered for the position such qualified applicant desires; or (ii) Modifications or adjustments to the work environment, or to the manner or circumstances under which the position held or desired is customarily performed, that enable a qualified individual with a disability to perform the essential functions of that position; or (iii) Modifications or adjustments that enable a covered entity’s employee with a disability to enjoy equal benefits and privileges of employment as are enjoyed by its other similarly situated employees without disabilities. 29 C.F.R. §" }, { "docid": "15265267", "title": "", "text": "Plaintiffs doctor concluded that due to Plaintiff’s visual and balance problems the Plaintiff could not safely perform the essential functions of his 245 rotary die cutter position, nor could he work around any machinery, with or without reasonable accommodation. Thus, Plaintiff was not “qualified” for that position. In general, only if an individual cannot perform his current position with a reasonable accommodation does an employer have to consider reassignment to a vacant position for which the individual is qualified. 29 C.F.R. pt. 1630, App. § 1630.2(o) (1994). An employer is not required to reassign a disabled person to a vacant position unless the disabled employee is qualified for that position. Howell v. Michelin Tire Corp., 860 F.Supp. 1488, 1492 (M.D.Ala.1994). A disabled person is qualified for a vacant position if he can perform the “essential functions” of the position, with or without reasonable accommodation. Id. It is important to note that the ADA does not require an employer to promote the disabled employee, bump another employee from his position or create a new position for the disabled employee. 29 C.F.R. pt. 1630, App. § 1630.2(o); White v. York International Corp., 45 F.3d 357, 362 (10th Cir.1995). The Defendant has produced undisputed evidence of its efforts to consider reasonable accommodations, such as discussing with the Plaintiff, the plant superintendent, and the production manager what positions they believed Plaintiff could perform; preparing for the Plaintiff’s physicians’s consideration written job descriptions and videotapes of the positions Plaintiff believed he might be able to perform; contacting the Job Accommodation Network, a national resource providing information to employers about possible accommodations; and contacting the ADA Helpline, another resource for employers and persons with disabilities. After engaging in substantial discussions, evaluating alternative positions, and relying on the medical opinion expressed by Plaintiffs chosen physician, the Defendant concluded that there were no available positions for which the Plaintiff was qualified and which he could safely perform. Plaintiff conceded that he was unwilling to take any position unless his physician cleared him to perform it, and that he and Mrs. Barta agreed that since all jobs in the" }, { "docid": "4298282", "title": "", "text": "it is reasonable. Monette, 90 F.3d at 1183. Furthermore, the plaintiff has the burden of proving that he will be “capable of performing the essential functions of the job with the proposed accommodation.” Id. at 1184. Reasonable accommodations may include making existing facilities used by employees readily accessible to and usable by individuals with disabilities, job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities. 42 U.S.C. § 12111(9). The accommodations that Jakubowski proposed were for “knowledge and understanding” of the hospital physicians and staff. He argued that he would be capable of communicating with them effectively if they knew of his condition and its symptoms and triggers. However, he did not address how this accommodation would improve his communication and interaction with patients, which are parts of the essential function of a family practice resident. Instead, he explained that he would work individually to improve his clinical skills with patients without going into detail as to how he would accomplish this feat. A physician must be able to talk to patients, discern their ailments, and describe treatments to them. Jakubowski’s performance evaluations often rated his abilities to communicate with patients and gather information from them as deficient. Because the accommodations' — that Jakubowski had the burden to propose — do not address a key obstacle preventing him from performing a necessary function of a medical resident, he has not met his burden under the Act of proving he is an otherwise qualified individual for the position. See Monette, 90 F.3d at 1184. D. The Interactive Accommodation Process “To determine the appropriate reasonable accommodation it may be necessary for the [employer] to initiate an informal, interactive process with the [employee].” 29 C.F.R. § 1630.2(o )(3) (2010). “This process should identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations.” Id. Both parties must participate in this process and do" }, { "docid": "16281803", "title": "", "text": "without a job coach. Consistent with the Hertz court’s analysis of the EEOC Interpretive Guideline, it would appear that the accommodation would be considered reasonable only for as long as necessary to train Ms. Bost to perform her job duties independently and would be unreasonable if she required a job coach on a permanent or indefinite basis. At this point, the Court is faced with one final hurdle in assessing the reasonableness of Ms. Bost’s accommodation. Defendants assert that “the job coach in this instance went far beyond ‘coaching’ and, in fact, performed Ms. Bost’s limited job responsibilities.” (Br. in Supp. of Defs.’ Mot. for Summ. J. at 16.) In response, Plaintiff cites to testimony of Ms. Bost’s job coach in which the coach describes her role of organizing Ms. Bost’s work area, prompting Ms. Bost and, when Ms. Bost could not do an assigned task independently, “helping] her do it independently.” (Onuoha Dep. at 19, 26-27, 30-31.) Plaintiff also points to testimony of Store Manager Von Cannon, who never personally saw the job coach perform any job tasks for Ms. Bost except for one occasion, when Ms. Bost was folding clothes, the job coach “was talking to [Ms. Bost] and she helped [Ms. Bost] fold some of the clothes.” (Von Cannon Dep. at 117.) Based upon the facts of this case, the Court has already found that Ms. Bost was hired for a position that did not require she perform all the “essential functions” that Dollar General claims were inherent in the “clerk” position. Nevertheless, in order for Ms. Bost’s job coach accommodation to have been reasonable, it is still quite necessary that Plaintiff show Ms. Bost performed those functions for which she was hired independently, or with “verbal prompting” and only the bare minimum of “physical prompting” needed to demonstrate proper technique. See e.g. Martinson, 104 F.3d at 687 (“The ADA simply does not require an employer to hire an additional person to perform an essential function of a disabled employee’s position.”). The EEOC’s own internal compliance manual of “Procedures for Providing Reasonable Accommodation for Individuals with Disabilities”" }, { "docid": "21029692", "title": "", "text": "establish this prong of the “danger to self’ defense. However, the employer must also show that there were no “available reasonable means of accommodation which would, without undue hardship to [the employer], have allowed complainant to perform the essential job functions ... without danger to himself.” Harbor Tug, 1992 WL 223888 at *14. As noted supra, “reasonable accommodation” includes: Job restructuring, reassignment or transfer, part-time or modified work schedules, acquisition or modification of equipment or devices, the provision of readers or interpreters, and other similar actions. Cal-Code Regs. tit. 2, § 7293.9(a)(2). Within the reasonableness and undue hardship limits, the regulations “contemplate not only that employers remove obstacles that are in the way of the progress of the disabled, but that they actively restructure their way of doing business in order to accommodate the needs of their disabled employees.” Sargent v. Litton Systems, Inc., 841 F.Supp. 956, 961 (N.D.Cal.1994). The evidence is mixed on this issue. As already discussed, the CBA establishes a bidding process for employees who wish to change job positions. After placing Jimeno on medical leave, Mobil did offer vocational rehabilitation training as part of its assumed responsibilities under workers’ compensation provisions. Mobil’s response to the complaint before the Department of Fair Employment and Housing asserts that Mobil performed a second job analysis on another position, but concluded that the job required the same weight lifting and bending activities as his mechanic position. On the other hand, Mobil did not respond to Jimeno’s letter requesting consideration for a supervisory position, even though the evidence suggests that Mobil had initiated an evaluation process for that purpose before Jimeno’s back pain episode. Also, Mobil’s Long Term Disability Plan suggests an unexplored possibility of providing other work to employees in some situations, because it indicates that “[f]or the first 24 months, disability means complete inability to perform the duties of employee’s regularly assigned work with Mobil Oil or work with Mobil which entitles employee to comparable pay.” (emphasis added). Note that the seniority preservation provisions of the CBA apply when an “incapacitated” employee has been transferred or temporarily assigned to" }, { "docid": "4349711", "title": "", "text": "term \"reasonable accommodation” may include— (A) making existing facilities used by employees readily accessible to and usable by individuals with disabilities; and (B) job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities. The term \"undue hardship” is defined as \"an action requiring significant difficulty or expense” when considered in light of the factors codified at 42 U.S.C. § 12111(10)(B). . Plaintiff does not assert that there was a position available in the quality control department, a job for which he was arguably qualified. Even if he argued that he was qualified for the quality control job he held in 1994, his claim would fail. Employers are under no duty to keep employees on unpaid leave indefinitely until a position for which they are qualified opens up, nor are they required to accommodate the employee by leaving a position open or filling it temporarily. Monette, 90 F.3d at 1187. While employers may be required to transfer a disabled employee to an acceptable position, that position must be vacant. Id. . Plaintiff contends that \"Ebner admits that McQuain was qualified for clerical and receptionist positions, but has not provided this court with any evidence that placing McQuain in these positions would have been an undue hardship.” Nowhere in the record does Defendant admit that Plaintiff was qualified for these positions; instead, Defendant argues the opposite. As noted above, the burden is on Plaintiff to show he is qualified for a vacant position, or propose a specific accommodation, or challenge as expendable a particular function of a vacant position. Plaintiff has failed to meet his burden. The burden would shift to Defendant to show that a proposed accommodation is an undue hardship or that a job criterion is necessary only when and if Plaintiff proposed a specific reasonable accommodation or challenged a particular job requirement as unessential. See Monette, 90 F.3d at 1184. -. While an interim version" }, { "docid": "3092560", "title": "", "text": "should have been reassigned to the router position as a reasonable accommodation for her disability. Wal-Mart filed a motion for summary judgment, contending it had a legitimate non-discriminatory policy of hiring the most qualified applicant for all job vacancies and was not required to reassign Huber to the router position. Huber filed a cross-motion for summary judgment, and the district court granted Huber’s motion. Wal-Mart appeals. II. DISCUSSION We review de novo the district court’s grant of summary judgment. Fenney v. Dakota, Minn. & E.R.R. Co., 327 F.3d 707, 711 (8th Cir.2003). Summary judgment is appropriate when the evidence and reasonable inferences, viewed in the light most favorable to the non-moving party, show no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Id. To make a prima facie case in a reasonable accommodation claim under the ADA, the plaintiff must show she (1) has a disability within the meaning of the ADA, (2) is a qualified individual, and (3) suffered an adverse employment action as a result of the disability. Id. To be a qualified individual within the meaning of the ADA, an employee must (1) possess the requisite skill, education, experience, and training for her position; and (2) be able to perform the essential job functions, with or without a reasonable accommodation. Id. at 712. Here, the parties do not dispute Huber (1) has a disability under the ADA, (2) suffered an adverse employment action, or (3) possessed the requisite skills for the router position. The parties’ only dispute is whether the ADA requires an employer, as a reasonable accommodation, to give a current disabled employee preference in filling a vacant position when the employee is able to perform the job duties, but is not the most qualified candidate. The ADA states the scope of reasonable accommodation may include: [J]ob restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar" }, { "docid": "22322659", "title": "", "text": "allowed to work out of his own home. He asserts that because Ameritech provided this type of accommodation to an employee from Indiana who was disabled by multiple sclerosis, it would be reasonable for defendants to provide him with the same accommodation. We agree with the District Court’s conclusion that plaintiff has failed to raise a genu ine issue of fact as-to whether he was an otherwise qualified individual with a disability. The only accommodation plaintiff proposed to allow him to perform the essential functions of his job was reassignment to a position permitting him to work from his home. In essence, plaintiff has requested two accommodations; transferral to a new position, and .permission to work at home. Plaintiff has failed to show that either of these accommodations were objectively reasonable in this case. In some cases, reasonable accommodation under the ADA may include “job restructuring” or “reassignment to a vacant position.” 42 U.S.C. § 12111(9)(b); see also 29 C.F.R. § 1630.2(o)(2)(ii). Plaintiff, however, has failed to show that any positions that would accommodate his disabilities were vacant while defendants tried to find a new job for him through their Medical Priority Placement program. The ADA does not require employers to create a new position for a disabled employee who can no longer perform the essential functions of his job. In School Bd. of Nassau County v. Arline, 480 U.S. 273, 107 S.Ct. 1123, 94 L.Ed.2d 307 (1987), the Court interpreted the Federal Rehabilitation Act’s requirements and stated that “[although [employers] are not required to find another job for an employee who is not qualified for the job he or she was doing, they cannot deny an employee alternative employment opportunities reasonably available under the employer’s existing policies.” Id. at 289 n. 19, 107 S.Ct. at 1131 n. 19. Similarly, the ADA does not require an employer to reassign an employee to a position that is not vacant. White v. York Int’l Corp., 45 F.3d 357, 362 (10th Cir.1995) (holding that “the ADA does not require an employer to promote a disabled employee as an accommodation, nor must an employer" }, { "docid": "22376999", "title": "", "text": "job training, and other terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a). In order to establish a prima facie case of discrimination under the ADA, the plaintiff must show that: (1) he is disabled; (2) he was a “qualified individual” at the relevant time, meaning he could perform the essential functions of the job in question with or without reasonable accommodations; and (3) he was discriminated against because of his disability. See Reed v. Heil Co., 206 F.3d 1055, 1061 (11th Cir.2000). An employer unlawfully discriminates against a qualified individual with a disability when the employer fails to provide “reasonable accommodations” for the disability — unless doing so would impose undue hardship on the employer. 42 U.S.C. § 12112(b)(5)(A); 29 C.F.R. § 1630.9(a). An accommodation can qualify as “reasonable,” and thus be required by the ADA, only if it enables the employee to perform the essential functions of the job. See LaChance v. Duffy’s Draft House, Inc., 146 F.3d 832, 835 (11th Cir.1998). The plaintiff bears the burden of identifying an accommodation, and of dem onstrating that the accommodation allows him to perform the job’s essential functions. See Stewart v. Happy Herman’s Cheshire Bridge, Inc., 117 F.3d 1278, 1286 (11th Cir.1997); Willis v. Conopco, Inc., 108 F.3d 282, 283 (11th Cir.1997). The ADA lists as examples of reasonable accommodations “job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, ... and other similar accommodations for individuals with disabilities.” 42 U.S.C. § 12111(9)(B); see 29 C.F.R. § 1630.2(o)(2)(ii). As the list indicates, the ADA may require the employer to “reassign,” i.e., transfer, the disabled employee to a vacant position as a reasonable accommodation. The reassignment duty, however, does not require the employer to bump another employee from a position in order to accommodate a disabled employee. See Willis, 108 F.3d at 284. Nor does it require the employer to promote a disabled employee. See EEOC v. Humiston-Keeling, Inc., 227 F.3d 1024, 1029 (7th Cir.2000); Cravens v. Blue Cross & Blue Shield, 214 F.3d 1011, 1019 (8th Cir.2000); Cassidy v. Detroit" }, { "docid": "2743464", "title": "", "text": "delineated the scope of an employer’s obligation to reassign a disabled employee to a vacant position. In Gile v. United Airlines, Inc., 95 F.3d 492, 498 (7th Cir.1996), this Court held that the ADA requires reassignment to a vacant position where the employee is no longer able to perform the essential functions of her employment and is qualified for the vacant position. In Gile we limited the employer’s duty to reassign a disabled employee, however, noting among other things that an employer need not bump another employee in order to create a vacancy. Id. at 499 (citing White v. York Int’l Corp., 45 F.3d 357, 362 (10th Cir.1995)). Pond correctly observes that the statement in Gile that the ADA does not require an employer to bump an employee from an occupied position is dicta because the plaintiff in Gile did not ask for such an accommodation. Nevertheless, our examination of the ADA’s text and legislative history confirms that the ADA does not require an employer to bump an employee from an occupied position in order to accommodate a disabled employee. In Eckles v. Consolidated Rail Corp., 94 F.3d 1041 (7th Cir.1996), we addressed whether the ADA allowed an employee-to bump a more senior employee as a reasonable accommodation. To answer this question, we looked first to the text of the statute to determine the scope of the ADA’s reasonable accommodation require ment. We noted that the ADA defines “reasonable accommodation” as follows: (A) making existing facilities used by employees readily accessible to and usable by individuals with disabilities; and (B) job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities. 42 U.S.C. § 12111(9). We observed in Eckles that “the suggestion that reassignment be to a vacant position suggests that Congress did not intend that other employees lose their positions in order to accommodate a disabled coworker.” Eckles, 94 F.3d at 1047. We then looked to" }, { "docid": "18066285", "title": "", "text": "Inc., 105 F.3d 12, 14-15 (1st Cir.1997), it is important to consider the congressional objectives when analyzing the ADA: In an effort to eliminate discrimination against individuals with disabilities, the statute prohibits employers from discriminating against a “qualified individual with a disability because of the disability.” 42 U.S.C. § 12112(a). The antidiscrimination obligation is unusual in the context of federal civil rights statutes. It imposes not only a prohibition against discrimination, by also, in appropriate circumstances, a positive obligation to make reasonable accommodations. Absent a disability, however, no obligations are triggered for the employer. The definition of disability is the same under the ADA and the Rehabilitation Act. Therefore, plaintiffs claim under the ADA also fails for the reasons discussed above with respect to thé Rehabilitation Act. She has neither a disability which substantially limits her ability to perform a major life activity nor was she regarded as having such a disability. In a similar case where the plaintiff claimed his impairment restricted his ability to work at unduly stressful jobs, the Court said [Plaintiff] is not significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills, and abilities. An employee who fails to establish such inability is not disabled under the Act. Gaul v. AT & T, Inc., 955 F.Supp. 346, 351 (D.N.J.1997). For these reasons, defendants’ motion for summary judgment on Count II is also granted. c. The Family and Medical Leave Act Plaintiffs third claim is that her termination while she was on medical leave violated the, FMLA. The FMLA entitles an eligible employee up to twelve weeks leave from work when she has a serious health condition that makes her unable to perform the essential functions of her position. Price v. Marathon Cheese Corp., 119 F.3d 330, 333 (5th Cir.1997). The FMLA also provides that upon return from leave, an employee shall be restored to the position of employment held when the leave commenced or to an equivalent position. Id. It is this provision that" }, { "docid": "4349693", "title": "", "text": "not required by law to create a new job or displace other employees in order to accommodate a disabled employee. Cassidy, 138 F.3d at 634. Plaintiff neither offered an objectively reasonable accommodation nor challenged a specific job criterion as essential to any of the positions that Defendant had available. Thus, the burden remains on Plaintiff to demonstrate that he was in fact qualified for a job, but was discriminated against because of his disability. Plaintiff admitted that he was not qualified for his original job of receiving clerk because of his lifting and carrying restrictions. (McQuain Dep. at 81.) The second position of quality control inspector no longer existed. (Weigand Dep. at 111.) The third position of temporary installation clerk was no longer available either. (Weigand Dep. at 110-11.) According to Mr. Weigand’s affidavit (“[A]n affidavit that I, I guess I participated in.... That was signed by me.” (Wei-gand Dep. at 116.)), in October or November 1997 there were eight positions available at Ebner: receptionist, administrative assistant, two CAD designer positions, buyer, cost accountant, security guard, and technical service representative. Plaintiff was not considered qualified for any of these positions. The receptionist and administrative assistant positions required typing abilities of 40-50 words per minute. The two CAD designer positions required a two-year technical degree, or related experience, and experience with 3D CAD software. The technical service representative required fluency in Spanish. The cost accountant position required a four-year degree in an accounting related field or extensive experience. The buyer position required a two-year degree and related experience. The security guard position required physical requirements beyond Plaintiffs limitations. Plaintiff argues that Defendant must establish that reinstating Plaintiff to his prior position of installation clerk is an undue hardship. However, an employer must prove undue hardship only when the employer claims that the employee’s proposed accommodation will impose an undue hardship. Defendant is not asserting that a proposed accommodation will impose an undue hardship. Rather, Defendant asserts that the temporary installa tion clerk position was eliminated. As noted above, an employer is neither required to create a job anew, nor move another" }, { "docid": "10859617", "title": "", "text": "Meijer and plaintiff agree that plaintiffs injury and seizure disorder do not affect his job performance. Under these facts, plaintiff is an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of his position. Therefore, he is a “qualified individual with a disability”, unless he rejected a reasonable accommodation. 29 C.F.R. § 1630.9(d). An employer must provide reasonable ac-eommodations “that reduce barriers to employment related to a person’s disability.” EEOC Technical Assistance Manual on Title I, Chapter III, 3.4 (1992), reprinted in BNA’s Americans with Disabilities Act Manual (1994) (“the EEOC Manual”). “[A]n accommodation is any change in the work environment or in the way things are customarily done that enables an individual with a disability to enjoy equal employment opportunities.” 29 C.F.R. § 1630.2(o) (app.). “Reasonable accommodation” may include modifying the employee’s work schedule. 42 U.S.C. § 12111(9)(B). Thus, under the ADA, “[pjersons with impairments which [make] them dependent upon public transportation could be accommodated by having schedules which allow them to use that system.” 3A Arthur Larson & Lex K. Larson, Employment Discrimination § 108A.42(a) (1995) (citing S.Rep. No. 116,101st Cong., 1st Sess., at 31 (1989)); see also EEOC Manual at 3.10(3). An employer also may reassign the employee to a vacant position to accommodate the disability. 42 U.S.C. § 12111(9)(B). However, “[i]n general, reassignment should be considered only when accommodation within the individual’s current position would pose an undue hardship.” 29 C.F.R. § 1630.2(o) (app.); see also EEOC Manual at 3.10(5). The employer need only reassign the employee to a vacant position or one that will be vacant in a reasonable amount of time. Id. Further, the employer may reassign the employee to a lower graded and paid position if it is not possible to accommodate the employee in the current position and if no comparable positions are vacant or soon to be vacant. Id. The employer need not create a new job, bump another employee, or promote the disabled employee in order to make a reassignment. Id. An employer is not required to make an accommodation which would violate another" }, { "docid": "23218897", "title": "", "text": "jobs the plaintiff might do: To determine if a person with a disability is “otherwise qualified” for employment, we look to whether or not a reasonable accommodation would enable the person to perform the job. There are two components to the reasonable accommodation analysis. First, whether a reasonable accommodation would enable the employee to do the particular job. Additional training might be a reasonable accommodation for this purpose. Second, whether the employee could be transferred to other work which could be done with or without accommodation. Gonzagowski v. Widnall, 115 F.3d 744, 747 (10th Cir.1997) (citing White, 45 F.3d at 360). Thus, the relevant inquiry in determining whether an employee is “qualified” under the amended Act for purposes of a motion for summary judgment is whether the employee has provided evidence that she can be reasonably accommodated — which includes reasonable reassignment — sufficient to require submission to a jury. The USPS asserts that since Ms. Woodman was hired as a distribution clerk, and since it is undisputed she can no longer perform the “essential functions” of a distribution clerk’s job, she is not “qualified” for the “position in question” and is therefore not entitled to accommodation by the USPS. In light of the foregoing analysis, the USPS’s claim depends entirely upon whether it had a duty to attempt to reassign Ms. Woodman either because the 1992 amendments are applicable to this case, or because USPS had an existing policy of reassigning disabled workers, the question to which we now turn. B. The USPS contends the 1992 amendments do not apply here because all the instances of discrimination alleged by Ms. Woodman occurred prior to the October 29, 1992, effective date. We disagree. The central issue in this case is whether the USPS discriminated against Ms. Woodman by assigning her in November 1992 (one month after the effective date of the amendment) to a position she contends is not consistent with her medical restrictions and by failing to assign her to a permanent position that does meet her capabilities. Ms. Woodman is currently requesting only injunctive relief in the form" }, { "docid": "9587610", "title": "", "text": "reassigned to the Placement Unit in the Client Services Division in September 1993, he found that the process of conducting placements had changed. These changes, among other things, required plaintiff to complete significantly more paperwork than was required during his original assignment at the Placement Unit. 5/11/98 Tr. 102. Due to his disability and the increased reliance on paperwork, plaintiff felt that he was unable to accomplish his assignments without certain accommodations. As such, soon after his reassignment to the Placement Unit, plaintiff asked for clerical assistance, a Dictaphone, a computer, and training in the use of that computer. Plaintiffs supervisor, Melody Johnson, initially told plaintiff that, apart from the dictaphone, he was asking for too much, and that he would have to wait until the National Rehabilitation Hospital (“NRH”) evaluated his job and his need for accommodation. Approximately one month after plaintiffs request for accommodations, in November 1993, the NRH spent nearly eight hours conducting an evaluation of plaintiff. This evaluation involved interviews with both plaintiff and his supervisor, as well as time spent “shadowing” plaintiff while he was at work in order to assess his duties. The NRH issued a report and recommended that DHS provide certain accommodations to plaintiff. Defendants assigned clerical help to plaintiff beginning in March 1994, four months after the NRH report and recommendation. Additionally, plaintiff received computer training in early 1994. However, plaintiff was unable to use this training, for he did not receive a computer with the proper software until December 1994, over one year after his request. Plaintiff also requested that a reader/writer service assist him while learning to use the computer, a service which did not become available until March 1995. The Rehabilitation Act of 1973 prohibits discrimination on the basis of disability against federal employees and employees of recipients of federal funds. 29 U.S.C. § 701, et seq. (1994). Similarly, the ADA prohibits discrimination against a qualified individual because of the individual’s disability in regard to application procedures, advancement, job training and other terms and conditions of employment. 42 U.S.C. § 12112(a) (1994). The ADA also defines discrimination to" }, { "docid": "16851261", "title": "", "text": "those functions. White, 45 F.3d at 361-62 (quoting Chandler v. City of Dallas, 2 F.3d 1385, 1393-94 (5th Cir.1993)). Although Aldrich concedes that he was unable to perform the essential functions of his job, he insists he would have been able to do so with reasonable accommodation. Aid-rich brings in support a report prepared by a certified professional ergonomist which concludes that modifications to his work environment and/or ergonomic training would have allowed him to perform the essential functions of his original job. The report also states that Boeing could have accommodated Aldrich by transferring him to one of several positions within his skill and grade level. Viewing the factual record in the light most favorable to the plaintiff, we see a genuine issue of material fact concerning whether work modifications and/or ergonomic training were reasonable accommodations that would have permitted plaintiff to return to his original job as an assembly worker. We also find evidentiary support for plaintiffs argument that there existed two other positions to which he could have been reassigned as a reasonable accommodation. We consider Boeing’s statements that employees with permanent medical restrictions were eligible to. be assigned to Factory Service Attendant A positions and several were placed in those positions in December 1992 and January 1993. See Appellee’s Supp.App. at 169-170. Additionally, according to Boeing records, a requisition for a Factory Clerk C position was initiated on November 18, 1992 and filled on February 1, 1993. Id. at 151, 159. Although the records indicate that this position may have been filled by an employee with Category A rights, they are inconclusive on this point because the individual who filled this position is unnamed. See id. Even if the position was filled by someone with Category A rights in February, that does not defeat plaintiffs claim that the Factory Clerk C position was available as an accommodation prior to February. Because Category A rights do not allow one employee to bump another, it is of no consequence that someone with such rights ultimately filled the position. Plaintiff may prevail so long as he was “disabled” prior" } ]

[ { "docid": "1184872", "title": "", "text": "Airman Remhild, called as a defense witness, denied smoking any marijuana with the accused on the day in question. According to him, when they were walking across the field, the accused had trouble lighting a cigarette due to the wind. Remhild lit one of his own and passed it to the accused. The cigarette was not referred to as “junior.” The government, in turn, called three witnesses who testified as to Remhild’s poor reputation for truthfulness. Both at trial and upon appeal the defense relied heavily upon our unpublished decision in United States v. Paulin, No. 22132 (un published) (A.F.C.M.R. 9 February 1977). The defense maintains that the government’s case consists solely of lay testimony identifying the aroma of a smoking cigarette and they assert that this Court, in Paulin, held that to be insufficient to support a conviction. We disagree both as to their assessment of the evidence and as to the conclusion they reach regarding the significance of the Paulin decision. In Paulin, supra, the Court, in weighing the evidence, determined that the identification of the substance smoked as marijuana, solely on the basis of two security policemen’s recognition of the aroma, was insufficient to convince the Court beyond a reasonable doubt of the accused’s guilt. Chief Judge LeTarte, the author judge, reaffirmed that a nonexpert witness may give his opinion as to the identity of a drug when his familiarity therewith has been established. United States v. Smith, 3 U.S.C.M.A. 803, 14 C.M.R. 221 (1954); United States v. Jackson, 49 C.M.R. 881 (A.F.C.M. R.1975), pet. denied, 50 C.M.R. 904 (1975); United States v. Richards, 47 C.M.R. 544 (A.F.C.M.R.1973); United States v. Quindana, 12 C.M.R. 790 (A.F.B.R.1953). He questioned, however, without deciding as a matter of law, whether a conviction can be based solely upon a layman’s recognition of the aroma of burning marijuana. This specific issue has not been resolved by any appellate military tribunal. The courts of New York and Ohio give support to the contention of appellate defense counsel. They refuse to rest a conviction solely on a young person’s belief that he can recognize" } ]

[ { "docid": "12102804", "title": "", "text": "walking by an open barracks window when he observed the appellant and a Private Thomas, who were inside the barracks. He noted that appellant “was lighting up a bowl,” which he described as “a metallic bowl, pipe like deal.” Upon entering the barracks, Sergeant Leedy told the barracks orderly to follow him and he proceeded toward appellant and Private Thomas. The barracks was an “open bay type” and Sergeant Leedy walked down the center corridor. When he “turned the corner” toward appellant, Private Thomas yelled, “Watch it.” Sergeant Leedy took the pipe from appellant and escorted both the appellant and Private Thomas to the orderly room. He explained that he seized the pipe because he believed it contained marihuana. He reached that conclusion because he knew the appellant did “not normally smoke a pipe,” and the pipe was the type used to smoke marihuana. Also, Sergeant Leedy stated that appellant had previously told him that he had “dealt” with controlled substances. We hold that the military judge properly overruled the defense objection. Sergeant Leedy could properly seize the pipe in question if he was lawfully in the area where the pipe was viewed and he had probable cause to believe the pipe contained contraband. United States v. Burnside, 15 U.S.C.M.A. 326, 35 C.M.R. 298 (1965); United States v. Britting, 7 M.J. 978 (A.F.C.M.R.1979). Accord, Mil.R.Evid. 316(d)(4)(C), Manual for Courts-Martial, United States, 1969 (Revised edition), ch. XXVII. See generally United States v. Hessler, 4 M.J. 303 (C.M.A.1978), opinion on reconsideration, 7 M.J. 9 (C.M.A.1979). Neither a warrant nor an authorization is required to seize items under the “plain view” doctrine. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968). Appellant submits on appeal, as he did at trial, that the viewing of the pipe did not establish the requisite probable cause. We disagree. Appellant asserts that his act of lighting the pipe did not reflect any criminal conduct because he could have been lighting a pipe of tobacco. No doubt the lighting" }, { "docid": "23518516", "title": "", "text": "identify illicit drugs. According to Harrell, a witness who testifies about controlled substances must swear to having used the drug on the occasion in question as well as to familiarity based on prior use or sale. The law of this circuit, however, takes a more expansive view. Identification of a controlled substance does not require direct evidence if available circumstantial evidence establishes its identity beyond a reasonable doubt. Such evidence can include lay experience based on familiarity through prior use, trading, or law enforcement; a high sales price; on-the-scene remarks by a conspirator identifying the substance as a drug; and behavior characteristic of sales and use such as testing, weighing, cutting and peculiar ingestion. United States v. Sanchez, 722 F.2d 1501, 1506 (11th Cir.1984); United States v. Crisp, 563 F.2d 1242, 1244 (5th Cir.1977); United States v. Quesada, 512 F.2d 1043, 1045 (5th Cir.), cert. denied, 423 U.S. 946, 96 S.Ct. 356, 46 L.Ed.2d 277 (1975). Identification based on past use coupled with present observation of the substance at hand will suffice to establish the illicit nature of a suspected substance. The testimony to which Harrell objects falls within these bounds. IV. SUFFICIENCY OF THE EVIDENCE Appellants Scire and Hawkins urge reversal on grounds of insufficiency of the evidence. On review, we must affirm if the evidence and the inferences it supports, viewed in the light most favorable to the government, would permit a reasonable trier of fact to establish guilt beyond a reasonable doubt. Such evidence need not exclude every reasonable hypothesis of innocence or be wholly inconsistent with every conclusion except that of guilt. United States v. Bell, 678 F.2d 547, 549 (5th Cir. Unit B 1982) (en banc), aff'd, 462 U.S. 356, 103 S.Ct. 2398, 76 L.Ed.2d 638 (1983). Applying this standard, we affirm as to Scire and reverse in part as to Hawkins. A. Tony Scire Scire was convicted under Counts One and Six, respectively, of conspiracy to possess with intent to distribute controlled substances and possession with intent to distribute cocaine. At trial he was the sole defendant to take the stand. Scire portrayed himself" }, { "docid": "23587763", "title": "", "text": "Hall’s accusations to the military police. This Court specified the following issue for review: WHETHER THE MILITARY JUDGE ERRED TO THE SUBSTANTIAL PREJUDICE OF THE APPELLANT BY ALLOWING TESTIMONY CONCERNING OTHER ACTS OF MISCONDUCT BY THE APPELLANT. This Court previously addressed a similar question in United States v. Janis, 1 M.J. 395 (C.M.A. 1976). Today, our review of this question is more particularly guided by Mil.R.Evid. 404(b) and 403. See Appendix 18, Analysis of Mil.R.Evid. 404(b), Manual for Courts-Martial, United States, 1969 (Revised edition); see generally United States v. Beechum, 582 F.2d 898 (5th Cir. 1978) (en banc), cert. denied, 440 U.S. 920, 99 S.Ct. 1244, 59 L.Ed.2d 472 (1979). The first step in addressing this question is to identify the evidence admitted at this court-martial that tended to show that appellant had engaged in other offenses involving marihuana. Mil.R.Evid. 404(b). Specialist Four Nathaniel Longston, testifying for the Government in its case-in-chief, stated that appellant offered him some marihuana to smoke from a small bag. He testified this offer occurred at appellant’s trailer on January 18, 1981, shortly after he arrived at his unit. PFC Keith Arthur testified that on July 5, 1980, appellant took a small plastic bag of mari huana from a brown shopping bag and handed it to an unidentified person in a blue car. Specialist Four David Yates testified that on July 5, 1980, he observed “a bag of ‘baggies’” containing marihuana under the carpet of appellant’s van. Specialist Yates also testified that on three unspecified occasions he observed appellant transfer a bag of marihuana to other persons. He stated that one transfer was to a person named Parkins and it occurred at Parkins’ house. Specialist Yates was also called as a rebuttal witness by the Government and testified that he smoked marihuana with appellant on a number of occasions. Finally, PFC Hall was recalled to testify as a witness for the court. He testified that in January 1981, appellant said, on their way into the field, “If anybody had anything, to fire it up now before we get out to the field.” The second step" }, { "docid": "12127557", "title": "", "text": "narcotic offense. Neither is it necessary that direct evidence be presented to prove the nature of the substance. United States v. Quesada, 512 F.2d 1043, 1045 (5th Cir. 1975), cert. denied, 423 U.S. 946, 96 S.Ct. 356, 46 L.Ed.2d 277 (1975). (Citation omitted.) Just as with any other component of the crime, the existence of and dealing with narcotics may be proved by circumstantial evidence; there need be no sample placed before the jury, nor need there be testimony by qualified chemists as long as the evidence furnished ground for inferring that the material in question was narcotics. United States v. Agueci, 310 F.2d 817, 828 (2d Cir. 1962) cert. denied 372 U.S. 959, 83 S.Ct. 1013, 10 L.Ed.2d 11 (1963). See United States v. Courts, 9 M.J. 285 (C.M.A.1980). Stender had been invited to smoke in order to sell him hashish; in effect, he was testing the product offered him. If, as he testified, the substance he simulated smoking was hashish, then the item which he purchased was also hashish. The only significance of the chain-of-custody document was to provide a basis for introduction of the lab report. However, the lab report was irrelevant to the resolution of the issue on which the trial turned — namely, the identity of the person who made the sale to Stender. The accuracy of the lab report in its representation that the substance tested was 3.78 grams of marihuana could not persuade the court members to find that it was appellant instead of some other person who sold it to Stender. Indeed, the only effect of the lab report on the findings was to enable the court members to be more specific in their findings and so to find that the appellant had sold, transferred, and possessed “3.78 grams” of marihuana, rather than “some amount.” The greater specificity of the findings which resulted from admission of the lab report in evidence did not authorize a more severe punishment under the Table of Maximum Punishments, nor would it have tended to increase the sentence in some other way. In short, even if the" }, { "docid": "5159481", "title": "", "text": "modus operandi was relevant. See United States v. Woods, 613 F.2d 629 (6th Cir.), cert. denied, 446 U.S. 920, 100 S.Ct. 1856, 64 L.Ed.2d 275 (1980); United States v. Silva, 580 F.2d 144 (5th Cir.1978); People v. Tassell, 36 Cal.3d 77, 201 Cal.Rptr. 567, 679 P.2d 1 (1984). In any event, the members were instructed that the evidence was admitted for the limited purpose of proving plan or design. Therefore, we will not consider its possible admissibility for a different purpose. See United States v. Watkins, 21 M.J. 224, 226 n. 2 (C.M.A.1986). The Government argues that this evidence was properly admitted for the purpose it was instructed upon at trial, that is, to prove that the accused engaged in an affair with Mrs. “S” as part of a larger plan to take advantage of his female patients. We disagree. Evidence that the accused previously had a similar affair with one of his patients did not tend to establish a plan or overall scheme of which the charged offenses were part. See United States v. Dothard, 666 F.2d 498 (11th Cir.1982); United States v. O’Connor, 580 F.2d 38 (2d Cir.1978). It tended to establish propensity, not plan. We conclude, as did the majority of the Court of Military Review, that “the evidence reveals nothing more than a collection of disparate acts of the ... [accused] having illicit sex and drug abuse in common.” 19 M.J. at 713. II The accused was also charged with soliciting another patient, Debbie Arnold, to use marihuana and to commit adultery, and with soliciting Debbie’s husband, Sergeant Arnold, to possess marihuana. These offenses were alleged to have occurred during the course of therapy sessions with the Arnolds. The accused denied soliciting Debbie or her husband to use marihuana or to have extramarital affairs. In response to specific questions posed in cross-examination, the accused also denied smoking marihuana with Dr. “B,” his supervisor at the clinic. In rebuttal, trial counsel was permitted, over defense objection, to call Dr. “B” to testify that the accused smoked marihuana with him on several social occasions in 1978 and that" }, { "docid": "23176021", "title": "", "text": "Seven for possession with intent to distribute. Zielie challenges the district court’s rulings. Finding no error in these rulings, we affirm Zielie’s conviction. On August 25, 1982, Zielie filed a motion in limine seeking to preclude all non-expert witnesses from identifying as marijuana the brown-green, leafy material, that he was charged with possessing and distributing. He asserted that none of the marijuana that he allegedly received and distributed had ever been seen, seized or tested by qualified law enforcement personnel or a qualified expert in the field of botany or forensic chemistry; therefore, no testimony identifying it as marijuana should be permitted. We find the court properly allowed Diego Morales and Todd Reynolds, two experienced marijuana dealers, to testify that the substance given to Zielie on or about January 13-14, 1979, was marijuana. The law is quite clear that the introduction of a chemical analysis of the substance is not essential to conviction. United States v. Graham, 464 F.2d 1073 (5th Cir.1972). The uncorroborated testimony of a person who observed a defendant in possession of a controlled substance is sufficient if the person is familiar with the substance at issue. See, e.g., United States v. Crisp, 563 F.2d 1242, 1244 (5th Cir.1977); United States v. Quesada, 512 F.2d 1043, 1045 (5th Cir.), cert. denied, 423 U.S. 946, 96 S.Ct. 356, 46 L.Ed.2d 277 (1975). The narcotic nature of the substance need not be proved by direct evidence if the circumstantial evidence presented established, as it did here, that beyond a reasonable doubt the substance was marijuana. See, e.g., United States v. Gregorio, 497 F.2d 1253, 1263 (4th Cir.1974); United States v. Jones, 480 F.2d 954, 960 n. 4 (5th Cir.1973), cert. denied sub nom., Stockmar v. United States, 414 U.S. 1071, 94 S.Ct. 582, 38 L.Ed.2d 476 (1974). The district judge properly denied this motion in limine. Zielie also filed another motion in limine to exclude all evidence which related to drug transactions between him and government witness Morales that were distinct and separate from the transaction involved in Count Seven. The district judge properly denied the motion and admitted" }, { "docid": "10999528", "title": "", "text": "was charged with possessing. See n. 1, supra. . Para. 4a(2), Depot Order P1510.30, supra. See para, k, Special Orders and Instructions for the Regimental Field Officer of the Day, supra. . “Any person authorized under regulations governing the armed forces to apprehend persons subject to this chapter or to trial thereunder may do so upon reasonable belief that an offense has been committed and that the person apprehended committed it.” Art. 7(b), Uniform Code of Military Justice, 10 U.S.C. § 807(b). . It has been held that 18 U.S.C. § 3109 has no application to the military. United States v. Wallis, 44 C.M.R. 586 (A.C.M.R.1971), pet. denied, 21 U.S.C.M.A. 618, 44 C.M.R. 940 (1971). Also relevant to the notice of purpose and authority required for a valid arrest or seizure in a narcotics case is Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963). . For purposes of our analysis, we will assume that Captain Stevens did not act with the neutrality and detachedness expected of an authorizing official, see United States v. Rivera, 10 M.J. 55 (C.M.A. 1980); United States v. Ezell, 6 M.J. 307 (C.M.A.1979), and, therefore, that his entering the room and his actions in the room were without a search authorization. Of course, this search and seizure antedated Ezell, which has not been applied retroactively. . It is in this respect, as Judge Cook recognized in his opinion in United States v. Hessler, 4 M.J. 303, 306 (C.M.A.1978), reconsidered 7 M.J. 9, 11 (C.M.A.1979), that situations such as these differ from that presented to the Supreme Court in Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948). . By the same logic, we believe that the expressed prescription in the regimental directives that a probable-cause search should be authorized in writing, see n. 6, supra, does not contemplate such exigent circumstances. Cf. United States v. Hood, 7 M.J. 128 (C.M.A. 1979). FLETCHER, Judge (concurring): I agree with the majority that Captain Stevens acted reasonably in this case. Upon smelling the activated marihuana, he was entitled as" }, { "docid": "12102805", "title": "", "text": "properly seize the pipe in question if he was lawfully in the area where the pipe was viewed and he had probable cause to believe the pipe contained contraband. United States v. Burnside, 15 U.S.C.M.A. 326, 35 C.M.R. 298 (1965); United States v. Britting, 7 M.J. 978 (A.F.C.M.R.1979). Accord, Mil.R.Evid. 316(d)(4)(C), Manual for Courts-Martial, United States, 1969 (Revised edition), ch. XXVII. See generally United States v. Hessler, 4 M.J. 303 (C.M.A.1978), opinion on reconsideration, 7 M.J. 9 (C.M.A.1979). Neither a warrant nor an authorization is required to seize items under the “plain view” doctrine. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968). Appellant submits on appeal, as he did at trial, that the viewing of the pipe did not establish the requisite probable cause. We disagree. Appellant asserts that his act of lighting the pipe did not reflect any criminal conduct because he could have been lighting a pipe of tobacco. No doubt the lighting of a pipe would be insufficient to establish probable cause under some circumstances; however, appellant’s argument focuses too narrowly on this sole fact. Sergeant Leedy testified that appellant had admitted he had “dealt” with controlled substances in the past. Thus, Sergeant Leedy’s prior knowledge of appellant’s previous connection with contraband was much more specific than that involved in United States v. Robinson, 6 M.J. 109 (C.M.A.1979). Sergeant Leedy stated he was aware that appellant did not normally smoke a pipe, and he noted that the pipe was the type normally used to smoke marihuana. An examination of a picture of the pipe that is attached to the record as an exhibit reflects that the pipe was distinctively unusual. We believe that Sergeant Leedy properly relied upon information previously known to him. See United States v. Gamboa, 23 U.S.C.M.A. 83, 48 C.M.R. 591 (1974); United States v. Jeter, 21 U.S.C.M.A. 208, 44 C.M.R. 262 (1972). Additionally, Sergeant Leedy’s entrance into the barracks produced a response from appellant’s companion (“watch it”) that could be viewed as incriminatory." }, { "docid": "12102844", "title": "", "text": "for presence of the active ingredient in marihuana. In his testimony, Agent Miller acknowledged that such a field-test is not conclusive for the identification of marihuana. In United States v. Sanchez, 50 C.M.R. 450 (A.F.C.M.R.1975), we considered the admissibility of the same type field-test used here. We adhere to our conclusion in Sanchez that the results of such field-tests are properly admissible in evidence in support of the opinion of a person qualified by training and experience to identify marihuana. See, Mil.R.Evid. 702, 703, and 705. The military judge did not err in considering the field-test result as a part of the evidence bearing upon the identification of the substance seized from the accused’s room, and admitted against him at trial. III. Results of Polygraph Testing. Appellate defense counsel urge that the military judge erred in refusing the accused’s request for the presence of a particular polygraph operator as a defense witness. In an offer of proof, trial defense counsel indicated that the polygraph operator would testify that, in his opinion as a certified polygraph operator, the accused was truthful in denying culpability as to some, but not all, of the offenses of which he stands convicted. We hold that the military judge acted properly in precluding evidence of the results of polygraph testing, and in precluding any attempt to establish a foundation for its admissibility. United States v. Ledlow, 11 U.S.C.M.A. 659, 29 C.M.R. 475 (1960); United States v. Massey, 5 U.S.C.M.A. 514, 18 C.M.R. 138 (1955). See, paragraph 142e, Manual for Courts-Martial, 1969 (Rev.). See also, United States v. Masri, 547 F.2d 932 (5th Cir. 1977), cert, den., 434 U.S. 907, 98 S.Ct. 309, 54 L.Ed.2d 195 (1977). The basic premise of the polygraph procedure is the theory that there exist certain “involuntary” human physiological functions which will, when properly monitored, measured, and recorded, enable a trained polygraph operator to reliably detect attempts at deception in response to controlled questions. The polygraph device monitors and records on a graph several physiological activities of the subject’s body, most commonly the rate of respiration, the blood pressure, and the electroconductivity" }, { "docid": "18913745", "title": "", "text": "simply noting that “inherent in the officer’s statement that he smelled marihuana is the claim that he is familiar with that substance’s odor.” Id. at 142. The court further explained: At the motion to suppress the officer’s familiarity with the odor of marihuana was firmly established. Had the contrary been established we would have a different case questioning veracity. Id. at 142 n.1. We must emphasize that a statement by a service member that he has smelled marihuana at some location will not always warrant a commander to find that marihuana is present at that location. Under some circumstances a commander will not be justified in proceeding without a searching inquiry as to his informant’s experience with the odor of marihuana. Thus, in United States v. Hood, 7 M.J. 128 (C.M.A.1979), we concluded that an affidavit submitted in support of a search authorization was defective for failure to explain the affiant’s qualifications to discriminate among different odors. However, under the circumstances of this case — including the cigarette butts which independently evidenced the smoking of marihuana — the commander was not required to pause for inquiry about Sergeant Gonzales’ qualifications to identify marihuana. III As to the appellant’s second claim of error, we observe that our subsequent decision in United States v. Mack, 9 M.J. 300 (C.M.A.1980), has resolved this issue against the appellant. There a similar challenge was made concerning the admissibility of a record of non-judicial punishment during the presentencing phase of the accused’s trial, but we held that, since the record had been properly completed, it was admissible as evidence. Likewise, in the case at hand, the two records of non-judicial punishment now in question had been properly completed and so were admissible as presentencing evidence. IV The decision of the United States Army Court of Military Review is affirmed. Judges COOK and FLETCHER concur. . On this appeal the appellant does not claim that the search exceeded its constitutionally permissible scope. See Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). . First Sergeant Gonzales testified at trial that the doors were" }, { "docid": "13083564", "title": "", "text": "ground that the government failed to prove beyond a reasonable doubt that the substance he imported was cocaine. In response to a charge that the evidence is insufficient to support the judgment, we consider the evidence in the light most favorable to the government. “We will reverse only if a reasonably minded jury must necessarily have entertained a reasonable doubt of a defendant’s guilt.” United States v. Galvan, 693 F.2d 417, 419 (5th Cir.1982) (quoting United States v. Vergara, 687 F.2d 57, 60 (5th Cir.1982)). Eakes concedes that circumstantial evidence may establish the identity of a drug in a prosecution for violation of the narcotics laws, as long as it does so beyond a reasonable doubt. See United States v. Quesada, 512 F.2d 1043, 1045 (5th Cir.), cert. denied, 423 U.S. 946, 96 S.Ct. 356, 46 L.Ed.2d 277 (1975) (citations omitted). He claims, however, that the circumstantial evidence the government offered to prove the substance involved in this case was cocaine was insufficient. He relies on several cases in which courts held that particular circumstantial evidence not offered here was sufficient for an affirmance of both conspiracy and substantive drug convictions. See United States v. Harrell, 737 F.2d 971, 978-79 (11th Cir.1984) (“Identification based on past use coupled with present observation of the substance at hand will suffice to establish the illicit nature of a suspected substance.”), cert. denied, — U.S. -, 105 S.Ct. 1392, 84 L.Ed.2d 781 (1985); United States v. Haro-Espinosa, 619 F.2d 789, 795 (9th Cir.1979) (six tests conducted by an expert were sufficient to establish substance was cocaine); United States v. Crisp, 563 F.2d 1242, 1244 (5th Cir.1977) (testimony establishing defendants referred to substance as coke or cocaine, snorted it, cut it, weighed it, tested it over a flame and under a microscope, and sold it for large amounts of money was sufficient to prove identity of substance). Other cases suggest, however, that various types of circumstantial evidence are sufficient to establish the identity of a controlled substance in a criminal prosecution. United States v, Scott, 725 F.2d 43 (4th Cir.1984), involved proof that a substance" }, { "docid": "23518515", "title": "", "text": "he obtained his wares: Q. Now, when you went to the lake house, who would you get the drugs from? A. Well, at first, I was just getting them off of J.J. Roadblock was in jail and one to three days after he had gotten out of jail, I went out and— The trial court denied Harrell’s motion for a mistrial. In lieu thereof it offered a cautionary instruction, which counsel twice declined. Barnes’ remark was testimony of Harrell’s character, which should have been excluded because Harrell had not previously placed his character in dispute. See United States v. Warf, 529 F.2d 1170 (5th Cir.1976). We cannot say that the testimony was beyond the curative powers of an instruction, however, so as to exert a substantial impact on the jury’s verdict. Given the overwhelming proof of Harrell’s guilt, we conclude that the error was harmless. See United States v. Chilcote, 724 F.2d 1498, 1502 (11th Cir.1984); United Slates v. Klein, 546 F.2d 1259, 1263 (5th Cir.1977). Harrell’s final evidentiary objection concerns the necessary predicate to identify illicit drugs. According to Harrell, a witness who testifies about controlled substances must swear to having used the drug on the occasion in question as well as to familiarity based on prior use or sale. The law of this circuit, however, takes a more expansive view. Identification of a controlled substance does not require direct evidence if available circumstantial evidence establishes its identity beyond a reasonable doubt. Such evidence can include lay experience based on familiarity through prior use, trading, or law enforcement; a high sales price; on-the-scene remarks by a conspirator identifying the substance as a drug; and behavior characteristic of sales and use such as testing, weighing, cutting and peculiar ingestion. United States v. Sanchez, 722 F.2d 1501, 1506 (11th Cir.1984); United States v. Crisp, 563 F.2d 1242, 1244 (5th Cir.1977); United States v. Quesada, 512 F.2d 1043, 1045 (5th Cir.), cert. denied, 423 U.S. 946, 96 S.Ct. 356, 46 L.Ed.2d 277 (1975). Identification based on past use coupled with present observation of the substance at hand will suffice to establish the" }, { "docid": "12110267", "title": "", "text": "86 L.Ed. 680 (1942). Prosecution exhibit 2, which was also admitted at trial, is a typewritten, signed, extrajudicial statement of the appellant given to government agents on January 5, 1977. In this statement appellant admits that he possessed and sold marihuana as charged on December 30,1976, and January 5, 1977. Such a statement constitutes a confession or, at the very least, a damaging admission by the appellant as to the chemical nature of these substances. See paragraph 140a (1), Manual for Courts-Martial, United States, 1969 (Revised edition). See also McCormick, Evidence §§ 263, 264 (2d ed. 1972). This admitted extrajudicial statement of the appellant, however, does not stand alone in the record of trial as independent evidence that the charged substances were in fact marihuana. In order for the above statement to be lawfully admitted at appellant’s court-martial it must first appear that independent evidence, either direct or circumstantial, has been introduced which corroborates the essential facts admitted sufficiently to justify an inference of their truth. Para. 140a (5), Manual for Courts-Martial, United States, 1969 (Revised edition). See also Opper v. United States, 348 U.S. 84, 75 S.Ct. 158, 99 L.Ed. 101 (1954). Such corroborative evidence is ample in the record of trial. First, the appellant’s testimony at trial indicates that on both occasions he, an admitted user of marihuana, assumed and treated the substances he possessed and sold as marihuana. See United States v. Smith, 3 U.S.C.M.A. 803, 14 C.M.R. 221 (1954). See also United States v. Fisher, 7 U.S.C.M.A. 270, 275-76, 22 C.M.R. 60, 65-66 (1956). Moreover, the testimony of the informant and government agent who purchased the marihuana reveal that the appellant made statements contemporaneous with the sales that the substances were marihuana. See United States v. Weinstein, 19 U.S.C.M.A. 29, 30,41 C.M.R. 29, 30 (1969). Finally, two government agents, who established their familiarity with marihuana and had control of these substances immediately after these drug transactions, both testified that based upon their examinations of the bags the substances therein appeared to be marihuana. Such evidence together with prosecution exhibit 2 is sufficient, to, sustain appellant’s conviction" }, { "docid": "7216665", "title": "", "text": "might be limited, a satisfactory base is established to admit the testimony. The extent of his other prior use of the drug might affect the weight to be given to his testimony but not its competency. Id. at 805, 14 C.M.R. at 223 (emphasis supplied). In United States v. Jackson, 49 C.M.R. 881 (A.F.C.M.R.), pet. denied, 23 U.S.C.M.A. 648, 50 C.M.R. 904 (1975), a lay witness had been allowed to testify that the accused had transferred and used hashish. The witness was himself “a nonuser,” but on several occasions an OSI agent had burned hashish in his presence to make him familiar with its smell. In upholding the admissibility of this testimony, Judge Early explained: The concept of qualifying a layman to identify drugs on the basis of his prior drug use has been judicially recognized. In United States v. Quindana, 12 CMR 790 (AFBR 1953), two prisoners were permitted to testify that the substance sold to them by the accused was heroin. Both prisoners were drug addicts who had past experience and were acquainted with the effects of heroin on the mind and body. The Board of Review found that “[t]hey were in a sense, and certainly in comparison with court members, ‘experts’ in the field.” 12 CMR at 794. The Board went on to state that “... the only true criterion is: ‘On this subject can a jury from this person receive appreciable help? In other words, the test is a relative one, depending on the particular subject and the particular witness with reference to that subject, and is not fixed or limited to any class of persons acting professionally.’ ” 12 CMR at 794, citing 7 Wigmore, Evidence, sec. 1923. Opinion testimony of nonexperts has also been held admissible for the purpose of identifying marihuana where the witness demonstrated his familiarity with the drug’s various forms, its distinctive odor when smoked and with the symptoms displayed by those under its influence. ... The teaching of these cases is that a witness need not be a chemist, nor be possessed of training that would qualify him to identify" }, { "docid": "7216664", "title": "", "text": "other more common prohibited drugs if his opinion is supported by facts he has observed. Thus, as the Court noted three decades ago: “It has been well established that a user of a habit-forming drug may express an opinion on its identity.” United States v. Smith, 3 U.S.C.M.A. 803, 805, 14 C.M.R. 221, 223 (1954). Moreover, habitual use is not required. In Smith, the testimony of a government witness that he and the accused had received shots of morphine was held to be admissible even though he only testified about “two previous occasions when he had received an injection of morphine.” The Court stated: [O]n one of the two identified occasions the drug was obtained from an Army dispensary, the container was labeled, and the dosage was given by Army medical personnel. From this injection he received the same physical reaction as he did from the solution administered to him on the occasion now in question. That evidence alone is sufficient to permit him to express an opinion to the fact finders. While his experience might be limited, a satisfactory base is established to admit the testimony. The extent of his other prior use of the drug might affect the weight to be given to his testimony but not its competency. Id. at 805, 14 C.M.R. at 223 (emphasis supplied). In United States v. Jackson, 49 C.M.R. 881 (A.F.C.M.R.), pet. denied, 23 U.S.C.M.A. 648, 50 C.M.R. 904 (1975), a lay witness had been allowed to testify that the accused had transferred and used hashish. The witness was himself “a nonuser,” but on several occasions an OSI agent had burned hashish in his presence to make him familiar with its smell. In upholding the admissibility of this testimony, Judge Early explained: The concept of qualifying a layman to identify drugs on the basis of his prior drug use has been judicially recognized. In United States v. Quindana, 12 CMR 790 (AFBR 1953), two prisoners were permitted to testify that the substance sold to them by the accused was heroin. Both prisoners were drug addicts who had past experience and were acquainted" }, { "docid": "12110268", "title": "", "text": "(Revised edition). See also Opper v. United States, 348 U.S. 84, 75 S.Ct. 158, 99 L.Ed. 101 (1954). Such corroborative evidence is ample in the record of trial. First, the appellant’s testimony at trial indicates that on both occasions he, an admitted user of marihuana, assumed and treated the substances he possessed and sold as marihuana. See United States v. Smith, 3 U.S.C.M.A. 803, 14 C.M.R. 221 (1954). See also United States v. Fisher, 7 U.S.C.M.A. 270, 275-76, 22 C.M.R. 60, 65-66 (1956). Moreover, the testimony of the informant and government agent who purchased the marihuana reveal that the appellant made statements contemporaneous with the sales that the substances were marihuana. See United States v. Weinstein, 19 U.S.C.M.A. 29, 30,41 C.M.R. 29, 30 (1969). Finally, two government agents, who established their familiarity with marihuana and had control of these substances immediately after these drug transactions, both testified that based upon their examinations of the bags the substances therein appeared to be marihuana. Such evidence together with prosecution exhibit 2 is sufficient, to, sustain appellant’s conviction for these drug offenses. United States v. Seigie, 22 U.S.C.M.A. 403, 47 C.M.R. 340 (1973). In light of this evidence in the record of trial which is independent of the marihuana actually introduced at trial or the accompanying laboratory reports, we find that, if error occurred, the appellant was not materially prejudiced. See Article 59(a), UCMJ, 10 U.S.C. § 859(a). The decision of the United States Army Court of Military Review is affirmed. Chief Judge EVERETT and Judge COOK concur. . In light of our resolution of this case, it is not necessary to determine the merit, if any, of the appellant’s evidentiary argument under United States v. Nault, 4 M.J. 318 (C.M.A.1978). . The admissibility of this evidence was litigated at trial and resolved in favor of the Government by the military judge. Review of this ruling was not granted by this Court. . The main defense of the appellant at court-martial was entrapment. He also attempted to qualify this trial testimony by saying that he did not know for a fact that the" }, { "docid": "12110269", "title": "", "text": "for these drug offenses. United States v. Seigie, 22 U.S.C.M.A. 403, 47 C.M.R. 340 (1973). In light of this evidence in the record of trial which is independent of the marihuana actually introduced at trial or the accompanying laboratory reports, we find that, if error occurred, the appellant was not materially prejudiced. See Article 59(a), UCMJ, 10 U.S.C. § 859(a). The decision of the United States Army Court of Military Review is affirmed. Chief Judge EVERETT and Judge COOK concur. . In light of our resolution of this case, it is not necessary to determine the merit, if any, of the appellant’s evidentiary argument under United States v. Nault, 4 M.J. 318 (C.M.A.1978). . The admissibility of this evidence was litigated at trial and resolved in favor of the Government by the military judge. Review of this ruling was not granted by this Court. . The main defense of the appellant at court-martial was entrapment. He also attempted to qualify this trial testimony by saying that he did not know for a fact that the substances were marihuana. . In federal courts, evidence of a chemical analysis of the substances is not essential to a valid conviction for a narcotics offense. See United States v. Clark, 613 F.2d 391, 405-06 (2d Cir. 1979); United States v. Crisp, 563 F.2d 1242, 1244 (5th Cir. 1977); United States v. Quesada, 512 F.2d 1043, 1045 (5th Cir. 1975). See also United States v. Weinstein, 19 U.S.C.M.A. 29, 30, 41 C.M.R. 29, 30 (1969)." }, { "docid": "10494824", "title": "", "text": "marihuana and cocaine, respectively). We agree. United States v. White, 28 M.J. 530, 531 (A.F.C.M.R.1989). See United States v. Williams, 22 M.J. 953 (A.C.M.R.1986) (simultaneous possession of different drugs should not be alleged in two specifications). Cf. United States v. Bostic, 20 M.J. 562 (A.C.M.R.1985) (use of marihuana and cocaine separate for findings where use of each was separate and discrete act). Contra United States v. Davis, 656 F.2d 153 (5th Cir.1981), cert. denied, 456 U.S. 930, 102 S.Ct. 1979, 72 L.Ed.2d 446 (1982) (simultaneous possession of marihuana and quaaludes are separately punishable). We will cure this error by consolidating the two specifications. The appellant next contends that the military judge erred by failing to rule, sua sponte, that Charge II and its Specification (conspiracy to possess and distribute cocaine and marihuana) was multiplicious for sentencing with Specifications 4 and 5 of Charge I (wrongful possession of marihuana and wrongful distribution of cocaine, respectively). We disagree. Conspiracy and the substantive offense which is the object of the conspiracy are separate offenses and separately punishable. United States v. Washington, 1 M.J. 473 (C.M.A.1976). The appellant also contends that the military judge erred by allowing his company commander, Captain Eduardo Gomez, to testify over defense objection that the appellant had no rehabilitative potential. We agree that the military judge erred, but not for the reasons asserted by the appellant. The appellant had been granted a pass for 4-8 September 1988 but, because he failed to sign out, was reported as absent without leave for that period. Upon his return he was directed by the battalion executive officer to submit to urinalysis, which tested positive for marihuana. Although the trial defense counsel asserted that the urinalysis was illegal, the military judge refused to allow the defense counsel to explore the issue. During presentencing, Captain Gomez testified for the prosecution that the appellant has no rehabilitative potential. Regarding the appellant’s drug problem Captain Gomez testified, “I don’t think he’s corrected that [drug] problem and so, based strictly on the drug problem I don’t think he has rehabilitation potential.” The defense objected on the ground" }, { "docid": "12029852", "title": "", "text": "inference of wrongfulness may be drawn from such a circumstantial showing of marihuana use. See United States v. Harper, 22 M.J. 157, 161-62 (C.M.A.1986). Today, we must decide whether the above inference is sufficient by itself to support a finding of wrongfulness beyond a reasonable doubt where the defense subsequently introduces evidence which purportedly undermines or contradicts this inference. See United States v. Williams, 21 M.J. 360, 362 (C.M.A.1986); United States v. Biesak, 3 U.S.C.M.A. 714, 14 C.M.R. 132 (1954). Under the circumstances of this case, we hold that it is. See generally County Court of Ulster County v. Allen, 442 U.S. 140, 99 S.Ct. 2213, 60 L.Ed.2d 777 (1979); Barnes v. United States, 412 U.S. 837, 93 S.Ct. 2357, 37 L.Ed.2d 380 (1973). The prosecution based its case against appellant on the results of various laboratory tests on his urine and expert testimony explaining them. It evidenced the procedures involved in taking the sample, its security and transportation to the laboratory, the procedures at the laboratory, the tests performed, and the results of those tests. It also called a chemist from the laboratory to explain the tests and interpret the results in terms of ingestion of marihuana. Appellant took the stand and denied using marihuana during the period in question. He asserted that he did not possess or use marihuana, never ate any food that he knew contained marihuana, and had no direct knowledge of how or why his sample came up positive. He explained the test results by suggesting that the laboratory made a mistake or his estranged wife, who was aware of the urinalysis program, planted marihuana in his food. He called several witnesses who testified that they observed no abnormalities in his behavior suggesting drug abuse. He also called a family friend who testified to his wife’s unhappiness with the marriage and the military, her occasional possession of marihuana, and her opportunity to plant this substance in his food. INFERENCE OF WRONGFULNESS The prosecution was required to prove beyond a reasonable doubt that appellant “wrongfully” used marihuana. Art. 112a. Wrongful use in the context of Article" }, { "docid": "12127556", "title": "", "text": "Thus, a failure to object to a receipt or in some other way to contest its admissibility can be viewed as the waiver of a known right. Under such circumstances there is little reason now to provide to an appellant the windfall of a holding that a chain-of-custody receipt to which he did not object was inadmissible. Accordingly, since in the case at hand, defense counsel neither objected to the chain-of-custody receipt nor contested in any way the reliability of its information, we decline here to apply the Porter and Neutze decisions retroactively. III Stender’s testimony amply established his familiarity with hashish. His “simulated smoking” with appellant and the four other men provided him ample opportunity to determine the identity of the substance which was in his mouth, nose, and lungs. As was observed in United States v. Clark, 613 F.2d 391, 405-06 (2d Cir. 1979), cert. denied, 449 U.S. 820, 101 S.Ct. 78, 66 L.Ed.2d 22 (1980): Evidence of a chemical analysis of the substance is not essential to a valid conviction for a narcotic offense. Neither is it necessary that direct evidence be presented to prove the nature of the substance. United States v. Quesada, 512 F.2d 1043, 1045 (5th Cir. 1975), cert. denied, 423 U.S. 946, 96 S.Ct. 356, 46 L.Ed.2d 277 (1975). (Citation omitted.) Just as with any other component of the crime, the existence of and dealing with narcotics may be proved by circumstantial evidence; there need be no sample placed before the jury, nor need there be testimony by qualified chemists as long as the evidence furnished ground for inferring that the material in question was narcotics. United States v. Agueci, 310 F.2d 817, 828 (2d Cir. 1962) cert. denied 372 U.S. 959, 83 S.Ct. 1013, 10 L.Ed.2d 11 (1963). See United States v. Courts, 9 M.J. 285 (C.M.A.1980). Stender had been invited to smoke in order to sell him hashish; in effect, he was testing the product offered him. If, as he testified, the substance he simulated smoking was hashish, then the item which he purchased was also hashish. The only significance of" } ]

[ { "docid": "22766901", "title": "", "text": "Selective Service Appeal Board, and while that appeal was pending filed this suit in the United States District Court in February 1968, seeking an injunction against any possible induction into the Armed Forces on the ground that his delinquency reclassification was invalid. The respondent local board moved to dismiss the suit for want of jurisdiction, relying on § 10 (b) (3) of the Act which provides that: “No judicial review shall be made of the classification or processing of any registrant by local boards, appeal boards, or the President, except as a defense to a criminal prosecution instituted under section 12 of this title, after the registrant has responded either affirmatively or negatively to an order to report for induction . . . ,” 50 U. S. C. App. § 460 (b)(3) (1964 ed., Supp. IV). The District Court granted the motion to dismiss and Breen appealed that decision to the Court of Appeals. While the appeal was pending, we rendered our decision in Oestereich v. Selective Service Bd., 393 U. S. 233 (1968), holding that §10 (b)(3) did not bar pre-induction judicial review in the circumstances presented in that case. Although Breen argued that Oestereich controlled his own case, the Court of Appeals affirmed the District Court’s dismissal of the suit, with one judge dissenting, holding that Oestereich did not cover this case and § 10 (b) (3) therefore required dismissal of the suit. 406 F. 2d 636 (C. A. 2d Cir. 1969). We granted a petition for certiorari, 394 U. S. 997 (1969), and, because we conclude that Oestereich does control this case, we reverse the judgment of the Court of Appeals. In Oestereich a student preparing for the ministry surrendered his draft registration card in protest against the war in Vietnam and was reclassified as a “delinquent.” He then filed suit seeking to enjoin his induction, claiming that he was being inducted contrary to the clear statutory requirement that students preparing for the ministry “shall be exempt from training and service” under the Act, 50 U. S. C. App. §456 (g). We held in that case that" } ]

[ { "docid": "23504750", "title": "", "text": "appeal and review. The registrant in this situation is able to take steps such as seeking and accepting employment of a type which would justify his local board in granting an occupational deferment. For obvious reasons, then, appellant sought a deferment instead of contenting himself with postponement of induction. The question here is whether appellant is entitled under the Act to adopt what he believed to be the more advantageous procedure. It is in the context of this survey that we now turn to the specific substantive matters raised on appeal. We treat the issues of subject matter-jurisdiction and the proper construction of the student deferment statute first, since it is only through an understanding of these matters that we can properly examine the correctness of the District Court’s rulings on venue and mootness. II. SUBJECT MATTER JURISDICTION Appellees first question the jurisdiction of this Court to review the withholding of a Selective Service deferment. Section 10(b) (3) of the 1967 Act, 50 U.S.C.App. § 460(b) (3) (Supp. IV., 1965-1968) provides: “No judicial review shall be made of the classification or processing of any registrant by local boards, appeal boards, or the President, except as a defense to a criminal prosecution instituted under Section 12 of this title, after the registrant has responded either affirmatively or negatively to an order to report for induction, * # * ” Although Section 10(b) (3) thus appears to deny all preinduction judicial review, the Supreme Court has held that its command cannot be taken literally so as to preclude review of draft board actions which are outside the statutory scheme or involve a capricious violation of a statutory mandate. Oestereich v. Selective Service Local Board No. 11, 393 U.S. 233, 89 S.Ct. 414, 21 L.Ed.2d 402 (1968); cf. Estep v. United States, 327 U.S. 114, 66 S.Ct. 423, 90 L.Ed. 567 (1946). The Oestereich case involved an arbitrary revocation of an exemption from military service held by a theological student preparing for the ministry. The Supreme Court concluded that the IV-D divinity student classification was mandated by the clear and unambiguous terms of" }, { "docid": "12897284", "title": "", "text": "before the local board and asked to be reclassified II-S. This request was based on the fact that on June 20 he had been admitted to the fall term at the Northwest Kansas Area Vocational-Technical School. The board refused to grant a II-S deferment for that type of study and appellant appealed. The board of appeals also refused to grant a II-S deferment for pursuing a course of study at the Vocational-Technical School and in January, 1970, Evans brought this suit. In essence appellant argues that he has a statutory right to a II-S classification under 50 U.S.C.A. App. § 456 (h) (1); that he has been classified I-A because of an act of delinquency; that his induction has been accelerated; and that there is unequal and inconsistent enforcement of the Selective Service Act of 1967 by the local boards in Kansas regarding students at vocational-technical schools. As a preliminary matter we note that all pre-induction judicial review as to a registrant’s classification is prohibited by 50 U.S.C.A. App. § 460(b) (3). A very narrow exception to that statute has, however, been judicially carved out in Oestereich v. Selective Service System Local Board No. 11, 393 U.S. 233, 89 S.Ct. 414, 21 L.Ed.2d 402, (1968) and Breen v. Selective Service Local Board No. 16, 396 U.S. 460, 90 S.Ct. 661, 24 L.Ed.2d 653 (1970). Appellant recognizes the jurisdictional impediment facing a full hearing on the merits and thereby contends that his situation is sufficiently identical to Oestereich and Breen to permit our review. In Oestereich, the plaintiff-appellant was enrolled in theology school and was exempted from military service under a IV-D classification. After surrendering his draft card to protest the Vietnam conflict, his local draft board reclassified him I-A and declared him delinquent. An unsuccessful appeal was taken after which Oestereich brought suit in federal court to restrain his induction. The thesis of the Supreme Court’s opinion was that petitioner was assumed to be entitled to the IV-D statutory exemption. Highly summarized, the holding of that case was that unless a registrant is deprived of a statutory exemption, or deferment," }, { "docid": "10652312", "title": "", "text": "as attacking the regulation as an abuse of the discretion given the President to provide for III-A fatherhood deierments in that there is allegedly no rational basis for the promulgation of the regulation in question. But we hold that we are not at liberty to pass on these arguments on the merits because we are barred from reviewing these matters by Section 10(b) (3) of the Military Selective Service Act of 1967, 50 U.S.C. App. § 460(b) (3), which provides in pertinent part: “No judicial review shall be made of the classification or processing of any registrant by local boards, appeals boards, or the President, except as a defense to a criminal prosecution instituted under section 12 of this title, after the registrant has responded either affirmatively or negatively to an order to report for induction * * *» Plaintiff seeks to fit this case within the ambit of Oestereich v. Selective Service System Local Board No. 11, 393 U.S. 233, 236, 89 S.Ct. 414, 21 L.Ed.2d 402 (1969), and Breen v. Selective Service Local Bd. No. 16, Bridgeport, Conn., 396 U.S. 460, 90 S.Ct. 661, 24 L.Ed.2d 653 (1970), but we are of the opinion that these cases are not applicable to the matter now before us. In Oestereich, the plaintiff was a student at a theological school whose classification was changed from a IY-D under Section 6(g) of the Military Selective Service Act of 1967, 50 U.S.C. App. § 456(g), to a I-A classification after he had returned his draft registration card to the Government in protest against the war in Vietnam. The Supreme Court held that Section 10(b) (3) was not a bar to preinduction review in that case because the Board’s action was completely lawless. It is important to note that the provision in the Oestereich case made the IV-D classification mandatory rather than discretionary. This was pointed out by the Court when it said that “§ 6(g) of the Act states that ‘students preparing for the ministry’ in qualified schools ‘shall be exempt from training and service’ under the Act.” 393 U.S. at 235, 89" }, { "docid": "11527115", "title": "", "text": "Act (50 U.S.C. [App.] § 460(b) (3)) this Court has no jurisdiction to judicially review the classification or processing of the plaintiff by his local board except as a defense to a criminal prosecution instituted under the said Act. * * *” On this appeal appellant relies primarily on Oestereich v. Selective Service System, 393 U.S. 233, 89 S.Ct. 414, 21 L.Ed.2d 402 (1968), and Breen v. Selective Service Local Board No. 16, 396 U. S. 460, 90 S.Ct. 661, 24 L.Ed.2d 653 (1970), which were decided after the ruling by the district court. Appellant contends that the two decisions compel the reversal of the order of dismissal and a remand of the cause to the district court for further proceedings. We disagree and affirm the order of the district court. “No judicial review shall be made of the classification or processing of any registrant by local boards, appeal boards, or the President, except as a defense to a criminal prosecution instituted under section 12 of this title [section 462 of this Appendix], after the registrant has responded either affirmatively or negatively to an order to report for induction, * *, Provided, That such review shall go to the question of the jurisdiction herein reserved to local boards, appeal boards, and the President only when there is no basis in fact for the classification assigned to such registrant.” in Oestereich, the petitioner was enrolled as a student at a theological school preparing for the ministry, and was accordingly classified as IV-D by his local Board. He returned his registration certificate to the Government “for the sole purpose of expressing dissent from the participation by the United States in the war in Vietnam.” Shortly thereafter his Board declared him delinquent (1) for failure to have the registration certificate in his possession, and (2) for failure to provide the Board with notice of his local status. The Board thereupon changed his IV-D classification to I-A. He took an administrative appeal and lost, and was ordered to report for induction. At that point be brought suit to restrain his induction. Petitioner’s complaint was" }, { "docid": "23504751", "title": "", "text": "be made of the classification or processing of any registrant by local boards, appeal boards, or the President, except as a defense to a criminal prosecution instituted under Section 12 of this title, after the registrant has responded either affirmatively or negatively to an order to report for induction, * # * ” Although Section 10(b) (3) thus appears to deny all preinduction judicial review, the Supreme Court has held that its command cannot be taken literally so as to preclude review of draft board actions which are outside the statutory scheme or involve a capricious violation of a statutory mandate. Oestereich v. Selective Service Local Board No. 11, 393 U.S. 233, 89 S.Ct. 414, 21 L.Ed.2d 402 (1968); cf. Estep v. United States, 327 U.S. 114, 66 S.Ct. 423, 90 L.Ed. 567 (1946). The Oestereich case involved an arbitrary revocation of an exemption from military service held by a theological student preparing for the ministry. The Supreme Court concluded that the IV-D divinity student classification was mandated by the clear and unambiguous terms of the Act and that the local board thus acted improperly and without statutory authority in removing the mandatory IV-D classification. The Court held that pre-induction judicial review must be allowed where there exists a clear statutory grant of a classification, the decision that a registrant fits that classification neither involves the exercise of discretion or judgment nor requires resolution of complex factual issues, and the local board’s action denying a requested classification contravenes a clear statutory command. 393 U.S. at 238, 89 S.Ct. 414. Acknowledging that the literal language of Section 10(b) (3) would prevent Oestereich from obtaining judicial redress prior to. induction, the Court refused “to construe the Act with unnecessary harshness” and held that where the statutory grant of a classification “is plain and unequivocal * * * pre-induction judicial review is not precluded * * 393 U.S. at 238-239, 89 S.Ct. at 417. Clark v. Gabriel, 393 U.S. 256, 89 S.Ct. 424, 21 L.Ed.2d 418 (1968), decided the same day as the Oestereich case, further clarified the role which the exercise of" }, { "docid": "21976872", "title": "", "text": "judicial review shall be made of the classification or processing of any registrant by local boards, appeal boards, or the President, except as a defense to a criminal prosecution * * * after the registrant has responded either affirmatively or nega tively to an order to report for induction. Since its enactment § 10(b) (3) has been judicially elaborated by both the Supreme Court and the lower federal courts so as to permit pre-prosecution judicial review of local board classifications in some circumstances and to deny it in others. The difficult question for this court is where on the spectrum between permissible and impermissible review does the instant case stand. In Oestereich v. Selective Service Local Board No. 11, 393 U.S. 233, 89 S.Ct. 414, 21 L.Ed.2d 402 (1968), the Supreme Court held that § 10(b) (3) was not a bar to pre-prosecution judicial review of a local board’s reclassification. There, the petitioner was a theological student who held a ministerial exemption from the draft. His local board reclassified him I-A pursuant to delinquency regulations for non-possession of his registration certificate. The Supreme Court held that the delinquency regulations could not be used to deprive a registrant of a statutory exemption to which he was unquestionably entitled. The Court did not treat as relevant to its decision the First Amendment facet of the petitioner’s case. It did, however, note that where a clearly granted exemption was denied to a registrant and where regulatory provisions alleged to have been the basis for the denial were not grounded upon any governmental interest relevant to the particular registrant’s status, preprosecution judicial review would be permitted. In Clark v. Gabriel, 393 U.S. 256, 89 S.Ct. 424, 21 L.Ed.2d 418 (1968), the Court held § 10(b) (3) constitutional, at least on its face and as there applied. The Court refused to permit pre-prosecution review in that case because there existed a question as to the status of the registrant as a conscientious objector, which question necessitated the consideration and weighing of factual data. The Court made it clear that even an allegation of local board" }, { "docid": "4196498", "title": "", "text": "merely making an informal inquiry to determine whether he was admissible. Moreover, Mr. Pfrench explains, in matters concerning draft evasion, it is I.N.S. policy to question such applicants initially on United States soil, and that these applicants are referred to Rouses Point, N. Y. from Montreal for examination. Whenever done, a record of the referral is made by the Montreal inspector and kept for one year. Pfrench states that he has found no record at his office that plaintiff was ever refused admission or referred to Rouses Point. Pfrench Affidavit, dated December 16, 1968 at Montreal, Quebec, Canada. On October 30, 1968, plaintiff filed his complaint in this action. Soon thereafter he noticed this motion for a preliminary injunction. I. RELIEF SOUGHT AGAINST SELECTIVE SERVICE A. Jurisdiction Plaintiff seeks to have this Court declare his outstanding induction order invalid and to order that he be reclassified as an alien exempt from compulsory military service pursuant to treaty. Since this relief is requested against the Selective Service System, and directly against Local Board No. 6, this Court is faced with the question of the applicability of section § 1(8) (c) of the Military Selective Service Act of 1967, 81 Stat. 104, 50 U.S.C.A.App. § 460(b) (3) (1968), amending, § 10(b) (3) of the Selective Service Act, 50 U.S.C. App. § 460(b) (3) (1964), which relevantly provides: “No judicial review shall be made of the classification or processing of any registrant by local boards, appeal boards, or the President, except as a defense to a criminal prosecution instituted under section 12 of this title, after the registrant has responded either affirmatively or negatively to an order to report for induction, * * * Provided, That such review shall go to the question of the jurisdiction herein reserved to local boards, appeal boards, and the President only when there is no basis in fact for the classification assigned to such registrant.” On December 16, 1968, the Supreme Court decided the case of Oestereich v. Selective Service System, 393 U.S. 233, 89 S.Ct. 414, 21 L.Ed.2d 402 (1968). In that case, plaintiff was a" }, { "docid": "2542978", "title": "", "text": "where there is no possibility of such delay, e. g. where the facts are uncontested, no discretion is involved, and the applicable “law” is clear. But whether that “law” involves statute, court de- cisión or regulation is as irrelevant as whether it involves an “exemption” or a “deferment.” The judgment of the District Court is reversed and the case is remanded for proceedings consistent with this opinion. It is so ordered. . Appellant also applied for a temporary restraining order to stop his induction, but the District Court denied his application. Subsequently, appellant reported to the induction station, but refused to submit to induction. He promptly amended his complaint to request additional relief in the form of an injunction prohibiting the Attorney General from prosecuting him. . Our recent decision in Nestor v. Hershey, U.S.App.D.C., No. 23,314, decided December 16, 1969), establishes that venue was proper in the District of Columbia, Slip opinion at 28-32. See Local Board Memorandum No. 85, issued October 24, 1967. . In Oestereich the registrant was a divinity student. Section 6(g) of the Military Selective Service Act of 1967, 50 U.S.C. App. § 456(g) (1964), “exempts” such students from training and service under the Act. Nonetheless, when Oestereich turned his draft card in as a protest against American involvement in the Vietnam war, his local board reclassified him from Class IV — D (exempt divinity student) to Class I-A (available for service) under the Selective Service System’s delinquency regulations. After exhausting his administrative remedies, he brought suit to restrain his induction. The Supreme Court held that § 10(b) (3) did not bar pre-induction judicial review because there was no statutory authority to use the delinquency regulations to deprive a registrant of his statutory exemption. 393 U.S. at 237-238, 89 S.Ct. 414. . The registrant in Gutknecht was classified I-A as available for induction at the time he turned in his draft card in protest against the Vietnam war. His draft board declared him delinquent, thereby moving him ahead of all other I-A registrants in the order of call. He was then ordered to report for" }, { "docid": "5617139", "title": "", "text": "participation in war in any form: Provided, That such review shall go to the question of jurisdiction herein reserved to local boards, appeal boards, and the President only when there is no basis in fact for the classification assigned to such registrant.” 50 U.S.C.A. App. § 460(b) (3) (1968). As interpreted, the constitutionality of this provision has been upheld. Clark v. Gabriel, 393 U.S. 256, 89 S.Ct. 424, 21 L.Ed.2d 418 (1968). It has long been recognized that Congress has a legitimate interest in protecting from litigious delays and interruptions a governmental activity so inextricably intertwined with national security as the procurement and training of military personnel. See, e. g. Falbo v. United States, 320 U.S. 549, 64 S.Ct. 346, 88 L.Ed. 305 (1944). In interpreting section 10(b) (3) of the Act, however, the Supreme Court has held that a literal interpretation of the provision was not justified, in Oestereich v. Selective Serv-Bd., 393 U.S. 233, 89 S.Ct. 414, 21 L.Ed.2d 402 (1968). A literal reading would, in the first instance, suspend the constitutionally protected writ of habeas corpus. 393 U.S. at 238, 89 S.Ct. 414. The Court also concluded that Congress did not intend to preclude pre-induction judicial review in the special circumstances presented by Oestereich and Breen v. Selective Serv. Bd., 396 U.S. 460, 90 S.Ct. 661, 24 L.Ed.2d 653 (1970). In Oestereich, a divinity student who was unquestionably exempted by statute from eligibility for induction, was nonetheless reclassified I-A on the authority of the now-defunct delinquency regulations for having turned in his draft card in protest of the Vietnam War; Oester-eich sought a permanent injunction prohibiting his induction. His complaint was dismissed by the district court for lack of jurisdiction under authority of section 10(b) (3), and the United States Court of Appeals for the Tenth Circuit affirmed. The Supreme Court reversed, holding that pre-induction review was not precluded where the action of the local board was “blatently lawless” and beyond its statutory authority. Breen reaffirms the principle of Oestereich where a registrant had a statutory deferment rather than a statutory exemption and the delinquency regulations were" }, { "docid": "2542979", "title": "", "text": "6(g) of the Military Selective Service Act of 1967, 50 U.S.C. App. § 456(g) (1964), “exempts” such students from training and service under the Act. Nonetheless, when Oestereich turned his draft card in as a protest against American involvement in the Vietnam war, his local board reclassified him from Class IV — D (exempt divinity student) to Class I-A (available for service) under the Selective Service System’s delinquency regulations. After exhausting his administrative remedies, he brought suit to restrain his induction. The Supreme Court held that § 10(b) (3) did not bar pre-induction judicial review because there was no statutory authority to use the delinquency regulations to deprive a registrant of his statutory exemption. 393 U.S. at 237-238, 89 S.Ct. 414. . The registrant in Gutknecht was classified I-A as available for induction at the time he turned in his draft card in protest against the Vietnam war. His draft board declared him delinquent, thereby moving him ahead of all other I-A registrants in the order of call. He was then ordered to report for induction under the accelerated induction procedures of the delinquency regulations. When he refused to submit to induction, he was prosecuted and convicted. The Supreme Court reversed his conviction, holding that the delinquency procedure under which he was inducted was without statutory authorization and that his induction order was consequently void. . Since Gutknecht involved a criminal prosecution, the Court did not pass on the availability of pre-induction judicial review. . This conclusion was reached by the Third Circuit in a well reasoned opinion before the Supreme Court’s decision in (7ut-laieclit. Bucher v. Selective Service System, 406 F.2d 494 (1970). In the present ease we are guided by that decision as well as the authority of Gut-hnecht. . The registrant in Breen was a college student who, under § 6(h) (1) of the Act, was entitled to a II-S student “deferment.” When Breen protested American participation in the Vietnam war by turning in his draft card, his draft board declared him delinquent and reclassified him from II-S to I-A. Breen then sought an injunction prohibiting his" }, { "docid": "4196499", "title": "", "text": "Court is faced with the question of the applicability of section § 1(8) (c) of the Military Selective Service Act of 1967, 81 Stat. 104, 50 U.S.C.A.App. § 460(b) (3) (1968), amending, § 10(b) (3) of the Selective Service Act, 50 U.S.C. App. § 460(b) (3) (1964), which relevantly provides: “No judicial review shall be made of the classification or processing of any registrant by local boards, appeal boards, or the President, except as a defense to a criminal prosecution instituted under section 12 of this title, after the registrant has responded either affirmatively or negatively to an order to report for induction, * * * Provided, That such review shall go to the question of the jurisdiction herein reserved to local boards, appeal boards, and the President only when there is no basis in fact for the classification assigned to such registrant.” On December 16, 1968, the Supreme Court decided the case of Oestereich v. Selective Service System, 393 U.S. 233, 89 S.Ct. 414, 21 L.Ed.2d 402 (1968). In that case, plaintiff was a divinity student — thus qualifying for an exemption from military service granted by section 6(g) of the 1951 Act, 50 U.S.C. App. § 456(g) (1964) — who originally had been classified IV-D, but had been reclassified I-A by his local board because of plaintiff’s failure to have his registration certificate in his possession and for failure to provide the local board with notice of his “local status.” After an unsuccessful appeal within the Selective Service System, plaintiff was ordered to report for induction. He then brought suit seeking to restrain his induction. The Supreme Court interpreted the amended § 10(b) (3) as permitting a district court to review action taken by a local board in a situation where the grant of exemption was neither an exercise of discretion nor an evaluation or determination of facts, and the board’s action in depriving the registrant of his statutory exemption and ordering his induction was without any basis in law. Plaintiff here claims that he has a recognized right to exemption from military service granted him by a" }, { "docid": "21976871", "title": "", "text": "I-A, of two collegiate undergraduates for participation in the war-protest picketing of another local board. Wolff v. Selective Service Local Board No. 16, 372 F.2d 817 (2nd Cir. 1967). In Wolff the court noted that the local board’s use of the delinquency regulations usurped the jurisdiction of the federal district courts to adjudicate in criminal prosecution questions pertaining to interference with the operation of the Selective Service System. The court therefore determined the local board’s action to be beyond its jurisdiction and therefore within the scope of review established by Estep. The court then went on to emphasize the “chilling effect” which the local board’s action had on the exercise of First Amendment rights and found that threat to be a sufficient basis for the exercise of equity jurisdiction prior to prosecution for refusal to be inducted. The court further found exhaustion of administrative process to be unnecessary. Against this background, Congress in 1967 passed § 10(b) (3) of the Selective Service Act, 50 U.S.C. App. § 460(b) (3), which states in pertinent part: No judicial review shall be made of the classification or processing of any registrant by local boards, appeal boards, or the President, except as a defense to a criminal prosecution * * * after the registrant has responded either affirmatively or nega tively to an order to report for induction. Since its enactment § 10(b) (3) has been judicially elaborated by both the Supreme Court and the lower federal courts so as to permit pre-prosecution judicial review of local board classifications in some circumstances and to deny it in others. The difficult question for this court is where on the spectrum between permissible and impermissible review does the instant case stand. In Oestereich v. Selective Service Local Board No. 11, 393 U.S. 233, 89 S.Ct. 414, 21 L.Ed.2d 402 (1968), the Supreme Court held that § 10(b) (3) was not a bar to pre-prosecution judicial review of a local board’s reclassification. There, the petitioner was a theological student who held a ministerial exemption from the draft. His local board reclassified him I-A pursuant to delinquency regulations" }, { "docid": "10598165", "title": "", "text": "of as suggested by either party. Although § 10(b) (3) appears to prohibit flatly any and all judicial review except as a defense to a criminal prosecution, certain exceptions have been carved out of that broad prohibition. The first exception to be recognized was the right to habeas corpus following induction. See Estep v. United States, 327 U.S. 114, 66 S.Ct. 423, 90 L.Ed. 567 (1946), and Witmer v. United States, 348 U.S. 375, 377, 75 S.Ct. 392, 99 L.Ed. 428 (1955). The most recent area of exception created by the Supreme Court of the United States is that found in Oestereich v. Selective Service System, 393 U.S. 233, 89 S.Ct. 414, 21 L.Ed.2d 402 (1968). That case involved a registrant who was entitled to a IV-D classification under the Selective Service Act and, after participation in anti-war activities, his IV-D exemption was revoked and the registrant was reclassified I-A. In holding that the local Selective Service board could not revoke the mandatory IV-D classification and in allowing judicial review the Supreme Court stated: “We deal with conduct of a local Board that is basically lawless. * * In such instances, as in the present one, there is no exercise of discretion by a Board in evaluating evidence and in determining whether a claimed exemption is deserved. The case we decide today involves a clear departure by the Board from its statutory mandate. To hold that a person deprived of his statutory exemption in such a blatantly lawless manner must either be inducted and raise his protest through habeas corpus or defy induction and defend his refusal in a criminal prosecution is to construe the Act with unnecessary harshness. * * *» In Gregory, 311 F.Supp. 1, the court was also faced with the bar to judicial review found in § 10(b) (3). The court found jurisdiction for review of the Gregory classification because, as in Oestereich, the “conduct of the local Board [was] basically lawless.” In summarizing Judge Smith stated: “* * * (A)s to jurisdiction, this matter concerns, not a deferment resting in the discretion of a Local" }, { "docid": "5617140", "title": "", "text": "writ of habeas corpus. 393 U.S. at 238, 89 S.Ct. 414. The Court also concluded that Congress did not intend to preclude pre-induction judicial review in the special circumstances presented by Oestereich and Breen v. Selective Serv. Bd., 396 U.S. 460, 90 S.Ct. 661, 24 L.Ed.2d 653 (1970). In Oestereich, a divinity student who was unquestionably exempted by statute from eligibility for induction, was nonetheless reclassified I-A on the authority of the now-defunct delinquency regulations for having turned in his draft card in protest of the Vietnam War; Oester-eich sought a permanent injunction prohibiting his induction. His complaint was dismissed by the district court for lack of jurisdiction under authority of section 10(b) (3), and the United States Court of Appeals for the Tenth Circuit affirmed. The Supreme Court reversed, holding that pre-induction review was not precluded where the action of the local board was “blatently lawless” and beyond its statutory authority. Breen reaffirms the principle of Oestereich where a registrant had a statutory deferment rather than a statutory exemption and the delinquency regulations were used to punish him for a draft card turn-in. Contemporaneous with Oestereich, the Court announced its decision in Clark v. Gabriel, supra, holding that pre-induction judicial review was not available, except as a defense to a criminal prosecution, where the local board exercised, as contemplated by the statutory scheme, its judgment and discretion in granting or withholding certain categories of deferments. Plaintiffs seek to bring their allegations within the Oestereich-Breen exception to section 10(b) (3). In order to determine which line of decisions will control the present controversy, it is necessary to pierce the pleadings and de termine precisely what category is raised by the merits of this controversy. Stella v. Selective Service Board, 427 F.2d 887, 889 (2nd Cir. 1970). The district court was of the opinion that it had jurisdiction since the question of whether the plaintiffs and the class they represent should be granted fatherhood deferments was not one committed to the discretion of the local boards and since no mixed question of law and fact or pure question of fact was" }, { "docid": "4011814", "title": "", "text": "* * *. There is no escaping that this is essentially a case of pre-induction judicial review of the classification or processing of a registrant by a local selective service board, so, read literally, § 10(b) (3) would indeed preclude this Court from exercising jurisdiction over the case. But, “no one, we believe, suggests that § 10(b) (3) can sustain a literal reading.” Oestereich v. Selective Service System Local Board No. 11, 393 U.S. 233, 238, 89 S.Ct. 414, 417, 21 L.Ed.2d 402, 406. The Supreme Court, in two recent cases, has set out the guidelines for deciding when there is to be an exception to § 10(b) (3), when there can be pre-induction judicial review of draft classifications. In Clark v. Gabriel, 393 U.S. 256, 89 S.Ct. 424, 21 L.Ed.2d 418, the Court in a per curiam opinion said the constitutional § 10(b) (3) precluded review of the I-A classification of a registrant claiming to be a conscientious objector. The Court pointed out that the question of whether or not a registrant should properly be classified as a conscientious objector “inescapably involves a determination of fact and an exercise of judgment.” Id., 393 U.S. at 258, 89 S.Ct. at 426, 21 L.Ed.2d at 421. The Board must use “its statutory discretion to pass on a particular request for classification, ‘evaluating evidence and * * * determining whether a claimed exemption is deserved.’ ” Id. Thus, to allow pre-induction review would make the District Courts super draft boards and would interrupt and delay the procedure of providing adequate military manpower. Id. In Oestereich, supra, the Court allowed pre-induction review of a I-A classification of a registrant claiming a ministerial student exemption. Acting on such a claim, the Court states, involves “no exercise of discretion by a Board in evaluating evidence and in determining whether a claimed exemption is deserved”, because “the exemption granted divinity students is plain and unequivocal.” Id. 393 U.S. at 238, 89 S.Ct. at 416, 21 L.Ed.2d at 406. To deny one a “plain and unequivocal” statutory right is an action “basically lawless”, and that action must" }, { "docid": "16344229", "title": "", "text": "BRIGHT, Circuit Judge. Appellee Local Board No. 87, Platte City, Missouri, ordered Selective Service registrant Frank Braxton Green to report for induction into the armed services on September 17, 1969. Just preceding that date, Green examined the public rolls of the draft board and discovered the names of ten older persons classified I-A (available for military service), who had not been called for induction. Green then brought this action in district court seeking to enjoin the local board from drafting him into service out of the order of call as specified by law. Judge Duncan dismissed his suit on jurisdictional grounds, and Green appeals from that judgment of dismissal. We affirm. Section 10(b) (3) of the Military Selective Service Act, 50 U.S.C.A. App. § 460(b) (3), in applicable part, states: “No judicial review shall be made of the classification or processing of any registrant by local boards, appeal boards, or the President, except as a defense to a criminal prosecution instituted under section 12 of this title, after the registrant has responded either affirmatively or negatively to an order to report for induction, or for civilian work in the case of a registrant determined to be opposed to participation in war in any form: Provided, That such review shall go to the question of the jurisdiction herein reserved to local boards, appeal boards, and the President only when there is no basis in fact for the^ classification assigned to such registrant.” In Oestereich v. Selective Service System Local Board No. 11, 393 U.S. 233, 89 S.Ct. 414, 21 L.Ed.2d 402 (1968), the Court construed that section inapplicable to bar a pre-induction review of action of the local draft board, conceded to be unlawful, which deprived a ministerial student of his exemption from the draft as mandated by the statute. Appellant contends that the Military Selective Service Act of 1967 specifies the order of call to be followed in drafting men for the armed services. Theorizing from Oestereich, Green argues that because his local board issued an induction notice to him contrary to this statutory mandate, the federal courts should intervene" }, { "docid": "12897285", "title": "", "text": "exception to that statute has, however, been judicially carved out in Oestereich v. Selective Service System Local Board No. 11, 393 U.S. 233, 89 S.Ct. 414, 21 L.Ed.2d 402, (1968) and Breen v. Selective Service Local Board No. 16, 396 U.S. 460, 90 S.Ct. 661, 24 L.Ed.2d 653 (1970). Appellant recognizes the jurisdictional impediment facing a full hearing on the merits and thereby contends that his situation is sufficiently identical to Oestereich and Breen to permit our review. In Oestereich, the plaintiff-appellant was enrolled in theology school and was exempted from military service under a IV-D classification. After surrendering his draft card to protest the Vietnam conflict, his local draft board reclassified him I-A and declared him delinquent. An unsuccessful appeal was taken after which Oestereich brought suit in federal court to restrain his induction. The thesis of the Supreme Court’s opinion was that petitioner was assumed to be entitled to the IV-D statutory exemption. Highly summarized, the holding of that case was that unless a registrant is deprived of a statutory exemption, or deferment, in a “blatantly lawless manner,” i. e., where it is “plain on the record and on the face of the Act that an exemption [or deferment] had been granted * * * ” but the registrant is nonetheless declared delinquent for unrelated reasons, the proscription of section 460(b) (3) applies and pre-induction review is prohibited. In Oestereich the exemption granted to divinity students by the Act was plain; the petitioner was clearly a divinity student entitled to such exemption; and the local board was without statutory authority to revoke the classification and declare Oestereich delinquent. In those circumstances pre-induction review is not barred by 50 U.S.C.A. App. § 460(b) (3). Breen had a II-S classification as a student at a Boston school of music. He too surrendered his draft card in protest of the Vietnam war and was thereafter declared delinquent and reclassified I-A. While an administrative appeal was pending, Breen instituted a suit in federal court to enjoin his induction. The Supreme Court ultimately applied Oestereich, allowing pre-induction review, stating that under the Act" }, { "docid": "10598164", "title": "", "text": "this case involving preinduction judicial review of a Selective Service classification. Section 10(b) (3) of the Selective Service Act of 1967 states: “No judicial review shall be made of the classification or processing of any registrant by local boards, appeal boards, or the President, except as a defense to a criminal prosecution. * * *” 50 U.S.C. App. § 460(b) (3) The defendants contend that this flat prohibition against judicial review precludes this court’s jurisdiction over the subject matter. The plaintiff alleges, inter alia, that since Judge Smith found the Gregory case to be a valid class action and this court assumes its validity as such, the case at hand becomes a matter of enforcement of the judgment of the Michigan class action and this court’s only task is to determine whether the plaintiff is a member of the class of plaintiffs named in the Gregory case. This position would at least infer that the court must conclusively presume the prior court’s jurisdiction. The court points out that the issue is not so easily disposed of as suggested by either party. Although § 10(b) (3) appears to prohibit flatly any and all judicial review except as a defense to a criminal prosecution, certain exceptions have been carved out of that broad prohibition. The first exception to be recognized was the right to habeas corpus following induction. See Estep v. United States, 327 U.S. 114, 66 S.Ct. 423, 90 L.Ed. 567 (1946), and Witmer v. United States, 348 U.S. 375, 377, 75 S.Ct. 392, 99 L.Ed. 428 (1955). The most recent area of exception created by the Supreme Court of the United States is that found in Oestereich v. Selective Service System, 393 U.S. 233, 89 S.Ct. 414, 21 L.Ed.2d 402 (1968). That case involved a registrant who was entitled to a IV-D classification under the Selective Service Act and, after participation in anti-war activities, his IV-D exemption was revoked and the registrant was reclassified I-A. In holding that the local Selective Service board could not revoke the mandatory IV-D classification and in allowing judicial review the Supreme Court stated: “We" }, { "docid": "2542973", "title": "", "text": "before he was to report for induction, Shea filed the complaint in the present case in the District Court seeking a declaratory judgment that his induction was illegal and an injunction prohibiting his induction. The District Court dismissed appellant’s complaint for lack of subject matter jurisdiction on the basis of Section 10(b) (3) of the Military Selective Service Act of 1967, as amended, 50 U.S.C. App. § 460(b) (3) (Supp. IV 1965-1968), and Shea appealed. We have withheld decision pending the Supreme Court’s decisions in Oestereich v. Selec tive Service System Local Board No. 11, 393 U.S. 233, 89 S.Ct. 414, 21 L.Ed.2d 402 (1968), and Gutknecht v. United States, 396 U.S. 295, 90 S.Ct. 506, 24 L.Ed.2d 532 (1970). On the basis of the Supreme Court’s decisions in these cases and in Breen v. Selective Service Local Board No. 16, 396 U.S. 460, 90 S.Ct. 661, 24 L.Ed.2d 653 (1970), we think it clear that the District Court’s dismissal must be reversed. I We believe that Gutknecht and Oestereich read together establish that pre-induction judicial review lies whenever the Selective Service System has reclassified a registrant or issued an induction order pursuant to the delinquency regulations struck down in Gutknecht. The Oestereich holding may be divided into two parts: (1) the use of the delinquency regulations to deprive a registrant of a statutory “exemption” to which he was otherwise entitled was unauthorized by the statute; and (2) Section 10(b) (3) does not preclude pre-induction judicial review of such “blatantly lawless” conduct by a local board. Gutknecht explicitly took the first half of the Oestereich holding and broadened it to invalidate the entire delinquency procedure as unauthorized by the statute. In reversing Gutknecht’s conviction of failure to report for induction, the Court explicitly noted that in Gutknecht’s case “no ‘exemption,’ no ‘deferment,’ no ‘classification’ in the statutory sense is involved. ‘Delinquency’ was used here not to change a classification but to accelerate petitioner’s induction * * * ; and it was that difference which led the Court of Appeals to conclude that what we said in Ostereich was not controlling" }, { "docid": "4011813", "title": "", "text": "pleads jurisdiction under § 1361, which provides: The district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff. Assuming, as we must at this point, that Plaintiff is clearly entitled to a I-S deferment, his local board has an affirmative duty to give him the classification. § 1361 gives this Court authority to compel the Board to perform that duty. Assuming arguendo that this Court would otherwise have jurisdiction under either § 1331 or § 1361 or both, the Defendants claim that the jurisdiction has been specifically denied by § 10(b) (3) of the Act, which provides in part: No judicial review shall be made of the classification or processing of any registrant by local boards, appeal boards, or the President, except as a defense to a criminal prosecution instituted * * * after the registrant has responded either affirmatively or negatively to an order to report for induction * * *. There is no escaping that this is essentially a case of pre-induction judicial review of the classification or processing of a registrant by a local selective service board, so, read literally, § 10(b) (3) would indeed preclude this Court from exercising jurisdiction over the case. But, “no one, we believe, suggests that § 10(b) (3) can sustain a literal reading.” Oestereich v. Selective Service System Local Board No. 11, 393 U.S. 233, 238, 89 S.Ct. 414, 417, 21 L.Ed.2d 402, 406. The Supreme Court, in two recent cases, has set out the guidelines for deciding when there is to be an exception to § 10(b) (3), when there can be pre-induction judicial review of draft classifications. In Clark v. Gabriel, 393 U.S. 256, 89 S.Ct. 424, 21 L.Ed.2d 418, the Court in a per curiam opinion said the constitutional § 10(b) (3) precluded review of the I-A classification of a registrant claiming to be a conscientious objector. The Court pointed out that the question of whether or not a registrant should properly" } ]

[ { "docid": "22237707", "title": "", "text": "ADEA claims, Plaintiffs were required to prove, inter alia, that Defendant was their employer. 42 U.S.C. § 2000e-2; 28 U.S.C. § 623. Whether Defendant was Plaintiffs’ employer depends upon whether Defendant is liable for the acts of its subsidiary, Northwestern Bell. The law allows businesses to incorporate to limit liability and isolate liabilities among separate entities. See Cascade Energy & Metals Corp. v. Banks, 896 F.2d 1567, 1576 (10th Cir.), cert. denied, 498 U.S. 849, 111 S.Ct. 138, 112 L.Ed.2d 105 (1990). One way liability is limited in corporations is that shareholders generally are not liable for the acts of the corporation. NLRB v. Deena Artware, Inc., 361 U.S. 398, 402-03, 80 S.Ct. 441, 443-44, 4 L.Ed.2d 400 (1960). The doctrine of limited liability creates a strong presumption that a parent company is not the employer of its subsidiary’s employees, and the courts have found otherwise only in extraordinary circumstances. Johnson v. Flowers Indus., Inc., 814 F.2d 978, 980-81 (4th Cir.1987). Depending on the facts of the case before them, the courts have applied four different tests to determine whether a parent corporation is liable for the acts of its subsidiary. While we decline to adopt any one of these tests as the exclusive test for use in-all employment discrimination cases, we today apply the integrated enterprise test because Plaintiffs and Defendant concede that this test best applies to the facts of this case. Under the integrated enterprise test, the following four factors are considered: (1) interrelation of operations, (2) centralized control of labor relations, (3) common management, and (4) common ownership or financial control. Evans v. McDonald’s Corp., 936 F.2d 1087, 1089 (10th Cir.1991). We apply these factors and conclude that, as a matter of law, Defendant is not liable as an employer for the acts of Northwestern Bell because Plaintiffs have failed to present evidence that the two companies were integrated. 1. Interrelation of Operations Plaintiffs presented no evidence that Northwestern Bell’s operations were interrelated with those of Defendant, but instead asserted that interrelated operations could be inferred from the interrelation of operations between Northwestern Bell, Mountain Bell" } ]

[ { "docid": "12956416", "title": "", "text": "Cir.1995); McKenzie v. Davenport-Harris Funeral Home, 834 F.2d 930, 933 n. 3 (11th Cir.1987); Childs v. Local 18, Int’l Bhd. of Elec. Workers, 719 F.2d 1379, 1382 (9th Cir.1983); Trevino v. Celanese Corp., 701 F.2d 397, 403-404 (5th Cir.1983). Papa, the case cited by U-Haul as applying agency principles, identified three instances in which it would be appropriate for a parent and subsidiary to be treated as a single employer under Title VII:(1) where the two corporations would be treated as one (“piercing the corporate veil”) with regard to creditors’ claims under corporate law; (2) where the subsidiary has been created to escape liability under the anti-discrimination laws; or, (3) where the parent corporation “directed the discussion, act, practice, or policy of which the employee of its subsidiary was complaining.” Papa, 166 F.3d at 941. The Seventh Circuit’s primary criticism of the four-factor integrated-enterprise test is that it could subject small firms to Title VII liability that should be protected by the fewer than fifteen (or twenty) employees exemption. See id. at 940. “[W]e are hesitant to find an error ‘plain’ where, as in this case, the legal basis for the proposed instruction ... is not ‘clearly established.’ ” Elwood v. Pina, 815 F.2d 173, 176 (1st Cir.1987). The district court cannot be said to have committed plain error by following the bulk of available precedent on the issue. Appellant’s argument that the integrated-enterprise test should not have applied and that agency principles should have been substituted has been forfeited for failing to meet the requirement of Rule 51 and for failing to bring the issue before the district court at any time during the proceedings. Instructing the jury on an integrated-enterprise test to determine single-employer status resulted in no miscarriage of justice. Nor did the instruction affect the fairness and integrity of the judicial proceeding. Accordingly, the district court’s instruction was not plain error and is affirmed. B. U-Haul’s next argument is that the instruction on the integrated-enterprise test was incorrect. Our review of jury instructions is de novo to ascertain whether the challenged instruction has “a tendency to" }, { "docid": "6663767", "title": "", "text": "must be considered an “employer” within the meaning of the ADEA, 29 U.S.C. § 630(b), according to any of the accepted tests for parent corporation responsibility. In determining whether a parent corporation should be considered amenable to suit, Courts have generally applied one of three tests: (1) the “integrated enterprise” test; (2) the “alter ego” test or the (3) “mere instrumentality” test. The integrated enterprise test, which has been specifically applied to ADEA cases, states that “the appropriate standard for determining whether nominally separate corporations are to be considered a single employer is whether they comprise an integrated enterprise.” Marshall v. Arlene Knitwear, Inc., 454 F.Supp. 715 (E.D.N.Y.1978) . Accord, Linskey v. Heidelberg Eastern, Inc., 470 F.Supp. 1181, 1184 (E.D.N.Y.1979) ; Woodford v. Kinney Shoe Corporation, 369 F.Supp. 911 (N.D.Ga.1973). The “integrated enterprise” test for determining whether a parent corporation is an employer was first developed in labor relations cases. See Radio & Television Broadcast Technicians Local Union 1264 v. Broadcast Service of Mobile, Inc., 380 U.S. 255, 85 S.Ct. 876, 13 L.Ed.2d 789 (1965). It was later applied to cases involving Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e. See, e.g., Williams v. New Orleans Steamship Association, 341 F.Supp. 613, 615 (E.D.La.1972). A test of corporate identity applied in Title VII cases is equally appropriate to a suit brought pursuant to the ADEA. The U. S. Supreme Court has held that the ADEA and Title VII should be construed similarly in light of their common language and purpose. See Oscar Mayer and Co. v. Evans, 441 U.S. 750, 756, 99 S.Ct. 2066, 2071, 60 L.Ed.2d 609 (1979). In applying the integrated enterprise test, the Court assesses the (1) interrelation of operations, (2) common management, (3) centralized control of labor relations, and (4) common ownership or financial control existing between the parent corporation and the subsidiary. Under the alter ego test, a court may disregard a parent corporation’s separate existence when one corporation is merely the alter ego of another and where such disregard of the corporate form is necessary to “prevent fraud, illegality, or" }, { "docid": "12956415", "title": "", "text": "what the proper test for determining employer status under Title VII is. In Mas Marques v. Digital Equipment Corp., 637 F.2d 24 (1st Cir.1980), we upheld the district court’s holding that the plaintiffs single-employer claim did not meet the standards of any of the possible tests. We identified three “recognized” methods for determining whether a single employer exists under Title VII: the integrated-enterprise test, the corporate law “sham” test, and the agency test. See id. at 27. None of the three tests were explicitly adopted or excluded by the First Circuit. The integrated-enterprise test currently appears to be the standard adopted, or at least applied, by a majority of circuits that have reached the issue. See Hukill v. Auto Care, Inc., 192 F.3d 437, 442 (4th Cir.1999) (FMLA, rather than Title VII claim); Knowlton v. Teltrust Phones, Inc., 189 F.3d 1177, 1184 (10th Cir.1999) (applying integrated-enterprise test without explicitly adopting it); Swallows v. Barnes & Noble Book Stores, Inc., 128 F.3d 990, 993-94 (6th Cir.1997); Cook v. Arrowsmith Shelburne, Inc., 69 F.3d 1235, 1240 (2d Cir.1995); McKenzie v. Davenport-Harris Funeral Home, 834 F.2d 930, 933 n. 3 (11th Cir.1987); Childs v. Local 18, Int’l Bhd. of Elec. Workers, 719 F.2d 1379, 1382 (9th Cir.1983); Trevino v. Celanese Corp., 701 F.2d 397, 403-404 (5th Cir.1983). Papa, the case cited by U-Haul as applying agency principles, identified three instances in which it would be appropriate for a parent and subsidiary to be treated as a single employer under Title VII:(1) where the two corporations would be treated as one (“piercing the corporate veil”) with regard to creditors’ claims under corporate law; (2) where the subsidiary has been created to escape liability under the anti-discrimination laws; or, (3) where the parent corporation “directed the discussion, act, practice, or policy of which the employee of its subsidiary was complaining.” Papa, 166 F.3d at 941. The Seventh Circuit’s primary criticism of the four-factor integrated-enterprise test is that it could subject small firms to Title VII liability that should be protected by the fewer than fifteen (or twenty) employees exemption. See id. at 940. “[W]e are" }, { "docid": "23347722", "title": "", "text": "See Frank v. U.S. West, Inc., 3 F.3d 1357, 1361 (10th Cir.1993). Whether an entity is an employer under Title VII usually arises as an issue in the following contexts: (1) where a plaintiff who is directly employed by a franchisee or subsidiary wishes to hold the franchisor or parent company liable for the discriminatory conduct of its franchisee’s or subsidiary’s employees; and (2) where it is unclear whether a plaintiff is an independent contractor or an employee of an entity. Courts have straggled with a variety of tests to determine whether a plaintiff has demonstrated an employee-employer relationship for Title VII purposes. In Lambertsen v. Utah Dep’t of Corrections, 79 F.3d 1024 (10th Cir.1996), we identified three approaches: (1) the common law agency inquiry; (2) the “hybrid” common law-economic realities method; and (3) the single employer or true economic realities test. Id. at 1024; see also 1 Lex K. Larson, Employment Discrimination § 4.02, at 4-11 to 4-12 (2d ed.1998). Under the common law agency inquiry, the focus is on whether the putative employer “controls the means and manner by which work is accomplished.” Lambertsen, 79 F.3d at 1028. The hybrid method combines the focus on the common law right to control with additional factors relating to the degree of economic dependence of the worker on the putative employer. See id. at 1028; 1 Larson, supra, § 4.02, at 4-12. The third approach is used by courts that have “turned for guidance to a test promulgated by the National Labor Relations Board.” Evans v. McDonald’s Corp., 936 F.2d 1087, 1089 (10th Cir.1991). Under this approach, which is known as the “single employer,” “economic realities,” or “integrated enterprise” test, courts consider the following factors: interrelation of operations, centralized control of labor relations, common management, and common ownership or financial control. See id. (citing McKenzie v. Davenport-Harris Funeral Home, 834 F.2d 930, 933 (11th Cir. 1987)). Unlike the “stringent” common law approach, which “tends to exclude the greatest number of persons from Title VII coverage,” 1 Larson, supra, § 4.02, at 4-12, courts adopting the single employer test have emphasized that" }, { "docid": "22833737", "title": "", "text": "determine whether nominally separate firms constituted “neutral” entities in the context of secondary boycotts, and to determine whether an employer had impermissibly “double-breasted” operations so as to avoid the obligations of a collective bargaining agreement. See id. at 75-76. Since its initial formulation, the test has been applied by courts in other employment contexts, including the Labor Management Relations Act, see International Bhd. of Teamsters Local 952 v. American Delivery Serv. Co., Inc., 50 F.3d 770 (9th Cir.1995); Title VII and the Age Discrimination in Employment Act, see Frank v. U.S. West, Inc., 3 F.3d 1357 (10th Cir.1993); the Americans with Disabilities Act, see EEOC v. Chemtech Int’l Corp., 890 F.Supp. 623 (S.D.Tex.1995); and the Fair Labor Standards Act, see Takacs v. Hahn Auto. Corp., No. C-3-95-404, 1999 WL 33117265 (S.D.Ohio Jan. 4, 1999). But see Papa v. Katy Indus., Inc., 166 F.3d 937, 940-43 (7th Cir.1999) (rejecting the integrated enterprise test in the context of antidiscrimination law). Department of Labor regulations have also adopted the integrated enterprise test for the Family Medical Leave Act. See 29 C.F.R. § 825.104(c)(2). The integrated enterprise test, with its focus only on labor relations and its emphasis on economic realities as opposed to corporate formalities, see Phillip I. Blum-berg, The Law of Corporate Groups: Problems of Parent and Subsidiary Corporations Under Statutory Law of General Application § 13.03, at 398 (1989), is demonstrably easier on plaintiffs than traditional veil piercing. Ultimately, “the policy underlying the single employer doctrine is the fairness of imposing liability for labor infractions where two nominally independent entities do not act under an arm’s length relationship.” Murray v. Miner, 74 F.3d 402, 405 (2d Cir.1996). 3. Direct Liability Although not often employed to hold parent corporations liable for the acts of subsidiaries in the absence of other hallmarks of overall integration of the two operations, it has long been acknowledged that parents may be “directly” liable for their subsidiaries’ actions when the “alleged wrong can seemingly be traced to the parent through the conduit of its own personnel and management,” and the parent has interfered with the subsidiary’s operations" }, { "docid": "14824584", "title": "", "text": "is also undisputed that Southern Bell is plaintiffs employer. Plaintiff maintains that BellSouth, as the parent company of Southern Bell, is also plaintiff’s employer within the meaning of the ADEA because BellSouth exerts considerable control over Southern Bell’s management and personnel policies. The ADEA describes an employer as a: person engaged in industry affecting commerce who has twenty or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year ... the term also means (1) any agent of such person.... 29 U.S.C. § 630(b). As a general rule, a parent company will be considered a separate corporate entity from its wholly owned subsidiary. Baker v. Raymond International, Inc., 656 F.2d 173 (5th Cir., Unit A, 1981). However, where a parent company exercises such control over a subsidiary that the two corporations are essentially the same entity, a parent corporation will be considered the employer of its subsidiary’s personnel. See Woodford v. Kinney Shoe Corp., 369 F.Supp. 911 (N.D.Ga.1973) (Smith, C.J.). Courts have formulated several tests to determine whether a parent company’s control over a subsidiary is such that the parent should be held liable for the subsidi ary’s discriminatory treatment of its employees. The four tests, discussed in detail below, are (1) the “integrated enterprise” test, (2) the “agency” test, (3) the “alter ego” test, and (4) the “mere instrumentality” test. A.The “Integrated Enterprise” Test The “integrated enterprise” test had its genesis in labor law. The National Labor Relations Board (“NLRB”) first applied this four test part test to determine whether a consolidation of separate corporate entities was warranted. The quadripartite test entails proof of the following: (1) an interrelation of operations (2) common management (3) centralized control of labor relations, and (4) common ownership or financial control. See Radio & Television Broadcast Technicians, Local Union 1264, International Brotherhood of Electrical Workers, AFL-CIO v. Broadcast Service of Mobile, Inc., 380 U.S. 255, 85 S.Ct. 876, 13 L.Ed.2d 789 (1965). The “integrated enterprise” test was soon applied to Title VII litigation to determine whether an active parent corporation, supervising and" }, { "docid": "15005286", "title": "", "text": "citizens employed abroad by American employers, or by foreign affiliates controlled by such employers, the same protections from discrimination they would enjoy at home. Therefore, Congress plainly intended the term “employer” be interpreted in accord with the four-factor integrated enterprise test. The Fourth Circuit, in deciding whether a parent corporation is liable for unlawful discrimination against a subsidiary’s employees, has emphasized “the doctrine of limited liability” derived from corporate law and applies “a strong presumption” that “when a subsidiary hires employees ... the subsidiary, not the parent company, is the employer.” Johnson v. Flowers Indus., Inc., 814 F.2d 978, 980 (4th Cir.1987). “In an employment context,” the court held, the parent company can be the employer of a subsidiary’s workers if it exercises excessive control in one of two ways. The parent could control the employment practices and decisions of the subsidiary or the parent might so dominate the subsidiary’s operations that the parent and the subsidiary are one entity and thus one employer. Id. at 981. The Fourth Circuit acknowledged the four-factor test applied by this and other courts to assess the degree of control exercised by a parent corporation over a subsidiary, but saw no “need [to] adopt such a mechanical test in every instance; the factors all point to the ultimate inquiry of parent domination” and “simply express relevant evidentiary inquiries whose importance will vary with the individual case.” Id. at 981 n*. The Tenth Circuit has adopted Johnson, reasoning a “strong presumption that a parent company is not the employer of its subsidiary’s employees” will be overcome “only in extraordinary circumstances.” Frank v. U.S. West, Inc., 3 F.3d 1357, 1362 (10th Cir.1993) (citing Johnson, 814 F.2d at 980-81). Recently, our court in Brown v. Fred’s, Inc., 494 F.3d 736, 739 (8th Cir.2007), applied “a strong presumption that a parent company is not the employer of its subsidiary’s employees,” id. (quoting Frank and citing Johnson), and held a Title VII plaintiff to the standard announced in Johnson: “A parent company may employ its subsidiary’s employees if (a) the parent company so dominates the subsidiary’s operations that the" }, { "docid": "23347723", "title": "", "text": "“controls the means and manner by which work is accomplished.” Lambertsen, 79 F.3d at 1028. The hybrid method combines the focus on the common law right to control with additional factors relating to the degree of economic dependence of the worker on the putative employer. See id. at 1028; 1 Larson, supra, § 4.02, at 4-12. The third approach is used by courts that have “turned for guidance to a test promulgated by the National Labor Relations Board.” Evans v. McDonald’s Corp., 936 F.2d 1087, 1089 (10th Cir.1991). Under this approach, which is known as the “single employer,” “economic realities,” or “integrated enterprise” test, courts consider the following factors: interrelation of operations, centralized control of labor relations, common management, and common ownership or financial control. See id. (citing McKenzie v. Davenport-Harris Funeral Home, 834 F.2d 930, 933 (11th Cir. 1987)). Unlike the “stringent” common law approach, which “tends to exclude the greatest number of persons from Title VII coverage,” 1 Larson, supra, § 4.02, at 4-12, courts adopting the single employer test have emphasized that a broad interpretation should be given to the employer and employee provisions of Title VII to effect its remedial purpose. See Armbruster v. Quinn, 711 F.2d 1332, 1336 (6th Cir.1983). The single employer test is therefore the approach most urged by plaintiffs in Title VII actions. See, e.g., Lambertsen, 79 F.3d at 1029; Evans, 936 F.2d at 1089. The trend in Title VII cases appears to be in favor of adopting this test. See Cook v. Arrowsmith Shelburne, Inc., 69 F.3d 1235, 1241 (2d Cir.1995) (“We believe that the appropriate test under Title VII for determining when parent companies may be considered employers of a subsidiary’s employees is the four-part [NLRB] test adopted by the Fifth, Sixth, and Eighth circuits.”). We have yet to adopt the single employer test, having found it unnecessary in several cases to resolve the issue definitively. See, e.g., Lambertsen, 79 F.3d at 1029; Frank, 3 F.3d at 1362; Evans, 936 F.2d at 1090; see also Whitaker v. Professional Investors Ins. Group, 977 F.2d 597, 1992 WL 279245, at *1 (10th" }, { "docid": "14824585", "title": "", "text": "tests to determine whether a parent company’s control over a subsidiary is such that the parent should be held liable for the subsidi ary’s discriminatory treatment of its employees. The four tests, discussed in detail below, are (1) the “integrated enterprise” test, (2) the “agency” test, (3) the “alter ego” test, and (4) the “mere instrumentality” test. A.The “Integrated Enterprise” Test The “integrated enterprise” test had its genesis in labor law. The National Labor Relations Board (“NLRB”) first applied this four test part test to determine whether a consolidation of separate corporate entities was warranted. The quadripartite test entails proof of the following: (1) an interrelation of operations (2) common management (3) centralized control of labor relations, and (4) common ownership or financial control. See Radio & Television Broadcast Technicians, Local Union 1264, International Brotherhood of Electrical Workers, AFL-CIO v. Broadcast Service of Mobile, Inc., 380 U.S. 255, 85 S.Ct. 876, 13 L.Ed.2d 789 (1965). The “integrated enterprise” test was soon applied to Title VII litigation to determine whether an active parent corporation, supervising and controlling the operations of its subsidiary, would be considered the “employer” of the subsidiary’s personnel for purposes of the Act. See, e.g., Williams v. New Orleans Steamship Association, 341 F.Supp. 613, 615 (E.D.La.1972), Baker v. Stuart Broadcasting Co., 560 F.2d 389 (8th Cir.1977). This “integrated enterprise” test is “well suited” to Title VII cases because it allows courts to read the term “employer” in a manner consistent with the purposes of the Act. See Carter v. Shop Rite Foods, Inc., 470 F.Supp. 1150, 1160 (N.D.Tex.1979). The test is similarly applicable to ADEA cases. Oscar Mayer & Company v. Evans, 441 U.S. 750, 756, 99 S.Ct. 2066, 2071, 60 L.Ed.2d 609 (1979) (holding that interpretation of the ADEA should follow Title VII construction, given the common language and purposes of the two acts), see also Berkowitz v. Allied Stores of Penn-Ohio Inc., 541 F.Supp. 1209 (E.D.Pa.1982). By applying the four prongs of the “integrated enterprise” test to demonstrate a joint enterprise of the parent and subsidiary, the plaintiff can demonstrate that a parent company should be" }, { "docid": "14210588", "title": "", "text": "of retaliation under Title VII, the plaintiff must show (1) the employee engaged in protected opposition to statutorily prohibited discrimination or participated in a statutorily protected proceeding, (2) the employer took adverse action contemporaneously or subsequent to the employee’s protected activity, and (3) a causal connection exists between the protected activity and the adverse employment action. Meredith v. Beech Aircraft Corp., 18 F.3d 890, 896 (10th Cir.1994). III. Integrated Enterprise Theory The Tenth circuit has recognized four different tests for determining whether a parent corporation is liable for the acts of its subsidiary. Spicer v. Arbor Nall Nursery, Inc., Civ.A. No. 93-2537-EEO, 1995 WL 42660, at *3 (D.Kan. Jan. 18, 1995). The four tests are: (1) agency test; (2) alter ego test; (3) instrumentality test; and (4) integrated enterprise test. Id. The Tenth Circuit has declined to adopt any one as the exclusive test for use in all employment discrimination cases. See Frank v. U.S. West, Inc., 3 F.3d 1357, 1362 (10th Cir.1993). The integrated enterprise test was adopted by the National Labor Relations Board as a self-imposed jurisdictional restriction on the definition of “employer” under Title VII. See NLRB v. Welcome-American Fertilizer Co., 443 F.2d 19 (9th Cir.1971). The integrated enterprise test prevents the court from imposing liability on a parent corporation when, in fact, the parent corporation and its subsidiary are operating indepen-' dently. See id. In Evans v. McDonald’s Corp., 936 F.2d 1087, 1089 (10th Cir.1991), the Tenth circuit applied the integrated enterprise test to define “employer” in a Title VII case. In the Evans and Frank decisions, both the plaintiff and the defendant conceded that the integrated enterprise test best applied to the facts. In the instant case, the defendants do not challenge the plaintiffs’ reliance upon the integrated enterprise test. The court will, therefore, apply it to the facts of this case. Under this test the court must weigh four factors to determine whether sufficient integration exists to treat the parent corporation and the subsidiary as a single, integrated “employer.” Radio & T.V. Local 1264 v. Broadcast Serv., Inc., 380 U.S. 255, 256, 85 S.Ct." }, { "docid": "14210587", "title": "", "text": "order to establish a claim of constructive discharge under Title VII, a plaintiff must show that the defendant’s conduct produced working conditions that a reasonable person would view as intolerable. Daemi, 931 F.2d at 1386. The intolerable conditions must be the result of the employer’s illegal discriminatory acts, Derr, 796 F.2d at 344, and the plaintiff must show a causal connection between her leaving and the employer’s Title VII violation. Wolf v. Burum, No. 88-1233-C, 1990 WL 81219, at *9 (D.Kan. May 16, 1990). C. Retaliation Title VII prohibits an employer from discriminating against an employee because the employee “has opposed any practice made an unlawful employment practice by this subchapter, or because [the employee] has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this sub-chapter.” Schindler v. Larry’s IGA, Inc., No. 92-1033-PFK, 1994 WL 324563 at *9 (D.Kan. June 16, 1994) (quoting 42 U.S.C. 2000e-3(a)). Mr. Harrison contends he was discharged in retaliation for complaining about unlawful discriminatory conduct. To establish a prima facie case of retaliation under Title VII, the plaintiff must show (1) the employee engaged in protected opposition to statutorily prohibited discrimination or participated in a statutorily protected proceeding, (2) the employer took adverse action contemporaneously or subsequent to the employee’s protected activity, and (3) a causal connection exists between the protected activity and the adverse employment action. Meredith v. Beech Aircraft Corp., 18 F.3d 890, 896 (10th Cir.1994). III. Integrated Enterprise Theory The Tenth circuit has recognized four different tests for determining whether a parent corporation is liable for the acts of its subsidiary. Spicer v. Arbor Nall Nursery, Inc., Civ.A. No. 93-2537-EEO, 1995 WL 42660, at *3 (D.Kan. Jan. 18, 1995). The four tests are: (1) agency test; (2) alter ego test; (3) instrumentality test; and (4) integrated enterprise test. Id. The Tenth Circuit has declined to adopt any one as the exclusive test for use in all employment discrimination cases. See Frank v. U.S. West, Inc., 3 F.3d 1357, 1362 (10th Cir.1993). The integrated enterprise test was adopted by the National Labor Relations Board" }, { "docid": "9384565", "title": "", "text": "is liable for the acts of its subsidiary.” Frank, 3 F.3d at 1362. These tests are: (1) the “agency” test under which the plaintiffs must establish that the parent exercised a significant degree of control over the subsidiary’s decisionmaking; (2)' the “alter ego” test which is founded in equity and permits the court to pierce the corporate veil when the court must prevent fraud, illegality or injustice, or when recognition of the corporate entity would defeat public policy or shield someone from liability from a crime; (3) the “instrumentality” test under which the plaintiff must establish that the parent exercises extensive control over the acts of the subsidiary giving rise to the claim of wrongdoing; and (4) the “integrated enterprise” test under which the court considers (a) interrelation of operations, (b) centralized control of labor relations, (c) common management, and (d) common ownership or financial control. Id. at 1362 n. 2 (citations omitted). Regardless of which test the Court applies herein, its analysis does not terminate upon reaching the undisputed conclusion that BAC and its subsidiaries are formally distinct corporate entities, as the defendants appear to suggest. To the contrary, it is only the beginning of. the analysis, whereupon the Court must determine the degree of control, if any, Bell Atlantic Corporation exercises over its subsidiaries’ employment practices. To the Court’s knowledge, this Circuit has yet to address the proper test to apply when determining whether a parent company should be held liable for the alleged discriminatory acts of its subsidiaries. However, the clear majority of circuits to have addressed the issue have applied the four-factor “integrated enterprise” test noted above. See Cook v. Arrowsmith Shelburne, Inc., 69 F.3d 1235, 1241 (2nd Cir.1995); Garcia v. Elf Atochem North America, 28 F.3d 446, 450 (5th Cir.1994); Frank v. U.S. West, Inc., 3 F.3d 1357, 1362 (10th Cir.1993); Johnson v. Flowers Indus., Inc., 814 F.2d 978, 980 (4th Cir.1987); Baker v. Stuart Broadcasting, 560 F.2d 389, 392 (8th Cir.1977); accord St. Francis Xavier Parochial School, 928 F.Supp. at 33. Thus, the Court herein shall apply the integrated enterprise test to the evidence" }, { "docid": "9384566", "title": "", "text": "subsidiaries are formally distinct corporate entities, as the defendants appear to suggest. To the contrary, it is only the beginning of. the analysis, whereupon the Court must determine the degree of control, if any, Bell Atlantic Corporation exercises over its subsidiaries’ employment practices. To the Court’s knowledge, this Circuit has yet to address the proper test to apply when determining whether a parent company should be held liable for the alleged discriminatory acts of its subsidiaries. However, the clear majority of circuits to have addressed the issue have applied the four-factor “integrated enterprise” test noted above. See Cook v. Arrowsmith Shelburne, Inc., 69 F.3d 1235, 1241 (2nd Cir.1995); Garcia v. Elf Atochem North America, 28 F.3d 446, 450 (5th Cir.1994); Frank v. U.S. West, Inc., 3 F.3d 1357, 1362 (10th Cir.1993); Johnson v. Flowers Indus., Inc., 814 F.2d 978, 980 (4th Cir.1987); Baker v. Stuart Broadcasting, 560 F.2d 389, 392 (8th Cir.1977); accord St. Francis Xavier Parochial School, 928 F.Supp. at 33. Thus, the Court herein shall apply the integrated enterprise test to the evidence presented to determine if there is a genuine issue. In applying the integrated enterprise test, courts have noted the following to be probative evidence that the parent employs the subsidiary’s employees for purposes of Title VII liability: (1) Parent company employees hired and fired the subsidiary employees and/or authorized lay offs, recalls, and promotions of such employees. See Cook, 69 F.3d at 1241; Frank, 3 F.3d at 1362; Johnson, 814 F.2d at 981; Trevino v. Celanese Corp., 701 F.2d 397, 404 (5th Cir.1983). (2) The parent company routinely transferred employees between it and its subsidiary, used the same work force, and/or handled the subsidiary’s payroll. See Johnson, 814 F.2d at 981; Armbruster v. Quinn, 711 F.2d 1332, 1338 (6th Cir.1983). (3) The parent company exercises more than general oversight of the subsidiary’s operations by supervising the subsidiary’s daily operations, such as production, distribution, purchasing, marketing, advertising, and accounts receivable. See Cook, 69 F.3d at 1241; Johnson, 814 F.2d at 981-82; Armbruster, 711 F.2d at 1338. (4) The parent and subsidiary have common management in the" }, { "docid": "15005285", "title": "", "text": "VII and the [ADA] to American citizens working overseas for American employers,” by enacting a provision that “parallels a 1984 amendment to the [ADEA].” 137 Cong. Rec. S15235-02 (Sen.Kennedy) (Oct. 25, 1991); see also 137 Cong. Rec. S15477-01 (Sen.Dole) (Oct. 30, 1991) (same). In do ing so, Congress again approved the four-factor integrated enterprise test to determine when an employer will be presumed liable for the unlawful employment practices of a subsidiary or corporate affiliate. “A foreign entity will be found to be controlled only if it is, in effect, an integrated enterprise with an American employer.” EEOC Enforcement Guidance: Application of Title VII and the [ADA] to Conduct Overseas and to Foreign Employers Discriminating in the United States, No. N-915.002 at 4, 18 n. 6 (Oct. 20, 1993) (“The factors identified ... are the same as those relied upon by the Commission for determining when two or more entities (whether foreign or domestic) may be treated as an integrated enterprise or a single employer.”). The intent of these amendments was to extend to U.S. citizens employed abroad by American employers, or by foreign affiliates controlled by such employers, the same protections from discrimination they would enjoy at home. Therefore, Congress plainly intended the term “employer” be interpreted in accord with the four-factor integrated enterprise test. The Fourth Circuit, in deciding whether a parent corporation is liable for unlawful discrimination against a subsidiary’s employees, has emphasized “the doctrine of limited liability” derived from corporate law and applies “a strong presumption” that “when a subsidiary hires employees ... the subsidiary, not the parent company, is the employer.” Johnson v. Flowers Indus., Inc., 814 F.2d 978, 980 (4th Cir.1987). “In an employment context,” the court held, the parent company can be the employer of a subsidiary’s workers if it exercises excessive control in one of two ways. The parent could control the employment practices and decisions of the subsidiary or the parent might so dominate the subsidiary’s operations that the parent and the subsidiary are one entity and thus one employer. Id. at 981. The Fourth Circuit acknowledged the four-factor test applied" }, { "docid": "14824586", "title": "", "text": "controlling the operations of its subsidiary, would be considered the “employer” of the subsidiary’s personnel for purposes of the Act. See, e.g., Williams v. New Orleans Steamship Association, 341 F.Supp. 613, 615 (E.D.La.1972), Baker v. Stuart Broadcasting Co., 560 F.2d 389 (8th Cir.1977). This “integrated enterprise” test is “well suited” to Title VII cases because it allows courts to read the term “employer” in a manner consistent with the purposes of the Act. See Carter v. Shop Rite Foods, Inc., 470 F.Supp. 1150, 1160 (N.D.Tex.1979). The test is similarly applicable to ADEA cases. Oscar Mayer & Company v. Evans, 441 U.S. 750, 756, 99 S.Ct. 2066, 2071, 60 L.Ed.2d 609 (1979) (holding that interpretation of the ADEA should follow Title VII construction, given the common language and purposes of the two acts), see also Berkowitz v. Allied Stores of Penn-Ohio Inc., 541 F.Supp. 1209 (E.D.Pa.1982). By applying the four prongs of the “integrated enterprise” test to demonstrate a joint enterprise of the parent and subsidiary, the plaintiff can demonstrate that a parent company should be liable for its subsidiary's actions. See Nation v. Winn-Dixie Stores, Inc., 567 F.Supp. 997, 1010 (N.D.Ga.1983) (Evans, J.), Greason v. Southeastern Railroad Associated Bureaus, 650 F.Supp. 1, 4 (N.D.Ga.1986) (Ward, J.), EEOC v. Upjohn Corp., 445 F.Supp. 635 (N.D.Ga.1977) (Murphy, J.). B. The “Agency” Test Courts which have applied the “integrated enterprise” test frequently undertake an additional inquiry to determine whether the subsidiary can be considered a mere agent of the parent corporation. This “agency” test stems from the definition of “employer” as laid out in 29 U.S.C. § 630(b). Under Section 630(b), an agent of a corporate employer is also considered an employer. See Nation, 567 F.Supp. at 997, Greason, 650 F.Supp. at 1. Thus, where a subsidiary is deemed to act as the parent company’s agent, both the subsidiary and the parent will be deemed the employer of the subsidiary’s personnel for the purposes of the ADEA. C. The “Alter Ego” Test Under the third test, the “alter ego” test, the court examines whether the subsidiary corporation is a separate entity from the" }, { "docid": "22833736", "title": "", "text": "as are other aspects of corporate functioning. See Nance, WARN Act, supra, at 533. Rather, the test looks to four labor-related characteristics of affiliated corporations: interrelation of operations; common management; centralized control of labor relations; and common ownership or financial control. See, e.g., Radio & Television Broad. Techs. Local Union 1264 v. Broadcast Serv. of Mobile, 380 U.S. 255, 256, 85 S.Ct. 876, 13 L.Ed.2d 789 (1965) (per curiam). No single factor is dispositive; rather, single employer status under this test “ultimately depends on all the circumstances of the case.” NLRB v. Browning-Ferris Indus. of Pa., Inc., 691 F.2d 1117, 1122 (3d Cir.1982). As originally designed, the integrated enterprise test was used by the National Labor Relations Board to determine whether two firms were sufficiently related to meet its jurisdictional minimum amount of business volume. See Stephen F. Befort, Labor Law and the Double-Breasted Employer: A Critique of the Single Employer and Alter Ego Doctrines and a Proposed Reformulation, 1987 Wis. L. Rev. 67, 75. Later, the Board came to use the same test to determine whether nominally separate firms constituted “neutral” entities in the context of secondary boycotts, and to determine whether an employer had impermissibly “double-breasted” operations so as to avoid the obligations of a collective bargaining agreement. See id. at 75-76. Since its initial formulation, the test has been applied by courts in other employment contexts, including the Labor Management Relations Act, see International Bhd. of Teamsters Local 952 v. American Delivery Serv. Co., Inc., 50 F.3d 770 (9th Cir.1995); Title VII and the Age Discrimination in Employment Act, see Frank v. U.S. West, Inc., 3 F.3d 1357 (10th Cir.1993); the Americans with Disabilities Act, see EEOC v. Chemtech Int’l Corp., 890 F.Supp. 623 (S.D.Tex.1995); and the Fair Labor Standards Act, see Takacs v. Hahn Auto. Corp., No. C-3-95-404, 1999 WL 33117265 (S.D.Ohio Jan. 4, 1999). But see Papa v. Katy Indus., Inc., 166 F.3d 937, 940-43 (7th Cir.1999) (rejecting the integrated enterprise test in the context of antidiscrimination law). Department of Labor regulations have also adopted the integrated enterprise test for the Family Medical Leave Act." }, { "docid": "9384564", "title": "", "text": "employer for purposes of their discrimination claims, that is, if the plaintiffs are or were all employees of BAC subsidiaries, they cannot be and could not have been employees of BAC at the same time. Such an assertion is wrong as a matter- of law. Rather, in the parent-subsidiary context, the question of whether a parent is an “employer” turns “upon whether [the parent] is liable for the acts of its subsidiary ...” Frank v. U.S. West, Inc., 3 F.3d 1357, 1361 (10th Cir.1993) (emphasis added); see also E.E.O.C. v. St. Francis Xavier Parochial School, 928 F.Supp. 29, 33 (D.D.C.1996) (Harris, J.) ([Superficially distinct entities that represent a single, integrated enterprise may be exposed to liability as a single employer.”). While the defendants are quick to point out that “[t]he doctrine of limited liability creates a strong presumption that a parent company is not the employer of its subsidiary’s employees,” they failed to inform the Court (until raised by the plaintiffs), that “the courts have applied four different tests to determine whether a parent corporation is liable for the acts of its subsidiary.” Frank, 3 F.3d at 1362. These tests are: (1) the “agency” test under which the plaintiffs must establish that the parent exercised a significant degree of control over the subsidiary’s decisionmaking; (2)' the “alter ego” test which is founded in equity and permits the court to pierce the corporate veil when the court must prevent fraud, illegality or injustice, or when recognition of the corporate entity would defeat public policy or shield someone from liability from a crime; (3) the “instrumentality” test under which the plaintiff must establish that the parent exercises extensive control over the acts of the subsidiary giving rise to the claim of wrongdoing; and (4) the “integrated enterprise” test under which the court considers (a) interrelation of operations, (b) centralized control of labor relations, (c) common management, and (d) common ownership or financial control. Id. at 1362 n. 2 (citations omitted). Regardless of which test the Court applies herein, its analysis does not terminate upon reaching the undisputed conclusion that BAC and its" }, { "docid": "6169866", "title": "", "text": "Title VII for its subsidiary’s discriminatory conduct. See Lockard v. Pizza Hut, Inc., 162 F.3d 1062, 1070 (10th Cir.1998) (applying but declining to adopt single-employer test); Frank, 3 F.3d at 1362 (declining to adopt any one of four tests used by courts in determining when a parent corporation is liable for the acts of its subsidiary). Both parties and the district court, however, assumed the application of the single-employer test, also referred to as the integrated-enterprise test or the true-econom-ie-realities test. See Lockard, 162 F.3d at 1069. Consequently, that test, right or wrong, controls this appeal. See Frank, 3 F.3d at 1362 (“[W]e today apply the integrated enterprise test because [both parties] concede that this test best applies to the facts of this case.”). The single-employer test rests on four factors: (1) interrelation of operations; (2) centralized control over labor relations; (3) common management; and (4) common ownership or financial control. See id. at 1362. All four factors, however, are not necessary for single-employer status. Rather, the heart of the inquiry is whether there is an absence of an arm’s-length relationship among the companies. See, e.g., Swallows v. Barnes & Noble Book Stores, Inc., 128 F.3d 990, 996 (6th Cir.1997); Lihli Fashions Corp. v. NLRB, 80 F.3d 743, 747 (2d Cir.1996). Taking into consideration the presumption of single-employer status, Teltrust Phones’ meager efforts to rebut that presumption during trial, and the affirmative evidence offered by Knowlton, this court concludes that the jury’s determination of single-employer status was overwhelmingly supported by the evidence. IV. TELTRUST, INC. AND TCSI AS PARTIES Teltrust Phones challenges the inclusion of Teltrust, Inc. and TCSI in this suit because neither party was named in the EEOC charge filed by Knowlton. As a general rule, a plaintiff must file a charge against a party with the EEOC before she can sue that party under Title VII. See Civil Rights Act of 1964, 42 U.S.C. § 2000e — 5(f)(1) (“[A] civil action may be brought against the respondent named in the [EEOC] charge ... by the person claiming to be aggrieved.... ”); Johnson v. Palma, 931 F.2d 203," }, { "docid": "14210589", "title": "", "text": "as a self-imposed jurisdictional restriction on the definition of “employer” under Title VII. See NLRB v. Welcome-American Fertilizer Co., 443 F.2d 19 (9th Cir.1971). The integrated enterprise test prevents the court from imposing liability on a parent corporation when, in fact, the parent corporation and its subsidiary are operating indepen-' dently. See id. In Evans v. McDonald’s Corp., 936 F.2d 1087, 1089 (10th Cir.1991), the Tenth circuit applied the integrated enterprise test to define “employer” in a Title VII case. In the Evans and Frank decisions, both the plaintiff and the defendant conceded that the integrated enterprise test best applied to the facts. In the instant case, the defendants do not challenge the plaintiffs’ reliance upon the integrated enterprise test. The court will, therefore, apply it to the facts of this case. Under this test the court must weigh four factors to determine whether sufficient integration exists to treat the parent corporation and the subsidiary as a single, integrated “employer.” Radio & T.V. Local 1264 v. Broadcast Serv., Inc., 380 U.S. 255, 256, 85 S.Ct. 876, 877, 13 L.Ed.2d 789 (1962); U.S. West, 3 F.3d at 1362. The factors are (1) interrelation of operations , (2) common management, (3) centralized control of labor relations , and (4) common ownership or financial control. U.S. West, 3 F.3d at 1362. The first three factors are weighed more heavily than the last. Welcome-American Fertilizer, 443 F.2d at 21. The plaintiff must establish that the defendant Krigel’s, Inc.’s control over its stores exceeded that normally exercised by a parent corporation. U.S. West, 3 F.3d at 1362. IV. Plaintiff’s Evidence A. Ms. Eichenwald Ms. Eichenwald alleges that she was sexually harassed by Mr. Stein , Mr. Shine, and Mr. Gross while she was an employee of one of the defendants and while her harassers held supervisory power over her. Ms. Ei-ehenwald offered the following testimony in support of her claim. Ms. Eichenwald was interviewed at defendant Krigel’s, Inc. by Scott Krigel and then by Mr. Stein at defendant Rrigel’s of Bannister Mall, Inc. Scott Krigel told her at her interview that she should go to" }, { "docid": "6169865", "title": "", "text": "v. Bryan County Nat’l Bank, 825 F.2d 248, 251 (10th Cir.1987). Review of sufficiency of the evidence necessarily includes consideration of the discovery instruction imposed as a sanction. By instructing the jury that it must presume the discovery which Teltrust Phones failed to produce supported a finding of single-employer status, the district court imposed a sanction which stopped short of a default sanction available under Rule 37(b)(2)(A). See Fed.R.Civ.P. 37(b)(2)(A) (providing an alternative sanction that the facts “shall be taken to be established ” in favor of the party seeking discovery (emphasis added)); see also 8A Charles Alan Wright, et al., Federal Practice & Procedure § 2289 (2d ed. 1994) (“The court is not limited to the kinds of orders specified in Rule 37(b)(2)-”). For this instruction to be a sanction at all, Knowlton’s burden of producing evidence of single-employer status must be deemed satisfied. Because the sanction was not a default, however, the presumption was re-buttable. The Tenth Circuit has not yet adopted a test for determining when a parent company is liable under Title VII for its subsidiary’s discriminatory conduct. See Lockard v. Pizza Hut, Inc., 162 F.3d 1062, 1070 (10th Cir.1998) (applying but declining to adopt single-employer test); Frank, 3 F.3d at 1362 (declining to adopt any one of four tests used by courts in determining when a parent corporation is liable for the acts of its subsidiary). Both parties and the district court, however, assumed the application of the single-employer test, also referred to as the integrated-enterprise test or the true-econom-ie-realities test. See Lockard, 162 F.3d at 1069. Consequently, that test, right or wrong, controls this appeal. See Frank, 3 F.3d at 1362 (“[W]e today apply the integrated enterprise test because [both parties] concede that this test best applies to the facts of this case.”). The single-employer test rests on four factors: (1) interrelation of operations; (2) centralized control over labor relations; (3) common management; and (4) common ownership or financial control. See id. at 1362. All four factors, however, are not necessary for single-employer status. Rather, the heart of the inquiry is whether there is" } ]

[ { "docid": "14700654", "title": "", "text": "CECIL, Senior Circuit Judge. This is an appeal by the government as defendant-appellant from an order of the United States District Court for the Eastern District of Tennessee granting judgment to Margaret C. Morrison, plaintiff-appellee. The plaintiff-appellee brought the action in the District Court to recover upon a claim for income taxes alleged to have been erroneously and illegally collected by the government. Both parties filed a motion for summary judgment. The court sustained the motion of plaintiff-appellee and denied the government’s motion. The government appealed. The parties will be referred to as the taxpayer and the government. In 1960, the taxpayer sustained a loss to her personal residence, resulting from damage caused by an ice storm to trees, shrubbery and other improvements upon the premises. The amount of the loss was fixed at $5000, none of which was compensated for by insurance or otherwise in any amount. In the same year, the taxpayer realized a gain in the amount of $18,913.40 upon the sale of an orange grove which had been held by her for income producing purposes. Upon her tax return for the year 1960, the taxpayer treated the gain from the sale of the orange grove as a gain from the sale of a capital asset under the provisions of Section 1231(a) of the Internal Revenue Code of 1954. She treated the loss from the storm damage as a casualty loss and deducted it as an ordinary loss under the provisions of Section 165(c) (3) of the Code. The District Director took the position that the loss was an involuntary conversion of a capital asset held for more than six months and, as such, it had to be netted against the gain from the orange grove, in accordance with Section 1231 (a). A question of law is presented involving the construction of Sections 165 (c) (3) and 1231(a) of the Code. It is conceded by the government that the loss in question here qualifies as a casualty loss within the terms of Section 165(c) (3) and that if it is not also covered by Section 1231(a), it" } ]

[ { "docid": "6759414", "title": "", "text": "had been reduced by the sum of $10,000. The question, which by agreement of the parties was left for the Court to determine, was whether the casualty loss was deductible from ordinary income in its entirety and without consideration of the capital gains which the plaintiffs may have had during that income period, or whether the loss should first be applied against the capital gains which the plaintiffs may have had during that year and the provisions of § 1231, Title 26 U.S. C.A., applied. It is the plaintiffs’ contention that § 1231 applies only to a loss where there has been an involuntary conversion into other property or money — that there must be some other property to replace that which has been destroyed before this section has any application to a § 165 loss. Thus, in the situation before the court, had insurance been in force providing coverage on the trees for drought damage, any loss which was sustained by converting the trees into money would be subject to § 1231. By this reasoning, plaintiffs would penalize those who insure their property and would permit favored treatment to the uninsured. Clearly, this result is not intended by Congress; nor would such treatment be appropriate or proper under the statutes. Section 165 of Title 26 U.S.C.A. provides in substance that any loss not compensated for by insurance or otherwise shall be allowed as a deduction. However, it further' limits such losses in the case of individuals, as applicable ’ here, to those losses to property not connected with a trade or business, which are caused by or “arise from fire, storm, shipwreck, or other casualty, or from theft.” Section 1221 of Title 26 U.S.C.A defines a capital asset as being property held by a taxpayer, whether for business purposes or for personal use, with certain exceptions not applicable here. Section 1231 of Title 26 U.S.C.A. provides that if the gains on sales or exchanges of property used in the trade or business, plus the gains from involuntary conversions of property used in the trade or business and capital assets" }, { "docid": "12483396", "title": "", "text": "an ordinary deduction under section 165 of the Code. The same court reached the same conclusions with respect to 1960 storm losses in Killebrew v. United States, 234 F. Supp. 481, and Hall v. United States, — F. Supp. —, on appeal (C.A. 6). For the reasons set forth hereinabove, we are unable to agree with the conclusions reached in the last three cited cases dealing with uncompensated casualty losses to residential property sustained in years governed by section 1231 as amended by the Technical Amendments Act of 1958. In view of the foregoing, we approve the respondent’s determination. Reviewed by the Court. Scott, J., concurs in the result. Decision will he entered for the respondent. Section 165 of the Code provides in part as follows: (a) General Rule. — There shall be allowed as a deduction any loss sustained during the taxable year and not compensated for by insurance or otherwise. ******* (c) Limitation on Losses of Individuals.- — In the case of an individual, the deduction under subsection (a), shall be limited to— * ****** (3) losses of property not connected with a trade or business, if such losses arise from fire, storm, shipwreck, or other casualty, or from theft. * * * Section 1231 of the Code, as it existed during the year in question, provided in part as follows: (a) General Rule. — If, during the taxable year, the recognized gains on sales or exchanges of property used in the trade or business, plus the recognized gains from the compulsory or involuntary conversion (as a result of destruction in whole or in part, theft or seizure, or an exercise of the power of requisition or condemnation or the threat or imminence thereof) of property used in the trade or business and capital assets held for more than 6 months into other property or money, exceed the recognized losses from such sales, exchanges, and conversions, such gains and losses shall be considered as gains and losses from sales or exchanges of capital assets held for more than 6 months. If such gains do not exceed such losses," }, { "docid": "12483397", "title": "", "text": "* ****** (3) losses of property not connected with a trade or business, if such losses arise from fire, storm, shipwreck, or other casualty, or from theft. * * * Section 1231 of the Code, as it existed during the year in question, provided in part as follows: (a) General Rule. — If, during the taxable year, the recognized gains on sales or exchanges of property used in the trade or business, plus the recognized gains from the compulsory or involuntary conversion (as a result of destruction in whole or in part, theft or seizure, or an exercise of the power of requisition or condemnation or the threat or imminence thereof) of property used in the trade or business and capital assets held for more than 6 months into other property or money, exceed the recognized losses from such sales, exchanges, and conversions, such gains and losses shall be considered as gains and losses from sales or exchanges of capital assets held for more than 6 months. If such gains do not exceed such losses, such gains and losses shall not be considered as gains and losses from sales or exchanges of capital assets. ITor purposes of this subsection— ******* (2) losses upon the destruction, in whole or in part, theft or seizure, or requisition or condemnation of property used in the trade or business or capital assets held for more than 6 months shall be considered losses from a compulsory or involuntary conversion. In the case of any property used in the trade or business and of any capital asset held for more than 6 months and held for the production of income, this subsection shall not apply to any loss, in respect of which the taxpayer is not compensated for by insurance in any amount, arising from fire, storm, shipwreck, or other casualty, or from theft. In this connection it is to be noted that both sec. 1231 and its predecessor, sec. 117(j) of the Internal Revenue Code of 1939, refer to losses from the involuntary conversion of “capital assets held for more than 6 months,” -without reference" }, { "docid": "12483401", "title": "", "text": "conversion into money or other property, as there would be if the destroyed property were insured. If this casualty loss were the only loss incurred during the taxable year by the self-insured person, he would be entitled to the full benefit of an ordinary loss deduction under section 1231, but where there are also 1231 gains, the casualty loss is partially or wholly offset against these gains which would otherwise be taxed as capital gains. As a result, the benefit of having casualty losses treated as ordinary, rather than capital, losses may be reduced or eliminated in the case of self-insurers, depending on the fortuitous circumstance as to what gains the taxpayer may have from trade or business assets or involuntary conversions. This is not a problem for those who are fully insured by others because they receive insurance payments in the case of destroyed property which offset the casualty losses which would otherwise be realized. Moreover, such persons may deduct currently the cost of their insurance for property used in a trade or business. Thus, in their case they obtain a deduction against ordinary income for any premiums paid and any gains from trade or business assets (or involuntary conversions) are taxed as capital gains and are not offset against losses (since these are covered by insurance) which would otherwise be treated as ordinary losses. “Your committee believes that this constitutes an unintended hardship and for that reason it has added a provision to the House bill amending section 1231(a) of the code. The provision added makes section 1231 inapplicable in the case of losses where the taxpayer is not compensated for the loss by insurance, if the loss arises from fire, storm, shipwreck, or other casualty or from theft. This treatment is to apply, however, only in the case of property used in the trade or business and in the ease of capital assets held for more than 6 months and held for the production of income. The effect of this provision will be to treat such losses always as ordinary losses and never to offset them against" }, { "docid": "17325736", "title": "", "text": "here, we believe that it applies only to “involuntary conversions.” The regulation may be an attempt to distinguish involuntary conversions from casualties, but because of the jury’s determination we are presented with no question turning on this distinction. If the loss had been found to be an involuntary conversion, we would then be called upon to rule whether the regulation can be allowed to stand in the face of the plain wording of Section 1231. We therefore conclude that Section 1231 is inapplicable here, and the judgment is reversed and remanded for re-computation of the taxpayers’ liability in accordance with Section 165. . 26 U.S.C. § 165 provides: “(a) General rule. — There shall be allowed as a deduction any loss sustained during the taxable year and not compensated for by insurance or otherwise. ***** “(c) Limitation on losses of individuals. — In the ease of an individual, the deduction under subsection (a) shall be limited to— ***** “(3) losses of property not connected' with a trade or business, if such losses- arise from fire, storm, shipwreck, or other casualty, or from theft * * . 26 U.S.O. § 1231 provides: “(a) General rule. — If, during the taxable year * * * the recognized gains from the compulsory or involuntary conversion (as a result of destruction in whole or in part, theft or seizure, or an exercise of the power of requisition or condemnation or the threat or imminence thereof) of * * * capital assets held for more than 6 months into other property or money, exceed the recognized losses from such sales, exchanges, and conversions, such gains and losses shall be considered as gains and losses from sales or exchanges of capital ■assets held for more than 6 months. If such gains do not exceed such losses, such gains and losses shall not be considered as gains and losses from sales or exchanges of capital assets. For purposes of this subsection— * * * * * “ (2) losses upon the destruction, in whole or in part, theft or seizure, or requisition or condemnation of property used" }, { "docid": "12483404", "title": "", "text": "property and capital assets held for more than 6 months exceed the recognized losses from such sales, exchanges, and conversions, the net gain is in effect treated as longterm capital gain subject to reduced rates of taxation. If the losses exceed the gains, the net loss Is in effect treated as an ordinary loss deductible from income from other sources. Consequently, whether an uninsured casualty loss will be deducted in whole or in part against ordinary income or against gains subject to capital gain rates will depend on the overall gain or loss position of the taxpayer under section 1231 for the taxable year. “Tour committee has provided this section to separate certain uninsured casualty losses from the computation of section 1231 gain or loss, bat only with respect to property used in the trade or business and capital assets held for the production of income which have been held more than 6 months. The amendment applies with respect to, for example, loss incurred as the result of the destruction of a taxpayer’s oil tanks which he used for oil storage in his trade or business, but on which he was unable to obtain insurance. On the other hand, the amendment does not apply to loss arising from the destruction or theft of the taxpayer’s uninsured personal automobile. The amendment is intended to benefit business taxpayers who, because of the special hazards of their business or for other reasons, carry their own insurance. As compared with business taxpayers who carry insurance with outside insurance companies and can deduct the net premium costs of such insurance as ordinary business expense, the self-insured taxpayer cannot deduct amounts set aside in reserve to cover the contingency of a casualty loss. In the eventuality of such loss, it may be recognized as a capital rather than an ordinary loss deduction, depending on the overall gain or loss position of the taxpayer in the particular taxable year. Under this amendment, net gains with respect to section 1231 property continue to be treated as capital gains, but the casualty losses to which the amendment applies are" }, { "docid": "14700656", "title": "", "text": "is deductible in full as an ordinary loss. It is likewise agreed that the gain from the sale of the orange grove was properly reported under Section 1231(a). This section does not define either income or losses. It only provides for the treatment of certain gains as gross income and certain losses which have the status of income and losses by virtue of other sections of the Revenue Code. (Section 1231(a) (1).) Historically, Section 1231(a) is the successor to Section 117(j) of the 1939 Revenue Code and was enacted by Section 151(b) of the Revenue Act of 1942. It was enacted to give special additional benefits to taxpayers- in the form of reduced tax rates (Capital gain rates) for certain items of income. The apparent purpose was to allow taxpayers, whose property had been seized in furtherance of the war effort, a capital gain rather than an increase in ordinary income. Had it not been for the provisions of Section 1231(a), the gain from the sale of the orange grove would have been taxed as ordinary income. Helvering v. Flaccus Oak Leather Co., 313 U.S. 247, 61 S.Ct. 878, 85 L.Ed. 1310. It is undisputed that Section 1231 (a) in effect provides for the netting of gains and losses, recognized by other sections of the Revenue Code, arising out of certain types of transactions. These transactions are sales or exchanges of property used in trade or business, the compulsory or involuntary conversion, into other property or money, of property used in the trade or business and capital assets held for more than six months. If the recognized gains from such transactions exceed the losses from such transactions, the gains and losses shall be considered as gains and losses from sales or exchanges of capital assets held for more than six months. In other words, the taxpayer is allowed capital gains treatment which he would not be entitled to if it were not for Section 1231(a). It is claimed on behalf of the taxpayer that because there was no conversion into other property or money the loss in question here is" }, { "docid": "12483403", "title": "", "text": "gains which might otherwise be treated as capital gains.” i(Emphasis supplied.) Such committee report also states as follows at page 203 : “This is a new section for which there was no corresponding section in the House bill. “This section amends section 1231 (a) of the 1954 Code by making it inapplicable to any loss in respect of which the taxpayer is not compensated by insurance in any amount if the loss arose from fire, storm, shipwreck, or other casualty, or from theft, and the loss occurred with respect to property used in the trade or business or a capital asset held for more than 6 months and held for the production of income. “Under section 1231, uninsured casualty losses on depreciable property or real estate used in the trade or business or on capital assets must be aggregated with various other types of section 1281 gains and losses. If, in a particular taxable year, the recognized gains on sales or exchanges of section 1231 property plus the recognized gains from involuntary conversions of such property and capital assets held for more than 6 months exceed the recognized losses from such sales, exchanges, and conversions, the net gain is in effect treated as longterm capital gain subject to reduced rates of taxation. If the losses exceed the gains, the net loss Is in effect treated as an ordinary loss deductible from income from other sources. Consequently, whether an uninsured casualty loss will be deducted in whole or in part against ordinary income or against gains subject to capital gain rates will depend on the overall gain or loss position of the taxpayer under section 1231 for the taxable year. “Tour committee has provided this section to separate certain uninsured casualty losses from the computation of section 1231 gain or loss, bat only with respect to property used in the trade or business and capital assets held for the production of income which have been held more than 6 months. The amendment applies with respect to, for example, loss incurred as the result of the destruction of a taxpayer’s oil tanks" }, { "docid": "5869544", "title": "", "text": "conversion should be treated as a sale or exchange. On the contrary, the Court pointed out that in other sections Congress had “specified the ambiguous transactions which are to be regarded as sales or exchanges for income tax purposes,” and that an involuntary conversion of the taxpayer’s-property was not one of them; thus, evidencing a Congressional intent that it was not to be regarded as a sale or exchange. That case did not involve gain derived' by a corporation during liquidation from insurance on property destroyed. In, such case we think the Congressional intent in incorporating section 337 into-the Revenue Code of 1954 would be defeated unless an involuntary conversion of the taxpayer’s property be held to< come within the terms of a sale or exchange of it. But, whether or not before the adoption of the Internal Revenue Code of 1939 the Flaccus Oak Leather Company decision was applicable to gain from an involuntary conversion derived by a corporation in liquidation, it is clear that after the adoption of the Code involuntary conversions were considered as gains and losses from sales or exchanges of capital assets. Section 117(j) of the 1939 Code, 26 U.S.C.A. § 117(j) is section 1231 of the 1954 Code, 26 U.S.C.A. § 1231. It reads in part: “If during the taxable year, the recognized gains on sales or exchanges of property used in trade or business, plus the recognized gains from the compulsory or involuntary conversion (as a result of the destruction in whole or in part, theft or seizure, or an exercise of the power of requisition or condemnation or the threat or imminence thereof) of the property used in the trade or business and capital assets held for more than 6 months into other property or money, exceed the recognized losses from such sales, exchanges and conversions, such gains and losses shall be considered as gains and losses from sales or exchanges of capital assets held for more than 6 months.” Here Congress says, in the same Act which contains section 337, exempting a corporation in liquidation from gain derived from the sale" }, { "docid": "12483383", "title": "", "text": "parties are apparently in agreement that the capital gain of $13,710 reported from the sale of breeding cattle constituted gain from the sale of property used in the petitioners’ trade or business, within the meaning of section 1231, and that the boxwood bushes were capital assets held for more than 6 months. In any event, neither party raises any question in these respects. The petitioners do not contend that casualty losses with respect to capital assets not used in a trade or business and not held for the production of income 'are excluded from losses from involuntary con versions referred to in section 1231. They do contend, however, that since the loss on the boxwood bushes was not compensated for by insurance in any amount, there was no conversion thereof into money or other property, that therefore the loss sustained is not required by section 1281 to be applied against the gains referred to therein, and that hence such loss is deductible in full as an ordinary loss under section 165(c) (3) of the Code. Section 1231 of the 1954 Code is the successor to section 117(j) of the 1939 Code, which was enacted by section 151(b) of the Eevenue Act of 1942. Sections 117 (j) and 1231 in effect provide for the netting of gains and losses, recognized by other sections of the statute, from the sale or exchange of property used in the trade or business and from the compulsory or involuntary conversion of property used in the trade or business and capital assets held for more than 6 months, and provide that if the gains exceed the losses, the gains and losses shall be considered as being from sales or exchanges of capital assets held for more than 6 months, but that if the gains do not exceed the losses, the gains and losses shall not be considered as being from sales or exchanges of capital assets. And it is to be noted that, but for these provisions, gain on involuntary conversions of property as a result of casualty would be taxable as ordinary income, there being" }, { "docid": "6759415", "title": "", "text": "reasoning, plaintiffs would penalize those who insure their property and would permit favored treatment to the uninsured. Clearly, this result is not intended by Congress; nor would such treatment be appropriate or proper under the statutes. Section 165 of Title 26 U.S.C.A. provides in substance that any loss not compensated for by insurance or otherwise shall be allowed as a deduction. However, it further' limits such losses in the case of individuals, as applicable ’ here, to those losses to property not connected with a trade or business, which are caused by or “arise from fire, storm, shipwreck, or other casualty, or from theft.” Section 1221 of Title 26 U.S.C.A defines a capital asset as being property held by a taxpayer, whether for business purposes or for personal use, with certain exceptions not applicable here. Section 1231 of Title 26 U.S.C.A. provides that if the gains on sales or exchanges of property used in the trade or business, plus the gains from involuntary conversions of property used in the trade or business and capital assets held for more than six months into other property or money, exceed the losses from such sales, exchanges and conversions, then these gains and losses are to be given treatment as though they were gains or losses from sales of capital assets held for more than six months. However, if such losses (from sales, involuntary conversions, etc., of capital assets) exceed such gains, then they ,are not to be treated as resulting from sales of capital assets but would be treated as ordinary income gains or losses. The statute then provides: “For purposes of this subsection ‘ #- # * * -x- * “(2) losses upon the destruction, in whole or’ in part, * * * of property used in the trade or business or capital assets * * * shall be considered losses from a compulsory or involuntary conversion.” From this it is evident that where a loss is sustained when a capital asset is destroyed in such manner as to be a deductible loss (§ 165), it is to receive thq same treatment" }, { "docid": "12483402", "title": "", "text": "Thus, in their case they obtain a deduction against ordinary income for any premiums paid and any gains from trade or business assets (or involuntary conversions) are taxed as capital gains and are not offset against losses (since these are covered by insurance) which would otherwise be treated as ordinary losses. “Your committee believes that this constitutes an unintended hardship and for that reason it has added a provision to the House bill amending section 1231(a) of the code. The provision added makes section 1231 inapplicable in the case of losses where the taxpayer is not compensated for the loss by insurance, if the loss arises from fire, storm, shipwreck, or other casualty or from theft. This treatment is to apply, however, only in the case of property used in the trade or business and in the ease of capital assets held for more than 6 months and held for the production of income. The effect of this provision will be to treat such losses always as ordinary losses and never to offset them against gains which might otherwise be treated as capital gains.” i(Emphasis supplied.) Such committee report also states as follows at page 203 : “This is a new section for which there was no corresponding section in the House bill. “This section amends section 1231 (a) of the 1954 Code by making it inapplicable to any loss in respect of which the taxpayer is not compensated by insurance in any amount if the loss arose from fire, storm, shipwreck, or other casualty, or from theft, and the loss occurred with respect to property used in the trade or business or a capital asset held for more than 6 months and held for the production of income. “Under section 1231, uninsured casualty losses on depreciable property or real estate used in the trade or business or on capital assets must be aggregated with various other types of section 1281 gains and losses. If, in a particular taxable year, the recognized gains on sales or exchanges of section 1231 property plus the recognized gains from involuntary conversions of such" }, { "docid": "17325731", "title": "", "text": "MURRAH, Chief Judge. In the taxable year 1954, the taxpayer-appellants suffered certain losses due to severe drought and abnormal weather conditions. Several trees and valuable plantings on their residential grounds were killed and there was other physical: damage. The losses were not compensated for by insurance, or otherwise, and: they now seek to deduct them as ordinary losses under Title 26 U.S.C. § 165. The Commissioner denied the deduction and assessed a deficiency based upon his construction and application of Title 26 U.S. C. § 1231, and the pertinent treasury regulation, § 1.1231-l(e). The taxpayers paid the additional tax and brought this action for refund. At the trial, two issues were presented to a jury: (1) whether this loss was a ■casualty as defined in the Internal Revenue Code, and, if so, (2) the extent of the decrease in market value of the taxpayers’ property as a result thereof. It was found that the loss was a casualty, and the property had decreased in value by $10,000. The casualty loss and .amount thereof having been thus established, there remained the question whether it was an ordinary loss under Section 165 or a capital loss under Section 1231. Section (a) of this latter statute provides in substance that where there is an “involuntary conversion” of capital assets into “other property or money,” the losses must be offset by gains incurred during the same period. Subsection (a) (2) defines involuntary conversions as “losses upon the destruction * * * of * * * capital assets held for more than 6 months * * 'The trial court was of the opinion that this definitive subsection “extends the reach” of the statute to include all involuntary conversions of capital assets whether compensated or not; and that to hold otherwise would accord unintended favorable treatment to an uninsured taxpayer. Section 165, and its predecessor 23(e), have traditionally been the means for deducting uncompensated casualty losses from income where, as here, the property is non-income producing. The casualty loss having been established by the special verdict of the jury in our case, it is deductible under" }, { "docid": "12483399", "title": "", "text": "to the purpose for which such assets are held. All regulations promulgated by the respondent since the enactment, by the Revenue Act of 1942, of sec. 117 (j) of the 1939 Code, have treated casualty losses with respect to capital assets not held for the production of income as losses from compulsory or involuntary conversion within the meaning of sec. 117(j) and sec. 1231. The regulations have continuously set forth as one type of loss which must be included in the computation under sec. 117(j) and sec. 1231 the uncompensated loss sustained upon a pleasure yacht destroyed in a storm. Sec. 19.117-7, Regs. 103, as amended by T.D. 5217, 1943 C.B. 314; sec. 29.117 — 7, Regs. Ill; sec. 39.117(j)-l(e), Regs. 118; and sec. 1.1231-1(g), Income Tax Regs. See also J. S. Anderson, 7 TCM 811, in which we stated that under sec. 117(i)(2)(B) of the 1939 Code a loss upon the destruction of a capital asset, such as a residence, held for more than 6 months Is considered a loss from an involuntary conversion. Such committee report states at page 74: “Under present law where there are uninsured losses on property as a result of its destruction, theft, seizure, requisition, or condemnation, such losses, in the ease of property used in the trade or business or capital assets held for more than 6 months, are treated as section 12S1 losses. These casualty losses coming under section 1231 of the code must he added together with other gains and losses from sales or exchanges of property used in a trade or business and with other gains or losses from involuntary conversions. If the resulting net amount is a gain, under section 1231 it is treated as a long-term capital gain and in effect taxed at a rate no higher than 25 percent. If, on the other hand the net amount is a loss, under section 1231 it is treated as an ordinary loss which can be offset against income taxed at the regular tax rates. “Where a taxpayer elects to be a Belf-insurer against casualty losses, there seldom is a" }, { "docid": "12483400", "title": "", "text": "Such committee report states at page 74: “Under present law where there are uninsured losses on property as a result of its destruction, theft, seizure, requisition, or condemnation, such losses, in the ease of property used in the trade or business or capital assets held for more than 6 months, are treated as section 12S1 losses. These casualty losses coming under section 1231 of the code must he added together with other gains and losses from sales or exchanges of property used in a trade or business and with other gains or losses from involuntary conversions. If the resulting net amount is a gain, under section 1231 it is treated as a long-term capital gain and in effect taxed at a rate no higher than 25 percent. If, on the other hand the net amount is a loss, under section 1231 it is treated as an ordinary loss which can be offset against income taxed at the regular tax rates. “Where a taxpayer elects to be a Belf-insurer against casualty losses, there seldom is a conversion into money or other property, as there would be if the destroyed property were insured. If this casualty loss were the only loss incurred during the taxable year by the self-insured person, he would be entitled to the full benefit of an ordinary loss deduction under section 1231, but where there are also 1231 gains, the casualty loss is partially or wholly offset against these gains which would otherwise be taxed as capital gains. As a result, the benefit of having casualty losses treated as ordinary, rather than capital, losses may be reduced or eliminated in the case of self-insurers, depending on the fortuitous circumstance as to what gains the taxpayer may have from trade or business assets or involuntary conversions. This is not a problem for those who are fully insured by others because they receive insurance payments in the case of destroyed property which offset the casualty losses which would otherwise be realized. Moreover, such persons may deduct currently the cost of their insurance for property used in a trade or business." }, { "docid": "14700661", "title": "", "text": "496, 68 L.Ed. 1036; Fawcus Machine Co. v. United States, 282 U.S. 375, 378, 51 S.Ct. 144, 75 L.Ed. 397; Brewster v. Gage, 280 U.S. 327, 336, 50 S.Ct. 115, 74 L.Ed. 457. It is apparent from the report of the Finance Committee of the Senate that it took the same view. “Your committee has provided this section to separate certain uninsured casualty losses from the computation of Section 1231 gain or loss, but only with respect to property used in the trade or business and capital assets held for the production of income which have been held more than 6 months. The amendment applies with respect to, for example, loss incurred as the result of the destruction of a taxpayer’s oil tanks which he used for oil storage in his trade or business, but on which he was unable to obtain insurance. On the other hand, the amendment does not apply to loss arising from the destruction or theft of the taxpayer’s uninsured personal automobile.” (Emphasis added.) (S.Rept. No. 1983, 85th Cong., at p. 203.) This illustration is identical to the taxpayer’s loss in the case at bar. We conclude that the taxpayer, was not entitled to deduct her loss as an ordinary loss under Section 165(c) (3) of the Code. The loss must be offset against the gain from the sale of the orange grove under Section 1231(a). Although Section 1231(a) was enacted over twenty years ago there have been very few decisions interpreting the section and they have all been fairly recent. The leading case decided in favor of the taxpayer is Maurer v. United States, 284 F.2d 122, C.A.10 (1960). The District Court for the Western District of Missouri, Western Division, followed Maurer in Oppenheimer v. United States, 220 F.Supp. 194 (1963). In our own circuit, the District Court for the Eastern District of Tennessee, Southern Division, followed the Maurer case in Killebrew v. United States, 234 F.Supp. 481 (1964), Hall v. United States, 64-2 USTC Decision 9770 (1964), and in the case now before us. The Killebrew and Hall cases are now pending in our" }, { "docid": "12483382", "title": "", "text": "Tacara Farm were destroyed by a severe snowstorm. The petitioners suffered a loss in the amount of $8,500 as a result thereof, which loss was not compensated for by insurance or otherwise. The petitioners’ residence and the English boxwood bushes had been held by them for more than 6 months prior to December 1960. In their joint income tax return for the taxable year 1960 the petitioners reported, as long-term capital gain, the amount of $13,710 received from the sale of breeding cattle. In such return the petitioners deducted the amount of $9,100 as a casualty loss resulting from the destruction of the boxwood bushes. In the notice of deficiency the respondent determined that the loss sustained with respect to the boxwood bushes was $8,500. He determined that such loss was not deductible as an ordinary loss under section 165 of the Internal Revenue Code of 1954, but constituted a loss subject to treatment under section 1231 of such Code, and thus operated to reduce the gain reported from the sale of breeding cattle. The parties are apparently in agreement that the capital gain of $13,710 reported from the sale of breeding cattle constituted gain from the sale of property used in the petitioners’ trade or business, within the meaning of section 1231, and that the boxwood bushes were capital assets held for more than 6 months. In any event, neither party raises any question in these respects. The petitioners do not contend that casualty losses with respect to capital assets not used in a trade or business and not held for the production of income 'are excluded from losses from involuntary con versions referred to in section 1231. They do contend, however, that since the loss on the boxwood bushes was not compensated for by insurance in any amount, there was no conversion thereof into money or other property, that therefore the loss sustained is not required by section 1281 to be applied against the gains referred to therein, and that hence such loss is deductible in full as an ordinary loss under section 165(c) (3) of the Code." }, { "docid": "9725822", "title": "", "text": "is adopted.” The legislative history thus furnishes no basis for reading into § 392 limiting words which are not to be found in it. On the contrary, it contains affirmative support for a literal construction and application of the words of the statute. We conclude that § 392 extended nonrecognition to this gain from the involuntary conversion occurring during the calendar year 1954, and that the deficiencies based upon recognition of that gain were improperly assessed. Reversed and remanded. . 33 T.C. 930. . The taxpayer, a Maryland corporation, was engaged in the business of manufacturing and selling fireworks. It kept its books and filed its returns on the basis of fiscal years ending June 30. . There was a substantial operating loss in the fiscal year ending June 30, 1955. The difference between the parties as to the treatment of the gain upon the involuntary conversion affects the amount of the loss carryback to 1953 and 1954. . 26 U.S.C.A. § 392. . 26 U.S.C.A. § 1231. . Helvering v. William Flaccus Oak Leather Co., 313 U.S. 247, 61 S.Ct. 878, 880, 85 L.Ed. 1310. . 26 U.S.C.A. § 1231. . “§ 1231. Property used in the trade or business and involuntary conversions “(a) General rule. — If, during the taxable year, the recognized gains on sales or exchanges of property used in the' trade or business, plus the recognized gains from the compulsory or involuntary conversion (as a result of destruction in whole or in part, theft or seizure, or an exercise of the power of requisition or condemnation or the threat or imminence thereof) of property used in the trade or business and capital assets held for more than 6 months into other property or money, exceed the recognized losses from such sales, exchanges, and conversions, such gains and losses shall be considered as gains and losses from sales or exchanges of capital assets held for more than six months. If such gains do not exceed such losses, such gains and losses shall not be considered as gains and losses from sales or exchanges of capital assets." }, { "docid": "8872922", "title": "", "text": "1966. The court is in agreement with the findings of the commissioner. While we reach the result arrived at by the commissioner, we do so by a different route. In Its brief to the trial commissioner, defendant has withdrawn its further defense stated in its First Amended Answer pertaining to depreciation deductions on the tool bodies. § 1231. Property used in the trade or business and involuntary conversions. (a); ¡General rule. If, during the taxable year, the recognized gains on sales or exchanges of property used in the trade or business, plus the recognized gains from the compulsory or involuntary conversion (as a result of destruction in whole or in part, theft or seizure, or an exercise of the power of requisition or condemnation or the threat or imminence thereof) of property used in the trade or business and capital assets held for more than 6 months into other property or money, exceed the recognized losses from such sales, exchanges, and conversions, such gains and losses shall be considered as gains and losses from sales or exchanges of capital assets held for more than 6 months. If such gains do not exceed such losses, such gains and losses shall not be considered as gains and losses from sales or exchanges of capital assets. * * * * * * * * (b) Definition of property used in the trade or business. — For purposes of this section— (1) General rule. — The term “property used in the trade or business” means property used in the trade or business, of a character which is subject to the allowance for depreciation provided in section 167, held for more than 6 months, and real property used in the trade or business, held for more than 6 months, which is not— (A) property of a kind which would properly be includible in the inventory of the taxpayer if on hand at the close of the taxable year, (B) property held by the taxpayer primarily for sale to customers in the ordinary course of his trade or business, * * * * * * *" }, { "docid": "17325732", "title": "", "text": "thus established, there remained the question whether it was an ordinary loss under Section 165 or a capital loss under Section 1231. Section (a) of this latter statute provides in substance that where there is an “involuntary conversion” of capital assets into “other property or money,” the losses must be offset by gains incurred during the same period. Subsection (a) (2) defines involuntary conversions as “losses upon the destruction * * * of * * * capital assets held for more than 6 months * * 'The trial court was of the opinion that this definitive subsection “extends the reach” of the statute to include all involuntary conversions of capital assets whether compensated or not; and that to hold otherwise would accord unintended favorable treatment to an uninsured taxpayer. Section 165, and its predecessor 23(e), have traditionally been the means for deducting uncompensated casualty losses from income where, as here, the property is non-income producing. The casualty loss having been established by the special verdict of the jury in our case, it is deductible under Section 165 unless preempted by Section 1231. In other words, the two statutes are mutually exclusive and our problem is to put each into its proper frame of reference. In order to fully comprehend the true import and taxable incidence of Section 1231, it is necessary to consider some of the legislative history and original purposes of the Section. It first became a part of the 1939 Internal Revenue Code in 1942, as Section 117(j). The avowed purpose was to allow taxpayers, whose property had been seized in furtherance of the war effort a capital gain rather than an increase in ordinary income. This is so because not infrequently the taxpayer received much more for his seized property than his depreciated cost, and it seemed unjust to tax him at wartime’s exceptionally high income tax rates. Conversely, the legislation provided in the event a net loss was sustained, the taxpayer should be entitled to an ordinary deduction. Thus, the effect of Section 1231 is twofold. If the gains exceed the losses, there is a capital" } ]

[ { "docid": "3042256", "title": "", "text": "this court to order the production of a Vaughn Index, both to aid the court in determining whether the Craeraft correspondence qualifies as agency records, and as “a realistic compromise” method to obtain information regarding the recipients of the Craeraft correspondence, whose privacy interest in the nondisclosure of their names he concedes for the purpose of this appeal. See Appellant’s Reply Brief at 15-17. This we decline to do. Since “[a] court’s primary focus must be on the substance, rather than the form, of the information supplied by the government to justify withholding requested information. ... whether that evidence comes in the form of an in camera review of the actual documents, something labelled a “Vaughn Index,’ a detailed affidavit, or oral testimony cannot be decisive.” Vaughn v. United States, 936 F.2d 862, 867 (6th Cir.1991). Accordingly, “[t]he materials provided by the agency may take any form so long as they give the reviewing court a reasonable basis to evaluate the claim of privilege.” Delaney, Migdall & Young, Chartered v. IRS, 826 F.2d 124, 128 (D.C.Cir.1987). The affidavits supplied by the government were sufficiently detailed to allow the district court fairly to evaluate whether the Craeraft correspondence constituted agency records within the meaning of the FOIA. The affidavits were also sufficient to allow the district court to assess whether the names of the fax recipients were exempt from disclosure under FOIA Exemption 6. As the Sixth Circuit noted in a similar setting, “the government need not justify its withholdings document-by-document; it may instead do so eategory-of-doeument by category-of-document,” so long as its definitions of relevant categories are “sufficiently distinct to allow a court to determine ... whether the specific claimed exemptions are properly applied.” Vaughn v. United States, 936 F.2d at 868 (internal quotation omitted). We consider the government under no obligation here to justify the withholding of the names of the fax recipients on an individual-by-individual basis under FOIA Exemption 6, as appellant seems to suggest, and that is the only ground upon which we could justifiably require the production of such a summary. III. Conclusion Because we agree" } ]

[ { "docid": "5188117", "title": "", "text": "U.S.C. § 552(b). Non-exempt portions of documents must be disclosed unless they are “inextricably intertwined with exempt por tions.” Mead Data Central, Inc. v. U.S. Dep’t of Air Force, 566 F.2d 242, 260 (D.C.Cir.1977) (citations and internal quotation marks omitted). The court will grant a motion for summary judgment if the pleadings, the disclosure materials on file, and any affidavits or declarations 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. See Fed.R.Civ.P. 56(a). The moving party bears the 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). Factual assertions in the moving party’s affidavits or declarations may be accepted as true unless the opposing party submits its own affidavits or declarations or documentary evidence to the contrary. Neal v. Kelly, 963 F.2d 453, 456 (D.C.Cir.1992). FOIA cases frequently are decided on motions for summary judgment. Defenders of Wildlife v. U.S. Border Patrol, 623 F.Supp.2d 83, 87 (D.D.C.2009). A district court reviews de novo an agency decision regarding a FOIA request. 5 U.S.C. § 552(a)(4)(B). In a FOIA case, a court may award summary judgment based solely on information provided in affidavits or declarations so long as the affidavits or declarations are “relatively detailed and non-eonclusory,” SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C.Cir.1991) (citation and internal quotations marks omitted), and “describe the documents and the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith.” Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C.Cir.1981). An agency must demonstrate that “each document that falls within the class requested either has been produced, is unidentifiable, or is wholly exempt from [FOIA’s] inspection requirements.” Goland v. CIA, 607 F.2d 339, 352 (D.C.Cir.1978) (internal quotations and citation omitted). B. Adequacy of the Search for Responsive Documents Mr. Beltranena challenges the" }, { "docid": "12150764", "title": "", "text": "a narrative — is immaterial. Gallant v. NLRB., 26 F.3d 168, 173 (D.C.Cir.1994) (internal citations omitted). Finally, in seeking summary judgment, the agency must detail what proportion of the information in a document is non-exempt and how that material is dispersed throughout the document. Mead Data Cent. Inc. v. Air Force, 566 F.2d 242, 261 (D.C.Cir.1977). Any nonexempt information that is reasonably segregable from the requested records must be disclosed. Stolt-Nielsen Transp. Group, Ltd. v. United States, 534 F.3d 728, 733-34 (D.C.Cir.2008). As “the focus of FOIA is information, not documents, [ ] an agency cannot justify withholding an entire document simply by showing that it contains some exempt material.” Id. (quoting Mead Data, 566 F.2d at 260). Further, “before approving the application of a FOIA exemption, the district court must make specific findings of segregability regarding the documents to be withheld.” Id. at 734-35 (quoting Sussman v. U.S. Marshals Service, 494 F.3d 1106, 1116 (D.C.Cir.2007)). District courts are required to consider segregability issues sua sponte even when the parties have not specifically raised such claims. TransPac. Policing Agreement v. U.S. Customs Serv., 177 F.3d 1022, 1028 (D.C.Cir.1999). In opposing a motion for summary judgment or cross-moving for summary judgment, a FOIA plaintiff must offer more than conclusory statements. See Broaddrick v. Exec. Office of President, 139 F.Supp.2d 55, 65 (D.D.C.2001) (citing Laningham v. Navy, 813 F.2d 1236, 1241 (D.C.Cir.1987)). Indeed, a plaintiff pursuing an action under FOIA must establish that either: (1) the Vaughn index does not establish that the documents were properly withheld; (2) the agency has improperly claimed an exemption as a matter of law; or (3) the agency has failed to segregate and disclose all nonexempt material in the requested documents. See Perry-Torres v. State Dep’t, 404 F.Supp.2d 140, 142 (D.D.C.2005); Twist v. Ashcroft, 329 F.Supp.2d 50, 53 (D.D.C.2004) (citing Piper & Marbury, LLP v. U.S. Postal Serv., Civ. No. 99-2383, 2001 WL 214217, at *2 (D.D.C. Mar.6, 2001)). A. The Privacy Act The Privacy Act of 1974 regulates the collection, maintenance, use, and dissemination of an individual’s personal information by agencies within the federal government." }, { "docid": "17223276", "title": "", "text": "(D.C.Cir.1996); Vaughn v. Rosen, 484 F.2d 820, 827-28 (D.C.Cir.1973), cert. denied, 415 U.S. 977, 94 S.Ct. 1564, 39 L.Ed.2d 873 (1974). Furthermore, the FOIA requires that “[a]ny reasonably segregable portion of a record shall be provided ... after deletion of the portions which are exempt.” 5 U.S.C. § 552(b). This comports with the policy of disclosure and prevents the withholding of entire documents, see Billington v. U.S. Department of Justice, 233 F.3d 581, 586 (D.C.Cir.2000), unless the agency can demonstrate that the non-exempt portions of a document are “inextricably intertwined with exempt portions.” Trans-Pacific Policing Agreement v. United States Customs Serv., 177 F.3d 1022, 1027 (D.C.Cir.1999) (quoting Mead Data Central, Inc. v. United States Department of the Air Force, 566 F.2d 242, 260 (D.C.Cir.1977)). To withhold the entirety of a document, the agency must demonstrate that it cannot segregate the exempt material from the non-exempt and disclose as much as possible. See Kimberlin v. Department of Justice, 139 F.3d 944, 949-50 (D.C.Cir.1998). The Court may grant a motion for summary judgment if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits or declarations, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In a FOIA case, the Court may award summary judgment solely on the basis of information provided by the department or agency in affidavits or declarations when the affidavits or declarations describe “the documents and the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith.” Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C.Cir.1981); see also Vaughn v. Rosen, 484 F.2d at 826-28. Agency affidavits or declarations must be “relatively detailed and non-conclusory .....” SafeCard Services, Inc. v. SEC, 926 F.2d 1197, 1200 (D.C.Cir.1991). Such affidavits or declarations are" }, { "docid": "12992705", "title": "", "text": "burden, the Department “ ‘must describe what records were searched, by whom, and through what processes. ...’ ” Murray v. Federal Bureau of Prisons, 741 F.Supp.2d 156, 163 (D.D.C. 2010) (quoting Defenders of Wildlife v. U.S. Border Patrol, 623 F.Supp.2d at 92). The Department therefore may need to conduct further or additional searches to satisfy its obligations, and it certainly must supplement its supporting declarations regarding the adequacy of its searches in a manner consistent with the directives in this Opinion. See Defenders of Wildlife v. U.S. Border Patrol, 623 F.Supp.2d at 93; Judicial Watch, Inc. v. U.S. Department of Justice, 185 F.Supp.2d at 65 (“[W]hen an agency’s affidavits or declarations are deficient regarding the adequacy of its search, ... the courts generally will request that the agency supplement its supporting declarations.”). B. Segregability “The focus of the FOIA is information, not documents, and an agency cannot justify withholding an entire document simply by showing that it contains some exempt material.” Mead Data Cent., Inc. v. U.S. Department of the Air Force, 566 F.2d 242, 260 (D.C.Cir.1977). Accordingly, “[i]f a record contains information that is exempt from disclosure, any reasonably segregable information must be released after deleting the exempt portions, unless the nonexempt portions are inextricably intertwined with exempt portions.” Hussain v. U.S. Department of Homeland Sec., 674 F.Supp.2d 260, 272 (D.D.C.2009) (citing Trans-Pacific Policing Agreement v. U.S. Customs Service, 177 F.3d 1022, 1027 (D.C.Cir.1999)). To withhold the entirety of a document, an agency must demonstrate “ ‘that it cannot segregate the exempt material from the non-exempt and must disclose as much as possible.’ ” Id. (quoting Defenders of Wildlife v. U.S. Border Patrol, 623 F.Supp.2d at 90). “[T]o demonstrate that all reasonably segregable material has been released, the agency must provide a ‘detailed justification’ for its non-segregability.” Johnson v. Executive Office for U.S. Attorneys, 310 F.3d 771, 776 (D.C.Cir.2002) (quoting Mead Data Cent., Inc. v. U.S. Department of the Air Force, 566 F.2d at 261). An agency is not required, however, “to provide so much detail that the exempt material would be effectively disclosed.” Id. It is established that" }, { "docid": "2404161", "title": "", "text": "claims that all “June Mail” documents, with the exception of one that could not be located, were released to the plaintiff. See Moran Decl. V ¶¶ 5-6. Blanton makes no challenge to the integrity of Moran’s declaration that the FBI has released to him all but this one “June Mail” document. Accordingly, this argument fails to create a genuine issue of material fact and judgment for defendant therefore is appropriate on the adequacy of search issue. See Weisberg v. U.S. Department of Justice, 745 F.2d 1476, 1485 (D.C.Cir.1984) (agency may demonstrate adequacy of search by submitting good faith, nonconclusory affidavits). III. DOCUMENTS WITHHELD PURSUANT TO VARIOUS FOIA EXEMPTIONS An agency may refuse to disclose documents responsive to a FOIA request only if the responsive documents fall within one of nine enumerated statutory exemptions. See 5 U.S.C. § 552(b). The agency bears the burden of justifying the withholding and the district court reviews the agency claims of exemptions de novo. See § 552(a)(4)(B). See U.S. Department of State v. Ray, 502 U.S. 164, 173, 112 S.Ct. 541, 116 L.Ed.2d 526 (1991). To enable the Court to determine whether the documents are properly withheld, the agency must provide a detailed description of the withheld information through the submission of a so-called Vaughn Index, sufficiently detailed affidavits or declarations, or both. See Oglesby v. U.S. Department of the Army, 79 F.3d 1172, 1178 (D.C.Cir.1996). Furthermore, the FOIA requires that “[a]ny reasonably segregable portion of a record shall be provided ... after deletion of the portions which are exempt.” 5 U.S.C. § 552(b). “[N]on-exempt portions of a document must be disclosed unless they are inextricably intertwined with exempt portions.” Kimberlin v. Department of Justice, 139 F.3d 944, 949 (D.C.Cir.1998) (quoting Mead Data Cent., Inc. v. U.S. Department of the Air Force, 566 F.2d 242, 260 (D.C.Cir.1977)). To withhold the entirety of a document, the agency must demonstrate that it cannot segregate the exempt material from the non-exempt and disclose as much as possible. See Kimberlin v. Department of Justice, 139 F.3d at 949-50. The Court may award summary judgment to a government agency solely" }, { "docid": "17702142", "title": "", "text": "exempt under” the subsection setting forth the exemption. 5 U.S.C. § 552(b). Indeed, “[t]he focus of FOIA is information, not documents, and an agency cannot justify withholding an entire document simply by showing that it contains some exempt material.” Mead Data Cent., Inc. v. U.S. Dep’t of Air Force, 566 F.2d 242, 260 (D.C.Cir.1977). Otherwise put, “an entire document is not exempt merely because an isolated portion need not be disclosed .... [T]he agency may not sweep a document under a general allegation of exemption ... [i]t is quite possible that part of a document should be kept secret while part should be disclosed.” Vaughn, 484 F.2d at 825. This being the established rule for FOIA withholding of redacted versions of possibly segregable material, it follows that, as we have stated before, “[a]ny reasonably segregable portion of a record shall be provided to a person requesting such record after deletion of the portions which are exempt.” See Sussman, 494 F.3d at 1116 (quoting 5 U.S.C. § 552(b)). Therefore, “[bjefore approving the application of a FOIA exemption, the district court must make specific findings of seg-regability regarding the documents to be withheld.” Id. In the record before the district court, specifically the government’s Vaughn Index, the government’s only justification for withholding the agreements in the face of the redaction of identifying information is a conclusory affidavit by a Division official declaring that a Division paralegal had “reviewed each page line-byline to assure himself that he was withholding from disclosure only information exempt pursuant to the Act.” The Division’s conclusion on a matter of law is not sufficient support for a court to conclude that the self-serving conclusion is the correct one. In argument before the district court and this court, the Division attempted a post hoc fleshing out of its conclusion by asserting that the dates of various documents could allow persons with expert knowledge of antitrust proceedings to determine what industries were under investigation. This does not, of course, explain why dates could not be redacted along with names if that protection is found to be necessary. The Division further" }, { "docid": "476692", "title": "", "text": "of certain types of information.” Critical Mass Energy Project v. Nuclear Regulatory Comm’n, 975 F.2d 871, 872 (D.C.Cir.1992). Accordingly, FOIA provides nine exemptions pursuant to which an agency may withhold requested information. 5 U.S.C. §§ 552(a)(4)(B), (b)(1)-(9). See Summers v. Dep’t of Justice, 140 F.3d 1077, 1080 (D.C.Cir.1998) (recognizing that “release of certain information may harm legitimate governmental or private interests” and noting exemptions allowing agencies to withhold requested documents). The agency must demonstrate the validity of any exemption that it asserts. 5 U.S.C. § 552(a)(2); Beck v. Dep’t of Justice, 997 F.2d 1489, 1491 (D.C.Cir.1993) (“Consistent with the purpose of the Act, the burden is on the agency to justify withholding requested documents.”). To satisfy this burden, the agency may provide a plaintiff “with a Vaughn index, which must adequately describe each withheld document, state which exemption the agency claims for each-withheld document, and explain the exemption’s relevance.” Johnson v. Exec. Office for U.S. Att’ys, 310 F.3d 771, 774 (D.C.Cir.2002); see also Vaughn v. Rosen, 484 F.2d 820, 827 (D.C.Cir.1973) (requiring that this index be “adequately] specific! ] to assur[e] a proper justification by the governmental agency”). In addition, summary judgment may be granted on the basis of the agency’s accompanying affidavits or declarations if they describe “the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith.” Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C.Cir.1981). These affidavits may be submitted by an official who coordinated the search, and need not be from each individual who participated in the search. See SafeCard Servs. v. Sec. & Exch. Comm’n, 926 F.2d 1197, 1200 (D.C.Cir.1991) (“[The person] in charge of coordinating the SEC’s search and recovery efforts ... is the most appropriate person to provide a comprehensive affidavit.”). There is no set formula for a Vaughn index; so long as the agency provides the Court with materials providing a “reasonable basis to evaluate the claim of privilege,” the precise form of the agency’s" }, { "docid": "5118422", "title": "", "text": "Liberty Lobby, Inc., 477 U.S. 242, 248-49, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A non-material factual dispute cannot prevent the court from granting summary judgment. Id. at 249, 106 S.Ct. 2505. Most FOIA. cases are appropriately decided on motions for summary judgment. See Defenders of Wildlife v. U.S. Border Patrol, 623 F.Supp.2d 83, 87 (D.D.C. 2009). A court may award summary judgment in a FOIA case by relying on the agency’s affidavits or declarations if they are “relatively detailed and non-con-clusory,” SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (internal quotation marks omitted), and if they describe “the documents and the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith,” Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981). The court affords such declarations “substantial weight” if they meet these requirements. Judicial Watch v. U.S. Dep’t of Def., 715 F.3d 937, 940-41 (D.C. Cir. 2013). The agency bears the burden of demonstrating that a FOIA exemption applies, and its determinations are subject to de novo review in district court. U.S. Dep’t of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 755, 109 S.Ct. 1468, 103 L.Ed.2d 774 (1989) (citing 5 U.S.C. § 552(a)(4)(B)). To prevail on a motion for summary judgment, the agency must demonstrate that “each document that falls within the class requested either has been produced, is unidentifiable, or is wholly exempt from the Act’s inspection requirements.” Goland v. Cent. Intelligence Agency, 607 F.2d 339, 352 (D.C. Cir. 1978); see also Students Against Genocide v. Dep’t of State, 257 F.3d 828, 833 (D.C. Cir. 2001). Because “[t]he focus of FOIA is information, not documents ... an agency cannot justify withholding an entire document simply by showing that it contains some exempt material.” Mead Data Cent., Inc. v. U.S. Dep’t of Air Force, 566 F.2d 242, 260 (D.C. Cir. 1977). FOIA therefore requires that “[a]ny reasonably segregable portion of [the]" }, { "docid": "12150763", "title": "", "text": "they describe “the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor evidence of agency bad faith.” Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C.Cir.1981). These affidavits may be submitted by an official who coordinated the search, and need not be from each individual who participated in the search. See SafeCard Servs., 926 F.2d at 1200. Courts must “accord substantial weight” to an agency’s affidavits regarding FOIA exemptions. 5 U.S.C. § 552(a)(4)(B) (2004); see also Carney v. DOJ, 19 F.3d 807, 812 (2d Cir.1994) (“Affidavits submitted by an agency are ‘accorded a presumption of good faith.’ ”) (quoting SafeCard Servs., Inc., 926 F.2d at 1200). Moreover, there is no set formula for a Vaughn index; so long as the agency provides the Court with materials providing a “reasonable basis to evaluate the claim of privilege,” the precise form of the agency’s submission — whether it be an index, a detailed declaration, or a narrative — is immaterial. Gallant v. NLRB., 26 F.3d 168, 173 (D.C.Cir.1994) (internal citations omitted). Finally, in seeking summary judgment, the agency must detail what proportion of the information in a document is non-exempt and how that material is dispersed throughout the document. Mead Data Cent. Inc. v. Air Force, 566 F.2d 242, 261 (D.C.Cir.1977). Any nonexempt information that is reasonably segregable from the requested records must be disclosed. Stolt-Nielsen Transp. Group, Ltd. v. United States, 534 F.3d 728, 733-34 (D.C.Cir.2008). As “the focus of FOIA is information, not documents, [ ] an agency cannot justify withholding an entire document simply by showing that it contains some exempt material.” Id. (quoting Mead Data, 566 F.2d at 260). Further, “before approving the application of a FOIA exemption, the district court must make specific findings of segregability regarding the documents to be withheld.” Id. at 734-35 (quoting Sussman v. U.S. Marshals Service, 494 F.3d 1106, 1116 (D.C.Cir.2007)). District courts are required to consider segregability issues sua sponte even when the parties have not specifically raised such" }, { "docid": "22389426", "title": "", "text": "under exemption 5’s deliberative process privilege and exemption 7(E). The agencies have additionally failed to segregate releasable information. Finally, DHS has not demonstrated that searches have been conducted and records provided for all DHS agencies, and the searches that have been conducted were not reasonable. PI. Mot. at 2. The Court agrees with plaintiff that DHS’s Vaughn Index and the accompanying declarations are legally insufficient — the Court is unable to determine whether DHS’s claimed exemptions are valid, whether it has met its burden to reasonably segregate information for release, and whether the agencies involved have conducted adequate searches for responsive records. A The Vaughn Index Under the FOIA, an agency may withhold documents responsive to a FOIA request only if the responsive documents fall within one of nine enumerated statutory exemptions. See 5 U.S.C. § 552(b); see also Dep’t of Defense v. Fed. Labor Relations Auth., 510 U.S. 487, 494, 114 S.Ct. 1006, 127 L.Ed.2d 325 (1994). The agency bears the burden of justifying any withholding. See Bigwood v. United States Agency for Int’l Dev., 484 F.Supp.2d at 74. To enable the Court to determine whether documents properly were withheld, the agency must provide a detailed description of the information withheld through the submission of a so-called “Vaughn Index,” sufficiently detailed affidavits or declarations, or both. Id.; see also Oglesby v. Dep’t of the Army, 79 F.3d 1172, 1178 (D.C.Cir.1996); Vaughn v. Rosen, 484 F.2d at 827-28. The Vaughn Index and/or accompanying affidavits or declarations must “provide!] a relatively detailed justification, specifically identify] the reasons why a particular exemption is relevant and correlate] those claims with the particular part of a withheld document to which they apply.” Judicial Watch, Inc. v. FDA, 449 F.3d 141, 146 (D.C.Cir.2006) (quoting Mead Data Cent., Inc. v. Dep’t of the Air Force, 566 F.2d 242, 251 (D.C.Cir.1977)). While there is no set form for a Vaughn Index, the agency should “disclose as much information as possible without thwarting the exemption’s purpose.” Hall v. Dep’t of Justice, 552 F.Supp.2d 23, 27 (D.D.C.2008) (quoting King v. Dep’t of Justice, 830 F.2d 210, 224 (D.C.Cir.1987)). DHS’s" }, { "docid": "12105876", "title": "", "text": "§§ 552(a)(4)(B), (b)(l)-(9). The agency must demonstrate the validity of any exemption that it asserts. See id.; Beck v. Dep’t of Justice, 997 F.2d 1489, 1491 (D.C.Cir.1993) (“[consistent with the purpose of the Act, the burden is on the agency to justify withholding requested documents”). In addition, summary judgment may be granted on the basis of the agency’s accompanying affidavits or declarations if they describe “the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor evidence of agency bad faith.” Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C.Cir.1981). These affidavits may be submitted by an official who coordinated the search, and need not be from each individual who participated in the search. See SafeCard Servs. v. Sec. & Exch. Comm’n, 926 F.2d 1197, 1200 (D.C.Cir. 1991). An agency also has the burden of detailing what proportion of the information in a document is non-exempt and how that material is dispersed throughout the document. Mead Data Cent., Inc. v. U.S. Dep’t of Air Force, 566 F.2d 242, 261 (D.C.Cir. 1977). Any non-exempt information that is reasonably segregable from the requested records must be disclosed. Oglesby v. U.S. Dep’t of Army, 79 F.3d 1172, 1178 (D.C.Cir.1996). In addition, district courts are required to consider segregability issues sua sponte even when the parties have not specifically raised such claims. Trans-Pac. Policing Agreement v. U.S. Customs Serv., 177 F.3d 1022, 1028 (D.C.Cir.1999). B. Privacy Act The Privacy Act of 1974 regulates the collection, maintenance, use, and dissemination of an individual’s personal information by agencies within the federal government. See 5 U.S.C. § 552a(e). The Act provides that any agency that retains a system of records “shall maintain ... only such information about an individual as is relevant and necessary to accomplish a purpose of the agency required to be accomplished by statute or executive order of the President.” 5 U.S.C. § 552a(e)(l). To provide for openness and accountability, the Act ensures that “upon request by any individual to gain access to" }, { "docid": "12150762", "title": "", "text": "of “legitimate governmental and private interests [that] could be harmed by release of certain types of information.” Critical Mass Energy Project v. Nuclear Regulatory Comm’n, 975 F.2d 871, 872 (D.C.Cir.1992); see also Summers, 140 F.3d at 1079. Accordingly, the FOIA provides nine exemptions pursuant to which an agency may withhold requested information, see 5 U.S.C. §§ 552(a)(4)(B), (b)(1)-(9), and an agency must demonstrate the validity of any exemption that it asserts, see id.; Beck v. DOJ, 997 F.2d 1489, 1491 (D.C.Cir.1993) (“[e]onsistent with the purpose of the Act, the burden is on the agency to justify withholding requested documents”). To satisfy this burden, the agency may provide a plaintiff “with a Vaughn index, which must adequately describe each withheld document, state which exemption the agency claims for each withheld document, and explain the exemption’s relevance.” Johnson v. Exec. Office for U.S. Att’ys, 310 F.3d 771, 774 (D.C.Cir.2002); see also Vaughn v. Rosen, 484 F.2d 820, 827 (D.C.Cir.1973). In addition, summary judgment may be granted on the basis of the agency’s accompanying affidavits or declarations if they describe “the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor evidence of agency bad faith.” Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C.Cir.1981). These affidavits may be submitted by an official who coordinated the search, and need not be from each individual who participated in the search. See SafeCard Servs., 926 F.2d at 1200. Courts must “accord substantial weight” to an agency’s affidavits regarding FOIA exemptions. 5 U.S.C. § 552(a)(4)(B) (2004); see also Carney v. DOJ, 19 F.3d 807, 812 (2d Cir.1994) (“Affidavits submitted by an agency are ‘accorded a presumption of good faith.’ ”) (quoting SafeCard Servs., Inc., 926 F.2d at 1200). Moreover, there is no set formula for a Vaughn index; so long as the agency provides the Court with materials providing a “reasonable basis to evaluate the claim of privilege,” the precise form of the agency’s submission — whether it be an index, a detailed declaration, or" }, { "docid": "4259918", "title": "", "text": "§ 552(b) (requiring that “[a]ny reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt”). An “agency cannot justify withholding an entire document simply by showing that it contains some exempt material.” Mead Data Central v. U.S. Dep’t of Air Force, 566 F.2d 242, 260 (D.C.Cir.1977). Rather, the agency must demonstrate that all reasonably segregable, nonexempt information was released. See Davin, 60 F.3d at 1052 (“The statements regarding segrega-bility are wholly conclusory, providing no information that would enable [plaintiff] to evaluate the FBI’s decisions to withhold.”). The CIS’s declarations and Vaughn index provided no basis for the District Court to make a “reasonably segregable” finding. Indeed, there is no description of the agency’s process for making such a determination, no factual recitation of why certain materials are not reasonably segrega- ble, and no indication of “what proportion of the information in a document is nonexempt and how that material is dispersed throughout the document.” Mead Data Central, 566 F.2d at 261. The absence of this information necessitates a remand to the District Court to make a specific seg-regability finding with respect to the CIS. See Kimberlin v. Dep’t of Justice, 139 F.3d 944, 950 (D.C.Cir.1998) (remanding because District Court did not make findings regarding segregability). IV. For the foregoing reasons we will affirm in part, vacate in part, and remand the matter to the District Court for further proceedings consistent with this opinion. In particular, we will vacate that portion of the District Court’s order which granted summary judgment concerning the FBI’s search for responsive documents, the applicability of Exemption 7 to records withheld by the CIS, and the CIS’s satisfaction of its obligation to demonstrate that all reasonably segregable information has been disclosed. In all other respects, we will affirm the judgment of the District Court. . The District Court did, however, deny that portion of the defendants' motion for summary judgment which requested that the proceedings be stayed pursuant to Open America v. Watergate Special Prosecution Force, 547 F.2d 605 (D.C.Cir.1976), to permit the ICE" }, { "docid": "20864541", "title": "", "text": "the summary judgment phase, an agency must set forth sufficient information in its affidavits for a court to determine if the search was adequate.” Nation Magazine, Wash. Bureau v. U.S. Customs Serv., 71 F.3d 885, 890 (D.C.Cir.1995), citing Oglesby, 920 F.2d at 68. Second, the agency must show that “materials that are withheld ... fall within a FOIA statutory exemption.” Leadership Conference on Civil Rights v. Gonzales, 404 F.Supp.2d 246, 252 (D.D.C.2005). “ ‘[W]hen an agency seeks to withhold information, it must provide a relatively detailed justification,’ ” for the withholding, Morley v. CIA, 508 F.3d 1108, 1122 (D.C.Cir.2007), quoting King v. Dep’t of Justice, 830 F.2d 210, 219 (D.C.Cir.1987), through a Vaughn Index, an affidavit, or by other means. Gallant v. NLRB, 26 F.3d 168, 172-73 (D.C.Cir.1994). After asserting and explaining its exemptions, an agency must release “[a]ny reasonably segregable portion of a record,” 5 U.S.C. § 552(b), unless the nonexempt portions are “inextricably intertwined with exempt portions” of the record. Mead Data Cent., Inc. v. U.S. Dep’t of Air Force, 566 F.2d 242, 260 (D.C.Cir.1977); see also Johnson v. Exec. Office of U.S. Att’ys, 310 F.3d 771, 776 (D.C.Cir.2002). “In order to demonstrate that all reasonably segregable material has been released, the agency must provide a ‘detailed justification’ for its non-segregability,” although “the agency is not required to provide so much detail that the exempt material would be effectively disclosed.” Johnson, 310 F.3d at 776, quoting Mead Data, 566 F.2d at 261. “A district court has the obligation to consider the segregability issue sua sponte, regardless of whether it has been raised by the parties.” Id. citing Trans-Pacific Policing Agreement v. U.S. Customs Serv., 177 F.3d 1022, 1028 (D.C.Cir.1999). I. EOUSA’s Response to Plaintiffs FOIA Requests In response to plaintiffs March 26, 2013 FOIA request, EOUSA released 201 pages of records to plaintiff in full and 267 pages in part, and it withheld 139 pages in full. Luczynski Decl. ¶ 8. EOUSA invoked FOIA Exemptions 3, 5, 6, and 7(C) to justify its withholdings, as well as Privacy Act Exemption (j)(2). Id. The agency also categorically withheld “all" }, { "docid": "21122365", "title": "", "text": "redacted than exemption (b)(1) could justify.” Id. As an example, plaintiff references Southcom’s production of a PowerPoint presentation entitled “Mission Analysis: Potential Support to DOS in Honduras,” wherein Southcom redacted 17 pages out of the 43-page document. Id. The government’s obligation to release any “reasonably segregable portion” of otherwise exempt material is, at this point, well defined in the case law. See Mead Data Cent., Inc. v. Dep’t of the Air Force, 566 F.2d 242, 260 (D.C.Cir.1977). A federal agency cannot withhold non-exempt portions unless they are inextricably intertwined with the exempt portions of the document. Id.; 5 U.S.C. § 552(b). To assess whether an agency has met its reasonable segregability obligation, the Court “may rely on government affidavits that show with reasonable specificity why documents withheld pursuant to a valid exemption cannot be further segregated.” Juarez v. Dep’t of Justice, 518 F.3d 54, 61 (D.C.Cir.2008). However, the agency is not required to provide so much detail that the purpose of the FOIA exemption is defeated. Mead, 566 F.2d at 261. In Johnson v. Executive Office for the U.S. Attorney’s Office, 310 F.3d 771 (D.C.Cir.2002), for example, the government provided both a comprehensive Vaughn index and a declaration wherein the declarant averred that despite a “line-by-line review of each document,” the agency ultimately determined that non-exempt information was not reasonably seg-regable. Id. at 776. In that instance, the D.C. Circuit held that the supporting documents sufficiently fulfilled the agency’s obligation to show with “reasonable specificity” why certain documents could not be further segregated. Id. The Court was assuaged by the declarant’s assurance that the agency conducted a thorough, detailed review of the document to assess whether non-exempt material was reasonably seg-regable. Id. The supporting documents in the instant action provide the same reasonable specificity and assurances contained in the affidavits in Johnson. As the supplemental Vaughn index shows, for every document Southcom flagged as exempt from disclosure pursuant to FOIA Exemption 1, an OCA conducted a “line-by-line review of [the] document and all reasonably segregable, non-exempt portions of [the] document [were] released.” See generally Suppl. Vaughn Index. Much like the" }, { "docid": "1462876", "title": "", "text": "Regulatory Comm’n, 975 F.2d 871, 872 (D.C.Cir.1992); see also Summers, 140 F.3d at 1079. Accordingly, FOIA provides nine exemptions pursuant to which an agency may withhold request ed information. See 5 U.S.C. §§ 552(a)(4)(B), (b)(1)-(9). The agency must demonstrate the validity of any exemption that it asserts. See id.) Beck v. DOJ 997 F.2d 1489, 1491 (D.C.Cir.1993) (“Consistent with the purpose of the Act, the burden is on the agency to justify withholding requested documents”). In addition, summary judgment may be granted on the basis of the agency’s accompanying affidavits or declarations if they describe “the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor evidence of agency bad faith.” Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C.Cir.1981). These affidavits may be submitted by an official who coordinated the search, and need not be from each individual who participated in the search. See SafeCard Servs, v. Sec. & Exch. Comm’n, 926 F.2d 1197, 1200 (D.C.Cir. 1991). An agency also has the burden of detailing what proportion of the information in a document is non-exempt and how that material is dispersed throughout the document. Mead Data Cent., Inc. v. Dep’t of Air Force, 566 F.2d 242, 261 (D.C.Cir. 1977). Any non-exempt information that is reasonably segregable from the requested records must be disclosed. Oglesby v. Army, 79 F.3d 1172, 1178 (D.C.Cir.1996). In addition, district courts are required to consider segregability issues sua sponte even when the parties have not specifically raised such claims. Trans-Pac. Policing Agreement v. Customs Serv., 177 F.3d 1022, 1028 (D.C.Cir.1999). B. Privacy Act The Privacy Act of 1974 regulates the collection, maintenance, use, and dissemination of an individual’s personal information by agencies within the federal government. See 5 U.S.C. § 552a(e). The PA provides that any agency that retains a system of records “shall maintain ... only such information about an individual as is relevant and necessary to accomplish a purpose of the agency required to be accomplished by statute or executive order of" }, { "docid": "476693", "title": "", "text": "be “adequately] specific! ] to assur[e] a proper justification by the governmental agency”). In addition, summary judgment may be granted on the basis of the agency’s accompanying affidavits or declarations if they describe “the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith.” Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C.Cir.1981). These affidavits may be submitted by an official who coordinated the search, and need not be from each individual who participated in the search. See SafeCard Servs. v. Sec. & Exch. Comm’n, 926 F.2d 1197, 1200 (D.C.Cir.1991) (“[The person] in charge of coordinating the SEC’s search and recovery efforts ... is the most appropriate person to provide a comprehensive affidavit.”). There is no set formula for a Vaughn index; so long as the agency provides the Court with materials providing a “reasonable basis to evaluate the claim of privilege,” the precise form of the agency’s submission — whether it be an index, a detailed declaration, or a narrative — is immaterial. Gallant v. Nat’l Labor Relations Bd., 26 F.3d 168, 173 (D.C.Cir.1994) (internal citations omitted). While Vaughn indices are generally discretionary, affidavits alone may not suffice once it is established that records and documents are in a governmental agency’s possession. Miscavige, 2 F.3d at 368 (citing Stephenson v. Internal Revenue Serv., 629 F.2d 1140, 1145 (5th Cir.1980)). Therefore, it is in a governmental agency’s best interest to provide a Vaughn index when claiming privilege, should it seek to satisfy its disclosure burden. Courts must “accord substantial weight” to an agency’s affidavit regarding FOIA exemptions. 5 U.S.C. § 552(a)(4)(B); see also Carney v. Dep’t of Justice, 19 F.3d 807, 812 (2d Cir.1994), cert. denied, 513 U.S. 823, 115 S.Ct. 86, 130 L.Ed.2d 38 (1994) (“Affidavits submitted by an agency are ‘accorded a presumption of good faith.’ ”) (quoting SafeCard Servs., Inc., 926 F.2d at 1200). Indeed, since FOIA exemptions are narrowly construed, should an agency correctly show that the FOIA does" }, { "docid": "476694", "title": "", "text": "submission — whether it be an index, a detailed declaration, or a narrative — is immaterial. Gallant v. Nat’l Labor Relations Bd., 26 F.3d 168, 173 (D.C.Cir.1994) (internal citations omitted). While Vaughn indices are generally discretionary, affidavits alone may not suffice once it is established that records and documents are in a governmental agency’s possession. Miscavige, 2 F.3d at 368 (citing Stephenson v. Internal Revenue Serv., 629 F.2d 1140, 1145 (5th Cir.1980)). Therefore, it is in a governmental agency’s best interest to provide a Vaughn index when claiming privilege, should it seek to satisfy its disclosure burden. Courts must “accord substantial weight” to an agency’s affidavit regarding FOIA exemptions. 5 U.S.C. § 552(a)(4)(B); see also Carney v. Dep’t of Justice, 19 F.3d 807, 812 (2d Cir.1994), cert. denied, 513 U.S. 823, 115 S.Ct. 86, 130 L.Ed.2d 38 (1994) (“Affidavits submitted by an agency are ‘accorded a presumption of good faith.’ ”) (quoting SafeCard Servs., Inc., 926 F.2d at 1200). Indeed, since FOIA exemptions are narrowly construed, should an agency correctly show that the FOIA does not apply to withheld material, the Court’s review of the agency’s decision is limited to determining whether the agency abused its discretion. Mead Data Cent., Inc. v. Dep’t of Air Force, 566 F.2d 242, 259 (D.C.Cir.1977). Therefore, should an exemption correctly apply, an agency’s justification for withholding information need not allude to a specific injury. See id. at 258-59 (permitting the agency to rely upon the explanation that disclosure “would impair the deliberative process ... by impairing the free and frank exchange of ideas among [agency] personnel”). Moreover, the agency must detail “what proportion of the information in a document is non-exempt and how that material is dispersed throughout the document.” Id. at 261. Any nonexempt information that is reasonably segregable from the requested records must be disclosed. Oglesby v. Dep’t of Army, 79 F.3d 1172, 1178 (D.C.Cir.1996). In addition, district courts are required to address segregability issues sua sponte even when the parties have not specifically raised such claims. Trans-Pac. Policing Agreement v. U.S. Customs Serv., 177 F.3d 1022, 1028 (D.C.Cir.1999). In opposing a" }, { "docid": "4259917", "title": "", "text": "an insufficient showing of a rational nexus to a legitimate law enforcement concern.” Id. In this case, the CIS has not identified any connection between its law enforcement authority and the information contained in the withheld material. Indeed, in describing the “Reason for Withholding,” the CIS’s Vaughn index merely notes that the documents were “compiled for law enforcement purposes” without providing any further detail or explanation. While the descriptions of some of the withheld documents arguably suggest that they were compiled for law enforcement purposes, we will not extrapolate such a purpose solely based on those brief summaries or on the CIS’s description of the databases that it searched. See Church of Scientology of California v. U.S. Dep’t of Army, 611 F.2d 738, 749 (9th Cir.1979) (remanding where agency provided insufficient evidence to justify use of Exemption 7). 3. Notably, even if the CIS’s application of FOIA exemptions was substantively correct, we would nevertheless remand because the CIS failed to demonstrate that it has released all reasonably segregable portions of each withheld document. 5 U.S.C. § 552(b) (requiring that “[a]ny reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt”). An “agency cannot justify withholding an entire document simply by showing that it contains some exempt material.” Mead Data Central v. U.S. Dep’t of Air Force, 566 F.2d 242, 260 (D.C.Cir.1977). Rather, the agency must demonstrate that all reasonably segregable, nonexempt information was released. See Davin, 60 F.3d at 1052 (“The statements regarding segrega-bility are wholly conclusory, providing no information that would enable [plaintiff] to evaluate the FBI’s decisions to withhold.”). The CIS’s declarations and Vaughn index provided no basis for the District Court to make a “reasonably segregable” finding. Indeed, there is no description of the agency’s process for making such a determination, no factual recitation of why certain materials are not reasonably segrega- ble, and no indication of “what proportion of the information in a document is nonexempt and how that material is dispersed throughout the document.” Mead Data Central, 566 F.2d at 261. The" }, { "docid": "3527277", "title": "", "text": "furthers argues that the affidavits of two EOUSA attorneys, Gay and Davis, contained only insufficient, con-clusory statements on the segregability of these documents, and the district court erred when it did not make specific findings on the segregability of these documents. We disagree. FOIA § 552(b) requires that even if some materials from the requested record are exempt from disclosure, any “reasonably segregable” information from those documents must be disclosed after redaction of the exempt information unless the exempt portions are “inextricably intertwined with exempt portions.” 5 U.S.C. § 552(b); Mead Data Cent., Inc. v. Dep’t of the Air Force, 566 F.2d 242, 260 (D.C.Cir.1977); see also Trans-Pacific Policing Agreement v. United States Customs Serv., 177 F.3d 1022, 1028 (D.C.Cir.1999). In order to demonstrate that all reasonably segregable material has been released, the agency must provide a “detailed justification” for its non-segregability. Mead Data, 566 F.2d at 261. However, the agency is not required to provide so much detail that the exempt material would be effectively disclosed. Id. Here, EOUSA provided Johnson with a comprehensive Vaughn index, describing each document withheld, as well as the exemption under which it was withheld. In addition, after this Court’s decision in Trans-Pacific, Davis submitted a supplemental affidavit in order to further address the issue of segregability. In that statement, Davis explained that she personally conducted a line-by-line review of each document withheld in full and determined that “no documents contained releasable information which could be reasonably segregated from the nonreleasable portions.” The combination of the Vaughn index and the affidavits of Gay and Davis are sufficient to fulfill the agency’s obligation to show with “reasonable specificity” why a document cannot be further segregated. See Armstrong v. Executive Office of the President, 97 F.3d 575, 578-579 (D.C.Cir.1996). In addition, the district court, citing this Court’s decision in Trans-Pacific, fulfilled its obligation to make a specific finding on the issue of segregability. In Trans-Pacific, we held that a district court has the obligation to consider the segregability issue sua sponte, regardless of whether it has been raised by the parties, noting that we had many" } ]

[ { "docid": "11548345", "title": "", "text": "protection is arguably broader than the attorney-client privilege because it applies to material “obtained or prepared by an adversary’s counsel” in the course of his or her legal duties that was done “with an eye toward litigation.” In re Sealed Case, 676 F.2d 793, 809 (D.C.Cir.1982). The D.C. Circuit has held that, “because it looks to the vitality of the adversary system rather than simply seeking to preserve confidentiality, the work product privilege is not automatically waived by any disclosure to a third party.” Id. The D.C. Circuit has identified three factors for considering whether the attorney work product privilege has been waived: “(1) the party claiming the privilege seeks to use it in a way that is not consistent with the purpose of the privilege ...; (2) appellants had no reasonable basis for believing that the disclosed materials would be kept confidential by the [third party]; and (3) waiver of the privilege in these circumstances would not trench on any policy elements now inherent in this privilege.” In re Subpoenas Duces Tecum, 738 F.2d at 1372 (internal citations omitted). In considering the first factor, the D.C. Circuit noted that, where documents had been initially disclosed to an adver-' sary, the SEC, the privilege holder could not assert work product privilege against “different adversaries.” Id. at 1372. Similarly, Peabody and SCE have disclosed the documents at issue not only to an adversary — but to one of the same adversaries, from whom they now seek to withhold the documents. As the Circuit concluded, “[i]t would ... be inconsistent and unfair to allow [the party asserting privilege] to select according to their own self- interest to which adversaries they will allow access to the materials.” Id. Furthermore, disclosure of the material. already produced in the Court of Federal Claims case would not detract from a healthy, adversarial system. See Hickman v. Taylor, 329 U.S. 495, 509-12, 67 S.Ct. 385, 91 L.Ed. 451 (1947); In re Subpoenas Duces Tecum, 738 F.2d at 1375. The only factor that appears to weigh in favor of issuing a protective order for attorney work product materials" } ]

[ { "docid": "8670788", "title": "", "text": "the attorney-client privilege may not be used to protect this growing body of agency law from disclosure to the public. The IRS suggests that some FSAs may reveal confidential information transmitted by field personnel regarding “the scope, direction, or emphasis of audit activity.” Communications revealing such client confidences are in a different category than those we have been discussing. They are clearly covered by the attorney-client privilege, and the IRS may still assert the privilege with respect to particular portions of FSAs containing this sort of confidential government information. 3. Work Product Doctrine The work product doctrine shields materials “prepared in anticipation of litigation or for trial by or for [a] party or by or for that ... party’s representative (including the ... party’s attorney, consultant, ... or agent).” Fed.R.Civ.P. 26(b)(3); see also Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947). The IRS has identified 309 of the FSAs as attorney work product. There is no dispute that these FSAs are protected under exemption 5, and the district court properly permitted the government to redact “all attorney work-product.” However, in making this ruling the district court confined the scope of the work product doctrine too narrowly. It said the IRS “may exclude only ... text concerning ‘the mental impressions, conclusions, opinions, or legal theories of an attorney.’ ” The work product doctrine protects such deliberative materials but it also protects factual materials prepared in anticipation of litigation. See, e.g., Martin v. Office of Special Counsel, 819 F.2d 1181, 1184-87 (D.C.Cir.1987); A. Michael’s Piano, Inc. v. FTC, 18 F.3d 138, 147 (2d Cir.1994). Any part of an FSA prepared in anticipation of litigation, not just the portions concerning opinions, legal theories, and the like, is protected by the work product doctrine and falls under exemption 5. IV We agree with the district court that no blanket exemption applies to all of the requested FSAs, and they must be released to Tax Analysts except to the extent that they are protected by some specific FOIA exemption. As the district court ordered, the IRS may redact any true" }, { "docid": "21943451", "title": "", "text": "States v. Bernard, 877 F.2d 1463, 1465 (10th Cir.1989). “Any voluntary disclosure by the client is inconsistent with the attorney-client relationship and waives the privilege.” Id. 2. Work-Product Doctrine In Hickman v. Taylor, the source of the work-product doctrine, plaintiffs sought the production of certain witness statements collected by defendants’ attorney and memoranda concerning the attorney’s interviews of other witnesses. 329 U.S. 495, 499-500, 67 S.Ct. 385, 91 L.Ed. 451 (1947). The Court held that plaintiffs had made no showing of need for the materials or justification for securing them from de fendants’ counsel. The requests thus “[fell] outside the arena of discovery and contravene[d] the public policy underlying the orderly prosecution and defense of legal claims. Not even the most liberal of discovery theories can justify unwarranted inquiries into the files and the mental impressions of an attorney.” Id. at 510, 67 S.Ct. 385. “In performing his various duties ... it is essential that a lawyer work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel.” Id. The work-product doctrine subsequently was incorporated into Fed.R.Civ.P. 26(b)(3), which provides: [A] party may obtain discovery of documents and tangible things otherwise discoverable under subdivision (b)(1) of this rule and prepared in anticipation of litigation or for trial by or for another ... party’s representative ... only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the party’s case and that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation. Thus, the doctrine is interpreted under both the rule and Hickman. See Epstein at 479-81. “At its core, the work-product doctrine shelters the mental processes of the attorney, providing a privileged area within which he can analyze and prepare his client’s case.” United States v. Nobles, 422" }, { "docid": "20286039", "title": "", "text": "privilege; therefore, I will not need to consider whether it was also properly withheld under the attorney-client privilege. 4. Documents Withheld Pursuant to Exemption 5 and the Attorney-Work Product Privilege Plaintiffs object to the IRS’s claim of attorney-work product privilege in reference to the 7 documents listed in their Appendix C. App. C to Pis. Mot. Further, plaintiffs ask that the Court require the IRS to produce the identities of the third parties in those instances where it asserted the attorney-work product doctrine and for an in camera review of the 7 contested documents. Pis. Mot. 1-2. Like the attorney-client privilege, the work-product privilege falls within the pi'otection of Exemption 5. N.L.R.B. v. Sears, Roebuck & Co., 421 U.S. at 154, 95 S.Ct. 1504. The work-product privilege protects written materials lawyers prepare “in anticipation of litigation.” Fed. R.Civ.P. 26(b)(3). According to Federal Rule 26(b)(3), “documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative” may not be discovered. Fed.R.Civ.P. 26(b)(3)(A). The purpose of the privilege is to protect the adversary process by ensuring that lawyers work with a “degree of privacy, free from unnecessary intrusion by opposing parties and their counsel.” Hickman v. Taylor, 329 U.S. 495, 510, 67 S.Ct. 385, 91 L.Ed. 451 (1947). The attorney work-product privilege is not an absolute protection; rather, it is “qualified and may be overcome by need and undue hardship.” In re Seagate Technology, LLC, 497 F.3d 1360, 1375 (Fed.Cir.2007) (citing Fed.R.Civ.P. 26(b)(3)). A distinction is drawn between work product that is factual and work product that is the result of mental processes such as plans, strategies, tactics, and impressions, whether memorialized in writing or not. Id. A showing of substantial need and inability to obtain the equivalent without undue hardship can overcome the privilege as to factual work product. See Fed.R.Civ.P. 26(b)(3); see also Upjohn Co. v. United States, 449 U.S. 383, 400, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981); Director, Office of Thrift Supervision v. Vinson & Elkins, LLP, 124 F.3d 1304, 1307 (D.C.Cir.1997). I have already found Bates" }, { "docid": "18197603", "title": "", "text": "confusion in this area, since it is not always clear who is a member of the control group. Instead, the Court held that communications made by any employees acting in their official capacity are privileged so long as they are made for the sole purpose of securing legal advice for the corporate client. Id. This case clearly falls within the holding of Upjohn. The employees in this case were interviewed for the exclusive purpose of obtaining legal advice for the client, and the results of those interviews were passed along in written form to defendants’ counsel. If such information could be cavalierly disclosed, the company which would decide to conduct a thorough internal investigation in order to prepare for trial would be a rare one indeed. It is precisely because such investigations are vital to effective trial preparation that the Supreme Court has protected this type of information under the attorney-client privilege II. The Work Product Doctrine There remains one item which defendant seeks to protect: a document prepared by Ms. Flamm at defendant counsel’s direction reflecting the information which she accumulated in the course of her investigation. Defendants claim that this item is protected work product. The work product doctrine, presently contained in Federal Rule of Civil Procedure 26(b)(3), shields from disclosure materials prepared in anticipation of litigation by a party or a party’s representative unless the opposing party can demonstrate a substantial need for the material and an inability to obtain it by other means. Fed. R. Civ. P. 26(b)(3); Adlman, 68 F.3d at 1501. The purpose of the doctrine is to allow an attorney or another party representative to prepare for trial with a certain degree of privacy, “free from unnecessary intrusion by opposing counsel.” Hickman v. Taylor, 329 U.S. 495, 510-11, 67 S.Ct. 385, 393-94, 91 L.Ed. 451 (1947). According to the Court, “proper presentation of a client’s case demands that [the attorney] assemble information, sift what he considers to be the relevant from the irrelevant facts, prepare his legal theories and plan his strategy without undue and unnecessary interference.” Id. This document very clearly falls" }, { "docid": "23091876", "title": "", "text": "such a case, the party uses the attorney-client privilege as both a sword and a shield. Id.; Fort James Corp., 412 F.3d at 1349. To prevent such abuses, we recognize that when a party defends its actions by disclosing an attorney-client communication, it waives the attorney-client privilege as to all such communications regarding the same subject matter. Id. In contrast to the attorney-client privilege, the work-product doctrine, or work-product immunity as it is also called, can protect “documents and tangible things” prepared in anticipation of litigation that are both non-privileged and relevant. Fed.R.Civ.P. 26(b)(3). Unlike the attorney-client privilege, which protects all communication whether written or oral, work-product immunity protects documents and tangible things, such as memorandums, letters, and e-mails. See generally Judicial Watch, Inc. v. Dep’t of Justice, 432 F.3d 366 (D.C.Cir.2005). We recognize work-product immunity because it promotes a fair and efficient adversarial system by protecting “the attorney’s thought processes and legal recommendations” from the prying eyes of his or her opponent. Genentech, 122 F.3d at 1415 (citations omitted); accord Hickman v. Taylor, 329 U.S. 495, 511-14, 67 S.Ct. 385, 91 L.Ed. 451 (1947) (“Proper preparation of a client’s case demands that he assemble information, sift what he considers to be the relevant from the irrelevant facts, prepare his legal theories and plan his strategy without undue and needless interference .... Were such materials open to opposing counsel on mere demand, much of what is now put down in writing would remain unwritten.... Inefficiency, unfairness and sharp practices would inevitably develop in the giving of legal advice and in the preparation of cases for trial. The effect on the legal profession would be demoralizing. And the interests of the clients and the cause of justice would be poorly served.”); see also Nobles, 422 U.S. at 237; Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 864 (D.C.Cir.1980). Essentially, the work-product doctrine encourages attorneys to write down their thoughts and opinions with the knowledge that their opponents will not rob them of the fruits of their labor. Hickman, 329 U.S. at 511, 67 S.Ct. 385; Id. at 516," }, { "docid": "23711021", "title": "", "text": "is not applicable because Blank Rome is a defendant in this litigation, and its legal advice to Sunrise is directly at issue. F.R.C.P.Rule 26(b)(3) codifies the doctrine of work product protection set forth in Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947), for documents and tangible things “prepared in anticipation of litigation” by or for a party or a party’s representative. The Hickman Court formulated the work product doctrine to protect “the public policy underlying the orderly prosecution and defense of legal claims,” stating that “it is essential that a lawyer work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel.” 329 U.S. at 510, 67 S.Ct. at 393. The public policy supporting the work product doctrine “is not to protect all recorded opinions, observations and impressions of an attorney made in connection with any legal problem, but to protect the integrity of the adversary process.” Hercules Inc. v. Exxon Corp., 434 F.Supp. 136, 150-151 (D.Del.1977). “The privilege derived from the work-product doctrine is not absolute. Like other qualified privileges, it may be waived.” United States v. Nobles, 422 U.S. 225, 239, 95 S.Ct. 2160, 2170, 45 L.Ed.2d 141 (1974). The Court of Appeals for the District of Columbia Circuit has identified three factors as important in determining whether there has been a waiver of work product protection: (1) did the party claiming the privilege “seek[ ] to use it in a way that is not consistent with the purpose of the privilege”; (2) did the party have any “reasonable basis for believing that the disclosed materials would be kept confidential”; and (3) would waiver of the privilege under the circumstances of the case “trench on any policy elements now inherent in th[e] privilege?” In re Subpoenas Duces Tecum, 738 F.2d 1367, 1372 (D.C.Cir.1984). Regarding the first factor, the general rule is that “[disclosure to an adversary waives the work product protection as to items actually disclosed.” Grumman Aerospace Corp. v. Titanium Metals Corp., 91 F.R.D. 84, 90 (E.D.N.Y.1981). As the Court of Appeals for the District of" }, { "docid": "21068486", "title": "", "text": "interviews conducted, for such information has the potential for insights into Plaintiffs’ attorney work product concerning the preparation of their case. (Id.) Plaintiffs did not provide a privilege log with their responses to defendant’s interrogatories and document requests, as required by Rule 26(b)(5) of the Federal Rules of Civil Procedure. Credit Lyonnais now seeks an order compelling plaintiffs’ response to its Document Requests, and Requests for Admissions and Related Interrogatories. The Work Product Doctrine The attorney work product doctrine protects from discovery “documents and tangible things ... prepared in anticipation of litigation or for trial by or for another party or by or for that other party’s representative. ...” Fed. R Civ. P. 26(b)(3). The doctrine was established in order “to preserve a zone of privacy in which a lawyer can prepare and develop legal theories and strategy ‘with an eye towards litigation,’ free from unnecessary intrusion by his adversaries.” United States v. Adlman, 134 F.3d 1194, 1196 (2d Cir.1998) (quoting Hickman v. Taylor, 329 U.S. 495, 510-511, 67 S.Ct. 385, 91 L.Ed. 451 (1947)). “Three conditions must be fulfilled in order for work product protection to apply. ‘The material must (1) be a document or a tangible thing, (2) that was prepared in anticipation of litigation, and (3) was prepared by or for a party, or by his representative.’ ” In re Veeco Instruments, Inc. Sec. Litig., No. 05-MD-01695, 2007 WL 724555, at *4 (S.D.N.Y. Mar.9, 2007) (quoting A.I.A. Holdings, S.A. v. Lehman Bros., Inc., No. 97 Civ. 4978, 2002 WL 31556382, at *4 (S.D.N.Y. Nov. 15, 2002)) (further citations omitted). “The party asserting work product protection ‘bears the burden of establishing its applicability to the case at hand.’ ” Veeco, 2007 WL 724555, at *4 (quoting In re Grand Jury Subpoenas Dated March 19, 2002 and August 2, 2002, 318 F.3d 379, 384 (2d Cir.2003)). Work product protection, however, is not absolute. Even where the applicability of the work product doctrine has been established, factual material may be ordered “upon a ‘showing that the party seeking discovery has substantial need of the materials ... and that the party" }, { "docid": "16760463", "title": "", "text": "v. United States, 247 U.S. 7, 13-15, 38 S.Ct. 417, 62 L.Ed. 950 (1918). The Perlman doctrine applies here because the lawyer swore in an affidavit an intention to produce the documents rather than submit to a contempt citation. See In re Sealed Case, 141 F.3d 337, 340 (D.C.Cir.1998) (“In some cases the attorney will indicate an intention to comply with the subpoena, and on those facts this circuit regards Perlman as controlling.”). Because the Perl-man doctrine authorizes appeals only by clients, however, we dismissed the lawyer’s appeal. See id. (“Of course that makes appeal available for the client, not, as here, the attorney.”). We generally review district court decisions enforcing document subpoenas only for arbitrariness or abuse of discretion. See In re Sealed. Case, 121 F.3d 729, 740 (D.C.Cir.1997). But because the RNC argues that the district court applied the wrong legal standard, our review here is de novo. See In re Subpoena Served upon the Comptroller of the Currency, 967 F.2d 630, 633 (D.C.Cir.1992) (court gives no deference if the ruling “rests upon a misapprehension of the relevant legal standard or is unsupported by the record”). II The work-product privilege protects written materials lawyers prepare “in anticipation of litigation.” ■ Fed.R.Civ.P. 26(b)(3). By ensuring that lawyers can prepare for litigation without fear that opponents may obtain their private notes, memoranda, correspondence, and other written materials, the privilege protects the adversary process. See In re Sealed Case, 107 F.3d 46, 51 (D.C.Cir.1997) (“Like the attorney-client privilege, work product immunity promotes the rendering of effective legal services.”). As the Supreme Court said in Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947), the source of the work-produet privilege: [I]t is essential that a lawyer work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel. Proper preparation of a client’s case demands that he assemble information, sift what he considers to be the relevant from the irrelevant facts, prepare his legal theories and plan his strategy without undue and needless interference. Id. at 510-11, 67 S.Ct. 385; see also 2" }, { "docid": "5964309", "title": "", "text": "disclosure in every case going forward. B. The Government Did Not Waive Work Product Immunity Next, API argues that by using some of the documents in support of the consent decrees with Fort James and Georgia-Pacific, the government waived protection for all of the documents API now seeks. API offers little support for its implicit premise that disclosure of some information results in disclosure of all of the material concerning the same subject. That principle applies more broadly to the attorney-client privilege, where disclosure of privileged information can destroy the privilege. Generally, a party that voluntarily discloses part of a conversation covered by the attorney-client privilege waives the privilege as to the portion disclosed and to all other communications relating to the same subject matter. Williams & Connolly v. SEC, 662 F.3d 1240, 1244 (D.C.Cir.2011) (citing In re Sealed Case, 877 F.2d 976, 980-81 (D.C.Cir.1989)). However, the work product doctrine is “is distinct from and broader than the attorney-client privilege.” United States v. Nobles, 422 U.S. 225, 238 n. 11, 95 S.Ct. 2160, 45 L.Ed.2d 141 (1974). Work product immunity furthers the client’s interest in obtaining complete legal advice and creates “a protected area in which the lawyer can prepare his case free from adversarial scrutiny.” Hickman, 329 U.S. at 511, 67 S.Ct. 385. It advances the adversarial system by providing incentives to collect information and thoroughly prepare for litigation. In determining whether the government impliedly waived work product immunity for the documents API seeks, we determine whether the “specific assertions of privilege are reasonably consistent with the purposes for which” the privilege was created. In re Sealed Case, 676 F.2d 793, 817 (D.C.Cir.1982). Accordingly, “disclosure of some documents does not necessarily destroy work-product protection for other documents of the same character.” 8 Wright & Miller, Federal Practice & Procedure, § 2024; Williams & Connolly, 662 F.3d at 1244; Pittman v. Frazer, 129 F.3d 983, 988 (8th Cir.1997); Sealed Case, 676 F.2d at 818; Duplan Corp. v. Deering Milliken, Inc., 540 F.2d 1215, 1222 (4th Cir.1976). With respect to this case, there is no doubt that the government waived work" }, { "docid": "15026469", "title": "", "text": "await final judgment to seek review of a discovery order. Accordingly, mandamus is the only method available ... to obtain review.”). Because Professionals Direct is a party to this suit, mandamus is an appropriate means of review. 2. Whether PDIC Will Suffer Irreparable Harm Second, an erroneous forced disclosure of confidential information could not be adequately remedied on direct appeal because a court cannot restore confidentiality to documents after they are disclosed. Lott, 424 F.3d at 451-52 (“If the district court’s discovery order is in error and Lott’s counsel is wrongfully forced to disclose privileged communications, there is no way to cure the harm done to Lott or to the privilege itself.”); see generally 16 Wright & Miller, Federal Practice & Procedure § 3935.3 (“Writ review is rather frequently provided in more general terms because of the desire to protect against discovery of information that is claimed to be protected by the Constitution, privilege, or more general interests in privacy.”). Accordingly, we proceed to the merits of Professionals Direct’s petition. IV. The third factor in the five factor test is whether the district court’s order is “clearly erroneous as a matter of law.” Professionals Direct contends that the district court committed clear error in its application of both the federal work-product doctrine and Ohio’s attorney-client privilege. We do not agree. A. Work-product doctrine The work-product doctrine protects an attorney’s trial preparation materials from discovery to preserve the integrity of the adversarial process. See Hickman v. Taylor, 329 U.S. 495, 510-14, 67 S.Ct. 385, 91 L.Ed. 451 (1947). The work-product doctrine is a procedural rule of federal law; thus, Federal Rule of Civil Procedure 26 governs this diversity case. In re Powerhouse Licensing, LLC, 441 F.3d 467, 472 (6th Cir.2006). Rule 26(b)(3) protects (1) “documents and tangible things”; (2) “prepared in anticipation of litigation or for trial”; (3) “by or for another party or its representative.” Id. The lone issue is whether the disputed documents were prepared in anticipation of litigation. To determine whether a document has been prepared “in anticipation of litigation,” and is thus protected work product, we ask" }, { "docid": "11393075", "title": "", "text": "Pitney-Bowes, Inc. v. Mestre, 86 F.R.D. 444, 446 (S.D.Fla.1980)), whether the presence of certain parties was reasonable in light of an interest in confidentiality is essentially a factual question the court must determine considering the identity of the parties and the context of the communications. See Julian, 93 F.R.D. 138. For example, confidentiality at a meeting of corporate officers would not be waived simply because some of the officers whose presence was reasonably required at the meeting were also officers of another corporation. See Upjohn, 449 U.S. at 391, 101 S.Ct. at 683. Likewise, the mere commingling of records does not constitute a waiver of otherwise privileged communications. Julian, 93 F.R.D. 138. Although disclosure to third parties of otherwise privileged information constitutes a waiver of that privilege, officers, directors and counsel who may have served FCA as well as Old American are not necessarily relegated to the status of third parties. Without other evidence of waiver, privileged communications disclosed to such parties do not lose their privileged character as a matter of law. Assertions of Privilege Under Attorney Work-Product The unique question raised by the Chapter 7 Trustee is whether documents prepared by attorneys for Old American in preparation for litigation with parties other than the FCA can now be withheld from production to the FCA under the Attorney Work-Product Doctrine. The Supreme Court first recognized the work-product doctrine in Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947). In Hickman, the Court held that to qualify for protection as work-product, the materials sought must have been prepared by another party in anticipation of litigation. Id. The doctrine was eventually codified in Fed.R.Civ.P. 26(b). Rule 26(b) provides, in part, that: [s]ubject to the provisions of subdivision (b)(4) of this rule, a party may obtain discovery of documents under subdivision (b)(1) of this rule and prepared in anticipation of litigation or for trial by or for another party representatives ... only upon a showing that the party seeking discovery has substantial need of the materials in preparation of the party’s case and that the party is unable" }, { "docid": "21017385", "title": "", "text": "five general categories: (1) attorney notes from interviews with current and former M & T employees; (2) notes and questionnaires from employee exit interviews; (3) internal audits; (4) correspondence from M & T’s counsel regarding this litigation; and (5) compilations of information. Fago, 238 F.R.D. at 7. Following the in camera review, I found that some, but not all, of the documents constitute work product and that, for the documents that constitute work product, protection was not waived by M & T’s presentation to HUD. Id. at 9-10. 1. Work Product Doctrine The work product doctrine is designed to balance the need of the adversary system to promote an attorney’s preparation against society’s general interest in revealing all facts relevant to the resolution of a dispute. In re Sealed Case, 856 F.2d 268, 273 (D.C.Cir.1988) (citing In re Subpoenas Duces Tecum, 738 F.2d 1367, 1371 (D.C.Cir.1984)). A lawyer’s work product may be reflected in “interviews, statements, memoranda, correspondence, briefs, mental impressions, personal briefs, and countless other tangible and intangible ways.” Hickman v. Taylor, 329 U.S. 495, 511, 67 S.Ct. 385, 91 L.Ed. 451 (1947). “Were such materials open to opposing counsel on mere demand, much of what is now put down in writing would remain unwritten [and][a]n attorney’s thoughts, heretofore inviolate, would not be his own.” Id. In furtherance of this principle, Rule 26 of the Federal Rules of Civil Procedure protects from disclosure materials prepared by or for a party, its attorney, or its representative in anticipation of litigation and allows for discovery only upon a showing of substantial need and an inability to obtain the substantial equivalent without undue hardship. Fed. R.Civ.P. 26(b)(3). In order for documents to be protected by the work product doctrine, the proponent must show that the documents were prepared or obtained in anticipation of litigation. Id. “ ‘In anticipation of litigation’ contains two related, but nevertheless distinct, concepts. One is temporal. The other is motivational.” Jinks-Umstead v. England, 231 F.R.D. 13, 15 (D.D.C.2005) (quoting Edna Selan Epstein, The Attorney-Client Privilege and the Work Product Doctrine, at 314 (4th ed.2001)). First, at the time" }, { "docid": "16760464", "title": "", "text": "a misapprehension of the relevant legal standard or is unsupported by the record”). II The work-product privilege protects written materials lawyers prepare “in anticipation of litigation.” ■ Fed.R.Civ.P. 26(b)(3). By ensuring that lawyers can prepare for litigation without fear that opponents may obtain their private notes, memoranda, correspondence, and other written materials, the privilege protects the adversary process. See In re Sealed Case, 107 F.3d 46, 51 (D.C.Cir.1997) (“Like the attorney-client privilege, work product immunity promotes the rendering of effective legal services.”). As the Supreme Court said in Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947), the source of the work-produet privilege: [I]t is essential that a lawyer work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel. Proper preparation of a client’s case demands that he assemble information, sift what he considers to be the relevant from the irrelevant facts, prepare his legal theories and plan his strategy without undue and needless interference. Id. at 510-11, 67 S.Ct. 385; see also 2 Christopher B. Mueller & Laird C. Kirkpatricx, Federal EVIDENCE 410 (2d ed.1994) (“Protection is needed because an attorney preparing for trial must assemble much material that is outside the attorney-client privilege, such as witness statements, investigative reports, drafts of pleadings, and trial memoran-da”). The interests articulated in Hickman are present in both criminal and civil eases. See United States v. Nobles, 422 U.S. 225, 238, 95 S.Ct. 2160, 45 L.Ed.2d 141 (1975) (“Although the work-product doctrine most frequently is asserted as a bar to discovery in civil litigation, its role in assuring the proper functioning of the criminal justice system is even more vital. The interests of society and the accused in obtaining a fair and accurate resolution of the question of guilt or innocence demand that adequate safeguards assure the thorough preparation and presentation of each side of the case.”). Without a strong work-product privilege, lawyers would keep their thoughts to themselves, avoid communicating with other lawyers, and hesitate to take notes. As Hickman put it: Were such materials open to opposing counsel on" }, { "docid": "11918835", "title": "", "text": "the documents for which defendant claims the attorney-client privilege. Defendant’s claims of the attorney-client privilege with respect to those documents appear to be properly invoked. In particular, the court determines that defendant has met the requirements of RCFC 26(b)(5) by adequately describing the communications and circumstances surrounding the occurrence of the communications between employees of the IRS and the IRS’s attorneys. Those communications qualify as attorney-client communications as required by PG & E I. Therefore, the documents for which defendant claims the attorney-client privilege are protected and are not required to be produced. B. Work Product Privilege The work product doctrine, codified for the United States Court of Federal Claims in RCFC 26(b)(3), is intended to preserve a zone of privacy in which a lawyer can prepare and develop legal strategy “with an eye toward litigation,” free from unnecessary intrusion by adversaries. Hickman v. Taylor, 329 U.S. 495, 510-11, 67 S.Ct. 385, 91 L.Ed. 451 (1947). The work product doctrine provides for the qualified protection of documents and tangible things prepared by or for a party or that party’s representative “in anticipation of litigation or for trial.” RCFC 26(b)(3). The Restatement (Third) of the Law Governing Lawyers defines “litigation,” as it applies within the work product doctrine, as the following: Litigation includes civil and criminal trial proceedings, as well as adversarial proceedings before an administrative agency, an arbitration panel or a claims commission, and alternative-dispute-resolution proceedings such as mediation or mini-trial. It also includes a proceeding such as a grand jury or a coroner’s inquiry or an investigative legislative hearing. In general, a proceeding is adversarial when evidence or legal argument is presented by parties contending against each other with respect to legally significant factual issues. Restatement (Third) of the Law Governing Lawyers (Restatement) § 87 cmt. h (2000) (quotation marks omitted). The work product doctrine is not an absolute bar to discovery of materials prepared in anticipation of litigation. Work product can be produced upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the party’s case and that the party" }, { "docid": "3493862", "title": "", "text": "the petition for a writ of mandamus, Venice Renaissance set forth precisely the scope of its request: Respondent does not argue that privilege was waived with respect to anything except for Petitioners disclosures made in connection with the transactions at issue in this matter. Specifically, Petitioners have waived the attorney-client privilege on any and all communications documents and other related information in connection with Mr. Shefferly’s representation of Petitioners in the transactions at issue. Response, Oct. 7, 2005, at 7. It is axiomatic that the purpose of the work-product doctrine is to allow an attorney “to assemble information, sift what he considers to be the relevant from the irrelevant facts, prepare his legal theories and plan his strategy without undue and needless interference ... to promote justice and to protect [his] clients’ interests.” Hickman v. Taylor, 329 U.S. 495, 510, 67 S.Ct. 385, 91 L.Ed. 451 (1947). A five-step analysis is used in judging whether the work product doctrine applies. See Toledo Edison Co. v. GA Tech., Inc., 847 F.2d 335, 339 (6th Cir.1988); Fed.R.Civ.P. 26(b); see also Guardsmark, Inc. v. Blue Cross, 206 F.R.D. 202, 206-07 (W.D.Tenn.2002). Once the party requesting discovery establishes relevance, the objecting party has the burden of showing that the material was “prepared in anticipation of litigation or for trial.” Toledo Edison at 339. If that burden is not met, the court’s inquiry ends and the documents must be produced. Id. As Venice Renaissance points out, the representation undertaken by Shefferly’s former firm related to the transfer of assets and occurred before the complaint in the instant case was filed. At no time has the firm represented petitioners during the litigation now pending in the district court and it is therefore difficult to credit the contention that the documents requested were prepared with an eye towards this litigation. Moreover, as already stated, counsel for petitioners elected to interject Shefferly into these proceedings and thereby waived the attorney-client privilege. In so doing, the work product privilege was waived as well. See In re Columbia/HCA Corp., 293 F.3d 289, 306 (6th Cir.2002) (“there is no compelling reason" }, { "docid": "18183995", "title": "", "text": "with the insured in the outcome of litigation, even when their potential defenses are not perfectly aligned. See Lectrolarm Custom Sys., Inc. v. Pelco Sales, Inc., 212 F.R.D. 567, 571-73 (E.D.Cal.2002); Travelers Cas. & Sur. Co. v. Excess Ins. Co., 197 F.R.D. 601, 607 (S.D.Ohio 2000) (holding that members of a reinsurance group facing similar environmental pollution claims by United States insurance and reinsurance companies “shared [legal] interests sufficiently com mon or joint to create a need for full and frank communication between and among counsel and their clients”); cf. Minn. Sch. Bds. Ass’n Ins. Trust v. Emp’rs Ins. Co. of Wausau, 183 F.R.D. 627, 631-32 (N.D.Ill.1999) (holding, in the context of work product protection, that a reinsured’s communication with its reinsurers did not waive the protection because the reinsured “always intended and expected that their communications would remain confidential and protected from common adversaries”). We, therefore, conclude that appellants did not waive their attorney-client privilege. c) Application of Work-Product Doctrine Because the district court concluded that the work-product immunity, if applicable, was not waived, and the government has not sufficiently challenged that ruling on appeal, we address only the district court’s view that the EY Tax Memo and related documents were not entitled to work-product protection. Attorney work product is of course protected from discovery. See Hickman v. Taylor, 329 U.S. 495, 510-11, 67 S.Ct. 385, 91 L.Ed. 451 (1947); see also Fed.R.Civ.P. 26(b)(3). The doctrine “is intended to preserve a zone of privacy in which a lawyer can prepare and develop legal theories and strategy with an eye toward litigation, free from unnecessary intrusion by his adversaries.” United States v. Adlman, 134 F.3d 1194, 1196 (2d Cir.1998) (internal quotation marks omitted). Documents prepared in anticipation of litigation are work product, even when they are also intended to assist in business dealings. Id. at 1204. We review the district court’s ruling on a work-product claim for abuse of discretion. See, e.g., Horn & Hardart Co. v. Pillsbury Co., 888 F.2d 8, 12 (2d Cir.1989). The district court acknowledged that the EY Tax Memo was prepared at a time when" }, { "docid": "8510641", "title": "", "text": "privilege also covers communications from the attorney to the client which include legal advice. Fine v. Facet Aerospace Products Co., 133 F.R.D. 439, 444 (S.D.N.Y.1990). MassMutual does not dispute that the Singerman Memorandum would be covered by the attorney-client privilege, as it admits “[wjhile plaintiff previously denied the relevance of the Singerman memorandum, it is now indisputable that Hopkins & Sutter was providing legal advice as a central part of the RTC’s decision-making process during Plan termination and distribution.” Item 85, U 11. Rather, MassMutual asserts that the privilege was waived by disclosure and the at-issue doctrine, both of which are discussed below in Sections 4 and 5. 3. Work-Product Privilege The work-product privilege, or doctrine, has been codified in Fed.R.Civ.P. 26(b)(3). Its purpose is to “preserve a zone of privacy in which a lawyer can prepare and develop legal theories and strategy ‘with an eye toward litigation’ free from unnecessary intrusion by his adversaries.” United States v. Adlman, 134 F.3d 1194, 1196 (2d Cir.1998) (citation omitted). It is viewed as promoting the adversary system since it allows attorneys to be free to prepare their cases without fear that their work product will be used against their clients. Cooper Hospital/Univ. Med. Ctr. v. Sullivan, 183 F.R.D. 119, 128 (D.N.J.1998) (citing Hickman v. Taylor, 329 U.S. 495, 510-11, 67 S.Ct. 385, 91 L.Ed. 451 (1947)). To invoke the protection of the rule, the party resisting discovery bears the burden of establishing that the documents in question were “prepared principally or exclusively to assist in anticipated or ongoing litigation.” United States v. Construction Prods. Research, Inc., 73 F.3d 464, 473 (2d Cir.1996). That party must “demonstrate both that the privilege exists and that it has not been waived.” Granite Partners, L.P. v. Bear, Stearns & Co. Inc., 184 F.R.D. 49, 50 (S.D.N.Y.1999) (citations omitted). Even if the document comes within the scope of the rule, “the protection afforded is conditional and ‘may be set aside if the discovering party demonstrates a sufficiently pressing need for the data.’ ” In re Kidder Peabody Securities Litigation, 168 F.R.D. 459, 462 (S.D.N.Y. 1996) (citation omitted)." }, { "docid": "19784431", "title": "", "text": "private association. Because AILA appears to have been presenting complaints about the adjudication process in these meetings at the behest of USCIS, the minutes qualify as intra-agency or inter-agency records under Exemption 5. See Nat’l Inst. of Military Justice, 512 F.3d at 687. And because the minutes focus on the problems that AILA pointed out interspersed with responses that USCIS is considering, the minutes are predecisional and deliberative, and were thus justifiably withheld. 2. Attorney Work-Product Privilege The attorney work-product privilege protects “documents and tangible things that are prepared in anticipation of litigation or for trial” by an attorney. Fed.R.Civ.P. 26(b)(3); see also Tax Analysts v. IRS, 117 F.3d 607, 620 (D.C.Cir.1997). “[I]t is essential that a lawyer work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel. Proper preparation of a client’s case demands that he assemble information, sift what he considers to be the relevant from the irrelevant facts, prepare his legal theories and plan his strategy without undue and needless interference.” Hickman v. Taylor, 329 U.S. 495, 510-11, 67 S.Ct. 385, 91 L.Ed. 451 (1947). As in most work-product cases, the disputes here revolve around whether documents were “prepared in anticipation of litigation.” To qualify, the document must have been prepared or obtained “because of’ the threat of litigation, meaning that “the lawyer must at least have had a subjective belief that litigation was a real possibility, and that belief must have been objectively reasonable.” In re Sealed Case, 146 F.3d 881, 884 (D.C.Cir.1998) (citation omitted). The “litigation” anticipated by the work product can “include proceedings before administrative tribunals if they are of an adversarial nature.” 8 Charles Alan Wright et al. Federal Practice and Procedure § 2024, at 502-03 (3d ed. 2010). A document is prepared in anticipation of litigation when litigation is “foreseeable,” “even if no specific claim is contemplated.” Schiller, 964 F.2d at 1208. Yet the “mere possibility” of litigation is not enough. Coastal States, 617 F.2d at 865. “[I]f the agency were allowed to withhold any document prepared by any person in the Government with a" }, { "docid": "14606256", "title": "", "text": "ambit of the work-product doctrine. The work-product doctrine was first elaborated by the Supreme Court in Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947), in order to protect against unwarranted intrusion into the files and mental impressions of attorneys and to promote “the interests of clients and the cause of justice.” Id. at 510-11, 67 S.Ct. at 393-94. The work-product doctrine “provides a working attorney with a ‘zone of privacy’ within which to think, plan, weigh facts and evidence, candidly evaluate a client’s ease, and prepare legal theories.” Coastal States Gas Corp. v. Department of Energy, 617 F.2d 854, 864 (D.C.Cir.1980). As we observed in In re Sealed Case, 676 F.2d 793 (D.C.Cir.1982), the scope of protection under work-product doctrine is broader than that under attorney-client privilege. Id. at 808. Federal Rule of Civil Procedure 26(b)(3), which applies to subpoena enforcement proceedings according to the terms of Rule 81(a)(3), extends protection to “documents and tangible things ... prepared in anticipation of litigation or for trial by or for another party or by or for that other party’s representative (including the other party’s attorney, consultant, surety, indemnitor, insurer, or agent).” Fed.R.Civ.P. 26(b)(3) (emphasis added). Despite the doctrine’s apparent breadth, we have underscored its limitations, noting that “there is no privilege at all unless the document was initially prepared in contemplation of litigation, or in the course of preparing for trial.” Coastal States, 617 F.2d at 865. A litigant must demonstrate that documents were created “with a specific claim supported by concrete facts which would likely lead to litigation in mind,” id., not merely assembled in the ordinary course of business or for other nonlitigation purposes. See Petersen v. Douglas County Bank & Trust Co., 967 F.2d 1186, 1189 (8th Cir.1992). Courts applying these standards have frequently declined to find insured-insurer communications within the penumbra of the work-product doctrine. See, e.g., McDougall v. Dunn, 468 F.2d 468, 473 (4th Cir.1972) (deeming dispositive the two and one-half year time lapse between1 statements to insurer and ensuing litigation); Fann v. Giant Food, Inc., 115 F.R.D. 593, 596 (D.D.C.1987) (deeming" }, { "docid": "4501104", "title": "", "text": "be waived. United States v. White, 950 F.2d 426, 430 (7th Cir.1991). The purpose of the privilege is to “encourage full disclosure and to facilitate open communication between attorneys and their clients.” United States v. BDO Seidman, 337 F.3d 802, 810 (7th Cir. 2003). In addition to protecting statements made by the client, the privilege also protects statements from the lawyer to the client “where those communications rest on confidential information obtained from the client, or where those communications would reveal the substance of a confidential communication by the client.” Rehling v. City of Chicago, 207 F.3d 1009, 1019 (7th Cir.2000) (internal citations omitted). A document may be protected by the work product privilege if it is created by an attorney “in anticipation of litigation.” Fed. R. Crv. P. 26(b)(3); Logan v. Commercial Union Ins. Co., 96 F.3d 971, 976 (7th Cir. 1996). The work product doctrine is a qualified privilege that “exists because ‘it is essential that a lawyer work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel.’ ” Ear gle Compressors, Inc. v. HEC Liquidating Corp., 206 F.R.D. 474, 478 (N.D.Ill.2002) (quoting Hickman v. Taylor, 329 U.S. 495, 510, 67 S.Ct. 385, 91 L.Ed. 451 (1947)). The party invoking the attorney-client or work product privilege bears the burden of establishing that the privilege applies. BDO Seidman, 337 F.3d at 811; Avery Dennison Corp. v. UCB Films PLC, No. 95 C 6351,1998 WL 293002, at *2 (N.D.Ill. May 28,1998). Defendants do not dispute that Exhibit L is a communication between an attorney and his client. Rather, they argue that the information contained in the document does not relate to any legal advice, and state that “[t]he factual underpinnings of a trademark application to the PTO are not privileged.” (Def. Mot. ¶ 31) (citing Suh u Yang, No. 96-20891, 1997 U.S. Dist. LEXIS 20077, at *13 (N.D.Cal. Nov. 18, 1997)). MMU stresses that the document itself bears the marking “ATTORNEY-CLIENT PRIVILEGED COMMUNICATION,” and insists that it was prepared “in connection with legal advice sought by Plaintiff regarding the filing of the Complaint" } ]

[ { "docid": "11257756", "title": "", "text": "of whom con fronted appellant with drawn guns. In spite of the drawn guns, appellant assaulted one of the officers with the table knife. Relying on testimony of the officers and two other witnesses describing his actions, appellant’s defense was unconsciousness of his behavior at the time of the offense. In support of the claim of unconsciousness trial counsel hoped to call appellant to the stand for his account of the events. Aware, however, that this could open the way for introduction in evidence of a prior conviction of assault with a dangerous weapon, counsel requested the court to rule the conviction inadmissible under the authority of Luck v. United States, supra. The request was denied and appellant decided not to take the stand. In Luck we noted the problems involved in admitting prior convictions for impeachment purposes. 121 U.S.App.D.C. at 156-157, 348 F.2d at 768-769. Without doubt, reciting a defendant's prior criminal record to the jury can be highly prejudicial, especially where, as here, the prior offense is a crime similar to the one on trial. See Pinkney v. United States, 124 U.S.App.D.C. 209, 363 F.2d 696 (1966). Thus’the impeachment rule confronts the defendant with a dilemma. Although his testimony may provide useful, even critical, information, he must weigh the prejudice that will attend exposure of his criminal record. Too often the defendant is kept from the stand or, having risked impeachment, is clearly prejudiced by admission of his prior record. It was with this experience in mind that we were led in Luck to hold that, while prior convictions might have some bearing on credibility, the trial court is not bound by 14 D.C.Code § 305 to permit impeachment in every case. Rather we called upon the trial court to exercise discretion, noting that “[t]here may well be eases where the trial judge might think that the cause of truth would be helped more by letting the jury hear the defendant’s story than by the defendant’s foregoing that opportunity because of the fear of prejudice founded upon a prior conviction. There may well be other cases where the" } ]

[ { "docid": "9335715", "title": "", "text": "Fed.R. Crim.P. 30; Singer v. United States, 380 U.S. 24, 38, 85 S.Ct. 783, 13 L.Ed.2d 630 (1965). Appellant’s remaining contention focuses on two references by the prosecuting attorney to “fingerprint” evidence; handwriting, but no fingerprint, evidence was introduced at the trial. The references were obviously inadvertent and in our view too innocuous to mislead the jury or to otherwise affect substantial rights. See Fed.R.Crim.P. 52(a). . 121 U.S.App.D.C. 151, 348 F.2d 763 (1965). . Id. at 156, 348 F.2d at 768. . See Weaver v. United States, 133 U.S. App.D.C. 66, 71-72, 408 F.2d 1269, 1274-1275 (1969). . Not his counsel on appeal. . Gordon v. United States, 127 U.S.App. D.C. 343, 383 F.2d 936 (1967), cert. denied 390 U.S. 1029, 88 S.Ct. 1421, 20 L. Ed.2d 287 (1968). . Possession of a prohibited -weapon. Appellant’s record also revealed charges of destroying private property and attempted housebreaking of which he was found not guilty. . Immediately after the Luck ruling, the trial judge directed appellant’s counsel to make his opening statement, the privilege of making which he had earlier reserved. Defense counsel then informed the jury that “it is our contention that the defendant did not pawn the saxophone nor did he enter the house and take it out.” The court then took a recess, and when it reconvened defense counsel stated that he rested. It seems obvious that during the recess appellant made the decision that he would not undertake to testify under the conditions the judge’s Luck ruling made possible. . Gordon v. United States, supra note 12. . 127 U.S.App.D.O. at 347, 383 F.2d at 940. . Id. . Id. See also Luck v. United States, supra note 8, 121 U.S.App.D.C. at 157, 348 F.2d at 769. . 127 U.S.App.D.O. at 347, 383 F.2d at 940. . Id. See also Luck v. United States, supra note 8, 121 U.S.App.D.C. at 156-157, 348 F.2d at 768-769. . Smith v. United States, 123 U.S.App. D.C. 259, 261, 359 F.2d 243, 245 (1966). See also Gordon v. United States, supra note 12, 127 U.S.App.D.C. at 348 n. 11, 383" }, { "docid": "8056726", "title": "", "text": "the court affirmed even though it was somewhat critical of the manner in which the trial judge handled the issue; and twice the court has suggested that the case might have been reversed if the trial had occurred after Gordon. A summary of these affirmances follows: Smith v. United States, 123 U.S.App.D.C. 259, 359 F.2d 243 (1966) (Trial prior to Luck and trial court’s discretion not invoked). Walker v. United States, 124 U.S.App.D.C. 194, 363 F.2d 681 (1966) (Luck issue not raised at trial). Hood v. United States, 125 U.S.App.D.C. 16, 365 F.2d 949 (1966) (Trial judge’s discretion not properly invoked). Trimble v. United States, 125 U.S.App.D.C. 173, 369 F.2d 950 (1966) (Luck objection not made by defendant, and in any event, trial judge on his own properly exercised Luck discretion). Stevens v. United States, 125 U.S.App.D.C. 239, 370 F.2d 485 (1966) (Affirmed per curiam; Fahy, J., dissenting on grounds of Luck even though not raised below). Harley v. United States, 126 U.S.App.D.C. 287, 377 F.2d 172 (1967) (Trial judge’s discretion under Luck not properly invoked). Carter v. United States, 126 U.S.App.D.C. 370, 379 F.2d 147 (1967) (Tried before Luck, and record as a whole does not justify reversal). Lewis v. United States, 127 U.S.App.D.C. 115, 381 F.2d 894 (1967) {Luck issue not raised at trial, but the court commented that “[I]n the fair administration of justice some obligation is imposed by Luck upon the trial court and the prosecution, and the time may come when we shall not feel bound to ignore its principles merely because the defense does so.”). Gordon v. United States, 127 U.S.App.D.C. 343, 383 F.2d 936 (1967), cert. denied, 390 U.S. 1029, 88 S.Ct. 1421, 20 L.Ed.2d 287 (1968). (Luck issue not properly raised below; adopted more stringent standards for convictions for similar conduct; recommended having accused take stand out of presence of jury before determining Luck issue). Brooke v. United States, 128 U.S.App.D.C. 19, 385 F.2d 279 (1967) (No abuse of Luck discretion; defendant would have told same story as did a defense witness). Laughlin v. United States, 128 U.S.App.D.C. 27, 385 F.2d 287" }, { "docid": "7134637", "title": "", "text": "once the exercise of discretion appeared, the trial court’s action be ‘accorded a respect appropriately reflective of the inescapable remoteness of appellate review.’ ” Gordon v. United States, supra note 12, 127 U.S.App.D.C. at 346, 383 F.2d at 939. . Had this case been tried after our decision in Gordon v. United States, supra note 12, the trial judge no doubt would have given consideration to the factors set forth therein, and might well have reached a different result, particularly as to the 1960 robbery conviction. See id. at 347, 383 F.2d at 940. Nevertheless, on the present record we find no reversible error. See Payne v. United States, 129 U.S.App.D.C. -, 392 F.2d 820 (Mar. 5, 1968). . Compare Brown v. United States, supra; see Walker v. United States, 124 U.S.App.D.C. 194, 363 F.2d 681, 682 (1966). . The theory of Luck was that the trial judge has discretion to bar impeachment in situations where the “cause of truth would be helped more by letting the jury hear the defendant’s story than by the defendant’s foregoing that opportunity because of the fear of prejudice founded upon a prior conviction.” 121 U.S.App.D.C. at 156, 348 F.2d at 768. BAZELON, Chief Judge (concurring): I concur in affirmance, and agree with much of the majority opinion. I have an additional observation to make regarding the preindictment delay issue, and my reasoning on the Luck issue differs somewhat from that of the majority. I The majority finds no significant probability that appellant was harmed by the absence of the missing witness. Since I agree with this conclusion, I concur. However, the majority also notes that defense counsel may have been less than diligent in seeking the missing witness. Though I do not understand my colleagues to suggest that the responsibility for locating the witness was entirely appellant’s, I wish to dispel any possible notion that the government may leave indigent defendants to their own inadequate devices to find missing witnesses. The question of the missing witness was raised by appellant at the hearing on the motion to dismiss the indictment, and again at" }, { "docid": "5343947", "title": "", "text": "civil case recognizing that misdemeanor conviction for assault and battery would not be admissible under Rule 609, because prior crime did not involve dishonesty or false statement). The Government has invoked Gordon v. United States, 127 U.S.App.D.C. 343, 383 F.2d 936, cert. denied, 390 U.S. 1020, 88 S.Ct. 1421, 20 L.Ed.2d 287 (1967), and United States v. Simpson, 144 U.S.App.D.C. 259, 445 F.2d 735 (1970), in aid of the proposition that stealing, and in particular the crime of robbery, involves dishonesty or false statement under Rule 609(a)(2). Gordon and Simpson are not unique. Other cases decided by this court pursuant to the Luck standard might also have been cited. See, e. g., Gass v. United States, 135 U.S.App.D.C. 767, 416 F.2d 767 (1969); Smith v. United States, 132 U.S.App.D.C. 131, 406 F.2d 667 (1968), cert. denied, 394 U.S. 963, 89 S.Ct. 1315, 22 L.Ed.2d 753 (1969); and Williams v. United States, 129 U.S.App.D.C. 332, 394 F.2d 957 (D.C.Cir.), cert. denied, 393 U.S. 984, 89 S.Ct. 457, 21 L.Ed.2d 445 (1968). But see United States v. McCord, 420 F.2d 255 (1969). The simple answer to the Government’s argument is that none of these cases involved Rule 609. Luck had held that, under the then applicable version of D.C.Code § 14-305, trial courts should exercise discretion in determining whether to permit impeachment by prior conviction. 348 F.2d at 767-69. Gordon represented the effort of this tribunal to be helpful to the District Court in its exercise of that discretion. The nature of the prior crime was one factor identified in both the Luck and Gordon opinions as relevant to the impeachment issue. When Judge (now Chief Justice) Burger, writing in Gordon, characterized stealing as “conduct which reflects adversely on a man’s honesty and integrity,” he was not holding that all prior convictions for theft and related crimes were automatically admissible for impeachment purposes. He said merely that such offenses had some bearing on an individual’s credibility, a bearing which the trial court should consider in exercising its discretion. By contrast, the Gordon opinion noted, acts of violence “generally have little or no" }, { "docid": "8056727", "title": "", "text": "invoked). Carter v. United States, 126 U.S.App.D.C. 370, 379 F.2d 147 (1967) (Tried before Luck, and record as a whole does not justify reversal). Lewis v. United States, 127 U.S.App.D.C. 115, 381 F.2d 894 (1967) {Luck issue not raised at trial, but the court commented that “[I]n the fair administration of justice some obligation is imposed by Luck upon the trial court and the prosecution, and the time may come when we shall not feel bound to ignore its principles merely because the defense does so.”). Gordon v. United States, 127 U.S.App.D.C. 343, 383 F.2d 936 (1967), cert. denied, 390 U.S. 1029, 88 S.Ct. 1421, 20 L.Ed.2d 287 (1968). (Luck issue not properly raised below; adopted more stringent standards for convictions for similar conduct; recommended having accused take stand out of presence of jury before determining Luck issue). Brooke v. United States, 128 U.S.App.D.C. 19, 385 F.2d 279 (1967) (No abuse of Luck discretion; defendant would have told same story as did a defense witness). Laughlin v. United States, 128 U.S.App.D.C. 27, 385 F.2d 287 (1967) (No abuse of Luck discretion). Payne v. United States, 129 U.S.App.D.C. 215, 392 F.2d 820 (1968) (Result may well have been different if tried after Gordon). Williams v. United States, 129 U.S.App.D.C. 332, 394 F.2d 957 (1968), cert. denied, 393 U.S. 984, 89 S.Ct. 457, 21 L.Ed.2d 445 (U.S. Dec. 9,1968) (No abuse of Luck discretion, but instructed trial court to set forth considerations more fully on the record; result might well have been different if tried after Gordon; concurring opinion indicates Luck issue better determined before defendant testifies). Evans v. United States, 130 U.S.App.D.C. 114, 397 F.2d 675 (1968) (No abuse of Luck discretion since defendant did not show a “special need for the jury to hear his version of the events”; treatment of Luck issue could well have been more comprehensive, and “must not be, as here, partly off the record as by informal conference in Chambers”; Bazelon, J., dissenting on ground of abuse of Luck discretion). Jones v. United States, 131 U.S.App.D.C. 212, 404 F.2d 212 (Decided Oct. 17, 1968) (No" }, { "docid": "22154206", "title": "", "text": "testified, but the earliest she saw appellant was about 11:30 p. m., and she was not positive that it was on the date in question. . 121 U.S.App.D.C. 151, 348 F.2d 763 (1965). . See the eases collected in the appendix to Weaver v. United States, 133 U.S.App.D.C. 66, 408 F.2d 1269 (Jan. 22, 1969). . Brooke v. United States, 128 U.S.App.D.C. 19, 25, 385 F.2d 279, 285 (1967). . Hood v. United States, 125 U.S.App.D.C. 16, 18, 365 F.2d 949, 951 (1966). . Weaver v. United States, supra, note 26, 133 U.S.App.D.C. at 69, 408 F.2d at 1272. . Luck v. United States, supra, note 25, 121 U.S.App.D.C. at 156-157, 348 F.2d at 768-769; Gordon v. United States, 127 U.S.App.D.C. 343, 346, 383 F.2d 936, 939 (1967), cert. denied 390 U.S. 1029, 88 S.Ct. 1421, 20 L.Ed.2d 287 (1968); Brooke v. United States, supra note 27, 128 U.S.App.D.C. at 25, 385 F.2d at 285. . See the cases cited supra note 30. . Luck v. United States, supra note 25, 121 U.S.App.D.C. at 157, 348 F.2d at 769. See also Gordon v. United States, supra note 30, 127 U.S.App.D.C. at 346, 383 F.2d at 939; Brooke v. United States, supra note 27, 128 U.S.App.D.C. at 25, 385 F.2d at 285. . Supra note 30. . We have been lenient toward pre-Gordon rulings. See Williams v. United States, 129 U.S.App.D.C. 332, 394 F.2d 957, 961-962 cert. denied 390 U.S. 971, 88 S.Ct. 1056, 19 L.Ed.2d 1184 (1968); Payne v. United States, 129 U.S.App.D.C. 215, 392 F.2d 820, 821 (1968). . 127 U.S.App.D.C. at 347, 383 F.2d at 940. . Id. at 347, 383 F.2d at 940. . Id. at 347, 383 F.2d at 940. . As we have observed, supra note 6, appellant urges that, in view of his showing on alibi, the evidence was legally insufficient to support the conviction. One of the alibi witnesses was appellant’s girl friend, the other apparently a friend, and their association of the movie episode with the offense date was not airtight. Appellant’s third witness did not see him until long after the" }, { "docid": "7134636", "title": "", "text": "entitled to present evidence fairly. I realize that if this record is brought out it might hurt the defendant, but this is a question of fact for the jury to decide. I don’t think you have made a proper showing in this case. I am going to deny your request. . 121 U.S.App.D.C. at 157, 348 F.2d at 769. See Gordon v. United States, 127 U.S.App.D.C. 343, 383 F.2d 936, 939-940 (1967). . In Broten, we were chiefly concerned with the trial judge’s reliance on an “abstract belief” that defendants with prior convictions have a motive for perjury, in the effect prior convictions may have on the sentence for a subsequent conviction. We noted that not only does this idea misconceive the theory of impeachment by prior convictions, but also “should such an abstraction be permitted to prevail Luck would be rendered meaningless.” 125 U.S.App.D.C. at 222, 370 F.2d at 244. . “The Luck ojiinion contemplated an on-the-record consideration by the trial judge whose action would be reviewable only for abuse of discretion, and that once the exercise of discretion appeared, the trial court’s action be ‘accorded a respect appropriately reflective of the inescapable remoteness of appellate review.’ ” Gordon v. United States, supra note 12, 127 U.S.App.D.C. at 346, 383 F.2d at 939. . Had this case been tried after our decision in Gordon v. United States, supra note 12, the trial judge no doubt would have given consideration to the factors set forth therein, and might well have reached a different result, particularly as to the 1960 robbery conviction. See id. at 347, 383 F.2d at 940. Nevertheless, on the present record we find no reversible error. See Payne v. United States, 129 U.S.App.D.C. -, 392 F.2d 820 (Mar. 5, 1968). . Compare Brown v. United States, supra; see Walker v. United States, 124 U.S.App.D.C. 194, 363 F.2d 681, 682 (1966). . The theory of Luck was that the trial judge has discretion to bar impeachment in situations where the “cause of truth would be helped more by letting the jury hear the defendant’s story than by the" }, { "docid": "5567297", "title": "", "text": "Cir. 1967) (collateral evidence of wrongdoing introduced to show intent); Sutton v. United States, 391 F.2d 592 (5th Cir. 1968) (evidence of similar crimes introduced to show intent) . An abuse of discretion unduly prejudicing the defendant may be reversed. Belvin v. United States, 273 F.2d 583 (5th Cir. 1960) (trial judge abused his discretion in allowing evidence on rebuttal). . In United States v. Palumbo, 401 F.2d 270 (2d Cir. 1968) the government contended that the trial judge had no discretion to exclude the prior convictions. The Second Circuit, after carefully considering the matter, held that the trial court had discretion to balance probative value against prejudice, that he did exercise his discretion, and that he did not abuse it. . The trial court expressly relied on Beaudine v. United States, 368 F.2d 417 (5th Cir. 1966). Because of his express reliance it seems likely to me that he considered he had no discretion. In any event, Beaudine concerned attacking credibility of a government witness by evidence of prior convictions. In that case there was no problem of prejudice to the defendant. . In Gordon the Court recognized the deference due the trial judge’s exercise of discretion, 383 F.2d at 939. In other cases that Court has reversed for failure to exercise discretion or abuse of discretion. Brown v. United States, 125 U.S.App.D.C. 220, 370 F.2d 242 (1966); Barber v. United States, 129 U.S.App. D.C. 193, 392 F.2d 517 (1968); Jones v. United States, 131 U.S.App.D.C. 88, 402 F.2d 639 (1968); Pinkney v. United States, 124 U.S.App.D.C. 209, 363 F.2d 696 (1966). . In cross-examination Bendelow was asked whether he had been convicted of a felony. After objection the jury was excused. It then was developed that appellant had two Dyer Act convictions and the bad check charge. The following colloquy then occurred: “MR. TULLIS [Ass’t U.S. Attny]: Your Honor, I don’t want to go any further than to show that he has been convicted of a Dyer Act, which is what he, of course, is being charged with here. THE COURT: Well, do you want to ask him" }, { "docid": "8056724", "title": "", "text": "no benefit could accrue to appellant. No finding of constitutional error in the respect in question could, on this record, overcome our belief that such error would, beyond any reasonable doubt, be harmless. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). Affirmed. APPENDIX Twenty-four cases appear to have reached this court since Luck in which the issue of impeachment by prior conviction has been raised on appeal and discussed in an opinion. Since Luck there was a period in which the court was affirming in many cases by orders without opinion; these are not reflected in this summary. Four cases have been reversed: Pinkney v. United States, 124 U.S.App.D.C. 209, 363 F.2d 696 (1966), held that the trial judge abused his discretion by allowing the prosecutor to impeach a second degree murder defendant with prior convictions for the petty offenses of vagrancy, disorderly conduct and soliciting prostitution. Brown v. United States, 125 U.S.App.D.C. 220, 370 F.2d 242 (1966) reversed in part because the trial judge “did not base his ruling on * * * individualized considerations” and thus could not be said even to have exercised his discretion. Barber v. United States, 129 U.S.App.D.C. 193, 392 F.2d 517 (1968), reversed because the trial judge had “denied defendant’s motion to exclude his prior record without, so far as the record shows, invoking the Luck criteria.” Jones v. United States, 131 U.S.App.D.C. 88, 402 F.2d 639 (opinion rendered Sept. 3, 1968), reversed because the trial court allowed the defendant to be impeached by a prior conviction for assault, a crime characterized as not going to veracity. Thus, of the four reversals, two (Brown and Barber) were cases where it was patent from the transcript that the trial court had in reality declined to exercise its discretion at all, and the other two were situations where the nature of the prior convictions impaired their relevance for impeachment purposes. Of the affirmances, in eight the court never went to the merits of the Luck contention because the defendant had not properly invoked the trial judge’s discretion; in six cases" }, { "docid": "9335718", "title": "", "text": "F.2d 949, 950-951 (1966) ; Evans v. United States, 130 U.S.App.D.C. 114, 117-119, 397 F.2d 675, 678-680 (1968) ; Smith v. United States, 132 U.S.App.D.C. 131, 132, 406 F.2d 667, 668 (1968). See also Gordon v. United States, supra note 12, 127 U.S.App.D.C. at 345, 383 F.2d at 938; Jones v. United States, 131 U.S. App.D.C. 212 at 216, 404 F.2d 212 at 216 (Oct. 17, 1968) (concurring opinion). . See Hood v. United States, supra note 23, 125 U.S.App.D.C. at 18, 365 F.2d at 951; Payne v. United States, 129 U.S. App.D.C. 215, 216, 392 F.2d 820, 821 (1968) ; Evans v. United States, supra note 23, 397 F.2d at 678-679. . It is not, however, clear here that “the District Judge afforded defense counsel abundant opportunity to present his contentions concerning the Luck issue.” Evans v. United States, supra note 23, 397 F.2d at 679. Rather, following appellant’s bare Luck request, the judge promptly made his ruling without any sort of inquiry beyond the criminal record and immediately thereafter called upon defense counsel for his opening statement. See note 14, supra. . Lewis v. United States, supra note 22; Gordon v. United States, supra note 12, 127 U.S.App.D.C. at 346-347, 383 F.2d at 939-940; Suggs v. United States, supra note 21, 129 U.S.App.D.C. at 138, 391 F.2d at 976; Jones v. United States, 131 U.S.App.D.C. 88, 92, 402 F.2d 639, 643 (1968). See also Stevens v. United States, supra note 22, 125 U.S.App.D.C. at 240, 370 F.2d at 486 (dissenting opinion) ; Williams v. United States, 129 U. S.App.D.C. 332, 339, 394 F.2d 957, 964, cert. denied 393 U.S. 984, 89 S.Ct. 457, 21 L.Ed.2d 445 (1968) (concurring opinion) ; Evans v. United States, supra note 23, 397 F.2d at 681, 683 (dissenting opinion). . Compare Jones v. United States, supra note 26, 402 F.2d at 643. . Id. . The two employees of the pawnshop identified appellant as the party who brought the stolen saxophone in for the pawn, although one may not initially have been fully certain. The Government’s handwriting expert was firm in his opinion" }, { "docid": "22154207", "title": "", "text": "348 F.2d at 769. See also Gordon v. United States, supra note 30, 127 U.S.App.D.C. at 346, 383 F.2d at 939; Brooke v. United States, supra note 27, 128 U.S.App.D.C. at 25, 385 F.2d at 285. . Supra note 30. . We have been lenient toward pre-Gordon rulings. See Williams v. United States, 129 U.S.App.D.C. 332, 394 F.2d 957, 961-962 cert. denied 390 U.S. 971, 88 S.Ct. 1056, 19 L.Ed.2d 1184 (1968); Payne v. United States, 129 U.S.App.D.C. 215, 392 F.2d 820, 821 (1968). . 127 U.S.App.D.C. at 347, 383 F.2d at 940. . Id. at 347, 383 F.2d at 940. . Id. at 347, 383 F.2d at 940. . As we have observed, supra note 6, appellant urges that, in view of his showing on alibi, the evidence was legally insufficient to support the conviction. One of the alibi witnesses was appellant’s girl friend, the other apparently a friend, and their association of the movie episode with the offense date was not airtight. Appellant’s third witness did not see him until long after the offenses had been completed, and appellant’s own aibi testimony was impeached. We cannot say that there was “no evidence upon which a reasonable mind might fairly conclude guilt beyond reasonable doubt.” Curley v. United States, 81 U.S.App.D.C. 389, 392-393, 160 F.2d 229, 232-233, cert. denied 331 U.S. 837, 67 S.Ct. 1511, 91 L.Ed. 1850 (1947). . Gordon v. United States, supra note 30, 127 U.S.App.D.C. at 348, 383 F.2d at 941. . That was the natural assumption, particularly since, when the Luoh request was presented, it was unaccompanied by advice to the trial court as to the nature of appellant’s forthcoming testimony. Compare the suggestion in Gordon v. United States, supra note 30, 127 U.S.App.D.C. at 346, 383 F.2d at 939, and Weaver v. United States, supra note 26, 133 U.S.App.D.C. at 68 n. 1, 408 F.2d at 1271, relative to a nonjury hearing of the accused’s testimony for evaluation for Luck purposes prior to his taking the witness stand. . Brooke v. United States, supra note 25, 128 U.S.App.D.C. at 25, 385 F.2d at" }, { "docid": "2192348", "title": "", "text": "statute. While this objection perhaps did not fully articulate the Luck issue, the subject was fully explored and the District Judge denied the motion. Assuming that Luck was properly raised in view of the peculiar facts of this case, which was, as we noted, a “credibility” contest based in large part on the conflicting testimony of the victim and the accused, both having prior records, we And no abuse of discretion. . 121 U.S.App.D.C. at 157, 348 F.2d at 769. . See Brooke v. United States, 128 U.S. App.D.C. -, 385 F.2d 279 (decided April 19, 1967). . Luck, supra at 156, 348 F.2d at 768 (emphasis in original). Since LucTc we have reiterated this view: [Luck] establishes only that Congress, in legislating to the effect that prior convictions may be used to impeach, left some room for the play of judicial discretion oyer the unfolding circumstances of the immediate trial. Hood, supra at 18, 365 F.2d at 951. . Luck, supra at 156, 348 F.2d at 768. . Id. at 156, 348 F.2d at 768. See Brown v. United States, 125 U.S.App.D.C. 220, 370 F.2d 242 (1966). . It must be remembered that the prior conviction involved in Luck was a guilty plea. The relevance of prior convictions to credibility may well be different as between a case where the conviction of the accused was by admission of guilt by a plea and on the other hand a case where the accused affirmatively contested the charge and testified, for example, that he was not present and did not commit the acts charged. In the latter situation the accused affirmatively puts his own veracity in issue when he testifies so that the jury’s verdict amounted to rejection of his testimony; the verdict is in a sense a de facto finding that the accused did not tell the truth when sworn to do so. Exploration of this area risks a diversion which may well be time consuming; hence use of this inquiry should be limited. . “The reason for exposing the defendant’s prior record is to attack his character, to call" }, { "docid": "5348486", "title": "", "text": "be called, and he twice voiced his wish to talk to them before deciding what to do. The judge offered counsel a recess for that purpose, but nonetheless made liis ruling immediately. Fairly read; the record gives the impression that counsel did not anticipate that the judge would rule at that point; surely the need to do so had not then arrived. Compare United States v. Douglas, 155 F.2d 894, 896 (7th Cir. 1946). And after the judge unequivocally ruled — without apparent interest in additional information — counsel could not realistically be expected to volunteer it. See Evalt v. United States, 359 F.2d 534, 545 (9th Cir. 1966). Indeed, we are unable to distinguish the situation before us, factually or legally, from that in United States v. Wooden, supra note 10, 137 U.S.App.D.C. at 2, 420 F.2d at 252. Cases like Walker v. United States, 124 U.S.App.D.C. 194, 363 F.2d 681 (1966), upon which the Government relies, do not support its position here. In the Walker line of cases, we held that no claim of error in allowing an accused’s impeachment by prior conviction could be asserted where the accused never invoked the exclusionary discretion conferred upon the trial judge by Luck v. United States, 121 U.S.App.D.C. 151, 348 F.2d 763 (1965). That was because “[c]onvictions for crime retain[ed] statutorily some degree of relevance to trustworthiness which Luck [did] not automatically dispel,” Brooke v. United States, 128 U.S.App.D.C. 19, 25, 385 F.2d 279, 285 (1967) (footnote omitted), see D.C.Code § 14-305 (1967), and “Luck . . . contemplated that it was for the defendant to present to the trial court sufficient reasons for withholding past convictions from the jury in the face of a statute which [made] such convictions admissible.” Gordon v. United States, 127 U.S.App.D.C. 343, 346, 383 F.2d 936, 939 (1967). See also Evans v. United States, 130 U.S.App.D.C. 114, 117, 397 F.2d 675, 678 (1968). Appellant bore no such affirmative burden in this case. The Government sought impeachment by a technique which was available only if brought within a narrow exception to the general judicial rule," }, { "docid": "9335716", "title": "", "text": "making which he had earlier reserved. Defense counsel then informed the jury that “it is our contention that the defendant did not pawn the saxophone nor did he enter the house and take it out.” The court then took a recess, and when it reconvened defense counsel stated that he rested. It seems obvious that during the recess appellant made the decision that he would not undertake to testify under the conditions the judge’s Luck ruling made possible. . Gordon v. United States, supra note 12. . 127 U.S.App.D.O. at 347, 383 F.2d at 940. . Id. . Id. See also Luck v. United States, supra note 8, 121 U.S.App.D.C. at 157, 348 F.2d at 769. . 127 U.S.App.D.O. at 347, 383 F.2d at 940. . Id. See also Luck v. United States, supra note 8, 121 U.S.App.D.C. at 156-157, 348 F.2d at 768-769. . Smith v. United States, 123 U.S.App. D.C. 259, 261, 359 F.2d 243, 245 (1966). See also Gordon v. United States, supra note 12, 127 U.S.App.D.C. at 348 n. 11, 383 F.2d at 941 n. 11; Suggs v. United States, 129 U.S.App.D.C. 133, 138-139, 391 F.2d 971, 976-977 (1968). Compare Barber v. United States, 129 U.S.App. D.C. 193, 195, 392 F.2d 517, 519 (1968). . Smith v. United States, supra note 21, 123 U.S.App.D.C. at 261, 359 F.2d at 245; Walker v. United States, 124 U.S. App.D.C. 194, 195, 363 F.2d 681, 682 (1966) ; Covington v. United States, 125 U.S.App.D.C. 224, 225, 370 F.2d 246, 247 (1966) ; Stevens v. United States, 125 U.S.App.D.C. 239, 370 F.2d 485 (1966) ; Harley v. United States, 126 U.S.App.D.C. 287, 288, 377 F.2d 172, 173 (1967) ; Lewis v. United States, 127 U.S. App.D.C. 115, 381 F.2d 894 (1967) ; Suggs v. United States, supra note 21, 129 U.S.App.D.C. at 138-139, 391 F.2d at 976-977. See also Trimble v. United States, 125 U.S.App.D.C. 173, 174-175, 369 F.2d 950, 951-952 (1966). . Although there was a Luck request at trial, we held that the judge’s discretion was insufficiently invoked in Hood v. United States, 125 U.S.App.D.C. 16, 17-18, 365" }, { "docid": "5348487", "title": "", "text": "of error in allowing an accused’s impeachment by prior conviction could be asserted where the accused never invoked the exclusionary discretion conferred upon the trial judge by Luck v. United States, 121 U.S.App.D.C. 151, 348 F.2d 763 (1965). That was because “[c]onvictions for crime retain[ed] statutorily some degree of relevance to trustworthiness which Luck [did] not automatically dispel,” Brooke v. United States, 128 U.S.App.D.C. 19, 25, 385 F.2d 279, 285 (1967) (footnote omitted), see D.C.Code § 14-305 (1967), and “Luck . . . contemplated that it was for the defendant to present to the trial court sufficient reasons for withholding past convictions from the jury in the face of a statute which [made] such convictions admissible.” Gordon v. United States, 127 U.S.App.D.C. 343, 346, 383 F.2d 936, 939 (1967). See also Evans v. United States, 130 U.S.App.D.C. 114, 117, 397 F.2d 675, 678 (1968). Appellant bore no such affirmative burden in this case. The Government sought impeachment by a technique which was available only if brought within a narrow exception to the general judicial rule, see text supra at notes 62-72, and the judge authorized it without having information vital to the discretionary determination as to whether an exception was properly to be allowed. Compare Brown v. United States, 125 U.S.App.D.C. 220, 221, 222, 370 F.2d 242, 243, 244 (1966). . See text supra at note 38. . See note 80, supra. . Supra note 13. . 355 U.S. at 480, 69 S.Ct. 213. . The driver was not called as a witness at trial. . Appellant explained that a “hustle” involves illegal activity and “could mean getting money by robbery or housebreaking or any other way.” . Rooks, however, was unable to say just what appellant’s position in the rear of the ear was when the officers arrived. That was because the clothing hanging in the rear of the car blocked his view. . Both of the police officers were still wearing rain gear at the time they gave chase to the robbers. . Kotteakos v. United States, 328 U.S. 750, 764, 66 S.Ct. 1239, 1247, 90 L.Ed. 1557" }, { "docid": "8056728", "title": "", "text": "(1967) (No abuse of Luck discretion). Payne v. United States, 129 U.S.App.D.C. 215, 392 F.2d 820 (1968) (Result may well have been different if tried after Gordon). Williams v. United States, 129 U.S.App.D.C. 332, 394 F.2d 957 (1968), cert. denied, 393 U.S. 984, 89 S.Ct. 457, 21 L.Ed.2d 445 (U.S. Dec. 9,1968) (No abuse of Luck discretion, but instructed trial court to set forth considerations more fully on the record; result might well have been different if tried after Gordon; concurring opinion indicates Luck issue better determined before defendant testifies). Evans v. United States, 130 U.S.App.D.C. 114, 397 F.2d 675 (1968) (No abuse of Luck discretion since defendant did not show a “special need for the jury to hear his version of the events”; treatment of Luck issue could well have been more comprehensive, and “must not be, as here, partly off the record as by informal conference in Chambers”; Bazelon, J., dissenting on ground of abuse of Luck discretion). Jones v. United States, 131 U.S.App.D.C. 212, 404 F.2d 212 (Decided Oct. 17, 1968) (No abuse; Wright, J., concurring because issue of similar nature of crime not pointed out to trial judge). Smith v. United States, 132 U.S.App.D.C. 131, 406 F.2d 667 (Decided Dec. 13, 1968) (Although some question whether trial counsel “meaningfully invoked” the judge’s discretion, a review of the record reveals “the trial judge gave due consideration to the policy underlying Luck.”). The following four decisions are unprinted per curiam opinions which found no abuse of discretion: Byrd v. United States, No. 21,534 (Decided July 31, 1968) (Impeachment by petit larceny convictions allowed). Henderson v. United States, No. 21,602 (Decided July 31, 1968) (After excluding an older housebreaking conviction, trial judge did not abuse discretion by allowing impeachment by a more recent housebreaking conviction). Robinson v. United States, No. 21,774 (Decided Oct. 8, 1968) (After “careful inquiry” trial judge allowed impeachment by a petit larceny conviction). Robinson v. United States, No. 21,947 (Decided Nov. 7, 1968) (No abuse of discretion found, although critical of trial court for being “perhaps unduly preoccupied with its own views of appellant’s credibility" }, { "docid": "2192347", "title": "", "text": ". See Fed.R.Crim.P. 83; Smith v. Pollin, 90 U.S.App.D.C. 178, 194 F.2d 349 (1952). . Such a discovery would not normally constitute newly discovered evidence, but the circumstances in this case were unusual. Newly' discovered evidence which is only of impeaching value does not ordinarily warrant a new trial, Mesarosh v. United States, 352 U.S. 1, 9, 77 S.Ct. 1, 1 L.Ed.2d 1 (1956); Thompson v. United States, 88 U.S.App.D.C. 235, 188 F.2d 652 (1951), but the District Judge granted a new trial to ensure that the jury had before it the same type of available impeachment evidence about the complaining witness as it had about Appellant so that it could make a fair evaluation of credibility. United States v. Gordon, 246 F.Supp. 522 (D.D.C.1965). . Although no objection was raised as to the three impeaching crimes of fugitivity, robbery, and carrying a dangerous weapon, trial counsel moved to exclude the offenses of taking property without right and malicious destruction of property on the ground that they were not “crimes” within the meaning of the statute. While this objection perhaps did not fully articulate the Luck issue, the subject was fully explored and the District Judge denied the motion. Assuming that Luck was properly raised in view of the peculiar facts of this case, which was, as we noted, a “credibility” contest based in large part on the conflicting testimony of the victim and the accused, both having prior records, we And no abuse of discretion. . 121 U.S.App.D.C. at 157, 348 F.2d at 769. . See Brooke v. United States, 128 U.S. App.D.C. -, 385 F.2d 279 (decided April 19, 1967). . Luck, supra at 156, 348 F.2d at 768 (emphasis in original). Since LucTc we have reiterated this view: [Luck] establishes only that Congress, in legislating to the effect that prior convictions may be used to impeach, left some room for the play of judicial discretion oyer the unfolding circumstances of the immediate trial. Hood, supra at 18, 365 F.2d at 951. . Luck, supra at 156, 348 F.2d at 768. . Id. at 156, 348 F.2d at" }, { "docid": "8056729", "title": "", "text": "abuse; Wright, J., concurring because issue of similar nature of crime not pointed out to trial judge). Smith v. United States, 132 U.S.App.D.C. 131, 406 F.2d 667 (Decided Dec. 13, 1968) (Although some question whether trial counsel “meaningfully invoked” the judge’s discretion, a review of the record reveals “the trial judge gave due consideration to the policy underlying Luck.”). The following four decisions are unprinted per curiam opinions which found no abuse of discretion: Byrd v. United States, No. 21,534 (Decided July 31, 1968) (Impeachment by petit larceny convictions allowed). Henderson v. United States, No. 21,602 (Decided July 31, 1968) (After excluding an older housebreaking conviction, trial judge did not abuse discretion by allowing impeachment by a more recent housebreaking conviction). Robinson v. United States, No. 21,774 (Decided Oct. 8, 1968) (After “careful inquiry” trial judge allowed impeachment by a petit larceny conviction). Robinson v. United States, No. 21,947 (Decided Nov. 7, 1968) (No abuse of discretion found, although critical of trial court for being “perhaps unduly preoccupied with its own views of appellant’s credibility as distinct from those to be formed by the jury”). Although not included in the count above, see also Suggs v. United States, 129 U.S.App.D.C. 133, 391 F.2d 971 (1968) (Where as a practical matter defendant must take stand to explain possession of recently stolen goods if he is to avoid conviction, the failure of either trial counsel or the judge below to examine the Luck issue raised a non-frivolous issue for appeal) and Suggs v. United States, 132 U.S.App.D.C. -, 407 F.2d 1272 (decided Jan. 8, 1969) (where defendant at trial “made no request for exclusion” and in fact “opened [this] line of inquiry * * * to bolster his claim of exculpation because of intoxication,” the trial judge was under no duty sua sponte to exclude prior convictions). . The accused himself is, of course, the best source of information as to what he will testify to on the witenss stand. We have suggested that, by way of better informing the court’s discretion prior to ruling on a Luck request, there is great" }, { "docid": "8056725", "title": "", "text": "on * * * individualized considerations” and thus could not be said even to have exercised his discretion. Barber v. United States, 129 U.S.App.D.C. 193, 392 F.2d 517 (1968), reversed because the trial judge had “denied defendant’s motion to exclude his prior record without, so far as the record shows, invoking the Luck criteria.” Jones v. United States, 131 U.S.App.D.C. 88, 402 F.2d 639 (opinion rendered Sept. 3, 1968), reversed because the trial court allowed the defendant to be impeached by a prior conviction for assault, a crime characterized as not going to veracity. Thus, of the four reversals, two (Brown and Barber) were cases where it was patent from the transcript that the trial court had in reality declined to exercise its discretion at all, and the other two were situations where the nature of the prior convictions impaired their relevance for impeachment purposes. Of the affirmances, in eight the court never went to the merits of the Luck contention because the defendant had not properly invoked the trial judge’s discretion; in six cases the court affirmed even though it was somewhat critical of the manner in which the trial judge handled the issue; and twice the court has suggested that the case might have been reversed if the trial had occurred after Gordon. A summary of these affirmances follows: Smith v. United States, 123 U.S.App.D.C. 259, 359 F.2d 243 (1966) (Trial prior to Luck and trial court’s discretion not invoked). Walker v. United States, 124 U.S.App.D.C. 194, 363 F.2d 681 (1966) (Luck issue not raised at trial). Hood v. United States, 125 U.S.App.D.C. 16, 365 F.2d 949 (1966) (Trial judge’s discretion not properly invoked). Trimble v. United States, 125 U.S.App.D.C. 173, 369 F.2d 950 (1966) (Luck objection not made by defendant, and in any event, trial judge on his own properly exercised Luck discretion). Stevens v. United States, 125 U.S.App.D.C. 239, 370 F.2d 485 (1966) (Affirmed per curiam; Fahy, J., dissenting on grounds of Luck even though not raised below). Harley v. United States, 126 U.S.App.D.C. 287, 377 F.2d 172 (1967) (Trial judge’s discretion under Luck not properly" }, { "docid": "9335717", "title": "", "text": "F.2d at 941 n. 11; Suggs v. United States, 129 U.S.App.D.C. 133, 138-139, 391 F.2d 971, 976-977 (1968). Compare Barber v. United States, 129 U.S.App. D.C. 193, 195, 392 F.2d 517, 519 (1968). . Smith v. United States, supra note 21, 123 U.S.App.D.C. at 261, 359 F.2d at 245; Walker v. United States, 124 U.S. App.D.C. 194, 195, 363 F.2d 681, 682 (1966) ; Covington v. United States, 125 U.S.App.D.C. 224, 225, 370 F.2d 246, 247 (1966) ; Stevens v. United States, 125 U.S.App.D.C. 239, 370 F.2d 485 (1966) ; Harley v. United States, 126 U.S.App.D.C. 287, 288, 377 F.2d 172, 173 (1967) ; Lewis v. United States, 127 U.S. App.D.C. 115, 381 F.2d 894 (1967) ; Suggs v. United States, supra note 21, 129 U.S.App.D.C. at 138-139, 391 F.2d at 976-977. See also Trimble v. United States, 125 U.S.App.D.C. 173, 174-175, 369 F.2d 950, 951-952 (1966). . Although there was a Luck request at trial, we held that the judge’s discretion was insufficiently invoked in Hood v. United States, 125 U.S.App.D.C. 16, 17-18, 365 F.2d 949, 950-951 (1966) ; Evans v. United States, 130 U.S.App.D.C. 114, 117-119, 397 F.2d 675, 678-680 (1968) ; Smith v. United States, 132 U.S.App.D.C. 131, 132, 406 F.2d 667, 668 (1968). See also Gordon v. United States, supra note 12, 127 U.S.App.D.C. at 345, 383 F.2d at 938; Jones v. United States, 131 U.S. App.D.C. 212 at 216, 404 F.2d 212 at 216 (Oct. 17, 1968) (concurring opinion). . See Hood v. United States, supra note 23, 125 U.S.App.D.C. at 18, 365 F.2d at 951; Payne v. United States, 129 U.S. App.D.C. 215, 216, 392 F.2d 820, 821 (1968) ; Evans v. United States, supra note 23, 397 F.2d at 678-679. . It is not, however, clear here that “the District Judge afforded defense counsel abundant opportunity to present his contentions concerning the Luck issue.” Evans v. United States, supra note 23, 397 F.2d at 679. Rather, following appellant’s bare Luck request, the judge promptly made his ruling without any sort of inquiry beyond the criminal record and immediately thereafter called upon defense counsel" } ]

[ { "docid": "22561294", "title": "", "text": "Feb. 8, 1980) (self-supporting minor seeking abortion is emancipated and mature); Goldstein, Medical Care for the Child at Risk: On State Supervention of Parental Autonomy, 86 Yale L. J. 645, 663 (1977) (recommending objective criteria to avoid case-by-case determination of emanicipation). The “mature minor” doctrine permits a child to consent to medical treatment if he is capable of appreciating its nature and consequences. E. g., L. R. v. Hansen, supra (this mature minor “is capable of understanding her condition and making an informed decision which she has done after carefully considering the alternatives available to her and consulting the persons with whom she felt she should consult” prior to abortion decision); Ark. Stat. Ann. §82-363 (g) (1976). See Lacey v. Laird, 166 Ohio St. 12, 139 N. E. 2d 25 (1956) (physician not liable for battery after acting with minor’s consent); Smith v. Seibly, 72 Wash. 2d 16, 21-22, 431 P. 2d 719, 723 (1967); Younts v. St. Francis Hosp. & School of Nursing, Inc., 205 Kan. 292, 300-301, 469 P. 2d 330, 337 (1970). Four Members of this Court embraced the “mature minor” concept in striking down a statute requiring parental notice and consent to a minor’s abortion, regardless of her own maturity. Bellotti II, 443 U. S., at 643-644, and nn. 22 and 23. In Bellotti II, Justice Powell’s opinion for four Members of this Court suggested that a statute could withstand constitutional attack if it permitted case-by-case administrative or judicial determination of a pregnant minor’s capacity to make an abortion decision with her physician and independent of her parents. Ibid. Because this view was expressed in a case not involving such a statute, and because it would expose the minor to the arduous and public rigors of administrative or judicial process, four other Members of this Court rejected it as advisory and at odds with the privacy interest at stake. Id., at 654^656, and n. 4 (SteveNS, J., joined by BreNNAN, Marshall, and Blackmun, JJ.). Nonetheless, even under Justice Powell’s reasoning in Bellotti II, the instant statute is unconstitutional. Not only does it preclude case-by-case consideration of" } ]

[ { "docid": "8538689", "title": "", "text": "its relationships as it sees fit. For example, the statute gives one parent the power to veto the abortion even if the other parent consents to the procedure. This, they argue, has the effect of changing power relations within the family. The judicial bypass does not save the statute, in the appellees’ view, because it involves too much judicial intrusiveness into a private family decision. A The Supreme Court has upheld less intrusive parental consultation statutes in the past. Parental involvement statutes may be divided into four groups, in ascending order of the burden they impose on the minor’s exercise of her limited right to an abortion: one-parent notification statutes, two-parent notification statutes, one-parent consent statutes, and two-parent consent statutes. The Court upheld a one-parent notification statute in H.L. v. Matheson, 450 U.S. 398, 101 S.Ct. 1164, 67 L.Ed.2d 388 (1981). It upheld a two-parent notification statute that includes a judicial bypass provision, in Hodgson v. Minnesota, 497 U.S. 417, 110 S.Ct. 2926, 111 L.Ed.2d 344 (1990) (Kennedy plurality opinion). Finally, it upheld a one-parent consent statute, with a judicial bypass, in Planned Parenthood Ass’n of Kansas City v. Ashcroft, 462 U.S. 476, 103 S.Ct. 2517, 76 L.Ed.2d 733 (1983). The remaining question is whether a two-parent consent statute impermissibly crosses the line so as to impose an undue burden on the minor’s right to an abortion. Casey, — U.S. at -, 112 S.Ct. at 2819 (plurality) (formulating “undue burden” standard for abortion regulations). As noted above, the Court scrutinizes consent statutes more closely than it does notification statutes, and two-parent laws more closely than one-parent laws. Thus, a two-parent consent statute arguably raises more serious questions than the other parental involvement statutes. The appellees contend that the constitutionality of a two-parent consent/judicial bypass law is an open question. Mississippi argues that the matter has been settled in favor of constitutionality. Mississippi appears to have the better of the argument. In Bellotti v. Baird, 443 U.S. 622, 637, 99 S.Ct. 3035, 3045, 61 L.Ed.2d 797 (1979), a fractured Court struck down a state law that required minors to obtain the" }, { "docid": "16968219", "title": "", "text": "Montana’s statute here, allowed a minor to bypass the notification requirement if a court deter mined that the notification would not be in the minor’s best interests. The court’s conclusion was based on its analysis of our decisions in Bellotti v. Baird, supra, and Ohio v. Akron Center for Reproductive Health, 497 U. S. 502 (1990). In Bellotti, we struck down a statute requiring a minor to obtain the consent of both parents before having an abortion, subject to a judicial bypass provision, because the judicial bypass provision was too restrictive, unconstitutionally burdening a minor’s right to an abortion. 443 U. S., at 647 (plurality opinion); id., at 655-656 (Stevens, J., concurring in judgment). The Court’s principal opinion explained that a constitutional parental consent statute must contain a bypass provision that meets four criteria: (i) allow the minor to bypass the consent requirement if she establishes that she is mature enough and well enough informed to make the abortion decision independently; (ii) allow the minor to bypass the consent requirement if she establishes that the abortion would be in her best interests; (iii) ensure the minor’s anonymity; and (iv) provide for expeditious bypass procedures. Id., at 643-644 (plurality opinion). See also Akron, 497 U. S., at 511-513 (restating the four requirements). In Akron, we upheld a statute requiring a minor to notify one parent before having an. abortion, subject to a judicial bypass provision. We declined to decide whether a parental notification statute must include some sort of bypass provision to be constitutional. Id., at 510. Instead, we held that this bypass provision satisfied the four Bellotti criteria required for bypass provisions in parental consent statutes, and that a fortiori it satisfied any criteria that might be required for bypass provisions in parental notification statutes. Critically for the case now before us, the judicial bypass provision we examined in Akron was substantively indistinguishable from both the Montana judicial bypass provision at issue here and the Nevada provision at issue in Glick. See 497 U. S., at 508 (summarizing Ohio Rev. Code Ann. § 2151.85 (1995)). The judicial bypass provision in" }, { "docid": "4031102", "title": "", "text": "to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.” Id. at 878, 112 S.Ct. 2791. Minor women also possess a right to obtain an abortion. With regard to minors, however, the state has additional interests that may justify regulation of the manner in which they determine to undergo the procedure. Danforth, 428 U.S. at 74, 96 S.Ct. 2831. In the interest of fostering family involvement in her decision whether to undergo an abortion, a state may require a minor to obtain a parent or guardian’s consent. Bellotti II, 443 U.S. at 643, 99 S.Ct. 3035. It may not, however, supply the parent with an “absolute ... veto,” but must instead provide some means by which a pregnant minor may bypass the consent requirement. Id. (quoting Danforth, 428 U.S. at 74, 96 S.Ct. 2831). More specifically, the Constitution requires that a minor be able to bypass a parental consent requirement when she can establish that “either: (1) she is mature enough and well-informed enough to make her abortion decision ... independently of her parents’ wishes; or (2) even if she is not able to make this decision independently, the desired abortion would be in her best interests.” Lawall I, 180 F.3d at 1027-28 (citing Bellotti II, 443 U.S. at 643, 99 S.Ct. 3035); see also Ohio v. Akron Ctr. for Reproductive Health, 497 U.S. 502, 511, 110 S.Ct. 2972, 111 L.Ed.2d 405 (1990) (Akron II ). One principle announced in Roe, which has remained constant before and after Casey, applies to adults and minors alike: Any abortion regulation must contain adequate provision for a woman to terminate her pregnancy if it poses a threat to her life or health. See Stenberg, 530 U.S. at 930, 120 S.Ct. 2597; id. at 947, 120 S.Ct. 2597 (O’Connor, J., concurring); Casey, 505 U.S. at 846, 112 S.Ct. 2791; Roe, 410 U.S. at 163-64, 93 S.Ct. 705. An adequate health exception, that is, is a per se constitutional requirement. As the Court’s approach in Stenberg makes clear, whether such an exception exists requires an analysis" }, { "docid": "13146277", "title": "", "text": "the serious concerns implicated by a decision to have an abortion. Bellotti II, 443 U.S. at 634, 99 S.Ct. at 3043. The state has no legitimate interest, however, in promoting such consultation when the woman seeking an abortion is mature. Akron, 103 S.Ct. at 2497. The state clearly has a significant interest in promoting parental consultation with a minor before her decision to have an abortion. Akron, 103 S.Ct. at 2491 n. 10; H.L. v. Matheson, 450 U.S. 398, 409-10,101 S.Ct. 1164, 1171-72, 67 L.Ed.2d 388 (1981) (quoting Bellotti II, 443 U.S. at 640-41, 99 S.Ct. at 3046-47); Pearson, 716 F.2d at 1143. On the other hand, a mature minor or an immature minor in whose best interest it is to have an abortion has a constitutional right to have an abortion without notifying her parents. Matheson, 450 U.S. at 420, 101 S.Ct. at 1177 (Powell, J., concurring); Bellotti II, 443 U.S. at 647, 99 S.Ct. at 3050. Accord Akron, 103 S.Ct. at 2497-98 (parental consent statute); Planned Parenthood, Kansas City, Mo., Inc. v. Ashcroft, 462 U.S. 476, 103 S.Ct. 2517, 2525, 76 L.Ed.2d 733 (1983) (parental consent statute). In balancing these two rights, the Supreme Court upheld a parental notification statute in Matheson because that statute promoted the state’s interest in parental consultation with a minor without unduly burdening a minor’s right to have an abortion. Matheson, 450 U.S. at 413,101 S.Ct. at 1173. Accord Ashcroft, 462 U.S. 476,103 S.Ct. 2517, 76 L.Ed.2d 733 (1983) (upholding parental consent statute). Neither the parental notification statute which the Court upheld in Matheson nor the parental consent statute which the Court upheld in Ashcroft requires a waiting period after notification or consent is effected. It is also worth noting that in Ashcroft the state did not appeal the Eighth Circuit’s holding that the Missouri statute’s forty-eight hour waiting period was unconstitutional. Ashcroft, 655 F.2d 848, 866 (8th Cir. 1981), affd in part, rev’d in part on other grounds, 462 U.S. 476, 103 S.Ct. 2517, 76 L.Ed.2d 733 (1983) (waiting period severed from statute). We have been able to find only one case" }, { "docid": "7574002", "title": "", "text": "she is not able to make this decision independently, the desired abortion would be in her best interests. See id. The proceeding in which this showing is made must assure that a resolution of the issue, and any appeals that may follow, will be completed with sufficient expedition to provide an effective opportunity for an abortion to be obtained. See id. In subsequent cases, the Court has repeatedly affirmed Bellotti II’s holding. See Lambert v. Wicklund, 520 U.S. 292, 295, 117 S.Ct. 1169, 137 L.Ed.2d 464 (1997); Akron II, 497 U.S. at 510, 110 5.Ct. 2972 (1990); Hodgson v. Minnesota, 497 U.S. 417, 461, 110 S.Ct. 2926, 111 L.Ed.2d 344 (1990) (plurality opinion); Planned Parenthood Ass’n v. Ashcroft, 462 U.S. 476, 491 n. 16, 103 S.Ct. 2517, 76 L.Ed.2d 733 (1983). The Court has never considered, however, a facial challenge to a judicial bypass provision containing only a general directive to the courts to proceed expeditiously. Instead, all previous judicial bypass provisions considered by the Court have been those in which the bypass provision either contained specific time limits or had already been narrowed by the state courts’ interpretations and application. For example, both Wicklund and Akron II involved parental notice statutes which had specific time limits: Wicklund involved a Montana statute which required the youth court to rule within 48 hours of the time that the petition was filed, see 520 U.S. at 293-94, 117 S.Ct. 1169, and Akron II concerned an Ohio statute which required the juvenile court to hold a hearing not later than the fifth business day after the complaint was filed, see 497 U.S. at 508, 110 S.Ct. 2972. Like Wicklund and Akron II, Ashcroft involved a Missouri parental consent statute with a judicial bypass provision containing specific time limits for the trial courts. The Missouri statute required the trial court to hold a hearing on the merits within five days of the filing of petition. The Ashcroft plurality did hold that the Missouri judicial bypass provision was consistent with the Bellotti II requirements. However, the Court never discussed the statute’s time limits for the" }, { "docid": "9400130", "title": "", "text": "appellees-plaintiffs have advanced a vaguely stated equal protection theory, they have not attempted to define a suspect or quasi-suspect class. . The Supreme Court has avoided such age-based distinctions in other fundamental rights cases. For example, in abortion cases, the Court has never held that the underlying right is separately defined for adults and juveniles. Instead, the court has weighed state interests against minors’ interests in light of the right at issue. See, e.g., Lambert v. Wicklund, 520 U.S. 292, 117 S.Ct. 1169, 137 L.Ed.2d 464 (1997); Hodgson v. Minnesota, 497 U.S. 417, 110 S.Ct. 2926, 111 L.Ed.2d 344 (1990); Ohio v. Akron Ctr. for Reprod. Health, 497 U.S. 502, 110 S.Ct. 2972, 111 L.Ed.2d 405 (1990); City of Akron v. Akron Ctr. for Reprod. Health, 462 U.S. 416, 103 S.Ct. 2481, 76 L.Ed.2d 687 (1983); Planned Parenthood Ass'n v. Ashcroft, 462 U.S. 476, 103 S.Ct. 2517, 76 L.Ed.2d 733 (1983); H.L. v. Matheson, 450 U.S. 398, 101 S.Ct. 1164, 67 L.Ed.2d 388 (1981); Bellotti v. Baird, 443 U.S. 622, 99 S.Ct. 3035, 61 L.Ed.2d 797 (1979); Planned Parenthood v. Danforth, 428 U.S. 52, 96 S.Ct. 2831, 49 L.Ed.2d 788 (1976). But cf. Reno v. Flores 507 U.S. 292, 302, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993); id. at 341, 113 S.Ct. 1439 (Stevens, J., dissenting). . Neither Justice Stevens’ concurring opinion nor Justice White’s dissenting opinion address Justice Scalia’s methodology for defining rights. See 491 U.S. at 132, 138, 109 S.Ct. 2333 (Stevens, J., concurring in the judgment); id. at 157, 109 S.Ct. 2333 (White, J., dissenting). . See, e.g., Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 847, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992) (opinion of O’Connor, Kennedy, and Souter, JJ.). Cf. Lutz v. City of York, 899 F.2d 255, 267-68 (3d Cir.1990). .Whether such rights apply to all minors of any age is irrelevant because the curfew applies to all minors under 17, and thus presents no occasion to distinguish among age groups or speculate about when a particular age cutoff might warrant additional deference. In discussing rights burdened, by a curfew, there is" }, { "docid": "3595261", "title": "", "text": "for an abortion to be obtained. Id. at 643-44, 99 S.Ct. at 3048 (footnote omitted). Because the Massachusetts Supreme Court had interpreted the statute to require parental consent before a minor could obtain a court order, the statute was found to be too restrictive and was struck down. Id. at 646-47, 99 S.Ct. at 3049-50; see also id. at 655-56, 99 S.Ct. at 3054-55 (Stevens, J., concurring in judgment). The rationales behind Bellotti have been adopted repeatedly by subsequent Supreme Court majorities. See e.g. Hodgson v. Minnesota, 497 U.S. 417, 461, 110 S.Ct. 2926, 2950, 111 L.Ed.2d 344 (1990) (O’Connor, J., concurring); id. at 497-98, 110 S.Ct. at 2969-70 (Kennedy, J., joined by Rehnquist, C.J., White, J., and Scalia, J., concurring); Planned Parenthood Ass’n of Kansas City, Mo., Inc. v. Ashcroft, 462 U.S. 476, 491-92, 103 S.Ct. 2517, 2525, 76 L.Ed.2d 733 (1983) (opinion of Powell, J., joined by Burger, C.J.); id. at 504, 103 S.Ct. at 2531 (O’Connor, J., joined by White, J., and Rehnquist, J., concurring); H.L. v. Matheson, 450 U.S. 398, 408-12, 101 S.Ct. 1164, 1170-73, 67 L.Ed.2d 388 (1980). The Bellotti requirements for a valid judicial bypass were specifically adopted by a majority of the Supreme Court in Ohio v. Akron Center for Reproductive Health, 497 U.S. 502, 511-13, 110 S.Ct. 2972, 2979-80, 111 L.Ed.2d 405 (1990) (“Akron II”). By now, then, it is clear that in order to survive constitutional scrutiny, the judicial bypass of a parental consent statute must comply with a four-part test based on the plurality’s holding in Bellotti. Such a statute must: (i) allow the minor to bypass the consent requirement if she establishes that she is mature enough and well enough informed to make the abortion decision independently; (ii) allow the minor to bypass the con sent requirement if she establishes that the abortion would be in her best interests; (iii) ensure the minor’s anonymity; and (iv) provide for expeditious bypass procedures. Lambert v. Wicklund, — U.S. -, -, 117 S.Ct. 1169, 1171, 137 L.Ed.2d 464 (1997) (per curiam) (citing Bellotti, 443 U.S. at 643-44, 99 S.Ct. at 3048-49 (plurality" }, { "docid": "19906108", "title": "", "text": "L.Ed.2d 674 (1992) (explaining that a spousal notice requirement “will often be tantamount to the [spousal consent requirement] found unconstitutional in [Planned Parenthood of Cent. Mo. v.]Danforth [, 428 U.S. 52, 69, 96 S.Ct. 2831, 49 L.Ed.2d 788 (1976)]” because “a spousal notice requirement enables the husband to wield an effective veto over his wife’s decision”) with Hodgson v. Minnesota, 497 U.S. 417, 445, 110 S.Ct. 2926, 111 L.Ed.2d 344 (opinion of Stevens, J.) (“Although the Court has held that parents may not exercise an absolute, and possibly arbitrary, veto over [a minor’s decision to have an abortion], it has never challenged a State’s reasonable judgment that the decision should be made after notification to and consultation with a parent.”). Even so, as Nova points out, several courts of appeals have applied Bellotti’s expeditious bypass requirement in the context of a parental notice statute. Planned Parenthood, Sioux Falls Clinic v. Miller, 68 F.3d 1452, 1460 (8th Cir.1995) (“[P]a-rental-notice provisions, like parental-consent provisions, are unconstitutional without a Bellotti-type bypass.”); Ind. Planned Parenthood Affiliates Ass’n v. Pearson, 716 F.2d 1127, 1132 (7th Cir.1983) (“Because parental involvement brought about by either consent or notification statutes may result in similar efforts by parents to block the abortion, we will apply the Supreme Court’s analysis with respect to consent bypass procedures in our consideration of the constitutional sufficiency of Indiana’s notification bypass procedures.”). We need not resolve this question today. Because we conclude that the Oklahoma Act meets Belloti’s expeditious bypass requirement, we assume without deciding that the requirement would apply to parental notification statutes. See Akron Ctr. for Reprod. Health, 497 U.S. at 510, 110 S.Ct. 2972 (assuming, without deciding, that a notification statute must contain Bellotti-type bypass procedures “because, whether or not the Fourteenth Amendment requires notice statutes to contain bypass procedures, [the statute in question] meets the requirements”). We now turn to the heart of the present appeal — whether Bellotti’s expeditious bypass requirement requires a concrete, definite time frame in which judicial action must be taken. Nova’s argument that it does rests on the premise that “[although time is always of" }, { "docid": "10439988", "title": "", "text": "be in the minor’s best interests without parental approval”). Under Bellotti, consent statutes must have an expeditious, anonymous bypass procedure that allows a minor to show either that she has the maturity to make her own abortion decision or, even if she is immature, that the desired abortion would be in her best interests. Bellotti, 443 U.S. at 643-44, 99 S.Ct. at 3048-49; Akron II, 497 U.S. at 511-13, 110 S.Ct. at 2979-80 (reviewing criteria for bypass). Without that opportunity, the consent requirement unduly burdens the minor’s right to choose. As for notice requirements, the Supreme Court has established that the State may require parental notice for immature minors who cannot show that an abortion would be in their best interests. H.L. v. Matheson, 450 U.S. 398, 409, 101 S.Ct. 1164, 1171, 67 L.Ed.2d 388 (1981); id. at 414, 101 S.Ct. at 1173-74 (Powell, J., concurring). On the other hand, the Court has held that a statute requiring notice to both parents is unconstitutional without a bypass procedure, but constitutional with one. Hodgson v. Minnesota, 497 U.S. 417, 461, 110 S.Ct. 2926, 2950-51, 111 L.Ed.2d 344 (1990) (O’Connor, J., concurring in part and concurring in the judgment in part); id. at 481,110 S.Ct. at 2961 (Kennedy, J., concurring in the judgment in part and dissenting in part). As Hodgson made clear, some of the Justices would hold that requiring one-parent notice is unconstitutional even with a bypass procedure, while others would hold that a more restrictive two-parent notice requirement is constitutional even without a bypass. Id. at 462, 110 S.Ct. at 2951 (Marshall, J., concurring in part, concurring in the judgment in part, and dissenting in part); id. at 489, 110 S.Ct. at 2965-66 (Kennedy, J., concurring in the judgment in part and dissenting in part). In short, the Supreme Court has yet to decide whether a mature or “best interest” minor is undtfly burdened when a State requires her physician to notify one of her parents before performing the abortion. To resolve that issue, we first consider why requiring parental notice — or, for that matter, parental consent —" }, { "docid": "3595262", "title": "", "text": "101 S.Ct. 1164, 1170-73, 67 L.Ed.2d 388 (1980). The Bellotti requirements for a valid judicial bypass were specifically adopted by a majority of the Supreme Court in Ohio v. Akron Center for Reproductive Health, 497 U.S. 502, 511-13, 110 S.Ct. 2972, 2979-80, 111 L.Ed.2d 405 (1990) (“Akron II”). By now, then, it is clear that in order to survive constitutional scrutiny, the judicial bypass of a parental consent statute must comply with a four-part test based on the plurality’s holding in Bellotti. Such a statute must: (i) allow the minor to bypass the consent requirement if she establishes that she is mature enough and well enough informed to make the abortion decision independently; (ii) allow the minor to bypass the con sent requirement if she establishes that the abortion would be in her best interests; (iii) ensure the minor’s anonymity; and (iv) provide for expeditious bypass procedures. Lambert v. Wicklund, — U.S. -, -, 117 S.Ct. 1169, 1171, 137 L.Ed.2d 464 (1997) (per curiam) (citing Bellotti, 443 U.S. at 643-44, 99 S.Ct. at 3048-49 (plurality opinion); Akron II, 497 U.S. at 511-13, 110 S.Ct. at 2979-80). Because of the Supreme Court’s strong reliance on these requirements, a statute which is addressed by and complies with the Bellotti standards cannot be said to be an undue burden. Accordingly, when reviewing the merits of a parental consent statute, our focus is on the compliance of the statute with the four Bellotti standards stated above. If the Bellotti requirements do not address the state regulation, the court then turns to general abortion caselaw and determines if the regulation is an undue burden irrespective of Bellotti. III. This Circuit reviews the grant or denial of a preliminary injunction under the abuse of discretion standard. Direx Israel, Ltd. v. Breakthrough Medical Corp., 952 F.2d 802, 814 (4th Cir.1991). “[A] preliminary injunction is an extraordinary remedy, to be granted only if the moving party clearly establishes entitlement to the relief sought.” Hughes Network Systems, Inc. v. InterDigital Communications Corp., 17 F.3d 691, 693 (4th Cir.1994). It is now axiomatic which standards should be applied in this" }, { "docid": "7574001", "title": "", "text": "a sufficiently expeditious procedure for obtaining an abortion via the bypass provision. The State counters that the lack of specific time limits in the state trial courts do not operate as a substantial obstacle to a minor’s choice to undergo an abortion because of the statute’s directive to the Arizona courts to act “promptly and without delay.” Both sides rely on Bellotti v. Baird, 443 U.S. 622, 643-44, 99 S.Ct. 3035, 61 L.Ed.2d 797 (1979) (plurality) (“Bellotti II”), to support their opposing claims. In Bellotti II, the Supreme Court held that if a state decides to require a pregnant minor to obtain one or both parents’ consent to an abortion, the state also must provide an alternative procedure under which authorization for the abortion can be obtained. See id. at 643, 99 S.Ct. 3035. A pregnant minor is entitled in such a proceeding to show that either: (1) she is mature enough and well-informed enough to make her abortion decision, in consulta tion with her physician, independently of her parents’ wishes; or (2) even if she is not able to make this decision independently, the desired abortion would be in her best interests. See id. The proceeding in which this showing is made must assure that a resolution of the issue, and any appeals that may follow, will be completed with sufficient expedition to provide an effective opportunity for an abortion to be obtained. See id. In subsequent cases, the Court has repeatedly affirmed Bellotti II’s holding. See Lambert v. Wicklund, 520 U.S. 292, 295, 117 S.Ct. 1169, 137 L.Ed.2d 464 (1997); Akron II, 497 U.S. at 510, 110 5.Ct. 2972 (1990); Hodgson v. Minnesota, 497 U.S. 417, 461, 110 S.Ct. 2926, 111 L.Ed.2d 344 (1990) (plurality opinion); Planned Parenthood Ass’n v. Ashcroft, 462 U.S. 476, 491 n. 16, 103 S.Ct. 2517, 76 L.Ed.2d 733 (1983). The Court has never considered, however, a facial challenge to a judicial bypass provision containing only a general directive to the courts to proceed expeditiously. Instead, all previous judicial bypass provisions considered by the Court have been those in which the bypass provision either" }, { "docid": "3595260", "title": "", "text": "sensitivity when it legislates to foster parental involvement in this matter.” Id. at 642, 99 S.Ct. at 3047. The plurality then set out the constitutional requirements for a valid parental consent statute. If a state requires an unemancipated pregnant minor to obtain the consent of a parent, it “also must provide an alternative procedure whereby authorization for the abortion can be obtained.” Id. at 643, 99 S.Ct. at 3048 (footnote omitted). Such a proceeding must comply with the following requirements: A pregnant minor is entitled in such a proceeding to show either: (1) that she is mature enough and well enough informed to make her abortion decision, in consultation with her physician, independently of her parents’ wishes; or (2) that even if she is not able to make this decision independently, the desired abortion would be in her best interests. The proceeding in which this showing is made must assure that a resolution of the issue, and any appeals that may follow, will be completed with anonymity and sufficient expedition to provide an effective opportunity for an abortion to be obtained. Id. at 643-44, 99 S.Ct. at 3048 (footnote omitted). Because the Massachusetts Supreme Court had interpreted the statute to require parental consent before a minor could obtain a court order, the statute was found to be too restrictive and was struck down. Id. at 646-47, 99 S.Ct. at 3049-50; see also id. at 655-56, 99 S.Ct. at 3054-55 (Stevens, J., concurring in judgment). The rationales behind Bellotti have been adopted repeatedly by subsequent Supreme Court majorities. See e.g. Hodgson v. Minnesota, 497 U.S. 417, 461, 110 S.Ct. 2926, 2950, 111 L.Ed.2d 344 (1990) (O’Connor, J., concurring); id. at 497-98, 110 S.Ct. at 2969-70 (Kennedy, J., joined by Rehnquist, C.J., White, J., and Scalia, J., concurring); Planned Parenthood Ass’n of Kansas City, Mo., Inc. v. Ashcroft, 462 U.S. 476, 491-92, 103 S.Ct. 2517, 2525, 76 L.Ed.2d 733 (1983) (opinion of Powell, J., joined by Burger, C.J.); id. at 504, 103 S.Ct. at 2531 (O’Connor, J., joined by White, J., and Rehnquist, J., concurring); H.L. v. Matheson, 450 U.S. 398, 408-12," }, { "docid": "22690069", "title": "", "text": "of giving her informed consent and has indeed given such consent, or determines that an abortion is in her best interests. Records of these court proceedings are kept confidential. The Act directs the state trial court to render a decision within three days of the woman’s application, and the entire procedure, including appeal to Pennsylvania Superior Court, is to last no longer than eight business days. The parental consent requirement does not apply in the case of a medical emergency. 18 Pa. Cons. Stat. §3206 (1990). See Appendix to opinion of O’Connor, Kennedy, and Souter, JJ., ante, at 904-906. This provision is entirely consistent with this Court’s previous decisions involving parental consent requirements. See Planned Parenthood Assn. of Kansas City, Mo., Inc. v. Ashcroft, 462 U. S. 476 (1983) (upholding parental consent requirement with a similar judicial bypass option); Akron v. Akron Center for Reproductive Health, Inc., supra, at 439-440 (approving of parental consent statutes that include a judicial bypass option allowing a pregnant minor to “demonstrate that she is sufficiently mature to make the abortion decision herself or that, despite her immaturity, an abortion would be in her best interests”); Bellotti v. Baird, 443 U. S. 622 (1979). We think it beyond dispute that a State “has a strong and legitimate interest in the welfare of its young citizens, whose immaturity, inexperience, and lack of judgment may some times impair their ability to exercise their rights wisely.” Hodgson v. Minnesota, 497 U. S., at 444 (opinion of Stevens, J.). A requirement of parental consent to abortion, like myriad other restrictions placed upon minors in other contexts, is reasonably designed to further this important and legitimate state interest. In our view, it is entirely “rational and fair for the State to conclude that, in most instances, the family will strive to give a lonely or even terrified minor advice that is both compassionate and mature.” Ohio v. Akron Center for Reproductive Health, 497 U. S., at 520 (opinion of Kennedy, J.); see also Planned Parenthood of Central Mo. v. Danforth, 428 U. S., at 91 (Stewart, J., concurring) (“There can" }, { "docid": "22689889", "title": "", "text": "or any other medical procedure. The fact that a law which serves a valid purpose, one not designed to strike at the right itself, has the incidental effect of making it more difficult or more expensive to procure an abortion cannot be enough to invalidate it. Only where state regulation imposes an undue burden on a woman’s ability to make this decision does the power of the State reach into the heart of the liberty protected by the Due Process Clause. See Hodgson v. Minnesota, 497 U. S. 417, 458-459 (1990) (O’Connor, J., concurring in part and concurring in judgment in part); Ohio v. Akron Center for Reproductive Health, 497 U. S. 502, 519-520 (1990) (Akron II) (opinion of Kennedy, J.); Webster v. Reproductive Health Services, supra, at 530 (O’Connor, J., concurring in part and concurring in judgment); Thornburgh v. American College of Obstetricians and Gynecologists, 476 U. S., at 828 (O’Connor, J., dissenting); Simopoulos v. Virginia, 462 U. S. 506, 520 (1983) (O’Connor, J., concurring in part and concurring in judgment); Planned Parenthood Assn. of Kansas City, Mo., Inc. v. Ashcroft, 462 U. S. 476, 505 (1983) (O’Connor, J., concurring in judgment in part and dissenting in part); Akron I, 462 U. S., at 464 (O’Connor, J., joined by White and Rehnquist, JJ., dissenting); Bellotti v. Baird, 428 U. S. 132, 147 (1976) (Bellotti I). For the most part, the Court’s early abortion cases adhered to this view. In Maher v. Roe, 432 U. S. 464, 473-474 (1977), the Court explained: “Roe did not declare an unqualified ‘constitutional right to an abortion,’ as the District Court seemed to think. Rather, the right protects the woman from unduly burdensome interference with her freedom to decide whether to terminate her pregnancy.” See also Doe v. Bolton, 410 U. S. 179, 198 (1973) (“[T]he interposition of the hospital abortion committee is unduly restrictive of the patient’s rights”); Bellotti I, supra, at 147 (State may not “impose undue burdens upon a minor capable of giving an informed consent”); Harris v. McRae, 448 U. S. 297, 314 (1980) (citing Maker, supra). Cf. Carey v." }, { "docid": "23346871", "title": "", "text": "minors or their parents. If one were to attempt to design a statute that would address the Court’s concerns, one would do precisely what Minnesota has done in §144.343(6): create a judicial mechanism to identify, and exempt from the strictures of the law, those cases in which the minor is mature or in which notification of the minor’s parents is not in the minor’s best interests. The bypass procedure comports in all respects with our precedents. See Bellotti II, 443 U. S., at 643-644 (opinion of Powell, J.); Planned Parenthood Assn, of Kansas City, Mo., Inc. v. Ashcroft, 462 U. S. 476, 491 (1983) (opinion of Powell, J.); id., at 505 (O’Connor, J., concurring in judgment in part and dissenting in part); Ohio v. Akron Center for Reproductive Health, post, p. 502. In providing for the bypass, Minnesota has done nothing other than attempt to fit its legislation into the framework that we have supplied in our previous cases. The simple fact is that our decision in Bellotti II stands for the proposition that a two-parent consent law is constitutional if it provides for a sufficient judicial bypass alternative, and it requires us to sustain the statute before us here. In Bellotti II, the Court considered the constitutionality of a statute which required a physician to obtain, in most circumstances, the consent of both of a minor’s parents before performing an abortion on the minor. See 443 U. S., at 625-626 (opinion of Powell, J.) (citing Mass. Gen. Laws. Ann., ch. 112, §12S (West Supp. 1979)). Although eight Members of the Court concluded that the statute was unconstitutional, five indicated that they would uphold a two-parent consent statute with an adequate judicial bypass. For four of the eight Justices forming the majority in Bellotti II, the failure of the statute lay in its inadequate bypass procedure, not its requirement that both of the minor’s parents consent to the abortion. See 443 U. S., at 643 (opinion of Powell, J.). Justice Powell’s opinion specifically stated that “if the State decides to require a pregnant minor to obtain one or both parents’" }, { "docid": "10439986", "title": "", "text": "statutes and that five Justices have agreed that “notice statutes are not equivalent to consent statutes.” Ohio v. Akron Center for Reproductive Health (Akron II), 497 U.S. 502, 511, 110 S.Ct. 2972, 2978, 111 L.Ed.2d 405 (1990). Planned Parenthood counters that even though notice and consent statutes are not equivalent, they may, as a practical matter, impose the same burden. If that burden is undue under consent statutes without a bypass, then it should be undue under notice statutes without a bypass. The State responds that even if a parental-notice provision needs a bypass to be constitutional, its “doctor bypass” for abused and neglected minors should suffice. Indeed, the State claims that its bypass is less of a burden than the judicial bypass required for consent statutes. Planned Parenthood disputes that claim and points out that South Dakota’s bypass for abused and neglected minors does not provide an alternative to parental notice for mature or “best interest” minors who have not been mistreated. We agree with Planned Parenthood on this point. A. We begin, as the District Court did, with a review of Supreme Court precedent. “An undue burden exists, and therefore a provision of law is invalid, if its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.” Casey, — U.S. at-, 112 S.Ct. at 2821. The Court has established that a parental-coreserei requirement is not an undue burden for minors seeking abortions so long as the minor has the opportunity to avoid the requirement by demonstrating that she is mature or that an abortion is in her best interests. Bellotti v. Baird, 443 U.S. 622, 651, 99 S.Ct. 3035, 3052-53, 61 L.Ed.2d 797 (1979) (plurality). See also City of Akron v. Akron Center for Reproductive Health (Akron I), 462 U.S. 416, 440, 103 S.Ct. 2481, 2497-98, 76 L.Ed.2d 687 (1983) (following Bellotti by invalidating a consent statute that made “a blanket determination that all minors under the age of 15 are too immature to make [an abortion] decision or that an abortion never may" }, { "docid": "19906107", "title": "", "text": "consent of both parents before an unmarried minor could obtain an abortion. Id. at 625, 99 S.Ct. 3035. In passing on the constitutionality of the statute, the Court explained that the minor must be provided an alternative judicial procedure whereby authorization could be obtained, and that this proceeding “must assure that a resolution of the issue, and any appeals that may follow, will be completed with anonymity and sufficient expedition to provide an effective opportunity for an abortion to be obtained.” Id. at 643-44, 99 S.Ct. 3035 (emphasis added). As a threshold matter, Appellees argue that Bellotti involved a parental consent statute and that it is not clear that Bellotti’s expeditious bypass requirement applies to a statute like the one at issue here, which only requires parental notification. The Supreme Court has not specifically resolved this question, see Akron Ctr. for Reprod. Health, 497 U.S. at 510, 110 S.Ct. 2972, and its decisions do not suggest a clear answer, compare Planned Parenthood of S.E. Pa. v. Casey, 505 U.S. 833, 897, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992) (explaining that a spousal notice requirement “will often be tantamount to the [spousal consent requirement] found unconstitutional in [Planned Parenthood of Cent. Mo. v.]Danforth [, 428 U.S. 52, 69, 96 S.Ct. 2831, 49 L.Ed.2d 788 (1976)]” because “a spousal notice requirement enables the husband to wield an effective veto over his wife’s decision”) with Hodgson v. Minnesota, 497 U.S. 417, 445, 110 S.Ct. 2926, 111 L.Ed.2d 344 (opinion of Stevens, J.) (“Although the Court has held that parents may not exercise an absolute, and possibly arbitrary, veto over [a minor’s decision to have an abortion], it has never challenged a State’s reasonable judgment that the decision should be made after notification to and consultation with a parent.”). Even so, as Nova points out, several courts of appeals have applied Bellotti’s expeditious bypass requirement in the context of a parental notice statute. Planned Parenthood, Sioux Falls Clinic v. Miller, 68 F.3d 1452, 1460 (8th Cir.1995) (“[P]a-rental-notice provisions, like parental-consent provisions, are unconstitutional without a Bellotti-type bypass.”); Ind. Planned Parenthood Affiliates Ass’n v. Pearson," }, { "docid": "1278956", "title": "", "text": "veto their minor daughter’s decision to have an abortion, unlike a consent requirement, the threat of an absolute veto is arguably absent. Therefore, they contend that a judicial or other procedure for bypassing the parental notification requirement is not constitutionally required. In Akron II the Supreme Court specifically left this question open, as it found that the Ohio parental notification statute at issue satisfied the requirements identified for parental consent statutes in Planned Parenthood Association of Central Missouri v. Danforth, 428 U.S. 52, 96 S.Ct. 2831, 49 L.Ed.2d 788 (1976), Bellotti v. Baird, 443 U.S. 622, 99 S.Ct. 3035, 61 L.Ed.2d 797 (1979) (plurality opinion), Planned Parenthood Association of Kansas City, Mo., Inc. v. Ashcroft, 462 U.S. 476, 103 S.Ct. 2517, 76 L.Ed.2d 733 (1983), and Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416, 103 S.Ct. 2481, 76 L.Ed.2d 687 (1983) (Akron I). See Akron II, 110 S.Ct. at 2979. Though we hold infra that the Nevada statute does not similarly satisfy the requirements for a parental consent statute, we need not address whether such a judicial or other bypass procedure is constitutionally required. Appellees attack only the adequacy of the judicial bypass, not the lack of it. Because the Nevada parental notification statute contains a bypass procedure, we must address the constitutional adequacy of the procedure, but we are constrained from addressing the constitutional necessity of such a procedure. III. The Nevada parental notification statute specifically provides a bypass procedure. See NRS 442.255 and 442.2555. Appellants argue that this procedure is constitutionally sufficient. In Akron II the Supreme Court held that a bypass procedure that would suffice as a consent statute will suffice as a notice statute. Akron II, 110 S.Ct. at 2979. The Court found that the Ohio parental notification statute at issue was constitutional, as it satisfied the four consent statute criteria established in Bellotti. Id. at 2979-81. We first consider whether the Nevada bypass procedure satisfies the Bellotti criteria. The four Bellotti criteria applied in Akron II are: 1. The procedure must allow the minor to show that she possesses the maturity and" }, { "docid": "8538715", "title": "", "text": "to further its legitimate interests must be calculated to inform a woman’s free choice, not to hinder it. “An undue burden exists, and therefore a provision of law is invalid, if its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.” Casey, — U.S. at -, 112 S.Ct. at 2821. To be sure, where the woman seeking an abortion is an unmarried minor, the State has a special interest in encouraging her to seek the advice and counsel of her parents. Hodgson, 497 U.S. at 444, 110 S.Ct. at 2942; Bellotti v. Baird, 443 U.S. 622, 638, 99 S.Ct. 3035, 3046, 61 L.Ed.2d 797 (1979). However, a State cannot lawfully authorize an absolute parental veto over the decision of a minor to terminate her pregnancy. Planned Parenthood v. Danforth, 428 U.S. 52, 73, 96 S.Ct. 2831, 2843, 49 L.Ed.2d 788 (1976). A parental consent requirement, although it would be unconstitutional standing alone, can nonetheless be saved by an adequate “alternative procedure” whereby authorization for the abortion can be obtained. Bellotti, 443 U.S. at 642, 99 S.Ct. at 3048. In such an alternative proceeding, a pregnant minor is entitled to show either (1) that she is mature enough and well informed enough to make the decision herself or (2) that the abortion would be in her best interests. Additionally, to allow the minor an effective opportunity to obtain an abortion, all acceptable judicial bypass procedures must (3) insure anonymity and (4) be conducted with expediency. Ohio v. Akron Center for Reproductive Health, 497 U.S. 502, 512, 110 S.Ct. 2972, 2979-80, 111 L.Ed.2d 405 (1990) (Akron II); Bellotti 443 U.S. at 642, 99 S.Ct. at 3048. Is Mississippi’s Ride 10.01 Constitutional? The plaintiffs below admit that the statutory portion of Mississippi’s judicial bypass complies with the standards set forth in Bel-lotti. The statute itself provides that parental consent shall be waived if the court finds either: “(a) [tjhat the minor is mature and well-informed enough to make the abortion decision on her own; or (b) [tjhat performance of" }, { "docid": "10439987", "title": "", "text": "the District Court did, with a review of Supreme Court precedent. “An undue burden exists, and therefore a provision of law is invalid, if its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.” Casey, — U.S. at-, 112 S.Ct. at 2821. The Court has established that a parental-coreserei requirement is not an undue burden for minors seeking abortions so long as the minor has the opportunity to avoid the requirement by demonstrating that she is mature or that an abortion is in her best interests. Bellotti v. Baird, 443 U.S. 622, 651, 99 S.Ct. 3035, 3052-53, 61 L.Ed.2d 797 (1979) (plurality). See also City of Akron v. Akron Center for Reproductive Health (Akron I), 462 U.S. 416, 440, 103 S.Ct. 2481, 2497-98, 76 L.Ed.2d 687 (1983) (following Bellotti by invalidating a consent statute that made “a blanket determination that all minors under the age of 15 are too immature to make [an abortion] decision or that an abortion never may be in the minor’s best interests without parental approval”). Under Bellotti, consent statutes must have an expeditious, anonymous bypass procedure that allows a minor to show either that she has the maturity to make her own abortion decision or, even if she is immature, that the desired abortion would be in her best interests. Bellotti, 443 U.S. at 643-44, 99 S.Ct. at 3048-49; Akron II, 497 U.S. at 511-13, 110 S.Ct. at 2979-80 (reviewing criteria for bypass). Without that opportunity, the consent requirement unduly burdens the minor’s right to choose. As for notice requirements, the Supreme Court has established that the State may require parental notice for immature minors who cannot show that an abortion would be in their best interests. H.L. v. Matheson, 450 U.S. 398, 409, 101 S.Ct. 1164, 1171, 67 L.Ed.2d 388 (1981); id. at 414, 101 S.Ct. at 1173-74 (Powell, J., concurring). On the other hand, the Court has held that a statute requiring notice to both parents is unconstitutional without a bypass procedure, but constitutional with one. Hodgson v. Minnesota," } ]

[ { "docid": "23090764", "title": "", "text": "conclusion. Thus, the Fourth Circuit in United States v. David, 83 F.3d 638 (4th Cir.1996), the Fifth in United States v. Calverley, 37 F.3d 160 (5th Cir.1994), cert. denied 513 U.S. 1196, 115 S.Ct. 1266, 131 L.Ed.2d 145 (1995), and United States v. Dupaquier, 74 F.3d 615, 619 (5th Cir.1996), and the D.C. Circuit in United States v. Washington, 12 F.3d 1128 (D.C.Cir.1994), cert. denied, 513 U.S. 828, 115 S.Ct. 98, 130 L.Ed.2d 47 (1994), all concluded that, where the law was unsettled at the time of trial but has been clarified by the time of appeal, such an error is not plain. As the Fourth Circuit noted: “If the contemporaneous objection requirement is to have any real force, presumably an objection would be required (and review would be barred for failure to object) in the circumstance where the law at the time of trial is unclear as to whether the district court’s proposed course would constitute error.” David, 83 F.3d at 643. This reflects our view precisely. Some circuits have announced apparently different rules, but they did so on materially different facts. In United States v. Ross, 77 F.3d 1525 (7th Cir.1996), for example, the Seventh Circuit dealt with a conviction that had become invalid in light of United States v. Gaudin, 515 U.S. 506, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995). The Seventh Circuit thus confronted a situation much more analogous to that in Johnson than that here: Because pre-Gaudin law would have rendered any objection at trial futile, the fact that no objection was made should not have prejudiced defendant’s ability to raise the point on appeal. See Ross, 77 F.3d at 1539. Significantly, all circuits that purport to judge the plainness of the error as of the time of appeal confronted situations where the objections could not, as a practical matter, have been made at trial. See United States v. Baumgardner, 85 F.3d 1305, 1308-09 (8th Cir.1996) (reversal based on Gaudin); United States v. Webster, 84 F.3d 1056, 1066-67 (8th Cir.1996) (reversal based on Bailey v. United States,—U.S.-, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995)); David," } ]

[ { "docid": "2632002", "title": "", "text": "In United States v. Gaudin, — U.S. -, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995), decided after Ballistrea’s trial, the Supreme Court held that materiality, if an element of the section 1001 offense, must be submitted to the jury. Because the Government in Gau-din conceded that materiality was an element of section 1001, the Court did not directly consider this question. In United States v. Ali, 68 F.3d 1468, 1474-75 (2d Cir.1995), this Circuit explicitly read Gaudin as holding that materiality is an element of the section 1001 offense and repudiated our earlier decision in Elkin. If the jury charge given .by the District Judge in Ballistrea’s case were given today, therefore, it would be erroneous under the law of this Circuit. Because defendant did not timely object to the section 1001 charge, this Court can reverse only for “plain error.” Fed. R.Crim.P. 52(b). In United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 1776, 123 L.Ed.2d 508 (1993), the Supreme Court interpreted Rule 52(b) as creating three distinct hurdles for appellate review. First, there must be error. Second, the error must be “plain,” which at a minimum means “clear under current law.” Third, the plain error must “affectf ] substantial rights,” which requires a showing of prejudice. Id. at 732-34, 113 S.Ct. at 1776-77. Generally, the defendant will bear the burden of persuasion as to prejudice. The first two Olano requirements are easily met. First, as a result of Gaudin and All, the jury charge was erroneous. Second, the error was plain because it is clear under “current law,” meaning the law existing at the time of the appeal. United States v. Viola, 35 F.3d 37, 42 (2d Cir.1994); accord United States v. Ross, 77 F.3d 1525, 1539 (7th Cir.1996). The third requirement is also satisfied. As this Court held in Viola, whei’e the error at issue was unclear at the time of trial but becomes clear on appeal because a “supervening decision alters a settled rule of law in [this] circuit, ... the burden of persuasion as to prejudice (or, more precisely, lack of prejudice) -is" }, { "docid": "22337392", "title": "", "text": "then clarified by subsequent authority, the district court's error is still not considered plain .... Therefore, plain error ‘normally means error plain at the time the district court made the alleged mistake.’ ”); United States v. Mouling, 557 F.3d 658, 664 (D.C.Cir.) (\"We therefore hold that where, as here, the law was unsettled at the time of trial but becomes settled by the time of appeal, the general rule applies, and we assess error as of the time of trial.”), cert. denied, - U.S. -, 130 S.Ct. 795, 175 L.Ed.2d 559 (2009), with United States v. Crosgrove, 637 F.3d 646, 656-57 (6th Cir.2011) (“However, the requirement that the error be plain means ‘plain under current law.’ ... For plain error review, current law ‘is the law as it exists at the time of review.’ ”); United States v. Gamez, 577 F.3d 394, 400 (2d Cir.2009) (per curiam) (\"A court of appeals cannot correct an error pursuant to Rule 52(b) unless the error is clear under current law .... Whether an error is ‘plain’ is determined by reference to the law as of the time of appeal.\" (internal quotation marks and citations omitted)); United States v. Ziskind, 491 F.3d 10, 14 (1st Cir.2007) (citing Johnson for the proposition \"that error is plain if the law is clear at the time of direct appellate review, even though governing law was unclear at time of trial”); United States v. Underwood, 446 F.3d 1340, 1343 (11th Cir.2006) (noting that “even though the error was not plain at the time of sentencing, the subsequent issuance of [a Supreme Court opinion] establishes that the error is plain at the time of appellate consideration”). . Several opinions have held that we consider the law at the time of trial to decide the obviousness of the error. See, e.g., Henderson, 646 F.3d at 225 (\"[A]n error is plain only if it was clear under current law at the time of trial.” (internal quotation marks omitted)); United States v. Jackson, 549 F.3d 963, 977 (5th Cir.2008) (\" ‘Plain’ is synonymous with ‘clear’ or ‘obvious,’ and at a minimum, contemplates" }, { "docid": "8897436", "title": "", "text": "on point, and the only relevant Tenth Circuit cases were both unpublished and potentially misleading. See Story, 635 F.3d at 1248. In addition, the question had created a circuit split. Nonetheless, the government concedes this prong based on the recent publication of Story and Tapia, citing our en banc case addressing sentencing error in the wake of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), for the proposition that “an error is ‘plain’ if it is clear or obvious at the time of appeal.” Aple. Supp. Br. at 10 (quoting United States v. Gonzalez-Huerta, 403 F.3d 727, 744-45 (10th Cir.2005) (emphasis added)). It is true that a number of our cases have repeated this standard, although none has done so in any analytical depth. See, e.g., United States v. Gonzales, 558 F.3d 1193, 1200 n. 7 (10th Cir.2009) (“This court decided Hays after [the plaintiffs] sentencing had occurred, but while his direct appeal remained pending. Even so, an error will be plain if it is clear or obvious at the time of the appeal.” (quotation omitted) (relying on Gonzalez-Huer to)); United States v. Meacham, 567 F.3d 1184, 1190 (10th Cir.2009) (finding an error “plain” because the law was “clear or obvious at the time of the appeal,” even though the clarifying case was published after the district court’s contested decision); United States v. Mendoza, 543 F.3d 1186, 1192 (10th Cir.2008) (“[The plain error] standard applies to the law in place at the time of review rather than at the time of sentencing.”). It is worth noting, however, that the question of whether an error must be plain at the time of trial or merely at the time of appeal has divided the circuits. In Olano, while clarifying the application of plain error review, the Supreme Court held only that “[a]t a minimum, a court of appeals cannot correct an error pursuant to Rule 52(b) unless the error is clear under current law.” 507 U.S. at 734, 113 S.Ct. 1770. The Court chose not to address “the special case where the error was unclear at" }, { "docid": "9401713", "title": "", "text": "integrity, or public reputation of judicial proceedings. Id. at 466-67, 117 S.Ct. 1544; United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993); United States v. Davenport, 519 F.3d 940, 943 (9th Cir.2008). Generally, the defendant bears the burden of persuasion on the third prong (affects substantial rights) of the plain-error test. See Olano, 507 U.S. at 741, 113 S.Ct. 1770. Defendant argues, however, that the burden of persuasion shifts to the prosecution when, as is true in this case, the error was not clear at the time of the conviction, but a supervening decision renders it so by the time of appeal. The Second Circuit has held that the burden does shift in these sorts of cases. United States v. Viola, 35 F.3d 37, 42 (2d Cir. 1994), abrogated on other grounds by Salinas v. United States, 522 U.S. 52, 118 S.Ct. 469,139 L.Ed.2d 352 (1997). This circuit has not adopted the Viola burden-shifting rule and contrary to Defendant’s assertion, the framework has not been adopted in other circuits either. See United States v. Gonzalez-Huerta, 403 F.3d 727, 734-35 (10th Cir.2005) (noting that the Supreme Court in Johnson had an opportunity to apply and endorse the Viola “presumed prejudice” rule and did not do so); United States v. Kramer, 73 F.3d 1067, 1074 n. 17 (11th Cir.1996) (declining to follow Viola); see also Lowery v. United States, 3 A.3d 1169, 1174 (D.C.2010) (describing Viola as “one exception of uncertain authority” to the rule that defendant bears the burden of persuasion on prejudice). Moreover, the Second Circuit itself has acknowledged that the Supreme Court may have implicitly overruled Viola by not shifting the burden in Johnson, which also involved a new rule of law rendering jury instructions invalid after conviction, but before appeal. See United States v. Williams, 399 F.3d 450, 457 n. 7 (2d Cir.2005). We need not decide who bears the burden of persuasion in circumstances such as in this case where there has been an intervening decision between the time of conviction and the time of appeal. As we explain below, we" }, { "docid": "8521345", "title": "", "text": "to submit the question of materiality to the jury deviates from the Supreme Court’s decision in Gaudin, the first prong of the Olano standard is met. We next consider whether this error is “plain.” In this case, the question turns on whether we look to the law at the time of the trial or on appeal. At trial, the district court’s decision was in accord with our circuit’s firmly established law— materiality in a section 1001 case was a matter of law decided by the court. Johnson, 937 F.2d at 396. On appeal, with the benefit of hindsight, the district court’s decision constitutes clear error. Gaudin, — U.S. at -, 115 S.Ct. at 2320. The Olano Court explicitly acknowledged, but left unanswered, this precise situation: We need not consider the special case where the error was unclear at the time of trial but becomes clear on appeal because the applicable law has been clarified. At a minimum, the Court of Appeals cannot correct an error pursuant to Rule 52(b) unless the error is clear under current law. Olano, 507 U.S. at 734, 113 S.Ct. at 1777. Most circuits that have addressed this open question have permitted discretionary review of errors that become plain on appeal because of a change in settled law. United States v. Viola, 35 F.3d 37, 42 (2d Cir.1994) (plain error determined according to the law at the time of appeal), cert. denied, — U.S. -, 115 S.Ct. 1270, 131 L.Ed.2d 148 (1995); United States v. Retos, 25 F.3d 1220, 1230 (3d Cir.1994) (same); United States v. Jones, 21 F.3d 165, 173 & n. 10 (7th Cir.1994) (same); but see United States v. Calverley, 37 F.3d 160, 162-63 & n. 18 (5th Cir.1994) (en banc) (plainness viewed from perspective of law at the time of trial, but not specifically addressing open question), cert. denied, — U.S. -, 115 S.Ct. 1266, 131 L.Ed.2d 145 (1995); United States v. Marder, 48 F.3d 564, 573 (1st Cir.), (question left unanswered), cert. denied, — U.S. -, 115 S.Ct. 1441, 131 L.Ed.2d 320 (1995); United States v. Washington, 12 F.3d 1128, 1139" }, { "docid": "14045763", "title": "", "text": "Circuit rendered prior to October 1, 1981. . In Olano, the Supreme Court did \"not consider the special case where the error was unclear at the time of trial but becomes clear on appeal because the applicable law has been clarified.” Instead, it stated simply that, \"[a]t a minimum, a court of appeals cannot correct an error pursuant to Rule 52(b) unless the error is clear under current law.” Olano, 507 U.S. at 734, 113 S.Ct. at 1777. Subsequently, in Johnson v. United States, 520 U.S. 461, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997), the Court held that \"where the law at the time of trial was settled and clearly contrary to the law at the time of appeal ... it is enough that an error be 'plain' at the time of appellate consideration.” Id. at 468, 117 S.Ct. at 1549. Because the law at the time of Smith's trial was \"unclear” rather than \"settled and clearly contrary to” him, this case presents the issue that Olano reserved judgment on rather than the one that Johnson explicitly decided. See generally Maxwell, 386 F.3d at 1068 n. 25 (noting a circuit split in similar cases). Pre-Johnson, we broadly stated that “error is 'plain' ... where the 'plainness' of error becomes apparent on direct review.” United States v. Kramer, 73 F.3d 1067, 1074 n. 16 (11th Cir.1996). But Kramer waS not a \"special case” of the sort described in Olano; rather, it presented the issue explicitly decided in Johnson. See Kramer, 73 F.3d at 1074. Post-Johnson, we considered the Olano \"special case” issue and held that it was appropriate to evaluate the plainness of the error based on the law at the time of appeal rather than as of the time of trial. United States v. Humphrey, 164 F.3d 585, 587-88 & nn.2 & 5 (11th Cir.1999); see also United States v. Prieto, 232 F.3d 816, 823 (11th Cir.2000) (\"For it to be 'plain,' the error must either have been clear under the law at the time the error was made, or clearly contrary to the law at the time of the" }, { "docid": "8897435", "title": "", "text": "the time of appeal — including mixed signals from our court — we concluded the district court’s error was not plain, and affirmed Story’s sentence. Id. at 1248. Shortly after we published the opinion in Story, the Supreme Court issued its decision in Tapia. That decision confirmed our reading of both statutory provisions. We therefore conclude that, under § 3582(a), the district court’s reliance on rehabilitative goals to set the length of Cordery’s sentence was error. C. The Error Was Plain We next consider whether the error is plain — that is, whether it is “clear under current law.” United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). An error is clear where “the Supreme Court or this court [ ] [has] addressed the issue” or where “the district court’s interpretation was clearly erroneous.” United States v. Ruiz-Gea, 340 F.3d 1181, 1187 (10th Cir.2003) (quotation omitted). The government notes the district court’s error was not plain or obvious at the time of sentencing; there was no Supreme Court precedent on point, and the only relevant Tenth Circuit cases were both unpublished and potentially misleading. See Story, 635 F.3d at 1248. In addition, the question had created a circuit split. Nonetheless, the government concedes this prong based on the recent publication of Story and Tapia, citing our en banc case addressing sentencing error in the wake of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), for the proposition that “an error is ‘plain’ if it is clear or obvious at the time of appeal.” Aple. Supp. Br. at 10 (quoting United States v. Gonzalez-Huerta, 403 F.3d 727, 744-45 (10th Cir.2005) (emphasis added)). It is true that a number of our cases have repeated this standard, although none has done so in any analytical depth. See, e.g., United States v. Gonzales, 558 F.3d 1193, 1200 n. 7 (10th Cir.2009) (“This court decided Hays after [the plaintiffs] sentencing had occurred, but while his direct appeal remained pending. Even so, an error will be plain if it is clear or obvious at" }, { "docid": "8897438", "title": "", "text": "the time of trial but becomes clear on appeal because the applicable law has been clarified.” Id. The Court subsequently offered a further refinement: “where the law at the time of trial was settled and clearly contrary to the law at the time of appeal [] it is enough that an error be ‘plain’ at the time of appellate consideration.” Johnson v. United States, 520 U.S. 461, 468, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997). But Johnson brings no clarity to cases such as the one at hand, where the law at the time of the contested decision was unsettled, but clarified while the appeal was pending. The Ninth and D.C. Circuits have concluded that Johnson articulates a narrow exception to an otherwise broad rule that an error is “plain” only if it was clear at the time of the district court’s decision. See United States v. Mouling, 557 F.3d 658, 663-64 (D.C.Cir.2009); United States v. Turman, 122 F.3d 1167, 1170 (9th Cir.1997). In Turman, the Ninth Circuit explained “we expect district judges to be knowledgeable, not clairvoyant. When the law is such that an experienced district judge cannot be expected to detect the error on his own, that is precisely when it is most important for the parties to object.” 122 F.3d at 1170. Only in the circumstances of Johnson, the court asserted, where the law is well settled at the time of trial but later reversed, are objections “pointless.” Id. In that case, “Measuring error at the time of trial would result in counsel’s inevitably making a long and virtually useless laundry list of objections to rulings that were plainly supported by existing precedent.” Id. (quotation omitted). Other circuits, however, observe a blanket rule that plain error is measured at the time of appeal. See, e.g., United States v. Smith, 402 F.3d 1303, 1315 n. 7 (11th Cir.2005) vacated on other grounds by 545 U.S. 1125, 125 S.Ct. 2938, 162 L.Ed.2d 863 (2005); United States v. Ross, 77 F.3d 1525, 1539-40 (7th Cir.1996). The Eleventh Circuit has explained that “this approach has the advantage of avoiding the necessity" }, { "docid": "22041211", "title": "", "text": "‘clear’ or, equivalently, ‘obvious.’ ” Id. at 734, 113 S.Ct. 1770. However, the Court specified that it “need not consider the special case where the error was unclear at the time of trial but becomes clear on appeal because the applicable law has been clarified. At a minimum, a court of appeals cannot correct an error pursuant to Rule 52(b) unless the error is clear under current law.” Id. (emphasis added). Approximately four years after Olano, the Supreme Court decided Johnson, in which it held that “where the law at the time of trial was settled and clearly contrary to the law at the time of appeal[,] it is enough that an error be ‘plain’ at the time of appellate consideration.” 520 U.S. at 468, 117 S.Ct. 1544. The Court reasoned that it would be futile for a lawyer to object to an “error” that clearly was not an error under the law as it existed at that time. Id. at 467-68, 117 S.Ct. 1544. If objections were required to preserve such an error, counsel would have to make “a long and virtually useless laundry list of objections to rulings that were plainly supported by existing precedent.” Id. at 468, 117 S.Ct. 1544. Both Olano and Johnson left open the question of when the “plainness” of an error would be evaluated in a situation where the law was unsettled at the time of trial, but was clear at the time of appeal. If the Supreme Court believed this issue to be determined, it would have said so in one of these cases. It did not. C. Circuit Precedents Thus, we turn to our own precedents and those of our sister circuits. As well-stated in Broussard, our own precedents do not speak with one voice. Compare Broussard, 669 F.3d at 554-55 (concluding that where an error is unclear at the time of trial but clear on appeal, the court should apply the law at the time of appeal), with United States v. Henderson, 646 F.3d 223, 225 (5th Cir.2011), (addressing the same issue and stating that the law should be evaluated" }, { "docid": "8897439", "title": "", "text": "knowledgeable, not clairvoyant. When the law is such that an experienced district judge cannot be expected to detect the error on his own, that is precisely when it is most important for the parties to object.” 122 F.3d at 1170. Only in the circumstances of Johnson, the court asserted, where the law is well settled at the time of trial but later reversed, are objections “pointless.” Id. In that case, “Measuring error at the time of trial would result in counsel’s inevitably making a long and virtually useless laundry list of objections to rulings that were plainly supported by existing precedent.” Id. (quotation omitted). Other circuits, however, observe a blanket rule that plain error is measured at the time of appeal. See, e.g., United States v. Smith, 402 F.3d 1303, 1315 n. 7 (11th Cir.2005) vacated on other grounds by 545 U.S. 1125, 125 S.Ct. 2938, 162 L.Ed.2d 863 (2005); United States v. Ross, 77 F.3d 1525, 1539-40 (7th Cir.1996). The Eleventh Circuit has explained that “this approach has the advantage of avoiding the necessity of distinguishing between cases in which ‘the law at the time of trial was settled and clearly contrary to the law at the time of appeal’ on the one hand and cases in which it was merely ‘unsettled’ on the other.” Smith, 402 F.3d at 1315. The Seventh Circuit has also contended that this practice better comports with the purpose of plain error review, which it described as an exception to the rule of forfeiture where the error is undebatable and significant, and not merely where the district court was at fault. Ross, 77 F.3d at 1539-40. It is the law of this circuit that we side with the latter view. We therefore accept the government’s concession, and find the district court’s error was plain. D. The Error Affected Cordery’s Substantial Rights To satisfy the third prong of plain error review, the appellant must show “a reasonable probability that, but for the error claimed, the result of the proceeding would have been different.” Gonzalez-Huerta, 403 F.3d at 733. At sentencing, the district court named three" }, { "docid": "22337382", "title": "", "text": "a defendant’s rehabilitative needs in lengthening a sentence. United States v. Henderson, 646 F.3d 223, 225 & n. 4 (5th Cir.2011). Now, however, the Supreme Court has expressly resolved the issue, holding that such considerations are impermissible. Thus, we must decide whether to judge the district court’s error at the time of Broussard’s sentencing or at the time of appeal. The Supreme Court has held that “where the law at the time of trial was settled and clearly contrary to the law at the time of appeal[,] it is enough that an error be ‘plain’ at the time of appellate consideration.” Johnson v. United States, 520 U.S. 461, 468, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997). The Supreme Court has never, however, addressed whether plain error would be established “where the error was unclear at the time of trial but becomes clear on appeal because the applicable law has been clarified.” Olano, 507 U.S. at 734, 113 S.Ct. 1770. A recent panel decision of this court would have us consider the plainness of the error as the law stood at the time of Broussard’s sentencing. Henderson, 646 F.3d at 225. That decision, however, does not account for the fact that the determination of when to judge the obviousness of an error has produced not only an inter-circuit split, but also an intra-circuit split on the question. United States v. Henderson, 665 F.3d 160, 163-64 (5th Cir.2011) (Haynes, J., dissenting from denial of petition for reh’g en banc). As Judge Haynes’s dissent notes, our earliest discussion of this issue, applying the Olano construction of plain error, resolved that we judge the plainness of the error at the time of appeal. United States v. Knowles, 29 F.3d 947, 951 (5th Cir.1994) (“It is of no consequence that [United States u] Lopez [, 2 F.3d 1342 (5th Cir.1993) ] was decided after the proceedings in the district court concluded. Since this case is on direct appeal, newly announced rules apply.” (cit ing Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987))). In this case, we will follow our" }, { "docid": "22041215", "title": "", "text": "is unsettled at the time of trial but becomes clear by the time of appeal. See, e.g., United States v. Cordery, 656 F.3d 1103, 1106-07 (10th Cir.2011) (adopting the “blanket rule” that plain error is established at the time of appeal, regardless of whether the error was “plain or obvious at the time of sentencing” or trial); United States v. Garcia, 587 F.3d 509, 520 (2d Cir.2009) (concluding that “[wjhether an error is ‘plain’ is determined by reference to the law as of the time of appeal” in a case where the law was unclear at the time of sentencing but later became clear (internal citation and quotation marks omitted)); United States v. Ziskind, 491 F.3d 10, 14 (1st Cir.2007) (citing Johnson for the proposition “that error is plain if the law is clear at the time of direct appellate review, even though governing law was unclear at time of trial”); United States v. Underwood, 446 F.3d 1340, 1343 (11th Cir.2006) (holding that “even though the error was not plain at the time of sentencing, the subsequent issuance of [a Supreme Court opinion] establishes that the error is plain at the time of appellate consideration”). Additionally, the Third, Sixth, Seventh, and Eighth Circuits state that they would evaluate the plainness of error at the time of appeal, although these circuits have not expressly decided the issue of whether this principle applies when the error is unclear at the time of trial. See United States v. Crosgrove, 637 F.3d 646, 656-57 (6th Cir. 2011) (“However, the requirement that the error be plain means plain under current law .... For plain error review, current law is the law as it exists at the time of review.” (internal citation and quotation marks omitted)); United States v. Baumgardner, 85 F.3d 1305, 1308 (8th Cir.1996) (holding that “the plain error prong of the Olano standard should be determined in accordance with the law at the time of appeal”); United States v. Ross, 77 F.3d 1525, 1539 (7th Cir.1996) (“[W]e now hold that for purposes of Rule 52(b), a ‘plain’ error is one that is clear" }, { "docid": "8897437", "title": "", "text": "the time of the appeal.” (quotation omitted) (relying on Gonzalez-Huer to)); United States v. Meacham, 567 F.3d 1184, 1190 (10th Cir.2009) (finding an error “plain” because the law was “clear or obvious at the time of the appeal,” even though the clarifying case was published after the district court’s contested decision); United States v. Mendoza, 543 F.3d 1186, 1192 (10th Cir.2008) (“[The plain error] standard applies to the law in place at the time of review rather than at the time of sentencing.”). It is worth noting, however, that the question of whether an error must be plain at the time of trial or merely at the time of appeal has divided the circuits. In Olano, while clarifying the application of plain error review, the Supreme Court held only that “[a]t a minimum, a court of appeals cannot correct an error pursuant to Rule 52(b) unless the error is clear under current law.” 507 U.S. at 734, 113 S.Ct. 1770. The Court chose not to address “the special case where the error was unclear at the time of trial but becomes clear on appeal because the applicable law has been clarified.” Id. The Court subsequently offered a further refinement: “where the law at the time of trial was settled and clearly contrary to the law at the time of appeal [] it is enough that an error be ‘plain’ at the time of appellate consideration.” Johnson v. United States, 520 U.S. 461, 468, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997). But Johnson brings no clarity to cases such as the one at hand, where the law at the time of the contested decision was unsettled, but clarified while the appeal was pending. The Ninth and D.C. Circuits have concluded that Johnson articulates a narrow exception to an otherwise broad rule that an error is “plain” only if it was clear at the time of the district court’s decision. See United States v. Mouling, 557 F.3d 658, 663-64 (D.C.Cir.2009); United States v. Turman, 122 F.3d 1167, 1170 (9th Cir.1997). In Turman, the Ninth Circuit explained “we expect district judges to be" }, { "docid": "8521344", "title": "", "text": "Raether, 82 F.3d 192, 193-94 (8th Cir. 1996). Because Baumgardner’s counsel did not object to the court’s decision at trial, however, we must review this issue under the plain error standard of Rule 52(b) of the Federal Rules of Criminal Procedure. This court has the limited authority to correct forfeited errors when (1) there was an error at trial, (2) the error is plain, and (3) the error affected the defendant’s substantial rights. United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 1776-77, 123 L.Ed.2d 508 (1993); United States v. Ryan, 41 F.3d 361, 366 (8th Cir.1994) (en banc), cert. denied, — U.S. -, 115 S.Ct. 1793, 131 L.Ed.2d 721 (1995). In addition, we should not exercise our authority under 52(b) unless the error results in a miscarriage of justice or “seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.” Olano, 507 U.S. at 732, 113 S.Ct. at 1776 (quoting United States v. Atkinson, 297 U.S. 157, 160, 56 S.Ct. 391, 392, 80 L.Ed. 555 (1936)). Because the district court’s failure to submit the question of materiality to the jury deviates from the Supreme Court’s decision in Gaudin, the first prong of the Olano standard is met. We next consider whether this error is “plain.” In this case, the question turns on whether we look to the law at the time of the trial or on appeal. At trial, the district court’s decision was in accord with our circuit’s firmly established law— materiality in a section 1001 case was a matter of law decided by the court. Johnson, 937 F.2d at 396. On appeal, with the benefit of hindsight, the district court’s decision constitutes clear error. Gaudin, — U.S. at -, 115 S.Ct. at 2320. The Olano Court explicitly acknowledged, but left unanswered, this precise situation: We need not consider the special case where the error was unclear at the time of trial but becomes clear on appeal because the applicable law has been clarified. At a minimum, the Court of Appeals cannot correct an error pursuant to Rule 52(b) unless the error is clear under" }, { "docid": "22337381", "title": "", "text": "defendant must demonstrate that the error affected the outcome of the district court proceedings. Puckett, 129 S.Ct. at 1429; United States v. Dickson, 632 F.3d 186, 191 (5th Cir.2011) (stating that, in the sentencing context, the defendant must demonstrate a “reasonable probability” that, but for the district court’s error, he would have received a lesser sentence); United States v. Williams, 620 F.3d 483, 496 (5th Cir.2010) (same). Finally, “[w]e will exercise our discretion to correct plain error if it seriously affected the fairness, integrity, or public reputation of the judicial proceeding.” United States v. Murray, 648 F.3d 251, 253 (5th Cir.2011). As detailed above, the district court committed error in relying on Broussard’s rehabilitative needs when it determined the length of his sentence. We now must determine if the district court’s error was clear or plain, an inquiry complicated by the fact that the Supreme Court decided Tapia after Broussard had been sentenced. At the time of his sentencing, this court had never squarely addressed whether it was permissible for a sentencing court to consider a defendant’s rehabilitative needs in lengthening a sentence. United States v. Henderson, 646 F.3d 223, 225 & n. 4 (5th Cir.2011). Now, however, the Supreme Court has expressly resolved the issue, holding that such considerations are impermissible. Thus, we must decide whether to judge the district court’s error at the time of Broussard’s sentencing or at the time of appeal. The Supreme Court has held that “where the law at the time of trial was settled and clearly contrary to the law at the time of appeal[,] it is enough that an error be ‘plain’ at the time of appellate consideration.” Johnson v. United States, 520 U.S. 461, 468, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997). The Supreme Court has never, however, addressed whether plain error would be established “where the error was unclear at the time of trial but becomes clear on appeal because the applicable law has been clarified.” Olano, 507 U.S. at 734, 113 S.Ct. 1770. A recent panel decision of this court would have us consider the plainness of the error" }, { "docid": "22627255", "title": "", "text": "not correct the error unless Rule 52(b) applied. The Rule, however, applies only if the error was “plain.” The error was not plain before Tapia• it was plain after Tapia. Thus, the Fifth Circuit had to determine the temporal scope of Rule 52(b)’s words “plain error.” The appeals court decided that Rule 52(b) did not give it the authority to correct the trial court’s error. 646 F. 3d, at 225. The appellate panel pointed out that, “[b]efore Tapia, there was a circuit split on whether a district court can consider a defendant’s rehabilitative needs to lengthen a sentence.” Ibid. The panel added that the Fifth Circuit had “not pronounced on the question” before Henderson was sentenced. Ibid. Thus, at the time when the District Court reached its decision, the law in that Circuit was unsettled. The Court of Appeals concluded that “Henderson cannot show that the error in his case was plain, . . . because an error is plain only if it was clear under current law at the time of trial.” Ibid, (internal quotation marks omitted). The Fifth Circuit denied rehearing en banc by a divided vote. 665 F. 3d 160 (2011) (per curiam) (7 to 10). Henderson filed a petition for certiorari. And we granted the petition to resolve differences among the Circuits. Compare, e. g., United States v. Cordery, 656 F. 3d 1103, 1107 (CA10 2011) (time of review), with, e. g., United States v. Mouling, 557 F. 3d 658, 664 (CADC 2009) (time of error). II A Is the time for determining “plainness” the time when the error is committed, or can an error be “plain” if it is not plain until the time the error is reviewed? The question reflects a conflict between two important, here competing, legal principles. On the one hand, “ ‘[n]o procedural principle is more familiar to this Court than that a constitutional right,’ or a right of any other sort, ‘may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it.’ ”" }, { "docid": "22041323", "title": "", "text": "of Evidence also incorporate the basic rules. See United States v. Seale, 600 F.3d 473, 485 (5th Cir.2010) (\"Fed. R.Evid. 103(a)(1) and the cases interpreting that rule establish that when the objection is not specific as to the legal basis for the objection, the error is not preserved and can only be reviewed for plain error.”). . The Court's holding in Olano does not create any reason to question the continuing applicability of the Court's conclusion in Frady. United States v. Olano, 507 U.S. 725, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). In Ola-no, the Court merely held that \" plain’ is synonymous with 'clear' or, equivalently, 'obvious.'” Id. at 734, 113 S.Ct. 1770. The Court then noted that it \"need not consider the special case where the error was unclear at the time of trial but becomes clear on appeal because the applicable law has been clarified.” Id. It simply noted that \"[a]t a minimum, court of appeals cannot correct an error pursuant to Rule 52(b) unless the error is clear under current law.” Id. Accordingly, because Olano explicitly declined to address this issue, it did nothing to expand Rule 52(b)’s exception to the rule of forfeiture. . Contrary to Judge Owen’s assertion, I do not interpret Johnson to create \"an exception to Rule 52(b).” Owen Dissent at 1. Rather, I agree with two of our sister circuits that \"Johnson represents an exception to [Rule 52(b)’s] general rule that error is assessed as of the time of trial, an exception Johnson carved out because when the law is settled at the time of trial, 'objections are pointless.' ” See United States v. Mouling, 557 F.3d 658, 664 (D.C.Cir.2009) (quoting Turman, 122 F.3d at 1170). I also disagree with Judge Owen’s contention that the Court in Johnson did not base its holding on the fact that a contrary rule \"would result in counsel’s inevitably making a long and virtually useless laundry list of objections to rulings that were plainly supported by existing precedent.\" Owen Dissent at 457 (quoting Johnson, 520 U.S. at 468, 117 S.Ct. 1544). Instead, the Court’s \"agreement\"" }, { "docid": "22337391", "title": "", "text": "U.S. 717, 718, 82 S.Ct. 1287, 8 L.Ed.2d 798 (1962) (recognizing that, ”[i]n exceptional circumstances, especially in criminal cases, appellate courts, in the public interest, may, of their own motion, notice errors to which no exception has been taken, if the errors are obvious, or if they otherwise seriously affect the fairness, integrity, or public reputation of judicial proceedings” (quoting United States v. Atkinson, 297 U.S. 157, 160, 56 S.Ct. 391, 80 L.Ed. 555 (1936))); United States v. Pineda-Ortuno, 952 F.2d 98, 105 (5th Cir.1992) (“Where plain error is apparent, the issue may be raised sua sponte by this court even though it is not assigned or specified.”); United States v. Montemayor, 703 F.2d 109, 114 n. 7 (5th Cir.1983) (“An appellate court will not consider sua sponte an argument not raised in the court below or urged by the litigants except to prevent a miscarriage of justice.”). . Compare United States v. Gonzalez-Aparicio, 663 F.3d 419, 428 (9th Cir.2011) (“When the state of the law is unclear at the time of trial and is then clarified by subsequent authority, the district court's error is still not considered plain .... Therefore, plain error ‘normally means error plain at the time the district court made the alleged mistake.’ ”); United States v. Mouling, 557 F.3d 658, 664 (D.C.Cir.) (\"We therefore hold that where, as here, the law was unsettled at the time of trial but becomes settled by the time of appeal, the general rule applies, and we assess error as of the time of trial.”), cert. denied, - U.S. -, 130 S.Ct. 795, 175 L.Ed.2d 559 (2009), with United States v. Crosgrove, 637 F.3d 646, 656-57 (6th Cir.2011) (“However, the requirement that the error be plain means ‘plain under current law.’ ... For plain error review, current law ‘is the law as it exists at the time of review.’ ”); United States v. Gamez, 577 F.3d 394, 400 (2d Cir.2009) (per curiam) (\"A court of appeals cannot correct an error pursuant to Rule 52(b) unless the error is clear under current law .... Whether an error is ‘plain’ is determined" }, { "docid": "22041214", "title": "", "text": "explicitly adopted the “time of appeal” rationale. The Ninth and District of Columbia Circuits are the only circuits squarely holding that if the law is unclear at the time of trial and later becomes clear, the error is evaluated based on the law as it existed at the time of trial. See, e.g., United States v. Mouling, 557 F.3d 658, 664 (D.C.Cir.2009) (“We therefore hold that where, as here, the law was unsettled at the time of trial but became settled by the time of appeal, the general rule applies, and we assess error as of the time of trial.”); United States v. Turman, 122 F.3d 1167, 1170 (9th Cir.1997) (“When the state of the law is unclear at trial and only becomes clear as a result of later authority, the district court’s error is perforce not plain; we expect district judges to be knowledgeable, not clairvoyant.”). In contrast, the First, Second, Tenth, and Eleventh Circuits have explicitly held that the plainness of error is evaluated at the time of appellate review when the law is unsettled at the time of trial but becomes clear by the time of appeal. See, e.g., United States v. Cordery, 656 F.3d 1103, 1106-07 (10th Cir.2011) (adopting the “blanket rule” that plain error is established at the time of appeal, regardless of whether the error was “plain or obvious at the time of sentencing” or trial); United States v. Garcia, 587 F.3d 509, 520 (2d Cir.2009) (concluding that “[wjhether an error is ‘plain’ is determined by reference to the law as of the time of appeal” in a case where the law was unclear at the time of sentencing but later became clear (internal citation and quotation marks omitted)); United States v. Ziskind, 491 F.3d 10, 14 (1st Cir.2007) (citing Johnson for the proposition “that error is plain if the law is clear at the time of direct appellate review, even though governing law was unclear at time of trial”); United States v. Underwood, 446 F.3d 1340, 1343 (11th Cir.2006) (holding that “even though the error was not plain at the time of sentencing," }, { "docid": "22041213", "title": "", "text": "at the time of trial), cert. granted, — U.S.-, — S.Ct.-, — L.Ed.2d-(U.S. June 25, 2012) (No. 11-9307, 2012 WL 894491). The earliest of our cases to interpret Olano held that plain error is to be evaluated at the time of appeal. See United States v. Knowles, 29 F.3d 947, 951 (5th Cir.1994) (“It is of no consequence that [the appellate case that clarified the law] was decided after the proceedings in the district court concluded. Since this case is on direct appeal, newly announced rules apply.”) (citing Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987)). Broussard resolved the issue by following Knowles, as it is the earlier opinion on this issue. Broussard, 669 F.3d at 554-55; see also United States v. Hudson, 457 Fed.Appx. 417, 419-20 (5th Cir.2012) (per curiam) (unpublished). Of course, in this en banc case, we are in a position to harmonize our prior precedents and speak with one voice. Our sister circuits also are not uniform, but the vast majority have either implicitly or explicitly adopted the “time of appeal” rationale. The Ninth and District of Columbia Circuits are the only circuits squarely holding that if the law is unclear at the time of trial and later becomes clear, the error is evaluated based on the law as it existed at the time of trial. See, e.g., United States v. Mouling, 557 F.3d 658, 664 (D.C.Cir.2009) (“We therefore hold that where, as here, the law was unsettled at the time of trial but became settled by the time of appeal, the general rule applies, and we assess error as of the time of trial.”); United States v. Turman, 122 F.3d 1167, 1170 (9th Cir.1997) (“When the state of the law is unclear at trial and only becomes clear as a result of later authority, the district court’s error is perforce not plain; we expect district judges to be knowledgeable, not clairvoyant.”). In contrast, the First, Second, Tenth, and Eleventh Circuits have explicitly held that the plainness of error is evaluated at the time of appellate review when the law" } ]

[ { "docid": "19652679", "title": "", "text": "prove acceptable. Ante, p. 310. The brief and selective references, in my opinion above and in this note, to the opinions of other Justices obviously do not adequately summarize the thoughtful and scholarly views set forth in their full opinions. I have tried merely to select what seem to me to be the respective points of primary emphasis in each of the majority’s opinions. While statutes in 40 States permit capital punishment for a variety of crimes,, the constitutionality of a very few mandatory statutes remains undecided. See concurring opinions by MR. Justice Stewart and Mr. Justice White. Since Rhode Island’s only capital statute — murder by a life term prisoner — is mandatory, no law in that State is struck down by virtue of the Court’s decision today. For a thorough presentation of the history of the Cruel and Unusual Punishment Clause see Mr. Justice Marshall’s opinion today, ante, at 316-328. See also Weems v. United States, 217 U. S. 349, 389-409 (1910) (White, J., dissenting); O’Neil v. Vermont, 144 U. S. 323, 337 (1892) (Field, J., dissenting); Granucci, “Nor Cruel and Unusual Punishments Inflicted:” The Original Meaning, 57 Calif. L. Rev. 839 (1969). The Court pointed out that the Eighth Amendment applied only to the Federal Government and not to the States. The Court’s power in relation to state action was limited to protecting privileges and immunities and to assuring due process of law, both within the Fourteenth Amendment. The standard — for purposes of due process— was held to be whether the State had exerted its authority, “within the limits of those fundamental principles of liberty and justice which lie at the base of all our civil and political institutions.” 136 U. S., at 448. The State of Georgia, in No. 69-5003 and No. 69-5030, has placed great emphasis on this discussion in In re Kemmler, 136 U. S. 436 (1890), and has urged that the instant cases should all be decided under the more expansive tests of due process rather than under the Cruel and Unusual Punishments Clause per se. Irrespective whether the decisions of this" } ]

[ { "docid": "13541319", "title": "", "text": "leather strap. It is more the reasoning of these two cases which persuades us than the similarity of the practices to that complained of in our instant case. • We have previously quoted the holding of Estelle v. Gamble, supra. But the reasoning supplied by Mr. Justice Marshall’s opinion is certainly not limited by its terms to the medical treatment problem with which he was dealing: The history of the constitutional prohibition of “cruel and unusual punishments” has been recounted at length in prior opinions of the Court and need not be repeated here. See, e. g., Gregg v. Georgia, 428 U.S. 153, 169-173 [96 S.Ct. 2903, 2909, 49 L.Ed.2d 859] (1976) (joint opinion of Stewart, Powell, and Stevens, JJ. (hereinafter joint opinion)); see also Granucci, Nor Cruel and Unusual Punish ment Inflicted: The Original Meaning, 57 Calif.L.Rev. 839 (1969). It suffices to note that the primary concern of the drafters was to proscribe “torture[s]” and other “barbar[ous]” methods of punishment. Id., at 842. Accordingly, this Court firs c applied the Eighth Amendment by comparing challenged methods of execution to concededly inhuman techniques of punishment. See Wilkerson v. Utah, 99 U.S. 130, 136 [25 L.Ed. 345] (1878) (“[I]t Is safe to affirm that punishments of torture . . . and all others in the same line of unnecessary cruelty, are forbidden by that amendment . . ”); In re Kemmler, 136 U.S. 436, 447 [10 S.Ct. 930, 933, 34 L.Ed. 519] (1890) (“Punishments are cruel when they involve torture or a lingering death . .”). Our more recent cases, however, have held that the Amendment proscribes more than physically barbarous punishments. See, e. g., Gregg v. Georgia, supra [428 U.S.] at 171 [96 S.Ct. at 2924] (joint opinion); Trop v. Dulles, 356 U.S. 86, 100-101 [78 S.Ct. 590, 597, 598, 2 L.Ed.2d 596] (1958); Weems v. United States, 217 U.S. 349, 373 [30 S.Ct. 544, 551, 54 L.Ed. 793] (1910). The Amendment embodies “broad and idealistic concepts of dignity, civilized standards, humanity, and decency . . . ,” Jackson v. Bishop, 404 F.2d 571, 579 (CA8 1968), against which we" }, { "docid": "22248780", "title": "", "text": "See Weems v. United States, 217 U.S. 349, 372-73, 30 S.Ct. 544, 551, 54 L.Ed. 793 (1910). The Framers understood that our society’s mores would evolve, and that some methods which had once been widely employed would become unacceptable to society, just as the torturous and barbaric punishments of the Stuarts had become unacceptable by the Framers’ own time. See id. at 372, 30 S.Ct. at 551. They therefore framed a prohibition on cruel and unusual punishments which is dynamic and “progressive, and is not fastened to the obsolete but may acquire meaning as public opinion becomes enlightened by a humane justice.” Id. at 378, 30 S.Ct. at 553. Second, the Court has expanded the amendment’s coverage beyond its prohibition on barbarous methods of punishment, to encompass such protections as a guarantee that penalties will be proportionate to the offenses for which they are imposed, see, e.g., Coker v. Georgia, 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977), and a safeguard against inhumane conditions of confinement, including inadequate medical, care. See, e.g., Helling v. McKinney, — U.S. -, 113 S.Ct. 2475, 125 L.Ed.2d 22 (1993); Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). Despite these developments, the fundamental purpose of the Eighth Amendment has not changed: the question we face today — whether a particular method of punishment is uncivilized and barbaric — involves the core prohibition embodied in the Eighth Amendment. As the Court made clear in Trop, a punishment that is incompatible with our evolving standards of decency violates the Cruel and Unusual Punishments Clause. In addition, a punishment violates the Clause if it involves “the unnecessary and wanton infliction of pain.” Gregg v. Georgia, 428 U.S. 153, 173, 96 S.Ct. 2909, 2925, 49 L.Ed.2d 859 (1976) (opinion of Stewart, Powell, Stevens, JJ.). “[Pjunishments ‘incompatible with the evolving standards of decency that mark the progress of a maturing society1 or ‘involving] the unnecessary and wanton infliction of pain’ are ‘repugnant to the Eighth Amendment.’” Hudson v. McMillian, — U.S. -, -, 112 S.Ct. 995, 1001, 117 L.Ed.2d 156 (1992) (emphasis added)" }, { "docid": "22393762", "title": "", "text": "provides: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” The Eighth Amendment is incorporated in the Due Process Clause of the Fourteenth Amendment. E. g., Robinson v. California, 370 U. S. 660, 666 (1962); Louisiana ex rel. Francis v. Resweber, 329 U. S. 459, 463 (1947) (plurality opinion). See Solem v. Helm, 463 U. S., at 289; id., at 306 (Burger, C. J., dissenting); Enmund v. Florida, 458 U. S. 782, 797 (1982); Beck v. Alabama, 447 U. S. 625, 637-638 (1980); Rummel v. Estelle, 445 U. S. 263, 272 (1980); Lockett v. Ohio, 438 U. S. 586, 604-605 (1978) (plurality opinion); Coker v. Georgia, 433 U. S. 584, 598 (1977) (plurality opinion); Gardner v. Florida, 430 U. S. 349, 357-368 (1977) (plurality opinion); Gregg v. Georgia, 428 U. S. 153, 188 (1976) (opinion of Stewart, Powell, and Stevens, JJ.). “Death is truly an awesome punishment. The calculated killing of a human being by the State involves, by its very nature, a denial of the executed person’s humanity. The contrast with the plight of a person punished by imprisonment is evident. An individual in prison does not lose ‘the right to have rights.’ A prisoner retains, for example, the constitutional rights to the free exercise of religion, to be free of cruel and unusual punishments, and to treatment as a ‘person’ for purposes of due process of law and the equal protection of the laws. A prisoner remains a member of the human family. Moreover, he retains the right of access to the courts. His punishment is not irrevocable. Apart from the common charge, grounded upon the recognition of human fallibility, that the punishment of death must inevitably be inflicted upon innocent men, we know that death has been the lot of men whose convictions were unconstitutionally secured in view of later, retroactively applied, holdings of this Court. The punishment itself may have been unconstitutionally inflicted, yet the finality of death precludes relief. An executed person has indeed ‘lost the right to have rights.’ As one 19th century proponent of punishing criminals" }, { "docid": "22706502", "title": "", "text": "is that the death sentence imposed by the Florida trial court, and affirmed by the Florida Supreme Court, is unconstitutionally disproportionate to the role he played in the robbery and murders of the Kerseys. In particular, he contends that because he had no actual intent to kill the victims — in effect, because his behavior and intent were no more blameworthy than that of any robber — capital punishment is too extreme a penalty. In Gregg v. Georgia, 428 U. S. 153 (1976), a majority of this Court concluded that the death penalty does not invariably violate the Cruel and Unusual Punishments Clause of the Eighth Amendment. See id., at 187 (opinion of Stewart, Powell, and Stevens, JJ.) (“[W]hen a life has been taken deliberately by the offender, we cannot say that the punishment is invariably disproportionate to the crime. It is an extreme sanction, suitable to the most extreme of crimes”) (footnote omitted); id., at 226 (opinion of White, J.) (rejecting the argument that “the death penalty, however imposed and for whatever crime, is cruel and unusual punishment”); id., at 227 (Blackmun, J., concurring in judgment). In no case since Gregg and its companion cases, has this Court retreated from that position. Recognizing the constitutional ity of the death penalty, however, only marks the beginning of the inquiry, for Earl Enmund was not convicted of murder as it is ordinarily envisioned — a deliberate and premeditated, unlawful killing. Rather, through the doctrine of accessorial liability, the petitioner has been convicted of two murders that he did not specifically intend. Thus, it is necessary to examine the concept of proportionality as enunciated in this Court’s cases to determine whether the penalty imposed on Earl Enmund is unconstitutionally disproportionate to his crimes. A The Eighth Amendment concept of proportionality was first fully expressed in Weems v. United States, 217 U. S. 349 (1910). In that case, defendant Weems was sentenced to 15 years at hard labor for falsifying a public document. After remarking that “it is a precept of justice that punishment for crime should be graduated and proportioned to offense,”" }, { "docid": "23355823", "title": "", "text": "punishment on its prisoners, the Supreme Court held, because its conditions “resulted in unquestioned and serious deprivation of basic human needs.” Rhodes, 452 U.S. at 347, 101 S.Ct. at 2399. Although the Supreme Court recognizes there is “no static ‘test’ ... by which courts [can] determine whether conditions of confinement are cruel and unusual,” Rhodes, 452 U.S. at 346, 101 S.Ct. at 2399, the inquiry that courts must conduct in eighth amendment cases is not consequently less exacting. “ ‘Eighth Amendment judgments,’ ” the Court teaches, “ ‘should neither be nor appear to be merely the subjective views’ of judges.” Rhodes, 452 U.S. at 346, 101 S.Ct. at 2399 (quoting Rummel v. Estelle, 445 U.S. 263, 275, 100 S.Ct. 1133, 1140, 63 L.Ed.2d 382 (1980)). Rather, these judgments “ ‘should be informed by objective factors to the maximum possible extent.’ ” Rummel v. Estelle, 445 U.S. at 274-75, 100 S.Ct. at 1139 (quoting Coker v. Georgia, 433 U.S. 584, 592, 97 S.Ct. 2861, 2866, 53 L.Ed.2d 982 (1977) (plurality opinion)), quoted in Rhodes v. Chapman, 452 U.S. at 346, 101 S.Ct. at 2399. Impartiality and objectivity, however, do not provide a haven from judicial responsibility. “ ‘[T]he Constitution contemplates that in the end [a court’s] own judgment will be brought to bear on the question of the acceptability’ of a given punishment.” Rhodes, 452 U.S. at 346, 101 S.Ct. at 2399 (quoting Coker v. Georgia, 433 U.S. at 597, 97 S.Ct. at 2868; citing Gregg v. Georgia, 428 U.S. 153, 182, 96 S.Ct. 2909, 2929, 49 L.Ed.2d 859 (1976)). The district courts bear an especially critical burden of responsibility in eighth amendment cases involving prison conditions, because “[a] reviewing court is generally limited in its perception of a case to the findings of a trial court,” Rhodes, 452 U.S. at 365, 101 S.Ct. at 2408 (Brennan, Blackmun and Stevens, JJ., concurring). That this case concerns Pennsylvania’s death rows and is a class action on behalf of all the state’s death row prisoners, increases the solemn and sensitive nature of the judicial inquiry. The district court’s opinion, in our view, reflects" }, { "docid": "13541311", "title": "", "text": "what may be. Under any other rule a constitution would indeed be as easy of application as it would be deficient in efficacy and power. Its general principles would have little value and be converted by precedent into impotent and lifeless formulas. Rights declared in words might be lost in reality. And this has been recognized. The meaning and vitality of the Constitution have developed against narrow and restrictive construction. * * * * * sfs The [cruel and unusual punishment] clause of the Constitution in the opinion of the learned commentators may be therefore progressive, and is not fastened to the obsolete but may acquire meaning as public opinion becomes enlightened by a humane justice. See Ex parte Wilson, 114 U.S. 417, 427 [5 S.Ct. 935, 29 L.Ed. 89]; Mackin v. United States, 117 U.S. 348, 350, [6 S.Ct. 777, 29 L.Ed. 909]. This interpretation of the expansive role of the Eighth Amendment has been cited or repeated frequently in Supreme Court opinions. Trop v. Dulles, 356 U.S. 86, 78 S.Ct. 590, 2 L.Ed.2d 596 (1958); Gregg v. Georgia, 428 U.S. 153, 172-73, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976) (joint opinion of Stewart, Powell, and Stevens, JJ.); Estelle v. Gamble, 429 U.S. 97, 102, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). In Trop v. Dulles, supra at 101, 78 S.Ct. at 598, the Supreme Court, citing Weems, supra, held: “The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.” In Gregg v. Georgia, supra at 173, 96 S.Ct. at 2925, the Court held repugnant to the Eighth Amendment punishments which “involve the unnecessary and wanton infliction of pain.” Even more recently the Supreme Court has held: We therefore conclude that deliberate indifference to serious medical needs of prisoners constitutes the “unnecessary and wanton infliction of pain,” Gregg v. Georgia, supra, at 173 [, 96 S.Ct. 2909 at 2925] (joint opinion), proscribed by the Eighth Amendment. This is true whether the indifference is manifested by prison doctors in their response to the prisoner’s needs or by prison guards in" }, { "docid": "22608386", "title": "", "text": "next applied the principle to invalidate a criminal sentence in Robinson v. California, 370 U. S. 660 (1962). A 90-day sentence was found to be excessive for the crime of being “addicted to the use of narcotics.” The Court explained that “imprisonment for ninety days is not, in the abstract, a punishment which is either cruel or unusual.” Id., at 667. Thus there was no question of an inherently barbaric punishment. “But the question cannot be considered in the abstract. Even one day in prison would be a cruel and unusual punishment for the ‘crime’ of having a common cold.” Ibid. Most recently, the Court has applied the principle of proportionality to hold capital punishment excessive in certain circumstances. Enmund v. Florida, 458 U. S. 782 (1982) (death penalty excessive for felony murder when defendant did not take life, attempt to take life, or intend that a life be taken or that lethal force be used); Coker v. Georgia, 433 U. S. 584, 592 (1977) (plurality opinion) (“sentence of death is grossly disproportionate and excessive punishment for the crime of rape”); id., at 601 (Powell, J., concurring in judgment in part and dissenting in part) (“ordinarily death is disproportionate punishment for the crime of raping an adult woman”). And the Court has continued to recognize that the Eighth Amendment proscribes grossly disproportionate punishments, even when it has not been necessary to rely on the proscription. See, e. g., Hutto v. Finney, 437 U. S. 678, 685 (1978); Ingraham v. Wright, 430 U. S. 651, 667 (1977); Gregg v. Georgia, 428 U. S. 153, 171-172 (1976) (opinion of Stewart, Powell, and Stevens, JJ.); cf. Hutto v. Davis, 454 U. S. 370, 374, and n. 3 (1982) (per curiam) (recognizing that some prison sentences may be constitutionally disproportionate); Rummel v. Estelle, 445 U. S., at 274, n. 11 (same). C There is no basis for the State’s assertion that the general principle of proportionality does not apply to felony prison sentences. The constitutional language itself suggests no exception for imprisonment. We have recognized that the Eighth Amendment imposes “parallel limitations” on bail," }, { "docid": "13822624", "title": "", "text": "to consider any mitigating circumstances, statutory or not, in Lockett, the Court emphasized the importance of individualized consideration of each defendant and all circumstances in deciding whether or not to impose a sentence less than death. In Zant v. Stephens,-U.S. -, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983), the Supreme Court noted that “two themes guided the concern with eliminating arbitrariness in capital sentencing. First, the Court noted that no perfect procedure exists for deciding in which cases governmental authority should be used to impose death.” Id. at 2747 (citing Lockett v. Ohio, 438 U.S. at 605, 98 S.Ct. at 2965 (plurality opinion)). Second, the Court recognized that “because there is a quantative difference between death and any other permissible form of punishment, ‘there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case.’ ” Id. (citing Woodson v. North Carolina, 428 U.S. at 305, 96 S.Ct. at 2991 (Stewart, J., joined by Powell and Stevens, JJ.)). In determining whether Judge McMillan constitutionally imposed Moore’s death sentence, we do not substitute our judgment on the sentence. Rather, we examine whether Judge McMillan properly examined the factors surrounding the crime, carefully considering all mitigating circumstances, before exercising his discretion in a properly channeled fashion in making the awesome sentencing decision in accordance with a constitutional capital punishment mechanism. The Georgia death penalty system has channeled discretion to certain limited areas. See generally Zant v. Stephens, 250 Ga. 97, 297 S.E.2d 1 (1982). The defendant must have been accused and convicted of committing a crime for which the state allows imposition of the death penalty in accordance with the constitutional prohibition of cruel and unusual punishment. See Coker v. Georgia, 433 U.S. 584, 591-98, 97 S.Ct. 2861, 2865-69, 53 L.Ed.2d 982 (1977) (White, J., joined by Stewart, Blackmun, and Stevens, JJ.) (holding that though rape deserves serious punishment, the death penalty, which is unique in its severity and irreversibility, is an excessive penalty for the rapist who does not take a human life). In order absolutely to structure discretion while" }, { "docid": "19540331", "title": "", "text": "to Dr. Compton's expert testimony, consideration of the seven Briseno factors reinforced that relatedness conclusion. Given that Moore had failed to present sufficient evidence on intellectual functioning or related adaptive deficits, the CCA \"conclude[d] that for Eighth Amendment purposes,\" Moore had not shown he was intellectually disabled. 470 S.W.3d, at 527. Accordingly, he was not exempt from execution under Atkins . II A This Court's precedents have emphasized the importance of state legislative judgments in giving content to the Eighth Amendment ban on cruel and unusual punishment. \"Eighth Amendment judgments should not be ... merely the subjective views of individual Justices.\" Coker v. Georgia, 433 U.S. 584, 592, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977) (plurality opinion). For that reason, we have emphasized that \"judgment should be informed by objective factors to the maximum possible extent.\" Ibid. The \"clearest and most reliable objective evidence of contemporary values\" comes from state legislative judgments. Atkins, 536 U.S., at 312, 122 S.Ct. 2242 (internal quotation marks omitted). Such legislative judgments are critical because in \"a democratic society legislatures, not courts, are constituted to respond to the will and consequently the moral values of the people.\" Gregg v. Georgia, 428 U.S. 153, 175, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976) (joint opinion of Stewart, Powell, and Stevens, JJ.) (internal quotation marks omitted). And we have focused on state enactments in this realm because of the \"deference we owe to the decisions of the state legislatures under our federal system ... where the specification of punishments is concerned.\" Id., at 176, 96 S.Ct. 2909. For these reasons, we have described state legislative judgments as providing \"essential instruction\" in conducting the Eighth Amendment inquiry. Roper, 543 U.S., at 564, 125 S.Ct. 1183. Our decisions addressing capital punishment for the intellectually disabled recognize the central significance of state consensus. In holding that the Eighth Amendment prohibits the execution of intellectually disabled individuals in Atkins, the Court first identified a national consensus against the practice and then, applying our own \"independent evaluation of the issue,\" concluded that there was \"no reason to disagree\" with that consensus. 536 U.S.," }, { "docid": "22614681", "title": "", "text": "newly discovered évidence. Despite the State of Texas’ astonishing protestation to the contrary, see Tr. of Oral Arg. 37, I do not see how the answer can be anything but “yes.” A The Eighth Amendment prohibits “cruel and unusual punishments.” This proscription is not static but rather reflects evolving standards of decency. Ford v. Wainwright, 477 U. S., at 406; Gregg v. Georgia, 428 U. S. 153, 171 (1976) (opinion of Stewart, Powell, and Stevens, JJ.); Trop v. Dulles, 356 U. S. 86, 101 (1958) (plurality opinion); Weems v. United States, 217 U. S. 349, 373 (1910). I think it is crystal clear that the execution of an innocent person is “at odds with contemporary standards of fairness and decency.” Spaziano v. Florida, 468 U. S. 447, 465 (1984). Indeed, it is at odds with any standard of decency that I can imagine. This Court has ruled that punishment is excessive and unconstitutional if it is “nothing more than the purposeless and needless imposition of pain and suffering,” or if it is “grossly out of proportion to the severity of the crime.” Coker v. Georgia, 433 U. S. 584, 592 (1977) (plurality opinion); Gregg v. Georgia, 428 U. S., at 173 (opinion of Stewart, Powell, and Stevens, JJ.). It has held that death is an excessive punishment for rape, Coker v. Georgia, 433 U. S., at 592, and for mere participation in a robbery during which a killing takes place, Enmund v. Florida, 458 U. S. 782, 797 (1982). If it is violative of the Eighth Amendment to execute someone who is guilty of those crimes, then it plainly is violative of the Eighth Amendment to execute a person who is actually innocent. Executing an innocent person epitomizes “the purposeless and needless imposition of pain and suffering.” Coker v. Georgia, 433 U. S., at 592. The protection of the Eighth Amendment does not end once a defendant has been validly convicted and sentenced. In Johnson v. Mississippi, 486 U. S. 578 (1988), the petitioner had been convicted of murder and sentenced to death on the basis of three aggravating circumstances." }, { "docid": "13541318", "title": "", "text": "the end that his powers of resistance diminish, the bread and water diet is inconsistent with current minimum standards of respect for human dignity. The Court has no difficulty in determining that it is a violation of the eighth amendment. Jackson v. Bishop, 404 F.2d 571 (8th Cir. 1968); Wright v. McMann, 321 F.Supp. 127 (N.D.N.Y.1970). Landman v. Royster, 333 F.Supp. 621, 647 (E.D.Va.1971). See also Murphy v. Wheaton, 381 F.Supp. 1252 (N.D.Ill.1974), and Collins v. Schoonfield, 344 F.Supp. 257 (D.Md.1972). But see Novak v. Beto, 453 F.2d 661 (5th Cir. 1971), rehearing denied en banc, 456 F.2d 1303 (5th Cir.), cert, denied, 409 U.S. 968, 93 S.Ct. 279, 34 L.Ed.2d 233 (1972), and Ford v. Board of Managers of the New Jersey State Prison, 407 F.2d 937 (3d Cir. 1969). With all of this said, the cases which apply most strongly are two Eighth Amendment cases, one of which concerns lack of adequate medical treatment for a prisoner and the other the administration of punishment by Arkansas prison authorities by beating prisoners with a leather strap. It is more the reasoning of these two cases which persuades us than the similarity of the practices to that complained of in our instant case. • We have previously quoted the holding of Estelle v. Gamble, supra. But the reasoning supplied by Mr. Justice Marshall’s opinion is certainly not limited by its terms to the medical treatment problem with which he was dealing: The history of the constitutional prohibition of “cruel and unusual punishments” has been recounted at length in prior opinions of the Court and need not be repeated here. See, e. g., Gregg v. Georgia, 428 U.S. 153, 169-173 [96 S.Ct. 2903, 2909, 49 L.Ed.2d 859] (1976) (joint opinion of Stewart, Powell, and Stevens, JJ. (hereinafter joint opinion)); see also Granucci, Nor Cruel and Unusual Punish ment Inflicted: The Original Meaning, 57 Calif.L.Rev. 839 (1969). It suffices to note that the primary concern of the drafters was to proscribe “torture[s]” and other “barbar[ous]” methods of punishment. Id., at 842. Accordingly, this Court firs c applied the Eighth Amendment by comparing" }, { "docid": "6143811", "title": "", "text": "and Marshall engaged in a proportionality analysis, they also took into account elements of arbitrariness. In Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), Georgia’s statutory scheme for imposing the death penalty, designed to answer the charge of arbitrariness in Furman, was upheld as constitutional. There at least five Justices clearly accepted the argument that a punishment can violate the Eighth Amendment simply because it is disproportionately severe. They merely differed in their evaluations of the severity of the death penalty with respect to the crime charged. But most recently, of course, the Court utilized proportionality analysis to invalidate Georgia’s imposition of the death penalty for the crime of rape in certain aggravated circumstances. Coker v. Georgia, 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977). The Court’s methodology was to focus on the nature of the crime, the punishment for other crimes in the same jurisdiction, and the punishment for the same crime in other jurisdictions — a classic proportionality approach. B. Lower Courts State and federal courts generally regard Weems as establishing the principle that a punishment may be unconstitutionally cruel because it is disproportionate to the offense. However, the rule has infrequently been invoked to invalidate punishments. For example, Hemans v. United States, 163 F.2d 228 (6th Cir.), cert. denied, 332 U.S. 801, 68 S.Ct. 100, 92 L.Ed. 380 (1947), said that “long-term imprisonment could be so disproportionate to the offense as to fall within the inhibition [of the Eighth Amendment],” id. at 237, but held that the statutory maximum of five years’ imprisonment for fleeing to avoid giving testimony was not excessive. Kasper v. Brittain, 245 F.2d 92, 96 (6th Cir.), cert. denied, 355 U.S. 834, 78 S.Ct. 54, 2 L.Ed.2d 46 (1957), cited Weems but articulated a fairly strict test of constitutionality: “Punishment is not ‘cruel and unusual,’ unless it is so greatly disproportionate to the offence committed as to be completely arbitrary and shocking to the sense of justice.” Id. at 96. The court held that a one-year sentence for contempt of court in willfully violating a court" }, { "docid": "22248781", "title": "", "text": "v. McKinney, — U.S. -, 113 S.Ct. 2475, 125 L.Ed.2d 22 (1993); Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). Despite these developments, the fundamental purpose of the Eighth Amendment has not changed: the question we face today — whether a particular method of punishment is uncivilized and barbaric — involves the core prohibition embodied in the Eighth Amendment. As the Court made clear in Trop, a punishment that is incompatible with our evolving standards of decency violates the Cruel and Unusual Punishments Clause. In addition, a punishment violates the Clause if it involves “the unnecessary and wanton infliction of pain.” Gregg v. Georgia, 428 U.S. 153, 173, 96 S.Ct. 2909, 2925, 49 L.Ed.2d 859 (1976) (opinion of Stewart, Powell, Stevens, JJ.). “[Pjunishments ‘incompatible with the evolving standards of decency that mark the progress of a maturing society1 or ‘involving] the unnecessary and wanton infliction of pain’ are ‘repugnant to the Eighth Amendment.’” Hudson v. McMillian, — U.S. -, -, 112 S.Ct. 995, 1001, 117 L.Ed.2d 156 (1992) (emphasis added) (quoting Estelle v. Gamble, 429 U.S. 97, 102-03, 97 S.Ct. 285, 290, 50 L.Ed.2d 251 (1976)). We recognized both of these aspects to the Eighth Amendment inquiry in Haygood v. Younger, 769 F.2d 1350, 1354 (9th Cir.1985). The analysis set forth in these cases has been applied, expressly or implicitly, in every Eighth Amendment case in recent years. As is often the case in contemporary jurisprudence, the two-part analysis that the Supreme Court reiterated in Hudson, and that we followed in Haygood, is somewhat artificial. In any Eighth Amendment case, our ultimate inquiry is always whether the punishment is consistent with evolving standards of decency. See, e.g., Gregg, 428 U.S. at 173, 96 S.Ct. at 2925 (opinion of Stewart, Powell, Stevens, JJ.). The unnecessary infliction of pain is merely one way in which a punishment can violate these standards. However, because unnecessary infliction of pain is the most common and most readily measurable example of inconsistency with our evolving standards of decency, the eases frequently treat it as a separate form of violation.- Thus, if" }, { "docid": "22608450", "title": "", "text": "life imprisonment with the possibility of parole as to permit it to apply the proportionality review used in the death penalty cases, e. g., Coker v. Georgia, 433 U. S. 684 (1977), to the former although not the latter. Nor would such an argument be tenable. As was noted in Woodson v. North Carolina, 428 U. S. 280, 306 (1976) (opinion of Stewart, Powell, and Stevens, JJ.): “[T]he penalty of death is qualitatively different from a sentence of imprisonment, however long. Death, in its finality, differs more from life imprisonment than a 100-year prison term differs from one of only a year or two. Because of that qualitative difference, there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case.” The greater need for reliability in death penalty cases cannot support a distinction between a sentence of life imprisonment with possibility of parole and a sentence of life imprisonment without possibility of parole, especially when an executive commutation is permitted as in South Dakota. Compare, e. g., Granucci, “Nor Cruel and Unusual Punishments Inflicted:” The Original Meaning, 57 Calif. L. Rev. 839 (1969); Schwartz, Eighth Amendment Proportionality Analysis and the Compelling Case of William Rummel, 71 J. Crim. L. & Criminology 378, 379-382 (1980); Katkin, Habitual Offender Laws: A Reconsideration, 21 Buffalo L. Rev. 99, 115 (1971), with, e. g., Wheeler, Toward a Theory of Limited Punishment: An Examination of the Eighth Amendment, 24 Stan. L. Rev. 838, 853-855 (1972); Comment, The Eighth Amendment, Beccaria, and the Enlightenment: An Historical Justification for the Weems v. United States Excessive Punishment Doctrine, 24 Buffalo L. Rev. 783 (1975). In 1892, the dissent in O’Neil v. Vermont, 144 U. S. 323, 339-340 (1892) (Field, J., dissenting), argued that the Eighth Amendment “is directed ... against all punishments which by their excessive length or severity are greatly disproportioned to the offenses charged.” Before and after O’Neil, most authorities thought that the Eighth Amendment reached only the mode of punishment and not the length of sentences. See, e. g., Note, 24 Harv. L." }, { "docid": "23376352", "title": "", "text": "as arbiters of the Constitution . . . ” and “should be tendered only as to these necessary or essential concomitants of incarceration.” Newman v. State of Alabama, 503 F.2d 1320, 1329 (5th Cir. 1974), cert. den., 421 U.S. 948, 95 S.Ct. 1680, 44 L.Ed.2d 102 (1975). Williams v. Edwards, 547 F.2d 1206, 1212 (5th Cir. 1977). This court believes that the Eighth Amendment is not limited to tempering only the infliction of cruel and unusual punishment on the physical body; its protections extend to the whole person as a human being. At bottom, then, the Cruel and Unusual Punishments Clause prohibits the infliction of uncivilized and inhuman punishments. The State, even as it punishes, must treat its members with respect for their intrinsic worth as human beings. A punishment is “cruel and unusual,” therefore, if it does not comport with human dignity. Furman v. Georgia, 408 U.S. 238, 270, [92 S.Ct. 2726, 2742, 33 L.Ed.2d 346] (1972) (Brennan, J., concurring.). A penalty also must accord with “the dignity of man,” which is the basic concept underlying the Eighth Amendment. This means, at least, that the punishment not be “excessive.” . . . First, the punishment must not involve the unnecessary and wanton infliction of pain. Second, the punishment must not be grossly out of proportion to the severity of the crime. (Cites omitted.) Gregg v. Georgia, 428 U.S. 153, 173, [96 S.Ct. 2909, 2925, 49 L.Ed.2d 859] (1976) (Opinion of Stewart, Powell & Stevens, JJ.). See, e. g., Furman, supra, 408 U.S. at 330, 92 S.Ct. 2726 (Marshall, J., concurring); Trop v. Dulles, 356 U.S. 86, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958); Weems v. United States, 217 U.S. 349, 30 S.Ct. 544, 54 L.Ed. 793 (1910); Jackson v. Bishop, 404 F.2d 571 (8th Cir. 1968). The Gregg plurality looked first to contemporary standards and legislative sanction to determine the general acceptability of a punishment. If a punishment is selected by a legislature, the court must presume its validity, and a plaintiff has a heavy burden to upset the legislative choice. “We may not require the legislature to select" }, { "docid": "22113060", "title": "", "text": "cruel and unusual punishment applies to the states through the Due Process Clause of the Fourteenth Amendment. Robinson v. California, 370 U.S. 660, 666-67, 82 S.Ct. 1417, 1420, 8 L.Ed.2d 758 (1962). . Section 921.141 prescribes the procedures that must be followed in imposing the death penalty. See note 7 supra and accompanying text. As noted previously, Fla.Stat.Ann. § 782.-04(1) is the statute that actually defines first degree murder and makes it a capital felony, which Fla.Stat.Ann. § 775.082(1) makes punishable by death or by life imprisonment. See notes 5 and 6 supra and accompanying text. Fla.Stat.Ann. § 922.10 provides further that the death penalty shall be carried out by electrocution. For the sake of brevity, however, we will refer to Section 921.141 as the death penalty statute. . In contending that the death penalty under Section 921.141 is being applied excessively and disproportionately, allegedly as evidenced by his own case, Spenkelink cites Coker v. Georgia, 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977), in which the Supreme Court held that the sentence of death for the crime of rape is excessive and disproportionate and therefore cruel and unusual punishment. In Roberts v. Louisiana, supra, 428 U.S. at 331, 96 S.Ct. at 3005 (opinion of Stewart, Powell, and Stevens, JJ.); Woodson v. North Carolina, supra, 428 U.S. at 285, 96 S.Ct. at 2982 (opinion of Stewart, Powell, and Stevens, JJ.); Jurek v. Texas, supra, 428 U.S. at 268, 96 S.Ct. at 2954 (opinion of Stewart, Powell, and Stevens, JJ.); Proffitt v. Florida, supra, 428 U.S. at 246, 96 S.Ct. at 2964 (opinion of Stewart, Powell, and Stevens, JJ.); and Gregg v. Georgia, supra, 428 U.S. at 166-189, 96 S.Ct. at 2922-32 (opinion of Stewart, Powell, and Stevens, JJ.), the Court held that the sentence of death for the crime of murder is not inherently excessive and disproportionate punishment. See Coker v. Georgia, supra, 433 U.S. 591, 97 S.Ct. at 2865. The allegations of excessiveness and disproportion-ality, at least as used by the petitioner in this case in challenging the death penalty as applied, appear to be synonymous with" }, { "docid": "22393761", "title": "", "text": "the process is able to produce results which reflect the community’s moral sensibilities. Judges simply cannot acceptably mirror those sensibilities — the very notion of a right to jury trial is premised on that realization. Judicial sentencing in capital cases cannot provide the type of community participation in the process upon which its legitimacy depends. If the State wishes to execute a citizen, it must persuade a jury of his peers that death is an appropriate punishment for his offense. If it cannot do so, then I do not believe it can be said with an acceptable degree of assurance that imposition of the death penalty would be consistent with the community’s sense of proportionality. Thus, in this case Florida has authorized the imposition of disproportionate punishment in violation of the Eighth and Fourteenth Amendments. Accordingly, while I join Part II of the opinion of the Court, with respect to the remainder of the Court’s opinion and its judgment, I respectfully dissent. See Solem v. Helm, 463 U. S. 277, 288-290 (1983). The Eighth Amendment provides: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” The Eighth Amendment is incorporated in the Due Process Clause of the Fourteenth Amendment. E. g., Robinson v. California, 370 U. S. 660, 666 (1962); Louisiana ex rel. Francis v. Resweber, 329 U. S. 459, 463 (1947) (plurality opinion). See Solem v. Helm, 463 U. S., at 289; id., at 306 (Burger, C. J., dissenting); Enmund v. Florida, 458 U. S. 782, 797 (1982); Beck v. Alabama, 447 U. S. 625, 637-638 (1980); Rummel v. Estelle, 445 U. S. 263, 272 (1980); Lockett v. Ohio, 438 U. S. 586, 604-605 (1978) (plurality opinion); Coker v. Georgia, 433 U. S. 584, 598 (1977) (plurality opinion); Gardner v. Florida, 430 U. S. 349, 357-368 (1977) (plurality opinion); Gregg v. Georgia, 428 U. S. 153, 188 (1976) (opinion of Stewart, Powell, and Stevens, JJ.). “Death is truly an awesome punishment. The calculated killing of a human being by the State involves, by its very nature, a denial of the executed person’s" }, { "docid": "22621559", "title": "", "text": "Amendment prohibits imposition of a sentence that is grossly disproportionate to the severity of the crime. See, e. g., Weems v. United States, 217 U. S., at 367; Ingraham v. Wright, 430 U. S., at 667 (dictum); Trop v. Dulles, 356 U. S. 86, 100 (1958) (plurality opinion). In recent years this proposition has appeared most frequently in opinions dealing with the death penalty. See, e. g., Coker v. Georgia, 433 U. S. 584, 592 (1977) (plurality opinion); Gregg v. Georgia, 428 U. S. 153, 173 (1976) (opinion of Stewart, Powell, and Stevens, JJ.); Furman v. Georgia, 408 U. S. 238, 458 (1972) (Powell, J., dissenting). Pummel cites these latter opinions dealing with capital punishment as compelling the conclusion that his sentence is disproportionate to his offenses. But as Mr. Justice Stewart noted in Furman: “The penalty of, death differs from all other forms of criminal punishment, not in degree but in kind. It is unique in its total- irrevocability. It is unique in its rejection of rehabilitation of the convict as a basic purpose of criminal justice. And it is unique, finally, in its absolute renunciation of all that is embodied in our concept of humanity.” Id., at 306. This theme, the unique nature of the death penalty for purposes of Eighth Amendment analysis, has been repeated time and time again in our opinions. See, e. g., Furman v. Georgia, supra, at 287, 289 (Brennan, J., concurring); Gregg v. Georgia, supra, at 187 (opinion of Stewart, Powell, and Stevens, JJ.); Woodson v. North Carolina, 428 U. S. 280, 305 (1976); Coker v. Georgia, supra, at 598 (plurality opinion). Because a sentence of death differs in kind from any sentence of imprisonment, no matter how long, our decisions applying the prohibition of cruel and unusual punishments to capital cases are of limited assistance in deciding the constitutionality of the punishment meted out to Rummel. Outside the context of capital punishment, successful challenges to the proportionality of particular sentences have been exceedingly rare. In Weems v. United States, supra, a case coming to this Court from the Supreme Court of the" }, { "docid": "22621560", "title": "", "text": "of criminal justice. And it is unique, finally, in its absolute renunciation of all that is embodied in our concept of humanity.” Id., at 306. This theme, the unique nature of the death penalty for purposes of Eighth Amendment analysis, has been repeated time and time again in our opinions. See, e. g., Furman v. Georgia, supra, at 287, 289 (Brennan, J., concurring); Gregg v. Georgia, supra, at 187 (opinion of Stewart, Powell, and Stevens, JJ.); Woodson v. North Carolina, 428 U. S. 280, 305 (1976); Coker v. Georgia, supra, at 598 (plurality opinion). Because a sentence of death differs in kind from any sentence of imprisonment, no matter how long, our decisions applying the prohibition of cruel and unusual punishments to capital cases are of limited assistance in deciding the constitutionality of the punishment meted out to Rummel. Outside the context of capital punishment, successful challenges to the proportionality of particular sentences have been exceedingly rare. In Weems v. United States, supra, a case coming to this Court from the Supreme Court of the Philippine Islands, petitioner successfully attacked the imposition of a punishment known as “cadena temporal” for the crime of falsifying a public record. Although the Court in Weems invalidated the sentence after weighing “the mischief and the remedy,” 217 U. S., at 379, its finding of disproportionality cannot be wrenched from the extreme facts of that case. As for the “mischief,” Weems was convicted of falsifying a public document, a crime apparently complete upon the knowing entry of a single item of false information in a public record, “though there be no one injured, though there be no fraud or purpose of it, no gain or desire of it.” Id., at 365. The mandatory “remedy” for this offense was cadena temporal, a punishment described graphically by the Court: “Its minimum degree is confinement in a penal institution for twelve years and one day, a chain at the ankle and wrist of the offender, hard and painful labor, no assistance from friend or relative, no marital authority or parental rights or rights of property, no participation even" }, { "docid": "22248729", "title": "", "text": "note that neither the state officials, nor Campbell, nor our own research has revealed a single decision holding that imposition of the death penalty by hanging is cruel and unusual punishment within the contemplation of the Eighth Amendment. To determine whether hanging is unconstitutionally cruel and unusual, we look to objective factors to the maximum extent possible. Stanford, 492 U.S. at 369, 109 S.Ct. at 2974 (quoting Coker v. Georgia, 433 U.S. 584, 592, 97 S.Ct. 2861, 2866, 53 L.Ed.2d 982 (1977) (plurality opinion)). Among these factors are statutes passed by society’s elected representatives. Id., 492 U.S. at 370, 109 S.Ct. at 2975 (citing McCleskey v. Kemp, 481 U.S. 279, 300, 107 S.Ct. 1756, 1771, 95 L.Ed.2d 262 (1987)). We presume that a punishment selected by a democratically elected legislature is constitutionally valid. Gregg v. Georgia, 428 U.S. 153, 175, 96 S.Ct. 2909, 2926, 49 L.Ed.2d 859 (1976). “We may not require the legislature to select the least severe penalty possible so long as the penalty selected is not cruelly inhumane or disproportionate to the crime involved.” Id. at 175, 96 S.Ct. at 2926. Campbell relies heavily on the trend among several states in recent years to replace hanging with other methods of execution, chiefly lethal injection. See, e.g., DeShields v. State, 534 A.2d 630, 639 (Del.1987). Currently, two states, Washington and Montana, provide for execution by hanging. Wash.Rev.Code 10.95.180(1); Mont.Code Ann. § 46-21-103(3) (1987). Campbell relies on Coker, 433 U.S. 584, 97 S.Ct. 2861, and Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982), for the proposition that when the number of states exacting a given punishment dwindles, the punishment drops beneath the constitutional floor. Coker and Enmund do not dictate the result Campbell urges. Those eases concern the proportionality of the death penalty to the crimes of conviction, as opposed to the method of execution. The distinction is critical. On the one hand, proportionality review entails examination of the actions both of state legislatures and of sentencing juries to determine contemporary standards of decency. See, Thompson v. Oklahoma, 487 U.S. 815, 821-22, 108 S.Ct." } ]

[ { "docid": "22323997", "title": "", "text": "of the voyage are mariners, and included under the name of seamen.” M. Cohen, Admiralty 239. We believe it settled at the time of The Osceola and the passage of the Jones Act that general maritime law did not require that a seaman aid in navigation. It was only necessary that a person be employed on board a vessel in furtherance of its purpose. We conclude therefore that, at the time of its passage, the Jones Act established no requirement that a seaman aid in navigation. Our voyage is not over, however. C As had the lower federal courts before the Jones Act, this Court continued to construe “seaman” broadly after the Jones Act. In International Stevedoring Co. v. Haverty, 272 U. S. 50 (1926), the Court held that a stevedore is a “seaman” covered under the Act when engaged in maritime em ployment. Haverty was a longshore worker injured while stowing freight in the hold of a docked vessel. The Court recognized that “as the word is commonly used, stevedores are not ‘seamen.’” Id., at 52. “But words are flexible. . . . We cannot believe that Congress willingly would have allowed the protection to men engaged upon the same maritime duties to vary with the accident of their being employed by a stevedore rather than by the ship.” Ibid. Congress would, and did, however. Within six months of the decision in Haverty, Congress passed the Longshore and Harbor Workers’ Compensation Act (LHWCA), 44 Stat. (part 2) 1424, as amended, 33 U. S. C. §§901-950. The Act provides recovery for injury to a broad range of land-based maritime workers, but explicitly excludes from its coverage “a master or member of a crew of any vessel.” 33 U. S. C. § 902(3)(G). This Court recognized the distinction, albeit belatedly, in Sivanson v. Marra Brothers, Inc., 328 U. S. 1 (1946), concluding that the Jones Act and the LHWCA are mutually exclusive. The LHWCA provides relief for land-based maritime workers, and the Jones Act is restricted to “a master or member of a crew of any vessel”: “We must take it" } ]

[ { "docid": "5651089", "title": "", "text": "OPINION OF THE COURT HUTCHINSON, Circuit Judge. AppellanVcross-appellee, William W. Evans (“Evans”), a compulsory river pilot, brought this action in the United States District Court for the District of New Jersey pursuant to general admiralty and maritime law and the Jones Act (“the Act”), 46 U.S.C.A. app. § 688 (West Supp.1993). He sought recovery for personal injuries allegedly sustained as a result of the negligence of the appellee/cross-appellant, United Arab Shipping Company (“UASC” or “shipowner”), as well as the unseaworthiness of UASC’s vessel. The district court held that Evans was covered by the Jones Act because a compulsory river pilot qualifies as a “seaman”; furthermore, it held that Evans was employed by the vessel at the time of his injury as the Act requires. Because Evans was unable to show the extent to which his accident aggravated a preexisting neurological condition, however, the district court refused to award him any damages for aggravation of this condition. At our Docket No. 92-5301, UASC cross-appeals the district court’s order holding that Evans is a “seaman” entitled to protection under the Jones Act. According to UASC, Evans lacks the requisite employment relationship with the shipowner as well as the permanent attachment to the vessel that it says is required for seaman status under the Act. As a prerequisite to recovery under the Act, a plaintiff must establish that the injury occurred within the scope of employment. Evans did not establish that he was an employee of UASC within the meaning of the Act and was instead an independent contractor. A shipowner does not have the right to control the actions of a compulsory river pilot or the right to hire or fire that pilot under applicable Delaware law. We hold, therefore, that Evans is not entitled to recover against UASC under the Jones Act because he was not an employee of UASC acting within the course of his employment when he was injured. This disposition makes it unnecessary for us to reach the issue of whether a compulsory river pilot must have a permanent attachment to a particular vessel to claim Jones Act" }, { "docid": "6680217", "title": "", "text": "OPINION AND ORDER CURRAN, District Judge. On June 18, 1987, William Ozzello fell on a hose aboard the MCM-01, a ship under construction by defendant Peterson Builders, Inc. (PBI). He injured his ankle and claims that the cause was PBI’s negligence in failing to maintain a safe workplace. Therefore, he commenced this lawsuit in which he seeks $500,000.00 in compensatory damages. William’s wife, Marlene, is seeking $60,000.00 in damages for loss of companionship. The plaintiffs are attempting to sue PBI as the vessel owner pursuant to the Longshore and Harbor Workers’ Compensation Act (LHWCA), 33 U.S.C. §§ 901-50, and have invoked this court’s admiralty jurisdiction over the subject matter of their claims. See 28 U.S.C. § 1333; Federal Rule of Civil Procedure 9(h). After jurisdiction was challenged, the plaintiffs amended their complaint to allege that this court has an alternate basis for jurisdiction — diversity—because the plaintiffs are both citizens of Michigan; defendant PBI is a Wisconsin corporation with its principal place of business in Wisconsin; and the amount in controversy as to each plaintiff exceeds $50,000.00, exclusive of interest and costs. See 28 U.S.C. § 1332. The defendant has answered and has denied liability. In addition, the defendant has continued to maintain that this court does not have admiralty, maritime, or federal question jurisdiction over the claims and that the plaintiffs are not entitled to relief under the LHWCA. After the defendant’s motion for summary judgment was denied, a trial to the court commenced on May 7, 1990. Following three days of testimony, the trial concluded with closing arguments on May 24, 1990. Having reviewed the testimony, depositions and exhibits received at trial, the court now sets forth its Findings of Fact separately from its Conclusions of Law pursuant to Federal Rule of Civil Procedure 52. I.FINDINGS OF FACT Prior to trial the parties submitted a statement of uncontested facts. See Amended Final Pretrial Report at 1-3. Where material, these facts have been adopted by the court and incorporated into the court’s own findings of facts which were established by a preponderance of the evidence at trial. A. DIVERSITY" }, { "docid": "3357807", "title": "", "text": "MEMORANDUM JOHN LEWIS SMITH, Jr., District Judge. The parents of Vladimir Perez, a minor, bring this action for money damages for injuries their son sustained in 1978 when defendant’s marine police craft fired on the fishing boat Isabel, which is registered in the United States. The incident occurred somewhat less than half a mile from the Great Isaac Cay in The Bahamas. Jurisdiction is predicated on the Foreign Sovereign Immunities Act of 1976 (FSIA) (28 U.S.C. §§ 1330, 1605-1607), and the special admiralty and maritime jurisdiction set forth in 18 U.S.C. §§ 7 (admiralty and maritime jurisdiction), 1113 (attempted murder), 1651 (piracy), 1653 (aliens as pirates), 1656 (conversion of vessel), 1658 (corruption of seamen and confederating with pirates), 1659 (plunder of distressed vessel), and 1660 (attack to plunder vessel). The matter is before the Court on defendant’s motion to dismiss for lack of subject matter jurisdiction under 28 U.S.C. § 1330(a) and lack of personal jurisdiction under § 1330(b). The Bahamas is a foreign state, 28 U.S.C. § 1603(a), and therefore entitled to immunity from the jurisdiction of the courts of the United States unless one of the exceptions in sections 1605 — 1607 of the Act applies, or unless some international agreement to which the United States was a party at the time of the enactment of the Act otherwise provides. (28 U.S.C. § 1604). Plaintiff contends that several section 1605 exceptions apply. Section 1605(a)(1) provides that a sovereign may waive its immunity either explicitly or implicitly. Plaintiffs argue that defendant waived its sovereign immunity when it adopted the Crown Proceedings Act. This Act, however, opens the courts of The Bahamas to suits against the Bahamian government; it creates no right to bring The Bahamas before the courts of the United States. “[A]ll civil proceedings by or against the Crown shall be instituted and proceeded with in the Supreme Court and in accordance with the rules of court and not otherwise.” Crown Proceedings Act, 1963, c. 10. The Bahamas has not waived its immunity by virtue of the Crown Proceedings Act. Section 1605(a)(2) provides that a sovereign shall not" }, { "docid": "3274593", "title": "", "text": "entire theory of subject matter jurisdiction upon which the parties rely. See, e. g., Shows v. Harber, 575 F.2d 1253 (8th Cir. 1978) (permitting amendment to allege essentials of diversity jurisdiction after finding insufficient basis for admiralty or maritime jurisdiction); Adekalu v. New York City, 431 F.Supp. 812 (S.D.N.Y. 1977) (permitting amendment to allege diversity jurisdiction after dismissal of federal claim for failure to state a cause of action). Such amendments may even be allowed to assert alternative grounds of jurisdiction after the circuit court has remanded an action to the district court for a determination as to whether subject matter jurisdiction exists. See Eisler v. Stritzler, 535 F.2d 148, 152-53 (1st Cir. 1976). See also International Ladies’ Garment Workers’ Union v. Donnelly Garment Co., 121 F.2d 561 (8th Cir. 1941). Here, leave to amend the pleadings to allege different bases of subject matter jurisdiction will be granted if it is shown that jurisdiction exists under any other theory of subject matter jurisdiction. Significant time and expense already have been expended by the parties and the court to adjudicate the issues; relitigation would not serve the interests of justice if the court has subject matter jurisdiction. 1. Jurisdiction Under the Foreign Sovereign Immunities Act Defendants assert that this court has jurisdiction over its counterclaims under the Foreign Sovereign Immunities Act of 1976, 28 U.S.C. §§ 1330, 1602-11 (1978). The Immunities Act added section 1330 to Title 28 of the United States Code to provide the district courts with subject matter and personal jurisdiction over nonjury civil actions that involve claims against foreign states with respect to which they are not entitled to immunity. “Foreign state” includes any corporate entity, a majority of whose shares is owned by a foreign state. See 28 U.S.C. § 1603(b). Because CVF is a corporation organized under the laws of Venezuela, whose capital stock is wholly owned by the Republic of Venezuela, a claim against it by Merban and the intervening banks confers subject matter jurisdiction on this court unless barred by sovereign immunity. The original action was commenced on April 9, 1976, nine months" }, { "docid": "22972794", "title": "", "text": "of the Jones Act. The defendants’ motion to dismiss and supporting evidentiary papers challenged the existence of facts which were alleged to provide subject matter jurisdiction and presented evidence which supported their contention that Trentacosta was not the employee of any defendant (except perhaps Aero). We conclude that the district court properly dismissed Trentacosta’s Jones Act claim against all defendants except Aero. B. Dismissal of Remaining Claims In his amended complaint, Trentacosta titled his first claim for relief as being brought under the “Jones Act and General Maritime Law.” Under that claim he included an allegation that the vessel was unseaworthy. He also set forth claims for “Maintenance and Cure,” “Negligence,” and “Products Liability.” But he was careful to invoke federal jurisdiction only under 28 U.S.C. § 1331, and not admiralty jurisdiction under 28 U.S.C. § 1333 or Rule 9(h). A plaintiff need not identify a maritime claim as a claim within the district court’s admiralty jurisdiction if the claim is “cognizable only in admiralty.” Fed.R. Civ.P. 9(h). See supra note 1. Trentacosta’s maritime claims were not “cognizable only in admiralty,” but were joined as pendent claims under the jurisdictional grant provided in the Jones Act. See Romero v. International Terminal Operating Co., 358 U.S. 354, 380-81, 79 S.Ct. 468, 484-85, 3 L.Ed.2d 368 (1959) (noting that pendent federal maritime claims may be added to claims brought under the Jones Act). Trentacosta’s election to invoke jurisdiction on the “law side” of the court (as opposed to the “admiralty side”, 28 U.S.C. § 1333(1)), therefore, precludes our treating his maritime claims as admiralty claims under Rule 9(h). See Alleman v. Bunge Corp., 756 F.2d 344, 345 (5th Cir.1984) (noting consequences attendant to plaintiff’s “historic option” to not invoke admiralty jurisdiction under Rule 9(h) (citations omitted). The proceedings in the district court confirm our conclusion that Trentacosta did not invoke the district court’s admiralty jurisdiction. The defendants moved for dismissal claiming Trentacosta was not a seaman, and that the defendants were not his employers under the Jones Act. The district court agreed as to all defendants except Aero and ruled that because" }, { "docid": "3049982", "title": "", "text": "traditional remedy for unseaworthiness that is clearly his due as a “Sieracki seaman.” See Aparicio v. Swan Lake, 643 F.2d 1109 (5th Cir.1981) (maritime worker, not covered by LHWCA, could invoke Sieracki unseaworthiness cause of action against non-employer vessel owner). As the Supreme Court pointedly remarked in Seas Shipping Co. v. Sieracki, 328 U.S. 85, 100, 66 S.Ct. 872, 880, 90 L.Ed. 1099 (1946), a vessel owner has certain general obligations to those who work for him — whether or not these workers have contracted with him directly — that cannot be delegated away by subcontracting. Under Sieracki and the broad principles of employer responsibility enunciated therein, defendant’s obligation to provide a seaworthy ship to his temporary pilot Ellis Clark, was not one that he could delegate away, this notwithstanding the obvious convenience to any employer of so being able to delegate away such responsibilities. The justice of this conclusion is especially striking in this case. The result of barring plaintiff from his remedy against defendant shipowner here would be essentially to cast the liability onto the independent subcontractor, Ellis Clark, Inc., who, as it turns out is none other than the injured worker himself. Accordingly, not being a person covered by the LHWCA and the 1972 amendments thereto, plaintiff Ellis Clark is entitled to pursue his cause of action for unseaworthiness. Defendant’s motion to dismiss plaintiff’s seaworthiness cause of action is correspondingly denied. . Disputed factual issues as to a plaintiffs status as a seaman, at least under the Jones Act, are of course to be decided by the jury. Harney v. William M. Moore Bldg. Corp., 359 F.2d 649, 654-55 (2d Cir.1966). Where, as here, however, plaintiff is not asserting a statutory claim but a claim under the general maritime law, the situation is somewhat more complicated. Because plaintiff is asserting his maritime claim under the diversity jurisdiction of the federal court, 28 U.S.C. Section 1332, as well as under its separate admiralty jurisdiction, 28 U.S.C. Section 1333, he is entitled to a jury. See 28 U.S.C. Sections 1332, 1333 (containing clause that saves the alternate common law" }, { "docid": "2922501", "title": "", "text": "in their favor under the Jones Act. However, the district court granted plaintiffs motion for a new trial on the Jones Act claim but plaintiff elected to discontinue that cause of action in favor of his claim for maintenance and cure, and also for c.ompensatory damages, under the general maritime law. The court ruled that plaintiff was entitled to maintenance and cure under general maritime law, and also awarded plaintiff compensatory damages based upon defendants’ arbitrary and capricious denial of plaintiffs claim. The defendants appeal from this judgment of the district court. II. DISCUSSION The district court had subject matter jurisdiction over this admiralty action under 28 U.S.C. § 1333. We have appellate jurisdiction over the final judgment of the district court pursuant to 28 U.S.C. § 1291. We review the district court’s findings of fact under a clearly erroneous standard. See Sheet Metal Workers Local 19 v. 2300 Group, Inc., 949 F.2d 1274, 1278 (3d Cir.1991). However, our review of the district court’s application of the law to these facts is plenary. See Tudor Dev. Group v. United States Fidelity & Guar. Co., 968 F.2d 357, 359 (3d Cir.1992). A. Maintenance and Cure The gravamen of McCormack’s argument is that Deisler forfeited his right to maintenance and cure when he failed to disclose his prior back injury as requested on the employment application. Maintenance and cure are rights given to seamen who become ill or injured in the service of a vessel. “Maintenance is the living allowance for a seaman while he is ashore recovering from injury or illness. See Vaughan v. Atkinson, 369 U.S. 527, 531, 82 S.Ct. 997, 1000, 8 L.Ed.2d 88 (1962). Cure is payment of medical expenses incurred in treating the seaman’s injury or illness. See Calmar S.S. Corp. v. Taylor, 303 U.S. 525, 528, 58 S.Ct. 651, 653, 82 L.Ed. 993 (1938).” Barnes v. Andover Co. L.P., 900 F.2d 630, 633 (3d Cir.1990). An employer’s obligation to furnish maintenance and cure continues “until the seaman has reached the point of maximum cure, that is until the seaman is cured or his condition is diagnosed" }, { "docid": "23512882", "title": "", "text": "issued a $15,000 check to Marlineer. Lit-tell’s financial situation remained uncertain; he unsuccessfully tried to convince Marlineer to finance part of the transaction, but the broker declined, the deal fell through, and Littell bought another boat. Littell filed suit in federal court, alleging four causes of action: (1) in rem for foreclosure of a maritime lien against the Teddy Bear, based on work Littell performed and supervised while living on the yacht; (2) in rem against the Teddy Bear and in personam against the other defendants for foreclosure of a maritime lien, based on the monies Littell had transferred to Mar-lineer; (3) in rem against the Teddy Bear and in personam against the other defendants for foreclosure of a maritime lien, based on Tate and Marlineer’s alleged misrepresentation of the value of the yacht; and (4) conversion, against all defendants, based on California Civil Code § 3336. The complaint invoked the district court’s admiralty and maritime jurisdiction, 28 U.S.C. § 1333 and 46 App.U.S.C. § 740, and its supplemental jurisdiction over state-law claims, 28 U.S.C. § 1367. At the conclusion of a three-day bench trial, the district court entered judgment for Marlineer and the other defendants on all causes of action and adopted, with modifications, findings of fact and conclusions of law prepared by Marlineer’s counsel. The findings of fact and conclusions of law include two pages of legal analysis titled “There is no Admiralty Jurisdiction,” which discusses the well-established rule that a suit over the sale of a vessel does not give rise to admiralty jurisdiction: Here the underlying activity was the attempted purchase and sale of a vessel and the principal dispute relates to activities undertaken in connection with that attempted purchase. Contracts for the sale of a slip are not maritime and admiralty jurisdiction does not apply. The section concludes, “This court lacks admiralty jurisdiction. Since plaintiffs’ only causes of action are brought ‘in admiralty’ and speak to alleged maritime torts, there remains no basis for recovery.” The findings of fact and conclusions of law also address Littell’s substantive claims, concluding there was no enforceable agreement, no" }, { "docid": "7169810", "title": "", "text": "of this title as to any claim for relief in personam with respect to which the foreign state is not entitled to immunity either under sections 1605-1607 of this title [the immunity-defining provisions] or under any applicable international agreement.” Foreign Sovereign Immunities Act of 1976, Pub.L. No. 94-583, § 2, 1976 U.S.C.C.A.N. (90 Stat.) 2891, 2891 (codified at 28 U.S.C. § 1330). The statutory definition of a foreign state includes its agencies and instrumentalities. See 28 U.S.C. § 1603(a). The FSIA also amended the diversity jurisdiction provision, § 1332. That amendment eliminated jurisdiction over actions against foreign states, and this section refers now only to suits where a foreign state is a plaintiff. See FSIA § 3, 1976 U.S.C.C.A.N. (90 Stat.) at 2891 (codified at 28 U.S.C. § 1332). The House Report explained that, because under the FSIA “jurisdiction in actions against foreign states is comprehensively treated by the new section 1330, a similar jurisdictional basis under section 1332 [became] superfluous.” House Report at 14, reprinted in 1976 U.S.C.C.A.N. at 6613. The Act did not expressly amend other jurisdiction-granting statutes. In Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 109 S.Ct. 683, 102 L.Ed.2d 818 (1989), the Supreme Court rejected an argument that this silence indicated Congress’ intent to retain claims against foreign states within the scope of jurisdictional provisions other than the new § 1330, such as the general admiralty and maritime jurisdiction statute, 28 U.S.C. § 1333(1), or the Alien Tort Claims Statute, 28 U.S.C. § 1350. Relying on the FSIA’s comprehensiveness, as well as on its language and legislative history, the Court held that, after the FSIA’s enactment, that statute “provides the sole basis for obtaining jurisdiction over a foreign state in federal court.” Id. at 439, 109 S.Ct. 683. Further, Congress did not have to amend all other existing jurisdictional statutes to ensure the Act’s exclusivity. Unlike the diversity provision, other statutes conferring jurisdiction in general terms on district courts had not previously expressly provided for suits against for eign states. Id. at 437 n. 5, 109 S.Ct. 683. Thus, the Court concluded, Congress" }, { "docid": "22219724", "title": "", "text": "expressed any intention. Ought the general language of the Act nevertheless to be approached with a presumption of some limitation on the grant? I think not. In Paduano v. Yamashita Kisen Kabu-shiki Kaisha, 2 Cir., 1955, 221 F.2d 615, we placed great reliance on the fact that ever since 1875 the statute conferring general “federal question” jurisdiction on the district courts has been assumed to be subject to an implied exception for maritime matters. We might therefore find that in the absence of a specific manifestation of intention to alter this historic (albeit implied) exception, maritime jurisdiction remains maritime. Even the discovery of so strong a presumption would not end the problem, however, since the Jones Act itself specifically removes a maritime claim from the admiralty courts at the plaintiff’s election. The Supreme Court held in Panama R. Co. v. Johnson, 1924, 264 U. S. 375, 44 S.Ct. 391, 68 L.Ed. 748, that the remedy afforded seamen under the railway Acts was given in modification of and consequently was part of the maritime law. The question would therefore remain whether in allowing an election under the Act for an action at law with a jury trial the Congress should be presumed to have intended to carve up the mode of trial for seamen’s maritime claims for personal injury and to have provided the election as to the new maritime count but not as to the old. Despite the generality of the statutory language, if in 1920 there was a significant difference in the nature of the claims for unseaworthiness and the new claim afforded under the railway Acts it might be argued that the Congress, in recognition of the difference, intended to provide an altered mode of trial only for the new negligence count. Before proceeding to examine this possibility it is well to note however that it contains an element of fiction. Jury trial for these maritime matters was not new in 1920. Ever since 1789 it has been available in the state courts by virtue of the “saving clause,” 1 Stat. 76-77, now 28 U.S.C. § 1333(1) (1952)," }, { "docid": "5651103", "title": "", "text": "at 520. Evans filed a timely notice of appeal on May 29, 1992. UASC filed a cross-appeal on June 4, 1992. II. The district court had subject matter jurisdiction over this admiralty action under 28 U.S.C.A. § 1333 (West 1966) and the Foreign Sovereign Immunities Act, 28 U.S.C.A. § 1330 (West Supp.1993). We have appellate jurisdiction over the final order of the district court pursuant to 28 U.S.C.A. § 1291 (West Supp.1993). Construction of the statutory term “seaman” is a question of law. McDermott Int’l, Inc. v. Wilander, 498 U.S. 337, 356, 111 S.Ct. 807, 818, 112 L.Ed.2d 866 (1991). Thus we exercise plenary review over the district court’s interpretation of the term “seaman” under the Act. Whether Evans ultimately qualifies as a “seaman” under the Act is a mixed question of law and fact. Id. This Court’s cases leave things somewhat unclear about the scope of review over a district court’s conclusion concerning a worker’s status as an employee. In a Jones Act case, Matute v. Lloyd Bermuda Lines, Ltd., 931 F.2d 231 (3d Cir.), cert. denied, — U.S. -, 112 S.Ct. 329, 116 L.Ed.2d 270 (1991), we stated, “The existence of an employer-employee relationship is a question of fact____” Id. at 236. In a later case involving the Fair Labor Standards Act, Martin v. Selker Brothers, Inc., 949 F.2d 1286 (3d Cir.1991), we opined, “The employment status of the [employees] is a legal conclusion. Thus, our standard of review ... is plenary.” Id. at 1292 (citation omitted). We think these cases indicate that employer-employee status is sometimes, as here, a mixed question of law and fact. Accordingly, in this case we will exercise plenary review over the district court’s selection of the standard by which employment status is judged, but overturn its subsidiary factual findings only if they are clearly erroneous. See Fed.R.Civ.P. 52(a). Once the underlying facts are established, and the rule of law is undisputed, the issue of whether the facts meet the statutory standard is an issue of law. McDermott, 498 U.S. at 355-56, 111 S.Ct. at 818. III. Jones Act Claim Congress passed the" }, { "docid": "5651139", "title": "", "text": "of the sea, there is no good reason why he should not be covered by the protection of maritime law, statutory as well as decisional. See The Arizona v. Anelich, 298 U.S. 110, 123, 56 S.Ct. 707, 711-12, 80 L.Ed. 1075 (1936) (Jones Act protects seamen who are wards of admiralty and so must be broadly construed to attain that end). Thus, failing to show a lasting relationship between a worker and a particular vessel does not change either the fact that one doing a ship’s work faces all the special dangers of sea-based maritime employment, or that a seaman’s status depends on the nature of the worker’s duties as they relate to the ship. See Pacific Merchant Shipping Ass’n v. Aubry, 918 F.2d 1409, 1412 (9th Cir.1990) (“the term ‘seaman’ includes a broad range of marine workers whose work on a vessel on navigable waters contributes to the functioning of the vessel, to accomplishment of its mission, or to its operation or welfare”). See also 46 U.S.C. § 10101(3) (“seaman” means an individual “engaged or employed in any capacity on board a vessel”). No one disputes that Evans was injured in the course of successfully navigating the M/V AL WATTYAH. Evans v. United Arab Shipping Co., 767 F.Supp. 1284, 1285 (D.N.J. 1991). Because he contributed to the function of the vessel and to the accomplishment of its mission, he was a seaman; and merely because he was not connected to the vessel in a long-term temporal sense cannot, as a matter of law, take away his rights under the Jones Act. Mach, 317 F.2d at 763-64. II. A plaintiff must also show an employment connection with the defendant. Matute v. Lloyd Bermuda Lines, Ltd., 931 F.2d 231, 236 (3d Cir.1991). After a bench trial, the district court specifically found that United Arab “employed Mr. Evans through the services of the Pilot’s Association, an organization of river pilots in the area.” Evans, 767 F.Supp. at 1291 (emphasis added). The majority believes that the court clearly erred in making this finding. The question of whether a defendant is an employer for" }, { "docid": "5888299", "title": "", "text": "ORDER STEPHENS, Chief Judge. The above entitled and numbered cause came on regularly for trial on August 28, 1972. The Court has considered all pleadings and documents filed herein. The parties have submitted the case on an Agreed Statement of Facts. Having been fully advised, the Court makes the following order: The Court finds that plaintiffs’ vessel, the M/S Pacific Seal, was operating in navigable waters off the coast of California at the time it was struck by a Sidewinder missile released from a United States Navy airplane on August 12, 1968. The Suits in Admiralty Act, at 46 U. S.C. § 742, states in part: “In cases where if such vessel were privately owned or operated . or if a private person or property were involved, a proceeding in admiralty could be maintained, any appropriate nonjury proceeding in personam may be brought against the United States . . . ” This language places the jurisdiction of the Suits in Admiralty Act over all maritime torts alleged against the United States. “The Suits in Admiralty Act vests exclusive jurisdiction in the district courts when the suit is of a maritime nature.” Amell v. United States, 384 U.S. 158, 159, 86 S.Ct. 1384, 1385, 16 L.Ed.2d 445 (1966). The Court finds that the underlying cause of action is primarily “of a maritime nature” and should be considered a proceeding in admiralty. Therefore, exclusive jurisdiction over the cause is vested in the United States District Court pursuant to the Suits in Admiralty Act. Id. The plaintiffs have filed this action under the Federal Tort Claims Act, 28 U.S.C. § 1346(b), over two years after the cause of action arose, arguing that the negligence of the Navy pilot has no relationship to maritime service, navigation or commerce. The Court disagrees. This lawsuit should have been filed under the Suits in Admiralty Act. The Suits in Admiralty Act further provides: “Suits as authorized by this chapter may be brought only within two years after the cause of action arises . . . ” 46 U.S.C. § 745 The plaintiffs are therefore required to file" }, { "docid": "1118690", "title": "", "text": "meaning of Rule 14 of the Federal Rules of Civil Procedure, the impleader provision; that 28 U.S.C. § 1345 does not authorize suit by way of impleader; and that, in any event, the Eleventh Amendment bars the United States from impleading the State. Its position is consistent with the rationale adopted in Parks v. United States, 241 F.Supp. 297 (N.D.N.Y.1965), a case substantially on all fours with the present one in regard to the jurisdictional question. Having arrived at a conclusion contrary to that reached in Parks, the Court rules that this motion to dismiss for lack of jurisdiction over the person of the State should be, and is hereby, denied. The pertinent facts may be stated succinctly. Under the Maritime Act of 1958, 46 U.S.C. §§ 1381-88, the United States furnished to the State of New York, in 1959, a vessel now known as the “TS EMPIRE STATE IV” for use as a training ship by the New York State Maritime College. By the terms of the Act, the vessel remained the “property of the United States.” 46 U.S.C. § 1382(a) (5). In 1961, Robert S. Williams, a resident of New Jersey and employed as a seaman aboard the vessel, is alleged to have sustained injuries caused by the unseaworthiness of the vessel and by the negligence of the United States and its agents, servants and employees. By libel filed June 7, 1963, Williams brought suit against the United States in this court under our admiralty jurisdiction, asserting a claim for damages arising from the alleged injuries. Thereafter, by a petition pursuant to Rule 56 of the Supreme Court Admiralty Rules, the United States sought to implead the State of New York. The United States claimed a right of indemnity against the State based upon alleged contractual obligations and warranties. The State responded with exceptions to the impleading petition. The grounds asserted were that the State was immune under the federal Constitution and as a sovereign, and that the State “cannot be impleaded as a respondent in this action.” Apparently, the exceptions were never heard and determined. However, after" }, { "docid": "2922500", "title": "", "text": "door where he was given a dismissal notice which stated that he was being fired for unsatisfactory work performance. Before Deisler left McCormack’s offices, he took a New Jersey Disability Benefits claim form that he sent to his physician. Deisler’s physician completed that form and returned it to McCormack after June 27, 1989. Thereafter, Deisler made a claim for maintenance and cure, and McCormack hired the maritime investigative firm of Lamorte and Burns, Inc. to investigate that claim. Lamorte was succeeded by American Maritime Consultants. Following the investigation of Deisler’s claim, both Lamorte and American Maritime recommended that McCormack pay Deisler the requested maintenance and cure, but McCormack refused and Deisler filed suit against McCormack and its dredge under the Jones Act, and under the general maritime law. Those two causes of action were tried simultaneously with the jury sitting as the finder of fact on the Jones Act claim and the court sitting as finder of fact on the general maritime claim. The jury found the defendants were not negligent and returned a verdict in their favor under the Jones Act. However, the district court granted plaintiffs motion for a new trial on the Jones Act claim but plaintiff elected to discontinue that cause of action in favor of his claim for maintenance and cure, and also for c.ompensatory damages, under the general maritime law. The court ruled that plaintiff was entitled to maintenance and cure under general maritime law, and also awarded plaintiff compensatory damages based upon defendants’ arbitrary and capricious denial of plaintiffs claim. The defendants appeal from this judgment of the district court. II. DISCUSSION The district court had subject matter jurisdiction over this admiralty action under 28 U.S.C. § 1333. We have appellate jurisdiction over the final judgment of the district court pursuant to 28 U.S.C. § 1291. We review the district court’s findings of fact under a clearly erroneous standard. See Sheet Metal Workers Local 19 v. 2300 Group, Inc., 949 F.2d 1274, 1278 (3d Cir.1991). However, our review of the district court’s application of the law to these facts is plenary. See Tudor" }, { "docid": "6820712", "title": "", "text": "OPINION AND ORDER BERTELSMAN, District Judge. This is an action for wrongful death brought under the Jones Act, 46 U.S.C. App. § 688, and under the general maritime law of the United States. It is presently before the court on the defendant’s motion for a pretrial ruling on the applicability of substantive federal admiralty law. FACTS This action arose as the result of the death of seaman Joe Neal, who slipped, fell and drowned in the Ohio River during the course of his employment as a deckhand for G & C Towing Company, Inc. (“G & C Towing”). The accident occurred at the McGinnis, Inc. (“McGinnis”) fleeting facility in Ludlow, Kentucky on February 14, 1986. The complaint alleges that Neal’s death was caused by the negligence of defendant McGinnis and the unseaworthiness of its fleet. Hazel Virginia Neal, administratrix for the estate of Joe Neal, filed suit against G & C Towing under the Jones Act, 46 U.S.C. App. § 688, and general maritime law. That case was settled. Mrs. Neal also filed suit against McGinnis on February 12, 1988. She has asserted a claim against McGinnis under the general maritime and admiralty law of the United States, invoking the court’s admiralty jurisdiction under 28 U.S.C. § 1333. Plaintiff also asserts that federal jurisdiction exists pursuant to 28 U.S.C. § 1332, diversity of citizenship. On February 22, 1989, the court ordered the defendant to submit a motion for a pretrial ruling on the applicability of substantive admiralty law to the issues presented in the case. The court ordered that the defendant was to presume for purposes of its motion that the plaintiff intended to pursue her claims under the common law. Defendant filed its motion for a pretrial ruling on March 16, 1989. The issue the court must decide in this matter is whether general substantive federal maritime law or state wrongful death law should be applied to a maritime wrongful death action brought under the court’s diversity jurisdiction. Defendant argues that the court should apply substantive federal maritime law rather than the wrongful death law of Kentucky to this" }, { "docid": "23466186", "title": "", "text": "waters. In view of the somewhat ambiguous language of the statute itself and the apparent lack of authority on the point, we hesitate to conclude whether a tort occurring within foreign territorial waters comes within the purview of the Death on the High Seas Act. However, we find it unnecessary to resolve this question since our acceptance of appellees’ maritime tort designation on either this or Executive Jet ground would require recognition of another jurisdictional obstacle prohibiting this suit. It is axiomatic that Congressional waiver of sovereign immunity is a prerequisite to any suit brought against the United States under admiralty law or otherwise. Recognizing this fact, the appellees rely upon the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671 et seq., as an expression of governmental consent to be sued. The United States, however, contends that maritime claims against the Government arising under either the Death on the High Seas Act or the general maritime law are cognizable solely under two specific federal admiralty statutes, the Suits in Admiralty Act (SIA), 46 U.S.C. §§ 741-752 and the Public Vessels Act, 46 U.S.C. §§ 781-790. Neither side disputes the fact that jurisdiction under the FTCA and the two admiralty statutes is mutually exclusive, 28 U.S.C. § 2680(d). The District Court, believing that the admiralty statutes extended only to claims involving United States vessels or cargo concluded that the appellees’ maritime claim was maintainable solely under the FTCA. Prior to 1960, this interpretation of the intersecting scope of the statutes would have been correct. However, in 1960, Congress amended section 742 of the SIA by deleting the language which restricted the statute to claims involving merchant vessels and by substituting a broad new jurisdictional statement: “In cases where if such vessel were privately owned or operated, or if such cargo were privately owned or possessed, or if a private person or property were involved, a proceeding in admiralty could be maintained, any appropriate nonjury proceeding in personam may be brought against the United States. . . .” Pub.L. No. 86-770, § 3, 74 Stat. 912. (Emphasis added) The addition of" }, { "docid": "3049984", "title": "", "text": "diversity forum for maritime suitors). Complaint of Berkley Curtis Bay Co., 569 F.Supp. 1491, 1493 (S.D.N.Y.1983). Were this court’s jurisdiction of plaintiffs admiralty claim supplied solely by the admiralty jurisdiction of the federal courts under Section 1333, the admiralty claim would be tried to the court and plaintiff would not be entitled to a jury trial. Id., citing Romero v. International Terminal Operating Co., 358 U.S. 354, 369, 79 S.Ct. 468, 478, 3 L.Ed.2d 368 (1959). In a situation like that of the present case where there is both admiralty and federal question or diversity jurisdiction, there is no right to a new-jury trial of the admiralty claim, however. See Fitzgerald v. United States Lines, 374 U.S. 16, 83 S.Ct. 1646, 10 L.Ed.2d 720 (1963) (reasoning that while the Seventh Amendment does not require jury trials in admiralty, neither does it forbid them). This is because where the non-jury admiralty tradition and plaintiffs jury right conflict, the jury right must prevail. Complaint of Berkely Curtis Bay Co., supra at 1494. Since the right to a jury determination of disputed issues of fact in a general admiralty claim jurisdictionally based on 28 U.S.C. Section 1333, where there is also diversity jurisdiction, thus appears to be at plaintiffs election, the applicability of the Jones Act mandate that only the jury may decide disputed issues of fact as to a plaintiffs seaman status, appears to be at least questionable. The question of the court’s fact finding role depending on the jurisdictional basis of a federal maritime suit is somewhat academic in the context of this motion, however. It seems quite clear to this court that even had the current action been brought under the Jones Act, the court itself could properly determine plaintiff’s status as a seaman to whom the duty of seaworthiness is owed. This is because there are no disputed issues of fact as to plaintiff’s work functions and as to his relationship with defendant ship and shipowner; thus there are no factual issues regarding plaintiffs status as a seaman for the jury to decide. Cf. McDermott, Inc. v. Boudreaux, 679" }, { "docid": "5651102", "title": "", "text": "establishing the damages separately attributable to the shipowner’s tortious aggravation of his latent motor neuron dysfunction because he was in the best position to do so. On February 6, 1992, the district court denied Evans’s motion for reconsideration of its ruling on the burden of segregating damages. On March 17, 1992, the district court also denied UASC’s motion for reconsideration of its determination that Evans was a Jones Act seaman. In its final order and opinion, dated May 1, 1992, the district court entered judgment in favor of Evans on his Jones Act claim; however, the court held that Evans failed to produce evidence sufficient to establish the extent to which his preexisting neurological condition was aggravated by the shipowner’s negligence. Evans II, 790 F.Supp. at 518-20. The district court therefore awarded Evans damages only for his fractured nose plus lost earnings of $15,155.00 for thirty-eight days, medical expenses of $875.00 for treatment of the fractured nose, and $7,600.00 for pain, suffering, and loss of enjoyment for his nose injury together with prejudgment interest. Id. at 520. Evans filed a timely notice of appeal on May 29, 1992. UASC filed a cross-appeal on June 4, 1992. II. The district court had subject matter jurisdiction over this admiralty action under 28 U.S.C.A. § 1333 (West 1966) and the Foreign Sovereign Immunities Act, 28 U.S.C.A. § 1330 (West Supp.1993). We have appellate jurisdiction over the final order of the district court pursuant to 28 U.S.C.A. § 1291 (West Supp.1993). Construction of the statutory term “seaman” is a question of law. McDermott Int’l, Inc. v. Wilander, 498 U.S. 337, 356, 111 S.Ct. 807, 818, 112 L.Ed.2d 866 (1991). Thus we exercise plenary review over the district court’s interpretation of the term “seaman” under the Act. Whether Evans ultimately qualifies as a “seaman” under the Act is a mixed question of law and fact. Id. This Court’s cases leave things somewhat unclear about the scope of review over a district court’s conclusion concerning a worker’s status as an employee. In a Jones Act case, Matute v. Lloyd Bermuda Lines, Ltd., 931 F.2d 231 (3d" }, { "docid": "18990436", "title": "", "text": "FINDINGS OF FACT AND CONCLUSIONS OF LAW KENT, District Judge. I. PROCEDURAL HISTORY The instant cause came on for non-jury trial commencing on Thursday, June 1, 1995 and concluding on June 8, 1995, the Honorable Samuel B. Kent presiding. The Court having carefully considered the oral testimony of all witnesses presented live at trial, the deposition transcript of each witness proffered in that format, all exhibits tendered during the course of trial, all pleadings here tofore filed herein particularly including the pretrial order and all relevant attachments, the opening statements of each of the parties, as offered through their respective counsel and the Proposed Findings of Fact and Conclusions of Law submitted by each of the stated parties, and on the basis of a preponderance of the evidence, and pursuant to Rule 52(a) of the Fed.R.Civ.Proc., hereby enters its FINDINGS OF FACT and CONCLUSIONS OF LAW: II. FINDINGS OF FACT 1. Plaintiff Fred Thier was injured in a one-automobile crash on June 22, 1993. The crash occurred when Mr. Thier, a Cadet assigned to the Defendants’ vessel, the M/V GENEVIEVE LYKES, the Chief Officer of the M/V GENEVIEVE LYKES, Robert Borzi, and Mr. Borzi’s girlfriend, Catherine Carlton, were driving to a restaurant for dinner. They had just left dock where the M/V GENEVIEVE LYKES was berthed when Mr. Borzi, who was driving, lost control of the vehicle and crashed. At the time of the crash, Mr. Borzi was legally intoxicated. Mr. Borzi lost his life in the crash. Mr. Thier and Ms. Carlton sustained non-fatal injuries. 2. Plaintiff Fred Thier timely commenced this lawsuit asserting causes of action under the Jones Act and General Maritime Law for personal injuries sustained in the crash. Timely responsive pleadings were thereafter filed by defense interests, and this cause came on for non-jury trial on June 1, 1995. This Court has jurisdiction pursuant to 46 U.S.C.App. § 688, commonly referred to of the “Jones Act”, Rule 9(h) of the Fed.R.Civ. Proe., 28 U.S.C. § 1333 which provides original jurisdiction over any admiralty or maritime claims, and the Admiralty Extension Act. 46 U.S.C.App. § 740." } ]

[ { "docid": "23148465", "title": "", "text": "clarifying the fact that its earlier rulings resolved all of the issues in the case and should be considered a final disposition. On August 17, Terket filed a notice of appeal from “the final judgment entered in this action on the 18th day of July, 1979.” He filed no response to the defendants’ motion for attorneys’ fees. On September 10, the district court entered its order awarding attorney’s fees to the defendants and “assesspng] said fees against plaintiff Terket as costs in the amount of $1,000.” No notice of appeal was filed from this order. A. ■ Although the issue is not raised by the parties, we must consider sua sponte whether we have jurisdiction to review the order awarding attorneys’ fees. See Rice v. Rice Foundation, 610 F.2d 471, 474 (7th Cir. 1979). A timely notice of appeal from a judgment or order is mandatory and jurisdictional. Browder v. Director, Ill. Dept. of Corr., 434 U.S. 257, 264, 98 S.Ct. 556, 560, 54 L.Ed.2d 521 (1978). Since no notice of appeal was filed from the September 10 order awarding attorneys’ fees, it would appear that this court is without jurisdiction to consider the propriety of that order. Cf. Washington v. Bd. of Educ., 498 F.2d 11, 15 (7th Cir. 1974) (separate notice of appeal required for ruling on motion under Rule 60(b), Fed.R.Civ.P.). Doubt about this result is created, however, by this court’s decision in Swalley v. Addressograph-Multigraph Corp., 168 F.2d 585, 587 (7th Cir. 1948), cert. denied, 335 U.S. 911, 69 S.Ct. 481, 93 L.Ed. 444 (1949). There the court held that a district court order reviewing the taxing of costs by the clerk and entered after the underlying judgment had been appealed “related back to that judgment and became a part thereof.” Id. The court therefore held that the appeal from the underlying judgment “brought up with it” the order re-taxing costs. Accord 6 Moore’s Federal Practice 154.70[5], p. 1316 n. 14 (2d ed. 1976) (citing Swalley). Since § 1988 makes attorneys’ fees taxable as costs, it may be argued that Swalley would allow Terket’s present challenge" } ]

[ { "docid": "23280228", "title": "", "text": "recently held that a post-judgment motion for attorneys’ fees pursuant to 42 U.S.C. § 1988, which provides that a prevailing party in a civil rights suit shall recover “a reasonable attorney’s fee as part of the costs,” is not a rule 59(e) motion. White v. New Hampshire Dept. of Employment Security, - U.S. -, 102 S.Ct. 1162, 71 L.Ed.2d 325 (1982). The court held that rule 59(e) only governs post-judgment motions seeking reconsideration of the decision on the merits. Id. at-, 102 S.Ct. at 1165. The court reasoned that “My contrast, a request for attorney’s fees under § 1988 raises legal issues collateral to the main cause of action' — issues to which Rule 59(e) was never intended to apply.” Id. Like 42 U.S.C. § 1988, section 4 of the Clayton Act, 15 U.S.C. § 15, provides that prevailing antitrust plaintiffs shall recover attorneys’ fees as well as costs. Because of the similarity of these two statutory provisions, we believe that the Supreme Court’s reasoning in White applies in this instance. Spray-Rite’s motion to amend the judgment to assess costs raised issues collateral to the merits of the antitrust cause of action “ — issues to which rule 59(e) was never intended to apply.” White v. New Hampshire Dept. of Employment Security, -U.S. at-, 102 S.Ct. at 1166 (1982). Accord, Bond v. Stanton, 630 F.2d 1231 (7th Cir. 1980), later appeal, 655 F.2d 766 (7th Cir.), cert. denied sub nom. Blinzinger v. Bond, 454 U.S. 1063, 102 S.Ct. 614, 70 L.Ed.2d 601 (1981). In this Circuit, a motion to amend the judgment to assess attorneys’ fees which raises issues collateral to the merits of the cause of action is governed by rule 54(d), Federal Rules of Civil Procedure, which “imposes no time limit apart from an implicit requirement of reasonableness.” Hairline Creations, Inc. v. Refalas, 664 F.2d 652, 655 (7th Cir. 1981) Spray- Rite’s motion was filed within eighteen days after entry of judgment. Monsanto has not alleged that it was prejudiced in any way by this delay or that the delay was unreasonable. The district court, therefore, did not" }, { "docid": "21892804", "title": "", "text": "§ 1988, therefore, do not herald a fundamental shift toward viewing all statutory provisions for attorneys’ fees alike, nor do they indicate that § 1988 is unique. Rather, these decisions recognize that it is the function of attorneys’ fees in the litigation process, not the form of the exception, that determines whether the award of fees is a remedy tied to substantive issues in the judgment, or is a collateral matter that can be considered separate from the judgment. Once the characterization of the attorneys’ fees is made, then it is a simple matter to determine when a postjudgment motion must be made. Where fees are tied to issues determined at judgment, Rule 59(e) applies; where fees are collateral, equitable matters, Rule 54(d) applies. A statutory and functional analysis of the attorneys’ fees provision of § 1117 indicates that these fees are tied to the judgment and are governed by Rule 59(e). The motion below was untimely, since it was made long after the ten day limit. Because the motion was untimely and properly dismissed by the district court, the operative period for appeal from final judgment commenced with the entry of judgment on August 29, 1980. Hennessy v. Schmidt, 583 F.2d 302, 306 (7th Cir. 1978). Notice of appeal was filed November 5, 1980, well beyond the thirty day limit. Fed. R.App.P. 4(a)(1). This appeal is, therefore, Dismissed for want of jurisdiction. Dismissed. . Specifically, Hairline alleged violations of 15 U.S.C. §§ 1114, 1118 and 1125 (1980). . Ill.Rev.Stat. c. 140, § 22 (1980). . Hairline was issued its trademark in 1974 only after modifying its application in response to objections by the United States Patent Office that the mark was solely descriptive. Hairline described the mark as relating to the custom service of “hair replacement for men designed specifically to the exact contour of a customer.” Refalas alleged that Hairline brought suit against several hairstylers with business names similar to Hairline’s mark in an effort to# strengthen the mark by extending its actual use beyond the narrow confines of the registration. . Kefalas served the motion on Hairline’s" }, { "docid": "21892802", "title": "", "text": "decisions in Terket v. Lund, 623 F.2d 29 (7th Cir. 1980) and Bond v. Stanton, 630 F.2d 1231 (7th Cir. 1980). Those cases hold that the Civil Rights Attorneys Fees Award Act, 42 U.S.C. § 1988 (1980), constitutes an exception to the normal taxing of “costs,” and therefore, a post-judgment motion for an award of attorneys’ fees under § 1988 is governed by Rule 54(d). It is clear, however, that those decisions rest on two considerations which emphasize the unique character of § 1988. First, the explicit wording of § 1988 directs that attorneys’ fees be awarded “as part of the costs.” The statute, therefore, on its face designates the character of these fees. Bond v. Stanton, 630 F.2d at 1234. Second, § 1988 reflects a strong public policy of encouraging prosecution of civil rights actions by “private attorneys general.” Id. Attorneys fees under § 1988 are in the nature of an equitable award in the public interest. Section 1988, therefore, is akin to the equitable common law exceptions to the American rule on costs, i. e., the common fund and bad faith exceptions. Those equitable exceptions have always been recognized as falling under Rule 54(d). National Council of Community Mental Health Centers, Inc. v. Weinberger, 387 F.Supp. 991 (D.D.C.1974) rev’d on other grounds sub nom. National Council of Community Health Centers, Inc. v. Mathews, 546 F.2d 1003 (D.C.Cir.1976), cert. denied, 431 U.S. 954, 97 S.Ct. 2674, 53 L.Ed.2d 270 (1977); Lichtenstein v. Lichtenstein, 55 F.R.D. 535 (E.D.Pa.1972), rev’d on other grounds, 481 F.2d 682 (3d Cir. 1973), cert. denied, 414 U.S. 1144, 84 S.Ct. 895, 39 L.Ed.2d 98 (1974); Stacy v. Williams, 50 F.R.D. 53 (N.D.Miss.1970) aff’d, 446 F.2d 1366 (5th Cir. 1971). As collateral proceedings focusing on the conduct of the litigation rather than on the issues resolved by the litigation, proceedings awarding attorneys’ fees under the equitable exceptions do not threaten the finality of the substantive judgment. The equitable character of an award of attorneys’ fees under § 1988 is not altered simply because the exception is in statutory form. This court’s decisions construing attorneys’ fees under" }, { "docid": "21892801", "title": "", "text": "the attorneys’ fees motion thus would have required reexamination of factual findings and legal conclusions in the judgment. Rule 59(e) insures that such reconsideration will occur close in time to the judgment in order to prevent unnecessary relitigation. Precisely the opposite result would occur if we were to treat this motion for attorneys’ fees as a Rule 54(d) motion. Lacking any time limit, Rule 54(d) would permit the filing of a motion for attorneys’ fees weeks or even months after final judgment. Because the issue of whether a case is “exceptional” is not collateral, such a proceeding would inevitably tempt the parties to relitigate issues decided at trial. The effect would be to protract litigation and undermine the finality of the judgment. IV Treating this motion for attorneys’ fees as a Rule 54(d) motion also would ignore the particular function of attorneys’ fees in trademark cases in favor of treating all statutory authorizations of attorneys’ fees under a single rubric. This is the essence of Kefalas’ argument that this appeal should be governed by our decisions in Terket v. Lund, 623 F.2d 29 (7th Cir. 1980) and Bond v. Stanton, 630 F.2d 1231 (7th Cir. 1980). Those cases hold that the Civil Rights Attorneys Fees Award Act, 42 U.S.C. § 1988 (1980), constitutes an exception to the normal taxing of “costs,” and therefore, a post-judgment motion for an award of attorneys’ fees under § 1988 is governed by Rule 54(d). It is clear, however, that those decisions rest on two considerations which emphasize the unique character of § 1988. First, the explicit wording of § 1988 directs that attorneys’ fees be awarded “as part of the costs.” The statute, therefore, on its face designates the character of these fees. Bond v. Stanton, 630 F.2d at 1234. Second, § 1988 reflects a strong public policy of encouraging prosecution of civil rights actions by “private attorneys general.” Id. Attorneys fees under § 1988 are in the nature of an equitable award in the public interest. Section 1988, therefore, is akin to the equitable common law exceptions to the American rule on costs," }, { "docid": "23280253", "title": "", "text": "held that the plaintiff’s motion was governed by rule 59(e) because the decision whether to assess fees was not collateral to the merits of the underlying cause of action. The exercise of discretionary authority to award attorneys’ fees is inextricably intertwined with the factual and legal issues that the trial court resolves at judgment. Second, the award of attorneys’ fees is merely one of several potential remedies for trademark violations .... A motion for attorneys’ fees would, therefore, require the trial court to reexamine the basis of the judgment to determine if the “exceptional” requirement had been met so as to justify the remedy. This characterization of § 1117 leads inescapably to the conclusion that a post-judgment motion for attorneys’ fees is a motion to alter or amend the judgment. Id. at 658. We distinguished § 1117 from 42 U.S.C. § 1988, the attorneys’ fees provision at issue in White v. New Hampshire Dept. of Employment Security,-U.S.-, 102 S.Ct. 1162, 71 L.Ed.2d 325 (1982), noting that attorneys’ fees under § 1988 are in the nature of an equitable award which is governed by rule 54(d). Section 4 of the Clayton Act’s award of attorneys’ fees is more analogous to § 1988 than to § 1117 because both § 4 and § 1988 provide for recovery of attorneys’ fees as of right if the plaintiff prevails. Section 1117, on the other hand, permits recovery of attorneys’ fees only if the plaintiff prevails in an “exceptional” case. . Monsanto does not appeal from that portion of the October 17, 1980 order awarding Spray-Rite $16,875.79 in costs. . The circuits that have addressed the issue all agree that a court of appeals may overturn a district court award of attorneys’ fees to a successful antitrust plaintiff only upon a showing of abuse of discretion. Copper Liquor, Inc. v. Adolph Coors Co., 624 F.2d 575, 581 (5th Cir. 1980); International Travel Arrangers, Inc. v. Western Airlines, Inc., 623 F.2d 1255, 1274 (8th Cir.), cert. denied, 449 U.S. 1063, 101 S.Ct. 787, 66 L.Ed.2d 605 (1980); Merola v. Atlantic Richfield Co., 493 F.2d 292, 295" }, { "docid": "21892792", "title": "", "text": "59.12[1] (2d ed. 1979). While a Rule 59(e) motion is pending, the judgment is suspended. Fed.R.App.P. 4(a). This effect on the finality of the judgment is limited, however, by the prohibition against extending the ten day limit. Fed.R.Civ.P. 6(b). After ten days, alteration or amendment of the judgment is permitted only as provided for by Rule 60, which allows correction of clerical errors anytime, Fed.R.Civ.P. 60(a), and permits substantive relief upon demonstration of extraordinary circumstances, Fed.R. Civ.P. 60(b). Postjudgment motions for attorneys’ fees have not been uniformly governed by one rule; rather, courts have accepted motions for attorneys’ fees under both Rule 54(d) and Rule 59(e). Compare Bond v. Stanton, 630 F.2d 1231, 1234 (7th Cir. 1980) (Rule 54(d)) with White v. New Hampshire Department of Employment Security, 629 F.2d 697, 699 (1st Cir. 1980), cert. granted 451 U.S. 982, 101 S.Ct. 2313, 68 L.Ed.2d 839 (1981) (Rule 59(e)). The simple explanation for this is that the rules of procedure fail to designate a single niche for attorneys’ fees motions. The underlying reason, however, is the diversity of the exceptions to the American rule against the award of attorneys’ fees. The exceptions have evolved out of widely varying rationales and include both common law and statutory exceptions. One cannot view attorneys’ fees as a single, undifferentiated category. To decide what rule defines postjudgment motions for attorneys’ fees requires examination of the nature of the exception under which the fees are claimed and the conditions under which fees are awarded. In this case a statutory exception, 15 U.S.C. § 1117, is the basis for the motion, and therefore must be the focus of the analysis. Ill Section 1117 of Title 15 lists the remedies available for violation of the fed eral trademark statutes. The attorneys’ fees provision was added by amendment in 1975, and simply states: “The court in exceptional cases may award reasonable attorney fees to the prevailing party.” The provision is distinctive in the remedy scheme because it is discretionary and permits fees to be awarded to either party. The other remedies under § 1117 are available only to" }, { "docid": "22423273", "title": "", "text": "court requested supplemental briefs on the question of whether a postjudgment motion for attorney’s fees should be treated as a motion to alter or amend a judgment under Rule 59(e) of the Federal Rules of Civil Procedure. If so treated, the motions filed by the Union and the Company on January 2 and January 9,1980, respectively, would be untimely, having been served more than ten days after the district court’s entry of judgment on December 21,1979, and the district court would have lacked jurisdiction to make its award of attorney’s fees in this case. See United States v. Robinson, 361 U.S. 220, 229, 80 S.Ct. 282, 288, 4 L.Ed.2d 259 (1960). On this issue, Obin advances the First Circuit’s position that a motion for attorney’s fees under 42 U.S.C. § 1988 must be made within ten days after entry of judgment on the merits of the litigation. White v. New Hampshire Department of Employment Security, 629 F.2d 697, 699-700 (1st Cir. 1980), petition for cert. filed,-U.S. -, 101 S.Ct. 1692, 68 L.Ed.2d 191 (1980). See Hirschkop v. Snead, 475 F.Supp. 59, 62 (E.D.Va.1979) (weight of authority favors proposition that motions for fees under section 1988 must be filed within the ten-day period set forth in rule 59(e) for motions to alter or amend a judgment). Anheuser-Busch and District No. 9, on the other hand, argue for the view first adopted by the Fifth Circuit, and later embraced by the Sixth and Seventh Circuits, that attorney’s fees should be characterized as an item of costs, which under the provisions of rules 58 and 54(d), need not be requested within any prescribed time period after entry of judgment on the merits of the litigation. Jones v. Dealers Tractor and Equipment Co., 634 F.2d 180, 181-82 (5th Cir. 1981); Van Ooteghem v. Gray, 628 F.2d 488, 496-97 (5th Cir. 1980); Knighton v. Watkins, 616 F.2d 795, 797-98 (5th Cir. 1980). See Johnson v. Snyder, 639 F.2d 316, 317 (6th Cir. 1981); Bond v. Stanton, 630 F.2d 1231, 1234 (7th Cir. 1980). Cf. Fox v. Parker, 626 F.2d 351, 352-53 (4th Cir. 1980) (argument" }, { "docid": "22585534", "title": "", "text": "does not affect finality of judgment), cert. denied, 429 U.S. 825, 97 S.Ct. 78, 50 L.Ed.2d 87 (1976). A. Boeing Vertol suggests that the setting of attorney’s fees is the equivalent of the taxing of costs under rule 58 of the Federal Rules of Civil Procedure. Because rule 58 provides that “[ejntry of the judgment shall not be delayed for the taxing of costs,” Boeing Vertol contends that the October 1979 order was a final judgment. We recognize that both the Civil Rights Attorney’s Fees Award Act of 1976, 42 U.S.C. § 1988, and title VII, id. § 2000e-5(k), in granting the right to seek attorney’s fees, direct that “the court, in its discretion, may allow the prevailing party ... a reasonable attorney’s fee as part of the costs.” 42 U.S.C. § 1988; id. § 2000e-5(k). Some circuits have concluded from the statutory language that “Congress directed that attorney’s fees under section 1988 be treated as costs” within, the meaning of the Federal Rules of Civil Procedure. See Knighton v. Watkins, 616 F.2d 795, 797 (5th Cir. 1980) (motion for attorney’s fees unlike motion to alter or amend judgment and thus need not be filed within ten days of entry of judgment under rule 59(e)); accord, Johnson v. Snyder, 639 F.2d 316, 317 (6th Cir. 1981) (per curiam); Bond v. Stanton, 630 F.2d 1231, 1234 (7th Cir. 1980). Other circuits, however, have concluded that when Congress referred to attorney’s fees as “costs,” it did not mean “to include those fees within the specific type of costs recoverable after judgment under [the Federal Rules].” See White v. New Hampshire Department of Employment Security, 629 F.2d 697, 702 (1st Cir. 1980), cert. granted, 451 U.S. 982, 101 S.Ct. 2313, 68 L.Ed.2d 839 (1981); accord, Obin v. District No. 9, International Association of Machinists, 651 F.2d 574, 580 (8th Cir. 1981) (“differences between attorney’s fees and the items routinely assessed as costs after entry of judgment on the merits make it unlikely that Congress intended that fees be treated as costs for purposes of Rule 54(d)”); Gurule v. Wilson, 635 F.2d 782, 787" }, { "docid": "18317804", "title": "", "text": "post-judgment motion. However, the Fifth Circuit Court of Appeals in Knighton v. Watkins, 616 F.2d 795 (5 Cir. 1980), has taken an opposite view. The Fifth Circuit stated: “In this case, attorney’s fees are by statute part of the costs. Because they may be awarded only to prevailing parties, and in the discretion of the district court guided by the Johnson [v. Georgia Highway Express, Inc., 488 F.2d 714 (5 Cir. 1974)] factors, attorney’s fees under section 1988 will ordinarily be sought only after litigation. See Gore v. Turner, 563 F.2d 159, 163 (5 Cir. 1977). Thus, a motion for attorney’s fees is unlike a change in the judgment, but merely seeks what is due because of the judgment. It is, therefore, not governed by the provisions of Rule 59(e).” [Citations omitted] . . . “Rule 54(d) of the Federal Rules of Civil Procedure, which provides for the awarding of costs, does not specify a time in which the motion for costs must be made. It does specify the time in which an objection to an award must be made, but even that is not jurisdictional [Citation omitted] ... In cases to which section 1988 is applicable, it eliminates the general rule that attorney’s fees may not be taxed as costs. Because Congress directed that attorney’s fees under section 1988 be treated as costs, [Footnote omitted] there is no jurisdictional time limit on the filing of a motion seeking such fees.” 616 F.2d at 797, 798. Since the Court’s decision in Knighton, the Fifth Circuit has been very clear in following Knighton, and holding that a motion for attorney’s fees filed pursuant to section 1988 will not be treated as a motion to alter or amend the judgment. Van Ooteghem v. Gary, 628 F.2d 488 (5 Cir. 1980); Jones v. Dealers Tractor and Equipment Co., 634 F.2d 180 (5 Cir. 1981). In this case, the defendant filed this motion on March 2, 1981, nearly three months after the judgment was entered in this case on December 8, 1980. Since the Fifth Circuit has held that two months is a reasonable" }, { "docid": "21892800", "title": "", "text": "because of this bond that a motion for fees after judgment is necessarily a Rule 59(e) motion to alter or amend the judgment. The intertwining of issues is evident in this case. In order to establish that this was an “exceptional” case, Kefalas would have to convince the court that Hairline’s defense of its trademark rights was “malicious, fraudulent, deliberate or willful.” This Kefalas already had failed to do: the district court determined that the case was not exceptional. This conclusion is evident in the court’s order that each side bear its own costs. If the court was unwilling to award costs to the prevailing party, it is unlikely the court would consider the case so “exceptional” that attorneys’ fees would be awarded. Moreover, the court had rejected Kefalas’ abuse of process claim, and Kefalas’ brief indicates that essentially the same arguments were advanced as the basis for attorneys’ fees. An award of attorneys’ fees would have been inconsistent with dismissal of the abuse of process claim unless the judgment was amended. The determination of the attorneys’ fees motion thus would have required reexamination of factual findings and legal conclusions in the judgment. Rule 59(e) insures that such reconsideration will occur close in time to the judgment in order to prevent unnecessary relitigation. Precisely the opposite result would occur if we were to treat this motion for attorneys’ fees as a Rule 54(d) motion. Lacking any time limit, Rule 54(d) would permit the filing of a motion for attorneys’ fees weeks or even months after final judgment. Because the issue of whether a case is “exceptional” is not collateral, such a proceeding would inevitably tempt the parties to relitigate issues decided at trial. The effect would be to protract litigation and undermine the finality of the judgment. IV Treating this motion for attorneys’ fees as a Rule 54(d) motion also would ignore the particular function of attorneys’ fees in trademark cases in favor of treating all statutory authorizations of attorneys’ fees under a single rubric. This is the essence of Kefalas’ argument that this appeal should be governed by our" }, { "docid": "22423275", "title": "", "text": "urging application of the ten-day provision of Rule 59(e) to motions for attorney’s fees rejected as untimely because raised for first time on appeal); Stacy v. Williams, 446 F.2d 1366, 1367 (5th Cir. 1971) (motion to amend bill of costs to allow reasonable attorney’s fees for opponent’s bad-faith pursuit of litigation dismissed as untimely because filed after ten-day period prescribed in rule 59(e)), But see note 5 supra. In Knighton v. Watkins, 616 F.2d 795 (5th Cir. 1980), the Fifth Circuit held that an award of attorney’s fees under section 1988 should be treated “as part of the costs” taxed after litigation under Rule 54(d) rather than as an element of the judgment on the merits. The court primarily relied on the language of section 1988, which “allow[s] the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs.\" 42 U.S.C. § 1988 (1976) (emphasis added). Because Rule 58 specifically provides that the entry of judgment shall not be delayed for the taxing of costs, and neither Rule 54(d) nor 58 prescribes any period after judgment within which an application for costs must be filed, the Fifth Circuit found no bar to entertaining a fee request filed over two months after the district court entered judgment on the merits. The First Circuit, however, found this analysis unpersuasive in White v. New Hampshire Department of Employment Security, 629 F.2d 697 (1st Cir. 1980). The court concluded that, despite the statutory language describing attorney’s fees “as part of the costs,” Congress did not intend to include attorney’s fees within the specific type of costs recoverable after judgment under Rule 54(d). The court reasoned that the costs allowed as of course by Rule 54(d) and detailed in 28 U.S.C. § 1920 are items of a nature very different from the discretionary attorney’s fees allowed un-, der the Fees Act. Rule 54(d) envisages the former as capable of being taxed by the clerk on one day’s notice. * * * Not so the discretionary award of attorney’s fees under section 1988. To calculate such an award, indeed, even" }, { "docid": "22423274", "title": "", "text": "Hirschkop v. Snead, 475 F.Supp. 59, 62 (E.D.Va.1979) (weight of authority favors proposition that motions for fees under section 1988 must be filed within the ten-day period set forth in rule 59(e) for motions to alter or amend a judgment). Anheuser-Busch and District No. 9, on the other hand, argue for the view first adopted by the Fifth Circuit, and later embraced by the Sixth and Seventh Circuits, that attorney’s fees should be characterized as an item of costs, which under the provisions of rules 58 and 54(d), need not be requested within any prescribed time period after entry of judgment on the merits of the litigation. Jones v. Dealers Tractor and Equipment Co., 634 F.2d 180, 181-82 (5th Cir. 1981); Van Ooteghem v. Gray, 628 F.2d 488, 496-97 (5th Cir. 1980); Knighton v. Watkins, 616 F.2d 795, 797-98 (5th Cir. 1980). See Johnson v. Snyder, 639 F.2d 316, 317 (6th Cir. 1981); Bond v. Stanton, 630 F.2d 1231, 1234 (7th Cir. 1980). Cf. Fox v. Parker, 626 F.2d 351, 352-53 (4th Cir. 1980) (argument urging application of the ten-day provision of Rule 59(e) to motions for attorney’s fees rejected as untimely because raised for first time on appeal); Stacy v. Williams, 446 F.2d 1366, 1367 (5th Cir. 1971) (motion to amend bill of costs to allow reasonable attorney’s fees for opponent’s bad-faith pursuit of litigation dismissed as untimely because filed after ten-day period prescribed in rule 59(e)), But see note 5 supra. In Knighton v. Watkins, 616 F.2d 795 (5th Cir. 1980), the Fifth Circuit held that an award of attorney’s fees under section 1988 should be treated “as part of the costs” taxed after litigation under Rule 54(d) rather than as an element of the judgment on the merits. The court primarily relied on the language of section 1988, which “allow[s] the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs.\" 42 U.S.C. § 1988 (1976) (emphasis added). Because Rule 58 specifically provides that the entry of judgment shall not be delayed for the taxing of costs, and neither Rule 54(d)" }, { "docid": "2696402", "title": "", "text": "award was authorized by statute as part of the costs. Because under the statute attorneys’ fees can only be awarded to prevailing parties, attorneys’ fees under section 1988 will usually be sought only after litigation. The court concluded: [A] motion for attorney’s fees is unlike a motion to alter or amend a judgment. It does not imply a change in the judgment, but merely seeks what is due because of the judgment. It is, therefore, not governed by the provisions of Rule 59(e). 616 F.2d at 797. The court found further support for its decision to allow the award by the manner of handling proceedings for an award of costs. The court noted that costs were properly taxed after a decision had been reached and that Rule 54(d), which provides for the awarding of costs, does not specify the time in which the motion for costs must be made. Brown v. City of Palmetto, Ga., 681 F.2d 1325 (11th Cir.1982), recently reiterated the Knighton rule that motions for attorneys’ fees under 42 U.S.C. sec. 1988 do not have to be filed within the Rule 59(e) ten-day time limitation. In Brown, the court held that even a local court rule requiring bills of cost to be filed within thirty days after the time judgment is entered did not place a time limitation on the section 1988 request for attorneys’ fees. Absent a local rule explicitly requiring the filing of motions for attorneys’ fees within specified time constraints, the court concluded that, “a claim for attorney’s fees would be untimely only on a showing of unfair surprise or prejudice.” 681 F.2d at 1327. The present appeal presents this court with the novel question of what, if any, time limitation should be applied when the award of attorneys’ fees is based on both equitable and statutory grounds. The district court stated that its awards, to FNBPB in the first case and to all defendants in the second case, were founded on the inherent power of the court, the provisions of 28 U.S.C. sec. 1927, and Federal Rule of Civil Procedure 11. In holding" }, { "docid": "23173735", "title": "", "text": "may impose a very substantial and bitterly disputed liability upon the losing party. Hence while such fees, like routine costs, are, to be sure, somewhat ancillary to the main dispute, they are fully capable of engendering a major controverted claim which will be closely intertwined with the merits of the primary dispute and which will require careful factual and legal analysis by the court. The considerations making it feasible to treat routine costs as an exception to final judgment rules-the ease of their computation and the fact that they almost never give rise to dispute or appeal-plainly do not apply to section 1988 attorney’s fees. Thus we do not believe that a section 1988 fees award can be likened to the costs assessed routinely after entry of judgment.” Id. at 702-703; but see Bond v. Stanton, 630 F.2d 1231, at 1233-1234 (7th Cir. 1980); Knighton v. Watkins, 616 F.2d 795, 797-98 (5th Cir. 1980). The First Circuit concluded that “[t]he ultimate award of fees is, in our view, clearly a part of the overall relief sought and granted during the course of a particular civil rights action.” 629 F.2d at 704. This case is an excellent illustration of the close relationship between the merits of a civil rights action and the right to attorneys fees under 42 U.S.C. § 1988. Defendants contend that plaintiffs are not “prevailing” parties within the meaning of section 1988. See part IV, infra. To determine whether plaintiffs prevailed on the merits, it was necessary for us to review the entire record with the same scrutiny as our review to determine the outcome on the merits. Thus, the propriety of the fee award and the correctness of the decision on the merits are inextricably bound. See parts II & III, infra. Holding the district court’s judgment of April 6 to be final would effectively require separate appeals of these interdependent issues. With the policy against piecemeal litigation in mind, we believe the better rule is that where an award of attorneys fees is sought in a civil rights action, a judgment on the merits is not" }, { "docid": "22585535", "title": "", "text": "(5th Cir. 1980) (motion for attorney’s fees unlike motion to alter or amend judgment and thus need not be filed within ten days of entry of judgment under rule 59(e)); accord, Johnson v. Snyder, 639 F.2d 316, 317 (6th Cir. 1981) (per curiam); Bond v. Stanton, 630 F.2d 1231, 1234 (7th Cir. 1980). Other circuits, however, have concluded that when Congress referred to attorney’s fees as “costs,” it did not mean “to include those fees within the specific type of costs recoverable after judgment under [the Federal Rules].” See White v. New Hampshire Department of Employment Security, 629 F.2d 697, 702 (1st Cir. 1980), cert. granted, 451 U.S. 982, 101 S.Ct. 2313, 68 L.Ed.2d 839 (1981); accord, Obin v. District No. 9, International Association of Machinists, 651 F.2d 574, 580 (8th Cir. 1981) (“differences between attorney’s fees and the items routinely assessed as costs after entry of judgment on the merits make it unlikely that Congress intended that fees be treated as costs for purposes of Rule 54(d)”); Gurule v. Wilson, 635 F.2d 782, 787 (10th Cir. 1980). These courts have also recognized that the Supreme Court’s identification of section 1988 fees as “costs” in Hutto v. Finney, 437 U.S. 678, 695, 98 S.Ct. 2565, 2576, 57 L.Ed.2d 522 (1978), which was made in the course of evaluating an eleventh amendment bar to award of such fees against the states, “hardly seems dispositive of the question whether section 1988 attorney’s fees fall within the specific types of taxable costs contemplated by Fed.R.Civ.P. 54(d) and 58.” See White, 639 F.2d at 703; accord, Obin, 651 F.2d at 580. We agree that the denomination of attorney’s fees as “costs” in the relevant attorney’s fees statutes was not intended to equate the often time-consuming process of setting fees with the routine award of other costs contemplated by the Federal Rules of Civil Procedure. Under the Federal Rules, costs are allowed as a matter of course to the prevailing party and are routinely taxed by the clerk of the court. See Fed.R.Civ.P. 54. The kind of attorney’s fees involved in this case, on the" }, { "docid": "2696401", "title": "", "text": "a motion for leave to amend the bill of costs and to allow reasonable attorneys’ fees, asserting that the defendants acted in bad faith in the protracted litigation. The district court ruled that the motion was untimely under Rule 59(e) and that the defense was not maintained in bad faith. On appeal, this court declined to review the request for attorneys’ fees on the merits and affirmed the district court’s ruling on the ground that the motion was untimely under Rule 59(e). In Knighton v. Watkins, 616 F.2d 795 (5th Cir.1980), this court took a different path regarding attorneys’ fees requested under 42 U.S.C. sec. 1988. Two months after prisoner Knighton was successful in his section 1988 suit, he filed for an award of attorneys’ fees. Although the request was made more than ten days after entry of final, judgment and thus could not be a successful motion to amend or alter judgment under Federal Rule of Civil Procedure 59(e), the court found the application for fees timely. The court noted that the attorneys’ fees award was authorized by statute as part of the costs. Because under the statute attorneys’ fees can only be awarded to prevailing parties, attorneys’ fees under section 1988 will usually be sought only after litigation. The court concluded: [A] motion for attorney’s fees is unlike a motion to alter or amend a judgment. It does not imply a change in the judgment, but merely seeks what is due because of the judgment. It is, therefore, not governed by the provisions of Rule 59(e). 616 F.2d at 797. The court found further support for its decision to allow the award by the manner of handling proceedings for an award of costs. The court noted that costs were properly taxed after a decision had been reached and that Rule 54(d), which provides for the awarding of costs, does not specify the time in which the motion for costs must be made. Brown v. City of Palmetto, Ga., 681 F.2d 1325 (11th Cir.1982), recently reiterated the Knighton rule that motions for attorneys’ fees under 42 U.S.C. sec. 1988" }, { "docid": "18815595", "title": "", "text": "August 27, 1982, defendant, Bob McElhaney, likewise moved for an award of attorney’s fees. Plaintiff has timely responded and the issues are ripe for resolution. Discussion I. Jurisdiction At the outset the Court raises, as legitimate inquiry into the existence of its subject matter jurisdiction, the issue of whether the timely filing of the notice of appeal divested this Court, of jurisdiction to entertain the subsequent motions for attorney’s fees. We note that there is a “split in the Circuits” on this precise issue. The First Circuit’s position is that a motion for attorney’s fees under 42 U.S.C. § 1988 must be made within ten days after entry of judgment on the merits of the litigation. White v. New Hampshire Dept. of Employment Security, 629 F.2d 697 (1st Cir.1980); Fed.R. Civ.P. 59(e). The Fifth, Sixth and Seventh Circuits have held, however, that attorney’s fees should be characterized as an item of costs, which, under the provisions of Rules 54(d) and 58, Fed.R.Civ.P., need not be requested within any prescribed time period after entry of judgment on the merits of the litigation. Jones v. Dealers Tractor and Equipment Co., 634 F.2d 180 (5th Cir.1981); Johnson v. Snyder, 639 F.2d 316 (6th Cir.1981); Bond v. Stanton, 630 F.2d 1231 (7th Cir. 1980). In Knighton v. Watkins, 616 F.2d 795 (5th Cir.1980), the Fifth Circuit held that an award of attorney’s fees under section 1988 should be treated “as part of the costs” taxed after litigation under Rule 54(d) rather than as an element of the judgment on the merits. The court primarily relied on the language of section 1988, which “allow[s] the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs.\" 42 U.S.C. § 1988 (1976) (emphasis added). Because Rule 58 specifically provides that the entry of judgment shall not be delayed for the taxing of costs, and neither Rule 54(d) nor 58 prescribes any period after judgment within which an application for costs must be filed, the Fifth Circuit found no bar to entertaining a fee request filed over two months after the district" }, { "docid": "18815596", "title": "", "text": "on the merits of the litigation. Jones v. Dealers Tractor and Equipment Co., 634 F.2d 180 (5th Cir.1981); Johnson v. Snyder, 639 F.2d 316 (6th Cir.1981); Bond v. Stanton, 630 F.2d 1231 (7th Cir. 1980). In Knighton v. Watkins, 616 F.2d 795 (5th Cir.1980), the Fifth Circuit held that an award of attorney’s fees under section 1988 should be treated “as part of the costs” taxed after litigation under Rule 54(d) rather than as an element of the judgment on the merits. The court primarily relied on the language of section 1988, which “allow[s] the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs.\" 42 U.S.C. § 1988 (1976) (emphasis added). Because Rule 58 specifically provides that the entry of judgment shall not be delayed for the taxing of costs, and neither Rule 54(d) nor 58 prescribes any period after judgment within which an application for costs must be filed, the Fifth Circuit found no bar to entertaining a fee request filed over two months after the district court entered judgment on the merits. The First Circuit, however, -found this analysis unpersuasive in White v. New Hampshire Department of Employment Security, 629 F.2d 697 (1st Cir.1980). The court concluded that, despite the statutory language describing attorney’s fees “part of the costs,” Congress did not intend to include attorney’s fees within the specific type of costs recoverable under Rule 54(d). The Court of Appeals for the Eighth Circuit, reviewing the relevant case law, agreed that “the differences between attorney’s fees and those items routinely assessed as costs after entry of judgment on the merits make it unlikely that Congress intended that fees be treated as costs for purposes of Rule 54(d).” Obin v. District No. 9 of Intern. Ass’n, Etc., 651 F.2d 574 (8th Cir.1981). Nevertheless, the Court indicated that their rejection of attorney’s fees as costs taxable under Rule 54(d) does not, a fortiori, lead to the conclusion that attorney’s fees are integral to the judgment on the merits and subject to the ten-day limitation of Rule 59(e). “Just as an award of" }, { "docid": "14311236", "title": "", "text": "court within fourteen days after the entry of our judgment. As we explained above, our award of costs in Ekanem II did not include an award of attorneys fees. Furthermore, our research reveals that a petition on entitlement to appellate attorneys fees may be filed in either the district court or the court of appeals. See e.g., Bond v. Stanton, 630 F.2d 1231 (7th Cir.1980) (petition for appellate attorneys fees filed in the district court); Muscare v. Quinn, 614 F.2d 577 (7th Cir.1980) (petition for appellate attorneys fees filed in the district court); Bugg v. Int. U. of Allied Indus. Workers of Am., 674 F.2d 595 (7th Cir.1982) (petition for appellate attorneys fees filed in court of appeals); Chrapliwy v. UniRoyal, Inc., 670 F.2d 760 (7th Cir.1982) (petition for appellate attorneys’ fees filed in the court of appeals); see generally, 2 Derfner & Wolf, Court Awarded Attorneys Fees, ¶ 18.05[3][a] (1985). Moreover, because an “award of attorneys’ fees under § 1988 is a decision distinct from the decision on the merits,” Terket v. Lund, 623 F.2d 29, 33 (7th Cir.1980), the filing of a petition for appellate attorneys fees in the district court is not governed by the timeliness requirement of Fed.R.App.P. 39. Cf. Bond, 630 F.2d at 1234 (a petition for attorneys fees under 42 U.S.C. § 1988 is not governed by the 10-day filing deadline of Fed.R.Civ.P. 59(e) because it is a motion for costs under Fed.R.Civ.P. 54(d)). We therefore hold that the defendants’ argument that the petition for appellate attorneys fees was untimely and improperly filed in the district court is without merit. B. Prevailing Party The plaintiffs dispute the district court’s finding that they were not “prevailing parties” arguing: (1) they gained relief in the court of appeals in the reversals of the award of attorneys’ fees to the defendants and of the district court’s definition of the relevant labor pool; (2) charges filed with the EEOC caused the defendants to change their allegedly illegal employment practices; and (3) the named plaintiff, Ekanem, was rehired by the corporation in the Fall of 1978 in response to" }, { "docid": "428642", "title": "", "text": "notices of appeal were not filed until April 23, 1981, these appeals were over four months late. The sole question here with respect to jurisdiction of this court to review the appeals on the merits is whether the filing of the plaintiffs’ request for attorneys fees within 10 days after the entry of the final judgment on the merits operated to toll the 30 day rule and thereby extend the time for filing the appeals on the merits. In plaintiffs’ motion to amend judgment, they sought only to amend it by the allowance of attorneys fees. They did not challenge in any respect the findings of fact, conclusions of law and judgment of the court on the merits. All plaintiffs desired was attorneys fees. Plaintiffs should have appealed from the final judgment on the merits within 30 days after the entry thereof on November 10, 1980. This would not have precluded the plaintiffs from filing a motion for attorneys fees in the district court pursuant to Rule 54. In our opinion, this case is governed by the principles of White v. New Hampshire Dept. of Empl. Sec., 455 U.S. 445, 102 S.Ct. 1162, 71 L.Ed.2d 325 (1982), which held that Rule 59(e) of the Federal Rules of Civil Procedure is not applicable to postjudgment requests for attorneys fees under 42 U.S.C. § 1988. The White Court deemed attorneys fees not requested as part of damages to be collateral to the merits of an action, and noted: Courts of Appeals for the Fifth, Sixth, and Seventh Circuits have held that post-judgment requests for attorney’s fees are not motions to alter or amend a judgment under Rule 59(e), but rather applications for “costs” under Rules 54(d) and 58. See Johnson v. Snyder, 639 F.2d 316, 317 (CA6 1981); Bond v. Stanton, 630 F.2d 1231, 1234 (CA7 1980); Knighton v. Watkins, supra [616 F.2d 795], at 797-798 [(CA5 1980)]. Id., at 450 n. 9, 102 S.Ct. at 1165 n. 9. The Court concluded, “Application of Rule 59(e) to § 1988 fee requests is neither necessary nor desirable to promote finality, judicial economy, or" } ]

[ { "docid": "15096869", "title": "", "text": "cover having a relatively elastic edge. We concur in this conclusion. However, we are not persuaded that there is sufficient ground for holding that Sternau’s cover must inherently have an elastic edge. In Sternau, we are faced with an application completely devoid of specific teachings as to the crucial matters in question. Were there some indication of the specific materials employed, or the process conditions to which the broad class of materials are subjected, it might be possible to establish that the limitations in the count are inherently met. But in these matters the application is silent. Moreover, we cannot find in Sternau any indication that he desired an inner cover which could be removed and reapplied to the container. Such a teaching might provide a basis for an inference that the inner cover did in fact have a relatively elastic edge. No doubt, if such were within his contemplation, one of ordinary skill in the art could devise process conditions to achieve such a result. But that is not the criterion upon which the issue of inherency is resolved. By copying claims from an issued patent, and lacking express support for the limitations found therein, Sternau was faced with a twofold burden. First, one copying a claim from a patent for the purpose of instituting interference proceedings must show that his application clearly supports the count. Jepson v. Coleman, 50 CCPA 1051, 314 F.2d 533, 136 USPQ 647. There must be no doubt that an application discloses each and every material limitation of the claims and all doubts must be resolved against the copier. Jepson v. Coleman, supra; Bierly v. Happoldt, 40 CCPA 774, 201 F.2d 955, 96 USPQ 406. Second, where support must be based on an inherent disclosure, it is not sufficient that a person following the disclosure might obtain the result set forth in the counts; it must inevitably happen. Crome v. Morrogh, 44 CCPA 704, 239 F.2d 390, 112 USPQ 49. There is of record an affidavit filed in behalf of Sternau, the pertinent averments of which read as follows: * * * that be" } ]

[ { "docid": "4451677", "title": "", "text": "ALMOND, Judge. This is an appeal from the decision of the Patent Office Board of Patent Interferences, adhered to on reconsideration, awarding priority to appellees, Joseph J. Kleimack, Howard H. Loar, and Henry C. Theuerer (hereinafter Kleimack). Appellant, Tummers, is involved on application serial No. 349,709 filed March 5, 1964 as a division of application serial No. 84,923, filed January 25, 1961, and accorded the benefit of a January 29, 1960 foreign priority date. The Tum-mers’ application is assigned to North American Philips Co., Inc. The sole count in the interference was copied from the Kleimaek patent, No. 3,165,811, issued January 19, 1965 on an application filed June 10, 1960. The Kleimack patent is assigned to Bell Telephone Laboratories, Inc. The invention in • issue relates to a method of making a diffused junction transistor. It is best understood from the following analysis of the count, which was provided as an appendix to appellees’ brief: Drawing of the Device Formed by the Process Described in the Count of this Interference After Each Step Thereof (Assuming an NPN Transistor) The primary issue in this case centers around the first step of the count which recites the vapor deposition of an epitaxial layer of high resistance on a sub strate. Both parties agree that “epitaxial” means at least that it is (a) a single crystal with (b) a crystal orientation determined by that of the substrate. The evidence also supports the board’s finding that “epitaxial” implies that the substrate for the layer is also a single crystal since single crystal layers do not ordinarily grow on polycrystalline substrates. After the interference was declared, Kleimack moved to dissolve the interference on the grounds that Tummers could not make the count, (1) because the first step of the count is not disclosed by Tum-mers and (2) because the Tummers’ disclosure is not enabling. In the alternative, Kleimack concurrently moved for leave to take testimony on these issues should the motion to dissolve be denied. The primary examiner denied the motion to dissolve, but the board granted the motion for leave to take testimony. Both" }, { "docid": "4451682", "title": "", "text": "polycrystalline material. As to whether appellant has the burden of showing that he can make the count, we think clearly he does. Appellant not only copied the claim from appellees’ patent but also relies on inherency of the disclosure, as supplemented by the prior art, for support of the count. Under such circumstances appellant has a twofold burden. As this court said in Dreyfus v. Sternau, 357 F.2d 411, 53 CCPA 1050 (1966) : First, one copying a claim from a patent for the purpose of instituting interference proceedings must show that his application clearly supports the count. * * * There must be no doubt that an application discloses each and every material limitation of the claims and all doubts must be resolved against the copier. * * * Second, where support must be based on an inherent disclosure, it is not sufficient that a person following the disclosure might obtain the result set forth in the counts; it must inevitably happen. This doctrine, which the board followed in the instant case, has been reaffirmed by this court in several recent cases. See, Reed v. Tornqvist, 436 F.2d 501, 58 CCPA 864 (1971); Noyce v. Kilby, 416 F.2d 1391, 57 CCPA 1156 (1969), and Gubelmann v. Gang, 408 F.2d 758, 56 CCPA 1013 (1969). We find absolutely no merit to appellant’s contention that the examiner’s decision denying appellees’ motion to dissolve switched the burden to appellees. The examiner’s decision merely left the issue for the board to resolve after testimony was taken. We also agree with the board that appellant has failed to meet his burden of proof in this case. Although we see nothing wrong with the board’s approach, since appellant considers two main issues to be presented, we will discuss them as appellant has presented them. First, appellant asserts that one skilled in the art reading the Tummers’ disclosure would know epitaxial layers were inherently intended because all known bipolar transistors were built with single crystal layers. While we have no doubt that one of ordinary skill in the art would have thought of epitaxial layers if" }, { "docid": "486444", "title": "", "text": "we think clearly he does. Appellant not only copied the claim from appellees’ patent but also relies on inherency of the disclosure, as supplemented by the prior art, for support of the count. Under such circumstances appellant has a twofold burden. As this court said in Dreyfus v. Sternau, 53 CCPA 1050, 357 F. 2d 411, 149 USPQ 63 (1966): Eirst, one copying a claim from a patent for the purpose of instituting interference proceedings must show that his application clearly supports the count. * * * There must be no doubt that an application discloses each and every material limitation of the claims and all doubts must be resolved against the copier. * - * Second, where support must be based on an inherent disclosure, it is not sufficient that a person following the disclosure might obtain the result set forth in the counts; it must inevitably happen. This doctrine, which the board followed in the instant case, has been reaffirmed by this court in several recent cases. See, Reed v. Tornquist, 58 CCPA 864, 436 F. 2d 501, 168 USPQ 462 (1971); Noyce v. Kilby, 57 CCPA 1156, 416 F. 2d 1391, 163 USPQ 550 (1969), and Gubel mann v. Gang, 56 CCPA 1013, 408 F. 2d 758, 161 USPQ, 216 (1969). We find absolutely no merit to appellant’s contention that the examiner’s decision denying appellees’ motion to dissolve switched the burden to appellees. The examiner’s decision merely left the issue for the board .to resolve after testimony was taken. We also agree with the board that appellant has failed to meet his burden of proof in this case. Although we see nothing wrong with the board’s approach, since appellant considers two main issues to be presented, we will discuss them as appellant has presented them. First, appellant asserts that one skilled in the art reading the Tum-mers’ disclosure would know epitaxial layers were inherently intended because all known bipolar transistors were built with single crystal layers. While we have no doubt that one of ordinary skill in the art would have thought of epitaxial layers if appellant" }, { "docid": "486440", "title": "", "text": "count which recites the vapor deposition of an eptiaxial layer of high resistance on a substrate. Both parties agree that “epitaxial” means at least that it is (a) a single crystal with (b) a crystal orientation determined by that of the substrate. The evidence also supports the board’s finding that “epitaxial” implies that the substrate for the layer is also a single crystal since single crystal layers do not ordinarily grow on polycrystalline substrates. After the interference was declared, Kleimack moved to dissolve the interference on the grounds that Tummers could not make the count, (1) because the first step of the count is not disclosed by Tummers and (2) because the Tummers’ disclosure is not enabling. In the alternative, Kleimack concurrently moved for leave to take testimony on these issues should the motion to dissolve be denied. The primary ■examiner denied the motion to dissolve, but the board granted the motion for leave to take testimony. Both parties took testimony and submitted exhibits. After briefs were filed and oral arguments heard, the board awarded priority to Kleimack on the ground that Tummers was not entitled to make the count. This decision was adhered to on reconsideration. The only issue before us is whether Tummers’ application supports the first step of the count. More particularly, the issue is whether the disclosure of a vapor-deposited epitaxial layer is inherent in the Tummers’ disclosure which does not explicitly mention epitaxial layers, but discloses vapor depositing a germanium layer on a silicon layer in a “known manner.” There is a considerable amount of evidence in the record pertaining to the state of the art as of January 1960 (the filing date of Tummers’ Dutch application), and, contrary to appellant’s arguments, we think the sufficiency of the Tummers’ disclosure must be determined as of that date. We will not attempt to set forth all that the evidence shows in that regard. However, in general we think it fair to say that vapor deposition of epitaxial layers in homoepitaxial growth, for example silicon on silicon, was well known in 1960. In fact, the testimony indicates" }, { "docid": "10932454", "title": "", "text": "It has been found preferable to use small diameter tubing throughout the entire blanket and to connect this tubing to small compact headers or junction units 16, 18 rather than having large diameter header tubes extend along the edge of the blanket. The reason for this is that if long header tubes are used, they must be large enough in diameter to carry the liquid for substantially all of the circuits 12 without appreciable pressure drop. On the other hand, tubing of the required diameter is very likely to kink and materially reduce or even •completely cut off the flow of liquid if made flexible enough to conform to folds and the like in the blanket. The header units 16,18 can be very compact assemblies, fully rigid to obviate kinking and yet extending over no more than one or two square inches of blanket surface area. Priority of invention was accordingly awarded to appellees. Appellant, in urging reversal of tifie board’s decision, contends tfiat tfie above paragraph in the Coleman et al. application, which appellant alleges as the “critical paragraph,” is only a criticism of prior art structures. He further contends that the five counts involved in the interference are limited to features not mentioned in the “critical paragraph.” We are faced with one issue here. Appllees stated it very concisely in their brief wherein they said: The only question raised in this forum is the correctness of the Board of Patent Interferences decision that senior party Coleman and MaoOracken is entitled to make the claims which are the Counts of the Interference. When one copies claims from a patent for the purpose of instituting interference proceedings, in order to be successful, that person’s application must clearly support those counts. See Brand v. Thomas, 25 CCPA 1053, 96 F. 2d 301, 37 USPQ 505; Crome v. Morrogh, 44 CCPA 704, 239 F. 2d 390, 112 USPQ 49. There must be no doubt that an applicant discloses each and every limitation of the claims and all doubts must be resolved against the copier. See Louis H. Segall v. Marion W. Sims" }, { "docid": "14518761", "title": "", "text": "of instituting interference proceedings, must show by clear and convincing evidence that his disclosure supports the counts. Tummers v. Kleimack, 455 F.2d 566, 59 CCPA 846, 172 USPQ 592 (1972); Gubelmann v. Gang, 408 F.2d 758, 56 CCPA 1013, 161 USPQ 216 (1969); Dreyfus v. Sternau, 357 F.2d 411, 53 CCPA 1050, 149 USPQ 63 (1966); Crome v. Morrogh, 239 F.2d 390, 44 CCPA 704, 112 USPQ 49 (1956). The denial of appellees’ motion to dissolve did not shift the burden. As this court stated in Tummers v. Kleimack, supra, 455 F.2d at 569, 59 CCPA at 850, 172 USPQ at 594: We find absolutely no merit to appellant’s contention that the examiner’s decision denying appellees’ motion to dissolve switched the burden to appellees. The examiner’s decision merely left the issue for the board to resolve after testimony was taken. • Although in the instant case no testimony was taken after the motion to dissolve was denied, the “examiner’s decision merely left the issue for the board to resolve.” Appellant has cited a number of cases in his brief and at the oral hearing for the proposition that Etzel has the burden of proof on the enablement issue. However, none of these cases is helpful to appellant. In Field v. Knowles, 183 F.2d 593, 37 CCPA 1211, 86 USPQ 373 (1950), the issue was inoperability — not enablement — of the disclosure of the application placed in interference. This court stated that the disclosure is presumed to be operable. Although the court said that the junior party had the burden of proof by a preponderance of the evidence on this issue, it should be noted that it was the junior party, Field, who raised the issue. In Nicolaou v. Cooperman, 438 F.2d 993, 996, 58 CCPA 938, 941, 168 USPQ 717, 719 (1971), this court clearly indicated that the burden of proof on the issue of operability rests on the party raising it, whether he is the junior or senior party. Similarly, the party “raising” the interference by copying claims has the burden of proof on enablement. In Coast v." }, { "docid": "486445", "title": "", "text": "864, 436 F. 2d 501, 168 USPQ 462 (1971); Noyce v. Kilby, 57 CCPA 1156, 416 F. 2d 1391, 163 USPQ 550 (1969), and Gubel mann v. Gang, 56 CCPA 1013, 408 F. 2d 758, 161 USPQ, 216 (1969). We find absolutely no merit to appellant’s contention that the examiner’s decision denying appellees’ motion to dissolve switched the burden to appellees. The examiner’s decision merely left the issue for the board .to resolve after testimony was taken. We also agree with the board that appellant has failed to meet his burden of proof in this case. Although we see nothing wrong with the board’s approach, since appellant considers two main issues to be presented, we will discuss them as appellant has presented them. First, appellant asserts that one skilled in the art reading the Tum-mers’ disclosure would know epitaxial layers were inherently intended because all known bipolar transistors were built with single crystal layers. While we have no doubt that one of ordinary skill in the art would have thought of epitaxial layers if appellant had disclosed homostructures such as silicon on silicon or germanium on germanium, we cannot say the same about the germanium on silicon heterostruc-tures disclosed. The evidence clearly supports the view, in conformity with the board’s findings, that in such situations one of ordinary skill in the art might very well think Tummers intended to disclose polycrystalline or amorphous layers. As mentioned above, if there is any doubt whatsoever about whether the limitations of the count are inherent in Tummers’ disclosure, it must be resolved against Tummers. Reed v. Tornquist, supra; Noyce v. Kilby, supra; Gubelmann v. Gang, supra; Dreyfus v. Sternau, supra. Secondly, we think it even more persuasive of the holding that Tum-mers cannot make the count that one of ordinary skill in the art would not have known how to deposit epitaxial germanium layers on silicon even if he knew that epitaxial layers were intended by Tummers. The Tummers’ disclosure states that the germanium is vapor deposited on the silicon “in known manner, not essential to the invention.” The evidence of record clearly" }, { "docid": "4451683", "title": "", "text": "reaffirmed by this court in several recent cases. See, Reed v. Tornqvist, 436 F.2d 501, 58 CCPA 864 (1971); Noyce v. Kilby, 416 F.2d 1391, 57 CCPA 1156 (1969), and Gubelmann v. Gang, 408 F.2d 758, 56 CCPA 1013 (1969). We find absolutely no merit to appellant’s contention that the examiner’s decision denying appellees’ motion to dissolve switched the burden to appellees. The examiner’s decision merely left the issue for the board to resolve after testimony was taken. We also agree with the board that appellant has failed to meet his burden of proof in this case. Although we see nothing wrong with the board’s approach, since appellant considers two main issues to be presented, we will discuss them as appellant has presented them. First, appellant asserts that one skilled in the art reading the Tummers’ disclosure would know epitaxial layers were inherently intended because all known bipolar transistors were built with single crystal layers. While we have no doubt that one of ordinary skill in the art would have thought of epitaxial layers if appellant had disclosed homostruetures, such as silicon on silicon or germanium on germanium, we cannot say the same about the germanium on silicon hetero-structures disclosed. The evidence clearly supports the view, in conformity with the board’s findings, that in such situations one of ordinary skill in the art might very well think Tummers intended to disclose polycrystalline or amorphous layers. As mentioned above, if there is any doubt whatsoever about whether the limitations of the count are inherent in Tummers’ disclosure, it must be resolved against Tummers. Reed v. Tornqvist, supra; Noyce v. Kilby, supra; Gubel-mann v. Gang, supra; Dreyfus v. Ster-nau, supra. Secondly, we think it even more persuasive of the holding that Tummers cannot make the count that one of ordinary skill in the art would not have known how to deposit epitaxial germanium layers on silicon even if he knew that epitaxial layers were intended by Tum-mers. The Tummers’ disclosure states that the germanium is vapor deposited on the silicon “in known manner, not essential to the invention.” The evidence of record" }, { "docid": "14518762", "title": "", "text": "cases in his brief and at the oral hearing for the proposition that Etzel has the burden of proof on the enablement issue. However, none of these cases is helpful to appellant. In Field v. Knowles, 183 F.2d 593, 37 CCPA 1211, 86 USPQ 373 (1950), the issue was inoperability — not enablement — of the disclosure of the application placed in interference. This court stated that the disclosure is presumed to be operable. Although the court said that the junior party had the burden of proof by a preponderance of the evidence on this issue, it should be noted that it was the junior party, Field, who raised the issue. In Nicolaou v. Cooperman, 438 F.2d 993, 996, 58 CCPA 938, 941, 168 USPQ 717, 719 (1971), this court clearly indicated that the burden of proof on the issue of operability rests on the party raising it, whether he is the junior or senior party. Similarly, the party “raising” the interference by copying claims has the burden of proof on enablement. In Coast v. Dubbs, 88 F.2d 734, 737, 24 CCPA 1023, 1028, 33 USPQ 91, 94 (1937), this court considered the question of “the burden of proof relative to inherency, and inoperativeness as it bears upon inherency.” However, the court’s discussion of the burden of proof on inherency was dictum, since it found that Dubbs, senior party and copier, had established a prima facie showing of inherency: Under all the facts of this case, we think a prima facie showing of inherency was made in the application of Dubbs, and that it was, therefore, incumbent upon Coast as the junior party to show lack of inherency . . . . [Id. 88 F.2d at 738, 24 CCPA at 1030, 33 USPQ at 96.] The burden of proof (by clear and convincing evidence) on the description issue also lies with appellant, as the party copying claims from a patent. At oral hearing, appellant argued that the burden rests upon appellees, citing Pew v. Gard, 97 F.2d 591, 25 CCPA 1326, 38 USPQ 115 (1938). In Pew, which involved the" }, { "docid": "14518764", "title": "", "text": "issue of whether the senior party-copier inherently disclosed a limitation of the counts, this court held that the burden of proof was on the junior party (Pew), who had raised the issue of inherency by filing a motion to dissolve the interference with respect to the senior party’s right to make the counts. This assignment of the burden of proof, however, has not been followed in the later cases. For example, in Dreyfus v. Sternau, supra, which also involved the issue of inherency in the disclosure of the senior party-copier raised by the junior party on a motion to dissolve the interference, this court said: By copying claims from an issued patent, and lacking express support for the limitations found therein, Sternau was faced with a twofold burden. First, one copying a claim from a patent for the purpose of instituting interference proceedings must show that his application clearly supports the count. There must be no doubt that an application discloses each and every material limitation of the claims and all doubts must be resolved against the copier. . Second, where support must be based on an inherent disclosure, it is not sufficient that a person following the disclosure might obtain the result set forth in the counts; it must inevitably happen. [357 F.2d at 415, 53 CCPA at 1054, 149 USPQ at 66.] Accord, Tummers v. Kleimack, supra, Gubelmann v. Gang, supra. Description Issue Appellant argues that the terminal portion of the counts merely describes inherent characteristics of the trivalent ytterbium glass laser. He points to his affidavit under 37 CFR 1.205 and to a publication by D. McClure (D. McClure, Electronic Spectra of Molecules and Ions in Crystals, Part II, Spectra of Ions in Crystals, 9 Solid State Physics 454-74 (Seitz & Turnbull ed. 1959)) for support of this position. Relevant portions of the affidavit, which includes a discussion of McClure, are set forth below: In summary of the foregoing factual matters, McClure in Fig. 18B on page 457 of Exhibit A shows trivalent ytterbium as having essentially only two energy levels; namely, an upper 2F5/2 energy level" }, { "docid": "3840397", "title": "", "text": "by Meitzner, the gel-type structures of the prior art have a “gel porosity.” Even if counts 1-4 were limited to a process of forming copolymers having such a “true porosity,” the argument that the Mindick parent application does not disclose “true porosity” is unsupported by evidence. Argument of counsel cannot take the place of evidence lacking in the record. In re Lindner, 457 F.2d 506, 59 CCPA 920, 173 USPQ 356 (1972); In re Schulze, 346 F.2d 600, 52 CCPA 1422, 145 USPQ 716 (1965). We disagree with the contention of Meitzner that Mindick waived their right to raise junior party estoppel in this interference by not raising it in the second interference. It is stated by Meitzner that “[cjonsiderable delay and vexatious litigation might have been avoided had Mindick et al. acted in a timely fashion and brought the motion to dissolve based on alleged estoppel in the second interference.” However, we note that the second interference was dissolved, following the Commissioner’s order to show cause, on the basis of estoppel for failure “to litigate matters which could and should have been raised in [the first interference].” Thus, Meitzner suffered no “considerable delay and vexatious litigation.” Although Mindick did not raise the issue, the reason for applying the waiver doctrine, as urged by Meitzner, is nonexistent. It is further stated by Meitzner that, by failing to move for dissolution of the second interference, Mindick “denied to Meitzner et al. their right to proceed . with a motion to amend and/or to adversary argument before the Primary Examiner . . . .” However, the substance of the asserted “right” is speculative since Meitzner had moved before the Primary Examiner to substitute counts (which motion was denied). Reliance by Meitzner on Vickery v. Barnhart, 118 F.2d 578, 28 CCPA 979, 49 USPQ 106 (1941), for the proposition that Mindick waived their right to rely on junior party estoppel is misplaced. In Vickery, this court held that the appellant was not allowed to raise the issue of disclaimer of invention in the same proceeding, since he had failed to timely move to" }, { "docid": "14518759", "title": "", "text": "glass host is described as such in appellant’s specification. [Id, 465 F.2d at 903, 59 CCPA at 1247, 175 USPQ at 111.] The Proceedings Below On remand, the board first considered whether Snitzer’s disclosure described the terminal portion of the counts. It found that this portion is neither expressly described in the disclosure nor suggested by the prior art and evidence of record. It also found no evidence that the parameters applicable to lasers known at the time Snitzer’s application was filed could be applied to trivalent ytterbium glass lasers without undue experimentation. The board next considered whether Snitzer’s disclosure would have been enabling. It found that while one skilled in the art, using Snitzer’s disclosure, could determine the characteristics of the pumping source to obtain laser action with a trivalent ytterbium glass laser, there was still not enough information to construct an operable trivalent ytterbium glass laser without undue experimentation. The board pointed to Snitzer’s own affidavit under 37 CFR 1.132 to show the unpredictability, for successful lasing action, of activated glass-like host material. It also found that operating parameters of such a laser, which functions at optical frequencies measured in millimicrons, are so “critically interrelated” that undue experimentation would be necessary without their precise specification. Finally, it noted that Etzel requires operation at low temperatures and that this is not disclosed by Snitzer. Accordingly, the board held that Snitzer’s disclosure did not describe the terminal portion of the counts and that it was not an enabling disclosure. OPINION The substantive issues are whether appellant’s disclosure would have enabled one skilled in the art to practice the invention of the counts and whether it describes the terminal portion of the counts. Before reaching these issues, however, we must first determine which party has the burden of proof, a question on which the parties disagree. Burden of Proof Appellant contends that the burden of proof on the enablement issue is on Etzel, as the junior party, whose motion to dissolve on this issue was denied. We cannot agree. Appellant, as the party copying claims from a patent for the purpose" }, { "docid": "3840405", "title": "", "text": "by Mindick. These can be divided into two groups: (1) those portions relating to the estoppel issue, and (2) those portions relating to the Mindick request for an award of attorney’s fees and costs. In determining the taxation of printing costs for portions of the transcript requested by appellees, appellants are only required to pay for so much of the transcript as is necessary for the court to decide the issues they raised on appeal; the costs of material needed for the court to make a decision on the issues raised by appellees and of unnecessary materials should be taxed against appellees. Myers v. Feigelman, 455 F.2d 596, 59 CCPA 834, 172 USPQ 580 (1972). Those portions of the transcript relating to the estoppel issue, which was raised by Meitzner in their Notice and Reasons of Appeal, are considered necessary for the court’s decision on this issue. Accordingly, the cost thereof is to be paid by Meitzner. The portions of the transcript requested by Mindick relating to their request for an award of attorney’s fees and costs are to be paid by Mindick. The decision of the board awarding priority to Mindick on counts 1-10 is affirmed. AFFIRMED. . Involved on application serial No. 749,526, filed July 18, 1958, and entitled “Polymerization Processes and Products Therefrom.” . In interference No. 97,787. . Involved on patent No. 3,549,562, entitled “Production of Ion Exchange Resin Particles,” issued December 22, 1970, on application serial No. 463,923, filed June 14, 1965, a continuation of application serial No. 691,541, filed October 22, 1957, the benefit of whose filing date was accorded Mindick for purposes of this interference. . The board also considered (1) Mindick’s motion for judgment on the record, and (2) Min-dick’s motion to dissolve based on 35 U.S.C. § 135(b). After making its determination on the estoppel issue, the board considered each party’s priority proofs. In considering Min.dick’s priority proofs, the board rejected the Meitzner argument that Mindick, having failed to move for the benefit of their parent application with respect to counts 5-10 (when Meitzner moved to add these counts during the" }, { "docid": "14518763", "title": "", "text": "Dubbs, 88 F.2d 734, 737, 24 CCPA 1023, 1028, 33 USPQ 91, 94 (1937), this court considered the question of “the burden of proof relative to inherency, and inoperativeness as it bears upon inherency.” However, the court’s discussion of the burden of proof on inherency was dictum, since it found that Dubbs, senior party and copier, had established a prima facie showing of inherency: Under all the facts of this case, we think a prima facie showing of inherency was made in the application of Dubbs, and that it was, therefore, incumbent upon Coast as the junior party to show lack of inherency . . . . [Id. 88 F.2d at 738, 24 CCPA at 1030, 33 USPQ at 96.] The burden of proof (by clear and convincing evidence) on the description issue also lies with appellant, as the party copying claims from a patent. At oral hearing, appellant argued that the burden rests upon appellees, citing Pew v. Gard, 97 F.2d 591, 25 CCPA 1326, 38 USPQ 115 (1938). In Pew, which involved the issue of whether the senior party-copier inherently disclosed a limitation of the counts, this court held that the burden of proof was on the junior party (Pew), who had raised the issue of inherency by filing a motion to dissolve the interference with respect to the senior party’s right to make the counts. This assignment of the burden of proof, however, has not been followed in the later cases. For example, in Dreyfus v. Sternau, supra, which also involved the issue of inherency in the disclosure of the senior party-copier raised by the junior party on a motion to dissolve the interference, this court said: By copying claims from an issued patent, and lacking express support for the limitations found therein, Sternau was faced with a twofold burden. First, one copying a claim from a patent for the purpose of instituting interference proceedings must show that his application clearly supports the count. There must be no doubt that an application discloses each and every material limitation of the claims and all doubts must be resolved" }, { "docid": "17821620", "title": "", "text": "F. 2d 999, 5 USPQ 436; In re O'Dowd, 18 CCPA 1002, 47 F. 2d 392, 8 USPQ 187; Field v. Stow, 18 CCPA 1502, 49 F. 2d 1072, 9 USPQ 483; Sweetland v. Cole, 19 CCPA 751, 53 F. 2d 709, 11 USPQ 174; Mudd v. Schoen, 19 CCPA 840, 54 F. 2d 959, 12 USPQ 102; Bragg v. Besler, 19 CCPA 1084, 56 F. 2d 881, 13 USPQ 6, In re Fischer, 19 CCPA 1231, 58 F. 2d 1058, 13 USPQ 386; In re Creveling, 20 CCPA 701, 61 F. 2d 862, 15 USPQ 264; In re Replogle, 21 CCPA 1068, 70 F. 2d 375, 21 USPQ 392; Kean v. Wheelan, 26 CCPA 1010, 102 F. 2d 824, 41 USPQ 226; In re Draeger, 32 CCPA 1217, 150 F. 2d 572, 66 USPQ 247; Crome v. Morrogh, 44 CCPA 704, 239 F. 2d 390, 112 USPQ 49. In some of the above cases it is said that “express limitations” must be regarded as “material” but it is not seen how this legal characterization adds anything to the rule that express limitations will not be ignored in determining whether the count finds support in an applicant’s disclosure. With reference to “materiality,” note is taken of the provision of Rule 205, Rules of Practice in Patent Cases, which provides that in copying patent claims for interference “an immaterial limitation or variation” may be excluded. This was not attempted by appellant herein and he cannot now be heard to insist that the involved limitation is not material, however else it may be characterized. Hall v. Taylor, 51 CCPA 1420, 332 F. 2d 844, 141 USPQ 821 (1964), cannot help appellant. It is not a comparable case. Taylor copied the count from Hall’s patent and the question was whether it found support in his 1953 parent application, on the date of which he was obliged to rely. The board found it did and we affirmed. We held, in accord with the established rule, that “all limitations of a-claim must be considered” and, doing so, we found Taylor’s application supported them. The appellant," }, { "docid": "6985966", "title": "", "text": "issue of priority, patentability of a party’s claims over prior art or patentability of the interference counts over prior art has been consistently and firmly rejected as an issue within the board’s jurisdiction. Glass v. De Roo, 239 F.2d 402, 112 USPQ 62 (CCPA 1956) and cases cited therein; Kahn v. Phipard, 397 F.2d 995, 158 USPQ 269 (CCPA 1968); Tofe v. Winchell, 645 F.2d at 64, 209 USPQ at 385 (Markey, C.J., concurring). Moreover, the counts of the interference serve merely as a “vehicle for contesting priority.” Squires v. Corbett, 560 F.2d 424, 433, 194 USPQ 513, 519 (CCPA 1977). No purpose would be served in determining patentability of the count itself over the prior art, particularly a phantom count, which by definition neither party asserts as a claim. Despite this authority, appellant asserts that “patentability” is always a threshold issue in an interference. In support of this position appellant makes an elliptic quotation from Hilborn v. Dann, 546 F.2d 401, 403, 192 USPQ 132, 134 (CCPA 1976), for the proposition “[T]he ‘threshold’ question ____ is patentability of the count.” The quotation merely illustrates the delusion in citing as precedent a sentence from a judicial opinion without regard to the issue before the court. Whether the board must determine patentability over prior art in the interference proceeding was not an issue in Hilborn. The party Hilborn sought a writ of mandamus to compel resumption of a suspended interference and to preclude review by the Commissioner of a decision by the primary examiner that Hilborn’s application (which contained the count as a claim) was not entitled to be in the interference. The issue concerned the court’s authority to control the Commissioner’s exercise of discretion in setting up or dissolving an interference, not the jurisdiction of the board. In any event, the precedent which is controlling has been indicated above. Dr. Case also asserts that the phantom counts are “so broad as to fail to particularly point out and claim the invention in issue, and the ‘phantom’ counts are thus unpatentable under 35 U.S.C. § 112.” Case confuses “claims” and “counts”" }, { "docid": "486443", "title": "", "text": "in polycrystalline growth or result in the formation of unusable germanium islands. Appellant takes exception to every aspect of the board’s decision, but in the main contends that the board erred in placing the burden on appellant and in failing to recognize that there were two principal issues in the case. That is, appellant asserts that the question is not whether anyone following known techniques without any disposition to grow epitaxial layers would automatically get epitaxy, but (a) whether one skilled in the art reading Tummers’ specification would understand it to mean epitaxy and (b) whether he would then know how to accomplish that objective. Tummers takes the position that if one wanted to grow an epitaxial layer, then he could do so with Tum-mers’ teachings augmented by the existing art knowledge, and anyone skilled in the art following Tummers’ teachings would want to grow a single crystal epitaxial layer because nobody has ever made commercial transistors of polycrystalline material. As to whether appellant has the burden of showing that he can make the count, we think clearly he does. Appellant not only copied the claim from appellees’ patent but also relies on inherency of the disclosure, as supplemented by the prior art, for support of the count. Under such circumstances appellant has a twofold burden. As this court said in Dreyfus v. Sternau, 53 CCPA 1050, 357 F. 2d 411, 149 USPQ 63 (1966): Eirst, one copying a claim from a patent for the purpose of instituting interference proceedings must show that his application clearly supports the count. * * * There must be no doubt that an application discloses each and every material limitation of the claims and all doubts must be resolved against the copier. * - * Second, where support must be based on an inherent disclosure, it is not sufficient that a person following the disclosure might obtain the result set forth in the counts; it must inevitably happen. This doctrine, which the board followed in the instant case, has been reaffirmed by this court in several recent cases. See, Reed v. Tornquist, 58 CCPA" }, { "docid": "4451678", "title": "", "text": "an NPN Transistor) The primary issue in this case centers around the first step of the count which recites the vapor deposition of an epitaxial layer of high resistance on a sub strate. Both parties agree that “epitaxial” means at least that it is (a) a single crystal with (b) a crystal orientation determined by that of the substrate. The evidence also supports the board’s finding that “epitaxial” implies that the substrate for the layer is also a single crystal since single crystal layers do not ordinarily grow on polycrystalline substrates. After the interference was declared, Kleimack moved to dissolve the interference on the grounds that Tummers could not make the count, (1) because the first step of the count is not disclosed by Tum-mers and (2) because the Tummers’ disclosure is not enabling. In the alternative, Kleimack concurrently moved for leave to take testimony on these issues should the motion to dissolve be denied. The primary examiner denied the motion to dissolve, but the board granted the motion for leave to take testimony. Both parties took testimony and submitted exhibits. After briefs were filed and oral arguments heard, the board awarded priority to Kleimack on the ground that Tummers was not entitled to make the count. This decision was adhered to on reconsideration. The only issue before us is whether Tummers’ application supports the first step of the count. More particularly, the issue is whether the disclosure of a vapor-deposited epitaxial layer is inherent in the Tummers’ disclosure which does not explicitly mention epitaxial layers, but discloses vapor depositing a germanium layer on a silicon layer in a “known manner.” There is a considerable amount of evidence in the record pertaining to the state of the art as of January 1960 (the filing date of Tummers’ Dutch application), and, contrary to appellant’s arguments, we think the sufficiency of the Tummers’ disclosure must be determined as of that date. We will not attempt to set forth all that the evidence shows in that regard. However, in general we think it fair to say that vapor deposition of epitaxial layers in" }, { "docid": "14518760", "title": "", "text": "It also found that operating parameters of such a laser, which functions at optical frequencies measured in millimicrons, are so “critically interrelated” that undue experimentation would be necessary without their precise specification. Finally, it noted that Etzel requires operation at low temperatures and that this is not disclosed by Snitzer. Accordingly, the board held that Snitzer’s disclosure did not describe the terminal portion of the counts and that it was not an enabling disclosure. OPINION The substantive issues are whether appellant’s disclosure would have enabled one skilled in the art to practice the invention of the counts and whether it describes the terminal portion of the counts. Before reaching these issues, however, we must first determine which party has the burden of proof, a question on which the parties disagree. Burden of Proof Appellant contends that the burden of proof on the enablement issue is on Etzel, as the junior party, whose motion to dissolve on this issue was denied. We cannot agree. Appellant, as the party copying claims from a patent for the purpose of instituting interference proceedings, must show by clear and convincing evidence that his disclosure supports the counts. Tummers v. Kleimack, 455 F.2d 566, 59 CCPA 846, 172 USPQ 592 (1972); Gubelmann v. Gang, 408 F.2d 758, 56 CCPA 1013, 161 USPQ 216 (1969); Dreyfus v. Sternau, 357 F.2d 411, 53 CCPA 1050, 149 USPQ 63 (1966); Crome v. Morrogh, 239 F.2d 390, 44 CCPA 704, 112 USPQ 49 (1956). The denial of appellees’ motion to dissolve did not shift the burden. As this court stated in Tummers v. Kleimack, supra, 455 F.2d at 569, 59 CCPA at 850, 172 USPQ at 594: We find absolutely no merit to appellant’s contention that the examiner’s decision denying appellees’ motion to dissolve switched the burden to appellees. The examiner’s decision merely left the issue for the board to resolve after testimony was taken. • Although in the instant case no testimony was taken after the motion to dissolve was denied, the “examiner’s decision merely left the issue for the board to resolve.” Appellant has cited a number of" }, { "docid": "10932455", "title": "", "text": "alleges as the “critical paragraph,” is only a criticism of prior art structures. He further contends that the five counts involved in the interference are limited to features not mentioned in the “critical paragraph.” We are faced with one issue here. Appllees stated it very concisely in their brief wherein they said: The only question raised in this forum is the correctness of the Board of Patent Interferences decision that senior party Coleman and MaoOracken is entitled to make the claims which are the Counts of the Interference. When one copies claims from a patent for the purpose of instituting interference proceedings, in order to be successful, that person’s application must clearly support those counts. See Brand v. Thomas, 25 CCPA 1053, 96 F. 2d 301, 37 USPQ 505; Crome v. Morrogh, 44 CCPA 704, 239 F. 2d 390, 112 USPQ 49. There must be no doubt that an applicant discloses each and every limitation of the claims and all doubts must be resolved against the copier. See Louis H. Segall v. Marion W. Sims et al., 47 CCPA 886, 276 F. 2d 661, 125 USPQ 394. It is not a question of whether one skilled in the art might be able to construct the patentee’s device from the teachings of the disclosure of the application. Rather, it is a question whether the application necessarily discloses that particular device. See Crome v. Morrogh, supra. Here appellant’s device as claimed has certain limitations which must be found in the disclosure of appellees’ application if appellees are to prevail. That disclosure must teach that the blanket, among other features, has (1) a plurality of passageways; (2) a pair of flexible headers; (3) the headers in (2) extending along one end of the blanket and being generally perpendicular to the passageways in (1); (4) a plurality of flexible tubes of U-shape; (5) legs of the U disposed in the plurality of passageways; (6) one leg of the U connected to one of said flexible headers; (7) the other leg of the U connected to the other flexible header; (8) all tubes connected in" } ]

[ { "docid": "4141995", "title": "", "text": "prescribed by the Secretary provide that, for purposes of this subtitle, such item is more appropriately determined at the partnership level than at the partner level.” The Kaplan Court held that a partner’s proportionate share of the partnership’s income and deductible losses is within that definition. Kaplan at 473. Indeed, the adjustment of deductions claimed by a partnership is “a prototypical partnership item,” leaving the court without jurisdiction to entertain the plaintiffs lawsuit. Id. The Kaplan Court rejected the plaintiffs attempt to avoid the jurisdictional bar of § 7244(h) by arguing that their case did not concern a partnership item but, instead, challenged the validity to the TMP to serve in that capacity. They argued that the TMP lacked the authority to extend the statute of limitations and, thus, the adjustments of their deductions were barred. In rejecting the plaintiffs’ argument, the Court held that the case before it was exactly to type that TEFRA was intended to prohibit. This argument cannot succeed because the underlying substantive claim concerns the propriety of the adjustments to the partnership’s 1983 tax return. If the Kaplans were to succeed in their claim, it would affect the tax liability of all of MCDA II’s partners. This is precisely the type of challenge prohibited by TEFRA in light of Congress’s decision that such suits are better addressed in one fell swoop at the ‘partnership level’ than in countless suits by individual partners. Other courts share our view that this kind of statute of limita- , tion challenge concerns a partnership item. See Thomas v. United States, 967 F.Supp. 505, 506 (N.D.Ga.1997); Crowell v. Commissioner of Internal Revenue, 102 T.C. 683, 693, 1994 WL 151303 (1994); Slovacek v. United States, 36 Fed.Cl. 250, 254^56 (1996); Anderson v. United States, No. C-91-3523 MHP, 1993 WL 204605 (N.D.Cal. June 3,1993), aff'd. without opinion, 50 F.3d 13 (9th Cir.1995). Kaplan at 473-474. Also see Williams v. United States, 165 F.3d 30, 1998 WL 537579, *2 (6th Cir.1998) (unpublished) (“It is well established that statute of limitations challenges are considered challenges to a partnership item.”). Applying Kaplan to the instant" } ]

[ { "docid": "61511", "title": "", "text": "prohibited by TEFRA in light of Congress’s decision that such suits are better addressed in one fell swoop at the “partnership level” than in countless suits by individual partners. Other courts share our view that this kind of statute of limitation challenge concerns a partnership item. See Thomas v. United States, 967 F.Supp. 505, 506 (N.D.Ga.1997); Crowell v. Commissioner of Internal Revenue, 102 T.C. 683, 693, 1994 WL 151303 (1994); Slovacek v. United States, 36 Fed. Cl. 250, 254-56 (1996); Anderson v. United States, No. C-91-3523 MHP, 1993 WL 204605 (N.D.Cal. June 3, 1993), aff'd. without opinion, 50 F.3d 13 (9th Cir.1995). Second, the Kaplans seek support from I.R.C. § 6231(b)(1)(D), which states that partnership items are transformed into nonpartnership items if the I.R.S. fails to provide adequate notice under § 6223. Because they did not receive any notice of the FPAA or of Strongin’s statute of limitations extensions, they contend that they did not receive adequate notice pursuant to § 6223. Under this line of thought, then, their tax adjustment concerned nonpartnership items and TEFRA’s jurisdictional bar does not apply. The only problem with this argument is that it ignores the operative language of § 6231’s transformation provision: adequate notice under section 6223. Abel Kaplan received adequate notice under § 6223. He owned less than a one-percent share in MCDA II, a partnership with over one hundred partners. Such small-share partners are not entitléd to personal notice under § 6223(b)(1); rather, these partners receive “adequate notice” of an FPAA under § 6223 when the I.R.S. notifies the partnership’s tax matters partner. See, e.g., Vander Heide v. Commissioner of Internal Revenue, 71 T.C.M. (CCH) 2151, 1996 WL 74796 (1996); Energy Resources, Ltd. v. Commissioner of Internal Revenue, 91 T.C. 913, 1988 WL 117397 (1988). In an identical case, the United States Tax Court held that a small-share partner in MCDA II received adequate notice under § 6223 when the Government mailed the FPAA to the partnership’s tax matters partner. See Greene v. Commissioner of Internal Revenue, 69 T.C.M. (CCH) 2070, 1995 WL 103522 (1995). Thus, because the I.R.S. notified Oscar" }, { "docid": "18339286", "title": "", "text": "raising their statute of limitations defense in a partner-level proceeding. Id. A similar untimely-assessment argument was also addressed by the Seventh Circuit in Kaplan v. United States, 133 F.3d 469 (7th Cir.1998). The Kaplans, like the Pratis, were members of a partnership who claimed their distributive share of partnership loss deductions in their personal tax returns. Eleven years after the tax year in question, the Kaplans were notified by the IRS that some of their partnership deductions were disallowed, and that they owed penalties and interest on their overdue taxes. Unlike the Pratis, the Kaplans claimed they never received notice of the partnership’s FPAA, and as a result, they should not owe any penalty or interest on any tax deductions disallowed. Without the Kaplans’ knowledge, the partnership’s TMP had executed time-period extensions with the IRS. The Kaplans challenged the validity of their TMP’s authority to act as the TMP for the partnership. They further argued that if the TMP lacked authority to execute the extensions, then the statute of limitations had run on their assessment, and they were not liable for any taxes disallowed. Id. at 478. However, the Seventh Circuit was not swayed by the Kaplans’ arguments. If the Kaplans were to succeed with their claim, it would affect the tax liability of all of the other partners. Id. “This is precisely the type of challenge prohibited by TEFRA in light of Congress’s decision that such suits are better addressed in one fell swoop at the ‘partnership level’ than in countless suits by individuals partners.” Id. Accordingly, the Seventh Circuit held that it lacked subject matter jurisdiction over the Kaplans’ refund claim and affirmed the lower court’s dismissal of the ease. While the Kaplans’ challenge was slightly different than the Pratis’ challenge, the applicability of the Seventh Circuit’s holding is clear—challenges to partnership level items are more properly heard at the partnership level, and may not be heard in a subsequent partner-level proceeding, even if the results are harsh. In Weiner v. United States, 389 F.3d 152, a case factually identical to the Prati case at bar, the Fifth" }, { "docid": "19099855", "title": "", "text": "petitioners. Instead, the IRS contends that petitioners may not raise a statute of limitations defense for the first time in their affected items proceedings, having failed to raise it at the earlier partnership level proceedings. We agree. As a general matter, the statute of limitations is an affirmative defense that must be pleaded; it is not jurisdictional. See Columbia Bldg., Ltd. v. Commissioner, 98 T.C. 607, 611, 1992 WL 101165 (1992). It follows that such a defense may be waived by a party who fails to raise it at the appropriate time. In the context of this case, one involving the application of TEFRA, petitioners had a right to raise thé partnership’s statute of limitations defense in the earlier partnership-level proceeding but failed to do so. We join the Seventh Circuit, as well as the numerous lower courts that have held that, under TEFRA, a statute of limitations defense concerns a “partnership item,” see IRC § 6231(a)(3), that must be raised at the partnership level. See, e.g., Kaplan, 133 F.3d at 473 (holding that district court lacked subject matter jurisdiction, in individual tax partner’s refund challenge, to consider statute of limitations argument); Kelley v. United States, No. 97 C 3104, 1998 U.S. Dist. LEXIS 8903, at *7-10 (N.D. Ill. June 8, 1998) (“Whether the IRS assessed the ... partnership within the applicable statute of limitations period is ... a partnership item.”); Thomas v. United States, 967 F.Supp. 505, 506 (N.D.Ga.1997) (agreeing with IRS contention that taxpayer “should not be permitted to assert a statute of limitations defense in [a partner-level proceeding] as it pertains to the FPAAs and therefore should have been prosecuted within the context of a partnership[-]level proceeding”); Shapiro v. United States, 951 F.Supp. 1019, 1024 (S.D.Fla.1996) (holding that res judicata barred taxpayers from raising statute of limitations defense at partner-level proceeding where taxpayers could have raised defense at partnership-level proceeding). Allowing individual taxpayers to raise a statute of limitations defense in multiple partner-level proceedings would undermine TEFRA’s dual goals of centralizing the treatment of partnership items and ensuring the equal treatment of partners. Accordingly, we hold that" }, { "docid": "21184201", "title": "", "text": "at I.R.C. § 6226(f)). This expanded jurisdiction was applicable to \"partnership taxable years ending after the date of the enactment of this Act,” § 1238(c), 111 Stat. at 1027, namely, August 5, 1997, and thus it does not apply to the returns at issue in this case. . The regulation also states that ”[t]he term ‘partnership item’ includes ... legal and factual determinations that underlie the determination of the amount, timing, and characterization of items of income, credit, gain, loss, deduction, etc.” Treas. Reg. § 301.6231 (a)(3)—1 (b). . In contrast, in Krause, pre-TEFRA years were involved, so the Tax Court properly had both partnership-level and partner-level issues before it. See 99 T.C. at 132-33. . The Federal Circuit also has used the term \"nonpartnership items” in reference to tax-motivated interest. See Prochorenko, 243 F.3d at 1365 (citing an assertion made by the government). See also Slovacek v. United States, 40 Fed.Cl. 828, 831 (1998) (distinguishing interest under former § 6621(c) from partnership items). In a decision preceding Prochorenko, Olson v. United States, 172 F.3d 1311, 1315 n. 1, 1318 n. 2 (Fed.Cir.1999), the issue had been waived. The government argues that a computational adjustment can include interest, Def.’s Reply at 9, citing Temp. Treas. Reg. § 301.6231(a)(6)-1T(b) (1988) (added by 52 Fed.Reg. 6779-81, 6790-91 (Mar. 5, 1987)), which provides that \"[a] computational adjustment includes any interest due with respect to any underpayment or overpayment of tax attributable to adjustments to reflect properly the treatment of partnership items.” This portion of the temporary regulation, however, has no bearing on substantive affected items. Indeed, the immediately preceding portion of the same temporary regulation, Temp. Treas. Reg. § 301.6231(a)(6)-lT(a) (1988), explains that \"changes in a partner’s tax liability with respect to affected items that require partner-level determinations ... are not included in a computational adjustment.’’ . In River City Ranches, the Ninth Circuit relied upon I.R.C. § 6226(f), as amended by the Taxpayer Relief Act of 1997, 401 F.3d at 1140, 1143-44, notwithstanding the fact that the 1997 amendments were not retroactive and applied only to “partnership taxable years ending after the" }, { "docid": "839811", "title": "", "text": "contest any such tax liability by paying the amount said to be due and filing an administrative claim for a refund as required by I.R.C. § 7422(a). See United States v. Clintwood Elkhorn Mining Co., — U.S. -,---, 128 S.Ct. 1511, 1514-16, 170 L.Ed.2d 392 (2008). If the partner receives a rejection of, or no response to, the administrative claim, the partner may then file a refund action in this court or a federal district court. Id., — U.S. at -, 128 S.Ct. at 1514. In such a judicial action by an individual partner, the prior determinations respecting partnership items are conclusive. See I.R.C. § 7422(h); Weiner v. United States, 389 F.3d 152, 158-59 (5th Cir.2004). Hybrids termed “affected items” contain both partnership-level and partner-level components. Two types of affected items exist: so-called computational adjustments that only record a change in a partner’s tax liability, and “substantive affected item[s that are] dependent on factual determinations to be made at the individual partner level.” Bar-timmo, 525 F.Supp.2d at 884 (citing Field v. United States, 328 F.3d 58, 60 n. 3 (2d Cir. 2003)); see also Ertz v. Commissioner, 93 T.C.M. (CCH) 696, 2007 WL 174133, at *14 (2007) (“[Affected items] may require findings of fact peculiar to a particular partner and as such cannot be determined in a partnership-level proceeding.”). The court previously determined that the instant case involved a substantive affected item, not a computational adjustment. See McGann, 76 Fed.Cl. at 752-58. FACTS During tax year 1983, Mr. McGann was a general partner in McWal Company (“McWal Co.”), also known as the George Walueff & Thomas McGann Partnership (‘Walueff & McGann”), which in turn was a limited partner in Drake Oil Technology Partners (“Drake Oil”). Joint Stipulations (“Stip.”) ¶¶ 3, 5. Drake Oil was one of seven Denver-based limited partnerships, known as the Elektra partnerships, formed with the general objective of investing in enhanced technology for the recovery of oil and natural gas. Id. ¶¶ 2, 3; see also Vulcan Oil Tech. Partners v. Commissioner, 110 T.C. 153, 154, 164 n. 1 (1998), aff'd sub nom. Drake Oil Tech. Partners" }, { "docid": "61509", "title": "", "text": "6228(b). Second, a partner may seek a refund based upon a computational error. See id. § 6230(c). If neither of these exceptions apply, however, courts lack subject-matter jurisdiction to entertain a partner’s lawsuit regarding an adjustment to a partnership item. The adjustment in this ease concerns a-prototypical partnership item. The I.R.S. disallowed deductions claimed by the partnership in 1983 that were reflected on the individual income tax returns of all partners. The Kaplans’ challenge to this adjustment does not allege a computational error, and the I.R.S. never denied their administrative request for a refund. By the plain language of the Internal Revenue Code, the courts have no jurisdiction to entertain this lawsuit. The Kaplans unsuccessfully advance two arguments in response to this clear statutory bar. First, they claim that their challenge does not concern a “partnership item,” but rather the validity of Strongin’s authority or standing to serve as TMP for MCDA II. They do not challenge TEFRA’s provision empowering tax matters partners, as a general matter, to execute agreements with the I.R.S. extending the permissible time period for making an adjustment to a partnership’s tax return. See I.R.C. § 6229(b)(1)(B) (stating that extensions of the permissible period for assessing a tax of partnership items may be made “with respect to all partners, by an agreement entered into by the Secretary and the tax matters partner”). Rather, they argue that Strongin could not qualify as a TMP because of his lack of a bona fide investment as a general partner in MCDA II. If Stron-gin lacked authority to execute the extensions, the Kaplans’ argument goes, then the adjustment to MCDA II’s taxes would have been barred by the statute of limitations. In this way, they argue, this is merely a statute of limitations question and does not implicate a partnership item. This argument cannot succeed because the underlying substantive claim concerns the propriety of the adjustments to the partnership’s 1983 tax return. If the Kaplans were to succeed in their claim, it would affect the tax liability of all of MCDA II’s partners. This is precisely the type of challenge" }, { "docid": "61510", "title": "", "text": "permissible time period for making an adjustment to a partnership’s tax return. See I.R.C. § 6229(b)(1)(B) (stating that extensions of the permissible period for assessing a tax of partnership items may be made “with respect to all partners, by an agreement entered into by the Secretary and the tax matters partner”). Rather, they argue that Strongin could not qualify as a TMP because of his lack of a bona fide investment as a general partner in MCDA II. If Stron-gin lacked authority to execute the extensions, the Kaplans’ argument goes, then the adjustment to MCDA II’s taxes would have been barred by the statute of limitations. In this way, they argue, this is merely a statute of limitations question and does not implicate a partnership item. This argument cannot succeed because the underlying substantive claim concerns the propriety of the adjustments to the partnership’s 1983 tax return. If the Kaplans were to succeed in their claim, it would affect the tax liability of all of MCDA II’s partners. This is precisely the type of challenge prohibited by TEFRA in light of Congress’s decision that such suits are better addressed in one fell swoop at the “partnership level” than in countless suits by individual partners. Other courts share our view that this kind of statute of limitation challenge concerns a partnership item. See Thomas v. United States, 967 F.Supp. 505, 506 (N.D.Ga.1997); Crowell v. Commissioner of Internal Revenue, 102 T.C. 683, 693, 1994 WL 151303 (1994); Slovacek v. United States, 36 Fed. Cl. 250, 254-56 (1996); Anderson v. United States, No. C-91-3523 MHP, 1993 WL 204605 (N.D.Cal. June 3, 1993), aff'd. without opinion, 50 F.3d 13 (9th Cir.1995). Second, the Kaplans seek support from I.R.C. § 6231(b)(1)(D), which states that partnership items are transformed into nonpartnership items if the I.R.S. fails to provide adequate notice under § 6223. Because they did not receive any notice of the FPAA or of Strongin’s statute of limitations extensions, they contend that they did not receive adequate notice pursuant to § 6223. Under this line of thought, then, their tax adjustment concerned nonpartnership items and" }, { "docid": "16090601", "title": "", "text": "6229(a), containing the FPAA statute of limitations provision, is found in subtitle F, as opposed to subtitle A, It is not a partnership item. Furthermore, the taxpayers argue that no treasury regulation specifically refers to the limitations issue as a partnership item. See 26 C.F.R. § 301.6231(a)(3)-l(a). The Weiner court reasoned that this omission, coupled with the fact that § 6229(a) is found only in subtitle F, prevents the FPAA statute of limitations from attaining partnership item status. We disagree with this conclusion. First, the majority of courts to consider this issue have held that the FPAA statute of limitations issue is a partnership item that must be litigated in a partnership level proceeding. See Chimblo v. Comm’r, 177 F.3d 119, 125 (2d Cir.1999); Kaplan v. United States, 133 F.3d 469, 473 (7th Cir.1998); Williams v. United States, 165 F.3d 30 (6th Cir.1998) (unpublished table decision); Barnes v. United States, No. 95-57-Civ-ORL-22, 1997 WL 732594, *3 (M.D.Fla. July 25, 1997), aff'd, 158 F.3d 587 (11th Cir.1998); Thomas v. United States, 967 F.Supp. 505, 506 (N.D.Ga.1997); Slovacek v. United States, 36 Fed.Cl. 250, 255 (1996). These courts have reasoned that because the FPAA limita tions issue affects the partnership as a whole, it should not be litigated in an individual partner proceeding, as such a result would contravene the purposes of TEFRA. See, e.g., Chimblo, 177 F.3d at 125. We agree with this reasoning and hold that the district courts lack jurisdiction to consider the taxpayers’ statute of limitations argument. Second, responding to the taxpayers’ argument directly, the treasury regulations provide that, for the purposes of subtitle F, [t]he term “partnership item” includes the accounting practices and the legal and factual determinations that underlie the determination of the amount, timing, and characterization of items of income, credit, gain, loss, deduction, etc. 26 C.F.R. § 301.6231(a)(3)-l(b)(emphasis added). As the court in Slovacek reasoned, the statute of limitations “might be said to affect the amount, timing, and characterization of income, etc., (partnership items) at the partnership level, if only in a thumbs-up or thumbs-down manner.” 36 Fed.Cl. at 255. In this way, the" }, { "docid": "18339284", "title": "", "text": "(1996); cf. RJT Investments X v. Comm’r of Internal Revenue, 491 F.3d 732, 736-38 (8th Cir.2007) (holding that the determination of the validity of a partnership is more appropriately determined at partnership level); Hirshfield v. United States, 2001 WL 579783 (S.D.N.Y.2001) (holding that a challenge to a TMP’s authority to act on behalf of the partners is a partnership level challenge), aff'd, 70 Fed.Appx. 609 (2d Cir. 2003); Klein v. United States, 86 F.Supp.2d 690 (E.D.Mich.1999) (same). Indeed, this Court, most recently, in Keener, 76 Fed.Cl. at 460, characterized plaintiffs’ arguments as “well-rehearsed” but “faulty.” The first case dealing with this issue was Slovacek v. United States, 36 Fed.Cl. 250 (1996). The plaintiffs in Slovacek, like the Pratis here, sought a refund of taxes they paid pursuant to a settlement agreement with the IRS, claiming the taxes assessed against them were assessed after the expiration of a period of limitations. Id. at 254. The government there similarly argued that the plaintiffs’ claims were barred by § 7422(h), and the plaintiffs countered with the argument that their claim was not a partnership item. The court in Slovacek reasoned that because the statute of limitations could “affect” the amount, timing and characterization of income, etc., at the partnership level, the challenge must be litigated at the partnership level proceeding. Id. at 255. In Chimblo v. Comm’r, 177 F.3d 119, the Second Circuit also addressed this issue, with similar results. The plaintiffs in Chimblo, like the Pratis, were members of a partnership who had their deductions attributable to the partnership disallowed by the IRS. Like the Pratis, these plaintiffs did not intervene in the partnership-level tax proceedings, and only after settling their case with the IRS, did they challenge the timeliness of their assessment. The Second Circuit stated that “[ajllowing individual taxpayers to raise a statute of limitations defense in the multiple partner-level proceedings would undermine TEFRA’s dual goals of centralizing the treatment of partnership items and ensuring the equal treatment of partners.” Id. at 125. Accordingly, in applying the policy behind TEFRA, the Second Circuit held that the plaintiffs were barred from" }, { "docid": "16090600", "title": "", "text": "entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). In addition, we review a district court’s determination of subject matter jurisdiction de novo. Calhoun County, Tex. v. United States, 132 F.3d 1100, 1103 (5th Cir.1998). The taxpayers’ refund claims are based entirely on the theory that the IRS had no authority to assess tax against them in 1990 and 1991 because the FPAA statute of limitations had run for the years 1984 to 1986. Accordingly, to avoid the jurisdictional bar of § 7422(h), the taxpayers argue that the FPAA statute of limitations, found in § 6229(a), is not a “partnership item.” As noted before, TEFRA defines a “partnership item” as any item required to be taken into account for the partnership’s taxable year under any provision of subtitle A to the extent regulations prescribed by the Secretary provide that, for the purposes of [subtitle F], such item is more appropriately determined at the partnership level than at the partner level. 26 U.S.C. § 6231(a)(3). The taxpayers argue that because § 6229(a), containing the FPAA statute of limitations provision, is found in subtitle F, as opposed to subtitle A, It is not a partnership item. Furthermore, the taxpayers argue that no treasury regulation specifically refers to the limitations issue as a partnership item. See 26 C.F.R. § 301.6231(a)(3)-l(a). The Weiner court reasoned that this omission, coupled with the fact that § 6229(a) is found only in subtitle F, prevents the FPAA statute of limitations from attaining partnership item status. We disagree with this conclusion. First, the majority of courts to consider this issue have held that the FPAA statute of limitations issue is a partnership item that must be litigated in a partnership level proceeding. See Chimblo v. Comm’r, 177 F.3d 119, 125 (2d Cir.1999); Kaplan v. United States, 133 F.3d 469, 473 (7th Cir.1998); Williams v. United States, 165 F.3d 30 (6th Cir.1998) (unpublished table decision); Barnes v. United States, No. 95-57-Civ-ORL-22, 1997 WL 732594, *3 (M.D.Fla. July 25, 1997), aff'd, 158 F.3d 587 (11th Cir.1998); Thomas v. United States, 967 F.Supp. 505, 506 (N.D.Ga.1997);" }, { "docid": "15554752", "title": "", "text": "6230(c) do not apply to the instant case. Section 6231(a)(3) defines a “partnership item” as: with respect to a partnership, any item required to be taken into account for the partnership’s taxable year under any provision of subtitle A to the extent regulations prescribed by the Secretary provide that, for purposes of this subtitle, such item is more appropriately determined at the partnership level than at the partner level. 26 U.S.C. § 6231(a)(3). Plaintiffs argue that limitations are not provided for in subtitle A, entitled “Income Taxes”, but by subtitle F, entitled “Procedure and Administration”, and therefore limitations periods are not partnership items for purposes of sections 6231(a)(3) or 7422(h). Plaintiffs argue that Congress made a specific choice to permit suits based on limitations periods because limitations periods are individual items, which can be different for each partner. Defendant argues that Plaintiffs should not be permitted to assert a statute of limitations defense in this forum as it pertains to the FPAAs and therefore should have been prosecuted within the context of a partnership level proceeding. The Court agrees. “The purpose of TEFRA is to provide consistency and reduce duplication in the treatment of partnership items by requiring that they be determined in a single unified proceeding at the partnership, rather than the partner, level.” Slovacek v. United States, 36 Fed. Cl. 250, 254, 1996 WL 442659, at *4 (Aug. 2, 1996); see also, H.R. Conf. Rep. No. 97-760, at 599-600 (1982), reprinted in 1982 U.S.C.C.A.N. 1190, 1371-72. Although it is true that an individual partner may indeed extend the statute of limitations for his own return, see 26 U.S.C. § 6229(b)(1)(A), the determination of whether a partnership itself has extended the limitations period affects each partner alike, and is precisely the type of item for which the TEFRA “partnership item” provisions were enacted. To hold otherwise would risk the inconsistency and duplication of litigation which TEFRA seeks to avoid. Any extension negotiated between the IRS and a partnership could be challenged by each individual partner. Perhaps for this reason every other forum which has faced this argument has reached" }, { "docid": "18339287", "title": "", "text": "and they were not liable for any taxes disallowed. Id. at 478. However, the Seventh Circuit was not swayed by the Kaplans’ arguments. If the Kaplans were to succeed with their claim, it would affect the tax liability of all of the other partners. Id. “This is precisely the type of challenge prohibited by TEFRA in light of Congress’s decision that such suits are better addressed in one fell swoop at the ‘partnership level’ than in countless suits by individuals partners.” Id. Accordingly, the Seventh Circuit held that it lacked subject matter jurisdiction over the Kaplans’ refund claim and affirmed the lower court’s dismissal of the ease. While the Kaplans’ challenge was slightly different than the Pratis’ challenge, the applicability of the Seventh Circuit’s holding is clear—challenges to partnership level items are more properly heard at the partnership level, and may not be heard in a subsequent partner-level proceeding, even if the results are harsh. In Weiner v. United States, 389 F.3d 152, a case factually identical to the Prati case at bar, the Fifth Circuit reached the same conclusion as the Second and Seventh Circuit in Chimblo and Kaplan. The plaintiffs in Weiner, like the Pratis, were members of an AMCOR-organized limited partnership and reported their proportional share of partnership losses on their personal income tax returns. Just like the Pratis’ deductions, the plaintiffs’ deductions in Weiner were subsequently disallowed by the IRS. The plaintiffs entered into settlement agreements with the IRS, and, after entering into the settlement agreements, argued that the assessments of tax and interest were untimely. Like the Pratis here, in order to avoid the jurisdictional bar of § 7422(h), the plaintiffs then argued that their challenge under § 6229(a) was not a partnership item because § 6229(a) was located in Subtitle F of the tax code and not in Subtitle A. However, the Fifth Circuit was not persuaded by those plaintiffs’ argument. Relying on the reasoning of the Second and Seventh Circuits in Chimblo and Kaplan, the Fifth Circuit held that it lacked jurisdiction to decide the timely assessment issue: “because the FPAA limitations issue" }, { "docid": "18339285", "title": "", "text": "their claim was not a partnership item. The court in Slovacek reasoned that because the statute of limitations could “affect” the amount, timing and characterization of income, etc., at the partnership level, the challenge must be litigated at the partnership level proceeding. Id. at 255. In Chimblo v. Comm’r, 177 F.3d 119, the Second Circuit also addressed this issue, with similar results. The plaintiffs in Chimblo, like the Pratis, were members of a partnership who had their deductions attributable to the partnership disallowed by the IRS. Like the Pratis, these plaintiffs did not intervene in the partnership-level tax proceedings, and only after settling their case with the IRS, did they challenge the timeliness of their assessment. The Second Circuit stated that “[ajllowing individual taxpayers to raise a statute of limitations defense in the multiple partner-level proceedings would undermine TEFRA’s dual goals of centralizing the treatment of partnership items and ensuring the equal treatment of partners.” Id. at 125. Accordingly, in applying the policy behind TEFRA, the Second Circuit held that the plaintiffs were barred from raising their statute of limitations defense in a partner-level proceeding. Id. A similar untimely-assessment argument was also addressed by the Seventh Circuit in Kaplan v. United States, 133 F.3d 469 (7th Cir.1998). The Kaplans, like the Pratis, were members of a partnership who claimed their distributive share of partnership loss deductions in their personal tax returns. Eleven years after the tax year in question, the Kaplans were notified by the IRS that some of their partnership deductions were disallowed, and that they owed penalties and interest on their overdue taxes. Unlike the Pratis, the Kaplans claimed they never received notice of the partnership’s FPAA, and as a result, they should not owe any penalty or interest on any tax deductions disallowed. Without the Kaplans’ knowledge, the partnership’s TMP had executed time-period extensions with the IRS. The Kaplans challenged the validity of their TMP’s authority to act as the TMP for the partnership. They further argued that if the TMP lacked authority to execute the extensions, then the statute of limitations had run on their assessment," }, { "docid": "61508", "title": "", "text": "656, 659 (7th Cir.1997). We affirm the conclusions of the district court. A. Subject-Matter Jurisdiction Section 7422(h) of the Internal Revenue Code deprives the federal judiciary of subject-matter jurisdiction in individual tax refund challenges involving “partnership items.” The Code offers a rather tautological definition of partnership items as those items “more appropriately determined at the partnership level than at the partner level.” I.R.C. § 6231(a)(3). A partner’s proportionate share of the partnership’s income and deductible losses is within the scope of this definition. See, e.g., 26 C.F.R. § 301.6231(a)(3)-1(a)(1)(i); Goldman v. Commissioner of Internal Revenue, 71 T.C.M. (CCH) 3176, 1996 WL 315717 (1996), aff'd. without opinion, 112 F.3d 503 (2d Cir.1997). TEFRA requires that all challenges to adjustments of partnership items be made in a single, unified agency proceeding; indeed, this is the key component of TEFRA that yields the desired benefits of economy and consistency. There are two exceptions to this general framework. First, a partner may sue for a refund if the partner’s request for an administrative adjustment is denied. See I.R.C. § 6228(b). Second, a partner may seek a refund based upon a computational error. See id. § 6230(c). If neither of these exceptions apply, however, courts lack subject-matter jurisdiction to entertain a partner’s lawsuit regarding an adjustment to a partnership item. The adjustment in this ease concerns a-prototypical partnership item. The I.R.S. disallowed deductions claimed by the partnership in 1983 that were reflected on the individual income tax returns of all partners. The Kaplans’ challenge to this adjustment does not allege a computational error, and the I.R.S. never denied their administrative request for a refund. By the plain language of the Internal Revenue Code, the courts have no jurisdiction to entertain this lawsuit. The Kaplans unsuccessfully advance two arguments in response to this clear statutory bar. First, they claim that their challenge does not concern a “partnership item,” but rather the validity of Strongin’s authority or standing to serve as TMP for MCDA II. They do not challenge TEFRA’s provision empowering tax matters partners, as a general matter, to execute agreements with the I.R.S. extending the" }, { "docid": "11919260", "title": "", "text": "Monti v. United States, 223 F.3d 76 (2d Cir.2000), the Second Circuit held that a. non-settling partner’s claim for tax treatment consistent with that accorded other partners in a settlement with the IRS was not a claim for refund attributable to a \"partnership item.” In so concluding, the court rejected an interpretation of the \"attributable to\" language that would have swept into partnership proceedings claims “entirely about and entirely dependent on facts peculiar to a single partner.” Id. at 82. Here, of course, resolution of the limitations issue is not entirely dependent upon facts peculiar to plaintiffs; indeed, the arguments made by plaintiffs are common to any partners from whom the section 6501 assessment period assertedly had run. Other cases have distinguished Monti on this basis. See Weiner, 389 F.3d at 157-58. . If plaintiffs were correct virtually any partnership item could be indirectly considered in a partner-level proceeding. To give but one more example, section 213(a) determines the allowa-bility of medical expenses as a function of the individual’s adjusted gross income, which, of course, would depend upon the partnership distributive share of the partnership income or loss. A case concerning such a medical expense deduction should not provide a vehicle for consideration of the partnership's income or losses. See Callaway, 231 F.3d at 110 n. 4. . Plaintiffs certainly could have raised this issue even if it was not raised by other partners. In this regard, section 6226(c) of the Code indicates that in partnership-level proceedings: \"(1) each person who was a partner in such partnership at any time during such year shall be treated as a party to such action, and (2) the court having jurisdiction of such action shall allow each such person to participate in the action.” . See also, e.g., Grapevine Imports, 71 Fed.Cl. at 328-29; Rhone-Poulenc Surfactants & Specialties, L.P. v. Comm'r of Internal Revenue, 114 T.C. 533, 535, 2000 WL 863142 (2000), appeal dismissed and remanded, 249 F.3d 175 (3d Cir. 2001). . See also Clark, 68 F.Supp.2d at 1344; Thomas v. United States, 967 F.Supp. 505, 506 (N.D.Ga. 1997); Barnes v. United" }, { "docid": "18339283", "title": "", "text": "See, e.g., United States v. Cleveland Indians Baseball Co., 532 U.S. 200, 219, 121 S.Ct. 1433, 149 L.Ed.2d 401 (2001) (the judiciary should “defer to the Commissioner’s regulations as long as they ‘implement the congressional mandate in some reasonable manner’ ”) (quoting United States v. Correll, 389 U.S. 299, 307, 88 S.Ct. 445, 19 L.Ed.2d 537 (1967)); Hospital Corp. of America & Subsidiaries v. Comm’r of Internal Revenue, 348 F.3d 136, 141 (6th Cir.2003); Grapevine Imports, Ltd. v. United States, 71 Fed.Cl. 324, 336 (2006). Furthermore, it is also worth noting that other courts addressing similar challenges have rejected plaintiffs’ position. See, e.g., Weiner v. United States, 389 F.3d 152 (5th Cir.2004); Chimblo v. Comm’r, 177 F.3d 119 (2d Cir.1999); Kaplan v. United States, 133 F.3d 469 (7th Cir.1998); Williams v. United States, 165 F.3d 30 (6th Cir.1998) (unpublished table decision); Barnes v. United States, 1997 WL 732594 at *3 (M.D.Fla. July 25, 1997), aff'd, 158 F.3d 587 (11th Cir.1998); Thomas v. United States, 967 F.Supp. 505 (N.D.Ga.1997); Slovacek v. United States, 36 Fed.Cl. 250 (1996); cf. RJT Investments X v. Comm’r of Internal Revenue, 491 F.3d 732, 736-38 (8th Cir.2007) (holding that the determination of the validity of a partnership is more appropriately determined at partnership level); Hirshfield v. United States, 2001 WL 579783 (S.D.N.Y.2001) (holding that a challenge to a TMP’s authority to act on behalf of the partners is a partnership level challenge), aff'd, 70 Fed.Appx. 609 (2d Cir. 2003); Klein v. United States, 86 F.Supp.2d 690 (E.D.Mich.1999) (same). Indeed, this Court, most recently, in Keener, 76 Fed.Cl. at 460, characterized plaintiffs’ arguments as “well-rehearsed” but “faulty.” The first case dealing with this issue was Slovacek v. United States, 36 Fed.Cl. 250 (1996). The plaintiffs in Slovacek, like the Pratis here, sought a refund of taxes they paid pursuant to a settlement agreement with the IRS, claiming the taxes assessed against them were assessed after the expiration of a period of limitations. Id. at 254. The government there similarly argued that the plaintiffs’ claims were barred by § 7422(h), and the plaintiffs countered with the argument that" }, { "docid": "19099856", "title": "", "text": "court lacked subject matter jurisdiction, in individual tax partner’s refund challenge, to consider statute of limitations argument); Kelley v. United States, No. 97 C 3104, 1998 U.S. Dist. LEXIS 8903, at *7-10 (N.D. Ill. June 8, 1998) (“Whether the IRS assessed the ... partnership within the applicable statute of limitations period is ... a partnership item.”); Thomas v. United States, 967 F.Supp. 505, 506 (N.D.Ga.1997) (agreeing with IRS contention that taxpayer “should not be permitted to assert a statute of limitations defense in [a partner-level proceeding] as it pertains to the FPAAs and therefore should have been prosecuted within the context of a partnership[-]level proceeding”); Shapiro v. United States, 951 F.Supp. 1019, 1024 (S.D.Fla.1996) (holding that res judicata barred taxpayers from raising statute of limitations defense at partner-level proceeding where taxpayers could have raised defense at partnership-level proceeding). Allowing individual taxpayers to raise a statute of limitations defense in multiple partner-level proceedings would undermine TEFRA’s dual goals of centralizing the treatment of partnership items and ensuring the equal treatment of partners. Accordingly, we hold that petitioners are barred from raising their statute of limitations defense in this partner-level, affected items proceeding. B. Additions to Tax for Negligence IRC § 6653(a)(1), as in effect during the years in question other than 1980, provided for additions to tax if any part of any underpayment of tax was attributable to the taxpayer’s negligence. Negligence under § 6653(a) required a “lack of due care or [a] failure to do what a reasonable and prudent person would do under the circumstances.” See Goldman v. Commissioner, 39 F.3d 402, 407 (2d Cir.1994) (quotation marks and citation omitted). Upon a finding of negligence, § 6653(a)(1) provided for an addition to tax equal to five percent of the underpayment. Section 6653(a)(2), in turn, imposed an addition of 50 percent of the interest applicable under IRC § 6601. We review for clear error the Tax Court’s factual finding that taxpayers were liable for such penalties because their rebanee on the advice of John Santella was unreasonable. See Goldman, 39 F.3d at 406. Petitioners contend that the Tax Court erred" }, { "docid": "18122587", "title": "", "text": "have subject-matter jurisdiction over a refund attributable to partnership items. 26 U.S.C. § 7422(h). Weiner agrees with these basic propositions but contends that this Court has jurisdiction to consider, and must consider, the issue of the timeliness of the FPAA as to TFA and his other partnerships. Weiner essentially contends that the § 6229(a) three-year limitations period for issuance of a FPAA is a nonpartnership item under TEFRA that must be litigated in a partner’s refund proceeding. The IRS provides no substantive counter-arguments, despite having been requested to do so in a parallel lawsuit. Several courts have held that a statute of limitations defense under TEFRA pertaining to the timeliness of the FPAA concerns a partnership item and must be raised at the partnership level. Chimblo, 177 F.3d at 125; Kaplan, 133 F.3d at 473; Williams v. United States, 165 F.3d 30 (6th Cir.1998) (Table), 1998 WL 537579, at *3 (“It is well established that [FPAA] statute of limitations challenges are considered challenges to a partnership item.”); Clark v. United States, 68 F.Supp.2d 1333, 1344 (N.D.Ga.1999); Thomas v. United States, 967 F.Supp. 505, 506 (N.D.Ga.1997); Barnes v. United States, 1997 WL 732594, at *3 (M.D.Fla.1997), aff'd 158 F.3d 587 (11th Cir.1998) (holding that the issue of whether a partnership had extend ed the FPAA limitations period was a partnership item under TEFRA); Slovacek v. United States, 36 Fed. Cl. 250, 255 (1996) (“whether a statute of limitations applicable to the partnership as a whole was waived so as to permit assessment of additional taxes against the partnership as a whole is an issue to be decided at the partnership level, since it affects all partners alike.”). The Court finds the reasoning of these cases persuasive, as far as it goes. Most of the opinions adopt the analysis in Slovacek, in which the Court of Federal Claims noted that “TEFRA distinguishes between tax determinations and items that affect the entire partnership (‘partnership items’) and those that depend, instead, upon the unique circumstances of a partner, or some other non-partnership-wide variable (‘nonpartnership items’). For example, the question of whether a partner must" }, { "docid": "18122588", "title": "", "text": "(N.D.Ga.1999); Thomas v. United States, 967 F.Supp. 505, 506 (N.D.Ga.1997); Barnes v. United States, 1997 WL 732594, at *3 (M.D.Fla.1997), aff'd 158 F.3d 587 (11th Cir.1998) (holding that the issue of whether a partnership had extend ed the FPAA limitations period was a partnership item under TEFRA); Slovacek v. United States, 36 Fed. Cl. 250, 255 (1996) (“whether a statute of limitations applicable to the partnership as a whole was waived so as to permit assessment of additional taxes against the partnership as a whole is an issue to be decided at the partnership level, since it affects all partners alike.”). The Court finds the reasoning of these cases persuasive, as far as it goes. Most of the opinions adopt the analysis in Slovacek, in which the Court of Federal Claims noted that “TEFRA distinguishes between tax determinations and items that affect the entire partnership (‘partnership items’) and those that depend, instead, upon the unique circumstances of a partner, or some other non-partnership-wide variable (‘nonpartnership items’). For example, the question of whether a partner must pay tax on a sum she receives from the partnership upon her termination is a nonpartnership item.” 36 Fed. Cl. 250, 254 (Fed.Cl.1996). The Slovacek court determined that the FPAA limitations issue is encompassed by the regulatory definition of “partnership item” found in Treasury Regulation § 301.6231(a) (3) — 1 (b), which provides that “[t]he term ‘partnership item’ includes the accounting practices and the legal and factual determinations that underlie the determination of the amount, timing, and characterization of items of income, credit, gain, loss, deduction, etc.” Id. at 255. The court reasoned that “determining whether [the purported TMP] extended the statute of limitations might be said to affect the amount, timing, and characterization of income, etc. (partnership items) at the partnership level, if only in a thumbs-up or thumbs-down manner. Conversely, a statute of limitations issue applicable only to an individual partner involves questions of fact pertinent only to that partner, e.g., whether he extended the statute of limitations for his own return, see I.R.C. § 6229(b)(1)(A), or timely entered into a settlement agreement" }, { "docid": "4141997", "title": "", "text": "case, it is clear that this Court lacks jurisdiction to entertain Plaintiffs’ claim for refund with respect to partnership items. Pursuant to Kaplan, Plaintiffs’ claim for refund of the disallowed deductions is a prototypical partnership item. Kaplan at 473. Likewise, Plaintiffs’ statute of limitations challenge is a chahenge to a partnership item. Kaplan at 473-474; Williams at *2. Pursuant to § .7422(h), the Court lacks jurisdiction to review these partnership items. This Court would lack subject matter jurisdiction to review Plaintiffs’ claim for refund with respect to partnership items even if Plaintiffs proved that Winer lacked authority to act as TMP for Masters. If Plaintiffs were to succeed on their claim that the Decision of the Tax Court\" was invalid, it would affect the tax liability of all of the Masters’ Partners. “This is precisely the type of challenge prohibited by TEFRA in light of Congress’s decision that such suits are better addressed in one fell swoop at the ‘partnership level’ than in countless suits by individual partners.” Kaplan at 474. Also unavailing is Plaintiffs’ claim that the “government, by its conduct, assumed practical control over his TEFRA partnership and thereby prevented the effective representation of the Masters partner under TEFRA.” (Plaintiffs’ Brief at 30). Pursuant to 26 U.S.C. § 6512(a), a federal court may not entertain a collateral challenge to a Tax Court Decision. Such was the holding of U.S. v. Mathewson, 839 F.Supp. 858 (S.D.Fla.1993). In Mathewson, the taxpayer attempted to collaterally attack a Tax Court decision, claiming that he had relied upon false representations by an IRS attorney in stipulating to an earlier Tax Court decision. The Court held that § 6512(a) “removed the Federal courts’ power to reconsider tax court determinations of liability, regardless of the basis of the challenge.” Mathewson at 860. B. This Court’s holding that it cannot reconsider the February 23, 1989 Tax Court Decision does not deprive Plaintiffs of due process. Citing Fuentes v. Shevin, 407 U.S. 67, 80, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972), Plaintiffs argue that their constitutional right to be heard confers jurisdiction on this Court to review" } ]

[ { "docid": "13218361", "title": "", "text": "lapse of state jurisdiction at the termination of the six-month sentence and the initiation of the state five-year sentence finds no- support in the authorities nor in reason. Appellant’s incarceration was continuous and under a single and proper authority, that of the State of Missouri. The instant case is remarkably similar in fact to that found in Harrell v. Shuttleworth, 5 Cir., 200 F.2d 490. There a prisoner serving six years in the Florida State prison was sentenced by the federal court to two years “to begin at expiration of sentence defendant is now serving in the Florida State prison.” The prisoner thereafter received an additional sentence of six years by the state court for an offense committed in the penal institution. It was held that the federal sentence did not begin to run at the expiration of the first state sentence. In Harrell the state sentences overlapped. In the instant case they were consecutive. The effect is the same— continuous jurisdiction and custody under a single sovereign authority. The order of the district court denying appellant’s petition for writ of habeas corpus was proper and it is affirmed. . “The sentence of imprisonment of any person convicted of an offense in a court of the United States shall commence to run from the date on which such person is received at the penitentiary, reformatory, or jail for service of said sentence. “If any such person shall be committed to a jail or other place of detention to wait transportation to the place at which Ms sentence is to be served, his sentence shall commence to run from the date on which he is received at such jail or other place of detention. “No sentence shall prescribe any other method of computing the term. June 25, 1948, c. 645, 62 Stat. 838.”" } ]

[ { "docid": "22572915", "title": "", "text": "violated the law of both sovereigns, he is subject to prosecution by both and he may not complain of or choose the manner or order in which each sovereign proceeds against him/ While the record before us may not affirmatively show that the Attorney General of the United States authorized the return of Hayward to the state authorities, there is a presumption that public officers will act lawfully and it will be presumed that the return of Hayward to the state authorities was duly authorized, absent an affirmative showing to the contrary. 18 U.S.C.A. § 3568 provides: “The sentence of imprisonment of any person convicted of an offense in a court of the United States shall commence to run from the date on which such person is received at the penitentiary, reformatory, or jail for service of said sentence. “If any such person shall be committed to a jail or other place of detention to wait transportation to the place at which his sentence is to be served, his sentence shall commence to run from the date on which he is received at such jail or other place of detention. “No sentence shall prescribe any other method of computing the term.” It is well settled that when a state surrenders a prisoner to the Federal government for the purpose of trial on a Federal charge and upon conviction and sentence in the Federal court, the Federal authorities surrender custody of the prisoner back to the state authorities for trial or imprisonment, without the prisoner having been received at a Federal penal institution for service of his Federal sentence, the Federal sentence does not begin to run until such time as the prisoner is returned to Federal custody and received at the Federal penal institution for service of his Federal sentence. Here, Hayward was not committed to a jail or other place of detention to await transportation to the place at which his sentence was to be served. He was detained only for surrender back to the custody of the state authorities. Smith v. Swope, 9 Cir., 91 F.2d 260 is" }, { "docid": "21534090", "title": "", "text": "22 A.L.R. 879; Zerbst v. McPike, 5 Cir., 97 F.2d 253. As to the time when sentence begins to run 18 U.S.C.A. § 709a provides: “The sentence of imprisonment of any person convicted of a crime in a court of the United States shall commence to run from the date on which such person is received at the penitentiary, reformatory, or jail for service of said sentence: Provided, That if any such person shall be committed to a jail or other place of detention to await transportation to the place at which his sentence is to be served, the sentence of such person shall commence to run from the date on which be is received at such jail or other place of detention. No sentence shall prescribe any other method of computing the term.” Act June 29, 1932, c. 310, § 1, 47 Stat. 381. Of this statute our court in Demarois v. Hudspeth, 10 Cir., 99 F.2d 274, 275, said its plain purpose was to give credit for time spent in local confinement awaiting transportation to the penitentiary for service of the sentence, and that a prisoner who chose to remain in a local jail pending an appeal of his case was not entitled to have such time applied on his sentence. In Zerbst v. McPike, 5 Cir., 97 F.2d 253, Louisiana officers delivered McPike to the United States District Court for the Western District of Louisiana for trial on a federal charge. He pleaded guilty and a sentence of three years, with no time fixed for commencement, was imposed. The state officers returned him to jail and he was convicted by the state court and sentenced to three to five years in the state penitentiary. Upon discharge from the state penitentiary McPike was committed to the federal penitentiary. Upon petition for writ of habeas corpus McPike obtained a judgment of discharge, which was reversed on appeal. The court held that McPike’s federal court sentence had not expired upon his release from the state penitentiary, because under the statute his federal sentence could begin to run only from the" }, { "docid": "21398895", "title": "", "text": "defendant’s motion that the sentence he imposed had continued to run uninterruptedly from the date he imposed same and was to expire on February 9, 1960. I. As To Petitioner’s Contention That the Oral Pronouncement of the Sentence from the Bench Was Too Ambiguous, Equivocal, and Indefinite to Sustain a Judgment for Consecutive Sentences. The sentence as pronounced by the U. S. District Court read as follows: “Theodore Green, the Court orders that on this indictment you be sentenced as follows: On Count 1 of the indictment 20 years, on Count 2 of the indictment that you be imprisoned for 20 years, and on Count 3 of the indictment that you be imprisoned for the period of 25 years, said prison sentence to run concurrent and to begin upon your release from prison upon the sentence you are now receiving under order of the State Court.” There is no question from the record but that, in fact, on October 27, 1952, Green was in the custody of the Massachusetts prison authorities serving the three consecutive sentences imposed in State Court on October 2, 1952, by Judge Meagher, in the Worcester Superior Court, in cases numbered 4256, 4257, and 4264, nor is there any doubt that he remained in State custody until May 16, 1955. The version of 18 U.S.C.A. § 3568 which was in effect in 1948, until its amendment on September 2,1960 by Public Law 86-691, Sec. 1(a), 74 Stat. 738, provided: “The sentence of imprisonment of any person convicted of an offense in a court of the United States shall commence to run from the date on which such person is received at the penitentiary, reformatory, or jail for service of said sentence. “If any such person shall be committed to a jail or other place of detention to wait transportation to the place at which his sentence is to be served, his sentence shall commence to run from the date on which he is received at such jail or other place of detention. “No sentence shall prescribe any other method of computing the term.” The language used" }, { "docid": "23235741", "title": "", "text": "exclusive custody of the petitioner on the date of sentence, and had failed to obey the judgment of the Federal court by surrendering him to the state authorities. Under such circumstances, Smith v. Swope, supra, would apply. Here, as in Rohr v. Hudspeth, supra, and Zerbst v. McPike, supra, the United States court for the Northern District of Oklahoma acquired only such custody and control of the petitioner under the writ of habeas corpus ad prosequendum as the well established rules of comity recognize and it was the right and the duty of the court acting, through the United States Marshal, to exercise only such jurisdiction over the petitioner as the rules of comity permitted and no other. The Warden of the Oklahoma State Penitentiary had no power or authority to release custody to any one in derogation of his duty to keep him safely-until the judgment and sentence was executed. We hold in these circumstances, that the custody and control of the United States Marshal, and of the United States court, over the petitioner was temporary and that the Marshal acted in accordance with the established rules of comity and in obedience to the writ of habeas corpus ad prosequendum, under which he acquired jurisdiction of the petitioner when he returned him to the Warden of the state penitentiary. There are other compelling reasons for holding that the sentence imposed by the United States District Court for the Northern District of Oklahoma did not commence to run on February 9, 1939, the date on which it was imposed. 18 U.S.C.A. § 709a, enacted June 29, 1932, provides that: “The sentence of imprisonment of any person convicted of a crime in a court of the United States shall commence to run from the date on which such person is received at the penitentiary, reformatory, or jail for service of said sentence: Provided, That if any such person shall be committed to a jail or other place of detention to await transportation to the place at which his sentence is to be served, the sentence of such person shall commence to" }, { "docid": "12514619", "title": "", "text": "on April 17, 1989, Del Guzzi was released from state custody, and immediately accepted into federal custody. Del Guzzi had spent three years and seven months in state custody. Del Guzzi immediately began petitioning federal prison officials to credit his state time against his federal sentence. His requests were consistently denied, as the federal official maintained that his federal sentence began on April 17, 1989, the day he arrived at the federal prison. After exhausting his administrative remedies Del Guzzi brought this pro se habeas petition. The district court denied it. Del Guzzi timely appealed. 18 U.S.C. § 3568, in effect at the time of Del Guzzi’s sentencing, states in relevant part: The sentence of imprisonment of any person convicted of an offense shall commence to run from the date on which such person is received at the penitentiary, reformatory, or jail for service of such sentence.... If any such person shall be committed to a jail or other place of detention to await transportation to the place at which his sentence is to be served, his sentence shall commence to run from the date on which he is received at such jail or other place of detention. No sentence shall prescribe any other method of computing the term. Del Guzzi first argues that he was awaiting transportation within the meaning of § 3568. This argument fails. The state sentencing judge had no authority to commit Del Guzzi to the state prison to await transportation to the federal prison where he was to serve his federal sentence. Although the state judge stated that Del Guzzi’s sentence “may be served in the federal prison,” and “recommended that he be transported on the first available transportation,” his authority was limited to sending Del Guzzi to state prison to serve his state sentence. Accordingly, his federal sentence did not begin to run until April 17, 1989, when he was received at the federal prison. Hardy v. United States Bd. of Parole, 443 F.2d 402, 402 (9th Cir.1971) (“It is fundamental that appellant’s federal sentence did not begin to run until appellant ... was" }, { "docid": "16099663", "title": "", "text": "person convicted of an offense in a court of the United States shall commence to run from the date on which such person is received at the penitentiary, reformatory, or jail for service of said sentence. “If any such person shall be committed to a jail or other place of detention to wait transportation to the place at which his sentence is to be served, his sentence shall commence to run from the date on which he is received at such jail or other place of detention. “No sentence shall prescribe any other method of computing the term.” The exact contention here made by appellant was before this Court in Zerbst v. McPike, 97 F.2d 253 (5 Cir., 1938). In that case, after having a Federal sentence imposed while he was in custody of the State with “no time being fixed for the commencement”, McPike was returned to the State authorities. Upon the completion of his State sentence, McPike was taken into custody of the United States. When he contended the Federal sentence had commenced to run before actually being in Federal custody, this Court stated: “Without the consent of the State authorities the United States Marshal could not lawfully take the person of McPike from the State officers, although McPike had been brought into the federal court and tried; and he did not attempt to. When McPike was taken back to jail he entered it not to await transportation to the federal penitentiary but to await trial in the state court. The proviso of 18 U.S.C.A. § 709a [presently § 3568] therefore does not apply. His federal sentence could begin to run only from ‘the date on which [he] is received at the penitentiary, reformatory or jail for service of said sentence’, by the express provision of that law. It has not yet been fully served.” Harrell v. Shuttleworth, 200 F.2d 490, 5 Cir., decided by this Court in 1952, is almost factually identical to the case now presented. In that case, after Federal sentence was imposed the appellant was returned to State custody. The Federal sentence was “to" }, { "docid": "21398896", "title": "", "text": "sentences imposed in State Court on October 2, 1952, by Judge Meagher, in the Worcester Superior Court, in cases numbered 4256, 4257, and 4264, nor is there any doubt that he remained in State custody until May 16, 1955. The version of 18 U.S.C.A. § 3568 which was in effect in 1948, until its amendment on September 2,1960 by Public Law 86-691, Sec. 1(a), 74 Stat. 738, provided: “The sentence of imprisonment of any person convicted of an offense in a court of the United States shall commence to run from the date on which such person is received at the penitentiary, reformatory, or jail for service of said sentence. “If any such person shall be committed to a jail or other place of detention to wait transportation to the place at which his sentence is to be served, his sentence shall commence to run from the date on which he is received at such jail or other place of detention. “No sentence shall prescribe any other method of computing the term.” The language used in the instant sentence is sufficiently clear to eliminate any doubt as to when the Federal sentence was to begin. As was stated by the Court of Appeals for the Seventh Circuit in United States ex rel. Lombardo v. McDonnell, 153 F.2d 919, 922, certio-rari denied 1946, United States ex rel. Durkin v. McDonnell, 328 U.S. 872, 66 S.Ct. 1365, 90 L.Ed. 1641: “[It excluded] any serious misapprehension of those who must execute [it] and * * * [revealed] with fair certainty the intent of the [court], rendering the [judgment].” See, also, United States v. Jazorek, 7 Cir., 226 F.2d 693, certiorari denied 1955, 350 U.S. 975, 76 S.Ct. 452, 100 L.Ed. 845; Zahn v. Kipp, 7 Cir., 1955, 218 F.2d 898. II. As to Petitioner’s Contention that the Sentence Imposed by Judge Ford Should Be “Corrected” to Make Its Effective Date October 27, 1952. In situations in which a defendant is not available to begin serving a Federal sentence at the time of the imposition of sentence, the effective date of commencement of sentence" }, { "docid": "22572914", "title": "", "text": "The judgment of the Federal court contained no reference to any state sentence and no recital as to the time of commencement of the Federal sentence. On July 27, 1951, he was surrendered back by the Federal authorities to the Louisiana authorities and thereafter was sentenced by a state court to imprisonment for a period of five years. On September 22, 1955, he was released from the Louisiana State Penitentiary and was taken into custody by a United States Marshal, who delivered him to the United States Penitentiary at Leavenworth, Kansas, where he has since been confined under the Federal sentence. It is the contention of Hayward that the Federal sentence commenced to run on June 6, 1951, and that it has expired. Either the Federal or a state government may voluntarily surrender its prisoner to the other without the consent of the prisoner. Whether jurisdiction and custody of a prisoner shall be retained or surrendered is a matter of comity and is to be determined by the sovereign having custody. If the prisoner has violated the law of both sovereigns, he is subject to prosecution by both and he may not complain of or choose the manner or order in which each sovereign proceeds against him/ While the record before us may not affirmatively show that the Attorney General of the United States authorized the return of Hayward to the state authorities, there is a presumption that public officers will act lawfully and it will be presumed that the return of Hayward to the state authorities was duly authorized, absent an affirmative showing to the contrary. 18 U.S.C.A. § 3568 provides: “The sentence of imprisonment of any person convicted of an offense in a court of the United States shall commence to run from the date on which such person is received at the penitentiary, reformatory, or jail for service of said sentence. “If any such person shall be committed to a jail or other place of detention to wait transportation to the place at which his sentence is to be served, his sentence shall commence to run from" }, { "docid": "22839250", "title": "", "text": "earliest date at which the federal sentence could begin to run was, by the terms of 18 U.S.C. § 3568, the date on which appellant was received at a place of detention 'to wait transportation to the place at which his sentence is to be served.’ ”); Hayward v. Looney, 246 F.2d 56, 58 (10th Cir.1957) (under § 3568, a \"Federal sentence does not begin to run until such time as the prisoner is returned to Federal custody and received at the Federal penal institution for service of his Federal sentence\"); Gunton v. Squier, 185 F.2d 470, 471 (9th Cir.1950) (\"his Federal sentence could not start to run until he was delivered to and received by the United States Marshal at the place of detention to await transportation to the Federal penitentiary”); Zerbst v. McPike, 97 F.2d 253, 254 (5th Cir.1938) (under predecessor to § 3568, \"federal sentence could begin to run only from 'the date on which [the defendant] is received at the penitentiary, reformatory or jail for service of said sentence’ ”). REINHARDT, Circuit Judge, concurring in part and dissenting in part. Although I do not agree with the majority opinion’s reasoning, I concur in its judgment to the extent that it concludes that Thomas is not entitled to credit for the entire two year-3 month period he served in state prison following the imposition of the initial federal sentence. I dissent in part because the majority opinion fails to give Thomas credit for the three month period he should have been in federal custody in 1964 for the purpose of having a diagnostic study conducted. When a federal court issues an order directing an officer to commit a federal prisoner to the custody of the Attorney General for a diagnostic study, or otherwise, the officer’s failure to act in accordance with that order cannot be “charged up against the prisoner.” See Smith v. Swope, 91 F.2d 260, 262 (9th Cir.1937). We held in Smith that the prisoner is entitled to serve his time promptly if such is the judgment imposed, and he must be deemed to be" }, { "docid": "16814617", "title": "", "text": "probation shall constitute a permissible reduction of sentence under this subdivision. . 18 U.S.C. § 3568 provides: The sentence of imprisonment of any person convicted of an offense shall commence to run from the date on which such person is received at the penitentiary, reformatory, or jail for service of such sentence. The Attorney General shall give any such person credit toward service of his sentence for any days spent in custody in connection with the offense or acts for which sentence was imposed. As used in this section, the term \"offense” means any criminal offense, other than an offense triable by court-martial, military commission, provost court, or other military tribunal, which is in violation of an Act of Congress and is triable in any court established by Act of Congress. If any such person shall be committed to a jail or other place of detention to await transportation to the place at which his sentence is to be served, his sentence shall commence to run from the date on which he is received at such jail or other place of dentention. No sentence shall prescribe any other method of computing the term. (emphasis added). See also Polakoff v. United States, 489 F.2d 727, 730 (5th Cir. 1974) (“custody\" for purposes of federal credit is “characterized by incarceration; a federal sentence does not begin to run, ... until the prisoner is received at the place of imprisonment”); Scott v. United States, 434 F.2d 11, 21 (5th Cir.1970) (federal service does not \"commence” until a prisoner is \"received” at the “federal institution, and no judge or court may prescribe a different method”). . 18 U.S.C. § 4082(a) provides: A person convicted of an offense against the United States shall be committed, for such term of imprisonment as the court may direct, to the custody of the Attorney General of the United States, who shall designate the place of confinement where the sentence shall be served. . The fact that Naas will have served even the consecutive federal sentences long before the forty-year parole date on his state sentence does not render" }, { "docid": "15901075", "title": "", "text": "the United States District Court was illegal and should be vacated because of the provision that the sentence imposed was “to begin at expiration of sentence defendant is now serving under North Carolina state jurisdiction”, when, in fact, he was not serving any state sentence but was held in jail by state authorities pending trial. 18 U.S.C. § 3568 reads as follows: “The sentence of imprisonment of any person convicted of an offense in a court of the United States shall commence to run from the date on which such person is received at the penitentiary, reformatory, or jail for service of said sentence. “If any such person shall be committed to a jail or other place of detention to wait transportation to the place at which his sentence is to be served, his sentence shall commence to run from the date on which he is received at such jail or other place of detention. “No sentence shall prescribe any other method of computing the term.” The commencement date of every prison term as prescribed by 18 U.S.C. § 3568 is included by implication in every federal sentence, and any provision to the contrary is surplusage. Harrell v. Shuttleworth, 5 Cir., 1952, 200 F.2d 490. It is also recognized that, while the state which first arrests one accused of crime cannot without its consent be deprived of his custody until it is through with him, it may allow the federal government temporary custody in order to afford him a speedy trial without a complete surrender of the prior jurisdiction which the state has acquired. The prior right acquired by the first arrest continues unchanged until the arresting government has completed or relinquished the exercise of its powers. Zerbst v. McPike, 5 Cir., 1938, 97 F.2d 253. Furthermore, when a state surrenders a prisoner to the federal govern ment for trial on a federal charge, and, upon conviction and sentence in the federal court the federal authorities surrender custody of the prisoner back to the state authorities for trial or imprisonment, the federal sentence does not start to run until the" }, { "docid": "16887492", "title": "", "text": "received at the penitentiary, reformatory, or jail for service of said sentence. * * * “If any such person shall be committed to a jail or other place of detention to await transportation to the place at which his sentence is to be served, his sentence shall commence to run from the date on which he is received at such jail or other place of detention. “No sentence shall prescribe any other method of computing the-term.” Since petitioner’s service of the sentence imposed by this court on January 9, 1958 did not begin until October 5, 1961, the date of his entry into federal custody, he has suffered no denial of rights in this regard. In Hayward v. Looney, 246 F.2d 56 (10th Cir.1957), the petitioner while in state custody was surrendered to federal authorities for trial and sentencing on another charge and then surrendered back to state custody to serve his state sentence. At the expiration of his state sentence, the peti tioner was required to serve his federal sentence. The court stated that: “It is well settled that when a state surrenders a prisoner to the Federal government for the purpose of trial on a Federal charge and upon conviction and sentence in the Federal court, the Federal authorities surrender custody of the prisoner back to the state authorities for trial or imprisonment, without the prisoner having been received at a Federal penal institution for service of his Federal sentence, the Federal sentence does not begin to run until such time as the prisoner is returned to Federal custody and received at the Federal penal institution for service of his Federal sentence.” 246 F.2d at 58. In the instant case, after being sentenced by this court the petitioner was not committed to a jail or other place of detention to await transportation to the place at which his sentence was to be served. He was detained only for surrender back to the custody of the state authorities. Hayward v. Looney, supra; Zahn v. Kipp, 218 F.2d 898 (7th Cir. 1955). Zerbst v. McPike, 97 F.2d 253 (5th Cir.1938)." }, { "docid": "22839242", "title": "", "text": "the interim period during which the study is being conducted, between initial commitment and final judgment. Thus, in Thomas’s case, the date of “original commitment” was November 23, 1966, when state authorities turned him over to federal authorities and he was delivered to the Federal Correctional Institute at Lompoc for the study — and not August 4, 1964, while Thomas was a state prisoner temporarily present in federal court pursuant to the writ of habeas corpus ad prose-quendum. V Thomas’s final contention is that he is entitled to credit toward his federal sentence under 18 U.S.C. § 3568. During the relevant time period, 18 U.S.C. § 3568 provided: The sentence of imprisonment of any person convicted of an offense in a court of the United States shall commence to run from the date on which such person is received at the penitentiary, reformatory, or jail for service of said sentence: Provided, That the Attorney General shall give any such person credit toward service of his sentence for any days spent in custody prior to the imposition of sentence by the sentencing court for want of bail set for the offense under which sentence was imposed where the statute requires the imposition of a minimum mandatory sentence. If any such person shall be committed to a jail or other place of detention to await transportation to the place at which his sentence is to be served, his sentence shall commence to run from the date on which he is received at such jail or other place of detention. No sentence shall prescribe any other method of computing the term. Under section 3568 Thomas’s sentence could not have begun to run until he was received at an institution either to serve his sentence, or to be transported to another institution where his sentence was to be served. Thomas contends that because he was taken to the federal wing of the Los Angeles County Jail after his August 4 sentencing, the district court should have found that he was there awaiting transportation to a federal facility. The district court did not clearly err" }, { "docid": "16099662", "title": "", "text": "PER CURIAM. Appellant filed with the District Court for the Northern District of Georgia his petition for writ of habeas corpus. The petition was denied and this appeal is from that denial. On June 20, 1956 appellant was convicted in the United States District Court for the Southern District of Georgia for violating Title 18 U.S.C. § 2312. The sentence provided that service of same would commence upon the expiration of or legal release from a sentence the appellant was then serving in the North Carolina State Prison. The State sentence was to have terminated on October 3, 1957; however, appellant later received two additional sentences for escaping from custody of the State officials. On July 2, 1962, having completed his State sentences, appellant was taken into custody by the United States. Appellant contends that his sentence imposed by the United States District Court commenced to run on October 3, 1957 — the time his original State court sentence was due to expire. Title 18 U.S.C. § 3568 provides: “The sentence of imprisonment of any person convicted of an offense in a court of the United States shall commence to run from the date on which such person is received at the penitentiary, reformatory, or jail for service of said sentence. “If any such person shall be committed to a jail or other place of detention to wait transportation to the place at which his sentence is to be served, his sentence shall commence to run from the date on which he is received at such jail or other place of detention. “No sentence shall prescribe any other method of computing the term.” The exact contention here made by appellant was before this Court in Zerbst v. McPike, 97 F.2d 253 (5 Cir., 1938). In that case, after having a Federal sentence imposed while he was in custody of the State with “no time being fixed for the commencement”, McPike was returned to the State authorities. Upon the completion of his State sentence, McPike was taken into custody of the United States. When he contended the Federal sentence had commenced" }, { "docid": "21534089", "title": "", "text": "was tried on the state charge in the city pourt of East St. Louis, Illinois, and the jury being unable to agree, a mistrial was de-' dared. At a later date the state case against petitioner was removed from 'the docket with leave to reinstate. On January 16, 1936, petitioner was turned over to the United States Marshal for the Eastern District of Illinois by the state authorities, and he was delivered to the Warden of the United States Penitentiary at Leavenworth, Kansas, February 18, 1936, pursuant to commitment under the above sentence. Did petitioner begin service of the five-year sentence September 14, 1935, when it was pronounced, as he contends, or on January 16, 1936, when the state surrendered him to the United States Marshal? That the state of Illinois could waive its right to exclusive custody of petitioner in order that the United States might try him, and that the federal court had jurisdiction to try and sentence him is settled. Ponzi v. Fessenden, 258 U.S. 254, 42 S.Ct. 309, 66 L.Ed. 607, 22 A.L.R. 879; Zerbst v. McPike, 5 Cir., 97 F.2d 253. As to the time when sentence begins to run 18 U.S.C.A. § 709a provides: “The sentence of imprisonment of any person convicted of a crime in a court of the United States shall commence to run from the date on which such person is received at the penitentiary, reformatory, or jail for service of said sentence: Provided, That if any such person shall be committed to a jail or other place of detention to await transportation to the place at which his sentence is to be served, the sentence of such person shall commence to run from the date on which be is received at such jail or other place of detention. No sentence shall prescribe any other method of computing the term.” Act June 29, 1932, c. 310, § 1, 47 Stat. 381. Of this statute our court in Demarois v. Hudspeth, 10 Cir., 99 F.2d 274, 275, said its plain purpose was to give credit for time spent in local confinement awaiting" }, { "docid": "2676730", "title": "", "text": "to be served. The state court’s sentencing orders suspended Downey’s state sentences, and placed him on probation in the custody of the United States Bureau of Prisons. We read these orders to have immediate effect. Our interpretation of these sentencing orders is supported by the United States Marshal’s statements on the “return” portion of the United States District Court’s “Judgment and Commitment” form. The Marshal’s entry is as follows: “Defendant was produced in court by Sheriff’s Office, City of St. Louis, on WHCAP [writ of habeas corpus ad prosequendum], and on May 28, 1971, received within sentence; defendant remaining in custody of Sheriff, City of St. Louis, until June 10 1971, on which date defendant was released to United States Marshal on within Judgment and Commitment.” (Emphasis supplied.) Consequently, as of June 10, 1971, Missouri authorities had surrendered their jurisdiction over Downey to the United States prison officials, and Downey was returned to the St. Louis City Jail solely for the purpose of awaiting transportation to the federal prison. In view of these facts, Downey should also be given credit against his federal sentence for the period from June 10, 1971, to July 16, 1971. Affirmed in part, reversed in part, and remanded to the District Court for an order in accordance with the disposition directed herein. . “The sentence of imprisonment of any person convicted of an offense shall commence to run from the date on which such person is received at the penitentiary, reformatory, or jail for service of such sentence. The Attorney General shall give any such person credit toward service of his sentence for any days spent in custody in connection with the offense or acts for which sentence was imposed. As used in this section, the term ‘offense’ means any criminal offense, other than an offense triable by court-martial, military commission, provost court, or other military tribunal, which is in violation of an Act of Congress and is triable in any court established by Act of Congress. “If any such person shall he committed to a jail or other place of detention to anoait transportation" }, { "docid": "23235742", "title": "", "text": "was temporary and that the Marshal acted in accordance with the established rules of comity and in obedience to the writ of habeas corpus ad prosequendum, under which he acquired jurisdiction of the petitioner when he returned him to the Warden of the state penitentiary. There are other compelling reasons for holding that the sentence imposed by the United States District Court for the Northern District of Oklahoma did not commence to run on February 9, 1939, the date on which it was imposed. 18 U.S.C.A. § 709a, enacted June 29, 1932, provides that: “The sentence of imprisonment of any person convicted of a crime in a court of the United States shall commence to run from the date on which such person is received at the penitentiary, reformatory, or jail for service of said sentence: Provided, That if any such person shall be committed to a jail or other place of detention to await transportation to the place at which his sentence is to be served, the sentence of such person shall commence to run from the date on which he is received at such jail or other place of detention. No sentence shall prescribe any other method of computing the term.” Obviously, the petitioner was not received at the penitentiary, or committed to a jail or other place of detention to await transportation to the penitentiary until November 2, 1940, and no other place was designated by the Attorney General, having such exclusive power to so designate, for the service of the sentence. 18 U.S.C.A. .§ 753f. Therefore, under the statutes which are mandatory and binding upon the sentencing court and the petitioner, he did not commence the service of his sentence until he was committed to the Federal Penitentiary at Leavenworth, Kansas on November 2, 1940, and the judgment of the District Court is affirmed. HUXMAN, Circuit Judge (dissenting). I am not in disagreement with my associates on the principles of law which apply in this case. It is recognized without exception that a state which first obtains jurisdiction and control of a prisoner may retain the" }, { "docid": "11886347", "title": "", "text": "656, 660-61 (3d Cir. 1973), reversed on other grounds, 417 U.S. 653, 94 S.Ct. 2532, 41 L.Ed.2d 383 (1975); Soyka v. Alldredge, supra. For the foregoing reasons, we have concluded that the district court had jurisdiction over the petition for a writ of habeas corpus. II. Petitioner relies on this language at 18 U.S.C. § 3568 in support of his contention that the West Virginia sentence began on January 19, 1971: “The sentence of imprisonment of any person convicted of an offense shall commence to run from the date on which such person is received at the penitentiary, reformatory, or jail for service of such sentence. . . No sentence shall prescribe any other method of computing the term.” However, petitioner was not received at either the Ohio or Pennsylvania institution for service of the West Virginia federal sentence. As stated in Hayward v. Looney, 246 F.2d 56, 58 (10th Cir. 1957), “the Federal sentence does not begin to run until such time as the prisoner is returned to Federal custody and received at the Federal penal institution for service of his Federal sentence.” Similarly, in United States v. Kanton, 362 F.2d 178, 179 at 179-80 (7th Cir. 1966), the court said: “Absent clear intent to have defendant’s sentence run concurrently with any state sentence, the execution of his federal sentence did not begin to run until the United States Marshal assumed custody over him at his place of detention to await transportation to the federal penitentiary.” A federal court has no power to direct that a federal sentence shall run concurrently with a state sentence. See United States v. Janiec, 505 F.2d 983, 987-88 (3d Cir. 1974). As noted in that case, a federal judge may recommend to the Attorney General that he designate a state institution as the place of service of a federal sentence in order to make it concurrent with a state sentence being served at that institution. See United States v. DeVino, 531 F.2d 182 (Opinion of March 4, 1976, 3d Cir.). The West Virginia federal court made no such recommendation, even though the Pennsylvania" }, { "docid": "16887491", "title": "", "text": "way modified, nor was any formal attempt at modification ever made. Petitioner further states that from March 29, 1958 until November 30, 1960 he resided at his previous address and made no attempt to flee. As legal grounds for his release the petitioner contends in substance that: 1. By not requiring him to serve his sentence immediately on his release from Green Haven State Prison on March 29, 1958 and/or by allowing his subsequent arrest and conviction by local authorities for forgery of a prescription, the Federal Government in some manner relinquished its jurisdiction over him. 2. The delay in his imprisonment on the sentence imposed by this court was unconstitutional as a denial of due process and as cruel and inhuman punishment under the Fifth and the Eighth Amendments to the Constitution of the United States. The governing statute, 18 U.S.C. § 3568, provides: “The sentence of imprisonment of any person convicted of an offense in a court of the United States shall commence to run from the date on which such person is received at the penitentiary, reformatory, or jail for service of said sentence. * * * “If any such person shall be committed to a jail or other place of detention to await transportation to the place at which his sentence is to be served, his sentence shall commence to run from the date on which he is received at such jail or other place of detention. “No sentence shall prescribe any other method of computing the-term.” Since petitioner’s service of the sentence imposed by this court on January 9, 1958 did not begin until October 5, 1961, the date of his entry into federal custody, he has suffered no denial of rights in this regard. In Hayward v. Looney, 246 F.2d 56 (10th Cir.1957), the petitioner while in state custody was surrendered to federal authorities for trial and sentencing on another charge and then surrendered back to state custody to serve his state sentence. At the expiration of his state sentence, the peti tioner was required to serve his federal sentence. The court stated that:" }, { "docid": "23235743", "title": "", "text": "run from the date on which he is received at such jail or other place of detention. No sentence shall prescribe any other method of computing the term.” Obviously, the petitioner was not received at the penitentiary, or committed to a jail or other place of detention to await transportation to the penitentiary until November 2, 1940, and no other place was designated by the Attorney General, having such exclusive power to so designate, for the service of the sentence. 18 U.S.C.A. .§ 753f. Therefore, under the statutes which are mandatory and binding upon the sentencing court and the petitioner, he did not commence the service of his sentence until he was committed to the Federal Penitentiary at Leavenworth, Kansas on November 2, 1940, and the judgment of the District Court is affirmed. HUXMAN, Circuit Judge (dissenting). I am not in disagreement with my associates on the principles of law which apply in this case. It is recognized without exception that a state which first obtains jurisdiction and control of a prisoner may retain the exclusive control of him until its sentence and judgment have been completely executed. It may not be compelled by writ of habeas corpus or otherwise to surrender him to another sovereign for any purpose, either conditionally or absolutely. As stated in the majority opinion, by comity between states, one sovereign may recognize a request from another for the delivery of one in its custody. That comity is not restricted, however, to requests for temporary possession of a prisoner. It extends to all requests. Nor can it be said that under the rule of comity a request from one sovereign to another, whether for the temporary or absolute custody of the prisoner, is generally granted. Many elements enter into a consideration of such a request, such as the desperate character of the prisoner, the sentence he is serving, the crime with which he is charged in the other jurisdiction, and the severity of the sentence that would be imposed there as compared with the present sentence. The most, then, that is required under the rule of" } ]

[ { "docid": "19276445", "title": "", "text": "on the exercise of billing judg[ ]ment.” Andrews, 17 Vet.App. at 323. 2. Adequacy of Documentation i. Detail and Specificity in the Billing Statement Specific documentation is necessary to support an application for fees under EAJA. 28 U.S.C. § 2412(d)(1)(B) (providing that “[a] party seeking an award of fees and other expenses shall ... submit to the court an application for fees and other expenses ... including an itemized statement from any attorney or expert witness representing or appearing in behalf of the party stating the actual time expended and the rate at which fees and other expenses were computed”). Because of the importance of submitting evidence supporting the hours worked and rates claimed when a court determines reasonableness, the Supreme Court has stated that “[w]here the documentation of hours is inadequate,” the court charged with ordering the payment of attorney fees “may reduce the award accordingly.” Hensley, 461 U.S. at 433, 103 S.Ct. 1933. Following that lead, the United States Court of Ap peals for the D.C. Circuit (D.C. Circuit) recently discussed this issue and noted that “supporting documentation 'must be of sufficient detail and probative value to enable the court to determine with a high degree of certainty that such hours were actually and reasonably expended.’ ” Role Models, 353 F.3d at 970 (quoting In re Olson, 884 F.2d 1415, 1428 (D.C.Cir.1989)) (quoting United Slate, Tile & Composition Roofers v. G & M Roofing & Sheet Metal Co., 732 F.2d 495, 502 n. 2 (6th Cir.1984)). In Role Models, the D.C. Circuit concluded that it was not possible to evaluate the reasonableness of billing records where attorneys lumped together multiple tasks into time entries. Id. at 971. The court consequently reduced fees accordingly. Id. This Court has similarly held that for EAJA fees to be awarded in full, an applicant must submit evidence of hours worked in the form of a billing statement that is specific and detailed. Andrews, 17 Vet.App. at 321 (deciding that a significant reduction in hours billed was warranted where the attorney listed the time billed in increments in excess of three hours with" } ]

[ { "docid": "23356051", "title": "", "text": "a declaration stating that his net worth was less than $2,000,000 “at the time [ ] my appeal to [this Court] was filed”; (3) an assertion that the position of the Secretary was not substantially justified; and (4) an itemized statement of the fees sought (in the amended amount of $38,470.00), supported by an affidavit from the appellant’s counsel. See Bazalo v. Brown, 9 Vet.App. 304, 310 (1996) (en banc). Accordingly, the Court finds that the EAJA application was timely filed. Ibid. B. Merits of EAJA Application The amended EAJA application seeks attorney fees in the amount of $38,470.00 based on an expenditure of 331.3 hours of time billed at the rate of $125.00 per hour for attorney time and $100.00 per hour for non-attorney representative time. Amended Application at 2. In response to the EAJA application, the Secretary states that he does not contest the following: (1) That the appellant has obtained a “final judgment” within the meaning of the EAJA (28 U.S.C. § 2412(d)(2)(G)); (2) that the appellant is a “prevailing party” within the meaning of the EAJA (28 U.S.C. § 2412(d)(2)(B)); (3) that the appellant’s net worth does not exceed $2,000,000 (28 U.S.C. § 2412(d)(2)(B)); and (4) that the Secretary was not substantially justified in the underlying merits administrative decisionmaking and litigation in this Court (28 U.S.C. § 2412(d)(1)(A)). Response (Resp.) at 4. The Secretary states that the “amount of fees are generally not contested with 2 exceptions” and that these two items should be reduced by a total amount of 9.5 hours. Ibid. He further states that the appellant’s counsel is requesting approximately $19,000 for work performed to demonstrate the reasonableness of his fee agreement with the veteran and that any discussion of EAJA fees for this work is premature because the issue regarding the reasonableness of the fee agreement is pending before the Court and the appellant is not a “prevailing party” with respect to that issue. The Secretary states that his response to the EAJA application is thus limited to the services provided solely in connection with the Court’s action pursuant to the NOA" }, { "docid": "16951243", "title": "", "text": "award reasonable attorney fees and expenses pursuant to 28 U.S.C. § 2412(d)(2)(F), as amended by section 506 of the Federal Courts Administration Act of 1992, Pub.L. No. 102-572, 106 Stat. 4506, 4513 (1992). The appellant’s June 13, 1996, EAJA application has satisfied the jurisdictional content requirements under 28 U.S.C. § 2412(d)(1)(B) within the applicable 30-day application period because it contained the following: (1) A showing that he was a “prevailing party” by virtue of the Court’s remand (Stillwell v. Brown, 6 Vet.App. 291, 300-01 (1994)); (2) a showing that he is a party eligible for an award under the EAJA by attaching a declaration stating that at the time that his appeal was filed his net worth was less than $2,000,000; (3) an assertion that the position of the Secretary was not substantially justified; and (4) an itemized statement of the fees sought (now totaling, on the basis of the five supplements filed, $23,922.02 plus expenses of $1,183.54) supported by an affidavit from the appellant’s counsel. See Bazalo v. Brown, 9 Vet.App. 304, 310 (1996) (en banc). In response to the EAJA application, the Secretary states that he does not contest the following: (1) That the appellant has obtained a “final judgment” within the meaning of the EAJA (28 U.S.C. § 2412(d)(2)(G)); (2) that the appellant is a “prevailing party” within the meaning of the EAJA (28 U.S.C. § 2412(d)(2)(B)); (3) that the appellant’s net worth did not exceed $2,000,000 at the time that the appeal was filed (28 U.S.C. § 2412(d)(2)(B)); and (4) that the Secretary was not substantially justified in the underlying merits administrative decisionmaking (28 U.S.C. § 2412(d)(1)(A)). Resp. at 3. Accordingly, the Court holds that the timely filed and jurisdictionally effective EAJA application must be granted unless the Secretary has carried the burden of putting forth an affirmative defense, as discussed in part II.A.2, below. See Bazalo, supra; see also March v. Brown, 7 Vet.App. 163, 169 (1994); Cook v. Brown, 6 Vet.App. 226, 237 (1994) (holding that where Secretary had conceded issue of substantial justification, the Court “thus need not decide it”), aff'd, 68 F.3d" }, { "docid": "831923", "title": "", "text": "at 4-5. Thus, he is requesting that the fee be calculated based on the statutory rate denoted for attorneys. On November 15, 2006, the Secretary filed a response to the appellant’s EAJA application contending that the fees sought by the appellant are excessive for work performed by a non-attorney practitioner. On November 29, 2006, the appellant filed a reply to the Secretary’s response in which the appellant sought to justify reim bursement at the hourly rate set forth in the initial EAJA application. See Appellant’s Reply to Appellee’s Response to the EAJA App. (Reply) at 1-12. The appellant contended that Mr. Overby is entitled to a higher rate than the rate for a supervised non-attorney practitioner admitted to practice under this Court’s Rules because “[t]here is no rational, objective basis upon which to differentiate between the value of services provided by Mr. Overby and the value of those provided by an attorney on the basis of attorney/non-attorney status for purposes of the EAJA.” Reply at 2-3. Specifically, he contends that, because Mr. Overby does not require attorney supervision, is responsible for his own work, and possesses impressive qualifications and experience, the Court’s precedent regarding fees for non-attorney practitioner James W. Stewart is inapplicable. See Reply at 2-11; see also Apodackis, Evington, and Pentecost, all infra; Abbey, supra n. 2. The appellant also seeks reimbursement of $400.00 for 2.5 hours of work associated with preparation of the Reply at a rate of $160.00 per hour. See Reply at 12, Attachment 3, Affidavit of Ronald L. Smith, at 2. II. ANALYSIS A. Eligibility This Court has jurisdiction to award reasonable fees and expenses to non-attorney practitioners pursuant to 28 U.S.C. § 2412(d)(2)(B). See Veterans Benefits Act of 2002(VBA), Pub.L. No. 107-330, § 403, 116 Stat. 2820, 2833 (2002). EAJA fees may be awarded where the application was filed within the 30-day EAJA application period set forth in 28 U.S.C. § 2412(d)(1)(B) and contains (1) a showing that the appellant is a prevailing party; (2) a showing that the appellant is a party eligible for an award because his net worth does not" }, { "docid": "12692271", "title": "", "text": "January 17, 2002, EAJA application was filed within the 30-day EAJA application period set forth in 28 U.S.C. § 2412(d)(1)(B) and satisfies all EAJA jurisdictional content requirements because the application contains the following: (1) A showing that, by virtue of the Court’s remand, the appellant is a prevailing party within the meaning of the EAJA; (2) a showing that he is a party eligible for an award under the EAJA because his net worth does not exceed $2,000,000; (3) an allegation that the position of the Secretary was not substantially justified; and (4) an itemized fee statement. See 28 U.S.C. § 2412(d)(1)(A), (1)(B), (2)(B); Scarborough v. Principi, 319 F.3d 1346, 1349-55 (Fed.Cir.2003); Bazalo v. West, 150 F.3d 1380, 1383-84 (Fed.Cir.1998); Cullens v. Gober, 14 Vet.App. 234, 237 (2001) (en banc). In order to receive an EAJA award, an EAJA applicant must be a prevailing party. See 28 U.S.C. § 2412(d)(1)(A) (“court shall award to a prevailing party ... fees and other expenses”); Briddell v. Principi, 16 Vet.App. 267, 271 (2002); Sumner v. Principi, 15 Vet.App. 256, 260-61 (2001) (en banc), aff'd sub nom. Vaughn v. Principi, 336 F.3d 1351 (Fed.Cir.2003); Cullens, supra. The appellant has the burden of demonstrating prevailing-party status under the EAJA. Ibid. Prevailing-party status arises in either of two ways. The first is through a direction of the Court, evident within the terms of the particular Court decision upon which the appellant is basing the EAJA application, for VA to award VA benefits to the appellant. Sumner, 15 Vet. App. at 264-65. The second is through the grant of a merits-stage Court remand that was predicated upon administrative error. Ibid. In order for a remand to have been predicated upon administrative error, the remand must either (1) have been directed in a Court opinion, decision, or order that contained a Court recognition of administrative error or (2) have been granted on the basis of a concession of error by the Secretary. McCormick v. Principi, 16 Vet.App. 407, 411 (2002); Briddell, 16 Vet.App. at 271-72. The Court will not “investigate at the EAJA prevailing-party stage the validity, type," }, { "docid": "831924", "title": "", "text": "require attorney supervision, is responsible for his own work, and possesses impressive qualifications and experience, the Court’s precedent regarding fees for non-attorney practitioner James W. Stewart is inapplicable. See Reply at 2-11; see also Apodackis, Evington, and Pentecost, all infra; Abbey, supra n. 2. The appellant also seeks reimbursement of $400.00 for 2.5 hours of work associated with preparation of the Reply at a rate of $160.00 per hour. See Reply at 12, Attachment 3, Affidavit of Ronald L. Smith, at 2. II. ANALYSIS A. Eligibility This Court has jurisdiction to award reasonable fees and expenses to non-attorney practitioners pursuant to 28 U.S.C. § 2412(d)(2)(B). See Veterans Benefits Act of 2002(VBA), Pub.L. No. 107-330, § 403, 116 Stat. 2820, 2833 (2002). EAJA fees may be awarded where the application was filed within the 30-day EAJA application period set forth in 28 U.S.C. § 2412(d)(1)(B) and contains (1) a showing that the appellant is a prevailing party; (2) a showing that the appellant is a party eligible for an award because his net worth does not exceed $2,000,000; (3) an allegation that the Secretary’s position was not substantially justified; and (4) an itemized statement of the fees and expenses sought. See 28 U.S.C. § 2412(d)(1)(A), (1)(B), (2)(B); Scarborough v. Principi, 541 U.S. 401, 407-08, 124 S.Ct. 1856, 158 L.Ed.2d 674 (2004); Cullens v. Gober, 14 Vet.App. 234, 237 (2001) (en banc). The appellant’s EAJA application was timely filed and satisfies the EAJA content requirements. See id. The Secretary makes no argument with respect to prevailing-party status or whether the Secretary’s position was substantially justified. The Secretary disputes the hourly fee and number of itemized hours for which the appellant seeks reimbursement. B. Reasonableness of Hourly Rate 1. Prevailing Market Rate Versus Attorney-Fee Statutory Maximum “ ‘[T]he EAJA authorizes the award of the lower of either the prevailing market rate or [the statutory maximum] plus a COLA or other enhancement.’ ” Elcyzyn v. Brown, 7 Vet.App. 170, 179 (1994) (quoting Levernier Const., Inc. v. United States, 947 F.2d 497 (Fed.Cir.1991)). Fees for attorneys are statutorily capped at the rate of $125.00 per" }, { "docid": "12692270", "title": "", "text": "and expenses, in an amount determined appropriate”, for the work of non-attorney practitioners. Abbey, supra. On August 4, 2003, the appellant submitted additional evidence, purportedly pursuant to Rule 30(b). See U.S. Vet.App. R. 30(b) (providing for party to advise Court of “pertinent and significant authority [that] comes to the attention of a party after the party’s brief has been filed”). On August 18, 2003, the Secretary responded; he “urges the Court not to accept” the appellant’s letter or the additional evidence enclosed with it. Because this submission was contemplated within the “supporting evidence” described in the Court’s May 2003 supplemental briefing order (to be filed not later than 30 days after the date of that order) as contrasted with “pertinent and significant authority” as contemplated by Rule 30(b) and because the 30-day deadline under the May 2003 order has expired, the Court will not consider this additional evidence in the disposition of this matter. II. Analysis This Court has jurisdiction to award reasonable attorney fees and expenses pursuant to 28 U.S.C. § 2412(d)(2)(F). The appellant’s January 17, 2002, EAJA application was filed within the 30-day EAJA application period set forth in 28 U.S.C. § 2412(d)(1)(B) and satisfies all EAJA jurisdictional content requirements because the application contains the following: (1) A showing that, by virtue of the Court’s remand, the appellant is a prevailing party within the meaning of the EAJA; (2) a showing that he is a party eligible for an award under the EAJA because his net worth does not exceed $2,000,000; (3) an allegation that the position of the Secretary was not substantially justified; and (4) an itemized fee statement. See 28 U.S.C. § 2412(d)(1)(A), (1)(B), (2)(B); Scarborough v. Principi, 319 F.3d 1346, 1349-55 (Fed.Cir.2003); Bazalo v. West, 150 F.3d 1380, 1383-84 (Fed.Cir.1998); Cullens v. Gober, 14 Vet.App. 234, 237 (2001) (en banc). In order to receive an EAJA award, an EAJA applicant must be a prevailing party. See 28 U.S.C. § 2412(d)(1)(A) (“court shall award to a prevailing party ... fees and other expenses”); Briddell v. Principi, 16 Vet.App. 267, 271 (2002); Sumner v. Principi, 15 Vet.App." }, { "docid": "1547568", "title": "", "text": "fees and expenses under the EAJA pursuant to 28 U.S.C. § 2412(d)(2)(A), (F) as amended by section 506 of the Federal Courts Administration Act of 1992, Pub.L. No. 102-572, § 506, 106 Stat. 4506, 4513 (1992). The December 7, 1998, EAJA application was filed within the 30-day EAJA application period set forth in 28 U.S.C. § 2412(d)(1)(B). That application has satisfied any jurisdictional content requirements that apply because it contained a showing that, by virtue of the Court’s remand, the appellant is a prevailing party within the meaning of the EAJA (and thus that he was a party eligible for an award); a showing that he is a party eligible for an award under the EAJA because his net worth does not exceed $2,000,000; an allegation that the position of the Secretary was not substantially justified; and an itemized statement of the fees sought supported by an affidavit from the appellant’s counsel. See 28 U.S.C. § 2412(d)(1)(A), (1)(B), (2)(B); Chesser, 11 Vet.App. at 499; see also Bazalo v. West, 150 F.3d 1380, 1384 (Fed.Cir. 1998) (holding that showing of net worth is not jurisdictional requirement). When it is in receipt of a jurisdictionally sufficient EAJA application, this Court will award attorney fees “unless the [C]ourt finds that the position of the United States was substantially justified or that special circumstances make an award unjust”. 28 U.S.C. § 2412(d)(1)(A); Stillwell v. Brown, 6 Vet.App. 291, 301 (1994). Because the application here .has alleged, pursuant to 28 U.S.C. § 2412(d)(1)(B), that the Secretary’s position was not substantially justified (Application at 2), the Secretary “has the burden of proving that [his] position was substantially justified in order to defeat the appellant’s EAJA application”, Stillwell, supra; see also Locher v. Brown, 9 Vet.App. 535, 537 (1996). The Secretary concedes that his position was not substantially justified and has not contested the reasonableness of the EAJA fees requested. Resp. at 1-2. However, as a result of the fee-agreement provision discussed in part II.A.L, above, there is a question here about whether the EAJA application has the consent of the appellant. Thus, although the Court is" }, { "docid": "15790051", "title": "", "text": "March 8, 2001, the Secretary filed an unopposed motion for a remand. The basis for the Secretary’s motion was the need for the Board to address in its decision the potential applicability of the Veterans Claims Assistance Act of 2000, Pub.L. No. 106-475,114 Stat. 2096 (Nov. 9, 2000) (VCAA), which had been enacted prior to the issuance of the BVA decision. On March 22, 2001, the Court, in an unpublished order issued by the Clerk of the Court, granted the Secretary’s motion. On April 16, 2001, the appellant filed through counsel the pending EAJA application seeking $2,956.87 in attorney fees. On June 21, 2001, the Secretary filed a response to the appellant’s application; the Secretary asserts, alternatively, that the appellant is not a prevailing party entitled to EAJA fees and that the position of the Secretary was substantially justified. II. Analysis “The Court has jurisdiction to award reasonable attorney fees and expenses pursuant to 28 U.S.C. § 2412(d)(2)(F).” Cullens v. Gober, 14 Vet.App. 234, 237 (2001) (en banc). The appellant’s April 16, 2001, EAJA application was filed within the 30 day EAJA application period set forth in 28 U.S.C. § 2412(d)(1)(B) and satisfied any EAJA jurisdictional content requirements that apply, because the application contained the following: (1) A showing that, by virtue of the Court’s remand, he is a prevailing party within the meaning of the EAJA; (2) a showing that he is a party eligible for an award under the EAJA because his net worth does not exceed $2,000,000; (3) an allegation that the position of the Secretary was not substantially justified; and (4) an itemized fee statement. See 28 U.S.C. § 2412(d)(1)(A), (1)(B), (2)(B); Thayer v. Principi, 15 Vet.App. 204, 207 (2001); Cullens, supra; Bazalo v. Brown, 9 Vet.App. 304, 308 (1996), rev’d on other grounds sub nom. Bazalo v. West, 150 F.3d 1380, 1384 (Fed.Cir.1998) (holding that “statement that [appellant] is a prevailing ‘party’ satisfies eligibility requirement for jurisdictional purposes”). A. Prevailing-Party Status As noted above, in order to be eligible for fees pursuant to the EAJA an applicant must have been a “prevailing party”. 28 U.S.C." }, { "docid": "16978964", "title": "", "text": "filed a surres-ponse to the appellant’s response and supplements; in his surresponse, the Secretary argues that 19.14 of the hours of attorney fees claimed by the appellant for researching issues “unrelated” to those on appeal were expended in unproductive legal research and that the fees for fees should be reduced by 50% due to special circumstances. The appellant filed a motion seeking an opportunity to respond to the Secretary’s surresponse, and, on August 6,1998, the Court denied that motion. II. Analysis This Court has jurisdiction to award reasonable attorney fees and expenses pursuant to 28 U.S.C. § 2412(d)(2)(F) as amended by section 506 of the Federal Courts Administration Act of 1992, Pub.L. No. 102-572, § 506, 106 Stat. 4506, 4513 (1992). The appellant’s August 11, 1997, EAJA application was filed within the 30-day EAJA application period set forth in 28 U.S.C. § 2412(d)(1)(B) and has satisfied any jurisdictional content requirements that apply thereunder, because the application contained the following: (1) A showing that, by virtue of the Court’s remand, he is a “prevailing party” within the meaning of the EAJA (28 U.S.C. § 2412(d)(2)(B); Stillwell v. Brown, 6 Vet.App. 291, 300-01 (1994)); (2) a showing, by attaching a declaration stating that at the time that his appeal was filed his net worth was less than $2,000,000, so that he is a party eligible for an award under the EAJA (28 U.S.C. § 2412(d)(2)(B)); (3) an assertion that the position of the Secretary was not substantially justified (28 U.S.C. § 2412(d)(1)(A)); and (4) an itemized statement of the fees sought (now totaling $34,-804.58 in fees and $947.82 in expenses) supported by affidavits from the appellant’s counsels. See Bazalo v. Brown, 9 Vet.App. 304, 310 (1996) (en banc), rev’d sub nom. Bazalo v. West, 150 F.3d 1380, 1384 (Fed.Cir. 1998) (concluding that showing of net worth not jurisdictional requirement). The Secretary’s response specifically states that he does not contest the following: (1) That the appellant is a “prevailing party”; (2) that the appellant is a party eligible for an award; and (3) that the Secretary’s position was not substantially justified. Response at" }, { "docid": "11278410", "title": "", "text": "set forth in 28 U.S.C. § 2412(d)(1)(B) and satisfies the EAJA “application-content specifications”, Scarborough v. Principi 541 U.S. 401, -, 124 S.Ct. 1856, 1865, 158 L.Ed.2d 674 (2004), because the application contained the following: (1) A showing that, by virtue of the Court’s remand, he is the prevailing party within the meaning of the EAJA; (2) a showing that he is a party eligible for an award under the EAJA because his net worth does not exceed $2,000,000; (3) an allegation that the position of the Secretary was not substantially justified; and (4) an itemized fee statement. 28 U.S.C. § 2412(d)(1)(A), (1)(B), (2)(B); Cullens v. Gober, 14 Vet.App. 234, 237 (2001) (en banc) (listing four EAJA-application content requirements). As to prevailing-party status, this Court stated in Rollins v. Principi: In order to receive an EAJA award, an EAJA applicant must be a prevailing party. See 28 U.S.C. § 2412(d)(1)(A) (“court shall award to a prevailing party ... fees and other expenses”); Briddell [v. Principi, 16 Vet.App. 267, 271 (2002)]: Sumner [v. Principi, 15 Vet.App. 256, 260-61 (2001) (en banc), aff'd sub nom. Vaughn v. Principi, 336 F.3d 1351 (Fed.Cir.2003)]: Cullens, [supra]. The appellant has the burden of demonstrating prevailing-party status under the EAJA. See Sumner, Briddell, and Cullens, all supra. Prevailing-party status arises in either of two ways. The first is through a direction of the Court, evident within the terms of the particular Court decision upon which the appellant is basing the EAJA application, for VA to award VA benefits to the appellant. Sumner, 15 Vet.App. at 264-65. The second is through the grant of a merits-stage Court remand that was predicated upon administrative error. Ibid. In order for a remand to have been predicated upon administrative error, the remand must either (1) have been directed in a Court opinion, decision, or order that contained a Court recognition of administrative error or (2) have been granted on the basis of a concession of error by the Secretary. McCormick [v. Principi, 16 Vet.App. 407, 411 (2002)]; Briddell, 16 Vet.App. at 271-72. The Court will not “investigate at the EAJA prevailing-party" }, { "docid": "831925", "title": "", "text": "exceed $2,000,000; (3) an allegation that the Secretary’s position was not substantially justified; and (4) an itemized statement of the fees and expenses sought. See 28 U.S.C. § 2412(d)(1)(A), (1)(B), (2)(B); Scarborough v. Principi, 541 U.S. 401, 407-08, 124 S.Ct. 1856, 158 L.Ed.2d 674 (2004); Cullens v. Gober, 14 Vet.App. 234, 237 (2001) (en banc). The appellant’s EAJA application was timely filed and satisfies the EAJA content requirements. See id. The Secretary makes no argument with respect to prevailing-party status or whether the Secretary’s position was substantially justified. The Secretary disputes the hourly fee and number of itemized hours for which the appellant seeks reimbursement. B. Reasonableness of Hourly Rate 1. Prevailing Market Rate Versus Attorney-Fee Statutory Maximum “ ‘[T]he EAJA authorizes the award of the lower of either the prevailing market rate or [the statutory maximum] plus a COLA or other enhancement.’ ” Elcyzyn v. Brown, 7 Vet.App. 170, 179 (1994) (quoting Levernier Const., Inc. v. United States, 947 F.2d 497 (Fed.Cir.1991)). Fees for attorneys are statutorily capped at the rate of $125.00 per hour plus a COLA. See Contract with America Advancement Act of 1996, Pub.L. No. 104-121, § 232, 110 Stat. 841, 863 (1996) (codified at 28 U.S.C. § 2412(d)(2)(A)). There is no such cap on the award of fees for non-attorney practitioners. In that regard, the Court has discretion to award fees “ ‘in an amount determined appropriate.’ ” Abbey, 17 Vet. App. at 290 (quoting VBA § 403); see also Chesser v. West, 11 Vet.App. 497, 501-02 (1998) (“The Court has wide discretion in the award of attorney fees under the EAJA.”). The appellant asserts that Mr. Ov-erby’s services are indistinguishable from those of an attorney, and, therefore, he is entitled to the statutory rate for attorneys plus a COLA. However, our caselaw and legislative history make clear that non-attorney practitioners are not attorneys and cannot be compensated as such. See Pentecost v. Principi, 17 Vet.App. 257, 260-61 (2003) (“We cannot, in the exercise of common sense, order that non-attorney practitioners be compensated as attorneys.”). Indeed, the Court has repeatedly drawn a distinction between attorneys" }, { "docid": "2712381", "title": "", "text": "included 259.05 total hours for a total fee request of $32,381.00 and expenses of $153.44. The Secretary argues in response only that the amount of the award should be reduced by $7,000.00 because the 56 hours spent in preparing the Quig-ley amicus brief was unreasonable and should thus be denied. On March 26, 1999, the appellant filed a reply, in which he requests additional attorney fees of $718.75 for 5.75 hours required for the preparation of that reply. On October 25, 1999, the Court ordered the appellant to file a supplemental brief as to his status as a prevailing party and the Secretary to file a supplemental brief as to substantial justification. Both parties responded to that Court order and then replied to each other’s supplemental briefs. II. Analysis A. Jurisdiction This Court has jurisdiction to award reasonable attorney fees and expenses pursuant to 28 U.S.C. § 2412(d)(2)(F). The appellant’s December 2, 1998, EAJA application was filed within the 30-day EAJA application period set forth in 28 U.S.C. § 2412(d)(1)(B) and satisfies any jurisdictional content requirements that apply, because the application contains the following: A showing that he is a prevailing party by virtue of the Court’s reversal and remand action and that he is a party eligible for an award under the EAJA because his net worth does not exceed $2,000,000; an allegation that the position of the Secretary was not substantially justified; and an itemized fee statement. See 28 U.S.C. § 2412(d)(1)(A), (1)(B), (2)(B); Fritz v. West, 13 Vet.App. 190, 195 (1999); Chesser v. West, 11 Vet.App. 497, 499 (1998); Bazalo v. Brown, 9 Vet.App. 304, 308 (1996) (en banc), rev’d on other grounds sub nom. Bazalo v. West, 150 F.3d 1380, 1384 (Fed.Cir.1998) (holding that “statement that [appellant] is a prevailing ‘party’ satisfies eligibility requirement for jurisdictional purposes”). B. Prevailing Party As to the merits of this application, the Secretary, in his February 24, 1999, response to the appellant’s EAJA application, specifically concedes that the appellant was a prevailing party. Response (Resp.) at 3. Nonetheless, as noted above, the Court ordered the appellant to provide supplemental briefing" }, { "docid": "16955064", "title": "", "text": "at Exhibits A-C. The Secretary’s response to the appellant’s reply does not take issue with the appellant’s assertions of fact. On December 10, 1997, this case was stayed pending the outcome in McNeely v. Gober, 11 Vet.App. 191, No. 95-1000, 1997 WL 908357 (Dec. 30, 01997). II. EAJA LAW The award of attorney fees to an eligible litigant is governed by 28 U.S.C. § 2412(d)(1) which states: (A) ... [A] court shall award to a prevailing party other than the United States fees and other expenses ... incurred by that party in any civil 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 or that special circumstances make an award unjust. (B) A party seeking an award of fees and other expenses shall, within thirty days of final judgment in the action, submit to the court an application for fees and other expenses which shows [ (1) ] that the party is a prevailing party and [ (2) ] is eligible to receive an award under this subsection, and [ (3) ] the amount sought, including an itemized statement from any attorney ... representing or appearing in behalf of the party stating the actual time expended and the rate at which fees and other expenses were computed. [ (4) ] The party shall also allege that the position of the United States was not substantially justified. Id. (emphasis added). As to requirement 1, a showing that an appellant is a “prevailing party” is made by asserting such status and by demonstrating how it was attained — that is, that the appellant had achieved “some of the benefit sought in bringing suit.” Bazalo v. Brown, 9 Vet.App. 304, 309 (1996) (en banc) (quoting Shalala v. Schaefer, 509 U.S. 292, 302-03, 113 S.Ct. 2625, 2632, 125 L.Ed.2d 239 (1993)); see also Stillwell v. Brown, 6 Vet.App. 291, 300 (1994). As to requirement 2, a showing that an appellant is a party eligible for an award under EAJA means a statement" }, { "docid": "20298732", "title": "", "text": "factors into the amount of fees awarded but does not constitute substantial justification. Accordingly, as the government has failed to show that its overall position in this litigation was substantially justified, the District will be entitled to an award of reasonable attorneys’ fees provided it has satisfied EAJA’s remaining statutory requirements. 2. “Itemized statement.” An EAJA claimant is required to provide an “itemized statement ... stating the actual time expended and the rate at which fees and other expenses were computed.” 28 U.S.C. § 2412(d)(1)(B). The government argues that the court should reject the District’s EAJA application because “[t]he District fails to itemize the fees sought in any way, indicate the number of hours of attorney time for which it seeks fees, or explain which attorney’s time it seeks to recover,” as required by Section 2412(d)(1)(B). Def.’s Opp’n to Pl.’s EAJA App. at 10-11 (citing Naporano Iron and Metal Co. v. United States, 825 F.2d 403, 404 (Fed.Cir.1987) for the proposition that “[t]he prevailing party must provide the Court with information detailing the ‘exact time spent on the case, by whom, their status and usual billing rates, as well as a breakdown of expenses’ ”). The government also avers that “[tjhe District has submitted contradictory requests for attorney fees, making it impossible to determine the attorneys and tasks for which the District seeks fees.” Id. at 11. The District responds that the government’s approach of “requiring] [attorneys] to keep almost perfect records” is “draconian,” arguing that “counsel [need only] conscientiously keep records and time sheets which ‘should identify the general subject matter of his [or her] time expenditures,’ ” a standard the District avers it has met. Pl.’s Reply to Def.’s Opp’n to Pl.’s EAJA App. at 19 (quoting Hensley, 461 U.S. at 437 n. 12, 103 S.Ct. 1933, and citing Ramos v. Lamm, 713 F.2d 546, 553 n. 2 (10th Cir.1983) (permitting use of, but requiring special scrutiny of, reconstructed time records)). In support of its EAJA application, the District submitted copies of invoices contemporaneously submitted to the District by counsel, Shenker & Bonaparte, LLP, and Carol Opatrny, an" }, { "docid": "16955065", "title": "", "text": "prevailing party and [ (2) ] is eligible to receive an award under this subsection, and [ (3) ] the amount sought, including an itemized statement from any attorney ... representing or appearing in behalf of the party stating the actual time expended and the rate at which fees and other expenses were computed. [ (4) ] The party shall also allege that the position of the United States was not substantially justified. Id. (emphasis added). As to requirement 1, a showing that an appellant is a “prevailing party” is made by asserting such status and by demonstrating how it was attained — that is, that the appellant had achieved “some of the benefit sought in bringing suit.” Bazalo v. Brown, 9 Vet.App. 304, 309 (1996) (en banc) (quoting Shalala v. Schaefer, 509 U.S. 292, 302-03, 113 S.Ct. 2625, 2632, 125 L.Ed.2d 239 (1993)); see also Stillwell v. Brown, 6 Vet.App. 291, 300 (1994). As to requirement 2, a showing that an appellant is a party eligible for an award under EAJA means a statement that the appellant’s net worth was less than $2,000,-000 at the time the appeal to the Court was filed (28 U.S.C. § 2412(d)(2)(B)), or, alternatively, the referencing of a favorable in forma pauperis ruling. See Bazalo, 9 Vet.App. at 309. Although the appellant must show that he is a prevailing party and that he is eligible to receive an award, as to requirement 4, he need only allege that the government’s position is not substantially justified. See id. at 310. The Court in Bazalo also held that EAJA requirements 1-4 are jurisdictional. See id. at 308 (no additional analysis relating to requirement 3 was provided). Once a proper application has been made, “timely pleadings addressing each of the requirements of EAJA may be amended or supple,-mented as deemed necessary by the Court or the parties.” Id. at 310. In Shaw v. Gober, 10 Vet.App. 498, 506 (1997), the Court held that, because an EAJA claim belongs to the appellant, control of an EAJA litigation may not be ceded to an attorney, though ownership of an" }, { "docid": "1547567", "title": "", "text": "the amount of that advance from any payment for expenses under the EAJA, regardless of whether paid through an EAJA settlement or through an EAJA award by the Court, because, as we said in Shaw, “[otherwise, the attorney would be essentially converting an EAJA-expense award into an attorney-fee award.” Shaw, 10 Vet.App. at 505. However, for two reasons, we find it unnecessary to object to the expense-offset provision on the facts of this case. First, the provision itself would have applicability only where the appellant has advanced monies to the attorney for the payment of expenses, and there is no indication in the instant case that the appellant has in fact advanced any monies to the attorney for litigation expenses. Second, because the Court is prepared to grant here, unlike in Shaw, the EAJA application in full, the condition presented in the above provision, regarding an EAJA payment of an amount less than is sought in the application, does not spring into action here. B. EAJA Application This Court has jurisdiction to award reasonable attorney fees and expenses under the EAJA pursuant to 28 U.S.C. § 2412(d)(2)(A), (F) as amended by section 506 of the Federal Courts Administration Act of 1992, Pub.L. No. 102-572, § 506, 106 Stat. 4506, 4513 (1992). The December 7, 1998, EAJA application was filed within the 30-day EAJA application period set forth in 28 U.S.C. § 2412(d)(1)(B). That application has satisfied any jurisdictional content requirements that apply because it contained a showing that, by virtue of the Court’s remand, the appellant is a prevailing party within the meaning of the EAJA (and thus that he was a party eligible for an award); a showing that he is a party eligible for an award under the EAJA because his net worth does not exceed $2,000,000; an allegation that the position of the Secretary was not substantially justified; and an itemized statement of the fees sought supported by an affidavit from the appellant’s counsel. See 28 U.S.C. § 2412(d)(1)(A), (1)(B), (2)(B); Chesser, 11 Vet.App. at 499; see also Bazalo v. West, 150 F.3d 1380, 1384 (Fed.Cir. 1998)" }, { "docid": "15790052", "title": "", "text": "was filed within the 30 day EAJA application period set forth in 28 U.S.C. § 2412(d)(1)(B) and satisfied any EAJA jurisdictional content requirements that apply, because the application contained the following: (1) A showing that, by virtue of the Court’s remand, he is a prevailing party within the meaning of the EAJA; (2) a showing that he is a party eligible for an award under the EAJA because his net worth does not exceed $2,000,000; (3) an allegation that the position of the Secretary was not substantially justified; and (4) an itemized fee statement. See 28 U.S.C. § 2412(d)(1)(A), (1)(B), (2)(B); Thayer v. Principi, 15 Vet.App. 204, 207 (2001); Cullens, supra; Bazalo v. Brown, 9 Vet.App. 304, 308 (1996), rev’d on other grounds sub nom. Bazalo v. West, 150 F.3d 1380, 1384 (Fed.Cir.1998) (holding that “statement that [appellant] is a prevailing ‘party’ satisfies eligibility requirement for jurisdictional purposes”). A. Prevailing-Party Status As noted above, in order to be eligible for fees pursuant to the EAJA an applicant must have been a “prevailing party”. 28 U.S.C. § 2412(d)(1)(A); see Cullens, supra; see also Buckhannon Board & Care Home v. W.V. Dep’t of Health and Human Res., 532 U.S. 598, 121 S.Ct. 1835, 1839, 149 L.Ed.2d 855 (2001) (defining “prevailing party” in fee-shifting statutes at issue in that case as requiring that applicant have obtained some form of “judicially sanctioned change in the legal relationship of the parties” and thus precluding the use of the “catalyst theory” to show “prevailing party” status); Sumner v. Principi, 15 Vet.App. 256, 260-61 (2001) (en banc); Thayer v. Principi, 15 Vet.App. 204 (2001) (applying in EAJA context Buckhannon definition of “prevailing party” so as to preclude use of “catalyst theory” to show EAJA eligibility in this Court). In Sumner, the Court recently held that “a remand does not constitute ‘some relief on the merits’ unless that remand is predicated upon administrative error” and then held that no such remand had occurred there because neither one of the criteria for finding such a remand were met — that is, “nowhere in his motion did the Secretary acknowledge" }, { "docid": "23356050", "title": "", "text": "the Court grants the EAJA application in part and denies it in part and orders a conference with the Court’s Central Legal Staff, and reviews the fee agreement and finds certain provisions in it facially unreasonable. I. EAJA Application A. Jurisdiction The Court has jurisdiction to award attorney fees pursuant to 28 U.S.C. § 2412(d)(2)(F) as amended by section 506 of the Federal Courts Administration Act of 1992 (FCAA), Pub.L. No. 102-572, § 506,106 Stat. 4506, 4513 (1992). The appellant’s application has satisfied the jurisdictional content requirements under 28 U.S.C. § 2412(d)(1)(B) within the applicable 30-day application period because it contained the following: (1) A showing that he was a “prevailing party” by asserting such status and by demonstrating how he had attained it— that is, that he had achieved “some of the benefit sought in bringing suit” by virtue of the Court’s having granted the joint motion to remand (Stillwell v. Brown, 6 Vet.App. 291, 300 (1994)); (2) a showing that he is a party eligible for an award under the EAJA by attaching a declaration stating that his net worth was less than $2,000,000 “at the time [ ] my appeal to [this Court] was filed”; (3) an assertion that the position of the Secretary was not substantially justified; and (4) an itemized statement of the fees sought (in the amended amount of $38,470.00), supported by an affidavit from the appellant’s counsel. See Bazalo v. Brown, 9 Vet.App. 304, 310 (1996) (en banc). Accordingly, the Court finds that the EAJA application was timely filed. Ibid. B. Merits of EAJA Application The amended EAJA application seeks attorney fees in the amount of $38,470.00 based on an expenditure of 331.3 hours of time billed at the rate of $125.00 per hour for attorney time and $100.00 per hour for non-attorney representative time. Amended Application at 2. In response to the EAJA application, the Secretary states that he does not contest the following: (1) That the appellant has obtained a “final judgment” within the meaning of the EAJA (28 U.S.C. § 2412(d)(2)(G)); (2) that the appellant is a “prevailing party” within" }, { "docid": "23102263", "title": "", "text": "final judgment in the action, submit to the court an application for fees and other expenses which shows that the party is a prevailing party and is eligible to receive an award under this subsection, and the amount sought, including an itemized statement from any attorney or expert witness representing or appearing in behalf of the party stating the actual time expended and the rate at which fees and other expenses were computed. The party shall also allege that the position of the United States was not substantially justified. Whether or not the position of the United States was substantially justified shall be determined on the basis of the record (including the record with respect to the action or failure to act by the agency upon which the civil action is based) which is made in the civil action for which fees and other expenses are sought. 28 U.S.C. § 2412(d)(1)(B) (emphasis added). On October 29, 1992, Congress enacted section 506 of the Federal Courts Administration Act, Pub.L. No. 102-572, § 506, 106 Stat. 4506, 4513 (1992). Section 506(a) amended 28 U.S.C. § 2412(d)(2)(F) to make the EAJA applicable to this Court. See Stillwell v. Brown, 6 Vet.App. 291 (1994); Elcyzyn v. Brown, 7 Vet.App. 170 (1994). The basic requirements under the EAJA statute were incorporated into Rule 39 of the Court’s Rules of Practice and Procedure which provides, in relevant part: (a) Time for Filing. An application pursuant to 28 U.S.C. § 2412 for award of attorney fees and other expenses in connection with an appeal must be filed with the Clerk within 30 days after this Court’s judgment becomes final. (b) Content. The application_must include: (1) a statement that the applicant is a prevailing party and is eligible to receive an award; (2) identification of the specific position or positions of the Secretary that the appellant alleges were not substantially justified; and (3)an itemized statement from the applicant’s attorney as to each type of service which was rendered.... U.S.Vet.App.R. 39(a),(b)(l)-(3) (emphasis added). To summarize, under both the EAJA statute and Rule 39(b), the requirements for a complete, non-defective" }, { "docid": "11278409", "title": "", "text": "to paralegals.” Resp. at 2. In reply, the appellant argues that the Federal Circuit did not hold that a paralegal could never be compensated under the EAJA at a rate exceeding the statutory maximum, but “actually held that a [COLA] cannot be added to the prevailing market rate for either attorneys or paralegals.” Reply at 8 (emphasis added). Alternatively, he contends that, even if the Secretary were correct in his interpretation of Levernier, this Court is not precluded from permitting a COLA to be applied to the statutory maximum for a nonattorney practitioner because, in accordance with section 403 of the Veterans Benefits Act of 2002(VBA), Pub.L. No. 107-330, § 403, 116 Stat. 2819, 2833, the Court is authorized “to award fees for non[ ]attorney practitioners ‘in an amount determined appropriate by’ th[e] Court.” Reply at 8-9. II. Analysis A. Eligibility for Award This Court has jurisdiction to award reasonable attorney fees and expenses pursuant to 28 U.S.C. § 2412(d)(2)(F). Here, the appellant’s January 2004 EAJA application was filed within the 30-day EAJA application period set forth in 28 U.S.C. § 2412(d)(1)(B) and satisfies the EAJA “application-content specifications”, Scarborough v. Principi 541 U.S. 401, -, 124 S.Ct. 1856, 1865, 158 L.Ed.2d 674 (2004), because the application contained the following: (1) A showing that, by virtue of the Court’s remand, he is the prevailing party within the meaning of the EAJA; (2) a showing that he is a party eligible for an award under the EAJA because his net worth does not exceed $2,000,000; (3) an allegation that the position of the Secretary was not substantially justified; and (4) an itemized fee statement. 28 U.S.C. § 2412(d)(1)(A), (1)(B), (2)(B); Cullens v. Gober, 14 Vet.App. 234, 237 (2001) (en banc) (listing four EAJA-application content requirements). As to prevailing-party status, this Court stated in Rollins v. Principi: In order to receive an EAJA award, an EAJA applicant must be a prevailing party. See 28 U.S.C. § 2412(d)(1)(A) (“court shall award to a prevailing party ... fees and other expenses”); Briddell [v. Principi, 16 Vet.App. 267, 271 (2002)]: Sumner [v. Principi, 15 Vet.App. 256," } ]

[ { "docid": "10119077", "title": "", "text": "doctrine’s actual injury requirement.” (citing Sierra Club v. Morton, 405 U.S. 727, 739-40, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972))). This is true whether the advocacy takes place through litigation or administrative proceedings. See Nat’l Ass’n of Home Builders v. EPA, 667 F.3d 6, 12 (D.C.Cir.2011) (concluding that time and money spent “submitting comments to the EPA” and “testifying before the United States Senate” does not suffice to establish an injury in fact). “The mere fact that an organization redirects some of its resources to litigation and legal counseling in response to actions or inactions of another party is insufficient -to impart standing upon the organization.” Nat’l Taxpayers Union, Inc. v. U.S., 68 F.3d 1428, 1434 (D.C.Cir.1995) (quotations and citation omitted). The Trust’s decision to expend more of its resources by participating in both Don Pedro’s and La Grange’s licensing proceedings is the type of alleged harm that we have repeatedly held does not qualify as an injury in fact. The Trust, relying on this Court’s decision in Equal Rights Center v. Post Properties, Inc., argues that if a “defendant’s allegedly wrongful action prompts an organization to ‘increase! ] the resources [it] must devote to programs independent of its suit,’ ... the organization has shown an injury in fact.” 633 F.3d 1136, 1138 (D.C.Cir.2011) (quoting Spann v. Colonial Village, Inc., 899 F.2d 24, 27 (D.C.Cir.1990)). But Equal Rights Center is inap-posite. As we noted in that case, an organization must allege that the defendant’s conduct “perceptibly impaired” the organization’s ability to provide services in order to establish injury in fact. 633 F.3d at 1138-39 (citing Havens Realty Corp. v. Coleman, 455 U.S. 363, 378-79, 102 S.Ct. 1114, 71 L.Ed.2d 214 (1982)). The Trust does not allege impairment of its ability to provide services, only impairment of its advocacy. As we noted above, this will not suffice. The Trust’s second asserted injury, a decline in tourism revenue, is also insufficient to satisfy the injury in fact requirement. It is purely conjectural. The Trust theorizes that if La Grange and Don Pedro are not licensed in a single proceeding, then the two" } ]

[ { "docid": "17997644", "title": "", "text": "to take enforcement action in response to PETA’s complaints and USDA’s failure to compile the information PETA wants to use in its educational materials — are caused by the agency” and “the remedies sought — an order compelling USDA to enforce the AWA with respect to birds ... — would redress those injuries.” PETA I, 7 F.Supp.3d at 9. . But see Am. Soc. for Prevention of Cruelty to Animals, 659 F.3d at 27 (\"[M]any of our cases finding Havens standing involved activities that could just as easily be characterized as advocacy — and, indeed, sometimes are. '). . See Abigail Alliance for Better Access to Developmental Drugs v. Eschenbach, 469 F.3d 129, 132 (D.C.Cir.2006) (\"At each stage of trial, the party invoking the court's jurisdiction must establish the predicates for standing with the manner and degree of evidence required at that stage of trial.” (quotation marks omitted)). . Similarly, we need not decide whether the district court imposed a \"heightened pleading standard” on PETA's allegation of agency policy. Appellant’s Br. 45. . See also, e.g., Johanna Briscoe Decl. ¶ 17 (“APHIS also recognizes that breeding requirements for certain species preclude daily cleaning and human interference (i.e. nesting birds may purposely crush their eggs if a stranger enters the vicinity.”)). . See also ASPCA v. Feld Entertainment, Inc., 659 F.3d 13, 27 (D.C.Cir.2011) whether an organization has standing based on \"expending] additional resources on public education to rebut the misimpression, allegedly caused by [the defendant’s] practices”; compare also Center for Law & Educ. v. Department of Educ., 396 F.3d 1152, 1162 (D.C.Cir.2005) (rejecting organizational- standing where \"the only ’service’ impaired is pure issue-advocacy”), with Feld Entertainment, 659 F.3d at 26-28 (impairment of a group’s ability to provide advocacy services may qualify as injury where a defendant’s conduct is \"at loggerheads” with the group’s mission) (quoting National Treasury Employees Union v. United States, 101 F.3d 1423, 1429 (D.C.Cir.1996)). . See also Lujan v. Defenders of Wildlife, 504 U.S. 555, 574-578, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (no standing based on generalized objection to insufficient enforcement of the law); High Plains" }, { "docid": "10144434", "title": "", "text": "208 is directed at individual privacy, which is not at stake for EPIC. 2. Organizational injury For similar reasons, EPIC has suffered no organizational injury. Under Havens Realty Corp. v. Coleman, 455 U.S. 363, 102 S.Ct. 1114, 71 L.Ed.2d 214 (1982), “an organization may establish Article III standing if it can show that the defendant’s' actions cause a ‘concrete and demonstrable injury to the organization's activities’ that is ‘more than simply a setback to the organization’s abstract social interests.’” Feld, 659 F.3d at 25 (quoting Havens, 455 U.S. at 379, 102 S.Ct. 1114). “Our case law, however, establishes two important limitations on the scope of standing under Havens.” Id. First, the plaintiff must show that the defendant’s “action or omission, to act injured the organization’s interest.” People for the Ethical. Treatment of Animals v. USDA, 797 F.3d 1087, 1094 (D.C. Cir. 2015) (PETA) (internal quotation and brackets omitted). Second, the plaintiff must show that it “used its resources to counteract that harm.” Id. (internal quotation omitted). EPIC’s assertion of organizational standing fails twice over. EPIC’s sole theory of organizational injury is that the defendants’ failure to produce a privacy impact assessment injures its interest in using the information contained in the assessment “to focus public attention .on emerging privacy and civil liberties issues.” Appellant’s Reply Br. 5 (internal quotation omitted). As we have discussed, however, section 208 of the E-Government Act does not confer any such informational interest on EPIC. EPIC cannot ground organizational injury on a non-existent interest. See Feld, 659 F.3d at 24-25 (abstract social interest does not give rise to organizational injury). It follows that any resources EPIC used to counteract the lack of a privacy impact assessment—an assessment in which it has no cognizable interest—were “a self-inflicted budgetary choice that cannot qualify as an injury in fact.” Feld, 659- F.3d at 25 (internal quotation omitted). EPIC’s evidence of expenditures only reinforces the point. It relies exclusively on the declaration of an EPIC “Law Fellow” who before and during this lawsuit submitted Freedom of Information Act (FOIA) requests to (inter alia), the Commission and the Department of" }, { "docid": "7650783", "title": "", "text": "it has expended resources to educate its members and others regarding [a challenged statutory provision] does not present an injury in fact,” particularly if “[t]here is no evidence that [the challenged provision] has subjected [the association] to operational costs beyond those normally expended to review, challenge, and educate the public.” Nat’l Taxpayers Union, 68 F.3d at 1434. Nor is standing found “when the only ‘injury’ arises from the effect of the regulations on the organizations’ lobbying activities.” Ctr. for Law & Educ. v. Dep’t of Educ., 396 F.3d 1152, 1161 (D.C.Cir.2005). The petitioners support ASA’s organizational standing by relying on Havens Realty Corp. v. Coleman, 455 U.S. 363, 102 S.Ct. 1114, 71 L.Ed.2d 214 (1982). In Havens, a nonprofit corporation sued the owner of an apartment complex for damages under the Fair Housing Act because “the [discriminatory] practices of [the apartment complex] had frustrated the organization’s counseling and referral services, with a consequent drain on resources.” Id. at 369, 102 S.Ct. 1114. The Supreme Court upheld the nonprofit’s standing because the “practices have perceptibly impaired [its] ability to provide counseling and referral services for low- and moderate-income homeseekers.... Such concrete and demonstrable injury to the organization’s activities — with the consequent drain on the organization’s resources — constitutes far more than simply a setback to the organization’s abstract social interests.” Id. at 379, 102 S.Ct. 1114. We considered a similar standing issue in Spann v. Colonial Vill., Inc., 899 F.2d 24 (D.C.Cir.1990), where we found two organizations had standing to assert a claim for injunctive relief and damages under the Fair Housing Act because the discriminatory conduct “required [plaintiffs] to devote more time, effort, and money to endeavors designed to educate not only black home buyers and renters, but the D.C. area real estate industry and the public that racial preference in housing is indeed illegal.” Id. at 27; see also id. at 28-29 (“increased education and counseling could plausibly required”). We emphasized “the difference between this suit and one presenting only abstract concerns or complaints about government policy;” specifically, the plaintiffs “do not seek to compel government action, [or]" }, { "docid": "3527867", "title": "", "text": "law in this circuit has cast significant doubt on the viability of a claim of organizational injury premised solely on injury to an organization’s advocacy efforts. See Ctr. for Law & Educ. v. Dept. of Educ., 396 F.3d 1152, 1161-62 (D.C.Cir.2005) (holding that organizational plaintiffs failed to demonstrate standing where “the only ‘service’ impaired is pure issue-advocacy — the very type of activity distinguished by Havens ”); Humane Society of U.S., 19 F.Supp.3d at 45-47 (explaining that the D.C. Circuit has not found standing when the only organizational service impaired was pure advocacy, and finding inadequate the plaintiffs allegation of injury on the basis of needing to dedicate additional resources to lobbying); Scenic Am., Inc. v. U.S. Dep’t of Transp., .983 F.Supp.2d 170, 177 (D.D.C. 2013) (observing that “the law is also quite skeptical of alleged organizational injuries related to lobbying and issue advocacy”). As the D.C. Circuit Court has explained, a claim of organizational injury based solely on the impairment of issue advocacy efforts comes perilously close to conferring standing on the impermissible basis of mere frustration of an organization’s objectives. Ctr. for Law & Educ., 396 F.3d at 1161. But see ASPCA 659 F.3d at 27 (declining to decide whether injury to an organization’s advocacy efforts was sufficient injury for Havens standing when plaintiff failed to establish causation). Second, CIEL has failed to provide sufficient facts that would allow the Court to find that the organization’s expenditures on monitoring Bank policy are a consequence of the Bank’s decision and not an ordinary program cost or self-inflicted harm. In National Treasury Employees Union, the D.C. Circuit explained that although a court must accept as true an allegation that an organization has expended resources, “there is a difference between accepting a plaintiffs allegations of fact as true and accepting as correct the conclusions plaintiffs would draw from such facts.” 101 F.3d at 1430. For that reason, the court held that while it would accept the organization’s assertion that it spent additional funds on lobbying in response to the defendant’s action, it would not accept the plaintiffs “speculative conclusion that such" }, { "docid": "17997608", "title": "", "text": "they are engaged,” id., we find that PETA has alleged a cognizable injury sufficient to support standing. In other words, the USDA’s allegedly unlawful failure to apply the AWA’s general animal welfare regulations to birds has “perceptibly impaired [PETA’s] ability” to both bring AWA violations to the attention of the agency charged with preventing avian cruelty and continue to educate the public. See Am. Soc. for Prevention of Cruelty to Animals, 659 F.3d at 25. Because PETA has expended resources to counter these injuries, it has established Article III organizational standing. The USDA makes two responses, neither of which we find persuasive. First, it argues that it is not “at loggerheads” with PETA’s mission of preventing cruelty to animals. Appellee’s Br. 17-18. It so contends because the USDA does not in fact mistreat animals nor do its actions directly result in the mistreatment of animals. The USDA, however, misconstrues PETA’s alleged harms; they do not result from the mistreatment of birds by third parties but rather from “a lack of redress for its complaints and a lack of information for its membership,” both of which, PETA asserts, the USDA would provide if it complied with its legal obligations. See PETA I, 7 F.Supp.3d at 9. Moreover, although we have emphasized the need for “a direct conflict between the defendant’s conduct and the organization’s mission,” Abigail Alliance, 469 F.3d at 133, the USDA’s allegedly unlawful conduct does hamper and directly conflicts with PETA’s stated mission of preventing “cruelty and inhumane treatment of animals” through, inter alia, “public education” and “cruelty investigations.” Compl. ¶5. Finally, it bears noting that our “at loggerheads” requirement exists because, “[i]f the challenged conduct affects an organization’s activities, but is neutral with respect to its substantive mission,” then it is “ ‘entirely speculative’ whether the challenged practice will actually impair the organization’s activities.” Am. Soc. for Prevention of Cruelty to Animals, 659 F.3d at 25, 27 (quoting Nat’l Treasury Emps. Union v. United States, 101 F.3d 1423, 1430 (D.C.Cir.1996)). Here, however, it is conceded that, if the USDA applies the AWA’s general welfare standards to birds, it" }, { "docid": "17997604", "title": "", "text": "to the organization’s abstract social interests” and thus suffices for standing. Havens Realty Corp., 455 U.S. at 379, 102 S.Ct. 1114. We, in turn, have elaborated as to when an organization’s purported injury is not sufficiently concrete and demonstrable to invoke our jurisdiction. For example, “an organization’s diversion of resources to litigation or to investigation in anticipation of litigation is considered a ‘self-inflicted’ budgetary choice that cannot qualify as an injury in fact for purposes of standing.” Am. Soc. for Prevention of Cruelty to Animals v. Feld Entm’t, Inc., 659 F.3d 13, 25 (D.C.Cir.2011); see also Nat’l Taxpayers Union, Inc. v. United States, 68 F.3d 1428, 1434 (D.C.Cir.1995) (“An organization cannot, of course, manufacture the injury necessary to maintain a suit from its expenditure of resources on that very suit.”). “Nor is standing found when the only ‘injury’ arises from the effect of the regulations on the organizations’ lobbying activities,” Ams. for Safe Access v. DEA 706 F.3d 438, 457 (D.C.Cir.) (quotation marks omitted), cert. denied, — U.S. -, 134 S.Ct. 267, 187 L.Ed.2d 151 (2013), and cert. denied sub nom. Olsen v. Drug Enforcement Admin., — U.S. -, 134 S.Ct. 673, 187 L.Ed.2d 422 (2013), or when the “ ‘service’ impaired is pure issue-advocacy,” Ctr. for Law & Educ. v. Dep’t of Educ., 396 F.3d 1152, 1162 (D.C.Cir.2005). To determine whether an organization’s injury is “concrete and demonstrable” or merely a “setback” to its “abstract social interests,” Havens Realty Corp., 455 U.S. at 379, 102 S.Ct. 1114 we ask, first, whether the agency’s action or omission to act “injured the [organization’s] interest” and, second, whether the organization “used its resources to counteract that harm.” Equal Rights Ctr., 633 F.3d at 1140. PETA’s mission is to prevent “cruelty and inhumane treatment of animals.” Compl. ¶ 5. It accomplishes this goal through “public education, cruelty investigations, research, animal rescue, legislation, special events, celebrity involvement, and protest campaigns.” Id. One of the “primary” ways in which PETA accomplishes its mission is “educating the public” by providing “information about the conditions of animals held by particular exhibitors.” Jeffrey S. Kerr Decl. ¶ 16" }, { "docid": "3527868", "title": "", "text": "of mere frustration of an organization’s objectives. Ctr. for Law & Educ., 396 F.3d at 1161. But see ASPCA 659 F.3d at 27 (declining to decide whether injury to an organization’s advocacy efforts was sufficient injury for Havens standing when plaintiff failed to establish causation). Second, CIEL has failed to provide sufficient facts that would allow the Court to find that the organization’s expenditures on monitoring Bank policy are a consequence of the Bank’s decision and not an ordinary program cost or self-inflicted harm. In National Treasury Employees Union, the D.C. Circuit explained that although a court must accept as true an allegation that an organization has expended resources, “there is a difference between accepting a plaintiffs allegations of fact as true and accepting as correct the conclusions plaintiffs would draw from such facts.” 101 F.3d at 1430. For that reason, the court held that while it would accept the organization’s assertion that it spent additional funds on lobbying in response to the defendant’s action, it would not accept the plaintiffs “speculative conclusion that such expenditures are a necessary link in achieving the organization’s ultimate purpose.” Id. (granting defendant’s motion to dismiss organization’s suit due to lack of Article III standing); see also Nat’l Taxpayers Union, 68 F.3d at 1434 (holding that organization’s “self-serving observation that it has expended resources to educate its members and others regarding [challenged statutory provision] does not present an injury in fact”). In this case, the Johl declaration asserts that the Bank’s decision “has required CIEL to put extra time and resources into monitoring Ex-Im Bank’s policies.” Johl Decl. ¶ 9. But she does not so much as allege that CIEL’s increased monitoring of the Bank’s policies is necessary to achieve the organization’s ultimate purpose. Cf. Nat’l Treasury Emps. Union, 101 F.3d at 1430. Additionally, like Pacific Environment, CIEL makes no mention of when the asserted dedication of time and resources occurred despite the fact that roughly two and a half years have passed since the loan guarantee was approved. Cf. Equal Rights Ctr., 633 F.3d at 1141-42 (holding that at the summary judgment stage," }, { "docid": "17997645", "title": "", "text": "e.g., Johanna Briscoe Decl. ¶ 17 (“APHIS also recognizes that breeding requirements for certain species preclude daily cleaning and human interference (i.e. nesting birds may purposely crush their eggs if a stranger enters the vicinity.”)). . See also ASPCA v. Feld Entertainment, Inc., 659 F.3d 13, 27 (D.C.Cir.2011) whether an organization has standing based on \"expending] additional resources on public education to rebut the misimpression, allegedly caused by [the defendant’s] practices”; compare also Center for Law & Educ. v. Department of Educ., 396 F.3d 1152, 1162 (D.C.Cir.2005) (rejecting organizational- standing where \"the only ’service’ impaired is pure issue-advocacy”), with Feld Entertainment, 659 F.3d at 26-28 (impairment of a group’s ability to provide advocacy services may qualify as injury where a defendant’s conduct is \"at loggerheads” with the group’s mission) (quoting National Treasury Employees Union v. United States, 101 F.3d 1423, 1429 (D.C.Cir.1996)). . See also Lujan v. Defenders of Wildlife, 504 U.S. 555, 574-578, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (no standing based on generalized objection to insufficient enforcement of the law); High Plains Wireless, L.P. v. FCC, 276 F.3d 599, 606 (D.C.Cir.2002) (no \"standing to object to the agency’s refusal to sanction” a third party); Sargeant, 130 F.3d at 1069 (\"[T]he interests Mohwish proffers — • in the prosecution of government officials and in seeing that the laws are enforced — are not legally cognizable within the framework of Article III.”). . See also Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 486; 102 S.Ct. 752, 70 L.Ed.2d 700 (1982) (\"[S]tanding is not measured by the intensity of the litigant’s interest or the fervor of his advocacy.”); Feld Entertainment, 659 F.3d at 24 (“[A]n organization’s abstract interest in a problem is insufficient to establish standing, 'no matter how longstanding the interest and no matter how qualified the organization is in evaluating the problem.’ ”) (quoting Sierra Club, 405 U.S. at 739, 92 S.Ct. 1361). . We have also concluded, in the cases brought under the Animal Welfare Act, that the organization alleging informational injury failed to establish that the" }, { "docid": "9190482", "title": "", "text": "they already have such information. As Defendant notes, because they \"already possess the information they claim they need to make informed decisions[,] ... any harm they might face in the future would result from their informed decision to participate in clinical drug trials and not FDA's denial of their citizen petition.\" Mot. at 13. Notably, the language Plaintiffs want added to the regulation is generic and would not change with each clinical trial. That is, there is no difference between what they already know and what they would see in informed-consent materials if the FDA approved the Petition. As a result, it is difficult to imagine a scenario in which any individual would have standing here. The Court, consequently, finds that all of the individual Plaintiffs lack standing. B. CRS Plaintiffs next argue that CRS itself has standing to sue. Organizations can sue either on their own behalf (\"organizational standing\") or on behalf of their members (\"representational standing\"). See Scenic Am., Inc. v. U.S. Dep't of Transp., 983 F.Supp.2d 170, 176 (D.D.C. 2013). Because CRS does not have any members, it may invoke only the former. To prevail, it must show the same three standing elements as any individual-(1) injury, (2) causation, and (3) redressability. The injury must be \" 'concrete and demonstrable ... with [a] consequent drain on [its] resources,' rather than 'simply a setback to [its] abstract social interests.' \" People for the Ethical Treatment of Animals, Inc. (PETA) v. U.S. Dep't of Agric., 7 F.Supp.3d 1, 8 (D.D.C. 2013) (quoting Nat'l Ass'n of Home Builders v. EPA, 667 F.3d 6, 11 (D.C. Cir. 2012) ) (alterations in original). It is here that CRS falters. Caselaw for organizational standing is not a model of clarity, but this Circuit has made clear that, at a minimum, the organization must \"allege 'that discrete programmatic concerns are being directly and adversely affected by' the [agency's] inaction,\" PETA, 7 F.Supp.3d at 8 (quoting Nat'l Taxpayers Union, Inc., v. United States, 68 F.3d 1428, 1433 (D.C. Cir. 1995) ), not merely that the organization has had to increase spending on \"pure issue-advocacy\" or" }, { "docid": "6184291", "title": "", "text": "are insufficient for standing. See Ctr. for Law & Educ., 396 F.3d at 1162 (D.C.Cir.2005) (“Here, the only ‘service’ impaired is pure issue-advocacy.... In sum, Appellants fail to demonstrate standing. ...”); cf. Sierra Club v. Morton, 405 U.S. 727, 739, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972) (“[A] mere ‘interest in a problem’ ... is not sufficient by itself to render the organization ‘adversely affected’.... [I]f a ‘special interest’ in [a] subject were enough to entitle the [plaintiff] to commence this litigation, there would appear to be no objective basis upon which to disallow a suit by any other bona fide ‘special interest’ organization.... ”). In other words, an organization’s “expenditure of] resources to educate its members and others regarding” government action or inaction “does not present an injury in fact.” See e.g., Nat’l Taxpayers Union, Inc. v. United States, 68 F.3d 1428, 1434 (D.C.Cir.1995) (non-profit taxpayer organization qua organization had no standing where its only expenditures to contest federal estate and gift tax rates were made to educate public and challenge legislation); Ctr. for Law & Educ., 396 F.3d at 1161-62 (organization lacked standing where alleged unlawful government action increased lobbying costs only). Instead, an organizational plaintiff must “allege impairment of its ability to provide services, [not] only impairment of its advocacy.” Turlock Irrigation Dist. v. FERC, 786 F.3d 18, 24 (D.C.Cir.2015). FWW’s sole allegation that it has made expenditures based on the challenged NPIS regime is tied to educating its members and the public. In essence, FWW seeks to sound an alarm regarding the dangers of NPIS poultry. This is “pure issue-advocacy.” Ctr. for Law & Educ., 396 F.3d at 1162. Moreover, I believe our decision in PETA is distinguishable. There, PETA made expenditures to fill a void left by the USDA when, according to PETA, the USDA unlawfully failed to apply the protections of the Animal Welfare Act, 7 U.S.C. §§ 2131 et seq., to birds. Id. at 1091. Its failure “meant, ipso facto, that the USDA was not creating bird-related inspection reports that PETA could use to raise public awareness.” Id. Thus, PETA was “required to" }, { "docid": "17997603", "title": "", "text": "Spann v. Colonial Vill., Inc., 899 F.2d 24, 27 (D.C.Cir.1990)); see also Havens Realty Corp. v. Coleman, 455 U.S. 363, 378-79, 102 S.Ct. 1114, 71 L.Ed.2d 214 (1982) (in organizational-standing case, courts “conduct the same inquiry as in the case of an individual: Has the plaintiff alleged such a personal stake in The outcome of the controversy as to warrant his invocation of federal-court jurisdiction?” (quotation marks omitted)). The key issue is whether PETA has suffered a “concrete and demonstrable injury to [its] activities,” mindful that, under our precedent, “a mere setback to [PETA’s] abstract social interests is not sufficient.” Equal Rights Ctr., 633 F.3d at 1138 (quotation marks omitted); see also Am. Legal Found. v. FCC, 808 F.2d 84, 92 (D.C.Cir.1987) (“The organization must allege that discrete programmatic concerns are being directly and adversely affected by the defendant’s actions.”). The United States Supreme Court has made plain that a “concrete and demonstrable injury to [an] organization’s activities — with the consequent drain on the organization’s resources — constitutes far more than simply a setback to the organization’s abstract social interests” and thus suffices for standing. Havens Realty Corp., 455 U.S. at 379, 102 S.Ct. 1114. We, in turn, have elaborated as to when an organization’s purported injury is not sufficiently concrete and demonstrable to invoke our jurisdiction. For example, “an organization’s diversion of resources to litigation or to investigation in anticipation of litigation is considered a ‘self-inflicted’ budgetary choice that cannot qualify as an injury in fact for purposes of standing.” Am. Soc. for Prevention of Cruelty to Animals v. Feld Entm’t, Inc., 659 F.3d 13, 25 (D.C.Cir.2011); see also Nat’l Taxpayers Union, Inc. v. United States, 68 F.3d 1428, 1434 (D.C.Cir.1995) (“An organization cannot, of course, manufacture the injury necessary to maintain a suit from its expenditure of resources on that very suit.”). “Nor is standing found when the only ‘injury’ arises from the effect of the regulations on the organizations’ lobbying activities,” Ams. for Safe Access v. DEA 706 F.3d 438, 457 (D.C.Cir.) (quotation marks omitted), cert. denied, — U.S. -, 134 S.Ct. 267, 187 L.Ed.2d 151" }, { "docid": "17997643", "title": "", "text": "the enforcement of the law that we have long said Article III does not permit. . The district court denied PETA’s requested mandatory injunctive relief requiring the USDA to promulgate bird-specific AWA regulations. See PETA I, 7 F.Supp.3d at 13-15. PETA has abandoned that argument on appeal. . The district court did, however, comment that the \"USDA would ... be well advised to educate its officials on the agency’s policy regarding birds — namely, that birds are regulated by the AWA and do fall under the agency’s enforcement jurisdiction — and to ensure that they break their bad habit of misinforming the public on this matter.” PETA I, 7 F.Supp.3d at 12 (emphases in original). . On appeal, the USDA does not argue that PETA failed to demonstrate the causation and redressability prongs of standing. Because we have an independent obligation to satisfy ourselves that PETA has Article III standing, we must consider causation and redressability sua sponte and, having done so, agree with the district court that \"the injuries complained of — USDA's refusal to take enforcement action in response to PETA’s complaints and USDA’s failure to compile the information PETA wants to use in its educational materials — are caused by the agency” and “the remedies sought — an order compelling USDA to enforce the AWA with respect to birds ... — would redress those injuries.” PETA I, 7 F.Supp.3d at 9. . But see Am. Soc. for Prevention of Cruelty to Animals, 659 F.3d at 27 (\"[M]any of our cases finding Havens standing involved activities that could just as easily be characterized as advocacy — and, indeed, sometimes are. '). . See Abigail Alliance for Better Access to Developmental Drugs v. Eschenbach, 469 F.3d 129, 132 (D.C.Cir.2006) (\"At each stage of trial, the party invoking the court's jurisdiction must establish the predicates for standing with the manner and degree of evidence required at that stage of trial.” (quotation marks omitted)). . Similarly, we need not decide whether the district court imposed a \"heightened pleading standard” on PETA's allegation of agency policy. Appellant’s Br. 45. . See also," }, { "docid": "6184292", "title": "", "text": "Law & Educ., 396 F.3d at 1161-62 (organization lacked standing where alleged unlawful government action increased lobbying costs only). Instead, an organizational plaintiff must “allege impairment of its ability to provide services, [not] only impairment of its advocacy.” Turlock Irrigation Dist. v. FERC, 786 F.3d 18, 24 (D.C.Cir.2015). FWW’s sole allegation that it has made expenditures based on the challenged NPIS regime is tied to educating its members and the public. In essence, FWW seeks to sound an alarm regarding the dangers of NPIS poultry. This is “pure issue-advocacy.” Ctr. for Law & Educ., 396 F.3d at 1162. Moreover, I believe our decision in PETA is distinguishable. There, PETA made expenditures to fill a void left by the USDA when, according to PETA, the USDA unlawfully failed to apply the protections of the Animal Welfare Act, 7 U.S.C. §§ 2131 et seq., to birds. Id. at 1091. Its failure “meant, ipso facto, that the USDA was not creating bird-related inspection reports that PETA could use to raise public awareness.” Id. Thus, PETA was “required to expend resources to obtain information about .the conditions of birds ..., including through investigations, research and state and local public records requests.” Id. at 1096. PETA suffered a cognizable injury-in-fact because it spent resources to remedy alleged governmental nonfeasance, which deprived PETA of information to which it was allegedly entitled. But for the USDA’s failure to act, “PETA would not need to undertake” those efforts, id., and, on that basis, we concluded that PETA’s expenditures constituted a cognizable injury. Id. at 1097. Granted, we have found organizational standing in private-party litigation on the basis of expenditures made to educate the public. For example, in Spann v. Colonial Village, Inc., the Fair Housing Council of Greater Washington and the Metropolitan Washington Planning & Housing Association challenged allegedly racially-motivated real estate advertisements placed by realtors and advertisers, claiming the ads violated the Fair Housing Act of 1968. 899 F.2d 24, 25-26 (D.C.Cir.1990). We held that the organizations had standing because they spent funds on “endeavors designed to educate ... black home buyers and renters [and] the D.C." }, { "docid": "3527866", "title": "", "text": "black home buyers and renters away from the advertised complexes) with ASCPA, 659 F.3d at 27-28 (finding no standing where organization claimed that its animal advocacy efforts were impaired by defendant’s public poor treatment of animals but failed to show that defendants’ actions actually fostered a public impression that the poor treatment of animals was acceptable). Although the Johl declaration makes clear that CIEL disapproves of the Bank’s decision to finance coal exports, more is required to connect the particular decision at issue with the alleged harm to CIEL’s sustainable energy policy work. See Fla. Audubon Soc’y, 94 F.3d at 668 (holding that plaintiff must connect the agency’s “substantive decision to the plaintiffs particularized injury”); see also Havens, 455 U.S. at 379, 102 S.Ct. 1114 (distinguishing organizational injury giving rise to Article III standing from what is merely “a setback to the organization’s abstract social interest”). However, even if the Court assumes that the loan guarantee has perceptibly impaired CIEL’s policymaking efforts, two additional obstacles to a finding of injury in fact remain. First, case law in this circuit has cast significant doubt on the viability of a claim of organizational injury premised solely on injury to an organization’s advocacy efforts. See Ctr. for Law & Educ. v. Dept. of Educ., 396 F.3d 1152, 1161-62 (D.C.Cir.2005) (holding that organizational plaintiffs failed to demonstrate standing where “the only ‘service’ impaired is pure issue-advocacy — the very type of activity distinguished by Havens ”); Humane Society of U.S., 19 F.Supp.3d at 45-47 (explaining that the D.C. Circuit has not found standing when the only organizational service impaired was pure advocacy, and finding inadequate the plaintiffs allegation of injury on the basis of needing to dedicate additional resources to lobbying); Scenic Am., Inc. v. U.S. Dep’t of Transp., .983 F.Supp.2d 170, 177 (D.D.C. 2013) (observing that “the law is also quite skeptical of alleged organizational injuries related to lobbying and issue advocacy”). As the D.C. Circuit Court has explained, a claim of organizational injury based solely on the impairment of issue advocacy efforts comes perilously close to conferring standing on the impermissible basis" }, { "docid": "9190483", "title": "", "text": "does not have any members, it may invoke only the former. To prevail, it must show the same three standing elements as any individual-(1) injury, (2) causation, and (3) redressability. The injury must be \" 'concrete and demonstrable ... with [a] consequent drain on [its] resources,' rather than 'simply a setback to [its] abstract social interests.' \" People for the Ethical Treatment of Animals, Inc. (PETA) v. U.S. Dep't of Agric., 7 F.Supp.3d 1, 8 (D.D.C. 2013) (quoting Nat'l Ass'n of Home Builders v. EPA, 667 F.3d 6, 11 (D.C. Cir. 2012) ) (alterations in original). It is here that CRS falters. Caselaw for organizational standing is not a model of clarity, but this Circuit has made clear that, at a minimum, the organization must \"allege 'that discrete programmatic concerns are being directly and adversely affected by' the [agency's] inaction,\" PETA, 7 F.Supp.3d at 8 (quoting Nat'l Taxpayers Union, Inc., v. United States, 68 F.3d 1428, 1433 (D.C. Cir. 1995) ), not merely that the organization has had to increase spending on \"pure issue-advocacy\" or litigation. See Nat'l Ass'n of Home Builders, 667 F.3d at 12 (quoting Ctr. for Law & Educ. v. Dep't of Educ., 396 F.3d 1152, 1162 (D.C. Cir. 2005) ). To defeat a motion to dismiss, an organization must substantiate its injury \"by affidavit or other specific evidence that a challenged statute or policy frustrates the organization's goals and requires the organization to expend resources ... [it] otherwise would spend in other ways.\" Comite de Jornaleros de Redondo Beach v. City of Redondo Beach, 657 F.3d 936, 943 (9th Cir. 2011) (internal quotation marks and citation omitted). In other words, although a plaintiff need not prove facts to defeat a motion to dismiss, it must allege some facts that, if true, would establish standing. See Lujan, 504 U.S. at 561, 112 S.Ct. 2130 ; Arpaio v. Obama, 797 F.3d 11, 19 (D.C. Cir. 2015). CRS alleges that it has standing here \"because the interests at stake are germane to [its] purposes, and FDA's response will require further extensive advocacy work on [its] part ... [,] placing" }, { "docid": "6184284", "title": "", "text": "(D.C.Cir.1996); see also Am. Soc’y for Prevention of Cruelty to Animals v. Feld Entm’t, Inc., 659 F.3d 13, 25 (D.C.Cir.2011) (\"If the challenged conduct affects an organization’s activities, but is neutral with respect to its substantive mission, we have found it 'entirely speculative’ whether the challenged practice will actually impair the organization's activities.” (quoting Nat’l Treasury Emps. Union, 101 F.3d at 1430)). KAREN LECRAFT HENDERSON, Circuit Judge, concurring in the judgment: Although I agree with my colleagues that the individual and organizational plaintiffs do not have standing, I so conclude for a different reason. Regarding the two individual plaintiffs, I believe we need not assess whether they face a “sub stantially increased risk of harm and ... substantial probability of harm” from consuming NPIS-inspected poultry (NPIS poultry), see Public Citizen v. Nat'l Highway Traffic Safety Admin., 489 F.3d 1279, 1295 (D.C.Cir.2007) (emphases in original), because, as their declarations make clear, they have the alternative of consuming non-NPIS poultry — e.g., by purchasing poultry from a farmers’ market — and they have failed to allege that the alternative is “not readily available at a reasonable price.” See Coal. for Mercury-Free Drugs v. Sebelius, 671 F.3d 1275, 1281 (D.C.Cir.2012) (emphasis in original). For this reason, any injury they suffer from consuming NPIS poultry is a self-inflicted injury that would not establish Article III standing. Regarding plaintiff Food & Water Watch (FWW), I would reject its organizational standing argument because its only expenditures are made for “pure issue-advocacy,” an insufficient injury to support standing under our precedent. See Ctr. for Law & Educ. v. Dep’t of Educ., 396 F.3d 1152, 1162 (D.C.Cir.2005). The individual plaintiffs allege that they cannot determine whether the poultry they buy at grocery stores is NPIS-in-spected and, at the same time, that NPIS poultry accounts for 99.9% of available poultry. See Compl. ¶ 34. If the plaintiffs were in fact limited to purchasing poultry at grocery stores, I too would most likely conduct the “substantial increase and substantial probability” inquiry my colleagues undertake. See Maj. Op. 915-17. But that is not the case. Under our precedent, if a plaintiff" }, { "docid": "10144444", "title": "", "text": "in principle two potential paths to establish standing: “associational,” on behalf of its members, and “organizational,” on behalf of itself. Before us, it doesn’t renew the associational standing claim made in district court. That leaves only organizational standing. For those purposes, of course, it must establish an injury that qualifies under Article III, along with the requisite causation and redressability. See, e.g., PETA v. U.S. Department of Agriculture, 797 F.3d 1087, 1106 (D.C. Cir. 2015) (Millett, J., dubitante). To establish organizational standing, EPIC asserts only a single injury: that the defendants’ omissions have caused it to go without information—the contents of a PIA—that it could use to educate the public. Where an organization’s only asserted injury is an informational one, we have not engaged in a separate analysis of informational and organizational injury. See, e.g., Friends of Animals v. Jewell, 828 F.3d 989, 992 (D.C. Cir. 2016) (addressing organization’s claim of informational injury as such). If an organization’s only claimed injury is informational, additional discussion of the same facts under the “organizational” rubric will not clarify the court’s reasoning. In cases where the plaintiff claims organizational injuries of various types (including informational ones), we have analyzed the informational injury as such and the other alleged injuries as organizational. See, e.g., Am. Soc. for Prevention of Cruelty to Animals v. Feld Entm’t, Inc., 659 F.3d 13, 22 (D.C. Cir. 2011) (rejecting organization’s claim of informational standing, id. at 22-24, and its claims that Feld’s use of chains and bullhooks afforded organizational standing by fostering, plaintiffs argued, “a public impression that these practices are harmless,” id. at 24-28). My guess—only a guess—is that the practice arose because organizations found informational injury a comparatively easy way to show standing. But organizational standing is merely the label assigned to the capacity in which the organization contends it has been harmed; it is not a separate type of injury. In its capacity as an organization, EPIC has alleged one harm, packaged as two theories (perhaps in the hope that such packaging will increase the odds of success). There is no need for us to accept" }, { "docid": "10144433", "title": "", "text": "not satisfy the second: it has not suffered the type of harm that section 208 of the E-Government Act seeks to prevent. Indeed, EPIC is not even the type of plaintiff that can suffer such harm. See Friends of Animals, 828 F.3d at 992 (whether “plaintiff suffers the type of harm Congress sought to remedy” sometimes depends on whether “Congress, in mandating disclosure, sought to protect individuals or organizations like” plaintiff). Section 208, a “Privacy Provision[ ]” by its very name, declares an express “purpose” of “ensuring] sufficient protections for the privacy of personal information as agencies implement citizen-centered electronic Government.” E-Government Act § 208(a), As we read it,--the provision is intended to protect individuals—-in the present context, voters—by requiring an agency to fully consider their privacy before collecting their personal information. EPIC is not a voter and is therefore not the type of plaintiff the Congress had in mind. Nor is EPIC’s asserted harm—an inability to “ensure public oversight of record systems,” Appellant’s Reply Br. 9—the kind the Congress had in mind. Instead, section 208 is directed at individual privacy, which is not at stake for EPIC. 2. Organizational injury For similar reasons, EPIC has suffered no organizational injury. Under Havens Realty Corp. v. Coleman, 455 U.S. 363, 102 S.Ct. 1114, 71 L.Ed.2d 214 (1982), “an organization may establish Article III standing if it can show that the defendant’s' actions cause a ‘concrete and demonstrable injury to the organization's activities’ that is ‘more than simply a setback to the organization’s abstract social interests.’” Feld, 659 F.3d at 25 (quoting Havens, 455 U.S. at 379, 102 S.Ct. 1114). “Our case law, however, establishes two important limitations on the scope of standing under Havens.” Id. First, the plaintiff must show that the defendant’s “action or omission, to act injured the organization’s interest.” People for the Ethical. Treatment of Animals v. USDA, 797 F.3d 1087, 1094 (D.C. Cir. 2015) (PETA) (internal quotation and brackets omitted). Second, the plaintiff must show that it “used its resources to counteract that harm.” Id. (internal quotation omitted). EPIC’s assertion of organizational standing fails twice over. EPIC’s" }, { "docid": "18242157", "title": "", "text": "214 (1982)). This NAHB has not done. NAHB alleges it has “spent considerable staff time and monetary resources in the quest to clarify CWA jurisdiction,” such as submitting comments to the EPA and to the Corps, testifying before the United States Senate and participating in “numerous court cases,” including this one. Compl. ¶ 21; Decl. of Thomas J. Ward, NAHB Vice President of Litig. & Legal Servs. ¶¶ 8, 17-19 (filed Feb. 4, 2010) (Ward Decl.). But these claims do not suffice. First, this litigation’s expenses do not qualify as an injury in fact. See Spann v. Colonial Village, Inc., 899 F.2d 24, 27 (D.C.Cir.1990) (“An organization cannot, of course, manufacture the injury necessary to maintain a suit from its expenditure of resources on that very suit.”). As for the other expenditures claimed, NAHB has not shown they were for “operational costs beyond those normally expended” to carry out its advocacy mission. Nat’l Taxpayers Union, 68 F.3d at 1434 (association’s “self-serving observation that it has expended resources to educate its members and others regarding [challenged statutory provision] does not present an injury in fact”); id. (“The mere fact that an organization redirects some of its resources to litigation and legal counseling in response to actions or inactions of another party is insufficient to impart standing upon the organization.” (quotation marks omitted)); Ctr. for Law & Educ. v. Dep’t of Educ., 396 F.3d 1152, 1162 (D.C.Cir. 2005) (“Here, the only ‘service’ impaired is pure issue-advocacy — the very type of activity distinguished by Havens.” (citing Havens, 455 U.S. at 379, 102 S.Ct. 1114)). Because NAHB has not asserted the alleged violation “perceptibly impaired” a non-abstract interest, we conclude it has not shown organizational standing sufficient to satisfy Article III. See Havens, 455 U.S. at 379, 102 S.Ct. 1114. B. Representational Standing NAHB also claims representational standing on behalf of its members. To establish representational standing, an association must demonstrate that “ ‘(a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization’s purpose; and (c) neither the" }, { "docid": "6184274", "title": "", "text": "impeded from those that merely allege that their mission has been compromised.” Abigail All. for Better Access to Developmental Drugs v. Eschenbach, 469 F.3d 129, 133 (D.C.Cir.2006). Accordingly, for FWW to establish standing in its own right, it must have “suffered a concrete and demonstrable injury to [its] activities.” PETA v. USDA, 797 F.3d 1087, 1093 (D.C.Cir.2015) (internal quotation marks omitted). Making this determination is a two-part inquiry — “we ask, first, whether the agency’s action or omission to act injured the [organization’s] interest and, second, whether the organization used its resources to counteract that harm.” Id. at 1094 (internal quotation marks omitted). We need not address the second prong of this inquiry because it is clear that FWW has not sufficiently alleged an injury to its interest. To allege an injury to its interest, “an organization must allege that the defendant’s conduct perceptibly impaired the organization’s ability to provide services in order to establish injury in fact.” Turlock Irrigation Dist. v. FERC, 786 F.3d 18, 24 (D.C.Cir.2015) (internal quotation marks omitted). An organization’s ability to provide services has been perceptibly impaired when the defendant’s conduct causes an “inhibition of [the organization’s] daily operations.” PETA 797 F.3d at 1094 (quoting Action All. of Senior Citizens of Greater Phila. v. Heckler, 789 F.2d 931, 938 (D.C.Cir.1986)). Our precedent makes clear that an organization’s use of resources for litigation, investigation in anticipation of litigation, or advocacy is not sufficient to give rise to an Article III injury. Id. at 1093-94; Turlock Irrigation Dist., 786 F.3d at 24. Furthermore, an organization does not suffer an injury in fact where it “expend[s] resources to educate its members and others” unless doing so subjects the organization to “operational costs beyond those normally expended.” Nat’l Taxpayers Union, Inc., 68 F.3d at 1434; see also Nat’l Ass’n of Home Builders v. EPA, 667 F.3d 6, 12 (D.C.Cir.2011) (organization’s expenditures must be for “ ‘operational costs beyond those normally expended’ to carry out its advocacy mission” (quoting Nat’l Taxpayers Union, 68 F.3d at 1434)). According to Patricia Lovera, the Assistant Director of FWW, one of FWW’s “primary purposes" } ]

[ { "docid": "144265", "title": "", "text": "stylist. Dismissal of plaintiff’s claim number 11, relating to clean wearing apparel, however, was incorrect. See Campbell v. McGruder, 580 F.2d 521, 544 (D.C.Cir.1978) (district court heard testimony relating to whether pillow cases had been provided to inmates and concerning inmates’ abilities to wash own underclothing). Finally, plaintiff’s original complaint alleged that prisoners were only allowed to use the telephone at the time of their arrest. Dismissal of this claim was error. District courts have guarded against unreasonable restrictions on telephone use. See Feeley v. Sampson, 570 F.2d at 374, and cases cited therein. It appears, however, that Montana desires to delete this claim from the complaint. Accordingly, this was not a proper case for general summary dismissal by the district court. Montana is entitled to his “day in court.” See Mitchum v. Purvis, 650 F.2d 647 at 648 (5th Cir. 1981); Woodall v. Foti, 648 F.2d 268, 272-73 (5th Cir. 1981); Phillips v. Purdy, 617 F.2d 139, 141 (5th Cir. 1980). As the Supreme Court recognized recently in Rhodes v. Chapman, -- U.S. -, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981), courts have a responsibility to scrutinize claims of cruel and unusual punishment. The plaintiff properly filed in the district court an affidavit declaring his inability to pay. His timely motion for leave to proceed on appeal IFP should have been granted pursuant to Rule 24(a), Fed.R. App.P. Although we do not express any view concerning the merits of the plaintiff’s allegations we grant IFP status, docket the appeal, vacate the district court’s summary dismissal of plaintiff’s claims numbered 2, 3, 4, 5, 7, and 11, affirm that of the others, and remand the case for further proceedings consistent with this opinion. Because the plaintiff’s allegations satisfy the standard stated in Conley v. Gibson, supra, the plaintiff is entitled to an appropriate evidentiary hearing. Compare Lewis v. Bragan, 576 F.2d 678 (5th Cir. 1978). AFFIRMED in part, VACATED in part and REMANDED." } ]

[ { "docid": "21886177", "title": "", "text": "PER CURIAM. This is an appeal from dismissal of a pro se prisoner’s in forma pauperis civil action. To secure the just and effective processing of similar cases filed in forma pauperis pursuant to 28 U.S.C. § 1915, we present in this opinion guides for district court adjudication. Salvatore Crisafi, currently a federal penitentiary inmate, complains in this action of alleged deprivations of his constitutional right to meaningful access to courts. He asserts, inter alia, that correction officials arbitrarily curtailed his use of a law library, and denied his requests for writing paper, envelopes, and stamps. The district court granted him leave to file his pro se complaint without prepayment of costs. Simultaneously, the court dismissed the complaint, endorsing on the pleading “Dismissed 28 USC 1915(d).” The court noted in the margin the civil action numbers of six cases Crisafi had filed in the past three years. No further explanation was provided. The district court then denied leave to appeal in forma pauperis, certifying without a statement of reasons that Crisafi’s challenge was “frivolous and not taken in good faith.” We conclude that Crisafi has stated a claim for relief not susceptible to threshold dismissal. We therefore grant him leave to appeal in forma pauperis, reverse the dismissal of his complaint, and remand the case to the district court for further proceedings consistent with this opinion. 28 U.S.C. § 1915(a) permits federal courts to authorize the maintenance of an action without prepayment of fees and costs (“in forma pauperis”) by a person “who makes [an] affidavit that he is unable to pay such costs or give security therefor.” This provision “is intended to guarantee that no citizen shall be denied an opportunity to commence, prosecute, or defend an action, civil or criminal, ‘in any court of the United States’ solely because his poverty makes it impossible for him to pay or secure the costs.” Adkins v. E. I. DuPont de Nemours & Co., 335 U.S. 331, 342, 69 S.Ct. 85, 90, 93 L.Ed.2d 43 (1948). At the same time, Congress stipulated that a court may dismiss an in forma pau-peris" }, { "docid": "13684237", "title": "", "text": "would wish to have for themselves, nor therapy that Medicare and Medicaid provide for the aged or the needy. It prohibits only “deliberate indifference to serious medical needs.” (footnotes omitted) (emphasis added). Ruiz v. Estelle, 679 F.2d 1115, 1149 (5th Cir.1982). Further, we have commented on the responsibility of Louisiana state officials for the quality of medical care provided at Angola. Williams v. Treen, 671 F.2d 892, 900, 901 (5th Cir.1982) (a state official who knowingly deprives a prisoner of vital medical treatment violates constitutionally protected rights). See also Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 291, 50 L.Ed.2d 251 (1976); Williams v. Edwards, 547 F.2d 1206, 1215 (5th Cir.1977). Barks-dale’s complaint and its amendment sufficiently allege a deliberate refusal to treat him, despite an awareness that he suffered from sickle cell anemia, when he returned to New General Hospital on the second day and was twice denied consultation with a doctor and treatment. It follows that the motion to dismiss by defendant King for failure to state a claim under Rule 12(bX6), Fed.R.Civ.P., should have been denied. Leave to appeal in forma pauperis should be granted, the district court’s decision must be vacated on appeal, and the case remanded for further proceedings. 28 U.S.C. § 2106; Clark v. Williams, 693 F.2d 381 (5th Cir.1982). Motion for leave to appeal in forma pauperis GRANTED. On appeal, judgment VACATED, and case REMANDED." }, { "docid": "9437729", "title": "", "text": "Instead, we order his appeal docketed, vacate the district court’s summary dismissal of his action and remand the case for proceedings consistent with this opinion. Proceedings in forma pauperis are governed by 28 U.S.C. § 1915. A federal court is empowered to: request an attorney to represent any such person unable to employ counsel and may dismiss the case if the allegation of poverty is untrue, or if satisfied that the action is frivolous or malicious. 28 U.S.C. § 1915(b). In this case, the district court recognized that Bienvenu was economically eligible to bring the suit in forma pauperis, see 28 U.S.C. § 1915(a). Clearly the district court’s dismissal of Bienvenu’s suit was not effected pursuant to section 1915(d): first, the court makes no mention of frivolousness or of bad faith; second, the court expressly certified the appeal as “taken in good faith.” The court’s dismissal appears to have been effected, therefore, pursuant to Fed.R.Civ.P. 12. Whether the district court dismissed the cause under Rule 12 or under section 1915(d), the distinction is purely academic. Dismissal under either would be improper. A district court’s authority to dismiss a claim under Fed.R.Civ.P. 12 is more narrow than its authority under section 28 U.S.C. § 1915(d). Montana v. Commissioner’s Court, 659 F.2d 19, 21 (5th Cir.1981), cert. denied, 455 U.S. 1026, 102 S.Ct. 1730, 72 L.Ed.2d 147 (1982); Green v. Montezuma, 650 F.2d 648, 650-51 (5th Cir.1981). But the standard for determining the legal sufficiency of a complaint is the same under either, Montana v. Commissioners Court, 659 F.2d at 21. A complaint must not be dismissed unless the court is satisfied “beyond doubt” that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957); Wright v. El Paso County Jail, 642 F.2d 134, 135 (5th Cir.1981); Bruce v. Wade, 537 F.2d 850, 852 (5th Cir.1976). Moreover, Bienvenu’s handwritten pro se complaint is to be liberally construed regardless of how inartfully Bienvenu has pleaded his claim. Estelle v." }, { "docid": "22441149", "title": "", "text": "PER CURIAM: IT IS ORDERED that appellant Ira Jackson’s request for leave to appeal in forma pauperis is GRANTED. The judgment of the district court denying Jackson’s request for appointment of counsel is AFFIRMED. I. Jackson filed a section 1983 civil rights action against the city of Dallas and the Dallas Police Department. Jackson alleged that he was arrested without a warrant and incarcerated for more than twenty-four hours without being charged and without a probable cause determination. Although Jackson was allowed to proceed in forma pauperis, the district court denied his two motions for appointment of counsel. Jackson appeals the denial of his motion for appointed counsel. The district court denied Jackson’s motion for leave to proceed on appeal in forma pauperis under Fed.R. App.P. 24(a) because it believed that the appeal was premature and not taken in good faith. II. A. The ruling which denied Jackson’s motion for appointment of counsel is appealable as a final order pursuant to 28 U.S.C. § 1291. See Robbins v. Maggio, 750 F.2d 405, 409-13 (5th Cir.1985); Caston v. Sears, Roebuck & Co., 556 F.2d 1305, 1309 (5th Cir.1977). To proceed on appeal in forma pauperis, a litigant must be economically eligible, and his appeal must not be frivolous. 28 U.S.C. § 1915(a); Howard v. King, 707 F.2d 215, 219-20 (5th Cir.1983). Probable success on the merits need not be shown. The court only examines whether the appeal involves “legal points arguable on their merits (and therefore not frivolous).” Id. at 220 (quoting Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 1400, 18 L.Ed.2d 493 (1967)). The existence of any nonfrivolous or colorable issue on appeal requires the court to grant the motion to proceed in forma pauperis. Carson v. Polley, 689 F.2d 562, 566 (5th Cir.1982). The district court found that Jackson was economically eligible for in forma pauperis status. Unlike the district court, however, we do not feel that his appeal is frivolous. Whether or not the district court ruled correctly on his motion for appointment of counsel is worthy of appellate review under the circumstances of this" }, { "docid": "22662145", "title": "", "text": "may refuse to entertain further complaints. See Green v. Carlson, 649 F.2d 285 (5th Cir.), cert. denied, 454 U.S. 1087, 102 S.Ct. 646, 70 L.Ed.2d 623 (1981); accord, Green v. Warden, 699 F.2d 364 (7th Cir.1983); In re Green, 669 F.2d 779 (D.C.Cir.1981); Green v. White, 616 F.2d 1054 (8th Cir.1980). Nor does the fact that they have stated a cause of action mean that the petitioners are entitled to a trial on the merits. It may be possible for the defendants by motion for summary judgment to set forth facts beyond genuine dispute that would prove the nonexistence of a valid claim on the merits. See Fed.R.Civ.P. 56(b). Such facts might include affidavits of medical doctors concerning the prisoners’ health and their physical ability to do the work exacted of them; the circumstances leading up to the imposition of punishment; the procedure by which the punishment was imposed; the limitation of their work to 8 hours a day; the adequacy of their diet; or other relevant facts. We are not unaware that plaintiffs’ allegations, which we have concluded state a claim for which relief may be granted, are hortatory and, in part, conclusory. Their adequacy to state a claim does not mean per se that they will withstand adequate factual challenge. The district court certified that the inmates, having met the economic eligibility requirements, would not be afforded pauper status on appeal because “the claims made are frivolous.” Because the inmates have asserted claims which are colorable, the district court’s denial of permission to proceed on appeal in forma pauperis was erroneous. See Fed.R.App.P. 24(a). Accordingly, the inmates’ motion for in forma pauperis is granted, the district court’s summary dismissal vacated, and the case remanded for further proceedings consistent with this opinion. Montana v. Commissioners Court, 659 F.2d 19, 23 (5th Cir.1981), cert. denied, 455 U.S. 1026, 102 S.Ct. 1730, 72 L.Ed.2d 147 (1982); see Clark v. Williams, 693 F.2d 381, 382 (5th Cir.1982). The inmates’ motion for a certificate to show probable cause is inappropriate and unnecessary in this civil rights action. The motion for in forma pauperis" }, { "docid": "22948208", "title": "", "text": "83, 85 (3d Cir.1997); Moody v. Security Pac. Bus. Credit, Inc., 971 F.2d 1056, 1063 (3d Cir.1992). II. Congress enacted the Prison Litigation Reform Act, Pub.L. No. 104-134, 110 Stat. 1321 § 801 (“PLRA”) in 1996. One provision of the PLRA, often referred to as the “three strikes” provision, is at issue here. That provision is codified at 28 U.S.C. § 1915(g) and provides as follows: In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury. The bar imposed by this provision does not preclude an inmate from bringing additional suits. It does, however, deny him or her the right to obtain in forma pawperis status. Gibbs does not dispute that he has accumulated at least three strikes. He argues instead that the “three strikes” provision should not bar him from proceeding informa pauperis here because he has alleged “imminent danger of serious physical injury” within the exception contained in § 1915(g). Gibbs also asserts a constitutional challenge to 28 U.S.C. § 1915(g), arguing that it denies indigent inmates their constitutional right of access to the courts, and denies them the equal protection guarantee of the Fifth Amendment. His constitutional claims were not raised in the district court. For the reasons that follow, we conclude that the district court erred in ruling that Gibbs was not eligible for in forma pauperis status as a matter of law, and we will therefore remand this matter for further proceedings consistent with this opinion. See Roman, 116 F.3d at 86. We will refrain from reaching the constitutional claims, but Gibbs is free to raise those ' on remand. As noted above, prisoners who are in “imminent danger" }, { "docid": "22662146", "title": "", "text": "which we have concluded state a claim for which relief may be granted, are hortatory and, in part, conclusory. Their adequacy to state a claim does not mean per se that they will withstand adequate factual challenge. The district court certified that the inmates, having met the economic eligibility requirements, would not be afforded pauper status on appeal because “the claims made are frivolous.” Because the inmates have asserted claims which are colorable, the district court’s denial of permission to proceed on appeal in forma pauperis was erroneous. See Fed.R.App.P. 24(a). Accordingly, the inmates’ motion for in forma pauperis is granted, the district court’s summary dismissal vacated, and the case remanded for further proceedings consistent with this opinion. Montana v. Commissioners Court, 659 F.2d 19, 23 (5th Cir.1981), cert. denied, 455 U.S. 1026, 102 S.Ct. 1730, 72 L.Ed.2d 147 (1982); see Clark v. Williams, 693 F.2d 381, 382 (5th Cir.1982). The inmates’ motion for a certificate to show probable cause is inappropriate and unnecessary in this civil rights action. The motion for in forma pauperis status is granted; the district court’s dismissal is vacated and the cause remanded for proceedings consistent with this opinion. VACATED AND REMANDED. . In Sampson v. King, 693 F.2d 566 (5th Cir. 1982), this Court recognized an eighth amendment cause of action for an Angola inmate who alleged that his work detail compelled him to come into contact with deadly pesticides, herbicides, and defoliants. This Court denied relief on the merits. Sampson is noteworthy in that the inmates of the instant suit are likewise Angola prisoners who are compelled to work “the fields.” The inmates in this case do not aver facts relative to the pesticides used in the fields of Angola prison." }, { "docid": "8877676", "title": "", "text": "REAVLEY, Circuit Judge: This case concerns the rights and remedies of a prisoner who alleges that the Texas Department of Corrections (TDC) has found him guilty of institutional offenses on the basis of summary procedures. Charlie Alexander, an inmate at TDC’s Huntsville unit, seeks appellate review of an order dismissing his civil rights complaint. The district court concluded, alternatively, that Alexander could only challenge TDC disciplinary procedures through a habeas corpus petition and that the complaint did not, at any rate, state a claim for federal court relief. Alexander seeks in forma pauperis status in this court. We grant him that status, reverse the decision below in part, and remand for further proceedings. See Montana v. Commissioners Court, 659 F.2d 19, 23 (5th Cir.1981), cert. denied, 455 U.S. 1026, 102 S.Ct. 1730, 72 L.Ed.2d 147 (1982). I APPELLANT’S ALLEGATIONS Alexander challenges TDC’s alleged practice of using summary disciplinary procedures to deprive him of good time credit. He contends that Huntsville officials have kept him in an inmate classification that accumulates no good time credit by charging him with minor rule infractions and affording him no opportunity to present a defense. The events precipitating this complaint allegedly occurred in the summer of 1982. On two separate occasions, corrections officers lodged disobedience charges against Alexander. In both instances, Alexander learned of the charges when a senior corrections officer summoned him and required him to enter an immediate plea. The officers denied Alexander’s requests to call witnesses or postpone the hearing and entered guilty findings on the basis of the complaints. On each occasion, the hearing officer meted out minor penalties. Alexander, however, soon learned that the guilty findings carried other consequences. Texas inmates can obtain early parole consideration by accumulating “good time” credit, Tex.Rev.Civ.Stat.Ann. art. 6181-1 (Vernon Supp.1982). The rate of good time accrual depends on the inmate’s classification. A parole officer informed Alexander that the guilty findings would require him to spend six months in “Line Class III,” with the result that he could accumulate no good time credit. Alexander sought administrative review of his first disciplinary proceeding. The warden at" }, { "docid": "22739925", "title": "", "text": "MOORE, J., delivered the opinion of the court, in which MERRITT, J., joined. SILER, J. (pp. 868-69), delivered a separate dissenting opinion. OPINION MOORE, Circuit Judge. Forrest Zayne Brown, a Tennessee prisoner proceeding pro se and in forma pau-peris, appeals a district court order dismissing his 42 U.S.C. § 1983 civil rights claim as frivolous pursuant to 28 U.S.C. § 1915(e)(2). Because Brown’s complaint contains factual allegations and legal theories that conceivably implicate Eighth Amendment concerns, the district court erred when it dismissed the complaint as frivolous pursuant to § 1915(e)(2). Furthermore, we believe the error was not harmless because the district court could not have properly dismissed Brown’s complaint pursuant to § 1915(e)(2) for failure to state a claim on which relief may be granted. Thus, we REVERSE the district court’s judgment, and REMAND the case to the district court for further proceedings consistent with this opinion. I. BACKGROUND Brown and three other inmates at the Hardeman County Correctional Facility brought this § 1983 suit against their warden, Alan Bargery, seeking equitable relief on grounds that the conditions at the prison violated their Eighth Amendment rights. Plaintiffs alleged that the sleeping bunks located in one of the prison’s housing units had been improperly installed upside down, causing the inmates to slide off their bunks and land onto the concrete floor. Plaintiffs also alleged that the anchor bolts that fasten the bunks to the wall improperly protruded into their sleeping area, which could potentially cause an injury. Brown initially filed a grievance with the prison’s review committee, but the grievance was denied after prison officials claimed that the sleeping bunks had been installed in accordance with the manufacturer’s specifications. On August 26, 1998, Brown and the other inmates filed a motion to proceed in forma pauperis. Brown was the only one of the inmates who properly completed and submitted an in forma pauperis affidavit and a prison trust fund account statement. On September 22, 1998, the district court “screened” the case in accordance with the Prison Litigation Reform Act of 1995 (“PLRA”), dismissing it sua sponte pursuant to 28 U.S.C." }, { "docid": "22662140", "title": "", "text": "condition states a cause of action under ... the Eight Amendment. ... In Ray v. Mabry, 556 F.2d 881 (8th Cir. 1977), an Arkansas prisoner brought suit against prison officials, alleging violations of rights secured by the eighth, first, and thirteenth amendments. The prisoner sought injunctive relief from working “excessive hours [90 to 120 hours per week], from working on Sundays, and from being compelled to perform duties beyond his physical capabilities.” Id. at 882. The court noted that prison work requirements which compel inmates to perform physical labor which is beyond their strength, endangers their lives, or causes undue pain constitute cruel and unusual punishment. Id. The Court of Appeals reversed the district court, which had dismissed for failure to state a claim. Id. at 883. III. The Court’s Dismissal Under 28 U.S.C. § 1915(a), a federal court may refuse to certify an appeal for in forma pauperis status if it is not taken in good faith. See also Fed.R.App.P. 24(a). “Good faith” is demonstrated when a party seeks appellate review of any issue “not frivolous.” Coppedge v. United States, 369 U.S. 438, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962). An investigation into the in for-ma pauperis movant’s objective good faith, while necessitating a brief inquiry into the merits of an appeal, does not require that probable success be shown. The inquiry is limited to whether the appeal involves “legal points arguable on their merits (and therefore not frivolous).” Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); Woodall v. Foti, 648 F.2d 268, 271 (5th Cir.1982). The existence of any nonfrivolous issue on appeal is sufficient to require that this Court grant the inmates’ present motion. See Carson v. Polley, 689 F.2d 562, 586 (5th Cir.1982). This action involves colorable issues of constitutional deprivation. The district court should have considered the inmates’ complaint under the less stringent standards applicable to pro se litigants. Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 596, 30 L.Ed.2d 652 (1972). First, the court was required to “take as true the allegations of the complaint” in considering" }, { "docid": "8133144", "title": "", "text": "Cir.1972), cert. denied, 414 U.S. 878, 94 S.Ct. 49, 38 L.Ed.2d 123 (1973). Thus, we conclude that the Robles-et al. complaint states a claim under 42 U.S.C. § 1983 sufficient to withstand sua sponte dismissal. Our holding with respect to both complaints herein is limited to the sua sponte dismissal of those complaints prior to service of process upon defendants. It may be that at a later stage it will develop that plaintiffs can prove no set of facts in support of their claim which would entitle them to relief. However, where a prisoner’s pro se complaint alleges claims which are arguably cognizable under 42 U.S.C. § 1983, it is better to require service of process upon defendants and to require a response than to dismiss the complaint sua sponte. Bayron v. Trudeau, 702 F.2d at 46. III. CONCLUSION For the reasons stated herein, we reverse and remand for service of process and further proceedings consistent with this opinion. . The appeal was assigned two docket numbers in this court, 83-2010 and 83-2012, but is a single appeal of a single order dismissing a joint complaint. . Exhibits C and G to plaintiffs’ Affidavit submitted in support of their Order to Show Cause and their request for T.R.O. relief. For exam-pie, Exhibit G, which consists of a letter from Payne to the SUNY Legal Assistant Program, states that, in order not to serve food to inmates, correction officers contaminated prisoners’ meals with “dust, rocks, glass and human waste.” . Docket No. 83-2008. . One of the named plaintiffs, D. Hooker, did not sign the complaint, but did file an affidavit in support of his request to proceed in forma pauperis. Kerun Brewington, another inmate, did sign the complaint but is not a named plaintiff and did not file an affidavit in support of his request to proceed in forma pauperis. The district judge should address this matter upon remand. . Redford v. Smith, 543 F.2d 726, 728 (10th Cir.1976); Oughton v. United States, 310 F.2d 803, 804 (10th Cir.1962), cert. denied, 373 U.S. 937, 83 S.Ct. 1542, 10 L.Ed.2d 693" }, { "docid": "3578855", "title": "", "text": "court granted the motion to appeal in forma pauperis. If a district court finds that a case wherein the prisoner is proceeding in forma pauperis is either frivolous or malicious, then the court may dismiss the action prior to service of process. 28 U.S.C. § 1915(d). An action is frivolous under this section if it is without arguable merit. Pace v. Evans, 709 F.2d 1428, 1429 (11th Cir.1983). A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the prisoner can prove no set of facts in support of his claim which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957); Pace, 709 F.2d at 1429. Under Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 596, 30 L.Ed.2d 652 (1972), a pro se prisoner complaint is governed by “less stringent standards than formal pleadings drafted by lawyers.” Prisoners have a constitutional right to be protected from violence while in custody. Jones v. Diamond, 636 F.2d 1364, 1374 (5th Cir.), cert. dismissed sub nom. Ledbetter v. Jones, 453 U.S. 950, 102 S.Ct. 27, 69 L.Ed.2d 1033 (1981); McCray v. Sullivan, 509 F.2d 1332, 1334 (5th Cir.), cert. denied, 423 U.S. 859, 96 S.Ct. 114, 46 L.Ed.2d 86 (1975). In Gullatte v. Potts, 654 F.2d 1007, 1009-10 (5th Cir.1981), the inmate was known to be a “snitch” and was murdered after he was transferred to the general prison population of a maximum security unit. His wife brought suit and the former Fifth Circuit remanded the action to the district court for determination of whether the warden knew or should have known of the danger “snitches” are in when placed in a general prison population. Id. at 1012-15. Harmon’s claims, construed liberally as they must be, allege that prison officials have labeled him a snitch and are exposing him to inmate retaliation, perhaps because of his conduct in bringing prior lawsuits against the center. The claim, on its face, is sufficient to carry this cause of action through the service of process" }, { "docid": "9866734", "title": "", "text": "PER CURIAM: Charles Edward Pace appeals the dismissal of his complaint and the denial of his motion for leave to appeal in forma pauper-is. We vacate the order of the district court and remand for further proceedings. On February 7, 1983, Charles Edward Pace, a prisoner in the Central Correctional Institute in Macon, Georgia, brought a claim under 42 U.S.C.A. § 1983, alleging numerous violations of his constitutional rights. He alleged, among other things, (1) legal materials and books are restricted, (2) the classification system is racially discriminatory, (3) inmates are harassed with regard to medical treatment, (4) he was prohibited from wearing long hair and a beard as required by his Islamic religious beliefs, (5) overcrowding, (6) unsanitary food preparation conditions, (7) inadequate clothing and laundry service, and (8) that he was assigned to hazardous work despite a leg injury. Prior to service of process, the district court dismissed the complaint because the allegations were frivolous or stated in conclusory fashion. Pace moved for leave to appeal in forma pauperis. Although it found Pace economically eligible, the district court denied the motion, finding that the appeal was legally frivolous and not taken in good faith. 28 U.S.C.A. § 1915(d) provides: “The court ... may dismiss the case if the allegation of poverty is untrue, or if satisfied that the action is frivolous or malicious.” See Mitchell v. Beauboeuf, 581 F.2d 412,416 (5th Cir.1978), cert. denied, 441 U.S. 966, 99 S.Ct. 2416, 60 L.Ed.2d 1072 (1979). A prisoner complaint is frivolous under section 1915(d) if it is without arguable merit. Watson v. Ault, 525 F.2d 886, 892 (5th Cir.1976). [I]n evaluating the legal sufficiency of a complaint for purposes of § 1915(d), we apply the customary standard enunciated in Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957), that: a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim • which would entitle him to relief. Green v. City of Montezuma, 650 F.2d" }, { "docid": "8133145", "title": "", "text": "a single appeal of a single order dismissing a joint complaint. . Exhibits C and G to plaintiffs’ Affidavit submitted in support of their Order to Show Cause and their request for T.R.O. relief. For exam-pie, Exhibit G, which consists of a letter from Payne to the SUNY Legal Assistant Program, states that, in order not to serve food to inmates, correction officers contaminated prisoners’ meals with “dust, rocks, glass and human waste.” . Docket No. 83-2008. . One of the named plaintiffs, D. Hooker, did not sign the complaint, but did file an affidavit in support of his request to proceed in forma pauperis. Kerun Brewington, another inmate, did sign the complaint but is not a named plaintiff and did not file an affidavit in support of his request to proceed in forma pauperis. The district judge should address this matter upon remand. . Redford v. Smith, 543 F.2d 726, 728 (10th Cir.1976); Oughton v. United States, 310 F.2d 803, 804 (10th Cir.1962), cert. denied, 373 U.S. 937, 83 S.Ct. 1542, 10 L.Ed.2d 693 (1963). These cases indicate that the recommended procedure in the Tenth Circuit is to grant the application to proceed in forma pauperis if the court is satisfied that the requirements of section 1915(a) are satisfied and thereafter dismiss the complaint under section 1915(d) if it finds that the action is frivolous. . It may be that a mere allegation of deficient food does not rise to the level of a constitutional violation. Freeman v. Trudell, 497 F.Supp. 481, 482 (E.D.Mich.1980); but see Shapley v. Wolff, 568 F.2d 1310 (9th Cir.1978) (complaint alleging, inter alia, prison diet consisting of cold and possibly inadequate food sufficient to withstand motion to dismiss). . We read this § 1983 pro se complaint, submitted on a form directing plaintiff to attach necessary additional sheets, to adopt the factual allegations contained in plaintiffs’ Affidavit and Memorandum of Law submitted in support of their Order to Show Cause and their request for T.R.O. relief. See Le Grand v. Evan, 702 F.2d 415, 416 n. 3 (2d Cir.1983)." }, { "docid": "9866736", "title": "", "text": "648, 651 (5th Cir.1981). While a trial court has broad discretion in denying an application to proceed in forma pauperis under 28 U.S. C.A. § 1915, it must not act arbitrarily and it may not deny the application on erroneous grounds. Flowers v. Turbine Support Division, 507 F.2d 1242, 1244 (5th Cir.1975). Under Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 595, 30 L.Ed.2d 652 (1972), a pro se prisoner complaint is governed by “less stringent standards than formal pleadings drafted by lawyers.” Pace’s complaint alleged facts which, if proven, might arguably entitle him to relief. See, e.g., Woodall v. Foti, 648 F.2d 268, 272 (5th Cir.1981) (inadequate medical care); Shabazz v. Barnauskas, 598 F.2d 345 (5th Cir.1979) (prisoner claimed his religious faith required him to let beard grow); Johnson v. Levine, 588 F.2d 1378 (4th Cir.1978) (en banc) (overcrowding); Sinclair v. Henderson, 435 F.2d 125, 126 (5th Cir.1970) (unsanitary food preparation). The district court erred in dismissing the complaint at this stage of the proceeding. See Hogan v. Midland County Commissioners Court, 680 F.2d 1101, 1103 (5th Cir.1982); Taylor v. Gibson, 529 F.2d 709, 716-17 (5th Cir.1976); Watson v. Ault, 525 F.2d 886, 892 (5th Cir.1976). We, of course, voice no indication as to the merit of plaintiff’s claims. Normally, at this stage of the appellate proceedings, we would only grant plaintiff leave to appeal in forma pauperis, and wait for briefing to decide the merits of this appeal. Here, however, defendants have never been served and are not before this Court. Therefore, we at once grant certificate of probable cause and leave to appeal in forma pauperis and vacate the dismissal prior to service of plaintiffs complaint, reverse the denial of leave to proceed in for-ma pauperis in the district court, and remand to the district court for further proceedings. Because of the delay that has ensued through no fault of the plaintiff, the matter should be treated with some expedition in the district court. VACATED AND REMANDED." }, { "docid": "22476232", "title": "", "text": "that Lehigh County would permit him to keep only legal papers related to his Le-high County cases. IV. For the foregoing reasons, we will vacate the judgment of the district court and remand for further proceedings consistent with this opinion. . This court uses a two-step analysis in evaluating motions to proceed under § 1915. First, the district court evaluates a litigant’s financial status and determines whether (s)he is eligible to proceed in forma pauperis under § 1915(a). Second, the court assesses the complaint under § 1915(d) to determine whether it is frivolous. Sinwell v. Shapp, 536 F.2d 15 (3d Cir.1976). Likewise, when deciding a motion to proceed in forma pauperis on appeal, this court grants or denies in forma pauperis status based on economic criteria alone and then, if warranted, dismisses the appeal as frivolous pursuant to § 1915(d). See Walker v. People Express Airlines, Inc., 886 F.2d 598, 601 n. 2 (3d Cir.1989) (recognizing that the circuits vary in their interpretations of § 1915, but noting that Neitzke v. Williams, — U.S. —, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989) declined to rule on the preferred approach). . See abo 28 U.S.C. § 1915(c) which states that after the court grants in forma pauperb status, \"the same remedies shall be available as are provided for by law in other cases”. . \"Section 1915(d) is designed largely to discourage the filing of, and waste of judicial and private resources upon, baseless lawsuits that paying litigants generally do not initiate because of the costs of bringing suit and because of the threat of sanctions for bringing vexatious suits under Federal Rule of Civil Procedure 11.” Neitzke, 109 S.Ct. at 1832-33. Of course, financial considerations alone will not serve to deter some paying litigants from bringing frivolous claims. . Prior to Neitzke, this court had a policy of giving pro se litigants proceeding in forma pau-perb a chance to amend their complaints prior to a § 1915(d) dismissal. See Ross v. Meagan, 638 F.2d 646, 650 (3d Cir.1981) (failure of district court to allow plaintiffs to amend complaint dismissed as frivolous" }, { "docid": "22786397", "title": "", "text": "conclude that summary judgment was improper and we remand for further proceedings. See Dillon, 596 F.3d at 267 (remanding the case because the record was not sufficiently developed when the district court granted summary judgment); Hemphill, 380 F.3d at 689 (remanding to district court for further proceedings because the court could not conclude based on the evidence whether the threats plaintiff received rendered administrative remedies unavailable). IV. We conclude that a court of appeals may require a three-strike prisoner seeking forma pauperis status to show an imminent danger at the time the notice of appeal is filed. We further conclude that the Andrews standard is the appropriate one to be applied in determining whether a prisoner has shown an imminent danger on appeal, and that applying that standard to Williams’s case, she may proceed in forma pauperis on appeal. Finally, we conclude that the district court erred in granting summary judgment to the Defendants on the issue of exhaustion, and that Defendants have not met their burden of establishing that Williams did not exhaust available administrative remedies. Accordingly, we grant Williams the right to proceed in forma pauperis on appeal; we also vacate the order of the district court and remand for further proceedings on the issue of exhaustion. GRANTED; VACATED and REMANDED. . Williams identifies as a Iransgender woman, and we refer to her as a woman even though she is classified as male in the prison records. . It is not clear, however, that a central premise for enacting the PLRA—that prisoners were flooding courts with frivolous lawsuits in increasing numbers—is entirely accurate. Prisoner litigation increased in the 1980s and the 1990s due to the rapid increase in the incarcerated population over those years, and state and federal prisoners filed lawsuits in roughly the same proportions as non-inmates, both before and after the increase. Margo Schlanger, Inmate Litigation, 116 Harv. L.Rev. 1555, 1692 (2003). . Section 1915(g) provides, \"In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if the prisoner has, on 3 or" }, { "docid": "23501180", "title": "", "text": "GARWOOD, Circuit Judge: Plaintiff-appellant Juan Gomez (Gomez), a Texas prisoner (# 561694), on March 5, 1996, filed this pro se, in forma pauperis (IFP) action under 42 U.S.C. § 1983 against defendants-appellees correctional sergeants Chandler and Reece and correctional officers Pal-meiri and Roden, all employees at Gomez’s place of confinement. Gomez alleged that defendants violated his due process rights by filing a false disciplinary report against him, subjected him to unconstitutional retaliation for exercising his First Amendment rights by filing a witness statement in another inmate’s suit and by filing a grievance, and subjected him to excessive force in violation of the Eighth Amendment in an April 29, 1994, incident at the prison. The district court sua sponte dismissed the due process claim as frivolous but allowed Gomez to proceed IFP on the excessive force and retaliation claims. Later, the district court on November 15, 1996, granted the defendants’ motion for summary judgment and dismissed the suit. Gomez now appeals. In his appeal, Gomez has not briefed his claims that defendants retaliated against him for exercising his First Amendment rights and that they denied him due process by filing a false disciplinary report against him. These claims are hence abandoned, and their dismissal is accordingly affirmed. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir.1993); Fed. R.App. P. 28(a)(6). Gomez does challenge the summary judgment dismissal of his Eighth Amendment excessive force claim. We find merit in that challenge, and vacate the dismissal of that claim and remand for further proceedings. Factual and Procedural Background With respect to the excessive force claim, the defendants’ motion for summary judgment asserted, inter alia, that Gomez suffered no more than a de minimis injury. The district court agreed and, relying in part on our decision in Siglar v. Hightower, 112 F.3d 191 (5th Cir.1997), granted the motion for summary judgment, observing “the Plaintiffs injuries are consistent with the type of de minimis injuries described in ... Siglar ” and “[t]he Court concludes, as a matter of law, that the Plaintiff sustained only de min-imis injuries, thus his excessive use of force claim" }, { "docid": "9437728", "title": "", "text": "encrusted toitle and filthy Washing Facilities, Subhuman Conditions in the Jail violated Civilized Standards of human decency were prisoner was, as a Proximate Cause of the above described unlawful and intentionally Acts of the defendants, Plaintiff suffered sever Emotional and Mental stress and Physical Pains and Embarrassment by reasons of which Plaintiff is entitled to an awared of Punitive damages in the Sum of $190,000.00 Dollars, Plaintiff further Prays this Court will grant his petition. Bienvenu also requested actual damages in the amount of $950,000. On the very day on which Bienvenu filed his complaint, the district court granted leave to proceed in forma pauperis and dismissed the action, holding that Bienvenu’s “allegations do not rise to constitutional dimensions.” Bienvenu filed a timely notice of appeal, a motion to proceed on appeal in forma pauperis, and an application for a certificate of probable cause. The district court allowed the appeal in forma pauperis. The action is presently before us on Bienvenu’s motion for appointment of counsel to represent him on appeal. We deny the motion. Instead, we order his appeal docketed, vacate the district court’s summary dismissal of his action and remand the case for proceedings consistent with this opinion. Proceedings in forma pauperis are governed by 28 U.S.C. § 1915. A federal court is empowered to: request an attorney to represent any such person unable to employ counsel and may dismiss the case if the allegation of poverty is untrue, or if satisfied that the action is frivolous or malicious. 28 U.S.C. § 1915(b). In this case, the district court recognized that Bienvenu was economically eligible to bring the suit in forma pauperis, see 28 U.S.C. § 1915(a). Clearly the district court’s dismissal of Bienvenu’s suit was not effected pursuant to section 1915(d): first, the court makes no mention of frivolousness or of bad faith; second, the court expressly certified the appeal as “taken in good faith.” The court’s dismissal appears to have been effected, therefore, pursuant to Fed.R.Civ.P. 12. Whether the district court dismissed the cause under Rule 12 or under section 1915(d), the distinction is purely academic." }, { "docid": "23369355", "title": "", "text": "foregoing reasons, the district court’s order dismissing sua sponte Williams’ pro se complaint and denying him leave to proceed in forma pauperis is affirmed in part and reversed in part. This case is remanded to the district court for further proceedings consistent with this opinion. . The statute provides, in relevant part, that \"[t]he court ... may dismiss the case if the allegation of poverty is untrue, or if satisfied that the action is frivolous or malicious.” 28 U.S.C. § 1915(d). . The district court's denial of Williams’ motion to proceed in forma pauperis was consistent with the procedure outlined in Wartman v. Branch 7, Civil Division, County Court, 510 F.2d 130, 132-34 (7th Cir.1975). In Wartman, this court stated that a district court may deny a motion to proceed in forma pauperis if it finds that the complaint is frivolous. Other circuits, however, grant or deny in forma pauperis status based on the plaintiffs financial resources alone and then independently determine whether to dismiss the complaint as frivolous. See, e.g., Franklin v. Murphy, 745 F.2d 1221, 1226-27 n. 5 (9th Cir.1984); Boyce v. Alizaduh, 595 F.2d 948, 950-51 (4th Cir.1979). . 28 U.S.C. § 1915(a) provides: Any court of the United States may authorize the commencement, prosecution or defense of any suit, action or proceeding, civil or criminal, or appeal therein, without prepayment of fees and costs of security therefore, by a person who makes affidavit that he is unable to pay such costs or give security therefore. Such affidavit shall state the nature of the action, defense or appeal and affi-ant’s belief that he is entitled to redress. .Rule 12(b)(6) provides in pertinent part: Every defense, in law or fact, ... shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion: (6) failure to state a claim upon which relief can be granted Fed.R.Civ.P. 12(b)(6). . There are, however, situations where a complaint both fails to state a claim upon which relief can be granted pursuant to 12(b)(6) and is" } ]

[ { "docid": "5966276", "title": "", "text": "property and $156,750' for Gould’s property). (Motion to Sell, ¶ 11.) Defendants seek to have the Bankruptcy Court approve an Option and Purchase Agreement among the Buyer and Defendants. (Exhibit A to Motion to Sell.) The Bankruptcy Court entered an Interim Order Approving Bidding and Auction Procedures and Scheduling Order Setting Forth Notice Requirements for Hearing on Debtors’ Joint Motion Seeking Approval of Option and Asset Purchase Agreement. Plaintiffs filed the instant Objection to Defendants’ Motion to Sell. Because Plaintiffs’ Objection required consideration of non-bankruptcy law, namely the Coal Act, withdrawal of reference of Plaintiffs’ Objection was mandatory pursuant to 28 U.S.C. § 157(d). Following this Court’s ruling on Plaintiffs’ Objection, the Bankruptcy Court will conduct a confirmation hearing on Defendants’ Motion to Sell. 2. Defendants’ Motion to Sell Debtors and Buyer require as a condition of the sale under the Option Agreement that the order approving the Option Agreement provide that the Buyer is not assuming nor shall it in any way as a successor or otherwise, be hable for any liabilities, debts or obligations of the Debtors or any liabilities, debts or obligations in any way whatsoever relating to or arising from the Debtors’ ownership or operation of the Property prior to closing or any liabilities calculable by reference to the Debtors or their assets or operations, or relating to continuing conditions existing on or prior to closing, which liabilities, debts, obligations shall be extinguished insofar as they may give rise to successor liability, without regard to whether the claimant asserting any such liabilities, debts or obligations has deliver to the Buyer a release thereof. Without limiting the generality of the foregoing, it is also a condition of the sale that the order provide that the Buyer shall not be liable or responsible, as a successor or otherwise, for the Debtors liabilities, debts or obligations, whether calculable by reference to the Debtors or its operations, or under or in connection with ... (ii) any ... employee benefit plans ... [or] (v) ... claims arising under ... the Coal Industry Retiree Health Benefit Act of 1992.... (Motion to Sell," } ]

[ { "docid": "11453882", "title": "", "text": "adopted the “substantial and material consideration” test. Herman solely relies upon the literal interpretation test articulated in Martin v. Friedman, 133 B.R. 609 (N.D.Ohio 1991) (“this Court must withdraw an adversary proceeding if it is clear that that action will require the consideration of federal laws”) and fails to cite post-Vicars cases that required mandatory withdrawal for issues similar to those in the instant action. Thus, the court is unpersuaded that mandatory withdrawal is necessary in this action. Finally, case law is rich with precedent that can effectively guide the bankruptcy court in determining the ERISA issues in the instant action. See Herdrich v. Pegram, 154 F.3d 362 (7th Cir.1998) (discussion of ERISA’s definition of fiduciary and breach of fiduciary duty). The court has every confidence in the Bankruptcy Court’s abilities to effectively read and apply this case law. 2. Permissive Withdrawal of the Adversary Complaint Permissive withdrawal of part of a bankruptcy action is allowed under 28 U.S.C. § 157(d). The Seventh Circuit has not formulated a test to determine the appropriateness of permissive withdrawal; however, case law from this Circuit suggests that the following factors may be considered: judicial economy, promotion of uniformity and efficiency in bankruptcy administration, reduction of forum shopping, delay and costs to the parties, the particular court’s familiarity with the case, and whether the adversary proceeding is core or non-core. In re Coe-Truman Technologies, Inc., 214 B.R. 183, 187 (N.D.Ill.1997) (citations omitted). In this case, the factors lead the court away from permissive withdrawal. First, Herman’s adversary complaint centers on the issue of non-dischargeability of a debt, a core issue of the bankruptcy code that is most effectively adjudicated by the Bankruptcy Court. Also, Stetler has indicated to the court that UMB Bank, the trustee of the 401(k) Plans, also filed an adversary complaint against Stetler on April 23,1999, Stetler contends that UMB Bank’s adversary complaint for a finding of non-dis-chargeability arises from similar facts as Herman’s adversary complaint. Stetler has also filed a motion to consolidate UMB Bank’s and Herman’s adversary complaints. Thus, for efficient judicial administration, the Bankruptcy Court should handle all" }, { "docid": "16255184", "title": "", "text": "the case to well-established precedent. As stated, supra, such application falls squarely outside of the mandatory withdrawal provisions of Section 157(d). Therefore, it is the determination of this Court that withdrawal of this matter is not required by Section 157(d) because the trial court shall not substantially and materially consider non-bankruptcy Federal law. Plaintiffs assert alternatively that should the Court deem this matter as outside of the mandatory withdrawal provision, the motion is nevertheless proper pursuant to the permissive withdrawal provision of Section 157(d). (Dkt. # 1, Pl.’s Memo, p. 8). The permissive withdrawal provision allows a district court to withdraw any proceeding “for cause shown.” 28 U.S.C. § 157(d). Although “cause” is not defined in the statute, the majority of the Courts of Appeals rely on essentially the same formula for determining whether cause has been shown. These courts suggest that a district court “consider the goals of promoting uniformity in bankruptcy administration, reducing forum shopping and confusion, fostering the economical use of the debtors’ and creditors’ resources, and expediting the bankruptcy process.” In re Pruitt, 910 F.2d 1160, 1168 (3d Cir.1990) (quoting Holland America Insurance Co. v. Succession of Roy, 777 F.2d 992, 999 (5th Cir.1985)). See also, Dionne v. Simmons, 200 F.3d 738, 741 (11th Cir.2000); In re Orion Pictures Corp., 4 F.3d 1095, 1101 (2d Cir. 1993), cert. dismissed, 511 U.S. 1026, 114 S.Ct. 1418, 128 L.Ed.2d 88 (1994). In applying this formula, the courts have acknowledged that the “cause” requirement for permissive withdrawal reflects congressional intent to have bankruptcy proceedings adjudicated in bankruptcy court unless rebutted by a contravening policy. See, Hatzel & Buehler, Inc. v. Central Hudson Gas & Elec. Corp., 106 B.R. 367, 370 (D.Del.1989) (quoting Allard v. Benjamin (In re DeLorean Co.), 49 B.R. 900, 912 (Bankr.E.D.Mich.1985)). The Plaintiffs’ lone argument in support of this Court adjudicating this action is that “[i]f challenges to the obligations of debtors under Section 9711 are successful, the benefits of all retired miners under the Coal Act will be jeopardized” and “[a]n issue of such importance, and with such far reaching consequences, should be determined in" }, { "docid": "22818440", "title": "", "text": "(H)); In re Giorgio, 62 B.R. 853, 856 n. 3 (Bankr.D.R.I.1986) (state law RICO claim by trustee against representatives of creditor deemed a core proceeding), remanded on other grounds, 81 B.R. 766 (D.R.I.), remand aff'd, 862 F.2d 933 (1st Cir.1988); In re Lion Capital Group, 46 B.R. 850, 853-54, 861 (Bankr.S.D.N.Y.1985) (RICO counterclaims of limited partners against general partners of debtor entities deemed core proceedings). . Although we need not decide the matter definitively, we note that, even assuming that Lev-it's claim did invoke substantive rights under title 11, any conclusion that the RICO claim could have been litigated in the bankruptcy proceedings might be precluded by 28 U.S.C. § 157(d). Under this \"withdrawal of reference” provision, if the resolution of a proceeding \"requires consideration of both title 11 and other laws of the United States regulating organizations or activities affecting interstate commerce,” (e.g., RICO), the district court must withdraw such a proceeding from the bankruptcy court upon the motion of a party. See, e.g., Burger King Corp. v. B-K of Kansas, Inc., 64 B.R. 728, 730-31 (D.Kan.1986) (discussing divergent approaches to withdrawal of reference under § 157(d) and withdrawing an adversary pro-céeding. that involved RICO and anti-trust claims); In re Hartley, 55 B.R. 781, 784 (Bankr.N.D.Ohio 1985) (bankruptcy court sua sponte determined that trustee’s RICO claims against debtor and creditor required withdrawal under § 157(d)). But cf. In re Adelphi Inst., Inc., 112 B.R. 534, 536 (S.D.N.Y.1990) (espousing a seemingly narrower view of the withdrawal requirement). See generally 1 Collier on Bankruptcy ¶ 3.01(e) at 3-64 to -67 (1990); Comment, Closing the Escape Hatch in the Mandatory Withdrawal Provision of 28 U.S.C. § 157(d), 36 U.C.L.A.L.Rev. 417 (1988)." }, { "docid": "10279157", "title": "", "text": "compliance with regulatory schemes qualify as administrative expenses. The Tenth Circuit has established the following two-part test for determining which claims qualify as administrative expenses: an expense is administrative only if it arises out of a transaction between the creditor and the bankrupt’s trustee or debtor in possession and only to the extent that the consideration supporting the claimant’s right to payment was both supplied to and beneficial to the debtor-in-possession in the operation of the business. In re Amarex, Inc., 853 F.2d 1526, 1530 (10th Cir.1988). This is the test the bankruptcy court applied below. The bankruptcy court correctly ruled on the basis of this test that the claims arising from the Reorganized Debtors’ failure to pay pre-petition mandatory contributions are not entitled to priority as administrative expenses. Although the payment of minimum funding contributions may create some good will among employees, making those payments is not “beneficial to the debtor-in-possession in the operation of the business” as that language has been in terpreted in the relevant case law. Furthermore, the payments arise out of a transaction between the employees and the Reorganized Debtors rather than a “transaction between the creditor and the bankrupt’s trustee or debtor in possession.” IV. Posb-Petition Interest on Minimum Funding Contribution Claim PBGC argues below that, because its claim for unpaid mandatory contributions is entitled to tax priority, PBGC is also entitled to interest on the amount of that claim. The bankruptcy court denied post-petition interest on those claims. On appeal, PBGC asserts that it is “well settled” that interest on post-petition taxes is entitled to administrative priority. The Reorganized Debtors and the United Steelworkers argue that PBGC is not entitled to interest on its mandatory contributions claim because (1) those claims do not qualify for tax priority; (2) administrative expense claims are not entitled to interest; and (3) unsecured creditors are not entitled to interest unless the debtors are solvent. This issue is related to the question whether PBGC’s claims for minimum funding contributions are entitled to tax or administrative expense priority. Consistent with this Court’s denial of PBGC’s claim for tax or" }, { "docid": "7027019", "title": "", "text": "second theory holds that the statute should be literally translated, i.e., mandatory withdrawal is required only when resolution of the proceeding requires consideration of both title 11 and non-Code federal law. See In re Anthony Tammaro, Inc., 56 B.R. at 1004. This court finds it unnecessary to choose between the two. Even under the more restrictive interpretation, the present adversarial proceeding as a whole requires substantial and material consideration of both title 11 and non-Code federal law, as explained below. Adjudication of the present motion must therefore be analyzed under the mandatory withdrawal provision of section 157(d). In the present case, Burger King’s complaint requested (1) an order preventing discharge of the debtors as to Burger King; and (2) that the bankruptcy court exclude the franchise agreement from the estate. Resolution of both forms of relief requires application of title 11 law. Burger King’s remaining claim of trademark infringement, along with the debtors’ antitrust and RICO counterclaims, entail material and substantial consideration of non-Code federal law. These latter claims will require consideration of laws regulating activities affecting interstate commerce. 28 U.S.C. § 157(d). See, e.g., In re Hartley, 55 B.R. 781, 784 (N.D. Ohio 1985) (“The Trustee’s allegation that the defendant violated the Racketeer Influenced and Corrupt Organizations Act (“RICO”) makes it a necessity that the court determine whether the defendants’ activities were those prohibited by 18 U.S.C. § 1961-1968. There is no question this case is the type provided for by the second sentence of section 157 which requires mandatory withdrawal by the District Court.”); Michigan Milk Producers Association v. Hunter, 46 B.R. 214, 216 (N.D. Ohio 1985) (“[Resolution of these proceedings will require substantial and material consideration of [the] federal antitrust claim.... Accordingly, the record supports an affirmative determination that resolution of the instant adversary proceeding would require consideration of both title 11 and non-bankruptcy federal statutes ...”). The determination that the various claims alleged in the adversarial Case No. 85-0058 constitute a “proceeding” transferable to this court requires resolution of a second area of dispute under the mandatory withdrawal provision. This dispute concerns the scope of the" }, { "docid": "1161206", "title": "", "text": "filed the motion presently before this Court. BancOhio contends that the claims in the proceeding are non-core and that it is entitled to trial by jury of the facts underlying the claims. Because the law of this circuit prohibits bankruptcy courts from holding jury trials in non-core matters, Banc-Ohio avers that the adversary proceeding must be withdrawn from consideration by the bankruptcy court. In a letter to this Court dated August 25,1992, BancOhio for the first time also advances the argument that mandatory withdrawal under § 157(d) is required in light of a summary judgment motion made by CIS in the adversary proceeding, which allegedly “raises issues which will require substantial and material consideration of both non-Bankruptcy Code federal statutes and Title 11.” Not surprisingly, the Trustee disputes each of these contentions. The Trustee pre liminarily contends that this Court should remand the case to the bankruptcy court to initially characterize the nature of the proceeding as core or non-core. If this Court declines to remand the case and makes the initial decision, the Trustee argues that BancOhio has failed to demonstrate justification for either mandatory or discretionary ■withdrawal. According to the Trustee, the matters are core, BancOhio is not entitled to a jury trial, and even if a jury trial were available, withdrawal of the reference is not required because the bankruptcy court may hold jury trials in core matters. DISCUSSION I. Mandatory Withdrawal 28 U.S.C. § 157(d) provides: “The district court may withdraw, in whole or in part, any case or proceeding referred under this section, on its own motion or on timely motion of any party, for cause shown. The district court shall, on timely motion of a party, so withdraw a proceeding if the court determines that resolution of the proceeding requires consideration of both title 11 and other laws of the United States regulating organizations or activities affecting interstate commerce.” Mandatory withdrawal pursuant to the second sentence of § 157(d) is narrowly applied. It is warranted when resolution of the matter would require the bankruptcy judge to “engage in significant interpretation, as opposed to simple" }, { "docid": "16957201", "title": "", "text": "that for the efficient administration of the debtor’s bankruptcy estate, there must be a consistent determination of that issue. In the Trustee Adversary Proceeding, he has sought to avoid and recover for the estate of the debtor EquiMed fraudulent transfers of property, and it is argued that the sublease under which Keystone is operating the Center was fraudulently transferred away from the debtor. The Trustee maintains that common issues of fact and law are before the Court both in the Keystone Adversary Proceeding and in the Trustee Adversary Proceeding, and he asks that following withdrawal of reference of the Keystone Adversary Proceeding, the two matters be consolidated pursuant to Bankruptcy Rule 7042 and Rule 42(a) of the Federal Rules of Civil Procedure. Keystone, Treatment Centers and PFG all oppose the Trustee’s motion. They claim that the Trustee has not shown proper cause for withdrawal of the Keystone Adversary Proceeding. According to these three parties, the case is well under way in the Bankruptcy Court. They maintain that withdrawal and consolidation would inordinately delay a determination of the issues raised by Keystone’s complaint, with resulting prejudice to each of them. The parties agree that the Keystone Adversary Proceeding is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(A). As the Trustee himself previously argued in opposing withdrawal of reference of the Trustee Adversary Proceeding, a core bankruptcy proceeding is best resolved in a bankruptcy court. In re EquiMed, Inc., 2000 WL 1074804 at *6. In that case, this Court determined that the circumstances were unique and exceptional. Id. Here, the matters raised by Keystone’s complaint relate to a property interest claimed to be owned by the debtor and by others, matters traditionally handled by a bankruptcy judge. This is clearly not a case in which mandatory withdrawal is warranted. Therefore, this Court, in exercising its discretionary power to withdraw reference of all or any part of a bankruptcy case, must comply with 28 U.S.C. § 157(d), which provides in pertinent part as follows: The district court may withdraw, in whole or in part, any case or proceeding referred under this section," }, { "docid": "10250608", "title": "", "text": "withdrawal of the reference is mandatory under 28 U.S.C. § 157(d), which provides that the district court must withdraw the reference if “resolution of the proceeding requires consideration of both title 11 and other laws of the United States regulating organizations or activities affecting interstate commerce.” Alternatively, Lenard suggests that discretionary withdrawal of the reference is appropriate to conserve judicial resources. The government argues against withdrawal of the reference on either ground. Although a literal reading of § 157(d) suggests otherwise, the legislative history of this section reveals that it is to be interpreted narrowly. See Anthony v. Baker (In re Baker), 86 B.R. 234, 238 (D.Colo.1988); In re Baldwin-United Corp., 57 B.R. 751, 756 (S.D.Ohio 1985). Accordingly, under case law construing the mandatory withdrawal language of § 157(d), “mandatory withdrawal of the reference is required ‘only if the [district court] can make an affirmative determination that resolution of the claims will require substantial and material considerations of those non-Code statutes.” In re Baker, 86 B.R. at 237 (citing In re White Motor Corp., 42 B.R. 693, 705 (N.D.Ohio 1984) (emphasis added)). In construing this phrase courts have held substantial and material consideration arises when a determination of issues requires “significant interpretation of federal law that congress would have intended to have decided by a district judge rather than a bankruptcy judge,” or where issues arising under non-title 11 laws dominated those arising under title 11 withdrawal of the reference may be mandated. Section 157(d) should be construed narrowly and not become an “escape hatch” through which bankruptcy matters will be removed to the district court. A distinction must be made between proceedings which require the court to make a “significant interpretation” of a federal statute as opposed to making an insignificant interpretation or merely applying the law to the facts. If the court is only required to do the latter, then mandatory withdrawal is not warranted. In re Texaco, Inc., 84 B.R. 911, 921-22 (S.D.N.Y.1988) (citations omitted). Lenard argues that the government’s adversary proceeding will require substantial and material consideration of the FTC Act. I disagree. This case is" }, { "docid": "8344222", "title": "", "text": "& Rockland rejected the competing theory on mandatory withdrawal, accepted by the District of New Jersey, which provides that \"the terms of the statute should be literally interpreted and mandatory withdrawal should be required when resolution of a proceeding requires consideration of both Title 11 and non-Bankruptcy Code law.” Orange & Rockland, 107 B.R. at 38 (citing In Re Anthony Tammaro, Inc., 56 B.R. 999, 1004 (D.N.J.1986)). This theory has not been adopted by most courts because “such a strict interpretation of the law ‘would effectively defeat the attempts of the Code to rationalize bankruptcy litigation.’ ” Id. (quoting In Re Johns-Manville Corp., 63 B.R. 600, 602 (S.D.N.Y.1986)). . The six other adversary proceedings are namely the Hudson River Estates, Inc. (\"HRE\"), Delaware River Estates, Inc. (\"DRE”), Mellon Bank N.A. (\"Mellon BanK\"), Guilford Transportation Industries, Inc. (“Guilford\"), Transportation Displays, Inc. (“TDI\") and US Telecom, Inc. (\"US Telecom”) suits. Brief in Opposition to Certain Defendants’ Motions to Withdraw Reference of These Proceedings to the Bankruptcy Court (“Brief in Opposition\"), at 15. . Brief in Opposition, at 15. In Harley, the court referred to the above-mentioned test as one of the many tests that courts over the years have used to determine core status. However, the Harley court did not use this test. It used a “nexus” test: “If there is a sufficient ‘nexus between the proceeding involving a state law cause of action and the bankruptcy estate,’ then the proceeding may be considered ‘core.’ ’’ Harley, 57 B.R. at 780 (quoting In Re: Lion Capital Group, 46 B.R. 850, 856 (Bankr.S.D.N.Y.1985)). .Section 157(b)(2)(A) states that core proceedings include “matters concerning the administration of the estate”; and section 157(b)(2)(O) states that core proceedings include “other proceedings affecting the liquidation of assets of the estate or the adjustment of the debtor-creditor or the equity security holder relationship.” . In their effort to have the Court withdraw reference of the seven other adversary proceedings to the Bankruptcy Court, defendants also assert that they have a right to a jury trial on the issues presented in the D & O suit, which right the Trustee" }, { "docid": "16255181", "title": "", "text": "only application of nonBankruptcy Code federal law, but one which requires significant interpretation thereof: It would seem incompatible with congressional intent to provide a rational structure for the assertion of bankruptcy claims to withdraw each case involving the straight-forward application of a federal statute to a particular set of facts. It is issues requiring significant interpretation of federal laws that congress would have intended to have decided by a district judge rather-than a bankruptcy judge.”); In re Adelphi Institute Inc., 112 B.R. 534, 536 (S.D.N.Y.1990); In re Texaco Inc., 84 B.R. 911, 921-22 (S.D.N.Y. 1988). A distinction must be made, therefore, between proceedings requiring “significant interpretation” of non-bankruptcy law and those merely applying such law to the facts. If the court is only required to do the latter, then mandatory withdrawal is not warranted. Id. The legal questions involved need not be of “cosmic proportions,” but must involve more than mere application of existing law to new facts. In re Vicars, 96 F.3d at 954 (internal citations omitted). In the instant matter, the Coal Act requires explicitly “coverage shall continue to be provided for as long as the last signatory operator (and any related person) remains in business.” 26 U.S.C. § 9711(a). Plaintiffs assert that the Defendants meet the forgoing standard as they remain “in business”. (Dkt. # 1, Pl.’s Memo., p. 5.) Plaintiffs further assert: adjudication of the requested declaratory and injunctive relief requires the “substantial and material” interpretation of Section 9711 of the Coal Act. Defendants have asserted that under their interpretation of Section 9711, they are no longer required to provide health care to their retirees. The 1992 Plan’s action, therefore, necessarily involves the interpretation of the Coal Act’s requirements and withdrawal of the reference in mandatory. (Dkt. # 1, Pl.’s Memo, p. 7.) Consequently, the prevailing legal issue to be determined in the adversary proceeding is whether the Defendants are “in business” for the purposes of Section 9711. (Dkt. # 1, PL’s Memo, p. 5.) The interpretation of Section 9711(a)’s “in business” requirement is neither one of first impression among the Federal courts nor one presenting" }, { "docid": "6880832", "title": "", "text": "was filed in the district court. Two days later, on June 27, 2003, Debtors moved in bankruptcy court for summary judgment on the Class’s administrative claims and noticed this motion for hearing on July 17, 2003. Debtors presented three grounds for summary judgment on their objection to the Class’s administrative priority claim: (i) the Class is precluded by the principles of res judicata and waiver from prosecuting its claim as an administrative expense claim; (ii) the claim does not meet the standards for treatment as an administrative claim because it is not beneficial to the estate; and (iii) the claim is not entitled to administrative priority because the facts and events underlying the alleged expense all occurred pre-petition, thereby making it a pre-petition claim. The Class, in turn, noticed a hearing on its motion for withdrawal of reference for July 11, 2003, thereby seeking to have the withdrawal of reference motion heard and resolved before the hearing in bankruptcy court on the Debtors’ motion for summary judgment. The parties’ positions may be succinctly summarized as follows. The Class argues that the disposition of the summary judgment motion on its administrative claim will require both consideration and interpretation of United States antitrust laws, thereby triggering the mandatory withdrawal in § 157(d). And, with respect to § 157(d)’s provision for discretionary withdrawal of reference, the Class argues, inter alia, that withdrawal of the reference here would serve judicial economy by preventing the Class’s antitrust-based administrative priority claim from being adjudicated twice, first before the bankruptcy court and then by the district court on appeal. In response, Debtors argue that withdrawal of reference should be denied because the upcoming motion for summary judgment on the administrative priority claim can and should be determined solely on the grounds of bankruptcy law. With respect to discretionary withdrawal, Debtors argue that the pertinent factors, including economies and expedition of the process, weigh against withdrawal. Following full briefing and oral argument, the motion for withdrawal of reference on both mandatory and discretionary grounds was denied in a ruling from the bench. This memorandum sets forth more fully" }, { "docid": "16255183", "title": "", "text": "novel issues of statutory interpretation. For example, the plain terms of the statute define “in business” as including all entities “conducting or deriving revenue from any business activity, whether or not in the coal industry.” 28 U.S.C. § 9701(c)(7). Several Courts of Appeals have examined the provision and have adopted an expansive interpretation. See, Holland v. Williams Mtn. Coal Co., 256 F.3d 819 (D.C.Cir.2001) (regarding “in business” in successor in interest context); District 29, United Mine Workers of America v. United Mine Workers of America 1992 Benefit Plan, 179 F.3d 141 (4th Cir.1999); Lindsey Coal Mining Co. v. Chater, 90 F.3d 688, 692 (3rd Cir. 1996)(“The statutory definition of ‘in business’ is broad, including within its scope not only (1) an entity that ‘conducts’ business activity, but also (2) one who ‘derives revenue’ from business activity”). Moreover, the scope and meaning of the “in business” provision has been addressed in the bankruptcy context. Lewittes v. Connors, 159 F.3d 62 (2nd Cir.1998). Consequently, the court addressing the instant action needs only to apply the facts of the case to well-established precedent. As stated, supra, such application falls squarely outside of the mandatory withdrawal provisions of Section 157(d). Therefore, it is the determination of this Court that withdrawal of this matter is not required by Section 157(d) because the trial court shall not substantially and materially consider non-bankruptcy Federal law. Plaintiffs assert alternatively that should the Court deem this matter as outside of the mandatory withdrawal provision, the motion is nevertheless proper pursuant to the permissive withdrawal provision of Section 157(d). (Dkt. # 1, Pl.’s Memo, p. 8). The permissive withdrawal provision allows a district court to withdraw any proceeding “for cause shown.” 28 U.S.C. § 157(d). Although “cause” is not defined in the statute, the majority of the Courts of Appeals rely on essentially the same formula for determining whether cause has been shown. These courts suggest that a district court “consider the goals of promoting uniformity in bankruptcy administration, reducing forum shopping and confusion, fostering the economical use of the debtors’ and creditors’ resources, and expediting the bankruptcy process.” In" }, { "docid": "16255178", "title": "", "text": "(Adversary Compl., ¶ 64 and Ex. 1.) The UMWA asserts that LTV and fifty (50) “related” Defendants’ termination of benefits violates Section 9711 of the Coal Act. (Adversary Compl., ¶¶ 65-67.) On May 15, 2002, the UMWA filed the instant motion asserting that a withdrawal of the reference is proper, if not mandatory, pursuant to 28 U.S.C. section 157(d) because “resolution of this matter requires consideration of both Title 11 and other federal law, namely the Coal Act.” (Dkt. # 1, Memorandum in Support of the UMWA 1992 Benefits Plan’s Motion to Withdraw the Reference Pursuant to 28 U.S.C. § 157(d) (“Pl.’s Memo”), p. 1). The Defendants refrained from filing an opposition to the motion. The Bankruptcy Amendments and Federal Judgeship Act of 1984 (the “Bankruptcy Act”) vests in the district courts original jurisdiction over all cases arising under Title 11 of the Bankruptcy Code, see, 28 U.S.C. § 1334(b), but also permits the Federal courts to refer bankruptcy cases automatically to the bankruptcy judges for the district. 28 U.S.C. § 157(a). The Bankruptcy Act provides, however, for the reference to be withdrawn in limited situations. Title 28 of the United States Code, Section 157(d) provides: The district court may withdraw, in whole or in part, any case or proceeding referred under this section, on its own motion or on timely motion of any party, for cause shown. The district court shall, on timely motion of a party, so withdraw a proceeding if the court determines that resolution of the proceeding requires consideration of both title 11 [11 USCS §§ 101 et seq.] and other laws of the United States regulating organizations or activities affecting interstate commerce. This statute, which the courts have generally interpreted restrictively, contains two distinct provisions: the first sentence allows permissive withdrawal, while the second sentence requires mandatory withdrawal in certain situations. In re Southern Indus. Mech. Corp., 266 B.R. 827 (W.D.Tenn.2001); In re Vicars Ins. Agency, Inc., 96 F.3d 949, 952 (7th Cir. 1996). Because withdrawal of a reference is not intended to be an “escape hatch” from bankruptcy court into district court, courts prefer" }, { "docid": "6880851", "title": "", "text": "786, 794-95 & n. 11 (4th Cir.1998) (applying bank ruptcy law to question of when liabilities under the Coal Act accrue as priority taxes under the Code); Butler v. NationsBank, N.A., 58 F.3d 1022, 1029 (4th Cir.1995) (holding that \"to determine when a claim arises for bankruptcy purposes, reference is to be made to' federal bankruptcy law rather than to state law”); Grady v. A.H. Robins Co., 839 F.2d 198, 201 (4th Cir.1988) (holding that \"claim accrual for bankruptcy purposes must be determined in light of bankruptcy law and not state law”). Other circuits also follow this principle. See, e.g„ In re BCE West, L.P., 319 F.3d 1166, 1172-73 (9th Cir.2003) (applying bankruptcy law to determine that an administrative expense claim for attorneys' fees incurred post-petition fails because, under the Code, these post-petition costs arose out of pre-petition contractual agreement); In re National Gypsum Co., 139 B.R. 397, 405 (N.D.Tex.1992) (examining CERCLA claims and holding that \"[wjhile non-bankruptcy law governs the existence of a claim under the Code, it is not dispositive of the time at which a claim arises under the Code.”). But see In re Chateaugay Corp., 86 B.R. 33, 38-39 (S.D.N.Y.1987) (determining when a claim arises in bankruptcy proceedings requires consideration of multiple, concrete provisions of ERISA and related federal law). . This temporal qualification makes clear that the withdrawal of reference issue decided here focuses only on the questions material to the resolution of Debtors' pending summary judgment motion. Not addressed here is whether mandatory or discretionary withdrawal of the reference might be warranted in the event of some future dispute regarding the Class’s administrative claim, should that claim survive summary judgment. . See 28 U.S.C. § 157(b)(2) (providing a nonexclusive list of what constitutes a core proceeding). In general, \"a proceeding is core under section 157 if it invokes a substantive right provided by title 11 or if it is a proceeding that, by its nature, could arise only in the context of a bankruptcy case.” Barnett v. Stern, 909 F.2d 973, 981 (7th Cir.1990) (quoting In re Wood, 825 F.2d 90, 97 (5th Cir.1987))." }, { "docid": "1107021", "title": "", "text": "Citicorp’s motions, the trustee filed the motion to withdraw reference to bankruptcy that is now pending before the Court based on his demand for a jury trial in the fraudulent conveyance action. The trustee’s motion to withdraw reference to bankruptcy encompasses all three adversary proceedings mentioned above because the bankruptcy court previously consolidated the fraudulent conveyance action with the other two. II. ANALYSIS A. Section 157(d) The trustee’s motion requires the Court to examine Congress’ peculiar procedural contrivance of 28 U.S.C. § 157(d). To understand section 157(d), one must first regard section 157(a), which is the statutory provision that allows district courts to reference bankruptcy cases to bankruptcy judges. 28 U.S.C. § 157(a). Congress provided mandatory and non-mandatory withdrawal for such reference in section 157(d). The mandatory provision dictates that the district court must withdraw the reference on timely motion of a party if the resolution of the proceeding requires consideration of both title 11 and other federal laws that regulate organizations or activities affecting interstate commerce. 28 U.S.C. § 157(d). Finley does not base in any way his motion to withdraw on the mandatory withdrawal provision. It is notable for purposes of statutory construction, however, that the legislative history behind the mandatory withdrawal provision suggests that it should be read narrowly and that the district court should refuse withdrawal if withdrawal would unduly delay administration of the case. 130 Cong.Rec. S17,156 (daily ed. June 19, 1984) (statement of Sen. DeConcini); 130 Cong.Rec. H6244 (daily ed. March 21, 1984) (statement of Rep. Kasten-meier). The non-mandatory withdrawal provision of the statute, on which Finley does base his motion, states in pertinent part: “The district court may withdraw, in whole or in part, any case or proceeding referred [to a bankruptcy judge] under this section, ... on timely motion of any party, for cause shown.” Id. This provision was inserted into the bankruptcy code primarily to support the constitutionality of the delegation of power to non-Artiele III judges, see William L. Norton, Jr. & Richard Lieb, Jurisdiction and Procedure Under the 1984 Bankruptcy Amendments, in Norton Bankruptcy Law and Procedure 143 (1985)" }, { "docid": "23653157", "title": "", "text": "the Defendants violated the applicable OSHA and/or EPA violations. Thus, in order to determine whether the Defendants’ termination of the contract and subcontracts was not wrongful, this Court must necessarily interpret the OSHA and EPA regulations and other implicated, though yet unspecified, environmental regulations. Since the violations of these regulations form the basis of H & B’s cause of action under state contract and tort law, resolution of the consolidated adversary proceedings necessárily requires substantial and material consideration of laws affecting interstate commerce. Thus, the Court finds that mandatory withdrawal of the adversary proceedings is required under 28 U.S.C. § 157(d). IV. PERMISSIVE WITHDRAWAL Even if the mandatory provision did not apply, the Court would exercise its discretion under the permissive withdrawal provision under section 157(d) and withdraw the reference of the consolidated adversary proceedings to the Bankruptcy Court. Permissive withdrawal for “cause” includes considerations of the nature of the proceeding (i.e., core or non-core proceeding) and judicial economy. Acolyte Elec. Corp. v. City of New York, 69 B.R. 155, 166 (E.D.N.Y.1986). The adversary proceedings in this case constitute a “non-core proceeding” as that term is used in 28 U.S.C. § 157(b)(2) because the state contract and tort claims do not involve any interpretation of the Bankruptcy Code and are not otherwise related to the underlying bankruptcy proceeding pending before the Bankruptcy Court. Although H & B contends that its claim is a “core proceeding” under 28 U.S.C. § 157(b)(2) which directly affects the administration of H & B’s estate, this argument hinges upon the tenuous connection that the proceeds of the instant litigation will form the basis of distribution to the general creditor body. H & B’s contract and torts claims do not involve a “core proceeding” because of the contingent nature of the litigation concerning the adversary proceedings. See, e.g., Matter of Baldwin-United Corp., 48 B.R. 49, 53 (S.D.Ohio 1985) (Complaint seeking turnover of a matured obligation owed debtor is a “core-proceeding” since the obligation is non-contingent.). Although recovery of proceeds from the contested litigation may result in the ultimate distribution of a portion of the money damages" }, { "docid": "10251079", "title": "", "text": "issues under § 502(b) concerning the amount of allowance of such claims (“Price’s request that Craddock be compelled to transfer the 490 shares is in essence a request that the bankruptcy court exclude the shares from the debtor’s estate pursuant to § 541”); (2) the defendant’s demand for the imposition of a constructive trust raises issues under § 542 concerning turning over property to the estate; and (3) in connection with the § 542 issues, the plaintiffs damage claims raise issues under § 553 concerning the amount and appropriateness of any setoff by the plaintiff. (Plaintiffs reply brief, at 6.) This case is similar to Michigan Milk Producers Association v. Hunter, 46 B.R. 214 (N.D.Ohio 1985). There the plaintiff filed in bankruptcy court an adversary complaint against the trustee to determine its rights as a secured creditor. The trustee counterclaimed alleging that an agreement between the plaintiff and the debtor violated the Sherman Antitrust Act, 15 U.S. C. § 1. Subsequently, the trustee filed a motion for withdrawal of reference. The district court granted the motion reasoning that resolution of the proceedings would require substantial and material consideration of the federal antitrust claim, as well as the plaintiffs rights as a secured creditor, and thus, “resolution of the instant adversary proceeding would require consideration of both Title 11 and non-bankruptcy federal statutes regulating organizations or activities affecting interstate commerce.” Id. at 216. I conclude that this case is analogous to Michigan Milk and that the court’s reasoning in that case is persuasive here. As in Michigan Milk, the record in the instant action supports an affirmative determination that resolution of the adversary proceeding will require consideration of both Title 11 and non-bankruptcy federal statutes regulating organizations or activities affecting interstate commerce, namely § 10(b) and Rule lOb-5. Withdrawal of reference is therefore mandatory under 28 U.S.C. § 157(d). Accordingly, IT IS ORDERED that: (1)Plaintiffs motion to withdraw reference to the bankruptcy court is granted; (2) The reference to the bankruptcy court of the plaintiffs adversary proceeding is withdrawn; and (3) Bankruptcy Court Adversary Proceeding No. 87-E-705 shall proceed in this" }, { "docid": "16255177", "title": "", "text": "MEMORANDUM OPINION AND ORDER ECONOMUS, District Judge. This matter is before the Court upon the UMWA 1992 Benefit Plan’s Motion to Withdraw the Reference Pursuant to 28 U.S.C. § 157(d). (Dkt. # 1.) For the reasons that follow, the motion is hereby DENIED. This action arises from the lengthy proceedings regarding the Chapter 11 bankruptcy petition filed by Defendant, LTV Steel Company (“LTV”). See, In re: LTV Steel Company Inc., a New Jersey Corporation, et al., Case No.: 0CM3866 (Bankr. N.D.OH.). On May 1, 2002, Plaintiffs, Trustees of the United Mine Workers of America 1992 Benefit Plan (“UMWA”), filed an adversary proceeding in said bankruptcy action seeking, inter alia, declaratory and injunctive relief pursuant to the Coal Industry Retiree Health Benefit Act of 1992 (the “Coal Act”), 26 U.S.C. sections 9701-9722. See, Adversary Proceeding No.: 02-4078 (Bankr.N.D.OH.). The adversary complaint alleges specifically that a representative of LTV issued a letter on April 26, 2002 informing the beneficiaries of LTV’s individual employer health benefits plan that benefits under said plan will terminate on May 31, 2002. (Adversary Compl., ¶ 64 and Ex. 1.) The UMWA asserts that LTV and fifty (50) “related” Defendants’ termination of benefits violates Section 9711 of the Coal Act. (Adversary Compl., ¶¶ 65-67.) On May 15, 2002, the UMWA filed the instant motion asserting that a withdrawal of the reference is proper, if not mandatory, pursuant to 28 U.S.C. section 157(d) because “resolution of this matter requires consideration of both Title 11 and other federal law, namely the Coal Act.” (Dkt. # 1, Memorandum in Support of the UMWA 1992 Benefits Plan’s Motion to Withdraw the Reference Pursuant to 28 U.S.C. § 157(d) (“Pl.’s Memo”), p. 1). The Defendants refrained from filing an opposition to the motion. The Bankruptcy Amendments and Federal Judgeship Act of 1984 (the “Bankruptcy Act”) vests in the district courts original jurisdiction over all cases arising under Title 11 of the Bankruptcy Code, see, 28 U.S.C. § 1334(b), but also permits the Federal courts to refer bankruptcy cases automatically to the bankruptcy judges for the district. 28 U.S.C. § 157(a). The Bankruptcy Act" }, { "docid": "6880840", "title": "", "text": "is a question about the scope and application of § 503 and hence governed solely by federal bankruptcy law. Similarly, the second summary judgment ground — whether the Class’s claim is barred by principles of res judicata and waiver — is also controlled by federal bankruptcy law. While conceding this much, the Class argues that the bankruptcy court must nonetheless necessarily consider antitrust law in order to adjudicate Debtors’ third ground of objection, namely that the Class claim is disqualified as an administrative cost or expense because the alleged facts and events underlying the expense all occurred pre-petition. According to the class, under settled antitrust principles, the Debtors’ violations of the Sherman Act, and consequently the unlawful profits captured by the Debtors’ estate, constitute transactions that continued to occur post-petition with each sale of a ticket without the commission. The Class’s argument in this respect fails, as it confuses the substantive basis for the administrative claim with the more pertinent issue of when the claim arose. The point is simply this: Whether a claim arises requires consideration of the substantive law from which the claim arises, not of the bankruptcy code itself; but when a claim arises for bankruptcy purposes is determined according to bankruptcy law, not according to the substantive law creating the claim. Fourth Circuit precedent on this point is legion. It follows, therefore, that resolving the ques tion whether the claim is pre- or post-petition turns on principles of bankruptcy law, not antitrust law. Put differently, even assuming, arguendo, that the Class has a valid antitrust claim based on Debtors’ post-petitions denials of commissions, federal bankruptcy law alone determines whether such post-petition denials are proper administrative claims and, if so, when such claims arose. It further follows that § 157(d)’s mandatory withdrawal of reference provision is inapplicable at this time because the Debtors’ pending summary judgment motion may be resolved without “consideration” of non-bankruptcy federal law. B. Discretionary Withdrawal In addition to mandatory withdrawal of a reference in certain circumstances, § 157(d) also authorizes the withdrawal of reference “for cause shown” as a matter of judicial discretion." }, { "docid": "10250607", "title": "", "text": "ORDER ON MOTION TO WITHDRAW THE REFERENCE KANE, Senior District Judge. The debtor, Dale T. Lenard, filed for bankruptcy protection on January 16, 1990. On May 3, 1990, the United States of America initiated an adversary proceeding against Lenard under §§ 523 and 727 of the Bankruptcy Code. The government is a contingent, unliquidated creditor of the estate. Its claim relates to an action commenced in the Southern District of Iowa (the “Iowa action”) against Lenard and other defendants seeking civil penalties and injunctive relief for alleged violations of the Federal Trade Commission Act, 15 U.S.C. §§ 41-58 (the “FTC Act”) and other laws. The government’s adversary complaint seeks to have any debt arising out of the Iowa action declared non-dischargeable under §§ 523(a)(2)(a), 523(a)(6) and 523(a)(7) of the Code and to deny Lenard a general discharge in bankruptcy under § 727(a) of the Code for activities both related and unrelated to the Iowa action. On July 2, 1990, Lenard filed a motion to withdraw the reference of the above adversary proceeding. Lenard argues that withdrawal of the reference is mandatory under 28 U.S.C. § 157(d), which provides that the district court must withdraw the reference if “resolution of the proceeding requires consideration of both title 11 and other laws of the United States regulating organizations or activities affecting interstate commerce.” Alternatively, Lenard suggests that discretionary withdrawal of the reference is appropriate to conserve judicial resources. The government argues against withdrawal of the reference on either ground. Although a literal reading of § 157(d) suggests otherwise, the legislative history of this section reveals that it is to be interpreted narrowly. See Anthony v. Baker (In re Baker), 86 B.R. 234, 238 (D.Colo.1988); In re Baldwin-United Corp., 57 B.R. 751, 756 (S.D.Ohio 1985). Accordingly, under case law construing the mandatory withdrawal language of § 157(d), “mandatory withdrawal of the reference is required ‘only if the [district court] can make an affirmative determination that resolution of the claims will require substantial and material considerations of those non-Code statutes.” In re Baker, 86 B.R. at 237 (citing In re White Motor Corp., 42" } ]

[ { "docid": "22066806", "title": "", "text": "denial is “arbitrary or unreasonable.” United States v. Weaver, 275 F.3d 1320, 1328 n. 8 (11th Cir.2001). A district court’s refusal to hold an evidentiary hearing is also reviewed for abuse of discretion. See United States v. Stitzer, 785 F.2d 1506, 1514 (11th Cir.1986). It does not amount to abuse of discretion when a court has conducted extensive Rule 11 inquiries prior to accepting the guilty plea. Id. The Federal Rules of Criminal Procedure require a district court, before it accepts a plea of guilty, to inform the defendant of his rights relevant to his guilty plea and determine that he understands them. Fed.R.Crim.P. 11(b)(1). After the district court has accepted a plea and before sentencing, a defendant may withdraw a guilty plea if “the defendant can show a fair and just reason for requesting the withdrawal.” Fed.R.Crim.P. 11(d)(2)(B). In determining whether the defendant has met his burden to show a “fair and just reason,” a district court “may consider the totality of the circumstances surrounding the plea.” United States v. Buckles, 843 F.2d 469, 471-72 (11th Cir.1988). In the course of this inquiry, we consider “(1) whether close assistance of counsel was available; (2) whether the plea was knowing and voluntary; (3) whether judicial resources would be conserved; and (4) whether the government would be prejudiced if the defendant were allowed to withdraw his plea.” Id. at 472 (citations omitted). “The good faith, credibility and weight of a defendant’s assertions in support of a motion [to withdraw a guilty plea] are issues for the trial court to decide.” Id. Additionally, “[t]he longer the delay between the entry of the plea and the motion to withdraw it, the more substantial the reasons must be as to why the defendant seeks withdrawal.” Id. at 473. Here, the district court found that: (1) Brehm was represented by counsel; (2) Brehm’s guilty plea was voluntary, he was competent to understand the indictment, and he acknowledged waiving his rights to a jury trial; (3) sufficient judicial resources had been expended in Brehm’s case in that he had been granted three continuances of his sentencing;" } ]

[ { "docid": "23109431", "title": "", "text": "appeal his sentence, but he appeals the denial of his motion to withdraw his guilty plea. II. Standard of Review A district court’s denial of a request to withdraw a guilty plea is generally reviewed for abuse of discretion. See United States v. Freixas, 332 F.3d 1314, 1316 (11th Cir.2003). The denial of a motion to withdraw a guilty plea is not an abuse of discretion unless the denial was “ ‘arbitrary or unreasonable.’ ” United States v. Weaver, 275 F.3d 1320, 1327 n. 8 (11th Cir.2001) (citation omitted). A district court abuses its discretion if it “fails to apply the proper legal standard or to follow proper procedures in making the determination, or makes findings of fact that are clearly erroneous.” Birmingham Steel Corp. v. TVA 353 F.3d 1331, 1335 (11th Cir.2003) (citation, quotation marks, and alterations omitted). We review a district court’s decision on “competency to stand trial as a factfinding subject to reversal only for clear error.” United States v. Hogan, 986 F.2d 1364, 1371 (11th Cir.1993) (reviewing our Circuit’s precedent on the proper standard of review for a motion for competency to stand trial). III. Discussion We first examine whether the magistrate judge properly placed the burden of proof on Izquierdo. A Burden of proof A defendant-movant clearly has the burden on a motion to withdraw a guilty plea. See United States v. Buckles, 843 F.2d 469, 471 (11th Cir.1988). That burden does not shift to the government when the basis of the withdrawal motion is incompetency at the time of the plea. See id. (noting that even in a case in which the defendant attempted to withdraw his guilty plea in part because of his “mental impairment resulting from a physical illness,” the defendant had “the burden of showing a ‘fair and just reason’ for withdrawal of his plea”). This is especially true here, where no concerns about Izquierdo’s competency were raised at the time of the guilty plea and the district court conducted a plea colloquy and made a finding that Izquierdo was competent to enter his plea. Further, the relevant competency statute arguably" }, { "docid": "2175558", "title": "", "text": "not considering his allegation that counsel was ineffective before denying the motion. These arguments lack support in the record; therefore, we affirm the district court’s denial of Catchings’s motion to withdraw his guilty plea. We review for abuse of discretion the district court’s denial of a motion to withdraw a guilty plea. United States v. Wynn, 663 F.3d 847, 849 (6th Cir.2011). “A district court abuses its discretion where it relies on clearly erroneous findings of fact, or when it improperly applies the law or uses an erroneous legal standard.” United States v. Haygood, 549 F.3d 1049, 1052 (6th Cir.2008) (quotation marks and citation omitted). Under Rule 11(d), a defendant may withdraw a guilty plea if “the defendant can show a fair and just reason for requesting the withdrawal.” Fed. R.Crim.P. 11(d)(2)(B). In making the determination of whether the defendant has shown a “fair and just reason,” we consider the totality of the circumstances, including the factors set forth in United States v. Bashara: (1) the amount of time that elapsed between the plea and the motion to withdraw it; (2) the presence (or absence) of a valid reason for the failure to move for withdrawal earlier in the proceedings; (3) whether the defendant has asserted or maintained his innocence; (4) the circumstances underlying the entry of the guilty plea; (5) the defendant’s nature and background; (6) the degree to which the defendant has had prior expe rience with the criminal justice system; and (7) potential prejudice to the government if the motion to withdraw is granted. 27 F.3d 1174, 1181 (6th Cir.1994). These factors “are a general, non-exclusive list and no one factor is controlling.” United States v. Bazzi, 94 F.3d 1025, 1027 (6th Cir.1996) (per curiam). Our examination of these factors in this case buttresses our conclusion that the district court did not abuse its discretion in denying Catchings’s motion to withdraw his guilty plea because Catchings did not offer a fair and just reason that finds support in the record. 1. Length of delay. Catchings waited over two months after pleading guilty to file his motion to" }, { "docid": "4742516", "title": "", "text": "this record we are convinced the court accepted Byrum’s guilty plea. B. Byrum Failed to Establish a “Fair and Just Reason” to Withdraw His Plea Having found the court accepted the guilty plea, the remaining question is whether Byrum presented a “fair and just reason” to withdraw his plea as required by Rule 11. Byrum contends that even if we determine the district court accepted his guilty plea, the court abused its discretion in refusing to permit him to withdraw his plea. In particular, he claims that although he pleaded guilty and allocuted under oath to the facts of his crimes, the district court erred in failing to recognize his later protestations of innocence. He further alleges that his guilty plea resulted from misrepresentations by his court-appointed counsel. Finally, he contends he should have been permitted to obtain new counsel and that the district court should have held a full hearing on the issue. We review the district court’s denial of motion to withdraw a guilty plea for an abuse of discretion. Sandoval, 390 F.3d at 1297. When a defendant moves to withdraw a guilty plea — after its acceptance by the district court but prior to sentencing — the court must assess whether there is a “fair and just reason for withdrawal.” Fed.R.Crim.P. 11(d)(2)(B). The court should consider the following factors: (1) whether the defendant has asserted his innocence; (2) whether withdrawal would prejudice the government; (3) whether the defendant delayed in filing his motion, and if so, the reason for the delay; (4) whether withdrawal would substantially inconvenience the court; (5) whether close assistance of counsel was available to the defendant; (6) whether the plea was knowing and voluntary; and (7) whether the withdrawal would waste judicial resources. United States v. Yazzie, 407 F.3d 1139, 1142 (10th Cir.2005). (8) Here, the district court determined that Byrum’s motion, filed after it had performed a thorough Rule 11 colloquy, after Byrum had admitted the facts underlying his offense, and after both parties had negotiated and entered into a plea agreement, would be “pointless.” R., Vol. Ill at 4. Essentially, the" }, { "docid": "22630043", "title": "", "text": "case for further proceedings. I. Each of the defendants challenges the validity of his guilty plea to wire fraud. We review their challenges in turn. A. Shortly after entering his guilty plea in August 1997, but before sentencing, Ubak-anma wrote the court requesting that his plea be withdrawn and that new counsel be appointed. He asserted that he is innocent and that he had pleaded guilty due to his attorney’s intimidation and poor advice. The district court denied this motion without a hearing. Ubakanma asserts on appeal that the court erred in denying his requests to withdraw his guilty plea and for appointment of new counsel. We review the denial of a motion to withdraw a guilty plea for abuse of discretion. See United States v. Brown, 617 F.2d 54 (4th Cir.1980). There is no absolute right to withdraw a guilty plea, see United States v. Moore, 931 F.2d 245, 248 (4th Cir.1991), thus the defendant has the burden of showing a fair and just reason for withdrawal. See id.; see also United States v. Puckett, 61 F.3d 1092, 1099 (4th Cir.1995) (a “fair and just” reason is one that “essentially challenges” the fairness of a proceeding under Fed. R.Crim.P. 11). In determining whether a defendant has met his burden, courts consider multiple factors: (1) whether the defendant has offered credible evidence that his plea was not knowing or otherwise involuntary; (2) whether the defendant has credibly asserted his legal innocence; (3) whether there has been a delay between entry of the plea and filing of the motion; (4) whether the defendant has had close assistance of counsel; (5) whether withdrawal will cause prejudice to the government; and (6) whether withdrawal will inconvenience the court and waste judicial resources. See Moore, 931 F.2d at 248. On the first factor, the record reflects that the district court conducted a thorough and comprehensive Rule 11 hearing prior to accepting Ubakanma’s guilty plea. In that proceeding, Ubakanma acknowledged under oath that the factual stipulations underlying his plea (and read into the record in open court) were true. He stated, among other things, that" }, { "docid": "22924916", "title": "", "text": "Mr. Hamilton’s ineffective-assistance claim is “fully developed in the record,” it falls within the narrow exception to our general rule that such claims will be dismissed when brought on direct appeal. See Galloway, 56 F.3d at 1242 (“Some rare claims which are fully developed in the record may be brought either on direct appeal or in collateral proceedings.”); see also United States v. Carr, 80 F.3d 413, 416 n. 3 (10th Cir.1996) (considering ineffective-assistance allegation on direct appeal because a factual record had been fully developed in the district court). We will therefore review the District Court’s denial of Mr. Hamilton’s motion. 2. Whether Mr. Hamilton Established a “Fair and Just Reason” for Withdrawal Our review of a district court’s denial of a motion to withdraw a guilty plea is for abuse of discretion. United States v. Kramer, 168 F.3d 1196, 1202 (10th Cir.1999). Although a motion to withdraw a plea prior to sentencing should be “freely allowed,” we will not reverse a district court’s decision unless the defen dant can show that the court acted “unjustly or unfairly.” Id. (quotations omitted). Under Fed.R.Crim.P. 11(d)(2)(B), a defendant may withdraw a guilty plea before the court imposes a sentence if “the defendant can show a fair and just reason for requesting the withdrawal.” The defendant bears the burden of establishing a “fair and just reason.” United States v. Black, 201 F.3d 1296, 1299 (10th Cir.2000). In determining whether a defendant has met this burden, we consider seven factors: “(1) whether the defendant has asserted his innocence, (2) prejudice to the government, (3) delay in filing defendant’s motion, (4) inconvenience to the court, (5) defendant’s assistance of counsel, (6) whether the plea is knowing and voluntary, and (7) waste of judicial resources.” United States v. Gordon, 4 F.3d 1567, 1572 (10th Cir.1993) (citing United States v. Elias, 937 F.2d 1514, 1520 (10th Cir.1991)). Because Mr. Hamilton’s argument for withdrawal focuses on his assertion of innocence and ineffective assistance of counsel, we address these factors first. a. Assertion of Innocence Mr. Hamilton contends that he asserted his innocence on both counts in his" }, { "docid": "2175557", "title": "", "text": "Therefore, we hold that Catchings’s guilty plea was entered knowingly, voluntarily, and intelligently, and that the district court did not commit plain error in following the requirements of Rule 11. III. PLEA WITHDRAWAL In his motion to withdraw his guilty plea, Catchings claimed that his plea was “unfairly obtained or given through ignorance, fear, or inadvertence.” R. 69 (Mot. to Withdraw Plea at 1) (Page ID # 105). Although far from clear, Catchings seems to have argued that his counsel was ineffective by inducing Catchings to plead guilty with the promise that his release on bond would not be opposed and by failing to explain the consequences of a guilty plea. Id.; R. 73 (Addendum to Plea Withdrawal) (Page ID # 113-17). The district court denied Catchings’s motion to withdraw his guilty plea, finding that it was untimely and without merit. R. Ill (3/11/2011 Sentencing Hr’g Tr. at 6) (Page ID # 655). Id. On appeal, Catchings argues that the district court erred in denying his motion by failing comply with Rule 11 and by not considering his allegation that counsel was ineffective before denying the motion. These arguments lack support in the record; therefore, we affirm the district court’s denial of Catchings’s motion to withdraw his guilty plea. We review for abuse of discretion the district court’s denial of a motion to withdraw a guilty plea. United States v. Wynn, 663 F.3d 847, 849 (6th Cir.2011). “A district court abuses its discretion where it relies on clearly erroneous findings of fact, or when it improperly applies the law or uses an erroneous legal standard.” United States v. Haygood, 549 F.3d 1049, 1052 (6th Cir.2008) (quotation marks and citation omitted). Under Rule 11(d), a defendant may withdraw a guilty plea if “the defendant can show a fair and just reason for requesting the withdrawal.” Fed. R.Crim.P. 11(d)(2)(B). In making the determination of whether the defendant has shown a “fair and just reason,” we consider the totality of the circumstances, including the factors set forth in United States v. Bashara: (1) the amount of time that elapsed between the plea and" }, { "docid": "14254804", "title": "", "text": "town in Mexico where “prostitution is something that occurs very frequently,” the district court commented that it was important to “send a message” that prostitution “is not going to be accepted in this country.” The court sentenced G. Carreto principally to 50 years’ imprisonment, J. Carreto principally to 50 years’ imprisonment, and Alonso principally to 25 years’ imprisonment. DISCUSSION Defendants appeal to this Court on several grounds. The issues we address below are the only ones that warrant detailed discussion. A. Defendants’ Efforts to Withdraw Their Guilty Pleas Defendants contend that the district court erred in denying their motion to withdraw their guilty pleas. We review a district court’s denial of a motion to withdraw a guilty plea for abuse of discretion. See United States v. Adams, 448 F.3d 492, 498 (2d Cir.2006). A plea may be withdrawn only if “the defendant can show a fair and just reason for requesting the withdrawal.” Fed.R.Crim.P. 11(d)(2)(B). To determine whether a defendant has met this burden, a court should consider: “(1) whether the defendant has asserted his or her legal innocence in the motion to withdraw the guilty plea; (2) the amount of time that has elapsed between the plea and the motion (the longer the elapsed time, the less likely withdrawal would be fair and just); and (3) whether the government would be prejudiced by a withdrawal of the plea.” United States v. Schmidt, 373 F.3d 100, 102-03 (2d Cir.2004). The district court can also rely on a defendant’s in-court sworn statements that he “understood the consequences of his plea, had discussed the plea with his attorney, [and] knew that he could not withdraw the plea.” United States v. Hernandez, 242 F.3d 110, 112 (2d Cir.2001). In denying defendants’ motions to withdraw their pleas here, the district court did not abuse its discretion. First, defendants did not assert their legal innocence in moving to withdraw their pleas. Second, defendants did not move to withdraw their pleas until approximately a year after they had pled guilty— and only after the Government had prepared for trial, a jury had been selected, and the" }, { "docid": "2658559", "title": "", "text": "both counts, and the court accepted and entered those pleas. Prior to sentencing, Mr. Bradley substituted his defense counsel and moved to withdraw the guilty pleas. Mr. Bradley advanced several grounds for withdrawal, among them, an argument that his plea was not knowing and voluntary because of misrepresentation or mistake as to criminal culpability on the § 924(c) offense and the void or voidable nature of the plea agreement based on this misrepresentation or mistake. The Government opposed Mr. Bradley’s motion to withdraw the pleas. With regard to the § 924(c) conviction, it argued that Mr. Bradley admitted to carrying the firearm in relation to the marijuana possession; it did not address the change in the predicate drug trafficking offense from the cocaine possession charged in the indictment to the simple marijuana possession relied upon in the plea agreement and at the change-of-plea hearing. The district court denied the motion to withdraw the pleas. It found that Mr. Bradley’s statements at the change-of-plea hearing established a factual basis for the § 924(c) offense and found Mr. Bradley’s other claims without merit. The court did not address the difference between the indictment and the plea agreement as to the predicate drug trafficking crime for the § 924(c) offense. The court later sentenced Mr. Bradley. He now appeals the district court’s denial of his motion to withdraw the pleas. The Government concedes error in originally opposing Mr. Bradley’s motion to withdraw the pleas. II DISCUSSION We review the district court’s denial of a motion to withdraw a guilty plea for an abuse of discretion. See United States v. Silva, 122 F.3d 412, 414-15 (7th Cir.1997). After a guilty plea is accepted, a defendant may withdraw it upon the showing of a “fair and just reason for requesting the withdrawal.” Fed. R.Crim.P. 11(d)(2)(B); see also United States v. Bennett, 332 F.3d 1094, 1099 (7th Cir.2003). In reviewing the decision of the district court, factual findings as to whether the defendant has presented a “fair and just reason” are upheld unless clearly erroneous. See Bennett, 332 F.3d at 1099. As we have recited in" }, { "docid": "8818977", "title": "", "text": "traders such as Kramer. See, e.g., Corrow, 119 F.3d at 804-05 (affirming conviction under § 1170 of individual Native American artifacts trader). In short, because the legal arguments Kramer contends his counsel should have raised are meritless, Torres’ failure to pursue them was neither deficient nor prejudicial under Strickland. We therefore reject Kramer’s claim that his guilty plea was involuntary due to his counsel’s ineffective assistance. B. Trial Comt’s Denial of Kramer’s Motion to Withdraw Plea Fed.R.Crim.P. 32(e) provides that if a defendant moves to withdraw his guilty plea prior to sentencing, “the court may permit the plea to be withdrawn if the defendant shows any fair and just reason.” The burden of demonstrating a “fair and just reason” rests with the defendant. See Gordon, 4 F.3d at 1572. In Gordon, we set out the relevant considerations for determining whether a defendant has shown a fair and just reason for permitting withdrawal of the defendant’s guilty plea: (1) whether the defendant has asserted his innocence; (2) prejudice to the government if the motion is granted; (3) defendant’s delay in filing the withdrawal motion; (4) inconvenience to the court if the motion is granted; (5) defendant’s assistance of counsel; (6) whether the plea was knowing and voluntary; and (7) the waste of judicial resources. Id ; see also United States v. Killingsworth, 117 F.3d 1159, 1161-62 (10th Cir.), cert. denied, - U.S. --, 118 S.Ct. 393, 139 L.Ed.2d 307 (1997). We review the district court’s denial of Kramer’s motion to withdraw his guilty plea for abuse of discretion. See Carr, 80 F.3d at 419. Although a defendant’s motion to withdraw a plea before sentencing should be “freely allowed” and “given a great deal of latitude,” id., we will not reverse absent a showing that the trial court acted “unjustly or unfairly.” Id. Applying the seven factors under Gordon, we believe that Kramer failed to demonstrate a fair and just reason for withdrawal of his plea. Although Kramer did assert his innocence, his quarrels with the statute, as we have discussed, are unavailing. Moreover, he does not dispute that he offered the" }, { "docid": "22903117", "title": "", "text": "and “willfully” meant, (2) that there was no evidence of misrepresentation by the government as to any witnesses, (3) that any “inconsistency” in the Agreement was adequately addressed during the Rule 11 colloquy, and (4) that Weaver’s, assertion of innocence alone did not entitle Weaver to withdraw her plea. Although during closing arguments Weaver’s counsel had argued that conversion of the loan proceeds for Weaver’s own use or benefit of another was also a required element of a § 1097(a) violation, the district court did not expressly address that issue. The district court ultimately sentenced Weaver to four months’ imprisonment and four months’ home detention. Weaver timely appealed both the denial of her motion to withdraw and her sentence. II. DISCUSSION A. Rule 32(e): Motion to Withdraw Weaver filed her motion to withdraw her plea pursuant to Federal Rule of Criminal Procedure 32(e), which provides that “[i]f a motion to withdraw a plea of guilty ... is made before sentence is imposed, ... the court may permit the plea to be withdrawn if the defendant shows any fair and just reason.” Fed.R.Crim.P. 32(e). The factors to be considered in evaluating whether a guilty plea may be withdrawn include the following: “(1) whether close assistance of counsel was available; (2) whether the plea was knowing and voluntary; (3) whether judicial resources would be conserved; and (4) whether the government would be prejudiced if the defendant were allowed to withdraw his plea.” United States v. Buckles, 843 F.2d 469, 471 (11th Cir.1988) (internal citation omitted). Weaver contends, inter alia, that her plea was not knowing or voluntary because (1) conversion is an essential element of her § 1097(a) violation, and (2) she was not advised about the conversion element before entering her plea. Section 1097(a) provides that “[a]ny person who knowingly and willfully embezzles, misapplies, steals, obtains by fraud, false statement, or forgery, or fails to refund” financial aid funds provided or insured by the federal government is subject to criminal liability. 20 U.S.C. § 1097(a) (emphasis added). A 1992 amendment added “or fails to refund” to § 1097(a). This Court previously" }, { "docid": "23196021", "title": "", "text": "Cir.1985). Specifically, Federal Rule of Criminal Procedure 32(d) provides that if a defendant moves to withdraw the plea prior to sentencing, “the court may permit withdrawal of the plea upon the showing by the defendant of any fair and just reason.” (emphasis added.) In view of the underscored permissive language, unless the denial of appellant’s motion amounts to an abuse of discretion, we must affirm the trial court. To help us make this determination, we consider the three factors which the former Fifth Circuit articulated in United States v. Pressley, 602 F.2d 709, 711 (5th Cir.1979), (1) whether close assistance of counsel was available; (2) whether the original plea was knowing and voluntary; and (3) whether judicial resources would be conserved. We find no abuse of discretion when we apply the Pressley factors to the facts of this case. First, appellant was ably represented by counsel during the original plea taking proceeding. Second, the trial court satisfied Rule ll’s requirement of ensuring that appellant’s plea was knowing and voluntary. Third, retrying appellant would be a prodigal use of judicial resources in light of the fact that even without him, a central figure in the drug conspiracy, the trial lasted nearly a month. Based on these considerations, we affirm the trial court’s denial of the Rule 32(d) motion. 3. Evidentiary Hearing on Motion to Withdraw Appellant argues that, at the very least, the trial court should have conducted an evidentiary hearing before ruling on his motion to withdraw his guilty plea. In light of the extensive Rule 11 inquiries which the trial court made before accepting appellant’s plea, we do not believe that its refusal to conduct an evidentiary hearing amounts to an abuse of discretion. Cf United States v. Russell, 776 F.2d 955, 959 (11th Cir.1985) (no evidentiary hearing required on post-sentence motion to withdraw plea when Rule 11 inquiry demonstrates that plea entered voluntarily and knowingly.) Appellant Sanchez-Paz Sanchez-Paz claims: (1) the trial court erred by denying his motion for judgment of acquittal; (2) the trial court erred by restricting appellant’s cross-examination of a government witness; (3) the trial" }, { "docid": "22779292", "title": "", "text": "to withdraw her guilty plea without giving reasons and in not holding an evidentiary hearing. A district court’s denial of a motion to withdraw a guilty plea is reviewed for abuse of discretion. United States v. Lampazianie, 251 F.3d 519, 523 (5th Cir.2001) (citation omitted); see also United States v. Mann, 161 F.3d 840, 860 (5th Cir.1998) (“[A] district court abuses its discretion if it bases its decision on an error of law or a clearly erroneous assessment of the evidence.”). A defendant does not have an absolute right to withdraw her guilty plea. United States v. Brewster, 137 F.3d 853, 857 (5th Cir.1998). However, a district court may, in its discretion, permit withdrawal before sentencing if the defendant can show a “fair and just reason.” Id. (citing former Fed.R.Crim.P. 32(e), now located at Rule 11(d)(2)). The defendant bears the burden of establishing a fair and just reason for withdrawing his plea. Id. at 858. This Circuit considers seven factors when deciding whether the defendant has met this standard: whether (1) the defendant asserted his innocence, (2) withdrawal would cause the government to suffer prejudice, (3) the defendant delayed in filing the motion, (4) withdrawal would substantially inconvenience the court, (5) close assistance of counsel was available, (6) the original plea was knowing and voluntary, and (7) withdrawal would waste judicial resources. United States v. Carr, 740 F.2d 339, 343-44 (5th Cir.1984). The district court’s decision to permit or deny the motion is based on the totality of the circumstances. Brewster, 137 F.3d at 858 (citation omitted). And the district court is not required to make findings as to each of the Carr factors. Id. (citing United States v. Badger, 925 F.2d 101, 104 (5th Cir.1991)). Although defendants are not entitled to an evidentiary hearing, a hearing is required “when the defendant alleges sufficient facts which, if proven, would justify relief.” United States v. Mergist, 738 F.2d 645, 648 (5th Cir.1984) (citation omitted). However, a district court’s decision not to hold an evidentiary hearing is reviewed for abuse of discretion. See United States v. Harrelson, 705 F.2d 733, 737 (5th" }, { "docid": "2658560", "title": "", "text": "Mr. Bradley’s other claims without merit. The court did not address the difference between the indictment and the plea agreement as to the predicate drug trafficking crime for the § 924(c) offense. The court later sentenced Mr. Bradley. He now appeals the district court’s denial of his motion to withdraw the pleas. The Government concedes error in originally opposing Mr. Bradley’s motion to withdraw the pleas. II DISCUSSION We review the district court’s denial of a motion to withdraw a guilty plea for an abuse of discretion. See United States v. Silva, 122 F.3d 412, 414-15 (7th Cir.1997). After a guilty plea is accepted, a defendant may withdraw it upon the showing of a “fair and just reason for requesting the withdrawal.” Fed. R.Crim.P. 11(d)(2)(B); see also United States v. Bennett, 332 F.3d 1094, 1099 (7th Cir.2003). In reviewing the decision of the district court, factual findings as to whether the defendant has presented a “fair and just reason” are upheld unless clearly erroneous. See Bennett, 332 F.3d at 1099. As we have recited in the past, there is no absolute right to withdraw a guilty plea, see United States v. Abdul, 75 F.3d 327, 329 (7th Cir.1996), and a defendant seeking to do so faces an “uphill battle” after a thorough Rule 11 colloquy, Bennett, 332 F.3d at 1099. Although the Government’s concession makes Mr. Bradley’s burden somewhat easier to bear, this court has an independent obligation to ensure that guilty pleas are not “lightly discarded” because of the “ ‘presumption of verity’ ” accorded the defendant’s admissions in a Rule 11 colloquy. Silva, 122 F.3d at 415 (quoting Blackledge v. Allison, 431 U.S. 63, 74, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977); United States v. Groll, 992 F.2d 755, 758 (7th Cir.1993)). Nonetheless, we accept the Government’s confession of error as to its position in the district court proceedings, and we agree with the parties that the district court abused its discretion in denying Mr. Bradley permission to withdraw his pleas. Mr. Bradley contends that his guilty plea violated due process because it was not knowing and voluntary." }, { "docid": "23365899", "title": "", "text": "right to appeal his sentence either directly or collaterally, and that the charge to which he was pleading guilty carried a minimum mandatory sentence of ten years and a maximum sentence of life imprisonment. The probation officer prepared a Pre-sentence Investigation Report recommending that Pease be sentenced as a career offender pursuant to U.S.S.G. § 4B1.1 because Pease had prior convictions for delivery of cocaine and for resisting arrest with violence. At the sentencing hearing Pease objected that his attorney had not advised him that he would be sentenced as a career offender, and asked for more time to consult with counsel. The district court continued the sentencing, and Pease filed a motion to withdraw his guilty plea. After an evidentiary hearing the district court denied Pease’s motion. II. DISCUSSION A. The Motion to Withdraw Guilty Plea Pease argues that the district court erred in denying his motion to withdraw the guilty plea. We will reverse a district court’s denial of a motion to withdraw a guilty plea only if it is an abuse of discretion. United States v. Medlock, 12 F.3d 185, 187 (11th Cir.1994). Pease maintains that he relied upon counsel’s prediction that his potential sentence under the plea agreement would be anywhere from five to ten years. In the calculation of Pease’s potential sentence, Pease’s attorney failed to uncover previous convictions for delivery of cocaine and for resisting arrest with violence. Pease argues that his counsel was ineffective, justifying the withdrawal of his guilty plea. In evaluating a defendant’s motion to withdraw a guilty plea, the court must consider “(1) whether close assistance of counsel was available; (2) whether the plea was knowing and voluntary; (3) whether judicial resources would be conserved; and (4) whether the government would be prejudiced if the defendant were allowed to withdraw his plea.” United States v. Buckles, 843 F.2d 469, 472 (11th Cir.1988). Pease argues generally that his plea was involuntary because he did not understand how severe the sentence under the plea agreement might be. However, it is clear from the transcript of the plea hearing that the magistrate judge" }, { "docid": "23114624", "title": "", "text": "of the consequences of entering a plea of guilty. Sentencing for both convictions took place on January 29, 1990. II. Request to Withdraw Plea On the day of sentencing, Badger asked the district court for permission under Fed. R.Crim.P. 32(d) to withdraw his guilty pleas to both the conspiracy count and the failure to appear count. The district judge denied these requests. We now affirm those decisions. Fed.R.Crim.P. 32(d) allows a district judge to permit a defendant to withdraw a guilty plea prior to sentencing upon the showing of “any fair and just reason.” We will reverse a lower court’s denial of a motion to withdraw a guilty plea only for abuse of discretion. United States v. Clark, 917 F.2d 177, 180 (5th Cir.1990); United States v. Daniel, 866 F.2d 749, 752 (5th Cir.1989). Although Rule 32(d) should be construed and applied liberally, there is no absolute right to withdraw a guilty plea. United States v. Benavides, 793 F.2d 612, 616 (5th Cir.), cert. denied, 479 U.S. 868, 107 S.Ct. 232, 93 L.Ed.2d 158 (1986). In United States v. Carr, 740 F.2d 339, 343-44 (5th Cir.1984), cert. denied, 471 U.S. 1004, 105 S.Ct. 1865, 85 L.Ed.2d 159 (1985), we set out seven factors for the district courts to consider when ruling on a Rule 32(d) motion: (1) whether the defendant has asserted his innocence; (2) whether withdrawal would prejudice the Government; (3) whether the defendant delayed in filing the motion and, if so, the reason for the delay; (4) whether withdrawal would substantially inconvenience the court; (5) whether adequate assistance of counsel was available to the defendant; (6) whether the plea was knowing and voluntary; and (7) whether withdrawal would waste judicial resources. No single factor or combination of factors mandates a particular result. Instead, the district court should make its determination based on the totality of the circumstances. Id. at 344. Although Badger points out that the district judge did not make specific findings on each of the Carr factors, that circumstance does not establish that the district judge abused his discretion by denying Badger’s motions. By enumerating those" }, { "docid": "22291415", "title": "", "text": "25, 2002, the district court conducted a hearing on this motion. The court concluded that Freixas’s plea had been knowing and voluntary and that there was no justification for the withdrawal of that plea. Accordingly, it denied appellant’s motion. At sentencing, the district court denied Freixas’s motion for an offense level reduction based on her minor or minimal role in the conspiracy. However, it imposed a 2 level enhancement for obstruction of justice based on the inconsistencies between her sworn testimony during her original plea colloquy and her statements at the hearing on her motion to withdraw her guilty plea. The court ultimately sentenced appellant to 37 months imprisonment. As we explained in Najjar: Pursuant to Fed.R.Crim.P. 32(e), a district court may permit a defendant to withdraw his plea before the district court imposes sentence for “any fair and just reason.” In determining whether a defendant has shown a fair and just reason, the district court evaluates the totality of the circumstances, including “(1) whether close assistance of counsel was available; (2) whether the plea was knowing and voluntary; (3) whether judicial resources would be conserved; and (4) whether the government would be prejudiced if the defendant were allowed to withdraw his plea.” 283 F.3d at 1309 (quoting United States v. Buckles, 843 F.2d 469, 472 (11th Cir.1988)); see also United States v. Weaver, 275 F.3d 1320, 1327-28 (11th Cir.2001), cert. denied, 536 U.S. 961, 122 S.Ct. 2666, 153 L.Ed.2d 840 (2002). Moreover, “[w]hen a district court accepts a guilty plea, it must ensure that the three core concerns of Rule 11 of the Federal Rules of Criminal Procedure have been met: ‘(1) the guilty plea must be free from coercion; (2) the defendant must understand the nature of the charges; and (3) the defendant must know and understand the consequences of his guilty plea.’ ” United States v. Lejarde-Rada, 319 F.3d 1288, 1289 (11th Cir.2003) (quoting United States v. Mosley, 173 F.3d 1318, 1322 (11th Cir.1999)). In reviewing a court’s refusal to permit the withdrawal of a guilty plea, we defer to its application of these criteria, and we" }, { "docid": "22270216", "title": "", "text": "However, he adds, the district court granted his second motion for dental care at the conclusion of the hearing at which he entered his guilty plea. He suggests that the granting of the motion supports his contention that the prosecutor improperly offered him dental care as an inducement for the guilty plea. Under Fed.R.Crim.P. 32(e), “[i]f a motion to withdraw a plea of guilty or nolo contendere is made before sentence is imposed, the court may permit the plea to be withdrawn if the defendant shows any fair and just reason.” It is the defendant’s burden to establish a “fair and just reason” for the withdrawal of the plea. United States v. Gordon, 4 F.3d 1567, 1572 (10th Cir.1993). In Gordon, we set forth seven factors that courts should consider in deciding whether to allow a defendant to withdraw a guilty plea: (1) whether the defendant has asserted his innocence; (2) whether the government will be prejudiced if the motion is granted; (3) whether the defendant has delayed in filing the motion; (4) the inconvenience to the court if the motion is granted; (5) the quality of the defendant’s assistance of counsel; (6) whether the plea was knowing and voluntary; (7) whether the granting of the motion would cause a waste of judicial resources. See Gordon, 4 F.3d at 1572. Although we engage in de novo review of the question of whether the plea was knowing and voluntary, see United States v. Libretti, 38 F.3d 523, 529 (10th Cir.1994), we review the district court’s denial of the motion to withdraw the guilty plea for an abuse of discretion, considering the seven factors outlined in Gordon. See United States v. Carr, 80 F.3d 413, 419 (10th Cir.1996). We agree with the district court that Mr. Black’s guilty plea was knowing and voluntary. Although there appears to be no dispute that Mr. Black had a toothache when he pleaded guilty, Mr. Black has presented no evidence (other than his own assertions in his motion to withdraw his plea) that the toothache was so severe that it interfered with his ability to consent" }, { "docid": "4214626", "title": "", "text": "of Motion to Withdraw Guilty Plea Johnson moved on the day of re-sentencing (some two years after entry of the plea) to withdraw his plea. The court denied the motion. Under Fed.R.Crim.P. 32(d), “the defendant has the burden of showing a ‘fair and just reason’ for withdrawal of his plea.” United States v. Buckles, 843 F.2d 469, 471 (11th Cir.1988), cert. denied, 490 U.S. 1099, 109 S.Ct. 2450, 104 L.Ed.2d 1005 (1989). “In determining whether the defendant has met this burden, the district court may consider the totality of the circumstances surrounding the plea.” Id. at 471-72. The decision to allow withdrawal of a guilty plea is left to the sound discretion of the trial court and may be reversed only if it is arbitrary or unreasonable. Id. at 471. The only argument Johnson made for withdrawing his plea is that the district court should have known that Johnson did not knowingly plead to the conspiracy count. Johnson is a high school graduate, attended technical school for two years, and admits to having no trouble reading and understanding English. The district court held an eviden-tiary hearing on the motion. Johnson argues that the transcript of the plea hearing was wrong wherever it said that Johnson was pleading guilty to both counts. The court determined that the transcript was correct. Johnson has not shown that the district court was in error. The denial of the motion was neither arbitrary nor unreasonable. Ineffective Assistance of Counsel Johnson argues that his trial counsel “failed to require a factual basis for all elements of the conspiracy” and “failed to properly apply” the Guidelines Manual to the charges. The argument is baseless, first, because there was no legal error in connection with the entry of the plea, and, second, because the sentence imposed, 136 months, was within the range of the 121-150 months estimated by his counsel at the plea-taking hearing. The judgment is AFFIRMED." }, { "docid": "4214625", "title": "", "text": "(11th Cir.1992); see also United States v. Musa, 946 F.2d 1297, 1302-03 (7th Cir.1991) (sufficient factual basis for plea where defendant disputed the amount of drugs but not the facts of the offense). Finally, the record amply supports the plea. At the plea-taking hearing, counsel for the government recited at length what the government’s evidence would show at trial. Among other things, the government offered to prove that Johnson’s alleged co-conspirator Miles had previously dealt with the government agent, that Miles and Johnson had conversations about that dealing, that Miles had told him that the agent paid in $100 bills, and that Miles was uncomfortable dealing with the agent whom he suspected of being a police officer. Johnson delivered 36.8 grams of crack to an agent and offered to deliver three ounces the next day. Johnson admitted these facts to be true and correct. We conclude that the district court did not abuse her discretion in finding a factual basis for the plea. See United States v. Lopez, 907 F.2d 1096, 1100-01 (11th Cir.1990). Denial of Motion to Withdraw Guilty Plea Johnson moved on the day of re-sentencing (some two years after entry of the plea) to withdraw his plea. The court denied the motion. Under Fed.R.Crim.P. 32(d), “the defendant has the burden of showing a ‘fair and just reason’ for withdrawal of his plea.” United States v. Buckles, 843 F.2d 469, 471 (11th Cir.1988), cert. denied, 490 U.S. 1099, 109 S.Ct. 2450, 104 L.Ed.2d 1005 (1989). “In determining whether the defendant has met this burden, the district court may consider the totality of the circumstances surrounding the plea.” Id. at 471-72. The decision to allow withdrawal of a guilty plea is left to the sound discretion of the trial court and may be reversed only if it is arbitrary or unreasonable. Id. at 471. The only argument Johnson made for withdrawing his plea is that the district court should have known that Johnson did not knowingly plead to the conspiracy count. Johnson is a high school graduate, attended technical school for two years, and admits to having no trouble" }, { "docid": "23056112", "title": "", "text": "conclude that the facts of this case do not satisfy the threshold inquiry because the district court did not vary from the procedures required by Rule 11 with respect to count two. See Johnson, 1 F.3d at 302 (explaining that we do not reach an analysis of whether sentencing court’s variance from procedures required by Rule 11 affected substantial rights of defendant until .we find that sentencing court actually varied from mandated procedures). Ill Still also appeals the district court’s denial of his motion pursuant to Fed.R.CRIM. P. 32(e) to withdraw his guilty plea to count three. A motion to withdraw a guilty plea is committed to the discretion of the district court and its decision will not be disturbed absent an abuse of discretion. United States v. Benavides, 793 F.2d 612, 616 (5th Cir.), cert. denied, 479 U.S. 868, 107 S.Ct. 232, 93 L.Ed.2d 158 (1986). Upon a showing of a “fair and just reason,” a district court may permit a defendant to withdraw a guilty plea at any time before sentencing. Fed.R.Crim. P. 32(e); Benavides, 793 F.2d at 616. Though Rule 32 is to be construed and applied liberally, there is no absolute right to withdraw a guilty plea. Benavides, 793 F.2d at 616. In ruling on the motion, the district court considers: (1) whether the defendant has asserted his innocence; (2) whether withdrawal would prejudice the government; (3) whether the defendant delayed in filing the motion, and, if so, the reason for the delay; (4) whether withdrawal would substantially inconvenience the court; (5) whether close assistance of counsel was available to the defendant; (6) whether the plea was knowing and voluntary; and (7) whether withdrawal would waste judicial resources. United States v. Hurtado, 846 F.2d 995, 997 (5th Cir.), cert. denied, 488 U.S. 863, 109 S.Ct. 163, 102 L.Ed.2d 133 (1988). However, no single factor or combination of factors mandates a particular result. United States v. Badger, 925 F.2d 101, 104 (5th Cir.1991). Instead, the district court should make its determination based on the totality of the circumstances. Id. The burden of establishing a fair and just" } ]