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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 05-10864 ELEVENTH CIRCUIT
MAY 22, 2006
Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 03-23189-CV-JAL
EDDIE MILTON GAREY,
Petitioner-Appellant,
versus
FEDERAL DETENTION CENTER, MIAMI,
Richard Stiff Warden,
WILBUR D. OWENS,
U.S. District Court Judge (M.D. GA),
MICHAEL G. THOMPSON,
F.B.I. Agent,
SCOTT C. HUGGINS,
Court appointed counsel,
U.S. MARSHAL’S SERVICE, et al.,
Respondents-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(May 22, 2006)
Before BIRCH and MARCUS, Circuit Judges, and NANGLE*, District Judge.
PER CURIAM:
Eddie Milton Garey, a federal prisoner, appeals the denial of his habeas
corpus petition. His petition was filed on December 1, 2003 pursuant to 28 U.S.C.
§ 2241 while he was in pretrial detention. Garey was being detained on federal
charges brought in the U.S. District Court for the Middle District of Georgia. He
was charged with making bomb threats in Georgia during September of 2003 in
violation of 18 U.S.C. §§ 513, 844(e), 922(g)(1), 1951, and 2332(a)(2).
Garey filed the instant “Emergency Petition for Writ of Habeas Corpus”
pursuant to 28 U.S.C. §§ 2241-2244, claiming that the respondents violated: (1)
his Fourth Amendment rights (a) during the investigation that led to his arrest, (b)
in securing the warrant, and (c) in publicizing his arrest; (2) his Fifth and
Fourteenth Amendment rights to procedural and substantive due process when (a)
they secured the warrant for his arrest, (b) they punished him for his refusal to
waive his constitutional rights, (c) they abused him and mistreated him during his
incarceration, and (d) the U.S. District Court for the Middle District of Georgia
issued a ruling that denied him his liberty interest; (3) his Sixth Amendment rights
*
Honorable John F. Nangle, United States District Judge for the Eastern District of
Missouri, sitting by designation.
2
to (a) effective assistance of counsel, (b) confrontation of his accusers, and (c) a
speedy trial; and (4) First, Fourth, Ninth, and Fourteenth Amendment rights to (a)
be free from government intrusion into his thoughts and beliefs, (b) petition for
redress of grievances, and (c) be free from forceful mental evaluations and
medication.
Gary’s petition alleged, among other things, that his constitutional right to
be present at a hearing on the government’s motion for a psychiatric examination
had been violated. The government sought psychiatric evaluation of Garey in
order to assist the court in a determination of Garey’s competence to stand trial.
The district court granted the motion over Garey’s objections and without a
hearing. Garey was transported to the Federal Detention Center in Miami, Florida
for the evaluation.
The magistrate judge, relying upon Falcon v. United States Bureau of
Prisons, 52 F.3d 137 (7th Cir. 1995), found that Garey was not entitled to habeas
corpus relief because all of his claims related to the pending criminal charges, and
should have been raised in his criminal case. The district court adopted the
magistrate’s recommendation and dismissed Garey’s petition. Citing Government
of the Virgin Islands v. Bolones, 427 F.2d. 1135, 1136 (1st Cir. 1970), the district
court noted that “where a defendant is awaiting trial, the appropriate vehicle for
3
violations of the defendant’s constitutional rights are pre-trial evidentiary motions,
not habeas petitions.” R72 at 4. The court concluded that an “adequate and
unexhausted” remedy was available in the criminal case, and therefore Garey was
not entitled to habeas corpus relief. R72 at 5. In December 2004, a jury convicted
Garey on all counts.
On appeal of his §2241 case, Garey argues that the district court erred by
relying upon Falcon, which is distinguishable from his case. Garey argues that
habeas corpus relief is an appropriate remedy despite the fact that his criminal case
was pending, and that relief should be granted on the merits of his petition.
We review de novo the district court’s denial of habeas relief under § 2241.
Cook v. Wiley, 208 F.3d 1314, 1317 (11th Cir. 2000). However, a case must be
dismissed as moot if the issues presented are no longer ‘live’ such that the Court
cannot give meaningful relief. Soliman v. U.S. ex rel. INS, 296 F.3d 1237, 1242
(11th Cir. 2002). Therefore, “[i]f events that occur subsequent to the filing of a
lawsuit or an appeal deprive the court of the ability to give the plaintiff or
appellant meaningful relief, then the case is moot and must be dismissed.” Id.
As to Garey’s claim which relates to his transfer for psychiatric evaluation,
that claim is now moot. Garey’s transfer for evaluation ceased upon his transfer
back to the Middle District of Georgia for trial and sentencing. Moreover, the
4
government states that Garey was credited for time spent in evaluation towards his
final sentence. Because Garey’s transfer ended and he was credited for time spent
in evaluation, this Court cannot provide Garey with meaningful relief in the
context of his § 2241 petition. Unless this case falls within the mootness
exception, it must be dismissed as moot.
Although there is an exception to the mootness doctrine when the action
being challenged by the lawsuit is capable of repetition yet evading review, this
Court has held that “this exception is narrow, and applies only in exceptional
situations.” Soliman v. U.S. ex rel. INS, 296 F.3d 1237, 1242 (11th Cir. 2002).
See Weinstein v. Bradford, 423 U.S. 147 (1975) (per curiam). To invoke the
exception, Garey must show that “(1) there [is] a reasonable expectation or a
demonstrated probability that the same controversy will recur involving the same
complaining party, and (2) the challenged action is in its duration too short to be
fully litigated prior to its cessation or expiration.” Id. at 1242-3.
In the current case, there is no “reasonable expectation” or “demonstrated
probability” that the same controversy will recur involving Garey. Although his
criminal case is on direct appeal to this Court, there is neither a reasonable
expectation nor a demonstrated probability that the case will be overturned and the
district court will order another psychological evaluation to determine Garey’s
5
competence to stand trial a second time. Appellant has failed to satisfy the first
prong of the exception, and therefore fails to qualify for the mootness exception.
As to the remainder of Garey’s claims in his § 2241 petition, this Court
affirms the judgment and ruling of the district court that these claims were not
properly brought pursuant to 18 U.S.C. § 2241, but should have been raised in his
pending criminal case.
When a case, or an issue in a case, becomes moot on appeal, the Court of
Appeals must not only dismiss the case, but also vacate the district court's order.
This practice “clears the path for future relitigation of the issues between the
parties and eliminates a judgment, review of which was prevented through
happenstance.” Soliman, 296 F.3d at 1243 (quoting Atlanta Gas Light Co. v. Fed.
Energy Regulatory Comm'n, 140 F.3d 1392, 1402 (11th Cir.1998)). Accordingly,
as to Garey’s claims regarding his transfer for psychiatric evaluation, we vacate
the district court’s order for lack of jurisdiction and dismiss Garey’s appeal as
moot. As to all other claims raised in the instant § 2241 petition, we affirm the
judgment of the district court.
AFFIRMED IN PART, VACATED IN PART.
6
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431 A.2d 1237 (1981)
STATE of Vermont
v.
Sandra SIDWAY.
No. 64-79.
Supreme Court of Vermont.
April 14, 1981.
Motion for Reargument Denied April 28, 1981.
M. Jerome Diamond, Atty. Gen., and Susan R. Harritt, Asst. Atty. Gen., Montpelier, for plaintiff.
*1238 James L. Morse, Defender General, William A. Nelson, Appellate Defender, and Jacqueline Majoros, Law Clerk on the brief, Montpelier, for defendant.
Before BARNEY, C. J., BILLINGS, HILL and UNDERWOOD, JJ., and DALEY, J. (Ret.), Specially Assigned.
UNDERWOOD, Justice.
This is an appeal from the verdict of the jury and a judgment and sentence of the District Court of Vermont, Lamoille Circuit, Unit No. 3, convicting the defendant of the crime of leaving the scene of an accident. 23 V.S.A. § 1128. The sentence of 0-6 months was suspended, she was fined $200, and granted probation. The sentence was stayed pending appeal.
The defendant, who had no valid operator's license, was driving her mother's car home from a bistro in Stowe, over a highway known as the River Road, at about 11:00 P.M. on January 15, 1978, when she lost control of her car. The weather was fair and the dirt road surface was dry and hard. Her car left the travelled portion of the highway and proceeded approximately 200 feet through a field of uncut vegetation some three to four feet high, crossed a portion of a driveway and struck an unoccupied parked car. It then crossed a lawn and returned to the highway.
The unoccupied car was parked in the driveway about 80 feet from the River Road and 40 feet from the home of its owner. The force of the impact moved it approximately ten feet. The damage to that car was to the right rear fender and bumper, a tail light was smashed out, and the frame was bent. Chrome trim, gravel and broken glass lay on the ground at the accident scene. There were traces of maroon paint on its green fender.
The occupants of the house, who were preparing to retire for the night and still had their lights on, heard a noise which they described as a loud crash. The children looked out and saw that the family car had been damaged. The father saw a car on the highway pause momentarily and then drive off.
The defendant testified that she had no knowledge at the time that she had struck or damaged anyone else's car. She did note that her car steered improperly after she returned to the highway and kept swerving to one side, but she surmised that the problem arose when she drove over some rocks in the field. When she got home, the defendant told her mother, the owner of the car, that she had wrecked it. She then went to the hospital where she remained until the following morning.
The defendant's car sustained extensive damage to its right side, and the passenger door was caved in to the extent that it could not be opened. A window was completely smashed out, and broken glass was scattered over the interior of the car. The car's maroon paint matched that found on the fender of the unoccupied car.
The next day the defendant's brother-in-law, who had made his own investigation of the incident, informed her of the accident. The defendant insists that this was the first time she became aware of the accident.
The sole issue before us, and one of first impression in this state, is whether the defendant need have had actual knowledge that she was involved in an accident causing damage, or only such knowledge as would ordinarily cause a reasonably prudent person, under like circumstances, to conclude that an impact had occurred and that damage had resulted.
23 V.S.A. § 1128 provides:
The operator of a motor vehicle who has caused or is involved in an accident resulting in injury to any person or property, other than the vehicle then under his control or its occupants, shall immediately stop and render any assistance reasonably necessary. He shall give his name, residence, license number and the name of the owner of the motor vehicle to any party whose person or property is injured and to any enforcement officer. A person who violates this section shall be fined not more than $2,000.00 or imprisoned for not more than two years, or both.
*1239 This is popularly known as a "hit and run" statute and is primarily directed against a callous class known as "hit and run" drivers. Its legislative purpose is to prohibit drivers of motor vehicles from seeking to evade civil or criminal liability by escaping before their identity can be established, and from leaving persons injured, abandoned and destitute of first aid or medical care. The duty imposed by the statute on the driver involved in a collision is not a passive one. It requires that he take affirmative action by stopping to give aid and information. State v. Severance, 120 Vt. 268, 272-73, 138 A.2d 425, 428 (1958).
Our hit and run statute is silent as to whether actual knowledge of impact is a necessary element of the offense. In interpreting the legislative intent behind a penal statute such as this, the interpretation adopted must be one most favorable to the accused. It should not, however, be construed so strictly as to defeat its purpose or lead to an absurd consequence. State v. Cushman, 133 Vt. 121, 123, 329 A.2d 648, 650 (1974). Furthermore, since the statute prescribes an affirmative course of action on the part of the driver, it is implicit therein that there be an element of recognition or awareness on the part of the driver of the fact of an accident. State v. Wall, 206 Kan. 760, 764, 482 P.2d 41, 45 (1971). The offense of leaving the scene of an accident makes little sense unless knowledge of the occurrence of an accident is a part of that offense.
A majority of the states (see citations, infra) have hit and run statutes, and many of these statutes, like ours, contain no express requirement of knowledge on the part of the driver of the car that he was involved in an accident. Most courts, however, in interpreting the legislative intent behind these statutes, have taken the view that actual knowledge of the collision is an essential element of the offense. They have rejected the notion that the omission of the word "knowingly" makes those hit and run statutes strict liability offenses.
The defendant rested her entire defense on the claim that she did not know at the time of the alleged accident that she had struck and damaged another car. She contends that the trial court, therefore, should have granted her motion for an acquittal or should have charged the jury, as she requested, that she could not be convicted unless they found from the evidence that she had actual knowledge of the impact.
The trial court denied the defendant's motion for an acquittal and did not charge the jury as she requested. Instead, the trial court gave the following instruction on the issue of knowledge:
[K]nowledge that an accident occurred and some impact of some kind, is an element of the offense of leaving the scene of an accident ... However, it is not absolute or positive knowledge of damage to property or injury to another person that the law requires. Rather, the State must only prove that the circumstances were such that a reasonable person, situated as the defendant was at the time, would have believed that the impact had resulted in damage or injury to another. In other words, if the defendant was aware of an impact or accident under such circumstances as would ordinarily cause a reasonable person to conclude that injuries or damage had resulted, then it was her duty (1) to stop immediately, and (2) to investigate and then obey the Statute.
While perhaps technically correct when examined with extreme care, we feel that the instruction, as presented to the jury, was confusing. It gave the impression that the jury could convict upon a finding of either actual or constructive knowledge of impact on the part of the defendant. As such, it was overly broad and thus incorrect.
Actual knowledge on the part of the accused that she was involved in an accident is an essential element of the offense. However, since direct evidence of actual knowledge on the part of the defendant is not normally available, a majority of jurisdictions (see citations, infra) permit the necessary *1240 knowledge to be imputed to the defendant by the use of circumstantial evidence. Evidence, for instance, that the damage or impact was so great that it could be inferred that the defendant must have been aware that she was involved in an accident is enough. In certain circumstances, proof of an impact alone is sufficient to raise an inference of knowledge of injury on the part of the fleeing driver and to thereby permit the prosecution's case to withstand a motion for a judgment of acquittal. It is for the jury to determine whether the probative weight of the inference of knowledge arising from proof of impact outweighs the probative force of the defendant's claim of lack of knowledge. People v. Nunn, 65 Ill.App.3d 981, 22 Ill. Dec. 607, 382 N.E.2d 1305 (1978); State v. Wall, supra; State v. Feintuch, 150 N.J.Super. 414, 375 A.2d 1223 (1977); State v. Lemme, 104 R.I. 416, 244 A.2d 585 (1968); Herchenbach v. Commonwealth, 185 Va. 217, 38 S.E.2d 328 (1946); State v. Martin, 73 Wash.2d 616, 440 P.2d 429 (1968). See generally Annot., 23 A.L.R.3d 497 (1969); 7A Am.Jur.2d Automobiles and Highway Traffic § 290; 61A C.J.S. Motor Vehicles § 674(2)(b). We therefore hold that the actual knowledge of impact may be proven either by means of direct or circumstantial evidence.
The hit and run statute requires not only knowledge of an accident, but also knowledge of resultant injury to either the person or property of another. With respect to the requisite knowledge of such injury or damage, the burden of proof is not so stringent. We hold that the State need only prove that element of the offense by a showing of constructive knowledge on the part of the defendant. It is not necessary to show, by direct or circumstantial evidence, that the defendant had actual knowledge of any resultant injury or damage. If an impact occurs under such circumstances that a reasonable person would anticipate injury to person or property, knowledge of that fact is imputed to the driver. People v. Holford, 63 Cal.2d 74, 79-80, 403 P.2d 423, 426-27, 45 Cal.Rptr. 167, 170-71 (1965); Herchenbach v. Commonwealth, supra, 185 Va. at 217, 38 S.E.2d at 329; State v. Wall, supra; People v. Nunn, supra.
Lack of knowledge, however, of the accident and of the resultant injury or damage is a complete defense to a violation of the hit and run statute.
Notwithstanding the above holding, the improper jury instruction is not grounds for a reversal in this case. Such error is only grounds for reversal where prejudice is shown, and the burden of proof on the issue of prejudice is on the party alleging error. Penna v. State Highway Board, 122 Vt. 290, 293-94, 170 A.2d 630, 633-34 (1961); Meyette v. Canadian Pacific Ry., 110 Vt. 345, 356, 6 A.2d 33, 39 (1939); Hill v. Bedell, 98 Vt. 82, 85, 126 A. 493, 494 (1924). In view of the facts of this case, no prejudice is shown.
The defendant was alert enough to navigate her car successfully both to and from the scene of the accident. The impact was sufficient to move the unoccupied car ten feet, seriously damage both cars and shower the defendant with glass. Reasonable minds cannot differ on the issue of actual knowledge. The defendant must have been aware of the impact. Furthermore, the impact was clearly of such severity as to give rise to constructive knowledge of damage to the property of another. All other elements having been sufficiently proven, the conviction must stand.
Judgment affirmed.
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641 F.Supp. 353 (1986)
Maria Lina SANTOS, Plaintiff,
v.
RUSH-PRESBYTERIAN-ST. LUKE'S MEDICAL CENTER, Defendant.
No. 85 C 7598.
United States District Court, N.D. Illinois, E.D.
July 23, 1986.
Maria Lina Santos, pro se.
Bruce R. Alper, Vedder, Price, Kaufman & Kammholz, Chicago, Ill., for defendant.
MEMORANDUM AND ORDER
MORAN, District Judge.
Maria Santos, a 46-year old Filipino woman, was a nurse at Rush-Presbyterian-St. Luke's Medical Center (Rush) from December 1974 until September 28, 1983. She is suing Rush pro se under Title VII, 42 U.S.C. § 2000e et seq., and the Age Discrimination in Employment Act (ADEA),[1] for discrimination which occurred during her employment and which led to her discharge, as well as for retaliation for filing an EEOC charge. Rush has moved for dismissal of the age claims and some of the national origin discrimination claims, all on procedural grounds.
*354 FACTS
For purposes of the motion we take the facts alleged in plaintiffs EEOC charge and amended complaint as true.
Plaintiff worked at Rush as a staff nurse under a Ms. Ann Crudele. Santos was the only Filipino employee under Crudele's supervision and was treated worse than white employees similarly situated. When patients complained about her work she was officially reprimanded by Ms. Crudele, who "shrugged off" errors made by and complaints about white nurses.
Plaintiff identifies two discrete periods of discrimination. The first occurred between 1978 and 1980 and resulted in a forced resignation that the hospital allowed plaintiff later to rescind. It is unclear from the pleadings when exactly Rush reinstated Ms. Santos.
However, plaintiff claims Ms. Crudele began again to harass her in 1982, first by demoting her and then by singling her out for disciplinary actions which she did not deserve. According to the hospital records, the demotion occurred August 2, 1982. She was reprimanded officially in November 1982 and March 1983.
On August 18, 1983 plaintiff filed her first EEOC charge, complaining of national origin discrimination. On September 28, 1983 she was discharged. On October 24, 1983 she filed a retaliation claim with the EEOC, which was treated by the agency as an amendment to the original charge. At some point after that she went back to the EEOC with her age discrimination claim. (Rush received a charge form to that effect on January 17, 1985.) How the EEOC treated this additional charge is unclear.
LAW
A. The Age Discrimination Claim
Defendant's arguments regarding the deficiencies of Santos' age claim break down into two categories: the claim was written and processed by EEOC in a manner which did not give Rush fair notice of the charges, and the claim was untimely.
On the question of timeliness, defendant states that it first heard about the age discrimination claim from the EEOC in November 1984 and first received a charge form alleging age discrimination on January 17, 1985. On the question of notice, the defendant argues that it was not sufficiently appraised of the conduct plaintiff considered age discrimination because the charge form said only:
Complainant was employed with respondent for approximately nine years from December 9, 1984. She was born on September 23, 1939.
Further, the form is not dated and has no EEOC charge number identifying it. Defendant wonders whether this claim was ever officially filed with the EEOC.
Defendant's timeliness arguments have merit given the ADEA's filing requirement of 300 days in Illinois[2] if the delay in bringing the age claim is due to plaintiff's failure to act. However, it is impossible to tell from the record why EEOC did not contact Rush regarding the age claims until November 1984, and why Rush did not receive the incomplete charge form until January 1985. It is possible that the plaintiff amended her charge early in the process and EEOC delayed in acting on the amendment. The court will not impose a procedural barrier to the plaintiff's claims when the possibility exists that error lies with the administrative agency. See McKee v. McDonnell Douglas Technical Services, Co., 700 F.2d 260, 263-264 (5th Cir.1983) (tolling filing requirement under Title VII when procedure defect was EEOC's fault). See also 118 Cong.Rec. 7167 (1972).[3]
*355 The notice arguments, inasmuch as they are based on the same incomplete EEOC form, also suffer from an accountability problem. The charge, if such it was, at least suggests that age is the basis of the claim, as it specifically sets forth a birth-date showing plaintiff was over 40 at the time of the alleged discrimination. The Seventh Circuit has stated that the standard for the relationship between the charge and the complaint is:
The complaint in the civil action may properly encompass any discrimination like or reasonably related to the allegations of the charge and growing out of such allegations.
Jenkins v. Blue Cross Mutual Hospital Insurance Co., 538 F.2d 164, 167 (7th Cir.), cert. denied 429 U.S. 986, 97 S.Ct. 506, 50 L.Ed.2d 598 (1976), quoting Danner v. Phillips Petroleum Co., 447 F.2d 159, 162 (5th Cir.1971).[4] The standard has been applied to encompass allegations in the complaint which can be inferred from the charge. Rizzo v. WGN Continental Broadcasting Co., 601 F.Supp. 132, 134 (N.D.Ill.1985); see also Scaramuzzo v. Glenmore Distilleries Co., 501 F.Supp. 727, 730 (N.D.Ill.1980). The burden of making these inferences rests with the defendant, at least initially, especially here where the plaintiff is pro se and therefore cannot be expected to establish a professional paper trail.
"[T]he ADEA is a broad remedial statute that should be liberally construed and broadly applied...." Scaramuzzo, 501 F.Supp. at 730. For this reason, rather than dismiss the plaintiff's claims at this point the court directs her to explain the circumstances around the filing of her age claim with the EEOC, including when it was filed and any instructions or advice the EEOC provided her when she filled out the form.[5] To assist the plaintiff in making her case the court grants her petition for appointment of counsel.[6]
B. The National Origin Discrimination Claims
Defendant has moved to dismiss the national origin claims which arose over 300 days before the date of plaintiff's first EEOC charge. Defendant relies on the provision in Title VII that:
... such charge shall be filed by or on behalf of the person aggrieved within 300 days after the alleged unlawful employment practice occurred.... *356 42 U.S.C. § 2000e-5(e).[7] This provision operates as a statute of limitations which can be tolled for equitable reasons. Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982).
As noted earlier, plaintiff identifies two discrete periods of discrimination. Applying this 300-day limitation to the first period 1978 through 1980is easy. By plaintiff's own admission the discrimination stopped in 1980 and did not begin again until 1982. Plaintiff cannot claim continuity between the two periods while simultaneously admitting discontinuity. Because the events leading up to and including the 1980 forced resignation occurred well more than 300 days before plaintiff filed her first EEOC charge, these claims are time-barred.
Applying the 300-day limitation to the second period of discrimination is considerably more difficult. Plaintiff claims a series of discriminatory acts, including a demotion on August 2, 1982 and two reprimands in November 1982 and March 1983, all connected by an ongoing practice of harassment. Some of these acts fall outside the 300-day limitation which, if counted backwards from the date of filing on August 13, 1983, produces November 12, 1982 as the cutoff date. Defendant wants to exclude these acts from the complaint. Given the sequence of events, at issue is the status of plaintiff's demotion.
Defendant argues that the court should cut off any claims which arose more than 300 days before the plaintiff filed her charge. Some courts have subscribed to this somewhat mechanical use of the 300-day limitation. See Schlei & Grossman, Employment Discrimination, 2d ed., at 1049 n. 104 (1983). For example, the court in Gill v. Monroe County Dept. of Social Services, 79 F.R.D. 316 (W.D.N.Y.1978), relied on United Air Lines v. Evans, 431 U.S. 553, 97 S.Ct. 1885, 52 L.Ed.2d 571 (1977), to hold that events which took place prior to the 300-day mark could not "establish liability or provide the basis for relief." 79 F.R.D. 316, 331 (W.D.N.Y.1978).
We believe that this approach is an incorrect application of Evans. That case involved a stewardess working for United who had been forced to resign under a no-marriage rule that was, after her resignation, found to violate Title VII. Because she did not file a charge with the EEOC within the filing period charging illegal separation, "[a] claim based on that discriminatory act is therefore barred." Evans, 431 U.S. at 555, 97 S.Ct. at 1887. However, United rehired Evans four years later as a new employee and refused to credit her with seniority which she had accumulated during her first employment period. She claimed this refusal violated Title VII because it "gives present effect to that past illegal act". Id. at 557, 97 S.Ct. at 1888. The Supreme Court held that because Evans had not made out a Title VII violation which occurred during the filing period her claim was time-barred. Id. at 558, 97 S.Ct. at 1889.[8] The court contrasted the case with Franks v. Bowman Transportation Co., 424 U.S. 747, 96 S.Ct. 1251, 47 L.Ed.2d 444 (1976), upon which the Court of Appeals had relied, in this way:
When that case reached this Court, the issues relating to the timeliness of the charge and the violation of Title VII had already been decided; we dealt only with a question of remedy. In contrast, in the case now before us we do not reach any remedy issue because respondent did not file a timely charge based on her 1968 separation and she has not alleged facts establishing a violation since she was rehired in 1972.
*357 Id. 431 U.S. at 559, 97 S.Ct. at 1889. (footnotes omitted). It is clear that Evans holds only that the defendant's violations did not continue into the presentnot that any violation which occurs before the filing date cannot be the basis for relief. Such a violation is an appropriate basis of relief if it is continuing in nature and "at least one of the acts complained of falls within the limitation period". Scott v. St. Paul Postal Service, 720 F.2d 524, 525 (8th Cir.1983), cert. denied 465 U.S. 1083, 104 S.Ct. 1453, 79 L.Ed.2d 770 (1984).
Thus, rather than count back 300 days from the last violation to determine if a charge has been timely filed, the proper sequence of steps is to first determine when the alleged discrimination occurred and then count forward 300 days from that time. Pinpointing the discriminatory event is a far more elusive exercise than it sounds, partly because of factual ambiguities plaintiffs often allege multiple events occurring at different times which in their minds together compose the alleged discrimination and partly because there are policy considerationsencouraging plaintiffs to assert their rights and protecting defendants from stale claimswhich intersect the factual disputes.
Pinpointing the discrimination when multiple events are alleged, some of which fall outside the filing period, is aided by the continuing violation doctrine.
Prior to Evans, "continuing violations" were argued on at least three theories: (1) "pattern of ongoing discrimination," in which the focus was upon whether an act of discrimination had occurred within the charge filing period and was part of the "pattern"; (2) the "maintenance of a discriminatory system," e.g., seniority, promotion, or transfer systems; and (3) the "present effects of past discrimination." By focusing in Evans on whether a present violation exists, the Court critically undercut the third, "present effects of past discrimination," theory. The first and second "continuing violation" theories have proved more resilient....
Schlei & Grossman at 1046. The first theory often takes the form of allegations of covert discrimination "evidenced only by a series of discrete, allegedly discriminatory, acts". Stewart v. CPC International, Inc., 679 F.2d 117, 121 (7th Cir.1982). We are concerned here with this theory, i.e., whether the plaintiff's demotion in August of 1982 was part of a pattern of ongoing discrimination or an isolated act whose only relationship to the time within the filing period is that its effects were felt then. See Janikowski v. Bendix Co., 603 F.Supp. 1284, 1291 (E.D.Mich.1985).
A finding of a "pattern of ongoing discrimination" cannot be based solely on the continued existence of an employment relationship, i.e., on the theory that if the employment relation continues so does the original harm. "This theory is ... indistinguishable from the continuity-of-effect theory rejected by the Supreme Court in Evans." Jackson & Matheson, The Continuing Violation Theory and the Concept of Jurisdiction in Title VII Suits, 67 Geo.L.J. 811, 822 (1979). See also Goldman v. Sears, Roebuck & Co., 607 F.2d 1014, 1018 (1st Cir.1979), cert. denied 445 U.S. 929, 100 S.Ct. 1317, 63 L.Ed.2d 762 (1980) ("a complaint must indicate that not only the injury but the discrimination is in fact ongoing"). It is essentially this reasoning which led the Supreme Court to its conclusion in Delaware State College v. Ricks, 449 U.S. 250, 101 S.Ct. 498, 66 L.Ed.2d 431 (1980), and which leads us to reject a continuing violation argument in a case where the only alleged acts of discriminatory treatment occurred before the filing period, even though the acts resulted in official reprimands that later contributed to plaintiff's termination. See Arna v. Northwestern University, 640 F.Supp. 923 (N.D.Ill.1986).
However, courts have had more difficulty determining what a pattern of ongoing discrimination is, than what it is not. While some courts focus the inquiry solely on whether the particular acts complained of constitute a "completed act at the time it occurred," Lawson v. Burlington Industries, *358 Inc., 683 F.2d 862, 864 (4th Cir.), cert. denied 459 U.S. 944, 103 S.Ct. 257, 74 L.Ed.2d 201 (1982), we find this approach of little help because any employment act is a completed one. This form of argument was expressly rejected in Collins v. Manufacturers Hanover Trust Co., 542 F.Supp. 663 (S.D.N.Y.1982). The case involved age and sex discrimination in that plaintiff was not accorded the same opportunities, working conditions or salary as her male counterparts. A number of the acts alleged occurred within the filing period; several, however, fell outside the period. The crucial issue was "the status of those acts." Id. at 669. Defendant argued that they were untimely because each one was "discrete." Id. However, the court found that pinpointing the discrimination requires both a look at the nature of the act and how it impacted plaintiff's position with the employer, i.e., whether the plaintiff was experiencing ongoing discriminatory intent or the "current effects of past discrimination." Id. at 670.
The Collins approach is in keeping with the analysis recently outlined by the Fifth Circuit in Berry v. Board of Supervisors of L.S.U., 715 F.2d 971 (5th Cir.1983). The court in that case outlined three (non-exhaustive) questions to ask when considering a continuing violation claim:
Do the alleged acts involve the same type of discrimination, tending to connect them in a continuing violation? ... Are the alleged acts recurring ... or more in the nature of an isolated work assignment or employment decision? ... Does the act have the degree of permanence which should trigger an employee's awareness of and duty to assert his or her rights, or which should indicate to the employee that the continued existence of the average consequences of the act is to be expected without being dependent on a continuing intent to discriminate?
715 F.2d at 981.
Those cases suggest a tension between the diligence aspect of timeliness and the continuing violation concept. If an employee is impacted by two employment decisions, the first one being untimely, it may be that the employee had no reason to suspect that the first decision was discriminatorily motivated until the second decision occurred. This raises tolling (not timing) considerations. See Ortiz v. Chicago Transit Authority, 639 F.Supp. 310, 312-313 (N.D.Ill.1986). It may be that the first decision was of such a nature and significance that the employee reasonably had to realize that the decision may have been prompted by unlawful motives. We believe, however, that it is helpful to accept the pattern concept at face value in analyzing this timing problem. A plaintiff can establish a violation which includes the earlier act if he or she can prove the later decision was the result of a continuing discrimination having earlier origins and motivating the earlier decision as well.
The real issue in these cases is whether a reasonable inference can be made, given the defendant's conduct, that the intent to discriminate which allegedly motivated one employment act continued to exist with enough force to motivate subsequent acts. All the cases discussed in this opinion involve the "disparate treatment" branch of Title VII litigation, and this branch requires proof of intent. See International Brotherhood of Teamsters v. United States, 431 U.S. 324, 335-336 n. 15, 97 S.Ct. 1843, 1854-55, n. 15, 52 L.Ed.2d 396 (1977); Regner v. City of Chicago, 789 F.2d 534, 537 (7th Cir.1986). Because direct evidence of discriminatory intent exists mostly in plaintiffs' dreams, courts rely on circumstantial evidence. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). When analyzing the pleadings, the quest for circumstantial evidence translates into a determination of whether any reasonable inference of discriminatory intent can be made from the facts as pleaded.
For example, here plaintiff claims in her EEOC charge that she complained to her supervisor about her discriminatory treatment. While we do not know if Santos complained of her demotion specifically or *359 when she complained to her supervisors, the possibility exists that she kept the defendant "awake to the fact that [she] was dissatisfied with [her] demoted status," Thomas v. E.I. DuPont de Nemours Co., Inc., 574 F.2d 1324, 1331 (5th Cir.1978), and therefore the demotion can be seen as a continuing wrong.
The Thomas opinion is instructive on this point. In that case the plaintiff was demoted outside the filing period. However, within the filing period "DuPont officials turned down a ... transfer request and apparently ignored a ... request for reinstatement and revision of his performance reports. In addition, despite Thomas' application, DuPont filled ... a[n] ... opening for which Thomas qualified with a younger man." Id. at 1330-1331. The court reversed a dismissal of Thomas' complaint on timeliness grounds, stating:
We in no way mean to indicate that once an employee goes on record to express displeasure with an employer's action and thereafter holds his peace, the company can be liable for failing to remember the initial employee complaint every time a job for which he is qualified becomes available.... We merely hold that once 180 days have passed after one unlawful act, an employer cannot ignore repeated untime-barred attempts within the company to rectify the original wrong and thereby violate the ADEA anew with impunity.
Id. at 1331. It is important to note that the court relied both on the fact that Thomas complained within the filing period and on the fact that he alleged that defendant could have done something about his situation and failed to do so. Cf. Corbin v. Pan American World Airways, Inc., 432 F.Supp. 939, 944 (N.D.Cal.1977) (failure to promote was "ongoing" when positions plaintiff sought were available and plaintiff also complained of unequal pay, which was a present violation); Zagars v. Gettysburg College, 446 F.Supp. 1178 (M.D.Pa.1978) (repeated refusals to promote plaintiff to job she was promised was "ongoing" because at least one refusal occurred within the filing period and a promise had been made).
In these crucial respects Thomas differs from Goldman, which also involved a demotion. In that case, Goldman argued that his
repeated request to be retransferred to the large appliance division, followed by Sears' alleged refusal to honor these requests, constituted evidence of the ongoing nature of the violations, which arguably continued up to and through the filing of all charges.
607 F.2d at 1018. But the court found that because there was "no indication that when the refusals were made a position was open ... or would have been opened but for discrimination against appellant," id. at 1019, his claim was not ongoing. The court so held to avoid the implication that "every demotion could be turned into a continuing violation merely by pleading that plaintiff had continued to protest unsuccessfully." Id. See also Gilliard v. New York Public Library, 597 F.Supp. 1069 (S.D.N.Y.1984).[9]
The conduct of the defendant in Thomas was of a kind from which a reasonable inference of intent could be drawn, whereas the conduct in Goldman was not. In Thomas, the defendant was aware of the plaintiff's complaints, could have done something about them, did nothing, and later hired a younger man for an opening that plaintiff requested and for which he was qualified. It is not unreasonable to infer that the intent that motivated the original demotion also motivated the subsequent hiring of the younger man. In Goldman, on the other hand, the defendant was aware of plaintiff's complaints, but there was no indication, as the court found, that the defendant could have responded to them.
*360 It is not said when these refusals [to retransfer] occurred, nor are any facts stated indicating that the refusals to retransfer (as distinct from the original transfers) were motivated by a discriminatory animus.
Goldman, 607 F.2d at 1018-19.
The complaint here walks the thin line between Thomas and Goldman. However, two factors keep us from dismissing the plaintiff's demotion claim at this point. First we must remember that even though courts have "adopted a far less receptive attitude towards claims alleging continuing violations, after Evans," Schlei & Grossman at 1014, Congress expressly intended for doctrines such as this one to be interpreted to "maximiz[e] the coverage of the law." 118 Cong.Rec. 7167 (1972) (quoted in full at footnote 3, supra.) Second, the standard for pleading requirements set down in Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957), and recently reiterated in Hishon v. King & Spalding, 467 U.S. 69, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984), apply to Title VII pleadings, especially when the plaintiff is an untrained lay person. Finding a continuing violation is a question of fact. See Anderson v. Montgomery Ward & Co., Inc., 627 F.Supp. 1562, 1569 (N.D.Ill.1986). See also Thomas, 574 F.2d at 1331 (reversing a dismissal). We do not want to dismiss (which is in effect a judgment on the merits) based on a factual picture which may be incomplete. We choose, rather, to deny defendant's motion at this time, which will give the plaintiff and her court-appointed attorney a chance to amend her complaint. However, we remind the plaintiff that if she cannot establish both that she kept defendant apprised of her dissatisfaction with her demotion and that the possibility of rectifying her situation existed (or representations to that effect were made to her) and was not acted upon for discriminatory reasons, or if she cannot establish otherwise that the subsequent reprimand stemmed from a continuing and related pattern of discrimination which also was the cause of her earlier demotion, then her demotion claim is no more than a single isolated incident and is time-barred.[10]
CONCLUSION
Defendant's motion to dismiss is denied and plaintiff's petition for appointment of counsel is granted.
NOTES
[1] Plaintiff does not identify the ADEA in her amended complaint, although every count which alleges national origin discrimination also alleges age discrimination. Given the broad remedial purposes of the ADEA, the lack of ambiguity in plaintiff's complaint, and her pro se status, the court will not attribute any legally significant consequence to her failure to identify the ADEA. Cf. Heiar v. Crawford County, 746 F.2d 1190, 1196 (7th Cir.1984), cert. denied ___ U.S. ___, 105 S.Ct. 3500, 87 L.Ed.2d 631 (1985); Dussouy v. Gulf Coast Investment Corp., 660 F.2d 594, 604 (5th Cir.1981).
[2] See Anderson v. Illinois Tool Works, Inc., 753 F.2d 622 (7th Cir.1985), holding that plaintiff has 300 days to file with the EEOC even if the plaintiff has instituted no state agency proceedings.
[3] The section-by-section analysis of the statute of limitations provision in Title VII, which is quoted at 118 Cong.Reg. 7167 (1972), states:
This subsection as amended provides that charges be filed within 180 days of the alleged unlawful employment practice. Court decisions under the present law have shown an inclination to interpret this time limitation so as to give the aggrieved person the maximum benefit of the law; it is not intended that such court decisions should be in any way circumscribed by the extension of the time limitations in this subsection. Existing case law which has determined that certain types of violations are continuing in nature, thereby measuring the running of the required time period from the last occurrence of the discrimination and not from the first occurrence, is continued, and other interpretations of the courts maximizing the coverage of the law are not affected. It is intended by expanding the time period for filing charges in this subsection that aggrieved individuals who frequently are untrained laymen and who are not always aware of the discrimination which is practiced against them, should be given a greater opportunity to prepare their charges and file their complaints and that existent but undiscovered acts of discrimination should not escape the effect of the law through a procedural oversight. Moreover, wide latitude should be given individuals in such cases to avoid any prejudice to their rights as a result of government inadvertence, delay or error.
Although this language expresses Congress' intent regarding Title VII, its values are equally applicable to the ADEA. Our discussion of the continuing violation doctrine, infra, also relies on this language.
[4] Jenkins was a Title VII case, but the same standard applies in an ADEA case. Scaramuzzo v. Glenmore Distilleries Co., 501 F.Supp. 727, 730 (N.D.Ill.1980).
[5] Plaintiff did not respond to defendant's motion, which we have treated as fully briefed. However, given the factual ambiguities and the plaintiff's pro se status, the court is hesitant to rule at this stage.
[6] Plaintiff has met all the factors outlined in Jones v. WFYR Radio/RKO General, 626 F.2d 576, 577 (7th Cir.1980), rev'd on other grounds sub nom. Randle v. Victor Welding Supply Co., 664 F.2d 1064 (7th Cir.1981), which go into determining whether counsel should be appointed.
[7] Considerable dispute has centered on how exactly to read this provision, see Mohasco Corp. v. Silver, 447 U.S. 807, 100 S.Ct. 2486, 65 L.Ed.2d 532 (1980) and Zewde v. Elgin Community College, 601 F.Supp. 1237, 1241-42 (N.D.Ill.1984), but defendant avoids the dispute by giving plaintiff the full 300 days and the court will not enter into the fray without defendant's prompting.
[8] Justices Marshall and Brennan in dissent argued not with the requirement that a present violation exist, but with the meaning of "violation" in the context of the case.
[9] It is also important to note that while Thomas' demotion itself was outside the filing period, his efforts to get reinstated or transferred were not. When this is not the case, there is no present violation and therefore the demotion claim would be time-barred. Anderson v. Paccar, Inc., 528 F.Supp. 181 (M.D.Tenn.1981).
[10] Even if time-barred, it may well be available as evidence on the claims which are not so barred. Collins, 542 F.Supp. at 670. See also Evans, 431 U.S. at 558, 97 S.Ct. at 1889.
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497 F.2d 25
14 UCC Rep.Serv. 1298
Alfred F. PIRRONE, d/b/a Pirrone Wine Cellars, Plaintiff-Appellee,v.MONARCH WINE COMPANY OF GEORGIA, Defendant-Appellant.
No. 73-2913.
United States Court of Appeals, Fifth Circuit.
July 10, 1974.
J. R. Cullens, William E. Cetti, John V. Burch, Cartersville, Ga., for defendant-appellant.
Alford Wall, Steven J. Martin, Atlanta, Ga., for plaintiff-appellee.
Before COLEMAN, CLARK and GEE, Circuit Judges.
GEE, Circuit Judge:
1
This diversity contract action was brought by Alfred F. Pirrone (Pirrone), a California wine-maker of modest capacity, against Monarch Wine Company of Georgia (Monarch), the nation's largest purchaser of peach brandy. From a jury verdict for Pirrone, Monarch appeals. We affirm in part and in part reverse.
2
Peach brandy is an off-season crop for California wine-makers such as Pirrone. Since peach production there occurs from late June into August, it is possible to produce this brandy and clear production facilities of it in time for the major activity, grape-crushing, which commences in late summer or early fall. In January of 1968, Pirrone executed a written contract with Monarch to produce and sell to it 150,000 proof gallons of the brandy for each of the 1968 and 1969 crop seasons at $.75 per proof gallon. Monarch was to have the option to buy 30,000 additional proof gallons each year should Pirrone produce so much, and Pirrone was to produce peach brandy for no one else during these years. A shipping schedule was provided by which about half the brandy was to be shipped during the period of production and the remainder in five equal monthly carloads thereafter.
3
For reasons not entirely clear, Monarch had no more than executed the Pirrone contract when it began to repent of it. Monarch witnesses at trial related that it had over-bought on brandy, and during 1968 the market price dropped to two-thirds of the contract price. By early June, Monarch executives were seeking to persuade pirrone to modify the contract, then entirely executory, to diminish its amounts. Pirrone refused, but a memorandum in Monarch's files indicated a belief by its officials that Pirrone had agreed they need not take delivery of any of the 1968 brandy until December. At trial, Pirrone denied making such an agreement.
4
Agreement or no, Monarch took full advantage of the fact that Pirrone could ship no brandy whatever without a permit from the United States for each shipment-- a permit which Monarch had to initiate. The record is clear that Monarch grossly violated the shipping schedules of the agreement. As a result, by late September, Pirrone was threatening to destroy the brandy unless he received some shipment authorizations. And in late October Pirrone wrote to Monarch complaining of financial difficulties and requesting a substantial advance payment to tide him over. Monarch, however, maintained its position that the contract had been modified to require it take no shipments until December, though it did authorize one 16,000 gallon carload in late September as a 'favor' to Pirrone. Just before Christmas, 1968, Monarch at last proposed to take 40,000 gallons in February, and Pirrone responded insisting on monthly shipments each of 15,000 gallons commencing in December.
5
With his facilities thus stuffed with Monarch's brandy and no sure relief in sight, Pirrone suggested in early January 1969 that the contract be ended. By his proposal, Monarch would take all the brandy which he had produced for it on a shipping schedule which would clear his storage by July. To complicate matters, Pirrone had produced a 30,000 gallon surplus because of the unusual sweetness of the 1968 peach crop, and Pirrone thus sought to have Monarch take this off his hands. His proposal was embodied in a writing, styled 'Termination Agreement' and signed by him.
6
Monarch's response was to return to Pirrone a revised agreement, executed by its president and likewise dated in January 1969, under which Pirrone's storage would not be cleared until August and Monarch would not purchase the surplus. Pirrone rejoined with a telegraphic ultimatum to sign the agreement prepared by him and forward a shipping permit or stand suit on the original contract. The following day, February 5, however, he took a different tack.
7
Under that date, he wrote to Monarch's president, in pertinent part as follows:
Dear Mr. Gilsten:
8
This is intended as an addition and clarification to our termination agreement dated January 1969.
9
Monarch Wine Company of Georgia, Inc., will be required to take delivery of one hundred and thirty five thousand (135,000) proof gallons of peach high proof, excluding approximately fifteen thousand (15,000) proof gallons which Monarch has already received, on or before the 1st day of July, 1969.
10
The remainder of the letter consisted of bland references to housekeeping details. Pirrone's letter crossed in the mails one from Monarch's Georgia counsel to Pirrone stating flatly that Monarch would purchase none of the surplus brandy and urging execution of Monarch's form of the termination agreement. During the spring and summer of 1969 the remainder of the 1968 brandy was finally ordered out and delivered to the accompaniment of threats and rumblings by Pirrone and remonstrances by Monarch, none of which produced any definitive resolution of what the parties by now rather plainly saw as the sole remaining live issue between them, the disposition of the surplus 30,000 gallons from the 1968 crop year.
11
At last, when only 8,000 gallons remained to be delivered, California counsel for Pirrone made letter demand on Monarch to take the surplus forthwith, noting 'that Mr. Pirrone sent you a Termination Agreement in January of this year in which you agreed to remove all of this brandy . . ..' This arrived on the same day that Monarch forwarded to Pirrone the permit for shipment of the last 8,000 gallons covered by letter remarking: 'This completes the total amount under our agreement.' Pirrone made no brandy for Monarch during the 1969 peach season, but in November filed a suit for lost profits on the 1969 portion of the original agreement in the California courts which was eventually dismissed, apparently for want of jurisdiction over Monarch's person. About two years after the abortive filing in California, Pirrone brought this action on the original contract seeking in three counts, damages for (1) delays in taking delivery of the 1968 crop brandy, (2) loss of profits on the 1969 crop increment, and (3) failure of Monarch to take the 30,000 gallon surplus produced in 1968.
12
Trial produced only a little light beyond the above, which is drawn chiefly from the parties' correspondence and memoranda introduced as exhibits. Both were ready writers. Two matters of some significance were, however, elicited in testimony. Pironne admitted, in effect, that by the letter of February 5, 1969, quoted in part above, he meant to mislead Monarch into believing he agreed to Monarch's conditions of terminating the contract, while maintaining a secret intent to force the 30,000 gallon surplus upon Monarch. He excused this by citing his desperation at having facilities clogged with brandy which he could not ship without Monarch's by-your-leave, his financial problems, etc. A Monarch official, for its part, admitted under heavy cross-examination that had Pirrone not agreed to Monarch's conditions, the remainder of the 1968 brandy would never have been ordered out at all. Pirrone's basic theories were no executed termination agreement or, if one, duress invalidating it, and breach and anticipatory breach of contract. On a general charge incorporating these theories, as well as waiver and the effect of partial agreements under Georgia law, the jury found for Pirrone in damages on each of his three counts.
13
On appeal, Monarch asserts that the verdict was inconsistent with itself as allowing recovery both on the original contract and on the termination agreement (viewed as an accord and satisfaction), want of evidence to support the verdict, and want of evidence to support the theory of duress plus an evidentiary point.1
14
The record evidence supports the Count 1 jury finding of damages caused Pirrone by Monarch's dilatory behavior in ordering out the brandy during 1968, forcing him to lose that grape-crushing season. It likewise supports the damages found under Count 3; a careful reading of the original contract shows it did not require brandy for the 1969 crop-year gallonage to be produced from that year's crop. Pirrone was therefore acting on rights at least implicitly giving him by the contract in producing, though unintentionally, the 30,000 gallon surplus in 1968. Under the contract, he need not have feared a modest surplus in that year, since he had a right to carry it forward to apply on the 1969 gallonage. This he produced at a time when the contract was in full and unquestioned force and effect, and to this extent the 1969 portion of the contract became no longer executory on his side. His rights being to this extent fixed, they could not be ousted on any theory presented here except agreement on his part to relinquish them. There is sufficient evidence to support the presumed finding of the jury, confirmed by the court's judgment, that no agreement of his extended so far. There is no inconsistency in the jury awards under Counts 1 and 3. Both rest on Monarch's unilateral breach of the original contract.
15
As to Pirrone's recovery under Count 2, however, for lost profit on the executory portion of the 1969 gallonage, the case is otherwise. Without dispute, this portion of the contract was bilaterally executory at the time of the party's exchange of 'termination agreement' drafts in January 1969. Both drafts contained provisions wiping out the 1969 gallonage and, to the extent that this portion of the contract was executory, we think the mutual intent of the parties to abandon it conclusively demonstrated by the record. Both, but especially Pirrone, repeatedly referred to their 'termination agreement' after the January exchange and Pirrone's artfully-intended letter of February 5; and though the fate of the 30,000 gallon surplus remained ambiguous and disputed, each party plainly thought, objectively manifested, and intended the other to think that they had agreed on something. Otherwise at variance, their proposals for modifying the contract2 met on this head. Both acted upon the agreement: Monarch received all of the 1968 brandy except the disputed surplus; Pirrone never after January 1969 so much as suggested the 1969 portion of the contract was in effect,3 and neither offered to nor did make any brandy for Monarch from the 1969 peach crop. We are persuaded the record conclusively demonstrates that, under general principles of commercial law4 and the pertinent sections of the Uniform Commercial Code as adopted by Georgia,5 the parties reached and consummated an agreement terminating and settling between them all rights, claims and questions arising out of the executory portion of the 1969 segment of the agreement.
16
Insofar as the record supports any claim of anticipatory breach, we think it comprehanded within and settled by this agreement. As for Pirrone's suggestion that duress motivated his assent to this agreement, the claim is far on the outer fringes of the doctrine. We have been shown no Georgia case6 which supports the proposition that hardship resulting from mere commercial breach of contract terms brings that doctrine into play, and the havoc which such a holding would work with desirable settlements of disputed claims is obvious. Several Georgia cases do suggest that even where duress exists, one such as Pirrone who continues to accept benefits under an agreement tainted with it after the duress is removed may not later raise it.7
17
It follows that there was no evidence meeting Boeing v. Shipman8 standards supporting the jury verdict under Court 2.
18
In summary we affirm the court's judgment based on the jury's findings on Counts 1 and 3 and we reverse the judgment insofar as it is based on the jury's finding on Count 2.
19
Affirmed in part, reversed in part.
1
That a copy of a document relevant to damages was admitted in violation of the best evidence rule, the original having been shown to be in existence. This was not reversible error. The figure for which the document was admitted had already been testified to without objection and the evidence was thus cumulative. Yellow Bayou Plantation, Inc. v. Shell Chemical, Inc., 491 F.2d 1239 (5th Cir. 1974)
2
Which, under Georgia Law, required no new consideration. Ga.Code Ann. 109A-2-209
3
Until filing is California action in November, a clear afterthought as to this claim
4
Preserved where not specifically displaced. Ga.Code Ann. 109A-1-103
5
Ga.Code Ann. 109A-2-207 to 109A-2-209
6
And the party's briefs agree there is none in point
7
E.g., Williams v. Rentz Banking Co., 114 Ga.App. 778, 152 S.E.2d 825 (1966)
8
411 F.2d 365 (5th Cir. 1969)
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RODRIGUEZ V STATE
NO. 07-00-0572-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
APRIL 24, 2002
______________________________
JONATHAN AARON RODRIGUEZ,
Appellant
v.
THE STATE OF TEXAS,
Appellee
_________________________________
FROM THE 351
ST
DISTRICT COURT OF HARRIS COUNTY;
NO. 847,477; HON. MARK KENT ELLIS, PRESIDING
_______________________________
Before BOYD, C.J., QUINN, and REAVIS, J.J.
Jonathan Aaron Rodriguez (appellant) appeals his conviction for burglary of a habitation. Through five issues, he asserts that his guilty plea was involuntary and that his counsel was ineffective. We affirm.
Background
On June 14, 2000, eleven-year-old J. H. and her six-year-old younger sister, K. H., were at home when they heard someone ring the doorbell and then “hit the [front] door a couple of times really hard . . . .” After looking through the peephole, J.H. saw a white male later identified as appellant’s juvenile co-defendant. J.H. “didn’t want them to look through the back door to see if anybody was there, so [she and her sister] went to [her] parents’ room.” When she heard “the [back] door bust open” she called the police. The dispatcher on the phone told her to look out the bedroom door to see if anybody was there or if it had just been her imagination. When she looked, she saw another white male, later identified as the appellant. She heard him say “[s]omebody’s here.” She then shut the door because she was scared.
According to the PSI (presentence investigation) report, when the suspects realized the house was occupied they ran out the back door. J.H. proceeded to give a description of the two males to the police. Officer J. Robles was dispatched to the house. He noticed two individuals (appellant and his brother) walking along the sidewalk outside the house. The two matched J.H.’s description of the intruders. Robles detained them, and, J.H. subsequently identified appellant as one of the individuals who entered the house.
Appellant initially claimed he was not involved in the incident because he had been at a friend’s house. The officers walked over to the friend’s house and asked to speak with him. The juvenile co-defendant volunteered to return with the officer to the scene of the crime. The juvenile suspect told Officer Seagler that he and the appellant had indeed made entry into the house, that it had been appellant’s idea, and that the appellant had kicked in the door. The juvenile acknowledged that after he had knocked on the front door, he and appellant went around to the back door and entered the house.
According to the PSI, the juvenile co-defendant stated that “[they] were gonna get shit.” They then looked around the house. Upon seeing J.H., the two exited the abode, jumped the fence, and ran home. Furthermore, appellant eventually admitted that he had entered the house and that the burglary was his idea.
Appellant entered an open plea of guilty to the second degree felony offense of burglary of a habitation. He was then admonished by the court in accordance with the Code of Criminal Procedure. At his hearing on the matter, sentencing was deferred pending development of the PSI. Upon receiving the document, the trial court held a punishment hearing and ultimately sentenced appellant to ten years imprisonment.
Standard of Review
The complaints asserted at bar were urged below via a motion for new trial. The latter was denied by the trial court. Thus, the pertinent standard of review is one of abused discretion.
Salazar v. State
, 38 S.W.3d 141, 148 (Tex. Crim. App. 2001).
And, unless the decision rendered by the trial court fell outside the zone of reasonable disagreement, we must let it stand.
Burden v. State,
55 S.W.3d 608, 615 (Tex. Crim. App. 2001)
(stating that discretion is abused when the decision falls outside the zone of reasonable disagreement).
Issues One, Two and Three – Plea Involuntary Due to Ineffective Counsel
Through his first three issues, appellant contends that his guilty plea was involuntary because his trial counsel was ineffective. Furthermore, counsel was allegedly ineffective because he failed to interview two witnesses and inform appellant about the supposed lesser included offense of criminal trespass. We overrule the contentions for the following reasons.
First, regarding the failure to interview two prospective witnesses, the witnesses
were the two young children who were alone when appellant entered the house. The observations of one child appear in the presentence report and serve to place appellant within the house after he forced his way inside. Yet, her statement does not reveal what information she or her sister had which would have been beneficial to appellant had either child been interviewed by counsel. Nor does appellant clarify the situation. He called neither as witnesses at the hearing on his motion for new trial and now merely
concludes that their “testimony . . . would be crucial in a trial.” Thus, we have before us a situation wherein the appellant accuses counsel of being less than diligent in securing evidence while failing to illustrate how it would benefit his defense. And, given this situation, we are unable to hold that the trial court abused its discretion in rejecting appellant’s contention.
See Wilkerson v. State
, 726 S.W.2d 542, 550-51 (Tex. Crim. App. 1986),
cert. denied
, 493 U.S. 924, 107 L.Ed.2d 272, 110 S.Ct. 292 (1989)(holding that absent a showing that potential defense witnesses were available
and
that their testimony would benefit the defense, “counsel’s failure to call witnesses is of no moment”). Simply put, it is not enough to merely conclude that evidence exists which could have been discovered and would have been beneficial. Rather, the burden lies with the complainant to illustrate what that evidence is and illustrate how it would have materially aided him.
Second, regarding the possibility of obtaining a conviction for the lesser included offense of criminal trespass, trial counsel testified that he discussed the topic of lesser included offenses with appellant. This was done for the purpose of assessing available options, given what was known about the case, “what may or may not be admissible by and through the evidence that’s in that offense report,” and the admissions of guilt by both the co-defendant and appellant. And, while counsel did not “specifically narrow it down to if he wanted to go to trial to possibly get a lesser included offense,” the two discussed the situation in terms of whether “or not did he want the case tried or did he want to pursue the other options.”
(footnote: 1) Thereafter, appellant and trial counsel settled on a strategy focusing upon the punishment phase of the trial and securing probation. Thus, we have of record evidence illustrating that appellant and his counsel discussed the topic of lesser included offenses and, thereafter, chose to pursue a course of action they considered to be the better option. And, given this evidence, we cannot fault the trial court for rejecting this ground as a basis for new trial.
Third, regarding the purported breach of an agreement to forego live testimony at the punishment hearing, we note a dearth of evidence evincing such an agreement. Instead, appellant suggests that such an agreement was implied from the State’s “agreement to utilize a PSI report.”
Yet, he cites no authority in support of the proposition. Given his failure to cite authority, the issue was insufficiently briefed and, therefore, waived.
See
Maldonado v. State
, 902 S.W.2d 708, 711 (Tex. App.–El Paso 1995, no writ) (holding that the failure to provide legal citation in support of an issue results in the waiver of that issue). So too did appellant neglect to cite us to any evidence illustrating that the State and defense discussed the possibility of so limiting their respective presentations or actually agreed to such a limitation. And, that he may have subjectively believed that only the PSI was to be considered, his counsel not only knew that the State intended to call live witnesses but also intended to present live testimony himself.
(footnote: 2) These indicia hardly compelled the trial court to find that the litigants entered into an agreement of the nature now urged by appellant. Consequently, the trial court was within its discretion to reject this ground as a basis for new trial, as well.
Issues Four and Five – Ineffective Counsel at Punishment
Through his remaining two issues, appellant claims that his counsel rendered ineffective assistance during the punishment stage of trial because he was inadequately prepared and failed to protect appellant’s Sixth Amendment rights regarding a pending criminal matter in Corpus Christi. We again overrule the issues.
Regarding the matter of inadequate preparation, four instances are cited by appellant. They involve 1) the failure to interview the two child witnesses mentioned above, 2) the presentation of Milton Hinkle (the children’s father) as a defense witness, 3) the failure to present live testimony at the punishment hearing on behalf of appellant, and 4) the lack of adequate time to review the PSI. We consider each in the order mentioned.
Failing to Interview the Hinkle Children
As discussed above, appellant fails to provide us with evidence illustrating that the two lone children (whom he frightened upon forcibly entering their home) had testimony which could be used to his advantage on the issue of punishment. Without such evidence, we cannot say that the trial court erred in rejecting this ground as basis for new trial.
See Wilkerson v. State
,
supra
.
Using Milton Hinkle as a Defense Witness
Appellant argues counsel was ineffective because he called Milton Hinkle as a defense witness even though the two had not spoken prior to the punishment hearing. Like many of his other contentions, this one too consisted of mere conclusions
sans
citation to authority. Thus, it was waived.
Furthermore, the individual who created the PSI stated therein that Hinkle “expressed he would want the court to stipulate Boot Camp as a condition of probation.” Given that Hinkle expressed a belief suggesting that he favored probation and boot camp, counsel could have thought it effective trial strategy to call him as a witness and have him reiterate the belief in open court. That it may have been better to first question Hinkle outside the courtroom about his comment seems obvious. Yet, we do not live in a world wherein one has ample time to do all that he may wish to. Indeed, in the heat of trial, instantaneous decisions must be made not only by the trial court but by counsel as well. And, that these decisions may later lead to unexpected consequence does not render counsel ineffective when, as here, arguable basis exists for making the decision. Thus, we do not find that the trial court abused its discretion when refusing to grant a new trial on the ground now urged by appellant.
Preparation of Live Favorable Testimony
Appellant next claims that counsel was ineffective because he was not prepared to present live testimony from defense witnesses at the punishment hearing. However, the record belies appellant’s argument. It reflects that trial counsel told the court that “it was [his] intention to have the family members come up [to the witness stand] as a group” and asked whether the court would prefer them to speak individually. The court then instructed counsel to “tell me who they are . . . I’ve read all their letters and I feel like I understand their feelings in this situation.” Counsel then proceeded to call three witnesses, Hinkle, appellant, and Karen Thompson (appellant’s mother). Thus, evidence appears of record illustrating that counsel not only was prepared to call witnesses at the hearing but actually did so, and the trial court was within its discretion to reject this ground for new trial as well.
Not having Sufficient Time to Review PSI Report
Appellant also suggests that his attorney was inadequately prepared because he failed to move for a continuance upon discovering immediately before the hearing that there pended against his client a similar prosecution in Corpus Christi. The information at issue was discovered via the PSI. And, though appellant and his father knew of it, they intentionally chose to withhold same from counsel.
It may well be that moving for a continuance would have ameliorated counsel’s surprise. Yet, the punishment hearing had already been postponed once since appellant had not performed various tasks desired by his attorney. So, the decision to forego additional delay may well have been a trial strategy.
Moreover, we opt not to fault trial counsel for the intentional withholding of vital information by his client.
See Cannon v. State,
668 S.W.2d 401, 403 (Tex. Crim. App. 1984) (refusing to hold counsel ineffective when the defendant failed to impart sufficient information to counsel);
Hernandez v. State,
885 S.W.2d 597, 601-602 (Tex. App.--El Paso 1994, no pet.) (recognizing that the defendant's failure to provide his attorney with relevant information defeats a later claim of ineffective assistance because the attorney failed to obtain particular information). In short, the relationship between counsel and client is somewhat reciprocal. While counsel has a duty to be reasonably effective, his client must forego that which impedes counsel’s ability to reasonably perform. Additionally, withholding information relevant to one’s defense is such an impediment. In other words, a client has a duty to disclose information pertinent to his defense. Should the client withhold same, then he may not complain about the effect his own evasive conduct had upon the performance of counsel.
(footnote: 3) Any other result
would be to allow a defendant to benefit from his own mis or non-feasance, and, this we will not permit.
Nor has appellant deigned to illustrate how the outcome would have differed had trial counsel obtained a continuance. Admittedly, counsel would have had more time to address the matter, but that does not mean that more time would have likely resulted in a different outcome. Indeed, what it may have done was provide the State with opportunity to prove the allegations regarding the Corpus Christi burglary via live witnesses. And, from that, one could hardly reason that the punishment ultimately assessed would have differed.
Sixth Amendment
Lastly, appellant contends that trial counsel’s “most devastating error” at the punishment hearing involved his failure to protect his client’s Sixth Amendment right to counsel with respect to the Corpus Christi offense. Objections on that basis could have kept out much of the damaging evidence, appellant suggests. “Counsel not only failed to make those objections, but added to the breach . . . with his own questioning,”
he concludes. Furthermore, appellant relies extensively on the case of
Westbrook v. State
, 29 S.W.3d 103 (Tex. Crim. App. 2000),
as support for the proposition that the Sixth Amendment was violated. Again, we overrule the point.
As for
Wesbrook
, it involved a situation wherein the state arranged to have an informant obtain incriminating information from the accused once the right to counsel had been invoked. Here, appellant cites us to no evidence illustrating that the State intentionally created a situation likely to induce appellant to reveal incriminating matter about the Corpus Christi burglary when it mentioned the offense in the PSI. The creation of such a circumstance is what the
Wesbrook
court deemed pivotal in assessing whether the Sixth Amendment had been violated.
Wesbrook v. State
, 29 S.W.3d at 118.
Nor can it be said that the State lacked legitimate basis for alluding to the Corpus Christi prosecution in the first place. This is so because statute allowed it to present evidence of extraneous bad acts which the court could then weigh in setting punishment.
Tex. Code Crim. Proc Ann
.
art. 37.07, §3 (Vernon Supp. 2002).
Nor is there evidence that appellant’s defense counsel was acting as agent for the State when he opened the door to questions about the burglary in Corpus Christi. Had such evidence been tendered then the holding of
Wesbrook
may have had application at bar. Rather, it is quite reasonable to infer that counsel asked about the offense as part of the overall defense strategy to be open, honest and forthcoming with the court. Indeed, that appellant had been accused of the crime was a fact which trial counsel could have legitimately felt needed attention. And, once the topic was broached by trial counsel, the State was free to pursue it as well.
Thus, we perceive no violation of the Sixth Amendment. Nor can we say that the decision of trial counsel to question appellant about the offense was not reasonable trial strategy. So, again, the trial court did not abuse its discretion in refusing to grant a new trial.
Accordingly, we affirm the judgment of the trial court.
Brian Quinn
Justice
Publish.
FOOTNOTES
1:Appellant did not recall trial counsel discussing the topic of criminal trespass with him. Yet, appellant also failed to recall the trial judge’s admonishments regarding punishment even though it is indisputable that such admonishments were given him by the trial judge. Thus, the trial court was entitled to discredit appellant’s testimony and credit that of the purportedly defective counsel. So too could the trial court have discredited the testimony of appellant’s father wherein he stated that the topic of criminal trespass as a lesser included offense was never discussed. Simply put, the trial judge as factfinder is entitled to choose who to believe when the testimony of one witness contradicts that of another.
See
Salazar v. State
, 38 S.W.3d 141, 148 (Tex. Crim. App. 2001) (stating that the trial court is the sole judge of the witness’ credibility when determining whether to grant a new trial);
Dusenberry v. State,
915 S.W.2d 947, 949 (Tex. App.--Houston [1st Dist.] 1996, pet. ref'd) (holding that the trial court has broad discretion in assessing the credibility of the witnesses presented at a new trial hearing).
2:Appellant cites us to a portion of the record wherein the trial court mentioned the word “agreement” and argues that the trial court’s use of the word illustrates the existence of an agreement to so restrict the presentation of evidence. Appellant’s allusion to the passage is quite misleading, however, for the trial court was referring to the absence of an “agreement” with regard to punishment. It was not referring to an agreement to limit the nature of evidence which the litigants could offer at the punishment hearing.
3:This obligation differs little from that imposed upon parties to a contract. It has long been an established tenet of law that a party to an agreement may not interfere with the performance of the contractual duties undertaken by the other.
Henderson v. Central Power & Light Co.
, 977 S.W.2d 439, 448 (Tex. App.–Corpus Christi 1998, pet. denied). Though fiduciary, the relationship between attorney and client has contractual overtone. So, little reason exists to insulate the relationship from basic rules of contractual law.
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Case: 17-15471 Date Filed: 07/18/2018 Page: 1 of 5
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 17-15471
Non-Argument Calendar
________________________
D.C. Docket No. 2:13-cr-00235-WS-N-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANTHONY R. BROWN,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Alabama
________________________
(July 18, 2018)
Before TJOFLAT, MARTIN, and NEWSOM, Circuit Judges.
PER CURIAM:
Case: 17-15471 Date Filed: 07/18/2018 Page: 2 of 5
Anthony R. Brown appeals the 24-month sentence he received after his
supervised release was revoked. He contends the sentence is substantively
unreasonable.
I.
In 2014, Brown pled guilty to possession of marijuana with intent to
distribute and was sentenced to a 36-month term of imprisonment, followed by
three years of supervised release. His term of supervised release began to run on
September 22, 2015.
On October 3, 2017, Brown was arrested by the Selma, Alabama police
department and charged with unlawful possession of marijuana, possession of drug
paraphernalia, and possession of a concealed pistol without a permit. On October
16, a probation officer filed a petition to have Brown’s term of supervised release
revoked, and a federal warrant was issued for his arrest. Brown was released from
state custody, but was arrested on November 3 pursuant to the federal warrant
when he went to retrieve his car from a state impound lot. At the time of the
second arrest, police found the keys for a rented Toyota Camry in Brown’s pocket.
The keys matched a Toyota Camry parked at Brown’s mother’s residence. Police
got a warrant to search the car where they found a digital scale and plastic baggies
in the front seat, along with approximately three pounds of marijuana in the trunk.
During questioning, Brown admitted to possessing the marijuana.
2
Case: 17-15471 Date Filed: 07/18/2018 Page: 3 of 5
On November 28, 2017, the district court conducted a revocation hearing. A
Selma police officer testified to Brown’s alleged criminal activities, and a
probation officer testified that Brown’s conduct violated the conditions of his
supervised release. The court found Brown violated the terms of his supervised
release. Brown explained to the court that he had worked as a commercial driver
after his release from prison, but lost his job after lacerating a tendon in his hand
and breaking his leg in a 2016 car accident. After the accident, Brown self-
medicated with marijuana. He denied being a drug dealer.
The court then sentenced Brown to 24-months imprisonment, which was the
high-end of the guidelines range.
II.
We generally review the substantive reasonableness of a revocation sentence
for abuse of discretion. 1 Gall v. United States, 552 U.S. 38, 51, 128 S. Ct. 586,
597 (2007); United States v. Vandergrift, 754 F.3d 1303, 1307 (11th Cir. 2014).
We consider the totality of the circumstances and will remand for resentencing
only when “left with the definite and firm conviction that the district court
1
The government urges us to conduct only a plain-error review because Brown did not
raise a substantive-reasonableness objection at sentencing. The appropriate standard of review is
an open question in this circuit. See United States v. Medina, 656 F. App’x 975, 981 n.3 (11th
Cir. 2016) (per curiam) (unpublished) (“[T]o our knowledge, we have yet to decide in a
published opinion whether we review the substantive reasonableness of a defendant’s sentence
for plain error if the defendant failed to raise any objection before the district court.”). However,
we need not reach this question because Brown’s claim fails under the abuse of discretion
standard.
3
Case: 17-15471 Date Filed: 07/18/2018 Page: 4 of 5
committed a clear error of judgment in weighing the [18 U.S.C.] § 3553(a) factors
by arriving at a sentence that lies outside the range of reasonable sentences dictated
by the facts of the case.” United States v. Pugh, 515 F.3d 1179, 1191 (11th Cir.
2008) (quotation omitted). A district court abuses its discretion when it “(1) fails
to afford consideration to relevant factors that were due significant weight,
(2) gives significant weight to an improper or irrelevant factor, or (3) commits a
clear error of judgment in considering the proper factors.” United States v. Irey,
612 F.3d 1160, 1189 (11th Cir. 2010) (en banc) (quotation omitted).
Brown argues the 24-month sentence was unreasonable because he was able
to work, drug-free, for two years after his release from prison, and it was
substantively unreasonable to impose the statutory maximum sentence for drug
violations that occurred after he sustained long-term physical injuries that
prevented him from working. He argues a below guidelines sentence—less than
18-months—would have been sufficient under § 3553(a).
Brown’s argument does not carry the day. The district court expressly took
account of “all of the evidence before [it], all of the information that’s been
presented, and . . . all of the sentencing factors and objectives of Section 3553(a) of
Title 18.” The court acknowledged Brown’s sobriety, but noted his “history of
drug distribution.” Ultimately, the court stated that a high-end sentence was
4
Case: 17-15471 Date Filed: 07/18/2018 Page: 5 of 5
warranted because “these are quite serious offenses, and quite serious offenses
require that the punishment be sufficient to meet the crime.”
While Brown’s argument highlights the more sympathetic details of his
situation, we cannot simply substitute our own judgment for that of the district
court when weighing the relevant factors. See United States v. Amedeo, 487 F.3d
823, 832 (11th Cir. 2007). The district court did not fail to consider relevant
factors, did not give significant weight to an irrelevant factor, and did not commit a
clear error in judgment in balancing the proper factors. See Irey, 612 F.3d at 1189.
Therefore the district court did not abuse its discretion by imposing a substantively
unreasonable sentence, and the sentence is affirmed.
AFFIRMED.
5
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697 P.2d 1146 (1985)
108 Idaho 132
CLEARWATER CONSTRUCTION & ENGINEERING, INC., Plaintiff-Counterdefendant, Appellant-Cross-Respondent,
v.
WICKES FOREST INDUSTRIES, A DIVISION OF THE WICKES CORPORATION, Defendant-Counterclaimant, Cross-Appellant, and
WICKES FOREST INDUSTRIES, A DIVISION OF THE WICKES CORPORATION, Third-Party Plaintiff, Counterdefendant-Respondent, Cross-Appellant,
v.
AMERICAN FIDELITY FIRE INSURANCE COMPANY, a New York Corporation, Third-Party Defendant, Counterclaimant-Cross-Respondent.
No. 14169.
Supreme Court of Idaho.
January 23, 1985.
Paul Thomas Clark, of Clark and Feeney, Lewiston, and Robert G. Taylor, and Mary E. O'Brien, of Taylor & Bryan, Seattle, Wash., for appellant and cross-respondent, Clearwater Const. & Engineering, Inc.
R.B. Kading, Jr., James R. Gillespie, and T.A. Banducci, and Mary S. Hobson, of Eberle, Berlin, Kading, Turnbow & Gillespie, *1147 Chartered, Boise, for respondent and cross-appellant, Wickes Forest Industries.
Michael E. McNichols, Lewiston, for cross-respondent, American Fidelity Fire Ins. Co.
DONALDSON, Chief Justice.
On August 20, 1975, Clearwater Construction & Engineering, Inc., (Clearwater) and Wickes Forest Industries (Wickes) entered into a road construction contract for the construction of two Forest Service roads. The roads were identified as road # 221.3 (Grangeville-Salmon Road) and road # 2202 (Van Buren Road). The entire undertaking is referred to by the parties as the "Van Buren Project." The contract ran until December 31, 1976. It provided for bi-monthly progress payments to Clearwater less a 10% retainage as security for performance.
Clearwater began work in September of 1975. By the end of the 1975 season, Clearwater's operation had become "log bound." This meant that Clearwater could not efficiently continue its road construction because log decks on the right-of-way impeded further excavation and culvert work.
When Clearwater began work in September, 1976, very few logs had been removed. Road excavation proceeded with Clearwater moving the logs back and forth across the right-of-way whenever they blocked construction. The project was not completed by the December 31, 1976, termination date.
On February 1, 1977, the parties executed a second contract which purported to cancel the earlier contract. The contract extended the completion date on the Van Buren Project until December 31, 1977. It also added a six-mile "spur road" to the construction requirements. In addition, it required that Clearwater execute a $160,000.00 performance bond and provided for liquidated damages at a rate of $200 per day for each day of work past the new 1977 completion date. The liquidated damage provision excepted Clearwater from liability where delays resulted from Wickes' failure to remove right-of-way logs.
The work under the new contract was to be completed for the remainder of the progress payments owed under the 1975 contract, and an additional $51,000.00 for construction of the spur road. After Clearwater obtained the required performance bond, Wickes released the retainage earned through the 1976 season. Clearwater began work under the new contract on June 20, 1977. Clearwater again experienced difficulties completing the project. Clearwater attributes those difficulties primarily to Wickes' failure to remove the right-of-way logs. Wickes, on the other hand, cites a number of contributing factors, including: poor weather conditions, inefficient manpower, and equipment breakdowns. Relations between the parties deteriorated and, in letters dated September 30, 1977, each party notified the other that it was claiming default under the February 1, 1977 contract. At that time $63,000.00 of the contract price remained unpaid. Wickes had the project completed by another contractor at a cost of approximately $71,000.00.
On May 22, 1978, Clearwater filed suit for damages arising out of the alleged breach of contract by Wickes. American Fidelity Fire Insurance Company, surety for Clearwater, was joined as a third-party defendant. The case was tried to a jury and a verdict awarding Clearwater $398,538.00 in direct contract damages and $238,215.00 in consequential damages was entered on October 16, 1980. The consequential damages included $118,541.00 for losses on other projects, $111,674.00 for losses on involuntary equipment liquidations and $8,000.00 for attorney fees owed to Valley Bank. Clearwater was also awarded attorney fees of $125,212.00 and costs of $4,102.97.
Wickes moved for a judgment notwithstanding the verdict. The court ruled that the evidence was insufficient to support the jury's award of consequential damages for losses on other projects and equipment liquidations *1148 and reduced the judgment by $230,215.00.
Clearwater moved for pre-judgment interest. The court entered an order allowing interest only from the date of the verdict, and specifically denying any pre-judgment interest.
Clearwater filed this appeal objecting to the trial court's decision reducing its consequential damage award and denying its motion for pre-judgment interest. Wickes cross-appealed asserting that the trial court erred (1) in submitting Clearwater's damage proof to the jury; (2) in allowing the jury to consider whether the 1977 contract was the product of unlawful duress; (3) in denying Wickes' motion for directed verdict on the issue of the cancellation of the 1975 contract; (4) in failing to grant a judgment notwithstanding the verdict on the $8,000.00 in attorney fees owed to Valley Bank; and (5) in awarding Clearwater attorney fees.
We hold that, because the trial judge improperly submitted the duress issue to the jury, the judgment must be reversed and this case remanded for a new trial.
At trial, Clearwater made alternative arguments with regard to the 1977 contract. Clearwater argued that the contract was either a valid and binding agreement which Wickes had breached or that it was invalid as the product of unlawful duress. Wickes contends that it was prejudicial error for the court to allow the jury to consider the duress question. It asserts that the evidence overwhelmingly demonstrated that the 1977 contract was validly negotiated and assented to, and that Clearwater treated the contract as a binding obligation on both parties. Wickes submits that the trial court's failure to grant a directed verdict on the issues of duress and ratification prejudiced Wickes on the merits of its argument that the 1977 contract, by its terms, canceled the 1975 contract. In addition, Wickes submits that the duress argument allowed Clearwater to obscure the true contractual relationship between the parties and to introduce testimony and argument which were irrelevant and prejudicial to Wickes.
The prerequisites for establishing the defense of "economic duress" or "business compulsion" were set out by this Court in Lomas & Nettleton Co. v. Tiger Enterprises, 99 Idaho 539, 585 P.2d 949 (1978). In that case, we stated that there are three elements common to all situations where economic duress has been found to exist: (1) that one side involuntarily accepted the terms of the other; (2) that circumstances permitted no other alternative; and (3) that said circumstances were the result of coercive acts of the opposite party. Lomas, supra, at 542, 585 P.2d at 552. We further stated that in order to substantiate an allegation of economic duress, the plaintiff must show more than a reluctance to accept or financial embarrassment. "There must be a showing of acts on the part of the defendant which produced these two factors. The assertion of duress must be proven by evidence that the duress resulted from defendant's wrongful and oppressive conduct and not by plaintiff's necessities." Id.
Clearwater contends that it presented evidence at trial establishing the three elements of economic duress. Clearwater asserts that Wickes' breaches of the 1975 contract placed Clearwater in a highly precarious financial position and that, as a result, Clearwater was forced to sign the 1977 contract, against its will, in an attempt to save itself from financial ruin. In response, Wickes argues that the evidence submitted by Clearwater in support of its defense of economic duress was insufficient as a matter of law. Wickes states that Clearwater had an adequate remedy at law for the alleged breach of the 1975 contract and, thus, that Clearwater had an alternative to entering into the 1977 contract. Wickes further states that the 1977 contract was negotiated by Clearwater and that Clearwater anticipated receiving benefits under the contract: namely, the release of the retainages and additional compensation for the construction of the spur road. Moreover, Wickes contends that, whether or not there was a jury question on the *1149 issue of duress, the evidence establishes that Clearwater ratified the 1977 contract. Clearwater does not dispute Wickes' contention that the evidence supports a finding of ratification, but argues that the issue of ratification is a question of fact for the jury.
A contract entered into under duress is not void, but merely voidable, and may be ratified by subsequent acts of the party claiming duress. Mountain Electric Company v. Swartz, 87 Idaho 403, 411, 393 P.2d 724, 732 (1964). Ratification results where the party entering into the contract under duress intentionally accepts its benefits, remains silent, or acquiesces in it after an opportunity to avoid it, or recognizes its validity by acting upon it. Id; see Annot., 77 A.L.R.2d 426, 428 (1961) and cases cited therein. See also Restatement (Second) of Contracts §§ 380, 381 (1981).
The evidence conclusively establishes that Clearwater ratified the 1977 contract. After executing the contract, Clearwater moved onto the construction site and began work under the contract. When relations between the parties broke down in late 1977, Clearwater sent Wickes a letter stating that Wickes was in default under the terms of the 1977 agreement. Clearwater initiated this lawsuit in May of 1978 alleging breach of both the 1975 and the 1977 contracts. It was not until June 1980, more than three years after execution, that Clearwater first contended that the 1977 contract was invalid as the product of unlawful duress. Clearwater has offered no evidence or argument to show that it did not ratify the 1977 contract. In fact, Clearwater admits in its brief that the evidence supports a finding that the contract was ratified. Nevertheless, Clearwater insists that the issue of ratification was an issue of fact for the jury.
In view of the uncontradicted record, it was error for the trial court to submit the duress issue to the jury. While we recognize that the issue of ratification is normally a question of fact for the jury, Mountain Electric Company v. Swartz, 87 Idaho 403, 393 P.2d 724, where the evidence is uncontradicted, ratification should be determined by the court as a matter of law. Diffenderfer v. Heublein, Inc., 412 F.2d 184 (8th Cir.1969); Audit Services, Inc. v. Francis Tindall Const., 183 Mont. 474, 600 P.2d 811 (1979).
The trial court's refusal to direct a verdict on the issue of ratification, prejudiced Wickes in several ways: First, it allowed Clearwater to sidestep Wickes' argument that Clearwater could not recover damages under the 1975 contract because the 1977 contract, by its terms, canceled the 1975 contract. A large portion of the damages awarded at trial were based on cost overruns under the 1975 contract. Second, it created an opportunity for Clearwater to submit prejudicial testimony and argument. For example, Clearwater principals testified that they were faced with a choice of signing the 1977 contract or going broke.
"It was either sign this contract and go back and try to salvage something or roll over and play dead, just give up completely."
"I mean we were drove up against the wall. We had worked five seven years of our lives building a company out of absolutely nothing and we got into a situation that we are reputation and our money are everything we had worked for all our lives is going down the tube unless we sign this contract."
This line of argument was inappropriate in light of the fact that the evidence demonstrated that Clearwater had ratified the 1977 contract. Finally, the duress argument was submitted to the jury without adequate instructions. The instructions set out the elements of duress but did not adequately inform the jury of the consequences of finding duress. The instructions stated that if the jury found that the 1977 contract was the product of unlawful duress, there was no novation of Clearwater's claims under the 1975 contract. However, they did not inform the jury that if they found the 1977 contract was executed under duress, Clearwater's damages *1150 were limited to recovery in quantum meruit. Restatement (Second) of Contracts § 376. Clearwater sought both direct and consequential damages under the 1977 contract. The jury was not informed that those damages were precluded if they found duress.
In summation, we conclude that, under the facts of this case, the trial court committed reversible error when it denied Wickes' motion for directed verdict on the issue of ratification. Submission of the duress and ratification issues to the jury was clearly prejudicial to Wickes.
In light of our decision to reverse and remand this case for a new trial, it is unnecessary for us to address the rest of the parties' arguments. We do note, however, that Wickes argues that Clearwater used the "total cost" approach to prove its damages at trial. While we do not reach the merits of this argument, for purposes of the new trial we note that the total cost approach to calculation of construction damages is not favored by the courts and would not constitute adequate proof of damages in this case. For a discussion of the total cost approach, see Boyajian v. United States, 423 F.2d 1231, 191 Ct.Cl. 233 (1970).
The decision of the trial court is reversed and this case is remanded for a new trial in accordance with the views expressed herein.
No costs or attorney fees on appeal.
BAKES, BISTLINE and HUNTLEY, JJ., concur.
SHEPARD, J., concurs in result.
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Case: 17-11400 Date Filed: 04/17/2018 Page: 1 of 28
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 17-11400
________________________
D.C. Docket No. 1:14-cv-00659-ELR
CONNOR DURBROW,
ROBERT DURBROW,
CHRISTY DURBROW,
Plaintiffs - Appellants,
versus
COBB COUNTY SCHOOL DISTRICT,
Defendant - Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(April 17, 2018)
Before MARCUS and NEWSOM, Circuit Judges, and MOORE,∗ District Judge.
∗
Honorable William T. Moore, Jr., United States District Judge for the Southern District
of Georgia, sitting by designation.
Case: 17-11400 Date Filed: 04/17/2018 Page: 2 of 28
MARCUS, Circuit Judge:
At issue in this appeal are several matters relating to the right of an
intellectually disabled child to access appropriate public education. The two
essential questions presented boil down to this: whether appellants’ claims of
disability-based discrimination under § 504 of the Rehabilitation Act (“§ 504”), 29
U.S.C. § 794, and Title II of the Americans with Disabilities Act (“ADA”), 42
U.S.C. § 12131 et seq., must be administratively exhausted under the Individuals
with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et seq.; and whether
the IDEA compels a public school district to provide special education to a student
with Attention Deficit Hyperactivity Disorder who displays vast academic
potential but struggles to complete his work.
Parents Robert and Christy Durbrow and their son Connor (“the Durbrows”)
appeal from the dismissal of their claims that the Cobb County School District
(“the School District” or the “CCSD”) discriminated against Connor based on his
disability by failing to furnish him with special education services. The district
court dismissed their § 504 and ADA claims for noncompliance with the IDEA’s
exhaustion requirement. The Durbrows also appeal from the denial of their claim
that the School District violated its IDEA obligation to evaluate Connor and
provide him with uniquely tailored special education. The district court concluded
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that Connor was entitled to neither an IDEA evaluation nor special education
because he did not qualify as a “child with a disability.”
We affirm the judgment of the district court.
I.
A.
Despite his Attention Deficit Hyperactivity Disorder (“ADHD”) diagnosis in
third grade, Connor advanced from elementary school through his junior year of
high school. Although some of his teachers expressed concern about his difficulties
with organization and time management, Connor nonetheless excelled in advanced
academic programs and on standardized tests. After graduating from middle school
in fall 2009, Connor was admitted into the selective Magnet Program at Wheeler
High School, an accelerated course of study for high-achieving math and science
students. Beginning in Connor’s freshman year, the School District accommodated
Connor’s ADHD with a § 504 Plan,1 affording Connor extended test and quiz time,
early morning math classes, and small class sizes. Connor’s freshman-year
counselor, Ms. Suttles, also offered to help Connor stay organized, but the
Durbrows declined for fear that Connor might feel singled out.
1
Section 504 of the Rehabilitation Act, 29 U.S.C. § 794(a), prohibits federally funded programs
from discriminating against individuals with disabilities. Additionally, federally funded
programs, including the CCSD, must evaluate students with disabilities to formulate § 504 Plans
designed to aid the student’s access to the general curriculum. See 34 C.F.R. § 104.33.
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All went well under Connor’s freshman-year § 504 Plan, as he passed all of
his classes and aced his End of Course Tests (“EOCTs”). Indeed, Connor exhibited
such prowess in his Electronics course that his teacher, Mr. George, hired him to
solder electric guitar pedals. Although Connor was failing his freshman-year math
class at some point during the semester, other students’ grades experienced similar
ebbs, and Connor’s final grade and EOCT score demonstrated his command of the
material.
Connor’s sophomore and junior years proceeded similarly under the same
§ 504 Plan. He again earned all As on EOCTs and passed all his classes, excelling
especially in Electronics, about which he proudly remarked, “I was really into not
only just learning, but also helping other students to learn because I was able to
grasp the material very quickly.” He enjoyed answering questions in front of the
class, maintained voluminous notebooks, completed complex projects, joined the
Robotics Team, and even developed an idea for engineering a carnival game using
LED lighting. Connor likewise dominated standardized tests. He shined on the
PSAT, scoring in the 87th percentile in Critical Reading, 98th percentile in Math,
and 90th percentile in Writing Skills. He ranked “at or above level” in every
subject on the ACT. As for the SAT, he scored in the 95th percentile for Reading,
98th percentile for Math, and 94th percentile for Writing.
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Connor’s junior-year teachers unanimously dismissed the suggestion that he
needed special education. Two teachers wrote him letters of recommendation to
attend MIT. Mr. George regarded Connor as a “natural-born engineer” who stayed
on task without special assistance. Mr. Shields, Connor’s AP U.S. History teacher,
regarded Connor as an intelligent, competent, and sociable guy who could read,
write, and analyze better than most. Because he was capable of keeping up with
coursework, his parents and teachers attributed his occasionally lackluster
performance to insufficient focus and effort. Thus, for example, Ms. Walls,
Connor’s AP Calculus teacher, believed Connor could have gotten a higher grade
if he had simply attended office hours and prepared flash cards. Mr. Shields
similarly perceived that, although Connor passed his class, he had not fulfilled his
academic potential. Likewise, Connor’s parents implored him to “stop blowing off
[his] responsibilities” and expressed “disappoint[ment] in [his] choices” when his
grades fell short of what they believed he was capable.
Connor’s academic performance plummeted in his senior year, with
regrettable consequences. While Connor had failing grades at some point during
the semester in freshman year through junior year, he ultimately passed every
class. Senior year marked the first time he received an “F.” Connor amassed late
and incomplete work throughout the year, culminating in five failing grades:
Advanced Research and Advanced Internship in the fall; and AP Calculus,
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Engineering Applications, and Honors World Literature in the spring. As a
consequence, the School District removed Connor from the Magnet Program and
prevented him from graduating in June 2013.
In October 2012, midway through the fall of Connor’s senior year when his
grades began to deteriorate, the Durbrows and the School District convened
another § 504 Plan meeting. During that meeting, Connor admitted to
procrastinating. The CCSD responded by expanding Connor’s § 504 Plan to
include authorization to audio record classes, access to online class notes, and
reduced math homework. As Connor’s GPA decline steepened, the School District
granted him additional accommodations at yet another § 504 Plan meeting in May
2013. That meeting highlighted the essential difficulty raised by Connor’s
academic turbulence: his failure to complete homework and capitalize on extra
exam time. Yet those issues were especially difficult for the School District to
remedy, since school counselors are generally unable to manage a student’s after-
school schedule.
In concert with the May 2013 meeting, and at the Durbrows’ request, the
CCSD initiated the process for determining Connor’s eligibility for special
education. At a September 2013 meeting, the School District found Connor IDEA-
eligible based on his failure to timely submit assignments during his senior year.
The CCSD’s special education supervisor believed that Connor’s incomplete work
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was due to his ADHD. Yet both Connor and his senior-year teachers attributed his
failing grades not to his disability, but rather to procrastination. In Dr. Adams’s
Advanced Internship, although Connor demonstrated academic potential, he
accumulated many missing assignments. After submitting them untimely, Connor
sent Dr. Adams an apology email in which he took ownership of his “lack of
effort” and acknowledged, “[I]t’s about time that I grow up and start taking
responsibility for my own mistakes.” Dr. Adams concluded, based on 26 years of
teaching experience, that Connor’s disability did not prevent him from learning.
The other teachers who gave Connor failing grades voiced the same opinion.
None blamed Connor’s competency; all blamed Connor’s choices.
B.
Litigation commenced on May 20, 2013, when the Durbrows filed a Due
Process Hearing Request with the Georgia Office of State Administrative Hearings
(OSAH) alleging that the Cobb County School District failed to identify, locate,
and evaluate Connor, in violation of the IDEA and § 504; deprived Connor of a
“free appropriate public education” (“FAPE”) under the IDEA; denied the
Durbrows their procedural rights in violation of the IDEA and § 504; and
discriminated against Connor based on his disability under § 504. While the
introduction of their Due Process Hearing Request referenced the Americans with
Disabilities Act (“ADA”), the Request raised only IDEA and § 504 claims.
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The School District moved to consolidate hearings on the Durbrows’ IDEA
and § 504 claims into a single proceeding; the Durbrows opposed consolidation.
The OSAH administrative law judge (“ALJ”) then denied the CCSD’s motion to
consolidate, after which the Durbrows withdrew their request for a § 504 hearing.
Not surprisingly, the ALJ then scheduled a hearing on only the Durbrows’ IDEA
claims.
The School District defended, urging that some of the Durbrows’ claims
were time-barred under the IDEA’s statute of limitations. The Durbrows countered
that they had requested the CCSD to evaluate Connor for special education, but the
CCSD failed to inform them of their IDEA procedural rights, thereby tolling the
limitations period. But the ALJ found as a fact that the Durbrows did not request
an IDEA evaluation until Connor’s senior year, when the School District promptly
provided the Durbrows with notice of their procedural rights.
Following a substantive hearing on the Durbrows’ IDEA claims, the ALJ
entered a Final Decision in favor of the School District. Specifically, the ALJ
found that, because Connor did not qualify as a “child with a disability” under the
IDEA, the CCSD owed no duty to identify, locate, and evaluate Connor for special
education. The ALJ also ruled that, since Connor was not a “child with a
disability,” he was not entitled to special education services under the IDEA.
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The Durbrows then took their case to the United States District Court for the
Northern District of Georgia, appealing the ALJ’s Final Decision and raising § 504
and ADA claims. On the School District’s motion, the district court dismissed the
§ 504 and ADA claims for failure to exhaust administrative remedies. After
determining that discovery was unnecessary, the district court directed the
Durbrows to file a Motion for Judgment on the Administrative Record. Ultimately,
the district court accepted the ALJ’s finding that the Durbrows never requested an
IDEA evaluation before Connor’s senior year, defeating their tolling argument.
The district court also sustained the ALJ’s determination that, because Connor was
not a “child with a disability,” he was not entitled to an IDEA evaluation and
special education.
The Durbrows now appeal the dismissal of their § 504 and ADA claims, and
the denial of their Motion for Judgment on the Administrative Record.
II.
The IDEA represents an ambitious national undertaking to promote the
education of children with disabilities. Congress enacted the IDEA in light of its
observation that most disabled children “were either totally excluded from schools
or were sitting idly in regular classrooms awaiting the time when they were old
enough to drop out.” Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley,
458 U.S. 176, 179 (1982) (internal punctuation omitted) (quoting H.R. Rep. No.
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94-332, at 2 (1975)). The Act offers the States federal funds in exchange for a
commitment to provide all “children with disabilities” individually tailored special
education, also known as a “free appropriate public education” or “FAPE.” 20
U.S.C. §§ 1400(d)(1)(A), 1412(a)(1)(A). The principal vehicle for providing a
FAPE is an individualized education program (“IEP”) prepared by the child’s
parents, teachers, and school officials that is “reasonably calculated to enable a
child to make progress appropriate in light of the child’s circumstances.” Endrew
F. ex rel. Joseph F. v. Douglas Cty. Sch. Dist. RE-1, 137 S. Ct. 988, 999 (2017).
A.
In this case, the Durbrows first claim that the district court erred in
dismissing their § 504 and ADA claims for failure to exhaust administrative
remedies under the IDEA.
In addition to the IDEA, parents of children with disabilities often invoke
two federal antidiscrimination statutes in the course of disputes about whether a
school district has satisfied its obligations under the IDEA: § 504 of the
Rehabilitation Act, which prohibits federally funded programs from discriminating
on the basis of a disability; and Title II of the ADA, which applies the same
prohibition to public entities.
The Durbrows say that, because their IDEA claims were processed in an
Office of State Administrative Hearings (“OSAH”) proceeding, they were not
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required to pursue an additional administrative hearing with respect to their § 504
and ADA claims. That is incorrect. Because the crux of their § 504 and ADA
claims alleged that the School District had denied Connor a FAPE, the claims were
subject to the IDEA’s administrative exhaustion requirement. The Durbrows’
failure to exhaust barred judicial review of their § 504 and ADA claims.
“We review de novo the district court’s grant of a motion to dismiss.”
M.T.V. v. DeKalb Cty. Sch. Dist., 446 F.3d 1153, 1156 (11th Cir. 2006). The
relevant statutory framework requires, among other things, that a claimant seeking
relief under the IDEA first administratively exhaust the claim. 20 U.S.C. § 1415(i),
(l); Fry v. Napoleon Cmty. Schs., 137 S. Ct. 743, 750 (2017). The IDEA provides:
“[B]efore the filing of a civil action under [ ] laws seeking relief that is also
available under [the IDEA], [administrative remedies] shall be exhausted to the
same extent as would be required had the action been brought under [the IDEA].”
20 U.S.C. § 1415(l); see also Fry, 137 S. Ct. at 750 (“[A] plaintiff bringing suit
under the ADA, the Rehabilitation Act, or similar laws must in certain
circumstances -- that is, when ‘seeking relief that is also available under’ the IDEA
-- first exhaust the IDEA’s administrative procedures.”). Since the only remedy
available under the IDEA is injunctive relief for the wrongful denial of a FAPE,
any such claim must undergo an administrative hearing before proceeding to state
or federal court, whether the claim arises under the IDEA, § 504, the ADA, or any
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other federal law. Fry, 137 S. Ct. at 752–53. The rationale is clear: plaintiffs cannot
circumvent the IDEA’s exhaustion requirement by suing for a FAPE deprivation
under a different federal statute. Id. Conversely, if a § 504 or ADA claim does not
seek relief for the denial of a FAPE, then the claim is not subject to the exhaustion
requirement even if in some way it implicates an intellectually disabled child’s
schooling. Id. Therefore, if and only if a claim alleges the denial of a FAPE, then
the IDEA requires exhaustion of administrative remedies for that claim.
In order to determine whether a claim alleges the denial of a FAPE, we look
to the gravamen or essence of the claim. Id. at 752. We inquire into whether the
complaint seeks to harness the “means and ends” that the IDEA provides. Id. at
752, 755. While the IDEA guarantees students with disabilities an appropriate
educational program tailored to their specific needs, § 504 and the ADA prohibit
discrimination in schools as well as in other federally funded programs and public
entities. The same misconduct committed by a school district may warrant relief
under the IDEA, § 504, or the ADA. But if the complaint essentially alleges the
denial of a FAPE, then the plaintiff must exhaust his administrative remedies. Id. at
755. The Supreme Court has instructed us that “one clue to whether the gravamen
of a complaint against a school concerns the denial of a FAPE, or instead addresses
disability-based discrimination, can come from asking a pair of hypothetical
questions. First, could the plaintiff have brought essentially the same claim if the
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alleged conduct had occurred at a public facility that was not a school -- say, a
public theater or library? And second, could an adult at the school -- say, an
employee or visitor -- have pressed essentially the same grievance?” Id. at 756.
Affirmative answers to those questions suggest that the heart of the claim does not
concern the deprivation of a FAPE, since the claim would not be inextricably
bound to the appropriateness of an intellectually disabled child’s educational
program. Id.
Plainly, the gravamen of the Durbrows’ § 504 and ADA claims was that the
School District deprived Connor of a FAPE. The Durbrows did not claim that the
Cobb County School District committed misconduct independent of its IDEA
obligations. Rather, their § 504 and ADA claims focused precisely on the adequacy
of the educational program the School District afforded Connor. Thus, for
example, the Durbows alleged in their complaint that Connor suffered from
ADHD, Amended Complaint at 2–3 ¶¶ 9–11, and “executive functioning
disorder,” 2 id. at 32–33 ¶¶ 137, 144, and that, based on his disabilities, the “CCSD
discriminated against Connor by only providing a magnet program that is designed
for high achieving students who do not have disabilities,” id. at 45 ¶ 212; the
“CCSD discriminated against Connor because it refused to provide students with
2
The Durbrows described “executive functioning disorder” as difficulty “setting goals” and
“complet[ing] multi-step tasks.” “Executive functioning disorder” is not recognized by the
Diagnostic and Statistical Manual of Mental Disorders (5th ed.), and is best understood as a
symptom of ADHD.
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disabilities in the magnet program special education direct services,” id. at 45
¶ 214; and the “CCSD discriminated against Connor by refusing to provide him
services to assist with his executive functioning disabilities and ADHD,” id. at 47
¶ 224.
These averments tell us that the essence of the Durbrows’ § 504 and ADA
charges was that the School District denied Connor a FAPE; they complained that
Connor’s course of study was not appropriately tailored to his disability. Fry, 137
S. Ct. at 756. Put another way, the Durbrows could not have leveled the same
allegations against a public library or a theater, since neither are in the business of
fashioning educational programs for intellectually disabled students. See id. Nor
could the Durbrows have advanced the same claims on behalf of an adult employee
or a visitor at the School District inasmuch as the IDEA does not entitle adult
employees and visitors to individualized special education. See id.
The exhaustion of an IDEA claim before an administrative body does not
relieve a plaintiff of the concomitant obligation to exhaust related § 504, ADA, or
any other claims that allege the deprivation of a FAPE. M.T.V., 446 F.3d at 1159;
see also Reyes v. Manor Indep. Sch. Dist., 850 F.3d 251, 256 (5th Cir. 2017). In
order to properly exhaust a claim that seeks relief for the denial of a free
appropriate public education, the claim must proceed through an administrative
hearing and receive a final decision from an administrative judge before review
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may be sought from a federal district court. 20 U.S.C. § 1415(i)(2)(A), (g)(2);
M.T.V., 446 F.3d at 1159; see also Reyes, 850 F.3d at 256.
The Durbrows failed to exhaust their § 504 and ADA claims. While the
introduction of their Due Process Hearing Request referenced the ADA, the
Durbrows never pled an ADA claim, and so it is doubtful whether their ADA
claims were even properly presented to the ALJ. M.T.V., 446 F.3d at 1159.
Regardless, the Durbrows unambiguously opposed the School District’s motion to
consolidate their IDEA, § 504, and ADA claims into a single proceeding. Then,
notably, the Durbrows withdrew their request for a § 504 hearing. The ALJ thus
considered only the Durbrows’ IDEA claims, not their § 504 or ADA claims. Since
the Durbrows’ § 504 and ADA claims neither received an administrative hearing
nor a decision from the administrative officer, they were not exhausted.
Moreover, the Durbrows’ failure to exhaust cannot be excused under the
“futility or inadequacy” exception. “The exhaustion of administrative remedies is
not required [under the IDEA] where resort to administrative remedies would be 1)
futile or 2) inadequate.” N.B. ex rel. D.G. v. Alachua Cty. Sch. Bd., 84 F.3d 1376,
1379 (11th Cir. 1996). But a parent’s unilateral act cannot create the purported
futility or inadequacy. Id.
The Durbrows say that exhaustion would have been futile because the ALJ
refused to rule on their § 504 and ADA claims. Actually the ALJ declined to
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adjudicate them in response to the Durbrows’ opposition to consolidation and
subsequent withdrawal of their § 504 hearing request. The Durbrows thus created
the futility about which they now complain. Id. If the Durbrows sought to litigate
their § 504 and ADA claims, they should have either accepted consolidation or
sought an additional administrative hearing. Since they did neither, dismissal was
proper.
B.
As for their IDEA claim, the Durbrows argue the district court erred in
confining its consideration to claims that accrued within two years before they
filed their Due Process Hearing Request. Although the IDEA contains a two-year
statute of limitations, the Durbrows assert that the court should have tolled the
limitations period since the Cobb County School District wrongfully withheld
information to which they were entitled. Specifically, appellants say that, when
Connor was in middle school, they asked the School District to evaluate Connor
for special education, and that triggered the CCSD’s duty to provide them with a
written copy of their IDEA procedural rights. The district court rejected the
argument, finding that the Durbrows had not requested an IDEA evaluation of
Connor until his senior year, at which time the CCSD promptly informed the
Durbrows of their procedural rights, rendering tolling inapplicable. The district
court did not clearly err in making this finding.
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Whether parents have requested an IDEA evaluation, thereby triggering the
school district’s duty to inform them of their procedural rights, is a question of fact
which we may review only for clear error. Draper v. Atlanta Indep. Sch. Sys., 518
F.3d 1275, 1288 (11th Cir. 2008). The IDEA’s statute of limitations requires
parents to ask for a due process hearing within two years after they knew or should
have known of the basis of their complaint. 20 U.S.C. § 1415(f)(3)(C). The
limitations period is tolled if the parent was prevented from requesting a hearing
because the school district withheld crucial information, including written notice of
the parent’s procedural rights under the IDEA. 20 U.S.C. § 1415(c), (d), (f)(3)(D);
34 C.F.R. §§ 300.503(a)(2), (b)(4), 300.511(f)(2); Ga. Comp. R. & Regs. 160-4-7-
.12(3)(a)(2).
No documentary evidence supports the Durbrows’ tolling argument. The
only evidence marshaled by the Durbrows was their own testimony, which was
uncorroborated, inconsistent, unspecific, and rejected by the finder of fact.
Throughout the OSAH proceedings, the Durbrows could not identify, without
substantial prodding, any CCSD personnel from whom they requested an IDEA
evaluation. Likewise, in their Due Process Hearing Request, the Durbrows did not
name any teacher or counselor from whom they had requested an evaluation.
Moreover, when asked whether she had previously requested an IDEA evaluation,
Mrs. Durbrow testified that she asked the CCSD for “help” and to “test [Connor]
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for something.” The Durbrows thus support their tolling argument by claiming
only that they requested “help” and “test[ing]” from individuals they had difficulty
identifying. Meanwhile, the School District’s representatives -- including
counselors Ms. Suttles and Ms. Higgins and freshman-year math teacher Ms.
Buhler -- testified that the Durbrows never requested an IDEA evaluation before
Connor’s senior year.
The district court did not clearly err in accepting the ALJ’s finding that the
School District representatives were more credible than were the Durbrows. See
Owens v. Wainwright, 698 F.2d 1111, 1113 (11th Cir. 1983) (“[C]ourts reviewing
a cold record give particular deference to credibility determinations of a fact-finder
who had the opportunity to see live testimony.”). Moreover, even if the Durbrows
had sought “help” or some other form of “testing,” such as testing for a § 504 Plan,
neither would amount to a parental request for an IDEA evaluation. See D.K. v.
Abington Sch. Dist., 696 F.3d 233, 247 n. 5 (3d Cir. 2012) (“[W]e cannot conclude
that general expressions of concern constitute a ‘parental request for evaluation’
under the plain terms of the statute.”) (citing 20 U.S.C. § 1415(d)(1)(A)(i))
(alteration in original). And it is undisputed that, once the Durbrows requested an
IDEA evaluation in May 2013, the Cobb County School District provided them
with notice of their procedural rights.
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The long and short of it is that the district court did not clearly err in finding
that the Durbrows did not ask for an evaluation before Connor’s senior year. The
district court also correctly applied the statute of limitations, restricting the
Durbrows’ claims to those arising within two years of filing their Due Process
Hearing Complaint.
C.
The Durbrows substantively claim that the School District violated the
IDEA by depriving Connor of a free appropriate public education between the
spring semester of his sophomore year (May 2011) and the spring semester of his
senior year (May 2013). The question of “[w]hether an educational program
provided an adequate education under the [IDEA] is a mixed question of law and
fact.” Draper, 518 F.3d at 1284. We review de novo questions of law, such as the
interpretation of a federal statute. Id. “Specific findings of fact are reviewed for
clear error.” Id. After reviewing this extensive record, we are satisfied the CCSD
did not deprive Connor of a FAPE because Connor did not need special education
and, therefore, did not qualify as a “child with a disability.”
The IDEA confers the right to a FAPE only upon “children with
disabilities.” One of the essential purposes of the IDEA is “to ensure that all
children with disabilities have available to them a free appropriate public
education,” 20 U.S.C. § 1400(d)(1)(A) (emphasis added), meaning “special
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education and related services,” id. at § 1401(9). Conversely, if a student is not a
“child with a disability,” then the student is not entitled to a FAPE under the IDEA.
The Act defines a “child with a disability” as including a child “with intellectual
disabilities . . . other health impairments, or specific learning disabilities; and who,
by reason thereof, needs special education and related services.” 20 U.S.C.
§ 1401(3)(A). “[O]ther health impairments,” in turn, include ADHD that
“[a]dversely affects a child’s educational performance.” 34 C.F.R. § 300.8(c)(9).
Therefore, to establish an entitlement to a FAPE, a student with Attention Deficit
Hyperactivity Disorder must show (1) that her ADHD adversely affects her
academic performance; and (2) “by reason thereof,” she needs special education.
20 U.S.C. § 1401(3)(A); 34 C.F.R. § 300.8(c)(9); see also Alvin Indep. Sch. Dist. v.
Patricia F., 503 F.3d 378, 383–84 (5th Cir. 2007).
In making this determination, a school district must “[d]raw upon
information from a variety of sources, including aptitude and achievement tests,
parent input, and teacher recommendations . . . .” 34 C.F.R. § 300.306(c). The
purpose of a FAPE, in part, is to “ensure access . . . to the general curriculum so
that the child can meet [ ] educational standards.” 34 C.F.R. § 300.39(b)(3)(ii). A
student is therefore unlikely to need special education if, inter alia: (1) the student
meets academic standards; (2) teachers do not recommend special education for the
student; (3) the student does not exhibit unusual or alarming conduct warranting
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special education; and (4) the student demonstrates the capacity to comprehend
course material. See Alvin Indep., 503 F.3d at 383; D.K., 696 F.3d at 251; Bd. of
Educ. of Fayette Cty. v. L.M., 478 F.3d 307, 313–14 (6th Cir. 2007).
It is undisputed that Connor has ADHD, which can be a qualifying disability
under the “other health impairments” category if it adversely affected his
schooling. 20 U.S.C. § 1401(3)(A)(i); 34 C.F.R. § 300.8(c)(9)(i). But even if we
assume that Connor’s ADHD constituted a qualifying disability, his problem in
this litigation is that he was not a “child with a disability” because he did not, on
account of ADHD, require special education. For starters, Connor met or exceeded
academic expectations. He was admitted into Wheeler High School’s selective
Magnet Program based on his achievements in math and science. His academic
performance was “better than most, but [not] as good as some.” He demonstrated
college readiness by excelling on the PSAT. Indeed, until his senior year, he
passed all of his classes in an advanced academic program, including Honors and
AP courses, while earning straight As on EOCTs. His formidable command of
Electronics enabled him to aid fellow classmates. When he sat for the ACT, he
ranked “at or above level” in every subject. After taking the SAT, he outscored
more than 90 percent of test takers in Reading, Writing, and Math. And although
he failed Advanced Research and Advanced Internship in the fall semester of his
senior year, he remained on track to graduate. Sadly, it is also true that Connor’s
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grades in the spring semester of his senior year prevented him from graduating.
But, during that semester, the School District initiated the process for determining
whether Connor qualified for special education under the IDEA. Before then,
Connor’s overall academic performance ranged from mediocre to extraordinary,
and could not demonstrate a need for special education. 34 C.F.R. § 300.39(b)(3),
300.306(c); see also Alvin Indep., 503 F.3d at 383; D.K., 696 F.3d at 251.
In the second place, and significantly, none of Connor’s teachers testified
that special education was appropriate for him. His Electronics teacher, Mr.
George, wholeheartedly dismissed the notion, testifying that Connor could
successfully hold a job, take college courses, live independently, and thrive as “a
natural-born engineer.” Connor demonstrated such deftness in his Electronics
courses that Mr. George hired Connor to solder electric guitar pedals, a task
threatening severe injury if not performed with pinpointed concentration. His
Advanced Internship instructor, Dr. Adams, testified, based on 26 years of
experience teaching students with ADHD, that Connor’s disability did not impair
his academic progress. Likewise, Connor’s AP U.S. History Teacher, Mr. Shields,
opined that Connor’s ability to learn was not affected by his ADHD. Finally,
Connor’s Honors World Literature teacher, Ms. Thompson, did not believe Connor
needed special education. Rather, she insisted that Connor demonstrated his ability
to access the general curriculum and make progress when he chose to put forth
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effort. Connor’s senior-year Honors Economics and Honors U.S. Government
teacher, Ms. Santelli, and his counselor Ms. Mougdal offered similar testimony.
Since none of his teachers or counselors thought that he needed special education,
Connor was less likely to qualify as a “child with a disability.” 34 C.F.R.
§ 300.306(c)(1)(i); see also Bd. of Educ. of Fayette Cty., 478 F.3d at 313.
Moreover, although Connor had difficulty with time management and
organization, many of Connor’s classmates struggled similarly, particularly in the
demanding Magnet Program. Thus, for example, Ms. Walls testified that she “had
plenty of students that had trouble completing homework because of the workload
they have,” since their junior and senior years include “very difficult classes.” And,
although Connor needed a tutor to assist him with AP Calculus, several of
Connor’s classmates enlisted the same tutor. Mr. Shields testified that Connor did
not stand out as either especially high-achieving or low-achieving and, while
Connor occasionally received low test grades, so did most of the other students.
Furthermore, Mr. Shields spoke with Connor’s father at one of Connor’s § 504
Plan meetings about how they both struggled to pay attention in class when they
were kids. In short, Connor’s work habits between May 2011 and May 2013,
although occasionally creating concern for his parents and teachers, did not
indicate a need for special education. See D.K., 696 F.3d at 251; Bd. of Educ. of
Fayette Cty., 478 F.3d at 314.
23
Case: 17-11400 Date Filed: 04/17/2018 Page: 24 of 28
Finally, Connor demonstrated academic progress, further militating against
his need for special education. None of Connor’s teachers attributed his poor
grades to low ability. Although Connor failed Advanced Research and Advanced
Internship in the fall of his senior year, his completed work in those courses
evinced an ability to absorb material and maintain focus. Indeed, after his
Advanced Internship teacher, Dr. Adams, met with him to discuss his incomplete
work, Connor acknowledged his “lack of effort” and his need to “grow up and start
taking responsibility for [his] own mistakes.” Similarly, in AP Calculus, Connor
performed well when he chose to, but he failed the course because he neglected to
submit a semester-long notebook project and declined to capitalize on the extra
exam time provided by his § 504 Plan. Likewise, Connor’s senior-year counselor,
Ms. Mougdal, remarked that his central issue was his failure to complete
homework and utilize extra exam time. Thus, we agree with the district court that
Connor did not suffer from an inability to concentrate and progress academically,
but rather neglected his studies. We add that special education is generally ill-
suited for students who are making academic progress while neglecting to
complete their work. Indeed, the School District special education supervisor, Ms.
Davies, was reluctant to design an IEP to aid homework completion, observing that
such efforts were best left to parents. The CCSD’s skepticism toward creating a
homework-focused IEP was reasonable, since IEPs are typically fashioned to
24
Case: 17-11400 Date Filed: 04/17/2018 Page: 25 of 28
ensure students adequately grasp their course material. See 34 C.F.R.
§ 300.39(b)(3), 300.306(c); see also Alvin Indep., 503 F.3d at 383; D.K., 696 F.3d
at 251. Connor’s neglect of his coursework did not establish a need for special
education.
In short, Connor: (1) met academic standards; (2) was not recommended for
special education by any of his teachers; (3) did not exhibit especially alarming
conduct warranting special education; and (4) demonstrated he was learning, while
displaying some weaknesses not readily amenable to special-education
remediation. Thus, based on information drawn from a variety of sources,
“including aptitude and achievement tests, parent input, and teacher
recommendations,” Connor “access[ed] . . . the general curriculum” and did not
need special education. 34 C.F.R. §§ 300.306(c), 300.39(b)(3)(ii). He was not a
“child with a disability,” and the Durbrows’ claim that he was deprived of a FAPE
cannot be sustained. See 20 U.S.C. §§ 1400(d)(1)(A), 1401(3)(A); Endrew F., 137
S. Ct. at 993.
D.
Finally, the Durbrows say that the Cobb County School District breached its
“child-find duty” to “identify, locate, and evaluate” Connor under the IDEA. The
district court determined that the CCSD did not violate its child-find duty for four
independent reasons. We agree. To begin with, because Connor was not a “child
25
Case: 17-11400 Date Filed: 04/17/2018 Page: 26 of 28
with a disability,” the CCSD did not owe the Durbrows a child-find duty. Like the
FAPE obligation, the IDEA requires States accepting IDEA funds to identify,
locate, and evaluate only “children with disabilities.” 20 U.S.C. § 1412(a)(3)(A);
Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 245 (2009) (describing the child-
find duty as States’ obligation “to identify, locate, and evaluate all children with
disabilities residing in the State”) (internal quotation marks and punctuation
omitted) (emphasis added). As we’ve discussed, supra Part II.C, because Connor
was not a “child with a disability,” the CCSD did not owe him a child-find duty.
For similar reasons, even if Connor were a “child with a disability” from
May 2011 through May 2013, the CCSD still would not have breached its child-
find duty because it could not have known that Connor needed special education.
Since Connor generally performed well in his classes and did not exhibit alarming
behavior, it cannot be said that the CCSD “overlooked clear signs of disability” or
“negligent[ly] [ ] failed to order testing.” See Bd. of Educ. of Fayette Cty., 478 F.3d
at 313 (quoting Clay T. v. Walton Cty. Sch. Dist., 952 F. Supp. 817, 823 (M.D. Ga.
1997)); see also D.K., 696 F.3d at 251; P.P. ex rel. Michael P. v. W. Chester Area
Sch. Dist., 585 F.3d 727, 738 (3d Cir. 2009) (under the child-find duty, school
districts must evaluate “all students . . . reasonably suspected of having a
disability”).
26
Case: 17-11400 Date Filed: 04/17/2018 Page: 27 of 28
Moreover, the School District attended to Connor’s academic shortcomings
through means other than special education. When a school district uses measures
besides special education to assist struggling students, it is even less likely in
breach of its child-find duty. See D.K., 696 F.3d at 252 (“Finally, the measures the
School District did take to assist D.K. in the classroom militate against finding a
Child Find violation.”). Connor’s struggles related to organization and time
management. In response, Connor’s counselor, Ms. Suttles, offered to help Connor
organize his notebooks and assignments, but the Durbrows declined the offer in
order to avoid singling their son out. In addition, the CCSD prepared a § 504 Plan
for Connor offering extra time on tests, quizzes, and standardized tests; scheduled
math as early in the day as possible; and placed him in the smallest classes
possible. In the beginning of Connor’s senior year, as his incomplete assignments
began to mount, the CCSD amended his § 504 Plan to reduce his homework load
and permit him to audio record classes and access class notes online. As Connor’s
missing work proliferated, the CCSD again modified Connor’s § 504 Plan. The
School District demonstrated individualized attentiveness and sensitivity to
Connor’s difficulties, also counseling against a child-find violation.
Lastly, even if Connor qualified as a “child with a disability” following his
senior-year academic decline, the CCSD satisfied its child-find duty by initiating
the IDEA-eligibility process at the Durbrows’ request. School districts are granted
27
Case: 17-11400 Date Filed: 04/17/2018 Page: 28 of 28
a “reasonable time” to identify, locate, and evaluate children with disabilities once
they are on notice of the student’s need for special education. See D.K., 696 F.3d at
250. The Durbrows and the CCSD initiated the IDEA-eligibility process in May
2013, during the spring of his senior year after Connor received two failing grades.
Thus, even if Connor’s senior-year grades rendered him a “child with a disability”
-- and the record does not support that conclusion -- the CCSD fulfilled its child-
find duty by evaluating him within a reasonable time. Id. It is unfortunate that
Connor did not graduate from high school at the end of his senior year when he
was more than capable of doing so. Still, the School District made numerous
attempts to provide Connor with uniquely tailored aid and cannot be held
responsible for Connor’s senior-year academic downturn.
The district court properly dismissed the Durbrows’ § 504 and ADA claims
for failure to exhaust administrative remedies and denied their Motion for
Judgment on the Administrative Record.
AFFIRMED.
28
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246 N.J. Super. 467 (1991)
587 A.2d 1327
LAWRENCE W. NELSON, INDIVIDUALLY AND AS PARENT AND NATURAL GUARDIAN OF P.T.N., PETITIONER-APPELLANT,
v.
BOARD OF EDUCATION OF THE BOROUGH OF GLEN RIDGE, ESSEX COUNTY, AND ROSE M. MCCAFFERY, SUPERINTENDENT, RESPONDENTS-RESPONDENTS.
Superior Court of New Jersey, Appellate Division.
Submitted February 20, 1991.
Decided March 19, 1991.
*468 Before Judges MICHELS, BRODY and D'ANNUNZIO.
Lawrence W. Nelson, appellant, filed a brief pro se.
Riker, Danzig, Scherer, Hyland & Perretti, attorneys for respondents (James S. Rothschild, Jr., of counsel; Anthony J. Zarillo, Jr., on the brief).
*469 Robert J. Del Tufo, Attorney General, filed a statement in lieu of brief on behalf of State Board of Education (Arlene Goldfus Lutz, Deputy Attorney General, on the statement).
The opinion of the court was delivered by BRODY, J.A.D.
Affirming the initial decision of Administrative Law Judge Springer and the decision of the Commissioner of Education, the State Board of Education (State Board) determined that respondent Glen Ridge Board of Education (respondent) is not obliged to pay petitioner a statutory $325 allowance to help defray the cost of transporting his son to a nonprofit private school. The State Board determined that N.J.S.A. 18A:39-1 (the statute) does not require respondent to pay the allowance because the school is more than 20 miles from the pupil's residence. That determination rests on the State Board's decision that an .84-mile driveway, running from the public roadway to the entrance of the school building, must be included in measuring the distance from the pupil's residence to the school. We affirm.
The relevant portion of the statute provides:
Whenever in any district there are pupils residing remote from any schoolhouse, the board of education of the district may make rules and contracts for the transportation of such pupils to and from school, including the transportation of school pupils to and from school other than a public school, except such school as is operated for profit in whole or in part.
When any school district provides any transportation for public school pupils to and from school pursuant to this section, transportation shall be supplied[[1]] to school pupils residing in such school district in going to and from any remote school other than a public school, not operated for profit in whole or in part, located within the State not more than 20 miles from the residence of the pupil;
* * * * * * * *
*470 Any transportation to a school other than a public school shall be pursuant to the same rules and regulations promulgated by the State board as governs transportation to any public school.
Respondent supplies transportation to pupils going to and from remote public schools and therefore, subject to the limitations in the statute, it is obliged to do the same for petitioner's son. Although respondent is obliged to supply transportation to and from a private school if the school is remote, the obligation does not include supplying transportation to and from a school that is so remote as to be more than 20 miles from the pupil's residence.
The statute leaves to the State Board the task of promulgating rules and regulations that delineate the distance from a pupil's residence that renders the school "remote," and to establish the manner of measuring that distance when determining not only whether the school is remote but also whether it is so remote as to exceed 20 miles.
The State Board discharged this task by promulgating N.J.A.C. 6:21-1.3, which provides as follows:
(a) The words "remote from the schoolhouse" shall mean beyond 2 1/2 miles for high school pupils (grades 9 through 12) and beyond two miles for elementary pupils (grades kindergarten through eight), except for educationally handicapped pupils.
(b) For the purpose of determining remoteness in connection with pupil transportation, measurement shall be made by the shortest route along public roadways or public walkways from the entrance of the pupil's residence nearest such public roadway or public walkway to the nearest public entrance of the assigned school.
In the present case, the State Board implicitly interpreted the broad language "[f]or the purpose of determining remoteness in connection with pupil transportation" to mean that subsection (b) directs both how to measure whether a school is sufficiently remote to require a local board to supply transportation and how to measure whether it is so remote (more than 20 miles) as to relieve the board of that obligation. We have no difficulty deferring, as we must, to that sensible interpretation of the encompassing language of the State Board's own regulation. See Metromedia, Inc. v. Director, Div. of Taxation, 97 *471 N.J. 313, 327, 478 A.2d 742 (1984); Barone v. Department of Human Serv., Div. of Med. Asst., 210 N.J. Super. 276, 285, 509 A.2d 786 (App.Div. 1986), aff'd 107 N.J. 355, 526 A.2d 1055 (1987).
We reject petitioner's argument that subsection (b) means that the critical distance runs only "along public roadways or public walkways," and does not include the school's .84-mile private driveway. The subsection measures the distance "from the entrance of the pupil's residence nearest such public roadway or public walkway to the nearest public entrance of the assigned school." The distance expressly includes the distance from the door of the pupil's residence to the public way. There is no reason why it should not include the distance from the public way to the door of the school. Petitioner acknowledges that the bus transports his son up the school's long driveway to the entrance of the school building.
The regulation expresses the distance as "the shortest route" between home and school with an exception that permits the use of public walkways and roadways. That exception, though it may lengthen the route, recognizes that a pupil walking will use public walkways and a pupil riding will use public roadways. The distance between the pupil's residence and the school building includes but is not limited to the distance along the public way.
In his next argument, petitioner interprets subsection (b) to mean that although the distance must be measured to the nearest entrance of a public school building, it may not be measured beyond the nearest entrance to the real property on which a private school building is located. We agree with the State Board that the regulation makes no such distinction between public and private schools. The "public entrance of the assigned school" means the entrance to the school building used by those members of the public who are entitled to enter the building by that entrance, whether the school is public or private. The more the school building is set back from the *472 public way, whether the school is public or private, the greater is its distance from a pupil's residence.
Finally, petitioner argues that in West Morris Reg. Bd. of Educ., et al. v. Sills, et al., 58 N.J. 464, 279 A.2d 609 (1971), cert. denied 404 U.S. 986, 92 S.Ct. 450, 30 L.Ed.2d 370 (1971), the Court interpreted the statute to mean that the 20-mile distance is the radial distance from the pupil's residence and therefore the State Board was without authority to promulgate a regulation that produces a longer distance. One of the issues as articulated by the plaintiffs in that case was whether the statute violates the Equal Protection Clause because it does not provide relief for "students outside the 20-mile radius." Id. at 473, 279 A.2d 609. Petitioner relies on the following language of the Court:
With respect to students who travel beyond the 20-mile radius, we think it tenable to exclude them since the legislative purpose is to extend to the private school student the same benefit which is mandated for the student of his district who attends public school, and students who attend a private school beyond the 20-mile radius are on that account beyond the legislative purpose. [Id. at 481, 279 A.2d 609.]
The Court was not passing on the method of measuring the statutory 20-mile distance. More pertinent to the issues before us, the Court recognized that the statute left the meaning of "remote" to be "defined administratively." Id. at 478, 279 A.2d 609.
Affirmed.
NOTES
[1] In lieu of supplying transportation the statute elsewhere requires a local board to pay a transportation allowance of $325 to the parent of a pupil attending a nonprofit private school where the cost to the board of transporting the pupil would exceed that sum.
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FILED
United States Court of Appeals
Tenth Circuit
June 25, 2008
UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 07-5184
BRIAN KELLY RAUCH, (D.C. No. CR-07-101-F)
(N. D. Oklahoma)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before BRISCOE, MURPHY, and HARTZ, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is,
therefore, submitted without oral argument.
Defendant Brian Rauch entered a conditional plea of guilty to one count of
being a felon in possession of firearms and ammunition, in violation of 18 U.S.C.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
§ 922(g)(1), and was sentenced to a term of imprisonment of ninety months.
Rauch now appeals, arguing that the district court erred in denying his motion to
suppress evidence. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and
affirm.
I.
At approximately 8 p.m. on May 11, 2007, Tulsa police officer Danielle
Bishop prepared an affidavit in support of a search warrant for the residence of
defendant Rauch, located at 1511 North Kingston Avenue in Tulsa. The affidavit
alleged that Rauch was in possession of, among other things, methamphetamine,
marijuana, drug paraphernalia, and firearms. In support of this allegation, the
affidavit first noted that a reliable confidential informant (RCI), who had
“provided officers reliable information no less than seven different times,”
informed officers that an individual named “Brian Rouch [sic]” “was selling
quantities of methamphetamine and marijuana from the residence to be searched.”
ROA, Vol. I, Doc. 24, Affidavit at 2. More specifically, the affidavit stated that
the RCI “drove officers to the residence to be searched,” “pointed it out as the
residence from which Brian was selling methamphetamine and marijuana,” and
“stated that they had observed methamphetamine packaged for sale within the
residence . . . .” Id. The affidavit further stated that “a second person ha[d] come
forward in a confidential capacity” and “stated that they had information
regarding a subject identified as Brian Rouch [sic], who was selling large
2
quantities of methamphetamine from the residence to be searched.” Id. In
addition, the affidavit stated that “a search of the Tulsa Police Department records
computer revealed that on 3/22/07 Brian Rouch [sic] listed the residence to be
searched as his home address,” and that the “[r]ecords also revealed that Brian
ha[d] multiple previous felony arrest[s] and . . . convictions,” including “previous
drug arrests for Trafficking Controlled Dangerous Substances and Possession of
Marijuana with intent on 7/10/04, Possession of Marijuana on 6/27/04 and
9/8/03.” Id. Lastly, the affidavit stated “that within the last 72 hours” Bishop
“ha[d] conducted surveillance at the residence to be searched and ha[d] observed
short term pedestrian and vehicular traffic” “indicative of drug sales.” Id.
Bishop presented her affidavit to a state district judge who, at 9:20 p.m.
that evening, after reviewing the affidavit and concluding that it established
probable cause, issued a search warrant for Rauch’s residence. Id., Search
Warrant at 1. The search warrant was executed shortly after its issuance. After
entering the residence, law enforcement officers identified three occupants: Rauch
and two females. One of the females “was located in the bathroom of the house
and was seen flushing the toilet repeatedly . . . .” Id., Vol. II, PSR at 6. “A small
amount of marijuana was found in the trash in the bathroom where [this female]
was located.” Id. The ensuing search of the remainder of the residence produced
four firearms, two of which were loaded and one of which was stolen, additional
ammunition, approximately $6,900 in cash, and a digital scale. Id.
3
On June 7, 2007, a federal grand jury indicted Rauch on one count of being
a felon in possession of firearms and ammunition, in violation of 18 U.S.C. §
922(g)(1). Rauch moved to suppress the evidence obtained during the search of
his residence, arguing that the supporting affidavit “wholly fail[ed] to state when
the reliable confidential informant (“RCI”) was at the residence and purportedly
saw methamphetamine or when the confidential informant (“CI”) somehow
learned that . . . Rauch was selling drugs from the residence.” ROA, Vol. I, Doc.
21 at 1-2. The district court denied Rauch’s motion, concluding that affidavit
gave the state district judge “probable cause to believe that the search of
[Rauch]’s residence would uncover illegal drugs.” Id., Vol. III. at 40.
Alternatively, the district court concluded “that the [executing] officers’ reliance
on the [search] warrant was objectively reasonable . . . .” Id. at 41.
On August 8, 2007, Rauch entered a conditional plea of guilty to the single
count alleged in the indictment. The district court subsequently sentenced Rauch
to a term of imprisonment of ninety months.
II.
Rauch now appeals the district court’s denial of his motion to suppress,
arguing that “[t]he affidavit submitted in this case was wholly lacking in indicia
of probable cause because it completely failed to establish any time frame
between when drugs were allegedly at the residence and May 11, 2007, the date
of the search.” Aplt. Br. at 22. “Determinations relating to the sufficiency of a
4
search warrant and the applicability of the good-faith exception are conclusions of
law . . . which this court reviews de novo.” United States v. Danhauer, 229 F.3d
1002, 1005 (10th Cir. 2000). “[W]hile we review the district court’s ruling on the
sufficiency of a search warrant de novo, we do not review de novo the
determination of probable cause by the issuing judge or magistrate.” United
States v. Perrine, 518 F.3d 1196, 1201 (10th Cir. 2008). “Rather, a state judge’s
decision to issue a warrant is entitled to great deference, and we need only ask
whether, under the totality of the circumstances presented in the affidavit, the
[state] judge had a substantial basis for determining that probable cause existed.”
Id. (internal quotation marks omitted).
Even assuming, for purposes of argument, that we were to agree with
Rauch that the affidavit failed to provide sufficient probable cause for issuance of
the search warrant, we would nonetheless affirm the district court’s alternative
conclusion that the good faith exception to the exclusionary rule applies. The
good faith exception was recognized by the Supreme Court in United States v.
Leon, 468 U.S. 897 (1984). The exception applies where “an officer acting with
objective good faith has obtained a search warrant from a judge or magistrate and
acted within its scope.” Id. at 920. In such situations, the Court explained, “an
officer cannot be expected to question the [issuing] magistrate’s probable-cause
determination or his judgment that the form of the warrant is technically
sufficient,” and thus, “[p]enalizing the officer for the magistrate’s error . . .
5
cannot logically contribute to the deterrence of Fourth Amendment violations.”
Id. at 921.
After reviewing the record on appeal, we are persuaded that those are
precisely the circumstances presented here. That is, even if the state district
judge who issued the search warrant erred in his probable cause determination,
the record firmly establishes that affiant Bishop was acting in good faith when she
sought the search warrant. Further, nothing in the record indicates that Bishop
and her fellow officers who executed the search warrant acted outside the scope
of the search warrant. Although Rauch argues that Bishop and her fellow officers
lacked reasonable grounds for believing that the warrant was properly issued, we
disagree. The statements in the affidavit established that two confidential
informants, including one of whom had a history of providing reliable
information, had observed Rauch selling methamphetamine from the residence
identified in the affidavit, and that the police themselves had surveilled the
residence shortly prior to preparation of the affidavit and observed a volume and
pattern of foot and automobile traffic consistent in their experience with drug
distribution. In our view, nothing about this information would have caused a
“reasonably well trained officer” to question the legality of the warrant. Id. at
922.
6
AFFIRMED.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
7
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281 Pa. Superior Ct. 334 (1980)
422 A.2d 196
COMMONWEALTH of Pennsylvania,
v.
William DANIELS, Appellant.
Superior Court of Pennsylvania.
Submitted June 29, 1979.
Filed October 31, 1980.
Petition for Allowance of Appeal Denied March 16, 1981.
*336 Arthur J. King, Assistant Public Defender, Norristown, for appellant.
John J. Burfete, Assistant District Attorney, Norristown, for Commonwealth, appellee.
*337 Before SPAETH, STRANAHAN and SUGERMAN, JJ.[*]
STRANAHAN, Judge:
On March 21, 1978, appellant was convicted after a nonjury trial of possession of heroin with intent to deliver.[1] He received a sentence of two and one-half to seven years imprisonment and appeals from the Judgment of Sentence.
Appellant broadly alleges that the verdict was "against the evidence." Under this caption, he specifically asserts that the evidence was insufficient to support the verdict, the finder of fact erred on weighing issues of credibility and the trial court erred in receiving his confession absent proof of the corpus delecti by independent evidence.
I. SUFFICIENCY OF THE EVIDENCE
It is well settled in Pennsylvania that when the sufficiency of the evidence is challenged, the reviewing court must, after a verdict of guilty, accept as true all of the evidence, direct or circumstantial and all reasonable inferences arising therefrom upon which the trier of fact could have based the verdict. If the evidence and inferences are sufficient as a matter of law to prove guilt beyond a reasonable doubt, the verdict will not be disturbed on review. Comm. v. Rambo, 488 Pa. 334, 412 A.2d 535 (1980). Comm. v. DeCampli, 243 Pa.Super. 69, 364 A.2d 454 (1976).
As noted above, appellant was convicted of possession of heroin with intent to deliver, in violation of 35 P.S. 780-113(a)(30) which prohibits:
Except as authorized by this Act, the manufacture, delivery, or possession with intent to manufacture or deliver, a controlled substance by a person not registered under this Act, or a practitioner not registered or licensed by the appropriate State Board . . .
*338 The Commonwealth may prove either actual or constructive possession of the drugs with proof of constructive possession requiring evidence of the defendant's intent and power to control the contraband. Commonwealth v. Fortune, 456 Pa. 365, 318 A.2d 327 (1974).
In the instant case, the record reveals that on October 21, 1977 at 4:15 p.m. six police officers went to a boarding house located at 625 Cherry Street, Norristown. They possessed a warrant authorizing a search of the third floor front bedroom of the premises. The face of the warrant indicated that the room was occupied by John and Joan Doe, one of whom was also known as "Drag."
After arriving at the third floor front bedroom, the officers knocked on the door, identified themselves, and announced their purpose. They received no response but heard movement from inside the room. They again knocked on the door and called out. Again receiving no response, they forcibly entered the room.
The officers found appellant along with Joan Harris inside the room. After advising appellant of his Miranda rights, they proceeded to search the room finding concealed under a chair cushion thirty-three cellophane packets containing what proved to be heroin. Each packet contained 8.6 milligrams of heroin. In the same location, the officers found another packet later proven to contain one quarter of 21% methamphetamine. The searchers' attention was directed to the location of the drugs by their observation of appellant, whose eyes repeatedly focused on the chair.
Appellant and Ms. Harris were arrested. Appellant was re-advised of his constitutional rights two additional times and signed a police department constitutional rights form.
Appellant then advised the police that he was known as "Drag", and that Ms. Harris was not involved with the drugs which he had purchased in Philadelphia and was selling.
In summary, the search warrant indicated on its face that the room to be searched was occupied by a male and female, *339 one of whom was known as "Drag." The police, upon their arrival, found appellant, known by his own admission as "Drag" and Ms. Harris in the room. There was no response to the officers' first two attempts to gain entry. Instead, movement was heard from within the apartment. When the search was conducted, the officers were led to the heroin by observing appellant, whose eyes were focused on its place of concealment. The heroin was packaged in identical containers of uniform weight. Finally, appellant admitted ownership of the heroin, ultimately to deliver.
Appellant argues that the Commonwealth failed to prove his actual or constructive possession of the heroin. In support of this position, he cites Commonwealth v. Tirpak, 441 Pa. 534, 272 A.2d 476 (1971); Commonwealth v. Fortune, 456 Pa. 365, 318 A.2d 327 (1974); Commonwealth v. Santana, 460 Pa. 482, 333 A.2d 876 (1975); and Commonwealth v. Sungenis, 223 Pa.Super. 517, 303 A.2d 524 (1973). Appellant's reliance on the above cited cases is inapposite. In the case at bar, unlike any on which appellant relies, the person charged admitted possessing the drugs with intent to deliver.
Clearly, if appellant's statements were properly received, the evidence presented and inferences properly drawn therefrom were more than sufficient as a matter of law to support the verdict.
II. WEIGHT OF THE EVIDENCE
Appellant replies that the trial court erred in accepting the police testimony regarding his confession. Appellant notes that at trial, he vigorously denied making the statements attributed to him by the police. However, it is within the exclusive discretion of the trier of fact to resolve issues of credibility. Commonwealth v. Murray, 460 Pa. 605, 334 A.2d 255 (1975). Absent a "manifestly erroneous" result, such a determination will remain undisturbed by appellate review. Commonwealth v. Garvin, 448 Pa. 258, 269, 293 A.2d 33, 39 (1972).
*340 III. CORPUS DELECTI
Appellant finally contends that the trial court erred in receiving his confession without independent proof of the corpus delecti of the offense.
Pennsylvania appellate courts have repeatedly held that corpus delecti consists of the occurrence of injury or loss consistent with commission of a crime by someone. Corpus delecti must be proven prior to admission of a confession. Commonwealth v. Rhoads, 225 Pa.Super. 208, 310 A.2d 406 (1973); Commonwealth v. Steward, 263 Pa.Super. 191, 397 A.2d 812 (1979). The criminal responsibility of a particular defendant does not form part of the corpus delecti, and may be proven by a confession. Comm. v. Turza, 340 Pa. 128, 16 A.2d 401 (1940).
In the instant case, the Commonwealth, by presenting evidence of the room search and the recovery of thirty-three packets of uniformly packaged heroin has established that a crime was committed by someone.[2] The Supreme Court considered a similar corpus delicti question in Comm. v. Chuing, 150 Pa.Super. 445, 28 A.2d 710 (1942), which was decided under the Act of July 11, 1917, P.L. 758, as amended inter alia by Act of June 22, 1931, P.L. 655 also prohibiting unauthorized possession of a dangerous drug, opium. The court held that the corpus delecti of unlawful possession of opium was established by proof that someone possessed the drug. Defendant was linked to the possession by his confession.
In the instant case, even if it is assumed, arguendo, that the Commonwealth has only established the corpus delecti of possession of a controlled substance[3] as opposed to possession with intent to deliver, the statement was properly *341 admitted. In Commonwealth v. Stokes, 225 Pa.Super. 411, 415, 311 A.2d 714, 716 (1973), the court enunciated the rationale supporting the corpus delecti rule by noting that:
[T]he Commonwealth provided sufficient protection against `the hasty and unguarded character . . . . often attached to confessions.'
Citing Commonwealth v. Turza, supra, 340 Pa. at 134, 16 A.2d at 404.
In Stokes the Commonwealth established the corpus delecti of one of the two offenses charged. The offenses arose from the same transaction and contained a common element. The court held that this was sufficient to allow admission of the defendant's confession to both offenses, since there was independent proof that a crime had been committed by someone.
In the case at bar, the Commonwealth, at the very least, provided the corpus delecti of possession of a controlled substance. Appellant's confession was properly reviewed.
The sentence of the lower court is affirmed.
NOTES
[*] President Judge JOHN Q. STRANAHAN of the Court of Common Pleas of Mercer County, Pennsylvania, and Judge LEONARD SUGERMAN of the Court of Common Pleas of Chester County, Pennsylvania, are sitting by designation.
[1] 35 P.S. 780-113(a)(30).
[2] Although the Commonwealth did not prove non-licensure as part of the corpus delecti, it should be noted that such proof is not required even to support a guilty verdict unless the defendant comes forward with some evidence of licensure or other authorization. Comm. v. Sojourner, 268 Pa.Super. 488, 408 A.2d 1108 (1979).
[3] 35 Pa.C.S. 780-113(a)(10).
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3 B.R. 305 (1980)
In the Matter of Robert L. MARLOW and Sandra K. Marlow, Debtors.
No. 80 B 00083.
United States Bankruptcy Court, N.D. Illinois, W.D.
March 27, 1980.
*306 Herbert Greene, Rockford, Ill., for American Finance Corp.
Rolland McFarland, Rockford, Ill., for the Marlows.
MEMORANDUM OPINION
RICHARD N. DeGUNTHER, Bankruptcy Judge.
This matter comes before the Court on the Objection of American Finance Corporation of Illinois to Confirmation of a Chapter 13 Plan proposed by the Debtors, Robert L. Marlow and Sandra K. Marlow. Attorney Herbert Greene represents American. Attorney Rolland McFarland represents the Marlows.
*307 The issues require interpretation of Sections 1325(a)4 and 1325(a)3 of the Bankruptcy Code.
1. Section 1325(a)4
Section 1325(a)4 provides that the Court shall confirm a plan if the value of property to be distributed under the plan on unsecured claims is not less than the amount that would be paid on such a claim if the estate of the debtor were liquidated under Chapter 7.
American's argument goes like this:
We have a potentially non-dischargeable debt if this were a Chapter 7 case. Therefore, we would eventually be able to collect our debt in full. Therefore, payment to us of 1% of our debt results in our receiving less under the Chapter 13 plan than under a Chapter 7 case. Therefore, the plan should not be confirmed.
A careful reading of the statute, however, fails to sustain the argument. The language of Section 1325(a)4 refers only to what a creditor would be paid on a claim if the estate is liquidated in Chapter 7. It looks only at the distributive provisions. The Court need not consider the possibility that American has a non-dischargeable debt.
2. Section 1325(a)3
Section 1325(a)3 provides that the Court shall confirm a plan if the plan has been proposed in good faith. The Marlows filed their Chapter 13 Plan on January 24, 1980. At that time American was a creditor with a secured claim, but the secured claim was avoided by the Marlows under Section 522(f)(2)(A). American became a creditor with an unsecured claim in the amount of $3,128.00. The Marlows propose to pay 1% on unsecured claims, or a total of $31.28 to American.
American had advanced fresh money to the Marlows in the sum of $1,454.54 on September 25, 1979. It is the contention of American that the fresh money was advanced in reliance on a false financial statement submitted by the Marlows, and that if the Marlows had filed under Chapter 7 the indebtedness to American would be held non-dischargeable in the amount of $1,454.54. Under Section 1328(a), however, a debt incurred in reliance on a false financial statement would be discharged in a Chapter 13 proceeding.
Working from this premise, American argues that the Marlows' plan is not filed in good faith because it is a Chapter 7 proceeding in disguise, designed to avoid the non-dischargeable remedies that would have been available to American under Section 523(a)(2).
It is an interesting proposition and probably one that the drafters of the Code did not consider. Certainly, the drafters did not contemplate that in each Chapter 13 case the Bankruptcy Court could be called upon to decide the dischargeability of a debt in order to determine if the plan was filed in good faith. If they had, they would have provided for doubling the staffs of Bankruptcy Courts.
What are the mechanics for deciding non-dischargeability in these circumstances? Would the decision be made after the filing of an Adversary Proceeding? Probably not, because the ultimate question is not whether the debt is non-dischargeable, but whether the plan is filed in good faith.
Would the decision be made as an element of the Objector's case in an Objection to Discharge? And if so, would Section 523(d) apply?
Regrettably, Section 1328(a) as enacted, is a potential device for abuse by dishonest debtors. It permits a debtor to obtain a discharge even as to non-dischargeable debts (except alimony, maintenance and support), though the debtor might pay only a nominal amount on these debts under the plan. The only barrier is the Court's application of the good faith requirement.
S.658 is a Bill designed to correct technical errors, clarify and make minor substantive changes in the Bankruptcy Code. The Senate Judiciary Committee report accompanying S.658 acknowledges this deficiency in the Bankruptcy Code and would exclude non-dischargeable debts from the scope of a Chapter 13 discharge. Thus a debtor would *308 benefit from Chapter 13 only if he could put together a plan that would pay non-dischargeable debts in full.
Meanwhile, under present law, the classification of unsecured claims on the basis of whether they might or might not be dischargeable is probably improper and is certainly subject to abuse. On the other hand, why should a debtor be required to pay a higher percentage to creditors who do not have a non-dischargeable debt, simply because one creditor does have a non-dischargeable debt? That conceptual dilemma would, presumably, be avoided under S.658. But it would not avoid the unprecedented burden thereby imposed on bankruptcy courts to determine dischargeability in Chapter 13 cases.
* * * * * *
I am aware of the views of two colleagues. One of them believes that Congress did intend that the non-dischargeability of a debt should not be an element of good faith; and that an embezzler, a thief, or a person convicted of voluntary manslaughter with a wrongful death judgment against him, may erase civil liability for such conduct by completion of a nominal Chapter 13 plan. Another colleague believes that anything less than a 70% plan is not in good faith. Tempting as these interpretations may be in the search for consistently workable standards of good faith, I find it difficult to generate much enthusiasm for either.
Of course, if Congress really did intend to give criminals and dishonest debtors a fresh start by filing under Chapter 13 rather than Chapter 7, Congress could have imposed its own minimum good faith test by permitting confirmation of a Chapter 13 plan only if it proposed to pay no less than, say, 50% on unsecured claims. In the absence of any such objective standard, each case will have to be analyzed on its overall merits. Needless to say, there will be sharply contrasting approaches and results among some 200 Bankruptcy Judges in this country.
* * * * * *
There is merit in the argument of American that, as a general proposition, a Chapter 13 plan designed to avoid the non-dischargeable remedies available in Chapter 7 cases, and which provides for only nominal payments to unsecured creditors is not filed in good faith. The tough question is this: Must the Court, in order to decide the question of good faith, conduct a full trial on the merits of the allegations of non-dischargeability?
In this case the Marlows may have submitted a false financial statement to American. But we do not know what they were told by American, or if American had independent knowledge of additional debts, or if American reasonably relied on the financial statement. All of these questions (and others) might be raised in a non-dischargeability trial. The record of success by creditors in non-dischargeability cases, is, for one reason or another, very poor. A creditor's burden of proving all of the elements of a false financial statement case is great.
Is the mere threat or possibility of a non-dischargeable debt, without an actual trial and adjudication of non-dischargeability, sufficient, in conjunction with a nominal payment plan, to constitute a lack of good faith?
Chapter 13 Plans in which the debtor offers a 1% payment on unsecured claims are suspect on their face, and Bankruptcy Courts should take a very strict view of them. In determining whether a debtor's Chapter 13 Plan has been proposed in good faith it must necessarily be of paramount importance whether the payments, periodic and total, represent the best effort which the debtor can apply against the scheduled indebtedness, particularly in cases, such as here, where the plan proposes to make payments for a significantly shorter period of time than the three years provided by statute. The element of good faith requires the debtor, at the very least, to make meaningful payments to holders of unsecured claims. Otherwise, a Chapter 13 case may be construed as nothing more, in substance, than a Chapter 7 case, but without the disadvantages of certain provisions applicable to Chapter 7 cases.
It is possible that a plan proposing a 1% payment to unsecured creditors could *309 be found to lack good faith even without the motive to avoid a Chapter 7 non-dischargeable debt. Here, the combination of a 1% plan plus the additional bona fide threat of a non-dischargeable debt is fatal. A formal adjudication on the merits of the alleged non-dischargeable debt is not required. The plan is not consistent with the spirit and purpose of Chapter 13, thus not in good faith.
CONCLUSION
American's Objection to Confirmation under Section 1325(a)4 should be denied.
American's Objection to Confirmation under Section 1325(a)3 should be allowed.
The Debtors should be given 15 days to submit an amended plan.
An Order avoiding the lien of American under Section 522 (in a procedurally unrelated Adversary Proceeding) should not be entered pending further hearings on an amended plan to be submitted by the debtors.
An Order consistent with this Memorandum Opinion is filed herewith.
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NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2010-3037
RICHARD A. BECKER,
Petitioner,
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent.
Richard A. Becker, of Coram, New York, pro se.
Joan Stentiford Swyers, Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent. With her on
the brief were Tony West, Assistant Attorney General, Jeanne E. Davidson, Director,
and Steven J. Gillingham, Assistant Director.
Appealed from: Merit Systems Protection Board
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2010-3037
RICHARD A. BECKER,
Petitioner,
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent.
Petition for review of the Merit Systems Protection Board in
NY4324090141-I-1.
______________________
DECIDED: March 10, 2010
______________________
Before GAJARSA, PLAGER, and DYK, Circuit Judges.
PER CURIAM.
Richard A. Becker petitions for review of a final decision of the Merit Systems
Protection Board (“Board”) denying his claim under the Uniformed Services
Employment and Reemployment Rights Act of 1999 (“USERRA”), 38 U.S.C. §§ 4301–
4333. See Becker v. Dep’t of Veterans Affairs, NY4324-09-0141-I-1 (M.S.P.B. Nov. 3,
2009). For the reasons noted, we affirm the decision of the Board.
BACKGROUND
In 1999, Congress enacted the USERRA to prevent employers from
discriminating against persons because of military service. 38 U.S.C. § 4301(a)(1)
(2006). As a result, the USERRA prohibits employers from “den[ying] initial
employment, reemployment, retention in employment, promotion, or any benefit of
employment” on the basis of an applicant’s military service. Id. § 4311(a). Furthermore,
the USERRA prohibits an employer from taking adverse action against an employee
who has taken an action under the USERRA. Id. at § 4311(b).
Becker served in the United States Army (“Army”) for twenty-two years including
active duty from 1958 to 1961, service in the Gulf war in 1991, and reserve duty.
Because of his service in the Army, Becker is afforded USERRA protection. See id.
§ 4311(a). He holds the position of Nursing Assistant, GS-5, with the Department of
Veterans Affairs (“DVA”), Northport, New York. Over the past ten years, Becker has
applied for various positions within the DVA but has not been promoted. He contends
that less-qualified non-veterans have been selected for the positions. During an
investigation of an equal employment opportunity (“EEO”) complaint in 2007, an
investigator learned that the head of the Human Resources office at the facility informed
the management about numerous appeals that Becker and others had filed with the
Board. Becker argues that as a result of that statement, he and other employees are
not selected when they apply for new positions.
In January of 2009, Becker applied for a position as a Human Resources
Assistant at the Veterans Affairs Medical Center in Northport, New York. Becker and
six other candidates applied for and were interviewed for the position. The DVA
determined that Becker was qualified, but another employee was selected and accepted
the position. The DVA submitted declarations to the Board, regarding the interviews,
from the selecting official and the panel members who interviewed the seven
2010-3037 2
candidates. The declarations stated that all seven candidates answered the same
seven questions. Each of the seven candidates were scored by each member of the
interview panel on a scale of 0-5 based on responses to the questions; Becker ranked
fifth out of the seven candidates. The candidate with the highest score was selected for
the position; and neither Becker’s veteran status nor prior appeals had any impact on
his failure to be selected. The selection panel’s notes also indicated that Becker
mentioned his duties as a nursing assistant and a part-time clerk at Wal-Mart. The
panel’s notes further indicated that the selected candidate discussed her experience
with credentialing and privileges, the admissions office, and hospital accreditation. The
selected candidate is not a veteran.
On February 13, 2009, Becker appealed the DVA’s decision claiming that the
DVA’s failure to select him, over a non-veteran, for the Human Resources Assistant
position constituted a violation of the USERRA, 38 U.S.C. §§ 4301–4333. The
USERRA prohibits an employer from denying a person a promotion or employment
because of such person’s military service. 38 U.S.C. § 4311(a). On July 16, 2009, an
administrative judge (“AJ”) issued an Order stating that to prevail on the merits of his
claim, “[Becker] would have to show that his military service was at least a motivating or
substantial factor in management’s decision not to select him for the position of Human
Resources Assistant.”
Becker did not request a hearing, and on September 9, 2009, the AJ issued an
initial decision denying Becker’s claim. The AJ considered the fact that the head of
Human Resources had advised certain management officials that Becker had filed
appeals with the Board. The AJ, however, found that there was no evidence of “any
2010-3037 3
anti-veteran animus” or “any negative remarks about [Becker]” communicated from the
management to the members of the interviewing panel. Therefore, the AJ found that
there was insufficient evidence that Becker’s “military service was a substantial or
motivating factor in the agency’s decision not to select him for the position of Human
Resources Assistant.” Becker’s claim was therefore denied.
Becker sought review of the AJ’s decision before the Board. The Board will only
review the decision of an administrative judge when significant new evidence is
presented that was not available for consideration or when the AJ made an error
interpreting a statute or regulation. See 5 C.F.R. § 1201.115. The Board denied review
and the decision of the AJ thus became final. This appeal followed.
DISCUSSION
This court has jurisdiction over Becker’s petition pursuant to 5 U.S.C. § 7703.
This court must sustain a decision of the Board unless it is “found to be (1) arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained
without procedures required by law, rule, or regulation having been followed; [or] (3)
unsupported by substantial evidence.” Jacobs v. Dep’t of Justice, 35 F.3d 1543, 1545
(Fed. Cir. 1994) (citing 5 U.S.C. § 7703(c) (2006)). This court “will not overturn an
agency decision if it is supported by such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Hogan v. Dep’t of the Navy, 218 F.3d
1361, 1364 (Fed. Cir. 2000) (quoting Brewer v. United States Postal Serv., 647 F.2d
1093, 1096 (Ct. Cl. 1981)).
An employer engages in the conduct proscribed under § 4311(a) if the
performance of service “is a motivating factor in the employer’s action.” Id.
2010-3037 4
§ 4311(c)(1). In addition, an employer may not discriminate in employment against an
employee because such employee “has taken action to enforce a protection afforded
any person under [the USERRA].” Id. § 4311(b)(1).
USERRA claims are analyzed under a burden-shifting mechanism, where an
employee making a claim under the Act “bears the initial burden of showing by a
preponderance of the evidence that his military service was a substantial or motivating
factor in the adverse employment action.” Erickson v. U.S. Postal Serv., 571 F.3d 1364,
1368 (Fed. Cir. 2009). The employer, however, does not violate the Act if it can show
“that the action would have been taken in the absence of such . . . service.” 38 U.S.C.
§ 4311(c)(1), (c)(2)(D); see also Erickson, 571 F.3d at 1364 (“If the employee makes
that prima facie showing, the employer can avoid liability by demonstrating, as an
affirmative defense, that it would have taken the same action without regard to the
employee's military service.”). In other words, an employer only violates § 4311 “if it
would not have taken the adverse employment action but for the employee’s military
service.” Erickson, 571 F.3d at 1364. Becker’s claim against the Department of
Veterans Affairs does not provide sufficient evidence to meet his initial burden.
First, there is no evidence presented that Becker’s military service was “a
motivating factor” in the agency’s decision. The Board relied on the agency’s
submission of declarations from the interviewing panel that all seven candidates were
asked the same seven questions and evaluated under the same scale of 0-5. Also,
each panel member declared that Becker’s military service was not a factor in the
panel’s decision. Becker has presented no evidence disputing the panel members’
declarations.
2010-3037 5
Second, there is insufficient evidence that the DVA’s decision not to offer the
position to Becker was based on Becker’s prior actions under the USERRA. Although
during an EEO investigation an investigator discovered that the head of the Human
Resources office notified management about Becker’s actions, the Board did not find
any evidence that this information was communicated to the members of the
interviewing panel. Rather, the panel members’ declarations indicated that Becker’s
prior actions were not considered in their decision making process. Becker, therefore,
has not shown by a preponderance of the evidence that his military service or prior
USERRA actions were a motivating factor in the agency’s decision.
Because Becker did not meet his “initial burden of showing by a preponderance
of the evidence that his military service [or prior USERRA actions] was a substantial or
motivating factor in the adverse employment action,” we need not address whether the
agency would have taken the same action regardless of Becker’s service. See
Erickson, 571 F.3d at 1364.
Because the Board’s decision is supported by substantial evidence that neither
Becker’s military service nor his prior USERRA actions were “motivating factor[s]” in the
agency’s decision, this court affirms.
No costs.
2010-3037 6
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119 Ariz. 516 (1978)
582 P.2d 162
STATE of Arizona, Appellee,
v.
William Wayne MACUMBER, Appellant.
No. 3122-2.
Supreme Court of Arizona, En Banc.
June 9, 1978.
Rehearing Denied July 18, 1978.
*518 Bruce E. Babbitt, Former Atty. Gen., John A. LaSota, Jr., Atty. Gen. by William J. Schafer, III and Gregory A. McCarthy, Asst. Attys. Gen., Phoenix, for appellee.
Ross P. Lee, Maricopa County Public Defender by Paul J. Prato and Bedford Douglass, Jr., Deputy Public Defenders, Phoenix, for appellant.
HAYS, Justice.
On September 18, 1974 appellant was charged by information with two counts of first degree murder. Thereafter, he was found guilty by a jury on both counts, and he appealed to the Arizona Supreme Court. The original convictions were reversed. See State v. Macumber, 112 Ariz. 569, 544 P.2d 1084 (1976). At the second trial he was again convicted on both counts. This appeal is from the second convictions.
On the morning of May 24, 1962 two bodies were discovered in the desert north of Bell Road and east of Scottsdale Road in Maricopa County, Arizona. The bodies were later identified as Joyce Sterrenberg and Timothy McKillop. The bodies were lying next to an automobile owned by Joyce and in close proximity were found four expended .45-caliber shell casings and one live.45-caliber round. The automobile located at the scene was examined for fingerprints and some prints were lifted from the vehicle.
Investigation determined that Joyce and Timothy were approximately 20 years of age and were engaged to be married. In the early evening of March 23, 1962, they left the Sterrenberg residence in Joyce's car. Trial testimony indicated that the vehicle was seen at a service station on Scottsdale Road where gas was purchased and that thereafter the couple visited some model homes located at 32nd Street and Northern. Despite an extensive investigation, no substantial leads were developed.
Some twelve years after the death of the two victims, on August 23, 1974, Carol Macumber, the wife of the appellant Macumber, came to the sheriff's deputies with the information that appellant had made certain admissions to her regarding the alleged murders. Carol's statement was taken and a few days thereafter, after being apprised of his rights, appellant was confronted with his wife's statement. In essence, Macumber admitted that he had told his wife that he had killed the two victims.
It was later developed that appellant's palm print matched a print lifted from the chrome strip on the door of the car belonging to Joyce Sterrenberg. Appellant's 45-caliber gun was tested and the ejector markings were found to be identical with the markings on the shells found at the murder scene.
The defense at trial emphasized the fact that appellant and his wife in 1973 had been active in a volunteer search and rescue unit associated with the sheriff's office and had attended night courses in police science. Appellant's counsel brought out the fact that the wife Carol had thereafter been employed by the sheriff's office as a clerk, and that she and appellant during this time were having marital difficulties. These difficulties caused Carol to move out in June of 1974 and to ultimately divorce appellant in April of 1975.
It would appear from the cross-examination of Carol and the defense witnesses presented that the main thrust of the appellant's case was to discredit the prosecution's hard evidence by implying that Carol and/or other members of the sheriff's office *519 had tampered with the evidence, and had indeed "framed" the appellant who, by the testimony of character witnesses, was a fine law-abiding citizen.
Appellant in this appeal has raised the following issues:
I. DESTRUCTION OF DEPARTMENTAL REPORTS AND NOTES BY THE SHERIFF'S OFFICE DENIED APPELLANT A FAIR TRIAL AS GUARANTEED BY THE DUE PROCESS CLAUSE OF THE UNITED STATES CONSTITUTION.
II. THE TRIAL COURT'S REFUSAL TO PERMIT APPELLANT TO PRESENT THE TESTIMONY OF DR. MAIER TUCHLER DENIED APPELLANT A FAIR TRIAL AND DUE PROCESS.
III. THE TRIAL COURT'S REFUSAL TO PERMIT ERNEST VALENZUELA'S PREVIOUS ATTORNEYS TO TESTIFY REGARDING VALENZUELA'S CONFESSION TO THEM REGARDING THE HOMICIDES DENIED APPELLANT A FAIR TRIAL AND DUE PROCESS.
IV. THE TRIAL COURT ERRED IN ADMITTING EXHIBITS 28 AND 29 (THE SHELL CASINGS FOUND AT THE SCENE).
V. IMPOSITION OF CONSECUTIVE SENTENCES DENIED APPELLANT DUE PROCESS OF LAW.
VI. THE SENTENCE IMPOSED UNLAWFULLY FAILED TO CREDIT APPELLANT WITH TIME SERVED ON THE PREVIOUS CONVICTION.
VII. REFUSAL TO GRANT APPELLANT'S MOTION FOR CHANGE OF JUDGE WAS ERROR.
VIII. THE TRIAL COURT ERRONEOUSLY FAILED TO MAKE AVAILABLE TO DEFENSE COUNSEL CERTAIN MEDICAL RECORDS OF THE JUROR, LYNN JOHNS.
IX. THE TRIAL COURT ERRED IN REFUSING TO GRANT APPELLANT'S MOTION FOR NEW TRIAL AND MOTION TO VACATE JUDGMENT BASED UPON NEWLY DISCOVERED EVIDENCE.
I.
On the issue of destruction of departmental reports and notes, appellant paints with a broad brush, for "departmental reports and notes" covers the whole spectrum of an investigation. Does it include every note of a telephone call whether coherent or only remotely related to the investigation? Does it include reports of leads over a period of 12 years which in the investigator's opinion ended up in blind alleys and are valueless? In State v. Maloney, 105 Ariz. 348, 464 P.2d 793 (1970), we met this issue saying:
"It would be comfortable if a comprehensive formula could be devised to determine when the fairness of a trial is violated by withholding or destroying evidence which is, or may be, exculpatory. An examination of the authorities, however, dictates the obvious observation that courts must look to the circumstances of the particular case in reaching a decision." 105 Ariz. at 351, 464 P.2d at 796.
Earlier in State v. Maloney, supra, the court indicated that a defendant's speculation as to how some items might have given him aid and comfort is not persuasive. The trial judge here was informed as to appellant's position on certain allegedly destroyed evidence and found it did not affect the fairness of the trial. We concur.
The Court of Appeals in State v. Brewer, 26 Ariz. App. 408, 549 P.2d 188 (1976) (review by this court denied), discussed an argument on appeal which is virtually the same as the issue here. In summing up its position, the court said:
*520 "Thus Bryant,[1]Henry[2] and Maloney[3] all hold that there is no violation of the defendant's constitutional rights unless the government willfully or negligently destroys evidence that would have been favorable to the defendant's case. The defendant has not shown that in this instance the state either willfully or negligently destroyed the tapes in question. Moreover, there has no proof that such tapes were crucial to show defendant's innocence." (footnotes ours) 26 Ariz. App. at 416, 549 P.2d at 196.
The defense in this case goes well beyond the usual loss or destruction of evidence issue. Since one of the major contentions by appellant was that destruction of evidence was a part of the conspiracy against him, this issue was weighed and considered by the jury after they were properly instructed as to how to treat the allegedly missing evidence.[4] By its guilty verdicts the jury found against the appellant on this issue.
An examination of the record indicates that a description of the evidence allegedly destroyed is based on conjecture, albeit plausibly put together, but nevertheless conjecture. The usefulness of this evidence to appellant is demonstrated by inventive speculation, but speculation nonetheless. The issue of the state's bad faith was tried by both judge and jury; this should suffice. State v. Brewer, supra. See also United States v. Heiden, 508 F.2d 898 (9th Cir.1974), and United States v. Henry, 487 F.2d 912 (9th Cir.1973).
II. & III.
It appears more expedient to address together the issues concerning the exclusion of the testimony of the doctor and attorneys.
At the conclusion of the state's case, the court dismissed the jury in anticipation of a defense motion for a directed verdict. Counsel for the appellant requested that the court first consider two preliminary matters; the first pertaining to Ernest Valenzuela, now deceased. As to this matter the county attorney interposed an objection and referred the court to the previous trial and this court's ruling on the matter. State v. Macumber, supra. The court at the time the objection was asserted and subsequently in the proceedings indicated a concern that all of the evidence to support appellant's position be preserved by a hearing thereon. The judge indicated some difficulty in applying the ruling of the previous case which was submitted on the limited facts of an offer of proof. He indicated that a full hearing would be held.
The first witness called was Nina Reems, the mother of Valenzuela, who was questioned as to her waiver of the attorney-client privilege which would permit a former attorney for her son to testify as to an alleged confession to the murders of Sterrenberg and McKillop. Mrs. Reems was a Maricopa Indian with an apparently limited grasp of the English language. However, she did say that she would waive the privilege on behalf of her son.
Dr. Maier Tuchler, a psychiatrist, was called as a witness and he testified that he saw Valenzuela on August 14, 1964 at the request of the sheriff. Valenzuela made dreamy, vague statements about the Sterrenberg-McKillop murders. The doctor's attempt to pin down the details of the murders was wholly unsuccessful fantasy instead of facts. Dr. Tuchler's opinion was that Valenzuela had not committed the murders.
Another witness was the attorney to whom Valenzuela had allegedly confessed. The passage of time and the loss or destruction *521 of some notes, records, or tapes left the attorney with few specific recollections. The attorney indicated that the murder confession was simply a passing comment as he and his client were concerned with the defense of another wholly unrelated charge. The only detail given was Valenzuela's statement, "one was running. I shot him like a rabbit." This statement seems considerably at odds with the physical evidence developed by the state's witnesses.
Another attorney of Valenzuela's, who succeeded the one who previously testified, was called next. He indicated that Valenzuela told him that he killed a couple in North Scottsdale in 1962. This occurred in a conference and again when Valenzuela was being administered sodium pentothal. There were no details that the attorney could remember.
As a final witness in the hearing on the Valenzuela confession, the defense called Dr. Leo Rubinow, a psychiatrist, who administered sodium pentothal to Valenzuela in an interview in 1968 which was referred to by the previous witness. The doctor recalled none of the details of the interview and his notes thereon had been destroyed in 1971. He characterized the interview as successful.
At the conclusion of the hearing, the court indicated "that the testimony of the witnesses relating to statements made by Valenzuela lack sufficient circumstantial probability of trustworthiness surrounding those declarations to justify their admission into evidence."
Admission of evidence is within the discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion. State v. Reid, 114 Ariz. 16, 559 P.2d 136 (1976); State v. Brierly, 109 Ariz. 310, 509 P.2d 203 (1973). The necessity for again discussing the attorney-client privilege is obviated by the court's ruling which is supported by the record. The same reasoning applies to the issue of the doctor-patient privilege. The specially concurring opinion in State v. Macumber, supra, says:
"In State v. Pina, 12 Ariz. App. 247, 469 P.2d 481 (1970) our Court of Appeals recognized the applicability of the declaration-against-penal-interest exception to the hearsay rule in a criminal case but noted that the facts in that case did not show sufficient circumstantial probability of trustworthiness surrounding the declaration to justify its admission into evidence." (Emphasis added). 544 P.2d at 1088.
We believe the foregoing to be a correct statement of the law and we hold that it was properly applied by the trial court under the facts. See also Rule 804(b)(3) Arizona Rules of Evidence.
IV.
Appellant contends that two exhibits, 28 and 29, were neither properly identified nor was there established an adequate chain of possession. Deputy Sheriff Watson had picked up the shells at the scene and they had been placed in jars with a slip of paper in Watson's handwriting stating the identifying information. The shells in exhibit 29 had the initials of Watson, "JW", scratched inside. The firearms expert, Siber, testified that three shells in exhibits 28 and 29 had been fired by Macumber's gun.
It is urged that because Watson had not retained custody of the exhibits, and had in fact left the sheriff's office in December of 1968, the state had failed to establish a chain of custody. Therefore, it is argued that Watson's testimony must identify the shells so positively as to refute the appellant's theory of "frame up." The trial court admitted the exhibits in the face of this argument.
As we have previously stated in this opinion, admission of evidence is within the discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion. State v. Reid, supra. It is unnecessary to show that there is no possibility that the evidence was tampered with. State v. Hodges, 109 Ariz. 196, 507 P.2d 121 (1973). A foundation for its introduction may be laid either through identification testimony or by establishing a chain of custody; to require both would be unnecessary *522 and would not ensure a fairer trial to the accused. State v. Rascon, 97 Ariz. 336, 400 P.2d 330 (1965).
At trial, Watson, after examining the exhibits, testified they appeared substantially the same as when he collected them on the desert. He also identified his initials on the shell in exhibit 29 and the handwriting on the slips of paper taken from the jars. With the foregoing, a prima facie showing of admissibility was made. See State v. Davis, 110 Ariz. 51, 514 P.2d 1239 (1973).
Appellant, in keeping with his defense theory of conspiracy, urges that this is not sufficient because he has raised an issue of tampering. The appellant attempted to support the issue by cross-examination of the witness Watson. We find in the testimony, however, no hard evidence which would support a finding that the trial court abused its discretion. State v. Reid, supra. The Ninth Circuit Court of Appeals in United States v. Godoy, 528 F.2d 281 (9th Cir.1975), a case arising in Arizona, said:
"Godoy further contends that since a number of government employees had access to the safes in which the pills were stored in Tucson and Dallas, the government must make some showing that these employees did not meddle with the contents of the safes. In ruling on admissibility, however, the court may assume, absent evidence to the contrary, that public officials have properly executed their duties and no additional showing to this effect is required. (citation omitted)" 528 F.2d at 283-84.
There is no "evidence to the contrary" here. As we said in State v. Ritchey, 107 Ariz. 552, 490 P.2d 558 (1971):
"Under such circumstances, unless a defendant can offer proof of actual change in the evidence, or show that the evidence has, indeed, been tampered with, such evidence will be admissible." 490 P.2d at 563.
V.
After appellant's first conviction, he was sentenced to life imprisonment on each of the counts, to run concurrently. After his convictions in the recent trial, he was again given a life sentence on each of the counts, to run consecutively. Appellant contends that this more severe sentence is illegal as contrary to North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969).
17 A.R.S. Rules of Criminal Procedure, rule 26.14, provides:
"Where a judgment or sentence, or both, have been set aside on appeal, by collateral attack or on a post-trial motion, the court may not impose a sentence for the same offense, or a different offense based on the same conduct, which is more severe than the prior sentence unless it concludes, on the basis of evidence concerning conduct by the defendant occurring after the original sentencing proceeding, that the prior sentence is inappropriate."
The main thrust of North Carolina v. Pearce, supra, is that due process of law requires that a defendant should not be punished for asserting his right to an appeal. The Arizona rule is in accord with the ruling in Pearce. We are faced with the issue of whether here there are valid grounds for the tougher sentence. As provided by Pearce, the trial court, at a hearing to modify the sentence, stated its reasons for the sentence as follows:
"The second ground is that in the first trial, the defendant basically had a defense of lask [sic] of proof. The second trial, sharpened up the defense and instead of lacking of proof as a shield, came on with a story which accused Mrs. Macumber and the Maricopa County Sheriff'f [sic] office of conspiring and perjuring themselves for the purpose of convicting the defendant.
"He went on the defensive with his sword to attack them rather simply putting the State to it's [sic] proof. I feel that those facts justify on the second sentencing at this time, consecutive sentences relating to two counts of murder."
*523 We hold that it is not a sufficient ground to impose a harsher sentence because appellant asserts a new aggressive affirmative defense in the retrial. The mere assertion of this defense, obviously with the advice and concurrence of counsel, does not show baser mental and moral propensities than were previously before the court on initial sentencing.
It is ordered that the sentences be served concurrently. A.R.S. § 13-1717(A).
VI.
After sentencing appellant to consecutive terms of life imprisonment, the trial court modified the sentence on Count 1 to credit appellant with all time already served as a result of the previous conviction. Appellant alleges that the trial court erred in not similarly giving credit for time served against the sentence on Count 2. Our holding that appellant will serve the two sentences concurrently has rendered this issue moot, since appellant will receive credit against both sentences under the trial court's modified sentence on Count 1.
VII.
The appellant moved for a change of judge pursuant to Rule 10.1(a) of the Rules of Criminal Procedure. A hearing on this motion was set before a different judge, who denied the motion. Having read the record, we find no reason to overturn the trial court's ruling. State ex rel. Riley v. Collins, 7 Ariz. App. 36, 435 P.2d 871 (1968).
VIII.
As a part of his motion for new trial, appellant urged that one of the jurors, Lynn Johns, was intoxicated on heavy medication during the jury's deliberations. At least two of the jurors, when called to testify in a hearing on the matter, indicated that Mrs. Johns experienced mood changes and on occasion cried. Other members of the jury testified that Mrs. Johns did not appear to be intoxicated by reason of her medication. The juror's treating doctor gave testimony as to the medication prescribed, the dosages, and the underlying medical problems. Mrs. Johns herself denied any incapacity during the trial or the deliberations.
The defense called a psychiatrist who indicated he needed the juror's medical records in order to render an opinion on the matter. The doctor-patient privilege was asserted by the juror. Appellant requested the court to order the production of the records, and the request was denied. Appellant asserts that the rationale of Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973), requires that the privilege give way to the rights of the accused. We find such an extension of Chambers, supra, unwarranted under the facts of this case.
The trial judge correctly denied the motion for new trial based on juror intoxication. The record supports the conclusion that Mrs. Johns was not intoxicated by her medication.
IX.
As his final issue, appellant contends that his motion for new trial and motion to vacate judgment based on newly discovered evidence should have been granted. This is founded on two items: 1) the testimony of Josephine Wallace and, 2) testimony of witnesses concerning a desert party which took place in the vicinity of the murder scene the night of the murder.
A hearing was held on both of these items and the testimony of witnesses was received. The witness, Josephine Wallace, after reading about the trial, came forward with the testimony that she and her husband were operating a Dairy Queen on the night of the murder and saw the victims in the Dairy Queen near 11:00 that evening. This was contradicted by the departmental reports which seem to negate her testimony of previously identifying pictures of the victims.
The court said in ruling:
"I can conclude that had Mrs. Wallace's testimony in its present form been *524 brought to the jury, that there is no probability that it would have changed the verdict if introduced in evidence."
The second item concerned a group of people who went on a steak fry in the desert. Two witnesses were called who testified that during the evening they heard no gunshots in the time span between 7:30 and 11:30, leaving the inference that the murders were committed at a later time. The defense conducted tests in an attempt to duplicate conditions and there was testimony that the shots were easily heard. The state called two witnesses; one, a member of the steak fry party who did hear shots that evening. The trial court again ruled that none of the testimony, if heard by the jury, would affect the verdict.
Under the requirements of 17 A.R.S. Rules of Criminal Procedure, rule 24.1, rule 24.2.a(2) and rule 32.1.e(1), the trial court here properly considered
"[t]he probability that such facts, if introduced would have changed the verdict, finding, or sentence;..." Rule 32.1.e(1).
He concluded that neither item of evidence would have done so. In State v. McAvaney, 106 Ariz. 149, 472 P.2d 18 (1970), we similarly reviewed a trial court's ruling on a motion for new trial based on grounds of newly discovered evidence. It was there held that we will not interfere with the trial court's exercise of its discretion in the matter of granting a new trial unless there was an abuse of discretion. We find no such abuse here.
Judgments of conviction affirmed, sentences modified and affirmed as modified.
CAMERON, C.J., STRUCKMEYER, V.C.J., and HOLOHAN, and GORDON, JJ., concurring.
NOTES
[1] United States v. Bryant, 142 U.S.App.D.C. 132, 439 F.2d 642 (1971).
[2] United States v. Henry, 487 F.2d 912 (9th Cir.1973).
[3] State v. Maloney, supra.
[4] The instruction given was: "If you find that the state has destroyed or lost, caused to be destroyed or lost, or allowed to be destroyed or lost, any evidence whose content or quality are in issue, you may infer that the true fact is against the state's interest."
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907 F.2d 143
Frate (Joseph)v.Shannon (James)
NO. 89-2190
United States Court of Appeals,First Circuit.
JUN 18, 1990
1
Appeal From: D.Mass.
2
AFFIRMED.
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935 So.2d 319 (2006)
STATE of Louisiana, Plaintiff-Appellant,
v.
Jared JACKSON, Defendant-Appellee.
No. 41,179-CA.
Court of Appeal of Louisiana, Second Circuit.
June 28, 2006.
Department of Public Safety and Corrections, Office of State Police by Harrietta J. Bridges, for Appellant.
Gordon O. Bartage, Shreveport, for Appellee.
Before STEWART, MOORE and LOLLEY, JJ.
*320 MOORE, J.
The issue in this appeal is whether the State of Louisiana, Department of Public Safety and Corrections, Office of State Police, Bureau of Criminal Identification and Information (the "Bureau") has standing to bring a civil nullity action challenging a criminal court judgment both vacating a guilty plea to contributing to the delinquency of a juvenile and accepting a guilty plea to misdemeanor carnal knowledge of a juvenile. For the reasons set forth below, we hold that the Bureau lacks standing and affirm the trial court's decision.
*321 FACTS
In March 2001, Jared Jackson pled guilty to contributing to the delinquency of a juvenile, a violation of La. R.S. 14:92(7). At the time of the guilty plea, the court indicated that Jackson did not have to comply with the provisions of La. R.S. 15:542.1, under which any person convicted of a sex offense as defined by law has the duty to register under Louisiana's statutory scheme for registration of sex offenders, sexually violent predators, and child predators. Under the provisions of La. R.S. 15:541(14.1), contributing to the delinquency of a juvenile is a "sex offense" triggering the registration requirements. Due to the conflict between the trial court's statement indicating that Jackson did not have to comply with registration, and the statutory language indicating that Jackson did have to comply, a disagreement developed between Jackson and the Bureau.
In April 2004, Jackson was allowed to withdraw his guilty plea to the charge of contributing to the delinquency of a juvenile, and to enter a plea of guilty to misdemeanor carnal knowledge of a juvenile. The latter offense does not require registration. Approximately one-and-a-half years later, the Bureau filed a petition in civil court to annul the criminal court judgment. The Bureau asserted that the criminal court judgment was an absolute nullity because the court lacked jurisdiction to accept Jackson's guilty plea to misdemeanor carnal knowledge of a juvenile when that offense was not in existence at the time of the offense committed by Jackson. Jackson responded with peremptory exceptions of no right of action and no cause of action; the trial court subsequently sustained both exceptions, concluding that the Bureau lacked standing in the civil case to contest the validity of Jackson's guilty plea to misdemeanor carnal knowledge of a juvenile.
DISCUSSION
An action can be brought only by a person having a real and actual interest which he asserts. La. C.C.P. art. 681. The lack of such an interest may be challenged through the peremptory exception of no right of action, or no interest in the plaintiff to institute the suit. La. C.C.P. art. 927(A)(5). The function of an exception of no right of action is to determine whether the plaintiff belongs to the particular class of persons to whom the law grants a remedy for the particular grievance, or whether the plaintiff has a legal interest in the subject matter of the litigation. Caldwell Parish Police Jury v. Town of Columbia, 40,865 (La.App. 2 Cir. 3/15/06).
Subject to the supervision of the attorney general, the district attorney has "entire charge and control of every criminal prosecution instituted or pending in his district, and determines whom, when, and how he shall prosecute." Thus in State v. Gilmore, 332 So.2d 789 (La.1976), the Louisiana Supreme Court held that the district attorney was inherently empowered to amend an indictment charging first-degree murder to a charge of second-degree murder, even though there was no specific codal authorization for the procedure. Likewise, in State v. Matteson, 36,628 (La. App. 2 Cir. 12/11/02), 833 So.2d 1199, we held that a bondsman had no right to compel the district attorney to file a specific charge because the power to charge is solely within the discretion of the district attorney.
In the instant case, to allow the Bureau to challenge the criminal court judgment would be to usurp the district attorney's power to control every criminal prosecution instituted or pending in his district. The district attorney's power to *322 determine whom, when, and how he shall prosecute includes the power to oppose or not oppose the withdrawal of one guilty plea and the implementation of another.
The Bureau points out that under the provisions of La. R.S. 15:578, the Bureau is to establish and maintain a central repository of criminal history record information and a central registry of sex offenders, and the Bureau argues that, as a result, it has the duty to preserve the public records as created and to insure that no one alters or destroys the records. Thus, the Bureau argues that even though it was not one of the prosecuting parties, it can question not only the legality of the criminal court's order, but also the legality of the procedural steps taken to achieve an outcome in criminal proceedings that "adversely impinges on its obligation to ... maintain the State's sex offender registry."
In support of this argument, the Bureau cites State v. Daniel, 39,633 (La.App. 2 Cir. 5/25/05), 903 So.2d 644, in which we held that the Department of Public Safety had standing to annul a judgment ordering that a defendant's criminal record be destroyed. However, the significant distinguishing factor between Daniel and this case is that Daniel had nothing to do with the district attorney's power to control criminal prosecutions, but concerned the trial court's lack of power to order destruction of public records in a manner outside the scheme established in Title 44 of the Louisiana Revised Statutes.
This case does not concern either destruction of public records or expungement of criminal records. Thus, the judgment herein does not impinge upon the Bureau's duty to establish and maintain a central repository of criminal history record information and a central registry of sex offenders. As a consequence, the Bureau, as custodian of the these public records, has no more standing to bring a civil action demanding nullity of the criminal court judgment herein than a district court clerk, as custodian of the mortgage and conveyance records, has standing to bring a civil action demanding nullity of a civil judgment holding a mortgage or conveyance to be invalid. The duty of a custodian of public records to preserve the records and insure that no one alters or destroys them does not give the custodian a real and actual interest in judicial proceedings not addressing the custodian's record-keeping duties, but instead addressing legal issues that have the effect of creating, changing, or invalidating items that fall under the definition of public records.
Finally, we also observe that in McCoy v. City of Monroe, 32,521 (La.App. 2 Cir. 12/8/99), 747 So.2d 1234, in which the plaintiff attempted to argue in a civil action that his criminal conviction was an absolute nullity under La. C.C.P. arts.2001-2006, we held that the procedural articles dealing with the nullity of a civil judgment had no application to the plaintiff's attack on his criminal conviction and sentence. In the case at bar, the Bureau also is seeking to rely on nullity articles in the Louisiana Code of Civil Procedure to attack a criminal conviction and sentence.
CONCLUSION
For the reasons set forth above, we affirm the trial court's judgment sustaining the exception of no right of action. The Bureau lacks standing to attack Jackson's guilty plea and conviction because that judgment does not concern the Bureau's record-keeping duties, but concerns the district attorney's exclusive power to control criminal prosecutions instituted or pending in his district.
AFFIRMED.
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991 A.2d 362 (2010)
COM.
v.
SWINTON.
No. 2114 EDA 2008.
Superior Court of Pennsylvania.
January 21, 2010.
Affirmed.
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FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS July 12, 2013
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 13-4022
ROBERT CLIFTON TANNER,
Defendant-Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
(D.C. No. 2:12-CR-00503-DS-2)
Submitted on the motion to enforce and response:*
Diana Hagen, Assistant United States Attorney, David B. Barlow, United States
Attorney, Salt Lake City, Utah, for Plaintiff-Appellee.
Scott Keith Wilson, Assistant Federal Public Defender, and Kathryn N. Nester,
Federal Public Defender, Salt Lake City, Utah, for Defendant-Appellant.
Before TYMKOVICH, O’BRIEN, and GORSUCH, Circuit Judges.
PER CURIAM.
*
After examining the motion to enforce the plea agreement and the response,
this panel has determined unanimously that oral argument would not materially assist
the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).
The case is therefore ordered submitted without oral argument.
Robert Clifton Tanner was charged with four counts of mail fraud. He entered
into a plea agreement with the United States pursuant to Fed. R. Crim. P. 11(c)(1)(C)
in which he agreed to plead guilty to one count of mail fraud for which he would
receive a stipulated sentence of 30 months’ imprisonment. The district court
accepted Tanner’s guilty plea and sentenced him to the agreed 30 months’
imprisonment.
As part of his plea agreement, Tanner waived his right to appeal unless the
punishment imposed was greater than the parties had agreed. Despite this waiver and
the imposition of the agreed sentence, Tanner brought this appeal claiming his
sentence was illegal. The government has moved to enforce the appeal waiver, in
accordance with United States v. Hahn, 359 F.3d 1315, 1328 (10th Cir. 2004)
(en banc) (per curiam). We grant the government’s motion.
“This court will hold a defendant to the terms of a lawful plea agreement.”
United States v. Atterberry, 144 F.3d 1299, 1300 (10th Cir. 1998). And we will
enforce an appeal waiver in a plea agreement as long as three elements are met:
(1) “the disputed appeal falls within the scope of the waiver of appellate rights”;
(2) “the defendant knowingly and voluntarily waived his appellate rights”; and
(3) “enforcing the waiver would [not] result in a miscarriage of justice.” Hahn,
359 F.3d at 1325. In his response to the government’s motion, Tanner concedes his
appeal is within the scope of the waiver. He argues, however, that the record does
-2-
not affirmatively show his waiver to be knowing and voluntary and enforcing it
would be a miscarriage of justice.
“We only enforce waivers that defendants enter into knowingly and
voluntarily.” Id. at 1328-29. “Nevertheless, it is the defendant who bears the burden
of demonstrating [his] waiver was not knowing and voluntary.” United States v.
White, 584 F.3d 935, 948 (10th Cir. 2009) (alteration in original) (internal quotation
marks omitted); United States v. Edgar, 348 F.3d 867, 872- 73 (10th Cir. 2003)
(defendant “has the burden to present evidence from the record establishing that he did
not understand the waiver”). In determining whether a defendant waived his appellate
rights knowingly and voluntarily, “we especially look to two factors.” Hahn,
359 F.3d at 1325. The first factor is “whether the language of the plea agreement
states that the defendant entered the agreement knowingly and voluntarily” and the
second is whether there was “an adequate Federal Rule of Criminal Procedure 11
colloquy.” Id.
Seizing on that language, Tanner claims we cannot conclude his appeal waiver
was knowing and voluntary unless there was a specific discussion about it during the
Rule 11 colloquy. That is so, he says, because Rule 11 directs the district court to
“inform the defendant of, and determine that the defendant understands . . . the terms
of any plea-agreement provision waiving the right to appeal or to collaterally attack
the sentence,” Fed. R. Crim. P. 11(b)(1)(N). He assumes too much.
-3-
Determining whether a defendant knowingly and voluntarily waived his rights
is a question of law, see, e.g., United States v. Vidal, 561 F.3d 1113, 1118 (10th Cir.
2009) (guilty plea); United States v. Ibarra-Coronel, 517 F.3d 1218, 1221 n. 4
(10th Cir. 2008) (plea agreement), but it is one that must be based on “the particular
facts and circumstances surrounding [the] case, including the background,
experience, and conduct of the accused,” North Carolina v. Butler, 441 U.S. 369, 375
(1979) (internal quotation marks omitted). A properly conducted plea colloquy,
particularly one containing express findings, will, in most cases, be conclusive on the
waiver issue, in spite of a defendant’s post hoc assertions to the contrary. See, e.g.,
Blackledge v. Allison, 431 U.S. 63, 73-74 (1977) (“Solemn declarations in open court
carry a strong presumption of verity. The subsequent presentation of conclusory
allegations unsupported by specifics is subject to summary dismissal, as are
contentions that in the face of the record are wholly incredible.”). Another hearing
on a matter already judicially resolved would, at a minimum, be unnecessary.
Motions to enforce should be, as our rules suggest, see 10th Cir. R. 27.2, narrow,
focused and often summary. Hahn’s emphasis on the importance of the Rule 11
colloquy is thus explained, and its language should not be over read, as Tanner is
doing. In Hahn, we described the colloquy as one factor to be considered in a motion
to enforce an appeal waiver: it is a “second way in which the content of a
-4-
defendant’s waiver of appeal rights can be made known to him.” 359 F.3d at 1325
(internal quotation marks omitted).1
In considering the totality of the circumstances, either the express language of
the plea agreement, if sufficiently clear, detailed, and comprehensive, or the probing
inquiry of a proper Rule 11 colloquy could be enough to conclude the waiver was
knowing and voluntary. But the synergistic effect of both will often be conclusive.
Here, the plea agreement and the abbreviated Rule 11 colloquy, taken together,
demonstrate Tanner’s waiver to have been knowingly and voluntarily made.
Tanner was forty-five years old when he entered into the plea agreement and
held an associate’s degree. The agreement discussed the waiver of appellate rights in
two different paragraphs. Paragraph 8 provided:
I know that 18 U.S.C. § 3742(c)(1) sets forth circumstances under
which I may appeal my sentence. However, fully understanding my
right to appeal my sentence, and in consideration of concessions and/or
commitments made by the United States in this plea agreement, I
knowingly, voluntarily and expressly waive my right to appeal as set
forth in paragraph 12 below.
Mot. to Enforce, Attach. A at 3, ¶ 8. And paragraph 12, in turn, provided in pertinent
part:
Fully understanding my limited right to appeal my sentence, as
referenced above in paragraph 8, and in consideration of the concessions
and/or commitments made by the United States in this plea agreement, I
1
We relied on United States v. Chavez-Salais, 337 F.3d 1170, 1173 (10th Cir.
2003) (“The second way in which the content of a defendant’s waiver of appeal rights can
be made known to him is through the colloquy with the court required by Federal Rule of
Criminal Procedure 11.” (emphasis added)).
-5-
knowingly, voluntarily, and expressly waive my right to appeal any
sentence imposed upon me [except] the right to appeal as set forth in
18 U.S.C. § 3742(c)(1), which states that I may not file a notice of
appeal unless the sentence imposed is greater than the sentence set forth
in this agreement.
Id. at 5, ¶ 12(A)(6)(a).2
In addition to these statements, the plea agreement contained Tanner’s express
acknowledgements of the following: he was not pleading guilty due to any “threats,
promises or representations” made to him by anyone; he had discussed the plea with
his attorney as much as he wished and had no further questions; he was satisfied with
his attorney; his “decision to enter this plea was made after full and careful thought;
with the advice of counsel; and with a full understanding of [his] rights . . . and the
consequences of the plea”; he had “no mental reservations concerning the plea”; and
he did “not wish to make changes to this agreement because [he] agree[d] with the
terms and all of the statements are correct.” Id. at 8.
At the change of plea hearing, the trial judge questioned Tanner about his
understanding of the plea agreement, the factual basis for his plea, and his
willingness to enter into the plea agreement. The judge did not specifically mention
the appeal waiver contained in paragraph 12, but did question Tanner about the
provisions of paragraph 12 in general. In response, Tanner acknowledged having
2
In its motion to enforce, the government states that, through a clerical error,
the word “except” was omitted from this provision, making it appear that Tanner
waived even the limited right to appeal provided in 18 U.S.C. § 3742(c)(1), which
was not the parties’ intent.
-6-
read each of the provisions in paragraph 12 with his attorney. He said he understood
them and agreed to all of their terms. Mot. to Enforce, Attach. B, at 16. He also
verbally verified the acknowledgments he made in the written plea agreement,
described above, concerning his consultation with his attorney about the plea
agreement, his willingness to enter into it, and his agreement with all of its terms. Id.
at 18-19. Further, he evidenced his awareness of the terms of the plea agreement and
his understanding of the proceedings when he corrected the trial judge’s recitation of
the factual basis for his plea contained in the agreement. See id. at 12-15. Based on
the evidence before him, the judge found Tanner’s plea to be “freely and voluntarily
[made] with full knowledge of his legal rights.” Id. at 21.
Tanner would have us ignore all this evidence, simply because the judge failed
to specifically discuss the appeal waiver with him. Tellingly, he does not contend the
waiver was actually unknowing or involuntary. His argument is entirely technical:
without a specific Rule 11 colloquy, we cannot conclude that his waiver was knowing
and voluntary. But it is Tanner’s burden to prove his waiver was not knowing and
voluntary. Edgar, 348 F.3d at 872-73 (defendant “has the burden to present evidence
from the record establishing that he did not understand the waiver”). He points to no
-7-
evidence suggesting it was not. Indeed, the evidence is more than sufficient to show
his appeal waiver to have been knowingly and voluntarily made.3
Finally, Tanner argues that even if we conclude his appeal waiver was
knowing and voluntary, we should not enforce it because doing so would result in a
miscarriage of justice. See Hahn, 359 F.3d at 1327 (“The third prong of our
enforcement analysis requires the court to determine whether enforcing the waiver
will result in a miscarriage of justice.”). According to him, enforcing the appeal
waiver when the trial judge failed to question him about it during the Rule 11
colloquy would seriously affect the fairness of the proceedings. See id. (this court
will not enforce a waiver that is “otherwise unlawful” due to an error that “seriously
affect[s] the fairness, integrity or public reputation of judicial proceedings” (internal
quotation marks omitted)).
District court judges should, of course, “perform vigilantly their duties under
Rule 11 . . . [because] [s]trict compliance with the requirements of Rule 11 conserves
judicial resources and offers the best mechanism to ensure that defendants understand
their situation . . . [and] this is especially true with appellate waivers.” Edgar,
348 F.3d at 871 n.3.4 But we can contemplate no reason why a failure to comply
3
Even without the appeal waiver, Tanner would be significantly limited in his
right to appeal his sentence by the operation of 18 U.S.C. § 3742(c)(1) because his
plea agreement included a specific sentence agreed upon by the parties.
4
Indeed, “it is always error for a district court to fail to discuss an appellate
waiver provision during a Rule 11 colloquy, although not always reversible error.”
Edgar, 348 F.3d at 871.
-8-
with Rule 11 would be more strictly applied in considering a motion to enforce an
appeal waiver than it would be in considering the waiver as part of the merits of the
direct appeal. See United States v. Dominguez-Benitez, 542 U.S 74, 81, 83 (2004)
(relief for Rule 11 error must be “tied in some way to prejudicial effect” and a
defendant seeking relief from Rule 11 error to which he did not object “must show a
reasonable probability that, but for the error, he would not have entered the plea”).
Tanner, perhaps understandably, does not tell us why he would probably change his
plea after having received the very sentence he bargained for and agreed to. His
motive is transparent; he sees an opportunity to capitalize on what is, in this case, an
insignificant error. On this record, the judge’s failure to specifically discuss the
appeal waiver entitles Tanner to no relief.
Tanner’s waiver of appeal rights is enforceable: it was knowingly and
voluntarily made, this appeal falls within its scope, and no miscarriage of justice
could flow from enforcement. The government’s motion to enforce the waiver is
granted and this appeal is DISMISSED.
-9-
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995 F.2d 894
UNITED STATES of America, Plaintiff-Appellee,v.Wendell WOODS, Defendant-Appellant.
No. 91-56422.
United States Court of Appeals,Ninth Circuit.
Argued and Submitted April 5, 1993.Decided June 8, 1993.
Deborah Lewis, Deputy Federal Public Defender, Los Angeles, CA, for defendant-appellant.
Mark D. Flanagan and Miriam A. Krinsky, Asst. U.S. Attys., Los Angeles, CA, for plaintiff-appellee.
Appeal from the United States District Court for the Central District of California David V. Kenyon, District Judge, Presiding.
Before: HALL, WIGGINS, and TROTT, Circuit Judges.
CYNTHIA HOLCOMB HALL, Circuit Judge:
OVERVIEW AND JURISDICTION
1
Wendell Woods appeals the district court's order revoking his conditional release pursuant to 18 U.S.C. § 4246(f). The district court had jurisdiction under 18 U.S.C. §§ 3231, 4246(f). This court has jurisdiction under 28 U.S.C. § 1291. We reverse.
BACKGROUND
2
On November 5, 1979, Mr. Woods was sentenced to twelve years imprisonment for bank robbery. While in prison, Mr. Woods was diagnosed with a mental impairment. He spent the next eight years shuttling between penitentiaries and medical centers. On February 26, 1987, he was transferred to the Federal Medical Center at Rochester, Minnesota.
3
In anticipation of Mr. Woods' release from custody, the district court for the District of Minnesota ("Minnesota district court") held a hearing to determine whether Mr. Woods posed a threat to society. On September 29, 1987, the Minnesota district court found that Mr. Woods was suffering from a mental disease or defect which would create a substantial risk of bodily injury to another person or serious damage to the property of another if he were released from the Rochester facility. As a result, the Minnesota district court ordered that Mr. Woods remain hospitalized pursuant to 18 U.S.C. 4246(d).
4
On December 1, 1987, the Minnesota district court granted Mr. Woods a conditional discharge pursuant to 18 U.S.C. 4246(e). However, Mr. Woods violated the terms of his conditional release and was recommitted on March 30, 1990.
5
Mr. Woods then filed a second petition for release. On November 7, 1990, the Minnesota district court granted his request. Mr. Woods' release was made conditional on the acceptance of certain terms. He signed a document indicating that he understood that he was required to follow the conditions set out in the Minnesota district court's conditional release order. One of the terms of Mr. Woods' conditional release was that he abide by the rules and regulations established by the United States Probation Office (USPO) for the Central District of California--the agency responsible for monitoring his conditional release.1
6
Mr. Nagshineh, the USPO officer assigned to Mr. Woods' case, spoke with several psychiatrists and psychologists familiar with Mr. Woods' condition. He was told that the consumption of alcohol would negatively affect the defendant's medication. As a result, he instructed Mr. Woods not to drink alcohol.
7
Mr. Woods chose not to comply with this condition. On two occasions, Mr. Nagshineh discovered that Mr. Woods had consumed alcohol and had become violent. Mr. Nagshineh informed the district court for the Central District of California ("California district court") of this violation. The California district court responded by issuing a bench warrant for Mr. Woods' arrest. On August 14, 1991, Mr. Woods was taken into custody.
8
On August 16, 1991, the California district court held an evidentiary hearing to determine whether Mr. Woods' conditional release should be revoked. It found that one of the terms of Mr. Woods' release was that he abide by the conditions established by the USPO and that he had been instructed by Mr. Nagshineh to avoid alcohol. Because he consumed alcohol, Mr. Woods had violated the terms of his conditional release. The use of alcohol made Mr. Woods a danger to other people and the property of other people. Under 18 U.S.C. § 4246(f), the California district court concluded that these circumstances justified revocation of Mr. Woods' conditional release.
STANDARD OF REVIEW
9
The district court's findings of fact are reviewed under the clearly erroneous standard. United States v. Stone, 813 F.2d 1536, 1538 (9th Cir.), cert. denied 484 U.S. 839, 108 S.Ct. 125, 98 L.Ed.2d 83 (1987). The district court's interpretation of 18 U.S.C. § 4246 is reviewed de novo. United States v. Valencia-Roldan, 893 F.2d 1080, 1082 (9th Cir.), cert. denied, 495 U.S. 935, 110 S.Ct. 2181, 109 L.Ed.2d 509 (1991).
DISCUSSION
A. Mootness
10
Mr. Woods contends that the California district court erred in revoking his conditional release. Before reaching the merits of this claim we must first determine whether this controversy is moot. At oral argument we were informed that following the district court's revocation order of August 1991, Mr. Woods was granted another conditional release. This release was revoked in September 1992. Thus, Mr. Woods' current confinement is not due to the revocation order being challenged in this action.
11
Nonetheless, we decline to apply the mootness doctrine in this case. Mr. Woods' hospital detentions are usually for relatively brief time periods, and are not likely to persist long enough to allow for the completion of appellate review. Moreover, Mr. Woods continues to be subject to the terms of the Minnesota district court's conditional release order. Violation of this order served as the basis of the revocation order at issue. Finally, the proper construction of 18 U.S.C. § 4246 is an issue of continuing and public importance. For these reasons we hold that Mr. Woods' claim is not moot. Friend v. United States, 388 F.2d 579 (D.C.Cir.1967).
B. Revocation Order
12
Turning to the merits of Mr. Woods' claim, we note that the Courts of Appeals have not had occasion to interpret 18 U.S.C. § 4246(f). In resolving Mr. Woods' claim we focus exclusively on the text of the statute.2 We note, however, that the legislative history of this section is not helpful. See S.Rep. 225, 98th Cong., 2d Sess., 1984 U.S.Code Cong. & Ad.News 3182, 3435.
13
Under 18 U.S.C. § 4246(f), a district court may revoke a conditional discharge if two conditions are met. First, a person must fail to comply with his prescribed regimen of medical, psychiatric, or psychological treatment. Second, the court must conduct a hearing and determine whether in light of this failure the person's continued release would pose a risk to society.
14
Mr. Woods contends that the regimen of medical, psychiatric, or psychological treatment established for him failed to comply with statutory requirements. He argues that revocation based on the failure to comply with a flawed regimen violates due process. We agree.
15
The Minnesota district court was required to provide a regimen of medical, psychiatric, or psychological treatment for Mr. Woods under 18 U.S.C. § 4246(e)(2)(A). This section does not expressly state who should prescribe the treatment regimen. However, the statute clearly envisions that a medical expert will be consulted or retained. Indeed, the statute requires that medical experts both approve and administer the treatment regimen. 18 U.S.C. §§ 4246(e)(2)(A), 4246(f).
16
In the instant case, the Minnesota district court did not consult or retain a medical expert. Instead, it delegated the responsibility for prescribing a treatment regimen to the USPO for the Central District of California. The Minnesota district court seemed to consider Mr. Woods' discharge from civil commitment as analogous to a person serving a sentence of probation. This is evidenced by the boilerplate language used in the conditional release order. Although not prohibited by the statute, this approach makes little sense. Unskilled in the field of medicine, penal officers are hardly equipped for the complex task of prescribing individualized treatment regimens.
17
The Minnesota district court also erred by ignoring the express requirements of 18 U.S.C. 4246(e)(2)(A). This section requires that a prescribed regimen of medical, psychiatric, or psychological care must be approved by both the district court and the director of the medical facility in which the person is committed. There is no evidence that either the Minnesota district court or the director of the Rochester facility where Mr. Woods was located prior to his release ever approved the regimen established by Mr. Nagshineh.
18
It could be argued that these omissions are excusable because of the unique circumstances of this case. The Minnesota district court transferred jurisdiction over Mr. Woods' case to the Central District of California before Mr. Nagshineh had an opportunity to develop a treatment regimen. As a result, the court did not have an opportunity to review the prescribed regimen or obtain the approval of the medical director of the Rochester facility.
19
If the Minnesota district court was unable to comply with the statutory requirements, the California district court should have filled this void. There is no indication that the California district court addressed the deficiencies in the Minnesota district court's release order. It did not approve the regimen developed by Mr. Nagshineh or consult the director of the Rochester facility. In addition, no effort was made to retain a medical expert to ensure that Mr. Woods was receiving proper care.
20
The California district court had the opportunity to ensure that the statutory requirements were followed. It could have acted when it assumed control of the case during the revocation proceeding. The California district court should have realized that the proper procedures were not being followed when Mr. Nagshineh informed the court that Mr. Woods had failed to comply with his prescribed treatment regimen. Section 4246(f) provides that the director of the medical facility responsible for administering a person's treatment regimen should make this disclosure.
21
Cases involving the transfer of conditionally discharged persons such as Mr. Woods present difficult situations. A certain amount of discretion must be afforded to the district courts. However, this cannot come at the expense of the significant liberty interests at stake in civil commitment proceedings. See United States v. Sahhar, 917 F.2d 1197, 1206 (9th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 1591, 113 L.Ed.2d 655 (1991); United States v. Baker, 807 F.2d 1315, 1320-22 (6th Cir.1986).
22
Congress was cognizant of this liberty interest and set forth specific procedural guidelines to ensure that it was not infringed. Id. In this case, the district courts failed to comply with these procedures. The result was a flawed treatment regimen. Revoking Mr. Woods' conditional release based on noncompliance with this flawed regimen violates due process. As a result, we reverse the district court's decision.
23
On remand, we instruct the district court to determine whether Mr. Woods currently poses a threat to society. If so, he should be recommitted. However, if the court determines that Mr. Woods is sufficiently recovered, he should be conditionally discharged under a treatment regimen adopted by the district court. This treatment regimen will have to be developed in accordance with the dictates of the statute. This will require the district court to consult or retain medical experts, including the director of the Rochester facility. In addition, the district court should select a medical facility to administer the plan. If Mr. Woods violates the terms of his treatment regimen his conditional release will be subject to revocation and he will risk recommitment.
24
REVERSED.
1
Mr. Woods was placed in a halfway house in Los Angeles and jurisdiction over his case was transferred to the district court for the Central District of California
2
Section 4246(f) provides:
The director of a medical facility responsible for administering a regimen imposed on a person conditionally discharged under subsection (e) shall notify the Attorney General and the court having jurisdiction over the person of any failure of the person to comply with the regimen. Upon such notice, or upon other probable cause to believe that the person has failed to comply with the prescribed regimen of medical, psychiatric, or psychological care or treatment, the person may be arrested, and, upon arrest, shall be taken without unnecessary delay before the court having jurisdiction over him. The court shall, after a hearing, determine whether the person should be remanded to a suitable facility on the ground that, in light of his failure to comply with the prescribed regimen of medical, psychiatric, or psychological care or treatment, his continued release would create a substantial risk of bodily injury to another person or serious damage to property of another.
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35 F.3d 557
NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.UNITED STATES OF AMERICA, Plaintiff-Appellee,v.Frazier HAWKINS, a/k/a Hawk, a/k/a Kenneth Hawkins,Defendant-Appellant.
No. 93-5543.
United States Court of Appeals, Fourth Circuit.
Submitted: July 26, 1994.Decided: September 9, 1994.
Appeal from the United States District Court for the District of South Carolina, at Florence. C. Weston Houck, District Judge. (CR-92-129)
Susan B. Oliver, Columbia, SC; Douglas N. Truslow, Columbia, SC, for appellant.
J. Preston Strom, Jr., U.S. Atty., Robert H. Bickerton, Asst. U.S. Atty., Thomas E. Booth, U.S. Dept. of Justice, Washington, D.C., for appellee.
D.S.C.
AFFIRMED.
Before WILKINSON, NIEMEYER, and MICHAEL, Circuit Judges.
OPINION
PER CURIAM:
1
Frazier Hawkins was convicted by a jury of conspiracy to possess and distribute cocaine and crack, possessing with intent to distribute crack, and distributing crack, in violation of 21 U.S.C. Secs. 841(a)(1), 846 (1988), and 18 U.S.C. Sec. 2 (1988). He was sentenced pursuant to the federal sentencing guidelines1 to 292 months on each count, to run concurrently, with five years of supervised release. He now appeals his conviction and sentence. Court-appointed defense counsel have filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967), raising three issues but indicating that, in their view, there are no meritorious issues for appeal. Hawkins has filed a pro se supplemental brief, as well as a motion requesting the appointment of substitute counsel. We affirm the conviction and sentence and deny the motion for substitute counsel.
I.
2
Hawkins's counsel first challenge the sufficiency of the evidence underlying the conviction on each of the above-referenced charges. Specifically, they note that key government witnesses were accomplices or drug addicts whose testimony was not worthy of belief. In his supplemental brief, Hawkins further argues that these government witnesses were biased against him as a result of his previous employment as a bouncer in a Myrtle Beach bar, or as a result of jealousy stemming from his relationship with his girlfriend.
3
It is well established that the question of witness credibility is within the sole province of the jury and not susceptible to review. United States v. Saunders, 886 F.2d 56, 60 (4th Cir.1989). Even uncorroborated accomplice testimony may suffice to support a conviction. United States v. Figurski, 545 F.2d 389, 392 (4th Cir.1976). Here, the potential biases of each of the above-mentioned witnesses was fully explored during direct and cross examination. Additionally, the district court gave the jury lengthy instructions on how to weigh the credibility of witnesses, and specifically cautioned the jury to weigh accomplice and informer testimony with special care. Thus, the jury was well aware of the potential for bias, but nonetheless chose to believe these witnesses.
II.
4
To the extent Hawkins seeks to challenge the sufficiency of the evidence apart from the question of credibility, that challenge must likewise fail. Claims of insufficient evidence are reviewed on appeal to determine "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979).
5
To establish a drug conspiracy under 21 U.S.C. Sec. 846, the government was only required to show the existence of an agreement to violate federal drug laws and the defendant's willful participation in that agreement. E.g., United States v. Clark, 928 F.2d 639, 641-42 (4th Cir.1991). The existence of an agreement may be inferred from purely circumstantial evidence "indicating that two or more persons acted in concert to achieve an illegal goal." United States v. Laughman, 618 F.2d 1067, 1074 (4th Cir.), cert. denied, 447 U.S. 925 (1980).
6
Evidence presented at trial established that Hawkins supplied cocaine to John A. White, White's sons James and John W., and other members of White's drug distribution organization from 1987 to 1991. John W. and James White testified that Hawkins delivered $1,000 packages of cocaine to them once or twice a week in 1989, and on one occasion supplied John W. with twenty to thirty bags of cocaine worth $20 to $25. James White testified that he accompanied Hawkins to Miami, where Hawkins maintained a residence, for the purpose of obtaining cocaine from Hawkins's supplier for resale in South Carolina. James White purchased $1,500 of that cocaine from Hawkins. Danny Brown testified that he, Don Butler, and Chris Pyatt made similar trips to Miami with Hawkins, and that Hawkins would typically leave them at his Miami residence while he procured drugs for the group. On one such trip Brown gave Hawkins several thousand dollars for the purchase of cocaine. Brown also described how Hawkins cooked the cocaine, then helped bag it for resale before returning to South Carolina.
7
Tammy Mitchell, a street dealer for the Whites who sometimes received bags of cocaine directly from Hawkins, testified that the Whites paid Hawkins in cash for his drugs when Hawkins was in South Carolina, and wired him money via Western Union when he was in Florida. According to John W., the wire transfers involved as much as $5,000 to $6,000. Although Hawkins took the stand and refuted this testimony, the jury nonetheless chose to believe it. This testimony illustrated that Hawkins acted in concert with others to violate federal drug laws, and did so willfully and intentionally. Hence, the evidence was sufficient to support his conspiracy conviction.
8
Hawkins's remaining evidentiary challenges are equally unavailing. The essential elements of possession with intent to distribute under Sec. 841(a)(1) are: (1)knowing and intentional possession, either actual or constructive; (2)with the intent to distribute. United States v. Nelson, 6 F.3d 1049, 1053 (4th Cir.1993), cert. denied, 62 U.S.L.W. 3792 (U.S.1994). Similarly, proof of knowing distribution is required to support a Sec. 841(a)(1) distribution charge. See United States v. Pupo, 841 F.2d 1235, 1238-39 (4th Cir.), cert. denied, 488 U.S. 842 (1988).
9
In this case, Hawkins and Danny Brown were jointly charged with possession of crack with intent to distribute and with distribution of crack on November 17, 1988. In support of these charges, James Brown, a Myrtle Beach drug dealer, testified that he was arrested on November 17, 1988, for possession of crack received from Danny Brown on the same date. Danny Brown did not identify the person who gave him the drugs, but approximately three days later following James Brown's release from jail, Hawkins approached him, and asked him if Danny Brown had given him the entire quantity of drugs. Defense counsel objected to this testimony on hearsay grounds, but the court allowed it in under the coconspirator exception of Fed. R. Evid. 801(d)(2)(E), and we perceive no abuse of discretion in that ruling, given the solid evidence of a conspiracy involving both James Brown and Hawkins. United States v. Blevins, 960 F.2d 1252, 1255-56 (4th Cir.1992). Viewed against the backdrop of the conspiracy, we also conclude that the jury could reasonably infer from James Brown's testimony that Hawkins knowingly and intentionally possessed with intent to distribute and actually distributed the drugs received by James Brown on November 17, 1988.
III.
10
Counsel next challenge the district court's finding that 1.5 kilograms of crack were attributable to Hawkins for sentencing purposes. In reaching this conclusion, the district court primarily relied upon the trial testimony of Danny Brown concerning amounts of drugs purchased on the various trips to Miami. Hawkins argues on appeal that this testimony was unreliable. The quantity of drugs described by Danny Brown resulted in a base offense level of 38 under the Drug Quantity Table of guideline section 2D1.1(c)(3).
11
We reject this challenge. Questions of quantity go to sentencing rather than to guilt. Hence, the government is only required to show drug quantity by a preponderance of the evidence. United States v. Powell, 886 F.2d 81, 85 (4th Cir.1989), cert. denied, 493 U.S. 1084 (1990). Here, the evidence relied upon by the district court was trial testimony given under oath and subject to cross examination. This was more than adequate to support the district court's finding.
IV.
12
Counsel next contend that the 292-month sentence imposed by the district court was excessive. The sentence was calculated on the basis of a 40-point adjusted offense level,2 and a criminal history score of I.3 This placed Hawkins in the 292-365 month range of imprisonment under the Sentencing Table of guideline section 5. This Court does not review a sentence within the guidelines range, unless imposition of the sentence violates the law or reflects an incorrect application of the guidelines. United States v. Jones, 18 F.3d 1145, 1151 (4th Cir.1994). No such errors have been identified by Hawkins, and none are evident on this record. Hence, we decline to review the length of Hawkins's sentence.
V.
13
In addition to his Supplemental Brief, Hawkins has filed a motion with this Court requesting substitute counsel because he is unhappy with Mr. Truslow's performance on appeal.4 We decline to allow substitution of new counsel. We have previously held that indigent defendants have no right to a particular attorney; substitute counsel may only be demanded for good cause. United States v. Gallop, 838 F.2d 105, 108 (4th Cir), cert. denied, 487 U.S. 1211 (1988). Here, the trial and sentencing transcripts reveal that counsel did a thorough and conscientious job of representing Hawkins below. The fact that he has chosen to file an Anders brief on appeal in no way undermines the quality of his representation. In the absence of other factors establishing good cause for Hawkins's request, we deny the motion for substitute counsel.
VI.
14
In accordance with Anders, supra, we have examined the entire record in this case and find no other meritorious issues for appeal. Pursuant to the plan adopted by the Fourth Circuit Judicial Council in implementation of the Criminal Justice Act of 1964, 18 U.S.C. Sec. 3006A (1988), this Court requires that counsel inform their client in writing of his right to petition the Supreme Court for further review. If requested by their client to do so, counsel should prepare a timely petition for a writ of certiorari.
15
For those reasons noted above, we affirm the district court's judgment of conviction and sentence, and deny Hawkins's motion for substitute counsel. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the Court and argument would not aid the decisional process.
AFFIRMED
1
United States Sentencing Commission, Guidelines Manual (Nov.1992)
2
As noted above, the quantity of drugs attributable to Hawkins resulted in a base offense level of 38. The government argued for a four-point upward adjustment based on Hawkins's role in the offense, but the district court rejected this argument. The district court agreed, however, that a two-point upward adjustment for obstruction of justice was warranted, resulting in a total offense level of 40
3
Hawkins had one prior offense for which he was sentenced to probation, generating one point under guideline section 4A1.1(c)
4
Hawkins was represented at trial by Douglas Truslow. He is represented on appeal by Truslow and Susan Oliver. His motion only challenges Mr. Truslow's performance
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955 F.2d 295
60 USLW 2577
Lauriberto IGNACIO, Petitioner,v.IMMIGRATION & NATURALIZATION SERVICE, Respondent.
No. 91-5088.
United States Court of Appeals,Fifth Circuit.
Feb. 26, 1992.Rehearing and Rehearing En BancDenied March 19, 1992.
Lee Teran, Barbara Hines and Robert F. Greenblum, Lawyers' Committee for Civ. Rights under Law of Texas, Austin, Tex., for petitioner.
William Barr, Atty. Gen., Philemina McNeill Jones, Atty., Donald E. Keener, Acting Asst. Director and Robert L. Bombough, U.S. Dept. of Justice, Washington, D.C., for respondent.
John B.Z. Caplinger, Dist. Director, I.N.S., New Orleans, La., other interested parties.
Petition for Review of an Order of the Immigration and Naturalization Service.
Before POLITZ, Chief Judge, KING, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:
1
Following the Board of Immigration Appeals' reversal of the Immigration Judge's grant of relief from deportation under § 212(c) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1182(c), Lauriberto Ignacio moves this court to order that an automatic stay of the Board's final order of deportation is in effect, or in the alternative, grant a stay of deportation. For the reasons set forth below, we deny Ignacio's motion.
I. FACTS AND PROCEDURAL HISTORY
2
On September 9, 1983, Ignacio was convicted of conspiracy to import cocaine in violation of 21 U.S.C. § 963; use of a telephone in commission of felonies under 21 U.S.C. §§ 843(b) and 952, in violation of 21 U.S.C. § 843(b); conspiracy to distribute and possess with intent to distribute cocaine in violation of 21 U.S.C. § 846; and use of a telephone in commission of a felony under 21 U.S.C. § 952, a violation of 21 U.S.C. § 843(b) and 18 U.S.C. § 2. After serving an eight-year prison term, Ignacio was released to the Immigration and Naturalization Service (INS). In a deportation hearing held on July 23, 1991, Ignacio was found deportable under INA § 241(a)(2)(B)(i), 8 U.S.C. § 1251(a)(2)(B)(i),1 as an alien convicted of a controlled substance violation. Ignacio conceded deportability and applied for a discretionary waiver of deportability under INA § 212(c), 8 U.S.C. § 1182(c). The Immigration Judge granted Ignacio the waiver. The Government appealed this decision to the Board, contending that, as "an alien who has been convicted of an aggravated felony and has served a term of imprisonment of at least five years,"2 Ignacio was ineligible for a § 212(c) waiver. The Board reversed the decision of the Immigration Judge and held that Ignacio was ineligible for the § 212(c) waiver because he had been convicted of an aggravated felony and had served more than five years in prison. Ignacio had contended that the statutory bar did not apply to him because his conviction was in 1983 and the aggravated felony provision was not added by the Anti-Drug Abuse Act (ADAA) until 1988.3
3
Ignacio has petitioned this court for a review of the Board's decision ordering him deported from the United States. Meanwhile, the Immigration Service has indicated that it plans to execute the final order to deport Ignacio. Since the crime for which Ignacio was convicted falls under the definition of "aggravated felony," the INS considers Ignacio ineligible for an automatic stay of deportation pursuant to 8 U.S.C. § 1105a(a)(3).4 Ignacio moves this court to stay his deportation, arguing that (1) he is eligible for an automatic stay because § 1105a(a)(3) does not apply to convictions that predate the passage of the ADAA, (2) denial of the stay would violate his Fifth Amendment due process rights, and (3) he is eligible for a discretionary stay of deportation. We address each of these issues in turn below.
II. DISCUSSION
A. Eligibility for an automatic stay
4
First, Ignacio argues that he qualifies for an automatic stay of deportation because Congress did not intend for the aggravated felony exception to apply to convictions before 1988. Section 1105a(a)(3) serves to stay a final order of deportation automatically pending judicial review of the Board decision, "unless the court otherwise directs or unless the alien is convicted of an aggravated felony." Id. The Immigration Act of 1990 (IMMACT) amended this section to provide further that, if the alien has been convicted of an aggravated felony, "the Service shall not stay the deportation of the alien pending determination of the petition of the court unless the court otherwise directs." In December, new legislation amended this provision so that it would "apply to convictions entered before, on, or after [the effective] date." Miscellaneous and Technical Immigration and Naturalization Amendments of 1991 (Technical Amendments), Pub.L. No. 102-232, 105 Stat. 1733, § 306(a)(11) (amending IMMACT § 513(b)). This amendment "take[s] effect as if included in the enactment of the Immigration Act of 1990." Technical Amendments § 310(1).
5
We have not yet confronted the question of whether the newly amended automatic stay provision would apply to aliens in Ignacio's situation. Before the passage of the Technical Amendments, the Ninth Circuit held that Congress intended the IMMACT amendment to the automatic stay provision to apply only prospectively to aliens who are convicted of aggravated felonies on or after the effective date of the Anti-Drug Abuse Amendment (November 18, 1988), when the term "aggravated felony" was first added to the Immigration and Nationality Act. Ayala-Chavez v. INS, 945 F.2d 288, 294-95 (9th Cir.1991) (addressing the question as one of first impression). Ayala-Chavez reasoned that the structure and language of the ADAA indicate that Congress intended for the deportation-related provisions to operate only prospectively. See id. at 291-93. However, Ayala-Chavez recognized that § 513(b) of the IMMACT did "not in any way address the substantive retroactivity question--when the conviction must have occurred." 945 F.2d at 291 n. 5 (emphasis in original). The Technical Amendments answer this question.
6
Congress added the "on, before, or after" language to the effective date provision accompanying the 1990 revision of § 1105a(a)(3). See Technical Amendments § 306(a)(11) (amending § 513(b) of IMMACT). Ignacio maintains that § 306(a)(11) of the Technical Amendments was not intended to preclude aggravated felons from obtaining an automatic stay if their convictions predated the passage of the ADAA. We disagree. The insertion of the "on, before, or after" language demonstrates a clear intent to bar from an automatic stay those aliens whose convictions fall under the definition of "aggravated felony," regardless of the date of those convictions. Cf. United States v. Koziel, 954 F.2d 831, 833, (2d Cir.1992) (holding that "on, before, or after" language in IMMACT § 505(b) gives provision eliminating judicial recommendations against deportation full retroactive effect); United States v. Bodre, 948 F.2d 28, 35 (1st Cir.1991) (same).
7
It would distort the plain meaning of this language to limit the application of the § 1105a(a)(3) bar to convictions for aggravated felonies following the enactment of the ADAA. Further, it is well settled that Congress has the authority to make past criminal activity a new ground for deportation. See id. at 32, citing Lehman v. United States ex rel. Carson, 353 U.S. 685, 690, 77 S.Ct. 1022, 1024, 1 L.Ed.2d 1122 (1957) (alien convicted of crimes involving moral turpitude in 1936 found deportable under Immigration and Nationality Act of 1952); Mulcahey v. Catalanotte, 353 U.S. 692, 694, 77 S.Ct. 1025, 1027, 1 L.Ed.2d 1127 (1957) (alien with 1923 narcotics convictions found deportable under 1952 Act); cf. Harisiades v. Shaughnessy, 342 U.S. 580, 593-96, 72 S.Ct. 512, 520-22, 96 L.Ed. 586 (1952) (upholding retroactive application of 1940 statute that made deportable aliens who had joined the communist party at any time after entering the United States). In view of the plain language of amended § 513(b) of IMMACT and this precedent, we hold that 8 U.S.C. § 1105a(a)(3) applies to any alien who has been convicted of an offense that falls within the definition of "aggravated felony" found at 8 U.S.C. § 1251(a)(2)(B)(i), regardless of the date of that conviction. Consequently, Ignacio is precluded from obtaining an automatic stay of deportation.
B. Request for a discretionary stay
8
Ignacio next contends that denial of a stay in his case would deprive him of his Fifth Amendment right to due process. Specifically, Ignacio argues that the Constitution requires that he receive judicial review of the Board decision because he is a long-term resident of the United States with United States citizen family members. This contention is without merit. Ignacio is entitled to judicial review. However, first he must demonstrate his eligibility for a discretionary stay before we can review the Board's decision. See Saadi v. INS, 912 F.2d 428, 428 (10th Cir.1990) ("The right to judicial review of a final deportation order does not require the INS to defer deportation.") (citing Umanzor v. Lambert, 782 F.2d 1299, 1303 (5th Cir.1986)). This requirement does not offend due process. We therefore proceed to review the merits of his request for an discretionary stay of deportation.
9
Before we can grant a discretionary stay, a movant must show: (1) a likelihood of success on the merits; (2) that irreparable harm would occur if a stay is not granted; (3) that the potential harm to the movant outweighs the harm to the opposing party if a stay is not granted; and (4) that the granting of the stay would serve the public interest.5 See Ruiz v. Estelle, 650 F.2d 555, 565 (5th Cir.1981), cert. denied, 460 U.S. 1042, 103 S.Ct. 1438, 75 L.Ed.2d 795 (1982). In Ruiz, we added that if a serious legal question is involved, the first prong requires a showing only of "a substantial case on the merits." Id. Ignacio argues that the issue of whether the Board properly classified him as an aggravated felon in denying him discretionary relief from deportation presents a substantial case on the merits. He also shows that denial of a stay would separate him from his family and render his appeal moot. Finally, Ignacio asserts that the public interest will be served by allowing the court to interpret the statutory provision at issue. Ignacio's request for review of the denial of § 212(c) relief rests on the same proposed interpretation of the ADAA as did his request for an automatic stay. We do not find that his claim, that the ADAA has only prospective effect in that context, shows a likelihood of success or substantial merit as required under the first prong we review. Further, although he undoubtedly will suffer some hardship as a result of the denial of a stay, we do not find that this represents the irreparable harm that a stay aims to prevent. Finally, the recent revisions to the INA reflect a strong public interest in deporting from the United States aliens who have been convicted of serious drug offenses. Therefore, we conclude that Ignacio fails to meet the requisite criteria to obtain a stay of deportation.
III. CONCLUSION
10
For the foregoing reasons, it is ORDERED that the petitioner's motion for a stay of deportation is DENIED.
1
This provision states:
(B) Controlled substances
(i) Conviction
Any alien who at any time after entry has been convicted of a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 802 of Title 21), other than a single offense involving possession for one's own use of 30 grams or less of marijuana, is deportable.
2
INA § 212(c), 8 U.S.C. § 1182(c), as amended by § 601 of the Immigration Act of 1990, Pub.L. No. 101-649, 104 Stat. 4978, 5075-5076 (effective Nov. 29, 1990) (IMMACT)
3
In rejecting this argument, the Board relied on an INS interim rule to apply the § 212(c) bar retroactively. See 56 Fed.Reg. 50033 (Oct. 3, 1991). It furthured reasoned:
The Anti-Drug Abuse Act of 1988 ... is silent as to the effective date of the aggravated felony provision. In contrast, section 7344 of the Anti-Drug Abuse Act of 1988 ... is specifically noted to be applicable only prospectively. Had Congress intended for the definition section of the Anti-Drug Abuse Act of 1988 to similarly be applied only prospectively, it could readily have done so.
4
IMMACT revised this provision to exclude aliens who had been convicted of aggravated felonies from receiving the benefit of an automatic stay pending judicial review of their deportation orders. See IMMACT § 513(a), codified at 8 U.S.C. § 1105a(a)(3). The court retains the power to grant a discretionary stay pending review. See id
5
In Zardui-Quintana v. Richard, 768 F.2d 1213 (11th Cir.1985), the Eleventh Circuit pointed out that a request for a judicial stay of deportation is akin to and should be treated as a request for injunctive relief. Id. at 1215 & n. 7. Thus, the same four-factor balancing test applies to both
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Case: 19-20286 Document: 00515241776 Page: 1 Date Filed: 12/18/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 19-20286
Fifth Circuit
FILED
December 18, 2019
UNITED STATES OF AMERICA, Lyle W. Cayce
Clerk
Plaintiff - Appellee
v.
FERNANDO RAMIREZ NORIA,
Defendant - Appellant
Appeal from the United States District Court
for the Southern District of Texas
Before HIGGINBOTHAM, STEWART, and ENGELHARDT, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
A jury convicted Appellant Fernando Ramirez Noria of illegally
reentering the United States following removal. Noria challenges the district
court’s admission of five partial Form I-213s that documented immigration
agents’ prior encounters with him. He argues that the admission of the forms
violated his Sixth Amendment right to confront the witnesses against him. He
also contends the forms were inadmissible hearsay. We conclude that the
admitted portions of Noria’s Form I-213s do not offend the Confrontation
Clause and that they are admissible under Federal Rule of Evidence 803(8)’s
hearsay exception for public records. Noria’s conviction and sentence are
affirmed.
Case: 19-20286 Document: 00515241776 Page: 2 Date Filed: 12/18/2019
No. 19-20286
I.
In October 2018, a federal grand jury indicted Noria on one count of
unlawfully reentering the United States following removal. 1 Noria pleaded not
guilty and proceeded to trial. Among other exhibits, the Government sought to
introduce five Form I-213s through the testimony of United States Citizenship
and Immigration Service (“USCIS”) section chief Christine Pool.
An “I–213 is an official record routinely prepared by an [immigration]
agent as a summary of information obtained at the time of the initial
processing of an individual suspected of being an alien unlawfully present in
the United States.” 2 Put more simply, it “is a record of an immigration
inspector’s conversation with an alien who will probably be subject to
removal.” 3 Typically, an I-213 “includes, inter alia, the individual’s name,
address, immigration status, the circumstances of the individual’s
apprehension, and any substantive comments the individual may have made.” 4
Each of Noria’s five I-213s documented a different encounter with immigration
authorities between 2014 and 2018. Four of the forms corresponded to four of
the five times Noria had previously been removed from the United States,
while the most recent I-213 documented the 2018 immigration encounter that
led to Noria’s illegal-reentry prosecution.
Noria moved to exclude the I-213s “unless the agent who questioned
[him] is available to testify at trial and the document is redacted to exclude
any prior criminal history information.” He argued “[i]t would be unreliable
hearsay” and a violation of the Confrontation Clause to permit anyone other
1 See 8 U.S.C. § 1326(a).
2 Bauge v. I.N.S., 7 F.3d 1540, 1543 n.2 (10th Cir. 1993).
3 3A C.J.S. Aliens § 1355, Westlaw (database updated Dec. 2019); see also Zuniga-
Perez v. Sessions, 897 F.3d 114, 119 n.1 (5th Cir. 2018) (“A Form I-213 is an ‘official record’
prepared by immigration officials when initially processing a person suspected of being in the
United States without lawful permission.”).
4 Gonzalez-Reyes v. Holder, 313 F. App’x 690, 692 (5th Cir. 2009) (unpublished) (citing
Bauge, 7 F.3d at 1543 n.2).
2
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No. 19-20286
than the agent who created the document to testify to its contents. Both the
court and the Government appeared to agree with defense counsel that because
the I-213s contained narrative information about agents’ interviews with
Noria, they could not be admitted in full unless each of the interviewing officers
testified. So, the Government offered only the first page of each I-213, which
showed Noria’s “routine biographical information,” including his name and
birthplace. Christine Pool, the USCIS witness, would then be able to testify
that each of the I-213s belonged to the same person with the same alien
number.
Conceding that the information was hearsay, the prosecutor argued that
it was admissible under Federal Rule of Evidence 803(8)’s exception for public
records. The court agreed and permitted the Government to introduce the
redacted first page of each of the five I-213s. Pool testified that each form was
created by an immigration agent shortly “after an encounter with Mr. Noria”
and “kept in the regular course of . . . business of the activities of the
Department of Homeland Security and USCIS.” Each contained, among other
information, Noria’s name, basic biometric data, aliases, country of citizenship
(Mexico), birthdate, birthplace (Tamaulipas, Mexico), and A-file number. 5 All
but the most recent also contained Noria’s photograph and fingerprints. Pool
testified that taken together, the biographical information in the I-213s
“show[ed] Noria as being a . . . citizen of Mexico,” not of the United States. Pool
also certified that Noria had not applied for permission to reenter the United
5 The Government creates an A-file, short for Alien File, “for every non-citizen who
comes into contact with a U.S. immigration agency. A-files contain documents relating to any
and all interactions which the non-citizen has had with” immigration agencies. IMMIGRATION
PLEADING & PRACTICE MANUAL § 2:12, Westlaw (database updated Jan. 2019). Those
documents include “all the individual’s official record material such as naturalization
certificates; various forms (and attachments, e.g., photographs), applications and petitions
for benefits under the immigration and nationality laws, reports of investigations;
statements; reports; correspondence; and memoranda.” Id. (quoting Dent v. Holder, 627 F.3d
365, 372 (9th Cir. 2010)).
3
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No. 19-20286
States. On cross examination, Pool testified that she had not personally
prepared any of Noria’s I-213s or spoken to the agents who prepared them, but
that she had experience creating I-213s in the past.
The jury also heard the testimony of George Cortes, a supervisory
deportation officer for the Department of Homeland Security (“DHS”), who
explained how Noria had been located and selected for prosecution. Cortes had
met with Noria in person approximately six months before trial, and he was
able to identify Noria in the courtroom. Finally, DHS fingerprint examiner
Raymond Miller testified that the fingerprints on Noria’s prior warrants of
removal and the fingerprints on the I-213s were made by the same person. In
addition to witness testimony, a Certificate of Nonexistence of Record, two
immigration detainers, and the IJ’s initial removal order all identified Noria
as a citizen of Mexico. The jury found Noria guilty, and the district court
imposed the statutory maximum sentence of 24 months. 6 This appeal followed.
II.
A.
The Confrontation Clause of the Sixth Amendment provides that “[i]n all
criminal prosecutions, the accused shall enjoy the right . . . to be confronted
with the witnesses against him.” 7 In Crawford v. Washington, the Supreme
Court held that a defendant’s confrontation right is violated when the
prosecution introduces “testimonial statements of a witness who did not
appear at trial,” unless that witness “was unavailable to testify, and the
defendant had a prior opportunity for cross-examination.” 8 Importantly, only
testimonial statements “cause the declarant to be a ‘witness’ within the
6 See 8 U.S.C. § 1326(a). The statutory maximum was well below Noria’s Guidelines
range of 41 to 51 months.
7 U.S. CONST. amend. VI.
8 Crawford v. Washington, 541 U.S. 36, 53–54 (2004).
4
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meaning of the Confrontation Clause.” 9 Without articulating a comprehensive
definition, the Crawford Court described “testimony” as “typically a solemn
declaration or affirmation made for the purpose of establishing or proving some
fact.” 10 This includes, “at a minimum[,] prior testimony at a preliminary
hearing, before a grand jury, or at a former trial,” as well as “police
interrogations.” 11
Following Crawford, the Supreme Court has explained that “the basic
objective of the Confrontation Clause . . . is to prevent the accused from being
deprived of the opportunity to cross-examine the declarant about statements
taken for use at trial.” 12 Thus, the high Court has adopted the “primary
purpose” test for determining whether a statement is testimonial in nature.13
To qualify as “testimonial” under this standard, “a statement must have a
primary purpose of establishing or proving past events potentially relevant to
later criminal prosecution.” 14 Thus, business and public records are generally
not testimonial because they are “created for the administration of an entity’s
affairs and not for the purpose of establishing or proving some fact at trial.” 15
However, if a public record is “prepared specifically for use at . . . trial,” then it
is testimonial and therefore inadmissible absent its creator’s testimony. 16
9 Davis v. Washington, 547 U.S. 813, 821 (2006); see id. (“It is the testimonial character
of the statement that separates it from other hearsay that, while subject to traditional
limitations upon hearsay evidence, is not subject to the Confrontation Clause.”).
10 Crawford, 541 U.S. at 51 (internal alterations omitted).
11 Id. at 68.
12 Michigan v. Bryant, 562 U.S. 344, 358 (2011).
13 See Ohio v. Clark, 135 S. Ct. 2173, 2180 (2016).
14 Bullcoming v. New Mexico, 564 U.S. 647, 659 n.6 (2011) (internal alterations and
quotation marks omitted) (quoting Davis, 547 U.S. at 822).
15 Melendez-Diaz v. Massachusetts, 557 U.S. 305, 324 (2009).
16 Id.; see United States v. Duron-Caldera, 737 F.3d 988, 994 (5th Cir. 2013)
(“[D]ocuments prepared by immigration officers on immigration forms can be testimonial if
created for use at a later criminal trial.”).
5
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B.
In general, the rule against hearsay bars the admission of any
“statement, other than one made by the declarant while testifying at the trial
or hearing, offered in evidence to prove the truth of the matter asserted.” 17
However, the general rule is littered with exceptions, including one for public
records. Federal Rule of Evidence 803(8) provides that public records “are not
excluded by the rule against hearsay, regardless of whether the declarant is
available as a witness.” A “record or statement of a public office” qualifies
under this exception if:
(A) it sets out:
(i) the office’s activities;
(ii) a matter observed while under a legal duty to report, but
not including, in a criminal case, a matter observed by law-
enforcement personnel; or
(iii) in a civil case or against the government in a criminal
case, factual findings from a legally authorized
investigation; and
(B) the opponent does not show that the source of information or
other circumstances indicate a lack of trustworthiness.
The public-records exception “is designed to permit the admission into
evidence of public records prepared for purposes independent of specific
litigation.” 18 It is based on the assumption that public documents “recording
routine, objective observations” are free of “the factors likely to cloud the
perception of an official engaged in . . . observation and investigation of
crime.” 19 Instead, “[d]ue to the lack of any motivation on the part of the
17 United States v. Webster, 750 F.2d 307, 330 (5th Cir. 1984) (quoting a version of
FED. R. EVID. 801(c) that has since been slightly but not substantively amended); see FED R.
EVID. 802 (“Hearsay is not admissible except as provided by these rules or by other rules
prescribed by the Supreme Court pursuant to statutory authority or by Act of Congress.”).
18 United States v. Quezada, 754 F.2d 1190, 1194 (5th Cir. 1985) (citing United States
v. Stone, 604 F.2d 922, 925 (5th Cir. 1979)).
19 Id.
6
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recording official to do other than mechanically register an unambiguous
factual matter . . . such records are [considered] inherently reliable.” 20
Rule 803(8)(A)(ii)’s prohibition against public records of “matter[s]
observed by law-enforcement personnel” in criminal cases does not prevent the
admission of all reports prepared by law enforcement officers. Instead, the
Court distinguishes “between law enforcement reports prepared in a routine,
non-adversarial setting, and those resulting from the arguably more subjective
endeavor of investigating a crime and evaluating the results of that
investigation.” 21 The former are admissible, while the latter are not. 22
C.
Noria preserved his confrontation and hearsay claims by objecting to the
admission of each I-213 at trial. We “review [an] alleged violation of the
Confrontation Clause de novo, subject to a harmless error analysis.” 23 We
review the district court’s hearsay ruling for abuse of discretion, also subject to
a harmless error analysis. 24
III.
Although “hearsay rules and the Confrontation Clause are generally
designed to protect similar values,” 25 they “are not wholly congruent.” 26 Even
if “evidence [is] sufficiently reliable to qualify for admission under a recognized
exception to the hearsay rule,” it cannot be admitted if it “offend[s]
confrontation values.” 27 In other words, if Noria’s I-213s are testimonial, they
20 Id.
21 Id.
22 United States v. Wiley, 979 F.2d 365, 369 (5th Cir. 1992).
23 United States v. Kizzee, 877 F.3d 650, 656 (5th Cir. 2017) (internal alterations
omitted) (quoting United States v. Polidore, 690 F.3d 705, 710 (5th Cir. 2012)).
24 United States v. Lockhart, 844 F.3d 501, 512 (5th Cir. 2016).
25 California v. Green, 399 U.S. 149, 155 (1970).
26 United States v. Sarmiento-Perez, 633 F.2d 1092, 1099 (5th Cir. Unit A Jan. 1981);
see United States v. Bernard S., 795 F.2d 749, 753 (9th Cir. 1986) (citing Dutton v. Evans,
400 U.S. 74, 86 (1970)).
27 Sarmiento-Perez, 633 F.2d at 1099; see Idaho v. Wright, 497 U.S. 805, 814 (1990).
7
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are inadmissible regardless of Rule 803(8)’s hearsay exception. We therefore
address Noria’s confrontation argument before turning to his hearsay
challenge.
A.
Noria contends that the admission of I-213s prepared by non-testifying
agents “violated [his] Sixth Amendment right to confrontation.” He
characterizes the reports as testimonial statements made by immigration
agents “in preparation for litigation in immigration or criminal court.” The
Government counters that the admitted portions of the I-213s are not
testimonial because they were prepared primarily for internal administrative
purposes, not in anticipation of a criminal prosecution. The Government points
out that the forms “contain[] only biographical information” supplied by Noria
himself, along with routine “immigration tracking information,” including the
“date, location, and manner” of the interviews. In the Government’s view, these
are merely administrative data points, not evidence recorded for any
subsequent trial.
1.
Although this issue was not raised by the parties in their briefing or at
oral argument, we hesitate to proceed to the Sixth Amendment analysis
without identifying the declarant of the I-213s. After all, the Confrontation
Clause becomes relevant only when a nonparty’s statements are admitted
against a defendant. Here, it is at least arguable that Noria himself was the
declarant of the challenged portions of the I-213s.
We can safely assume Noria did not dictate the administrative codes on
the forms or the notations indicating the subsequent dispositions of his
encounters with immigration authorities. However, those are not the data
Noria takes issue with. The thrust of his argument concerns only two lines
from each I-213: the ones listing his birthplace and his country of citizenship
8
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No. 19-20286
as Mexico. As he admits, all biographical information on the forms came from
Noria himself, either “from what [he] told the agent” or from “documents he
had with him.” In fact, because Noria’s A-file contained no documents
indicating his citizenship or birthplace, Noria concedes that the interviewing
agents obtained all information from Noria’s own oral responses to their
questions. These facts indicate that Noria is the sole declarant of the I-213 data
he challenges.
Case law further supports this conclusion. In two cases discussed at
greater length below, the Ninth and Eleventh Circuits both assumed that an
alien is the declarant of all biographical information recorded on his I-213. 28 In
fact, in the Eleventh Circuit case, the immigration agent who prepared the
contested I-213s did testify, but the defense argued that the agent’s testimony
was insufficient to satisfy the Confrontation Clause because he was not the
declarant, only the transcriber of the information supplied to him by the
alien. 29 The Eleventh Circuit rejected this argument by concluding that I-213s
are not testimonial, but it did not dispute the defendant’s characterization of
the aliens as the only relevant declarants. 30
This Court’s own persuasive authority lends further support to the alien-
as-declarant theory. In United States v. Montalvo-Rangel, an unpublished
2011 decision, we rejected the defendant’s Confrontation Clause challenge to
the admission of a Form I-215B. 31 An I-215B, formally titled a Record of Sworn
Statement in Affidavit Form, is a report memorializing an alien’s statements
to an immigration agent made under oath and with the benefit of Miranda
28 See United States v. Torralba-Mendia, 784 F.3d 652, 658 (9th Cir. 2015) (describing
I-213s as containing both “the agent’s narrative [and] statements made by the detainee”);
United States v. Caraballo, 595 F.3d 1214, 1226 (11th Cir. 2010) (accepting the defendant’s
premise that “the declarants [were] the eleven aliens” discovered on the defendant’s boat).
29 See Caraballo, 595 F.3d at 1226.
30 See id. at 1227–29.
31 437 F. App’x 316, 318–19 (5th Cir. 2011) (unpublished).
9
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warnings. 32 The I-215B was signed by Montalvo-Rangel and contained an
affirmation that its contents were accurate and honest. 33 The Court explained:
Montalvo-Rangel argues that because the agent who filled out the
2008 Form I-215B did not testify, Montalvo-Rangel was denied his
constitutional right to “confront” a witness. The “form” in question,
however, is actually an affidavit executed by Montalvo-Rangel.
Although it was typed by an immigration officer, it was signed and
attested to by Montalvo-Rangel. In that respect, it is no different
from a person’s dictating an affidavit to an assistant before signing
it—the “witness” in such a situation is the individual dictating and
signing the affidavit, not the one who transcribed it. . . . The form
is nothing more than a statement by Montalvo-Rangel;
accordingly, the only witness he has the right to confront is
himself. 34
Noria’s I-213s are distinguishable from Montalvo-Rangel’s I-215Bs in several
respects: Noria was not Mirandized, 35 he did not sign the I-213s, and they
contain processing codes and disposition information that must have been
supplied by the interviewing officer, not Noria. However, the key information
Noria contests—his country of citizenship—was supplied by Noria. At least as
to that data, the logic of Montalvo-Rangel would situate Noria as the “witness”
and the interviewing officer as a mere transcriber.
Given these precedents, it is quite possible the Confrontation Clause is
not implicated in this case. However, because the issue was not briefed or
argued, we will proceed to the merits of the Confrontation Clause issue by
assuming, without deciding, that the immigration agents who prepared Noria’s
I-213s were the declarants of the statements contained therein.
32 See Rodriguez-Casillas v. Lynch, 618 F. App’x 448, 456–57 (10th Cir. 2015)
(unpublished).
33 Montalvo-Rangel, 437 F. App’x at 317–18.
34 Id. at 318.
35 The I-213s admitted in this case reflect that Noria was “advised of [his]
communication privileges,” but that advisory does not appear to be coextensive with Miranda
warnings.
10
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2.
The Sixth Amendment status of Form I-213s is a question of first
impression in this Circuit. However, two of our sister circuits have addressed
the question, and we agree with them that I-213s are not testimonial. Their
reasoning is instructive. In United States v. Caraballo, the defendant was
convicted of alien smuggling after a marine patrol officer discovered eleven
undocumented immigrants on board his fishing boat. 36 Immigration agents
interviewed the aliens and recorded their “routine biographical information”
on I-213s. 37 At trial, the district court admitted the first page of each I-213 over
Caraballo’s objection “to demonstrate that the aliens found on Caraballo’s boat
were deportable and inadmissible.” 38
The Eleventh Circuit rejected Caraballo’s Confrontation Clause
challenge. The court reasoned that the forms were not testimonial because they
contained only “basic biographical information,” such as name, birthplace and
birthdate, and citizenship, “gathered . . . from the aliens in the normal course
of administrative processing.” 39 The Eleventh Circuit concluded that “[t]he I–
213 form is primarily used as a record . . . for the purpose of tracking the entry
of aliens,” and it emphasized that “[t]he Supreme Court has instructed us to
look only at the primary purpose of . . . questioning in determining whether
the information elicited is testimonial.” 40 Thus, although an I-213 might
eventually be used in a criminal prosecution, that “incidental or secondary use”
of the form “is of little moment” in the constitutional analysis. 41
36 595 F.3d 1214, 1218–20 (11th Cir. 2010).
37 Id. at 1218.
38 Id. at 1226.
39 Id. at 1228.
40 Id. at 1229 (citing Davis v. Washington, 547 U.S. 813, 828, 830 (2006)).
41 Id.
11
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The Eleventh Circuit has repeatedly affirmed Caraballo’s Sixth
Amendment holding, 42 and the Ninth Circuit reached the same conclusion
several years later in United States v. Torralba-Mendia. 43 Like Caraballo,
Torralba-Mendia was convicted of alien smuggling after a trial at which the
Government introduced the I-213s of migrants who had been detained during
the investigation. 44 The forms “contained the migrants’ photos, fingerprints,
physical characteristics,” and information about the subsequent disposition of
their cases, but “[t]he government redacted the agent’s narrative detailing how
[they] were apprehended, and all other statements made by the detainee.” 45
The Ninth Circuit concluded that I-213s are nontestimonial because they
are “routinely completed by Customs and Border Patrol agents in the course of
their non-adversarial duties,” not “in anticipation of litigation.” 46 After all,
“[a]gents complete I–213 forms” for all aliens suspected of being present
without authorization, “regardless of whether the government decides to
prosecute [them] criminally.” 47 “As with other evidence in an alien’s A-file,” the
Ninth Circuit concluded, I-213s are nontestimonial because they “are prepared
for administrative purposes, not as evidence in a later trial.” 48
In addition, although this Court has not addressed I-213s, we have
decided Confrontation Clause challenges to several other A-file documents,
and those cases provide useful points of comparison. In United States v. Valdez-
Maltos, we held that warrants of removal (officially titled Form I-205s) are
42 See, e.g., United States v. Chkuaseli, 732 F. App’x 747, 757 (11th Cir. 2018)
(unpublished) (per curiam); United States v. Watson, 611 F. App’x 647, 658 (11th Cir. 2015)
(unpublished); United States v. Rivera-Soto, 451 F. App’x 806, 808 (11th Cir. 2011)
(unpublished) (per curiam).
43 784 F.3d 652 (9th Cir. 2015).
44 Id. at 658.
45 Id.
46 Id. at 666.
47 Id.
48 Id.
12
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nontestimonial 49—a holding we reaffirmed in 2018. 50 Warrants of removal
contain an alien’s name, photograph, and thumbprints and are “filled out by
the deporting officer” who also “sign[s] the warrant as having witnessed the
departure” of the alien. 51 We reasoned that warrants are “reliable and
admissible because the official preparing the warrant had no motivation to do
anything other than ‘mechanically register an unambiguous factual matter’”—
namely, that the alien in question was successfully deported. 52 Moreover,
warrants of removal “must be issued” in all “cases resulting in a final order of
removal . . . to memorialize an alien’s departure—not specifically or primarily
to prove facts in a hypothetical future criminal prosecution.” 53 We have
likewise held that DHS computer printouts showing the date and time of
aliens’ prior deportations are nontestimonial, 54 as are removal orders issued by
an immigration judge. 55
The reasoning of these cases supports the Government’s contention that
I-213s are nontestimonial. Warrants of removal, removal orders, and records
of prior deportations contain much of the same biographical information as
I-213s, and, like I-213s, they provide compelling evidence of alienage. By
contrast, this Court has adjudged only one type of A-file document to be
testimonial: Certificates of Nonexistence of Record (“CNR”). 56 In an illegal-
reentry case, a CNR is prepared by a DHS official who has searched agency
49 443 F.3d 910, 911 (5th Cir. 2006) (per curiam).
50 United States v. Garcia, 887 F.3d 205, 213 (5th Cir. 2018).
51 United States v. Quezada, 754 F.2d 1190, 1191 (5th Cir. 1985).
52 Valdez-Maltos, 443 F.3d at 911 (quoting Quezada, 754 F.2d at 1194).
53 Garcia, 887 F.3d at 213.
54 United States v. Lopez-Moreno, 420 F.3d 420, 436 (5th Cir. 2005).
55 United States v. Becerra-Valadez, 448 F. App’x 457, 462 (5th Cir. 2011)
(unpublished).
56 Additionally, in United States v. Duron-Caldera, we remanded for a new trial where
the Government failed to carry its burden of showing that a relative’s affidavit included in
the defendant’s A-file was nontestimonial, and the evidence available to the Court was
“inconclusive.” 737 F.3d 988, 993 (5th Cir. 2013). Contrary to Noria’s assertion, we did not
hold that the affidavit was in fact testimonial. Id. at 994.
13
Case: 19-20286 Document: 00515241776 Page: 14 Date Filed: 12/18/2019
No. 19-20286
records as proof that the alien-defendant has not applied for or received
permission to reenter the United States. 57 In United States v. Martinez-Rios,
we held that admitting a CNR without making the preparer of the certificate
available for cross-examination is a violation of the defendant’s confrontation
right. 58 Relying on the Supreme Court’s then-recent opinion in Melendez-
Diaz, 59 we reasoned that CNRs are testimonial because they “are not routinely
produced in the course of government business but instead are exclusively
generated for use at trial.” 60
Here, it is uncontested that Form I-213s are routinely produced by DHS
and are not generated solely for use at trial. Moreover, there is no indication
that the specific Form I-213s introduced at Noria’s trial are untrustworthy or
unusually litigation-focused; by all accounts, they are standard I-213s created
contemporaneously with each of Noria’s interviews by immigration agents. 61
No doubt, the biographical portion of an I-213 can be helpful to the Government
in a later criminal prosecution. However, we agree with the Ninth and
Eleventh Circuits that the forms’ primary purpose is administrative, not
57 See United States v. Luna-Bolanos, 369 F. App’x 947, 948–49 (10th Cir. 2010)
(unpublished) (describing the process of generating a CNR). It is undisputed that the CNR
admitted in Noria’s case was properly introduced through the testimony of USCIS witness
Christine Pool.
58 595 F.3d 581, 586 (5th Cir. 2010).
59 See Melendez-Diaz v. Massachusetts, 557 U.S. 305, 323 (2009) (reasoning that where
the prosecution seeks “to admit into evidence a clerk’s certificate attesting to the fact that
the clerk had searched for a particular relevant record and failed to find it,” the certificate
must be testimonial because it “would serve as substantive evidence against the defendant
whose guilt depended on the nonexistence of the record for which the clerk searched”).
60 Martinez-Rios, 595 F.3d at 586.
61 See, e.g., United States v. Hernandez-Hernandez, No. 2:15-cr-59-FtM-38MRM, 2016
WL 836687, at *2 (M.D. Fla. Mar. 4, 2016) (unpublished) (departing from Caraballo and
excluding I-213s from an alien-smuggling trial because they “were created only weeks prior
to trial and well after the underlying facts,” leading the district court to conclude “that these
forms were prepared for litigation and not as part of the ‘routine’ procedures accompanying
the aliens’ apprehension”); see also Dong-Chen v. Mukasey, 278 F. App’x 49, 51 (2d Cir. 2008)
(unpublished) (per curiam) (noting that an I-213 is particularly dependable where the alien
“does not argue that [it] is less reliable than I-213s are as a general matter”).
14
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No. 19-20286
investigative or prosecutorial. After all, immigration agents prepare an I-213
every time they encounter an alien suspected of being removable, regardless of
whether that alien is ever criminally prosecuted or civilly removed. 62 The forms
are then stored in the regular course of DHS business. As the Government
explained at oral argument, I-213s serve primarily as administrative records
used to track undocumented entries, not as evidence in criminal trials. We
therefore join the so-far-unanimous judgment of our sister circuits that the
portions of the Form I-213s admitted in this case were nontestimonial. We
have no occasion to consider the Sixth Amendment status of the forms’
remaining pages, which were not admitted at trial.
B.
Noria argues that even if his I-213s do not offend the Confrontation
Clause, they are inadmissible hearsay. He contends that the I-213s do not fall
within Federal Rule of Evidence 803(8)’s public-records exception “for the same
reasons [they] should be considered testimonial under the Sixth
Amendment”—namely, that they are not routine administrative records but
investigative reports made in furtherance of a criminal prosecution. In fact,
Noria argues, the I-213s are expressly barred by Rule 803(8)(A)(ii) as records
of “matter[s] observed by law-enforcement personnel” in a criminal case. The
Government’s opposition also echoes its Sixth Amendment argument. The
62 See Caraballo, 595 F.3d at 1228. Noria accuses the Government of mistakenly
relying on Caraballo for the proposition that all foreign entrants must complete Form I-213s.
That would of course be inaccurate; I-213s are created only for aliens suspected of being
removable. See Bauge v. I.N.S., 7 F.3d 1540, 1543 n.2 (10th Cir. 1993). However, that is not
the proposition the Government makes. It asserts only, and correctly, that I-213s
“memoralize[] routine biographical information required of every foreign entrant.” This is
consistent with Caraballo’s observation that “the basic biographical information recorded on
the I-213 form is routinely requested from every alien entering the United States, and the
form itself is filled out for anyone entering the United States without proper immigration
papers.” 595 F.3d at 1228 (emphasis added). In other words, the information recorded on an
I-213 is requested from all entrants, but not necessarily in the form of an I-213; for example,
the same basic biographical questions might instead appear on a visa application.
15
Case: 19-20286 Document: 00515241776 Page: 16 Date Filed: 12/18/2019
No. 19-20286
Government contends that I-213s are generated “for administrative purposes,
as opposed to anticipation of trial,” and so are not subject to Rule 803(8)(A)(ii)’s
limited bar against law enforcement reports.
Rule 803(8)(A)(ii) authorizes the admission of public records of “a matter
observed while under a legal duty to report, but not including, in a criminal
case, a matter observed by law-enforcement personnel.” This exception to the
exception is based “on the presumed unreliability of observations made by law
enforcement officials at the scene of a crime, or in the course of investigating a
crime.” 63 As the Rule’s legislative history explains, such observations “are not
as reliable as observations by public officials in other cases because of the
adversarial nature of the confrontation between the police and the defendant
in criminal cases.” 64
It is undisputed that the immigration agents who interviewed Noria
were law-enforcement officers within the meaning of Rule 803(8), and that they
created the I-213s while under a legal duty to report their observations. “Thus,
a literal application of the rule would exclude this evidence.” 65 However,
“courts have not inflexibly applied this proscription to exclude all law
enforcement records in criminal cases.” 66 We have long recognized “a
distinction . . . between law enforcement reports prepared in a routine, non-
adversarial setting, and those resulting from the arguably more subjective
endeavor of investigating a crime and evaluating the results of that
investigation.” 67 For three reasons, Noria’s I-213s fall within the former,
admissible category.
63 United States v. Quezada, 754 F.2d 1190, 1193 (5th Cir. 1985)
64 S. REP. NO. 93-1277, at 7064 (1974).
65 United States v. Puente, 826 F.2d 1415, 1417 (5th Cir. 1987).
66 Id.
67 Quezada, 754 F.2d at 1194.
16
Case: 19-20286 Document: 00515241776 Page: 17 Date Filed: 12/18/2019
No. 19-20286
First, although this Court has not decided whether Form I-213s are
admissible under Rule 803(8) in criminal prosecutions, we have long accepted
that they are admissible in civil removal proceedings. Of course, the Federal
Rules of Evidence do not apply in immigration court. 68 Even so, panels
considering immigration cases often reason by analogy to the Federal Rules,
and their discussions contain persuasive analysis. 69 We have repeatedly relied
on Rule 803(8)’s public-records exception to affirm the admission of Form I-
213s. Last year, for example, we reasoned that I-213s were properly admitted
in immigration court because a “Form I-213 is a public record made by public
officials in the ordinary course of their duties”—not in the antagonistic setting
of a criminal investigation—“and accordingly evidences strong indicia of
reliability.” 70 In an earlier case, we expressly noted that I-213s “come within
the public records exception to the hearsay rule, not that the hearsay rules
apply to deportation proceedings in the first place.” 71
Second, the other two circuits to consider the question have held I-213s
admissible under Rule 803(8). As Noria notes, his hearsay challenge is
governed largely by the same considerations as his Confrontation Clause
challenge. Thus, both parties rely heavily on the same two out-of-circuit cases
described above in the Confrontation Clause discussion: United States v.
Caraballo 72 from the Eleventh Circuit and United States v. Torralba-Mendia 73
from the Ninth. Both those courts held that I-213s do not implicate the
68 Bustos-Torres v. I.N.S., 898 F.2d 1053, 1055 (5th Cir. 1990). Instead, “[t]he test for
admissibility of evidence in a deportation proceeding is whether the evidence is probative and
whether its use is fundamentally fair so as not to deprive the alien of due process of law.” Id.;
see Olabanji v. I.N.S., 973 F.2d 1232, 1234 (5th Cir. 1992).
69 See Bouchikhi v. Holder, 676 F.3d 173, 180 (5th Cir. 2012).
70 Zuniga-Perez v. Sessions, 897 F.3d 114, 119 n.1 (5th Cir. 2018) (internal alterations
and quotation marks omitted) (quoting Felzcerek v. I.N.S., 75 F.3d 112, 116 (2d Cir. 1996)).
71 Renteria-Gonzalez v. I.N.S., 322 F.3d 804, 817 n.16 (5th Cir. 2002).
72 595 F.3d 1214 (11th Cir. 2010).
73 784 F.3d 652 (9th Cir. 2015).
17
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No. 19-20286
concerns motivating Rule 803(8)(A)(ii) because they are “routinely completed
by Customs and Border Patrol agents in the course of their non-adversarial
duties, not in the course of preparing for a criminal prosecution.” 74 As the Ninth
Circuit put it, I-213s contain only “ministerial, objective observation[s].” 75
Finally, I-213s are alike in material respects to other immigration
documents that are routinely admitted under Rule 803(8). Immigration
detainers, for example, contain the same identifying information—including
country of citizenship—that Noria challenges here, and they are prepared as
part of federal immigration authorities’ law-enforcement efforts after an alien
has been identified as removable. Much the same can be said of warrants of
removal, removal orders, and reinstatements of removal orders. In particular,
executed warrants of removal directly attest to an event “observed” by a law-
enforcement officer—namely, the alien’s removal—and yet we have long
recognized that they are not subject to Rule 803(8)(A)(ii)’s law-enforcement
exclusion. 76
The fact that an I-213 may be used to support a later criminal
prosecution does not change the essentially ministerial circumstances of its
creation; after all, many aliens for whom I-213s are created are never
prosecuted or placed in removal proceedings. Moreover, many types of
immigration documents, including detainers and warrants, are generated by
law-enforcement officers after an alien has been suspected or convicted of
committing a crime. To some extent, all these documents could be
characterized as investigative for purposes of Rule 803(8)(A)(ii)—and yet they
74 Caraballo, 595 F.3d at 1226; see also Torralba-Mendia, 784 F.3d at 665 (“[T]he
record of a deportable alien . . . is part of an alien’s A–File, filled out and kept by the
Department of Homeland Security in its regular course of business.”).
75 Torralba-Mendia, 784 F.3d at 665.
76 See United States v. Garcia, 887 F.3d 205, 212 (5th Cir. 2018) (“Under consistent
circuit precedent, the warrant of removal was properly admitted under Federal Rule of
Evidence 803(8)—the public records exception.”).
18
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No. 19-20286
are not. For these reasons, the admitted portions of Noria’s I-213s were
admissible under Rule 803(8)’s public-records exception to the rule against
hearsay. Again, we emphasize that our holding is confined to the initial
redacted page of the form, which records only biographical and administrative-
processing data.
IV.
For the foregoing reasons, we hold that the admitted portions of Noria’s
Form I-213s offended neither the Confrontation Clause nor the Federal Rules
of Evidence. Noria’s conviction and sentence are affirmed.
19
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989 F.2d 487
Johnson (Jerry L., Sr.)v.Love (William J.), Attorney General of State ofPennsylvania, District Attorney of Philadelphia County
NO. 92-1676
United States Court of Appeals,Third Circuit.
Feb 23, 1993
Appeal From: E.D.Pa.,
Ludwig, J.
1
REVERSED.
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Case: 11-51268 Document: 00511987759 Page: 1 Date Filed: 09/14/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
September 14, 2012
No. 11-51268
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
ERNEST LOPEZ, also known as Neto,
Defendant-Appellant
Appeals from the United States District Court
for the Western District of Texas
USDC No. 1:11-CR-360-5
Before WIENER, ELROD, and GRAVES, Circuit Judges.
PER CURIAM:*
The attorney appointed to represent Ernest Lopez has moved for leave to
withdraw and has filed a brief in accordance with Anders v. California, 386 U.S.
738 (1967), and United States v. Flores, 632 F.3d 229 (5th Cir. 2011). Lopez has
filed a response. We have reviewed counsel’s brief and the relevant portions of
the record reflected therein, as well as Lopez’s response. We concur with
counsel’s assessment that the appeal presents no nonfrivolous issue for appellate
review. Accordingly, counsel’s motion for leave to withdraw is GRANTED,
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
Case: 11-51268 Document: 00511987759 Page: 2 Date Filed: 09/14/2012
No. 11-51268
counsel is excused from further responsibilities herein, and the APPEAL IS
DISMISSED. See 5TH CIR. R. 42.2.
2
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SUPREME COURT OF ARIZONA
QUALITY EDUCATION & JOBS ) Arizona Supreme Court
SUPPORTING I-16-2012, a ) No. CV-12-0286-AP/EL
registered Arizona Political )
Committee, ) Maricopa County
) Superior Court
Plaintiff/Appellant, ) No. CV2012-011232
)
v. )
)
KEN BENNETT, Arizona Secretary ) O P I N I O N
of State and THOMAS HORNE, )
Arizona Attorney General, both )
in their official capacities, )
)
Defendants/Appellees.)
)
__________________________________)
Appeal from the Superior Court in Maricopa County
The Honorable John Christian Rea, Judge
JURISDICTION ACCEPTED; RELIEF DENIED
________________________________________________________________
TORRES LAW GROUP Phoenix
By James E. Barton II
Attorney for Quality Education & Jobs Supporting I-16-2012
Committee
THOMAS C. HORNE, ARIZONA ATTORNEY GENERAL Phoenix
By Michele L. Forney, Assistant Attorney General
Attorney for Ken Bennett and Thomas C. Horne
________________________________________________________________
P E L A N D E R, Justice
¶1 Quality Education & Jobs Supporting I-16-2012 (“the
Committee”) challenged the Secretary of State’s descriptive
title and “yes/no” language used for that initiative
(“Proposition 204” or “the Act”) in the Secretary’s voter
information guide and ballot for the November 2012 general
election. The superior court rejected that challenge, finding
the language was “not arbitrary or unquestionably inaccurate”
and therefore substantially complied with A.R.S. § 19-125(D)
(2012). On August 28, 2012, we issued an order treating the
Committee’s appeal from that ruling as an appellate special
action, accepting jurisdiction but denying relief. This opinion
explains our reasoning.1
I.
¶2 The Committee filed this matter as an “expedited
election appeal,” contending that it could be filed directly in
this Court pursuant to Rule 8.1(h) of the Arizona Rules of Civil
Appellate Procedure. That rule, however, “applies only to
election-related cases designated by statute for expedited
consideration on appeal.” ARCAP 8.1 cmt. 1. This case does not
fall within that category. Neither § 19-125(D), on which the
Committee’s challenge was based, nor any other statute
authorizes an expedited appeal to this Court in this context.
Accordingly, we treat the matter as a special action and accept
jurisdiction because the purely legal issue raised is of
statewide importance, and there is no “equally plain, speedy,
1
On November 6, 2012, the voters rejected
Proposition 204. Ariz. Sec’y of State, State of Arizona
Official Canvas 18 (Dec. 3, 2012), available at
www.azsos.gov/election/2012/General/Canvass2012GE.pdf.
2
and adequate remedy by appeal.” Ariz. R. P. Spec. Act. 1(a);
see Ariz. Legislative Council v. Howe, 192 Ariz. 378, 382 ¶ 10,
965 P.2d 770, 774 (1998).
II.
¶3 Proposition 204’s background is set forth in our
opinion in Tobin v. Rea, No. CV-12-0273-SA (Jan. 17, 2013), also
filed today. In short, the Committee and its supporters
collected approximately 290,000 signatures to place the
initiative on the 2012 general election ballot as Proposition
204. The Secretary prepared a descriptive title and summary of
the measure’s principal provisions pursuant to § 19-125(D),
which states, in relevant part:
There shall be printed on the official
ballot immediately below the number of the
measure and the official title of each measure a
descriptive title containing a summary of the
principal provisions of the measure, not to
exceed fifty words, which shall be prepared by
the secretary of state and approved by the
attorney general and that includes the following
or the ballot shall comply with subsection E of
this section:
A “yes” vote shall have the effect of
_________________.
A “no” vote shall have the effect of
__________________.
The blank spaces shall be filled with a
brief phrase, approved by the attorney general,
stating the essential change in the existing law
should the measure receive a majority of votes
cast in that particular manner. In the case of a
3
referendum, a “yes” vote shall have the effect of
approving the legislative enactment that is being
referred. The “yes” and “no” language shall be
posted on the secretary of state’s website after
being approved by the attorney general and before
the date on which the official ballots and the
publicity pamphlet are sent to be printed.
A.R.S. § 19-125(D).
¶4 After consulting with the Attorney General and
receiving input from the initiative’s proponents, the Secretary
settled on the following language for the general election guide
(or “publicity pamphlet”) and ballot:
Proposition _______
PROPOSED BY INITIATIVE PETITION RELATING TO TAXATION.
[I-16-2012]
EFFECTIVE JUNE 1, 2013, PERMANENTLY INCREASES THE
STATE SALES TAX BY ONE CENT PER DOLLAR FOR THE
PURPOSE OF FUNDING EDUCATIONAL PROGRAMS, PUBLIC
TRANSPORTATION INFRASTRUCTURE PROJECTS, AND HUMAN
SERVICES; FORBIDS REDUCTIONS TO CURRENT K-12 AND
UNIVERSITY FUNDING LEVELS; AND FORBIDS REDUCTIONS
TO THE CURRENT STATE SALES TAX BASE.
A “yes” vote shall have the effect of permanently
increasing the state sales tax by one cent per
dollar, effective June 1, 2013, for the purpose
of funding educational programs, public
transportation infrastructure projects, and human
services. It forbids reductions to current K-12
and university funding levels and forbids
reductions to the current state sales tax base.
A “no” vote shall have the effect of not
increasing the state sales tax by one cent per
one dollar, beginning June 1, 2013.
¶5 The Committee argues that the Secretary’s description
violates § 19-125(D) by “falsely characterizing the Act as a tax
4
increase” and “exaggerating the limitation on the Legislature
contained in the Act.” The Committee’s preferred language would
have stated that the Act “replac[es] the temporary one cent per
dollar sales tax set to expire on June 1, 2013 with a permanent
one-cent sales tax,” and “forbids reductions to the current
sales tax base applicable to the one-cent sales tax.” The
Committee further contends that the superior court erred by
failing to apply “the same substantial compliance review that
Arizona courts apply to the Legislative Council’s analysis”
under A.R.S. § 19-124(B) (2012). We are not persuaded.
¶6 Of the cases the Committee cites, only Howe involved a
challenge to the Secretary of State’s descriptive title and
“yes/no” language used in the publicity pamphlet and ballot
regarding a referendum proposal. There, the superior court
concluded that the Secretary “failed to comply with A.R.S. § 19-
125” in those respects. Howe, 192 Ariz. at 382 ¶ 8, 965 P.2d at
774. In overturning that ruling, this Court found that the
Secretary substantially complied with the statutory requirements
by using language that “can reasonably be regarded as an attempt
to provide necessary and appropriate information to the voting
public.” Id. at 384 ¶ 22, 965 P.2d at 776. “Giving due
deference” to the Secretary, we could not say that the chosen
language was, “as a matter of law, so overemphasized as to be
misleading, inaccurate, lacking in neutrality, or
5
argumentative.” Id. ¶ 19.2
¶7 We reach the same conclusions here regarding the
Secretary’s descriptive title and “yes/no” language used for
Proposition 204. We agree with the Committee that the Secretary
may not use language that is false or clearly misleading. But
we disagree with the Committee’s assertion that the Secretary’s
description of the Act “as a tax increase is unquestionably
inaccurate.” As noted in Tobin, “[t]hough ‘fairly debatable,’
. . . the initiative’s proposed tax may fairly be described as a
‘new’ or additional ‘tax increase,’” and such a description “is
neither inaccurate nor partial.” Slip op. at 11 ¶ 17 (“[T]he
initiative proposes statutory changes that would impose a new,
permanent, and legislatively unalterable tax, the revenues of
which would be directed to different and broader uses than those
under the current, constitutionally-imposed temporary tax.”).
¶8 In Tobin, we required modification of the Legislative
Council’s analysis not because it characterized the Act as
imposing a new tax increase, but only because it did not satisfy
§ 19-124(B)’s impartiality requirement, as explicated in this
Court’s case law. Absent any explanatory context, the Council’s
analysis was “not completely ‘free from any misleading
2
For the same reasons, we rejected the challenge under
A.R.S. § 19-124(B) to the Legislative Council’s analysis of the
referendum proposal. Howe, 192 Ariz. at 384 ¶¶ 18-20, 22, 965
P.2d at 776.
6
tendency.’” Id. ¶ 18 (quoting Fairness & Accountability in Ins.
Reform v. Greene, 180 Ariz. 582, 590, 886 P.2d 1338, 1346
(1994)). Accordingly, the analysis could not be viewed as “a
completely neutral summary, without advocacy or argument.” Id.
slip op. at 12 ¶ 19 (quoting Citizens for Growth Mgmt. v.
Groscost, 199 Ariz. 71, 73 ¶ 11, 13 P.3d 1188, 1190 (2000)).
Nor did it lack any hint of “partisan coloring.” Id. slip op.
at 9 ¶ 13 (quoting Greene, 180 Ariz. at 590, 886 P.2d at 1346).
¶9 The statute at issue here, § 19-125(D), does not
expressly require an “impartial analysis” of the proposed
measure, as does § 19-124(B). And although the Legislative
Council’s analysis “shall be written in clear and concise
terms,” it is not subject to any word or page limit. A.R.S.
§ 19-124(B). In contrast, the Secretary is obligated to
summarize, in no more than fifty words, “the principal
provisions of the measure,” followed by a “brief phrase . . .
stating the essential change in the existing law” should the
measure be approved. Id. § 19-125(D). The measure here,
Proposition 204, spanned fourteen single-spaced pages and
contained detailed and relatively complicated language regarding
state sales tax and related provisions. The length and
complexity of the initiative, and the constraints prescribed in
§ 19-125(D), are factors in assessing compliance with that
statute.
7
¶10 The Committee aptly notes that, compared to the
Council’s analysis, the Secretary’s ballot language arguably is
more important because it might be the last or only description
the electorate sees before voting on the measure. But given the
different requirements and purposes of §§ 19-124 and 19-125, we
are disinclined to equate the statutory standards or import
wholesale our jurisprudence relating to the former statute in
interpreting the latter. Although § 19-125(D) does not permit
the Secretary to use false or clearly misleading language, the
“tax increase” language he used in the publicity pamphlet and
ballot cannot be characterized as such.
¶11 We likewise do not find false or clearly misleading
the Secretary’s statement that the Act “forbids reductions to
the current state sales tax base.”3 The Committee challenges
that language as incorrectly “describ[ing] a measure that
prohibits altering a portion of the tax base as prohibiting
altering the entire tax base.” According to the Committee, the
Secretary’s “yes/no” language suggests that the Act “limits all
alterations to the tax base” and, therefore, violates the
statutory requirement by failing to “stat[e] the essential
change in the existing law should the measure receive a majority
3
The Committee does not challenge as inaccurate or
misleading the Secretary’s statement that the Act “forbids
reductions to current K-12 and university funding levels.”
8
of votes cast in that particular manner.” A.R.S. § 19-125(D).
¶12 As with the Secretary’s “tax increase” language to
which the Committee objects, the meaning of his “sales tax base”
language is fairly debatable and potentially subject to
differing interpretations. But that does not mean the language
fails to comply with § 19-125(D). The Secretary’s summary
begins by stating that the Act “permanently increases the state
sales tax by one cent per dollar.” In context, the language
that follows, regarding the “current state sales tax base” to
which the Act forbids reductions, could be read as referring to
the aforementioned “one cent per dollar” portion of the sales
tax base.4 Our task is not to determine whether that is the
only, or even the most reasonable, interpretation of the
language used. Rather, because the Secretary’s language is
neither false nor clearly misleading, and because it “can
reasonably be regarded as an attempt to provide necessary and
appropriate information to the voting public,” we find that it
substantially complies with § 19-125(D). Howe, 192 Ariz. at
4
In Tobin, although we found the issue “close,” the
Legislative Council was required to modify its description of
restrictions on adjusting the sales tax base. Slip op. at 14
¶ 22. But we found “particularly significant” that “the
Council’s analysis refer[red] to ‘sales tax’ as broadly meaning
‘the transaction privilege tax and the use tax,’ without
limiting it to the additional one percent sales tax that the
initiative would impose.” Id. slip op. at 13–14 ¶ 21. No such
misleading and fatal flaw appears in the Secretary’s language at
issue here.
9
384 ¶ 22, 965 P.2d at 776.
III.
¶13 We have no more appetite for enmeshing ourselves in
quarrels regarding the Secretary’s compliance with § 19-125(D)
than in disputes over the Council’s compliance with § 19-124(B).
As the superior court correctly observed regarding the areas of
contention here, however, the parties each raised “legitimate
points,” and neither side’s position “is irrational or
frivolous.” The court did not abuse its discretion or otherwise
err in finding that the Secretary’s language substantially
complies with § 19-125(D). See Ariz. R. P. Spec. Act. 3(c).
Accordingly, we accept special action jurisdiction but deny
relief.
___________________________________
A. John Pelander, Justice
CONCURRING:
___________________________________
Scott Bales, Vice Chief Justice
___________________________________
Robert M. Brutinel, Justice
10
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552 F.Supp. 863 (1982)
FILMWAYS PICTURES, INC., Plaintiff,
v.
MARKS POLARIZED CORPORATION, Defendant.
No. 81 Civ. 8133(MEL).
United States District Court, S.D. New York.
December 14, 1982.
*864 *865 Linden & Deutsch, New York City, for plaintiff.
Handal, Meller & Morofsky, New York City, for defendant; Anthony H. Handal, Paul B. Morofsky, New York City, of counsel.
LASKER, District Judge.
This action arises from the distribution of a three-dimensional ("3-D") motion picture, "Comin' at Ya." Filmways Pictures, Inc. ("FPI") the film's distributor, approached Marks Polarized Corp. ("Marks") on or about April 1, 1981 for the purpose of obtaining from Marks special projection and viewing devices necessary for 3-D films. The subsequent course of negotiations between the parties is a matter of dispute. Four contracts were drafted; none was ever executed.
However, some agreement or understanding between the parties was apparently reached and Marks began to manufacture the equipment for "Comin' at Ya." Marks contends that it understood the agreement to provide that Marks would do the manufacturing only if FPI paid for at least part of the costs and only if FPI was willing to recommend Marks and only Marks to the exhibitors. Marks further contends that as a result of FPI's delays, the possibilities of Marks' earning a profit on the venture became highly attenuated, and, at best, Marks hoped to break even on the transaction. In addition, Marks expected to have a larger inventory of adapters, financed by FPI, for its trouble. (Affidavit of Mortimer Marks, ¶ 17).
FPI, by contrast, attributes the difficulties to Marks. It asserts that the parties had a definite agreement as to Marks' duties to manufacture the equipment and to pay commissions to FPI for the rental income that Marks expected to receive from the exhibitors. FPI contends that problems arose because of Marks' financial difficulties, which necessitated FPI's advancement of funds to Marks' suppliers to pay for the raw materials for the equipment.
Marks replies that the "advances" to its suppliers were not agreed to by Marks; to the contrary, FPI bypassed Marks, and made commitments in its name, without authorization from Marks. (Affidavit of Mortimer Marks, ¶¶ 20, 21).
FPI moves pursuant to Fed.R.Civ.Pr. 56 for summary judgment on two of its claims for relief: the sixth claim, which seeks specific performance of the duty to render "an accounting of the amounts due and owing from defendant Marks to plaintiff FPI for commissions on the sale of viewers and on the lease of lenses," (Complaint ¶ 57) and the fourth claim, which requests the return of forty lenses which "are the property of the plaintiff FPI and which were shipped to Marks in connection with the motion picture." (Complaint ¶ 44). FPI also moves pursuant to Fed.R.Civ.Pr. 12(b)(6) to dismiss Marks' Second through Eighth Counterclaims.
I. FPI's Motion for Summary Judgment
FPI contends that each of the four draft agreements provides that Marks is obligated *866 to render an accounting to FPI for all commissions received in connection with leasing of lenses to the exhibitors. In the alternative, FPI argues that even if none of the written agreements controls (none of the written agreements was executed) there is an implied contractual agreement to account because FPI made advances to Marks' suppliers pursuant to an understanding which included the duty to render an accounting.
Marks answers that an accounting is unavailable because the terms of the agreement are disputed and uncertain. Marks contends that no agreement as to terms was ever reached:
"I understand that the word `agreement' means `a coming together of the minds.' There was never any `coming together.' Each time I received a written proposal it was inconsistent with our prior discussions."
(Affidavit of Mortimer Marks, ¶ 28).
As for the advances to Marks' suppliers, Marks denies its obligation to pay for them, on the grounds that Marks did not authorize them.
A brief perusal of the four draft contracts bears out Marks' contention that the terms of their understanding, whatever it was, are, at this point in the litigation, too uncertain to warrant the order of an accounting. The first draft appears to require Marks to pay a certain amount per theatre per week. The second provides in addition for certain sums to be paid from the lease income, up to $55,000, to cover an advance (which Marks contends it never received). The third draft specifies a division of lease income between Marks and FPI after deduction of certain costs, and the fourth adds a requirement that Marks reimburse FPI for sums advanced by FPI to Marks' suppliers. To allow an accounting at this stage would be premature since the terms of the agreement which would set the parameters of the accounting have not yet been determined. While it would appear from the allegations of the complaint that FPI is entitled to learn the details of Marks' financial transactions with the exhibitors, those facts can be unearthed through the regular discovery process. Accordingly, the motion for summary judgment on the sixth claim for relief is denied.
As to the fourth claim, FPI contends that there had always been a clear understanding between the parties that the lenses provided by FPI to Marks are and would continue to be the property of FPI, to be used by Marks only in connection with "Comin' at Ya." Marks does not dispute FPI's statement of the parties' understanding concerning the lenses, but merely asserts that it spent approximately $8,000 in repairing the lenses.
The $8,000 repair costs may provide the basis for a claim by Marks against FPI; however, "in an action for replevin, the issue is strictly whether plaintiff or defendant has the superior possessory right." Honeywell Information Systems, Inc. v. Demographic Systems, Inc., 396 F.Supp. 273, 275 (S.D.N.Y.1975). While there are circumstances in which one who repairs an item retains an interest in the item in the form of a mechanic's lien or otherwise, Marks does not indicate that any such circumstances are present here, and, accordingly, the ordinary rules for recovery of chattels, as set forth in Honeywell, are appropriate.
The motion for summary judgment is denied as to the sixth claim and granted as to the fourth claim.
II. FPI's Motions to Dismiss Marks' Counterclaims
1. Counterclaim # 2: The Lanham Act
Marks' claim under the Lanham Act, 15 U.S.C. § 1125(a), arises from an advertisement placed by FPI in the June 3, 1981 issue of Variety, a newspaper serving the entertainment industry. The advertisement is for "Comin' at Ya," and displays a picture of a 3-D viewer. Marks contends that the viewer pictured is its viewer and that the viewer has acquired a secondary meaning.
*867 The Lanham Act protects against false designations of origin. The claim fails because the advertisement did not falsely designate the origin of the viewer pictured it did not designate any origin at all.[1] The advertisement did not purport to be promoting viewers it was promoting a motion picture. The advertisement does not suggest or intimate in any way that FPI is claiming ownership of the viewers pictured. It does not create confusion as to the source of the viewers; it simply fails to indicate their source. Because we can determine from the face of the advertisement that it does not create any confusion "as to the source of the goods in question" McGregor-Doniger Inc. v. Drizzle, Inc., 599 F.2d 1126, 1131 (2d Cir.1979), the counterclaim under the Lanham Act is dismissed.
2. Counterclaim # 3: Trade Secrets
The third counterclaim alleges that FPI misappropriated confidential trade secret information of Marks. At oral argument, counsel for Marks explained that the bases for the third counterclaim are the acts alleged in the affidavit of Mortimer Marks, submitted in opposition to FPI's motion for summary judgment.
In his affidavit, Marks states:
"In a further attempt to insure the plaintiff's successful distribution of the Motion Picture, defendant Marks even went to the extent of telling a number of its trade secrets to its competitor in order to enable its competitor to manufacture acceptable polarizing film for viewers."
(Affidavit of Mortimer Marks, ¶ 23). Later, Marks states that FPI took advantage of Marks' good faith in disclosing its trade secrets to its competitors, and began ordering from the competitors instead of from Marks. (Id., ¶¶ 25, 26).
Thus, the claim is not that FPI used or disclosed Marks' trade secrets, but that FPI induced Marks to divulge its own trade secrets to its competitors. While this may state a claim under the doctrine of unfair competition, see infra, no case has been cited, nor is any known to the Court, in which a claim has been stated for expropriation of trade secrets in circumstances in which the plaintiff voluntarily disclosed his own secrets to third persons. Accordingly, the motion to dismiss the third counterclaim is granted.
3. Counterclaim # 4: Prima Facie Tort
The fourth counterclaim is based on the New York doctrine of the prima facie tort. The doctrine makes actionable an injury by the acts of a defendant which are motivated solely by malice. However, if the defendant's actions were motivated partly by malice and partly by the defendant's own pecuniary interest, a claim is not stated under the prima facie tort doctrine. Korry v. International Tel. & Tel., 444 F.Supp. 193 (S.D.N.Y.1978).
Marks does not claim that malice was FPI's sole motivation. Rather, the fourth counterclaim states that the acts of FPI
"were part of an overall plan ... to intentionally inflict injury upon Marks ... whereby Marks would be rendered incapable of continuing in business and defendants would obtain benefits by virtue of its arrangements with said coconspirators."
(Emphasis added).
Marks has failed to plead the necessary elements of a prima facie tort, and the motion to dismiss the claim is granted.
4. Counterclaim # 5: Unfair Competition
Marks' counterclaim under the New York common law of unfair competition is based on the same facts as the tort claims outlined above.
Unfair competition is a "capacious" doctrine. Roy Export Co. v. Columbia Broadcasting System, Inc., 672 F.2d 1095, 1105 (2d Cir.1982):
*868 "It has been broadly described as encompassing `any form of commercial immorality,' ... or simply as `endeavoring to reap where [one] has not sown,' ...; it is taking `the skill, expenditures and labors of a competitor,' and `misappropriati[ng] for the commercial advantage of one person ... a benefit or `property' right belonging to another.'"
Id. at 1105 (citations omitted).
Marks' contention that FPI induced it to disclose its trade secrets to its competitors in order to bypass Marks and deal directly with the competitors fits within the category described by Roy Export as "commercial immorality:" endeavoring to reap where one has not sown by misappropriating the skills and labors of another. The motion to dismiss the fifth counterclaim is denied.
5. Counterclaim # 6: Tortious Injury
The sixth counterclaim concerns an alleged assault by one of FPI's employees upon one of Marks' employees. FPI contends that a corporation cannot be the victim of an assault.
Marks argues that it has suffered damages by the assault in terms of the morale of its working staff. While FPI may be correct in its assertion that only a human being can be the direct victim of an assault, damages to a corporation may be a foreseeable consequence of an assault upon a person, particularly where, as here, the alleged assault is upon an employee which takes place in the employer's office during the working day.
The motion to dismiss the sixth counterclaim is denied.
6. Counterclaim # 7: Patent Infringement
The seventh counterclaim asserts that FPI induced one of Marks' competitors, Stereovision, to infringe Marks' patent for projector adapters. The claim is for "contributory infringement:" inducing another to infringe. 35 U.S.C. § 271(b).
FPI contends that Marks has failed to allege that FPI intended Stereovision to infringe Marks' patent, and that intention is an essential element of a claim for contributory infringement. Marks responds that Stereovision's adapters infringe Marks' patent and that FPI's recommendation that exhibitors use Stereovision adapters therefore constitutes contributory infringement.
Intent is a necessary element of contributory infringement
"As contributory infringement ... is intentional aid or cooperation in transactions which collectively constitute complete infringement ..., 3 Walker, Patents § 507, p. 1764 (Deller ed. 1937), the intent and purpose of the Defendant is of critical importance."
Fromberg, Inc. v. Thornhill, 315 F.2d 407, 414 (5th Cir.1963). The counterclaim for contributory infringement is dismissed for failure to plead intent, without prejudice to amendment of the complaint to allege intent, if such an amendment can be made in good faith.
7. Counterclaim # 8: Monopolization
Marks alleges that FPI attempted to monopolize the market for 3-D motion picture equipment by, inter alia, attempting to bankrupt Marks and acquire a permanent interest in the company. Again, Marks has failed to plead the essential elements of the cause of action.
In order to plead a claim for monopolization under § 2 of the Sherman Act, 15 U.S.C. § 2, a plaintiff must allege that the defendant possesses monopoly power in the relevant market. United States v. Grinnell Corp., 384 U.S. 563, 570-71, 86 S.Ct. 1698, 1704, 16 L.Ed.2d 778. Similarly, a cause of action for attempted monopolization requires an allegation that the defendant has a "`dangerous probability of success' in monopolizing a given product market." Nifty Foods Corp. v. Great Atlantic & Pacific Tea Co., 614 F.2d 832, 841 (2d Cir.1980), citing 345 U.S. 594, 626, 73 S.Ct. 872, 890, 97 L.Ed. 1277 (1953).
The complaint does not indicate that FPI possesses any power in the market for 3-D motion picture equipment. To the contrary, it would appear from the allegations *869 of the plaintiff that FPI is not even in the business of manufacturing or selling the subject equipment.
The antitrust claim is dismissed.
* * *
FPI's motion for summary judgment is denied as to the sixth claim and granted as to the fourth claim. FPI's motion to dismiss Marks' counterclaims is granted as to counterclaims two, three, four, seven and eight and denied as to counterclaims five and six. The dismissal as to counterclaim seven is without prejudice.
It is so ordered.
NOTES
[1] A copy of the advertisement has been submitted by plaintiff in connection with the motion. (Attachment to Letter of Anthony H. Handal, dated July 30, 1982).
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294 F.2d 231
111 U.S.App.D.C. 35, 130 U.S.P.Q. 48
Roy Y. SANDERS, Jr., Appellantv.David L. LADD, Commissioner of Patents, Appellee.
No. 16225.
United States Court of Appeals District of Columbia Circuit.
Argued May 5, 1961.Decided June 29, 1961.
Mr. Edwin T. Bean, Jr., Buffalo, N.Y., with whom Mr. Franklin D. Wolffe, Washington, D.C., was on the brief for appellant.
Mr. Raymond E. Martin, Attorney, United States Patent Office, with whom Mr. Clarence W. Moore, Solicitor, United States Patent Office, was on the brief for appellee.
Before EDGERTON, WASHINGTON and BURGER, Circuit Judges.
PER CURIAM.
1
This is a patent case, under 35 U.S.C. 145. Plaintiff-appellant's application, Serial No. 333,147, covered a marked pharmaceutical tablet and the process of marking such a tablet. Though the plaintiff seems to have met a business need, and his process has achieved financial success, we are not convinced that the Patent Office and the District Court were wrong in holding that the application did not disclose patentable invention over the prior art. See Schafer v. Watson, 1961, 109 U.S.App.D.C. 360, 288 F.2d 144.
2
Affirmed.
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 30, 2008
No. 07-40367
Conference Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
FERNANDO CASTANEDA-PEREZ
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:06-CR-1027-1
Before REAVLEY, BENAVIDES, and ELROD, Circuit Judges.
PER CURIAM:*
Appealing the Judgment in a Criminal Case, Fernando Castaneda-Perez
raises arguments that are foreclosed by Almendarez-Torres v. United States, 523
U.S. 224, 235 (1998), which held that 8 U.S.C. § 1326(b)(2) is a penalty provision
and not a separate criminal offense. United States v. Pineda-Arrellano, 492 F.3d
624, 625 (5th Cir. 2007), cert. denied, 2008 WL 59441 (Jan. 7, 2008) (No. 07-
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
No. 07-40367
6202). The appellant’s motion for summary disposition is GRANTED, and the
judgment of the district court is AFFIRMED.
2
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695 F.Supp. 48 (1988)
NATURAL RESOURCES DEFENSE COUNCIL, INC., et al., Plaintiffs,
v.
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, et al., Defendants.
AMERICAN PETROLEUM INSTITUTE, et al., Plaintiffs,
v.
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, et al., Defendants.
Civ. A. Nos. 83-2011, 83-2951.
United States District Court, District of Columbia.
September 14, 1988.
Angus Macbeth, Monica A. Schwebs, Sidley & Austin, David D. Doniger, Natural Resources Defense Council, Inc., Washington, D.C., for plaintiffs.
Stephen L. Samuels, Land and Natural Resources Div., Dept. of Justice, Earl Salo, *49 Ralph J. Colleli, Jr., Office of Gen. Counsel, U.S.E.P.A., Washington, D.C. (Francis S. Blake, Gen. Counsel, Alan W. Eckert, Associate Gen. Counsel, U.S.E.P.A., of counsel), for defendants.
Neil Jay King (David F. Zoll, Kathy Bailey, Chemical Mfrs. Assn., of counsel), Arthur F. Sampson, III, Kirkland & Ellis (G. William Frick, Arnold S. Block, American Petroleum Institute, of counsel), Washington, D.C., for intervenors.
John L. Wittenborn, Collier, Shannon, Rill & Scott, Washington, D.C., for Gasoline Marketers.
OPINION
JUNE L. GREEN, District Judge.
This matter is before the Court on plaintiffs Natural Resources Defense Council, Inc. and Environmental Defense Fund, Inc.'s ("NRDC")[1] motion for partial summary judgment and two motions to dismiss filed by defendants, the United States Environmental Protection Agency ("EPA") and its Administrator. The parties also filed their respective oppositions and supplemental briefs which were joined by several intervenors[2] during the course of this litigation. For the reasons set forth below, the Court grants in part and denies in part plaintiffs' motion for partial summary judgment and grants in part and denies in part defendants' two motions to dismiss.
I. Background
In 1977, in recognition of its known carcinogenic effects, then-EPA Administrator William D. Ruckelshaus listed benzene as a hazardous air pollutant pursuant to section 112(b)(1)(A) of the Clean Air Act (the "Act"), 42 U.S.C. § 7412(b)(1)(A). 42 Fed. Reg. 29,332 (1977). Benzene is a constituent of gasoline vapors and gasoline vapors as a whole are carcinogenic. Id. Under the Act, once the EPA determines that a pollutant such as benzene poses a health risk, it is required to issue proposed emission standards within 180 days of listing the pollutant. 42 U.S.C. § 7412(b)(1)(B).
The EPA did not issue the proposed regulations within the timetable prescribed by statute and on July 14, 1983, plaintiff NRDC filed its original complaint seeking an order to compel the EPA to propose or promulgate emissions standards for several stationary sources of benzene under section 112 of the Act. Standards for several categories of benzene emissions sources had been proposed but no final regulations as to these categories were ever promulgated. Furthermore, proposed regulations had not been issued as to several remaining categories of benzene emissions sources.
On November 11, 1983, plaintiffs filed a motion for partial summary judgment with respect to the EPA Administrator's duty to promulgate standards for four categories of sources of benzene emissions: (1) maleic anhydride process units; (2) ethylbenzene/styrene process units; (3) benzene *50 storage tanks, and (4) fugitive benzene emissions, and to propose a standard for coke oven by-product recovery plants. Plaintiffs limited the motion to these five categories because the Administrator had already issued proposed regulations for four of these categories and a proposed regulation had been readied, though not issued, for the fifth category.
This Court granted plaintiffs' motion on January 27, 1984, and ordered additionally that the EPA defendants publish notice of the promulgated or proposed standard(s) or its decisions that those actions would not be taken. EPA complied with the Court's order and published its decisions in the Federal Register on June 6, 1984. EPA proposed a standard for coke oven by-product recovery plants, prescribed a final standard for fugitive benzene emissions, and withdrew the proposed standards for maleic anhydride process units, ethylbenzene/styrene process units, and benzene storage tanks. 49 Fed.Reg. 23,478, 23,498, and 23,558 (1984). The proposed standards for maleic anhydride process vents, ethylbenzene/styrene process vents, and benzene storage vessels were withdrawn "based on the conclusion that both the benzene health risks to the public from these source categories and potential reductions in health risks achievable with available control techniques [were] too small to warrant Federal regulatory action under section 112." Id. at 23,494.
Plaintiffs then moved for leave to amend their complaint in this Court under section 304(a)(2) of the Act, 42 U.S.C. § 7604(a)(2), to allege that the Administrator of the EPA had failed to perform certain nondiscretionary duties under section 202(a)(6) of the Act, 42 U.S.C. § 7521(a)(6), with respect to requiring onboard emissions controls[3] for motor vehicles which are a source of benzene emissions. Plaintiffs argued that EPA never made a final decision as to this issue. In addition, plaintiffs sought an order compelling the Administrator, within the specified time frame embodied in section 112 of the Act, to propose emission standards with respect to a variety of additional source categories, including eight types of chemical manufacturing process units and other forms of benzene usage, and three elements of the gasoline marketing system. The eight types of chemical manufacturing process units and benzene usage are: ethylene plants, chlorobenzene plants, nitrobenzene plants, linear alkyl benzene plants, cyclohexane, waste disposal from chemical manufacturing, refinery waste disposal, and industrial solvent usage. The three elements of the gasoline marketing system are bulk terminals, bulk plants, and service stations. The Court granted plaintiffs' motion to amend the complaint.
Subsequently, defendants filed their first motion to dismiss which is pending before this Court. When this motion was filed initially, defendants sought dismissal of ¶¶ 4, 5, 21, 11, and 26, and ¶ 4 of the Prayer for Relief of plaintiffs' amended complaint on the grounds of lack of subject matter jurisdiction and failure to state a claim upon which relief may be granted, under Rules 12(b)(1) and (b)(6) of the Federal Rules of Civil Procedure. According to defendants, the claims alleged in these specific paragraphs of plaintiffs' amended complaint warrant dismissal because section 202(a)(6) of the Act does not impose a nondiscretionary duty on the Administrator *51 to determine the feasibility and desirability of requiring onboard emissions controls for new motor vehicles by a specific date. Even if such a duty were imposed by section 202(a)(6), defendants argue that they already discharged it in 1981 when the Administrator published a decision not to require onboard controls under the Act. 46 Fed.Reg. 21,628, 21,629 (1981). Intervenor-plaintiff API supported this motion to dismiss because "the far broader relief sought [by NRDC] in the Amended Complaint does not state a cause of action under section 304 of the Act, 42 U.S.C. § 7604." Memorandum of the American Petroleum Institute, et al. in support of EPA's Motion to Dismiss filed on November 29, 1984, at 1-2.
Plaintiffs then filed a second motion for partial summary judgment on the remaining issues in this case which sought initially an order requiring defendants, (1) within three months of entry of such order, to make a final determination pursuant to section 202(a)(6) of the Act regarding whether onboard and/or stationary controls would be utilized to regulate emissions of benzene and/or other hydrocarbons in the gasoline marketing system; (2) within three months thereafter to propose standards for regulating benzene and/or other hydrocarbons in the gasoline marketing system (or announcing that no regulation would be imposed) pursuant to section 112 or 202(a)(6) of the Act; (3) within six months thereafter to issue final standards for regulating benzene and/or other hydrocarbons in the gasoline marketing system; (4) within six months of entry of such order to propose a standard for emissions of benzene from chemical manufacturing process units and other forms of industrial benzene usage (or announcing that no regulation would be imposed), pursuant to section 112 of the Act; and (5) within six months thereafter to issue a final standard for emissions of benzene from chemical manufacturing process units and other forms of industrial benzene usage.
Next, defendants filed their second motion to dismiss and opposition to plaintiffs' motion for partial summary judgment. Unlike their first motion to dismiss which was directed solely at plaintiffs' claims concerning onboard controls of benzene emissions controls on new motor vehicles, this motion requested dismissal of plaintiffs' claims regarding defendants' alleged non-discretionary duties under section 112 of the Act to propose and promulgate emission standards for benzene emissions for the gasoline marketing system and chemical manufacturing process units and other forms of industrial benzene usage.
Defendants cited four basic grounds for their motion to dismiss. First, they argued that EPA had no nondiscretionary duty under section 112 to propose and promulgate the benzene emission standards sought by plaintiffs; therefore, the complaint should be dismissed for lack of subject matter jurisdiction. Second, defendants claimed that plaintiffs' complaint raised the basic legal question of whether EPA could regulate some source categories of benzene and not others within the time frame set forth in section 112. According to defendants, that very issue was pending before the United States Court of Appeals for the District of Columbia as part of various challenges of EPA's rulemaking notice of June 6, 1984, and they requested that this Court defer its judgment so that the appeals court could address this basic issue of statutory interpretation. Third, defendants argued that defendants failed to identify with particularity what the "other forms of industrial benzene usage" were in either its initial or amended complaint; therefore, those claims are not properly before the Court. Finally, even if all of defendants' claims were before the Court properly, defendants averred that summary judgment should not be granted because there would remain disputed issues of material fact related to the time schedule proposed by plaintiffs.
Without considering the full merits, this Court transferred this case to the United States Court of Appeals for the District of Columbia pursuant to 28 U.S.C. § 1631 (1982) and in light of the holding in Telecommunications Research & Action Center v. FCC ("TRAC"), 750 F.2d 70 (D.C.Cir. 1984). At the time of the transfer, this Court determined that plaintiffs' complaint *52 presented basically two issues for resolution: (1) whether section 112 of the Clean Air Act imposes a mandatory duty upon the EPA Administrator to propose and promulgate standards for all source categories of benzene emissions, including chemical manufacturing process units and the gasoline marketing system, and (2) whether the EPA Administrator fulfilled his duty under section 202(a)(6) of the Act when he announced in the Federal Register on April 15, 1981, that onboard vehicle controls would not be required. Natural Resources Defense Council, Inc. v. EPA, No. 83-2011, slip op. at 7 (D.D.C. Oct. 15, 1985). As to the latter issue, this Court determined that EPA had satisfied its duty under section 202(a)(6) on April 15, 1981, when it decided not to require onboard emission controls. Id. at 14. The first issue remained undecided.
Upon consideration of the transfer and the parties' claims, the Court of Appeals retransferred this case. Natural Resources Defense Council, Inc. v. EPA, No. 86-1010, slip op. at 1 (D.C.Cir. May 5, 1987). It found that the relief sought by plaintiffs, a court order compelling the Administrator of EPA to fulfill an alleged nondiscretionary duty imposed by section 112(b)(1)(A) of the Act, is obtainable only under section 304 of the Act, 42 U.S.C. § 7604. Section 304 vests original jurisdiction in the district courts to determine whether the Administrator has failed to perform "any act or duty under this chapter which is not discretionary." The Court of Appeals determined further that "because TRAC was premised on the absence of a congressional grant of jurisdiction to the district courts ... [it] is inapposite where Congress has explicitly vested district courts with original jurisdiction over a particular class of claims." Id. Accordingly, it concluded that the transfer of this case was improper.
After the retransfer, the parties submitted supplemental briefings in support of their various motions and to bring the Court up to date with the posture of the case. With one exception, no significant changes have occurred and the parties' positions remain the same. On August 19, 1987, the EPA Administrator changed his decision regarding onboard emissions controls and EPA proposed to control gasoline vapors, including benzene, from the last step of the gasoline marketing system the refueling of motor vehicles. 52 Fed.Reg. 31,162 (1987). According to the Administrator, "[t]his proposal would reduce emissions of gasoline refueling vapors by nearly 90 percent from uncontrolled levels." Id. at 31,162. Plaintiffs contend that this action by defendants did not fully discharge their statutory obligation since it was only a proposal pursuant to section 202(a)(6) of the Act and effectively a proposal to satisfy obligations under section 112. They contend that the deadlines set forth in section 112 are applicable; therefore, EPA had a nondiscretionary duty to take final action on its proposal within 180 days, that is by February 15, 1988. Since no such action was taken, plaintiffs still seek an order from this Court directing defendants to meet their alleged statutory obligations.
II. Discussion
Section 304(a)(2) of the Act, 42 U.S.C. § 7604(a)(2), provides that any person may commence a civil action in district court "against the Administrator [of EPA] where there is alleged a failure of the Administrator to perform any act or duty under this chapter which is not discretionary with the Administrator." This section is known generally as the "citizen suit" provision. "[C]ongress provided for district court enforcement under section 304 in order to permit citizen enforcement of `clear-cut violations by polluters or defaults by the Administrator' where the only required judicial role would be to make a clear-cut factual determination of whether a violation did or did not occur." Sierra Club v. Thomas, 828 F.2d 783, 791 (D.C.Cir.1987) (footnote omitted). "In order to impose a clear-cut nondiscretionary duty, ... a duty of timeliness must `categorically mandat[e]' that all specified action be taken by a date-certain deadline." Id. (footnote omitted and emphasis in cited case). In those instances, "the only question for the district court to *53 answer is whether the agency failed to comply with that deadline." Id.
The citizen suit filed by plaintiffs and the various motions filed by both sides seek a determination by this Court as to whether the Administrator has performed his nondiscretionary duty with regard to benzene emission standards. The papers of the parties present two issues involving this nondiscretionary duty: first, whether section 112(b)(1)(B) of the Act imposes a nondiscretionary duty upon the EPA Administrator either to propose emission standards for the remaining source categories of benzene in the chemical manufacturing process units and other forms of benzene usage and the three elements of the gasoline marketing system within the timetable prescribed under section 112(b)(1)(B) of the Act, or to announce that no regulation will be proposed, and second, whether the timetable prescribed under section 112(b)(1)(B) of the Act is applicable to action taken pursuant to section 202(a)(6) of the Act, thereby imposing a nondiscretionary duty upon the EPA Administrator to take final action within 180 days of its August 19, 1987 proposal regarding onboard emissions control.
A. Section 112
Section 112 of the Clean Air Act provides for regulation of hazardous air pollutants, which the statute defines as "air pollutant[s] to which no ambient air quality standard is applicable and which in the judgment of the Administrator cause[], or contribute[] to, air pollution which may reasonably be anticipated to result in an increase in mortality or an increase in serious irreversible, or incapacitating reversible, illness." 42 U.S.C. § 7412(a)(1) (1982). Under the statute, the Administrator is required to publish a list containing each hazardous pollutant for which he intends to adopt an emission standard. 42 U.S.C. § 7412(b)(1)(A). The statute also requires the Administrator, "within 180 days after the inclusion of any air pollutant in such list [to] publish proposed regulations establishing emission standards for such pollutant together with a notice of public hearing within thirty days." 42 U.S.C. § 7412(b)(1)(B) (emphasis added). "Not later than 180 days after such publication, the Administrator shall prescribe an emission standard for such pollutant, unless he finds on the basis of information presented at such hearings, that such pollutant is clearly not a hazardous air pollutant." Id. (emphasis added). The statute then directs the Administrator to set an emission standard promulgated under section 112 "at the level which in his judgment provides an ample margin of safety to protect the public health." Id.
Plaintiffs interpret section 112 as to require the EPA Administrator to either propose regulations establishing emission standards for all remaining source categories of benzene emissions within the time frame established by section 112 or make a final determination as to each category that no regulations will be proposed. EPA has not proposed or promulgated any emission standards for several source categories of benzene which include eight types of chemical manufacturing process units and benzene usage and three elements of the gasoline marketing system. Plaintiffs request that the Court compel the EPA Administrator to take action pursuant to section 112(b)(1)(B) with regard to these source categories of benzene.
Defendants EPA and its Administrator contend that plaintiffs read section 112 too broadly. They state that section 112(b)(1)(B) requires the EPA Administrator to "prescribe an emission standard" only for a pollutant listed pursuant to section 112(b)(1)(A) and he has already done this by promulgating standards for fugitive emissions. Supplemental Brief of Defendant United States Environmental Protection Agency ("Defendant's Supplemental Brief") at 11. According to defendants, "[s]ection 112 does not state or even imply that [the] EPA [Administrator] must promulgate a standard (or standards) specifically applicable to each and every source of the pollutant [in this case, benzene]." Id. at 11-12. Moreover, defendants aver that "[the Administrator's] determination of the appropriate scope of benzene standards necessarily involves the exercise *54 of discretion." Id. at 12. Since Congress provided specifically that the Administrator determine which emission level in his judgment protects the public health, any decision which by necessity requires the exercise of this degree of discretion cannot be considered nondiscretionary. Id.
To further support their contentions, defendants point to every instance in which EPA has promulgated an emission standard under section 112. In each instance, defendants argue, every emission standard was limited to certain specified emission sources. See 40 C.F.R. Part 61, Subparts B, H, I, and K (standards for radionuclides); Subparts C and D (beryllium); Subpart E (Mercury); Subpart F (vinyl chloride); Subpart M (asbestos); 51 Fed.Reg. 27,956 (1986) (inorganic arsenic) (to be codified at Subpart N).[4]
Furthermore, defendants cite this Court's order of January 27, 1984, to buttress their position. As noted by the defendants, that order did not direct EPA to regulate all sources or any particular source of benzene. Instead, it only ordered EPA to promulgate standards for the four source categories of benzene for which EPA had already proposed standards and to propose a standard for a fifth category which had been identified previously by EPA. See Order of January 27, 1984, at 2. Because EPA does not have a mandatory duty to regulate every benzene source, defendants assert that this Court lacks jurisdiction over plaintiffs' request for relief under section 304(a)(2) of the Act and that portion of plaintiffs' complaint should be dismissed.
When Congress enacted the Clean Air Act, it stated expressly that two of the purposes of subchapter I of the Act were "to protect and enhance the quality of the Nation's air resources so as to promote the public health and welfare and the productive capacity of its population," and "to initiate and accelerate a national research and development program to achieve the prevention and control of air pollution." 42 U.S.C. §§ 7401(b)(1), (b)(2). Section 112 is an integral part of subchapter I and "[e]very action by the Administrator in setting an emission standard is to be taken `to protect the public health.'" Natural Resources Defense Council v. EPA, 824 F.2d 1146, 1163 (D.C.Cir.1987).
With this in mind, the Court finds nonsensical the EPA's reading of section 112(b)(1)(B). Taken out of context, section 112(b)(1)(B) could be read literally to mean that the EPA Administrator need only propose a single emission standard for each hazardous pollutant in order to comply with the mandates of the Clean Air Act. However, when placed in its proper context and considered with the stated purposes of the Act, and subchapter I in particular, it becomes clear that EPA's interpretation of section 112(b)(1)(B) is unreasonable. Under EPA's reading of the Act as applied to the instant matter, the single standard promulgated for fugitive benzene emissions from equipment leaks under section 112, would satisfy the requirements of the Act. This result would be anomalous indeed since fugitive benzene emissions account for a mere 14 percent of benzene emissions from stationary sources. 49 Fed.Reg. 23,478 (1984).[5] Certainly, Congress did not intend *55 such a result in its efforts "to protect and enhance the quality of the Nation's air resources so as to promote the public health and welfare and the productive capacity of its population." 42 U.S.C. § 7401(b)(1).
Moreover, the Court questions the sincerity of EPA's position regarding section 112(b)(1)(B) in light of the rationale behind its recent request for voluntary remand in Natural Resources Defense Council v. Thomas, Nos. 84-1387 and consolidated cases ("Thomas case"). The Thomas case involved challenges in the United States Court of Appeals for the District of Columbia Circuit by NRDC of then-EPA Administrator Ruckelshaus' decision to promulgate standards for fugitive benzene emissions and to withdraw proposals for maleic anhydride process vents, ethylbenzene/styrene process vents, and benzene storage vessels. After the Court of Appeals rendered its decision in Natural Resources Defense Council v. EPA, 824 F.2d 1146 (D.C.Cir. 1987) (en banc) (the vinyl chloride case), EPA moved for voluntary remand of its final actions on these four categories of benzene sources. If EPA truly believed that it had discharged its duty under section 112(b)(1)(B) by promulgating standards for fugitive emissions alone, it would not now be reconsidering its decisions on the three previously withdrawn benzene proposals. Obviously, EPA's unreasonable position regarding section 112(b)(1)(B) has been assumed merely for the purpose of this litigation.
The Court must next address NRDC's contention that section 112(b)(1)(B) of the Act requires defendants to propose an emission standard for every source category of benzene emissions within 180 days of listing benzene as a hazardous pollutant, or make a determination that no such action will be taken. In order to answer this question, the Court must conduct a two-part analysis. The Court must first decide whether section 112(b)(1)(B) requires EPA to propose an emission standard for every source category of benzene emissions, or at least determine whether such a proposal should issue, and then it must determine whether either of these actions must be performed within 180 days of the listing of benzene. These are two separate issues.
In effect, NRDC's interpretation of section 112(b)(1)(B) requires EPA to take some type of affirmative action with respect to every stationary source of benzene emissions in order to comply with the mandate and purposes of the Clean Air Act. This notion is a reasonable one. EPA has a sorry record of not acting in conformance with the Act despite its stated purposes. This matter is one of many instances where EPA has disregarded the spirit and letter of the Clean Air Act and chosen instead to drag its feet in discharging its duty to protect the health of the American public. While the Court agrees with EPA that a plain reading of section 112(b)(1)(B) does not require it to propose emission standards for all remaining sources of benzene emissions, whether major or minor, the Court finds that EPA must make a final decision either to propose a standard for those source categories of benzene where it deems such action appropriate, or issue a final determination as to why a source of benzene emissions will not be regulated.
As for the time frame in which EPA must act, the Court finds that section 112(b)(1)(B) imposes a strict timetable with which EPA and its Administrator must comply. Without a doubt, Congress was aware of the relatively short period of time it had afforded the defendants in which to act when it enacted section 112(b)(1)(B). Nonetheless, it chose to do so in light of the overwhelming importance of the goals and purposes of the Act. "[T]he legislative history of the 1970 Amendments to the Act, Pub.L. 91-604, in which [section 112] deadlines were established, clearly demonstrates the importance Congress attached to the time limitations for agency action." State of New York v. Gorsuch, 554 F.Supp. 1060, 1063 (S.D.N.Y.1983). As noted by the court in Gorsuch, "[w]hen passing the bill, the House reported its concern that past strategies designed to combat air pollution `have been inadequate in several important respects, and the methods employed in implementing those strategies often have been slow and less effective *56 than they might have been.'" Id. (quoting H.R.Rep. No. 1146, 91st Cong., 2d Sess. 1, reprinted in 1970 U.S.Code Cong. & Admin.News 5356 (emphasis added in cited case)). The deadlines contained in section 112 "were not the inadvertent product of uninformed congressional action, but were the deliberate result of a studies effort by a joint congressional conference." Id. (citing H.R.Conf.Rep. No. 1783, 91st Cong., 2d Sess. 42, 45-47, reprinted in 1970 U.S. Code Cong. & Admin.News 5374, 5378-79).
In light of the foregoing, the Court finds specifically that section 112(b)(1)(B) does not impose a nondiscretionary duty on the Administrator to propose emission standards for every remaining source category of benzene. The Court does find, however, that EPA has a nondiscretionary duty under section 112(b)(1)(B) to issue a final determination, either a proposal to regulate or a notice of intention that a source will not be regulated, as to each remaining source category of benzene emissions within the timetable prescribed. Accordingly, the Court grants plaintiffs' motion for partial summary judgment as to this issue, and denies defendants' motion to dismiss filed on December 21, 1984.
B. Section 202(a)(6)
Section 202(a)(6) of the Act, 42 U.S.C. § 7521(a)(6), provides that the Administrator "shall determine the feasibility and desirability" of requiring onboard controls for motor vehicles as a means of controlling hydrocarbon emissions from refueling. It further provides that the Administrator shall require onboard controls by regulation if he finds them to be feasible and desirable. "If the Administrator finds that it is feasible and desirable to employ such technology he shall, after consultation with the Secretary of Transportation with respect to motor vehicle safety,[6] prescribe, by regulation standards regarding the use of onboard hydrocarbon technology which shall not become effective until the introduction to the model year for which it would be feasible to implement such standards, taking into consideration compliance costs and the restraints of an adequate lead time for design and production." Id. The text of section 202(a)(6) does not on its face contain any deadlines or time certain for the Administrator's determination of feasibility and desirability or for the promulgation of any rules requiring onboard controls if he finds them to be feasible.
Plaintiffs contend that the EPA Administrator's decision to require onboard controls is "both a proposal to act pursuant to [s]ection 202(a)(6) of the Act ..., and effectively a proposal to let that action satisfy its obligations under [s]ection 112." Supplemental Brief in Support of Plaintiffs' Motion for Summary Judgment and Plaintiffs' Answers to Defendants' Motions to Dismiss ("Plaintiffs' Supplemental Brief") at 10. Accordingly, plaintiffs argue that the deadlines set forth in section 112(b)(1)(B) are applicable and EPA had a nondiscretionary duty to take final action within 180 days of its proposal regarding onboard emissions controls.
Defendants disagree with plaintiffs' contentions. First, they argue that they satisfied any purported duty under section 202(a)(6) when the Administrator decided on April 13, 1981 not to require onboard hydrocarbon controls. Second, they aver that assuming arguendo that the action on April 13, 1981 did not discharge their duty, section 202(a)(6) does not create a deadline *57 for EPA action. Defendants contend that "by its omission of any deadlines or timetables, section 202(2)(6) implicitly leaves the Administrator with broad discretion to decide when and under what circumstances to take action." Defendants' Supplemental Brief at 18.
A careful review of the position of plaintiffs reveals a misguided premise. Plaintiffs insist that because the EPA Administrator's decision concerning onboard control ultimately affects the levels of benzene emissions, "any decision to impose onboard controls under 202(a)(6) is a decision to elect that alternative and effectively to satisfy the Administrator's obligations under [s]ection 112 by imposing this alternate method of control." Plaintiffs' Supplemental Brief at 11-12. In support of this contention, plaintiffs point to the fact that in its Regulatory Agenda published on October 26, 1987 in the Federal Register, EPA acknowledged that section 112, as well as section 202(a)(6), applies to its decision to impose onboard controls. 52 Fed.Reg. 40,844 (1987). What plaintiffs fail to point out, however, is that several other sections of the Act are also cited as legal authority. These sections are 42 U.S.C. § 7525 (motor vehicle and motor vehicle engine compliance testing and certification) and 42 U.S. C. § 7502 (nonattainment plan provisions).
Moreover, it appears to the Court that the dangers associated with benzene emissions were not the sole or primary impetus behind the Administrator's decision to require onboard controls, thus section 112's statutory deadline does not necessarily apply. In its August 19, 1987 notice announcing the requirement of onboard controls, EPA stated the specific reasons for the proposal. The reasons include: (1) "improve[ment of] ambient ozone levels in all areas of the country including those that are currently, or are projected to be, in violation of the National Ambient Air Quality Standard for this pollutant." 52 Fed. Reg. 31,162; (2) "provi[sion of] important ozone-related benefits in areas that are now in compliance with the ambient standard." id., and (3) "protect[ion of] the general public from the risks of cancer due to exposure to benzene, a component of gasoline vapor, and to evaporated gasoline as a whole." Id. (emphasis added). See also, 52 Fed.Reg. 31,165 (1987) (emphasis added). ("The principal environmental concerns associated with refueling emissions focus on their contribution to ozone formation in the atmosphere and on their direct health effects.")
The Court finds that when considering the entire regulatory scheme and the purpose of the Act, it cannot agree with plaintiffs' reading of the Act with regard to the alleged relationship between sections 112(b)(1)(B) and 202(a)(6). Congress clearly did not intend to place the Administrator under any specific time constraints as to its decision regarding onboard controls. Unlike several other provisions of the Act, section 202(a)(6) does not contain a specific deadline for compliance. Congress intended that the Administrator exercise his discretion with regard to the issue of onboard controls. The fact that action taken pursuant to section 202(a)(6) will have some effect on the overall level of benzene emissions does not warrant a different conclusion. "In the absence of a readily ascertainable deadline ... it will be almost impossible to conclude that Congress accords a particular agency action such high priority as to impose upon the agency a `categorical[] mandat[e]' that deprives it of all discretion over the timing of its work." Sierra Club v. Thomas, 828 F.2d at 791. Accordingly, since section 202(a)(6) does not involve a nondiscretionary duty on the part of the Administrator to propose, this Court does not have jurisdiction over this portion of plaintiffs' complaint; therefore, the Court grants defendants' November 15, 1984 motion to dismiss as to this issue, and denies plaintiffs' motion for partial summary judgment.
Having determined that defendants have no nondiscretionary duty under section 112(b)(1)(B) of the Act to act on the onboard emissions control proposals within the time frame included in that section, the Court in no way means to suggest that defendants have no duty to act within a reasonable period of time as to that proposal. Defendants have a general duty of *58 timeliness to comply with the mandates of the Act in general, and section 202(a)(6) in particular.
III. Conclusion
An appropriate order incorporating the conclusions of the Court is attached.
ORDER
Upon consideration of plaintiffs Natural Resources Defense Council, Inc. and Environmental Defense Fund, Inc.'s motion for [partial] summary judgment ("Plaintiffs' Motion for Partial Summary Judgment"); defendants United States Environmental Protection Agency ("EPA") and the EPA Administrator's motions to dismiss filed respectively on November 15, 1984, and December 21, 1984; the various papers filed either in support of, opposition or reply to the plaintiffs' and defendants' motions; the entire record herein, and for the reasons stated in the accompanying opinion, it is by the Court this 14th day of September 1988,
ORDERED that plaintiffs' motion for partial summary judgment is granted in part and denied in part; it is further
ORDERED that defendants' motion to dismiss filed on November 15, 1984, is granted; it is further
ORDERED that, on or before March 13, 1989, defendants shall publish in the Federal Register final determinations pursuant to section 112 of the Clean Air Act, 42 U.S.C. § 7412, on whether or not to regulate emissions of benzene from chemical manufacturing process units, including ethylene plants, chlorobenzene plants, nitrobenzene plants, linear alkyl benzene plants, cyclohexane plants, waste disposal from chemical manufacturing, refinery waste disposal, industrial solvent usage, and other forms of benzene usage; bulk terminals, bulk plants, and service stations (including the filling of service stations tanks by gasoline tank trucks but not including the refueling of motor vehicles at service stations), and shall promulgate such benzene emission standards as are appropriate within 180 days of any emission standards proposed by defendants; and it is further
ORDERED that these cases are dismissed.
NOTES
[1] The plaintiffs in Civil Action No. 83-2011 are Natural Resources Defense Council, Inc. and Environmental Defense Fund, Inc. ("NRDC"), two nonprofit environmental protection organizations. On October 4, 1983, the American Petroleum Institute ("API") filed a separate and closely parallel action, Civil Action No. 83-2951, in this Court. API is a national trade association of the petroleum industry which represents over 300 companies and over 7,500 individuals. By stipulation, the parties in both Civil Action Nos. 83-2011 and 83-2951 agreed to consolidate these suits for the purposes of discovery, motion practice, and hearing or trial. See Stipulation filed on November 29, 1983.
[2] On behalf of its member companies, API and six API member companies, including Atlantic Richfield Company, Gulf Oil Corporation, Shell Oil Company, Standard Oil Company (Indiana), Standard Oil Company (Ohio), and Texaco Inc., intervened as plaintiffs in Civil Action No. 83-2011 on September 7, 1983. The Court will refer to these intervenors collectively as "API."
The Chemical Manufacturers Association ("CMA") also intervened as a plaintiff on September 15, 1983. CMA is a nonprofit trade association whose member companies represent more than 90 percent of the production capacity for basic industrial chemicals in the United States.
The Court granted an unopposed motion for intervention as defendants by the National Association of Convenience Stores, the National Oil Jobbers Council, and the Society of Independent Gasoline Marketers of America (the "Gasoline Marketers") on September 2, 1983. The Gasoline Marketers are trade associations comprised of companies which store, transport, distribute and sell gasoline at retail.
[3] Approximately 90 percent of all refueling emissions consist of vapors displaced from the vehicle fuel tank by incoming gasoline. 52 Fed. Reg. 31,164 (1984). There are two basic alternatives for the control of refueling emissions, "Stage II" and "onboard." Stage II equipment is installed at the service station while onboard equipment is installed in the vehicle. This case involves the latter, thereby necessitating a short description of this system for the sake of clarity.
Onboard systems function during the refueling of an automobile by sealing the vehicle fillneck, then routing the displaced vapor from the fuel tank to a storage canister. This canister is loaded with granules of activated carbon, and the hydrocarbon molecules in the vapor are absorbed onto the surfaces on these granules. When the vehicle's engine is started, fresh (ambient) air is drawn through the canister to desorb or purge the hydrocarbons from the activated mixture. The resulting mixture of air and hydrocarbon vapors is transferred to the fuel metering system and burned in the engine. Gasoline vapors that would normally be lost to the atmosphere are used instead to power the vehicle. Id. at 31,173.
[4] For example, the standard for radionuclides does not cover coal-fired boilers, the phosphate industry, and other extraction industries. 49 Fed.Reg. 43,906 (1984). The beryllium standard does not cover certain beryllium alloy machining operations. 38 Fed.Reg. 8,823 (1973). The vinyl chloride standard does not cover polyvinyl chloride fabricating plants and some other sources. 40 Fed.Reg. 59,534 and 59,535 (1975); 41 Fed.Reg. 46,562 (1976). The asbestos standard does not cover asbestos mines, asbestos dumps and open storage areas, or asbestos fabrication operations. 38 Fed.Reg. 8,821 (1973). Finally, the arsenic standard does not cover primary and secondary lead smelters, primary zinc smelters, zinc oxide plants, cotton gins or arsenic chemical manufacturing plants. 51 Fed.Reg. 27,956 (1986).
[5] The 14 percent figure is derived from statistics published by EPA in a Federal Register notice at 49 Fed.Reg. 23,478 (1984). The total of all fugitive benzene emissions from equipment leaks at the time this source category was regulated was 7,900 Mg/yr. Id. at 23,492. The total of all benzene emissions from stationary sources at that time was 55,000 Mg/yr. Id. at 23,478. Thus, fugitive benzene emissions from equipment leaks accounted for 7,900 out of 55,000 amg/yr. of benzene emissions from stationary sources or 14 percent.
[6] In compliance with section 202(a)(6), "consultations were held with representatives of DOT's [Department of Transportation] National Highway Traffic Safety Administration (NHTSA) to discuss the potential safety hazards associated with onboard controls," during the development of the proposal. 52 Fed.Reg. 31,202 (1987). "During these discussions, EPA's analysis [] was reviewed and the Agency sought NHTSA's review and comment on each of the safety issues identified." Id. According to EPA, "there appears to be no obstacle which would prevent the design and production of safe onboard systems, although additional study may be necessary before final rulemaking action to ensure adequate lead time is available for vehicle design and testing." Id. EPA stated further that it would "continue to be responsive to the Congressional mandate by consulting further with DOT on potential safety concerns as new information on probable system designs becomes available," and that "[a] final safety evaluation [would] be made as part of the final rulemaking." Id.
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791 F.2d 926
Ingersoll Rand Financial Corp.v.Yale Min. Corp.
85-1443
United States Court of Appeals,Fourth Circuit.
6/5/86
1
W.D.Va.
REVERSED AND REMANDED
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172 Cal.App.2d 345 (1959)
THE PEOPLE, Respondent,
v.
ARTHUR LEE WILLIAMS, Appellant.
Crim. No. 6407.
California Court of Appeals. Second Dist., Div. Two.
July 27, 1959.
Rayfield Lundy for Appellant.
Stanley Mosk, Attorney General, William E. James, Assistant Attorney General, and Robert M. Sweet, Deputy Attorney General, for Respondent.
ASHBURN, J.
Defendant was convicted of two charges of selling marijuana and one charge of possession of heroin. He has been represented by counsel at times, then in propria persona and finally by counsel.
He claims unlawful search and seizure, refusal to disclose the name of an informer, insufficiency of the evidence to support the convictions, perjured testimony on the part of Deputy Sheriff Brown, and inherent improbability therein. None of these contentions has substantial support in the record.
Count I of the information charges sale of marijuana on September 10, 1957. Deputy Sheriff Brown on that evening met defendant on the street, inquired if he had seen one "C.W." Defendant said he had not but he could help out because he had put "C.W." in business. He took Brown to his automobile, unlocked it and showed him a quantity of marijuana. Brown gave him five dollars and later defendant delivered a newspaper package of that plant to Brown. It became People's Exhibit 3.
Count II charges sale of marijuana on September 19, 1957. Deputy Brown, in the afternoon of that day, waved at defendant as the latter drove by in his car and defendant pulled over to join him. The officer talked about buying some marijuana and was told he could have it right then if he had the money, that it would be eleven dollars for a can of it. They then drove into the driveway of defendant's home, 1514 East 110th Street. Defendant went to his upstairs apartment and *347 soon returned to the car and delivered to Brown two newspaper packages of marijuana for which he was paid eleven dollars. This marijuana became People's Exhibit 4.
Count III alleges possession of heroin on October 11, 1957. On that evening, acting upon information furnished by a reliable informant to the effect that defendant was dealing in heroin and had some in his possession at 1514 East 110th Street, Officers Stephenson, King and Caskey parked their automobile nearby and watched suspicious actions of the occupants of three cars which drove up and soon left. Then Stephenson and King went to defendant's upstairs apartment, looked through a peephole in the door, knocked, a woman opened the door, they identified themselves and entered. Officer King found defendant in a bedroom where he was seated with a hypodermic in his hand, withdrawing it from a glass of water. On the table were three cellophane packages containing 108 capsules of heroin, a cigarette package containing 8 bindles and 9 capsules of heroin. (They became People's Exhibit 1.) Defendant was arrested and before leaving his home said he thought there were 120 capsules, as he had generally gotten that many out of a half ounce, and that was what he had bought that morning; that he had gone to a peddler to buy it and had just finished capping it. The informant was not present when any of these things occurred.
[1] Re alleged unlawful search and seizure. At the preliminary hearing the marijuana and the heroin were received in evidence without objection and it was stipulated at the trial that they be received in evidence bearing the same numbers. This stipulation precluded any subsequent complaint about these exhibits. (People v. Rollins, 161 Cal.App.2d 560, 565 [326 P.2d 938].) [2] In the absence of such a stipulation it would be too late now to raise the claim of unlawful search and seizure for failure to object to the evidence at the trial precludes advancing it on appeal. (People v. Richardson, 51 Cal.2d 445, 447 [334 P.2d 573].) No motion to suppress the evidence was made, as claimed by appellant.
[3] Actually, it does not appear that the officers did not have a search warrant, and it must be presumed that the arrest of defendant and search of his apartment were lawful. (People v. Citrino, 46 Cal.2d 284, 287 [294 P.2d 32]; People v. Kelsey, 140 Cal.App.2d 722, 723-724 [295 P.2d 462].)
[4] The claim that there was wrongful refusal to require the officer to disclose the name of the confidential informer *348 fails for want of support in the record. No such demand or request was made. No objection was interposed to the officer's testimony concerning what he learned from the informant and no motion to strike was made. (Priestley v. Superior Court, 50 Cal.2d 812, 819 [330 P.2d 39]; Coy v. Superior Court, 51 Cal.2d 471, 473 [334 P.2d 569].)
The sufficiency of the evidence is manifest. True, defendant denied everything but his evidence was rejected by the court and not without good reason.
[5] The claim of perjury in the testimony of Officer Brown calls on us to weigh the evidence, a thing which we cannot do. (People v. Newland, 15 Cal.2d 678, 681 [104 P.2d 778].) Likewise the assertion of inherent improbability in Brown's testimony finds no support in the transcript. (People v. Huston, 21 Cal.2d 690, 693 [134 P.2d 758]; People v. Baserto, 162 Cal.App.2d 123, 125 [327 P.2d 558].)
There is no semblance of merit in this appeal. It appears that the judgment herein was rendered on July 3, 1958, and on July 9th the trial judge upon defendant's motion granted a stay of execution pending appeal. This case was on our calendar of June 18, 1959. Presumably appellant has done almost a year of "dead" time in jail. This is not an unusual situation in a propria persona appeal. [6] If the defendant is indigent the appellate court, upon application for appointment of an attorney for him, will make an independent examination of the record and will make such appointment unless it finds that it would not be of advantage to the defendant or helpful to the court to have counsel appointed (People v. Hyde, 51 Cal.2d 152, 154 [331 P.2d 42]). Denial of such an application should be sufficient evidence to the defendant that his appeal is without merit and that he should begin to serve his sentence forthwith. It is unfortunate that such appellants, when having no substantial grounds for appeal, are not given advice as to the futility of appeal and the folly of a stay of execution during the progress of one.
The judgment and order denying a new trial are affirmed.
Fox, P. J., and Herndon, J., concurred.
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Order entered September 6, 2013
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-13-00995-CR
COURTNEY EARLENE SHANNON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the County Court at Law No. 1
Grayson County, Texas
Trial Court Cause No. 2011-1-1161
ORDER
The Court REINSTATES the appeal.
On August 12, 2013, we ordered the trial court to make findings regarding whether
appellant was entitled to court-appointed counsel and, if so, to appoint counsel to represent
appellant. We have received the trial court’s order appointing Garland Caldwell to represent
appellant in the appeal. We DIRECT the Clerk to list Garland Caldwell as appellant’s attorney
of record.
We have received the reporter’s record. Accordingly, appellant’s brief is due within
THIRTY DAYS of the date of this order.
We DIRECT the Clerk to send copies of this order, by electronic transmission, to
counsel for all parties.
/s/ DAVID EVANS
JUSTICE
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FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS August 19, 2015
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 12-7086
KENNETH EUGENE BARRETT,
Defendant - Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA
(D.C. Nos. 6:09-CV-00105-JHP and 6:04-CR-00115-JHP-1)
David B. Autry, Oklahoma City, Oklahoma, (Heather E. Williams, Federal Defender,
Joan M. Fisher and Tivon Schardl, Assistant Federal Defenders, Sacramento, California,
with him on the briefs) for Defendant - Appellant.
Jeffrey B. Kahan, Trial Attorney, United States Department of Justice, Washington, D.C.,
(David A. O’Neil, Acting Assistant Attorney General, Washington, D.C., Mark F. Green,
United States Attorney, and Christopher J. Wilson, Assistant United States Attorney,
Muskogee, Oklahoma, with him on the brief) for Plaintiff - Appellee.
Before KELLY, HARTZ, and MATHESON, Circuit Judges.
HARTZ, Circuit Judge.
Defendant Kenneth Barrett was sentenced to death after being convicted in federal
court on two counts of felony murder and one count of intentionally killing a state law-
enforcement officer. We affirmed on direct appeal. See United States v. Barrett,
496 F.3d 1079 (10th Cir. 2007). Defendant then filed a motion for relief under 28 U.S.C.
§ 2255, which the district court denied. See Barrett v. United States, No. 6:09-civ-105-
JHP, 2012 WL 3542609 (E.D. Okla. Aug. 16, 2012) (unpublished). We granted a
certificate of appealability (COA) enabling him to appeal on several of his claims of
ineffective assistance of counsel. See 28 U.S.C. § 2253(c)(1)(B) (requiring COA to
appeal denial of § 2255 motion). Exercising jurisdiction under 28 U.S.C. § 2255(d), we
now consider the merits of those claims and affirm on all but one. Because Defendant
may be entitled to relief on his contention that his trial attorneys were ineffective by
failing to investigate and present evidence of his background and mental health for the
trial’s penalty phase, we reverse and remand for an evidentiary hearing on this issue.
I. BACKGROUND
A. The Offenses
In January 1999 a warrant was issued for Defendant’s arrest for failure to appear at
a state criminal trial on drug charges. That September an agent for Oklahoma’s District
27 Drug Task Force learned from a confidential informant that Defendant had
methamphetamine at his residence. The confidential informant also told the agent that
Defendant had promised to kill any officer who came to arrest him and that he was
2
operating his drug business at night because of his belief that law enforcement could not
execute a search warrant at night. The agent obtained a no-knock, day-or-night search
warrant for Defendant’s residence. Viewing the execution of the two warrants as high-
risk, he obtained assistance from the Oklahoma Highway Patrol Tactical Team (the Tact
Team).
On the evening of September 23 three troopers surveilled Defendant’s residence in
a white, unmarked Ford Bronco. Travis Crawford, Defendant’s cousin, was with him at
the time. According to Crawford, Defendant saw a white vehicle pass by and recognized
it as belonging to law enforcement, but he said that he did not care and that he “was
going out in a blaze of glory.” R., Vol. 5 pt. 1 at 629.
The Tact Team devised its plan to secure Defendant’s residence: Two white
Broncos and a marked patrol car with its emergency lights activated, each containing two
troopers, would approach Defendant’s residence single-file from the east while three
troopers in another patrol car would approach the fence south of Defendant’s residence.
A fifth vehicle would drive to a trailer occupied by Defendant’s mother, which was west
of the house, to provide security and protect her. The six troopers approaching from the
east would enter and secure the residence. Of the three troopers approaching from the
south, one would stay at the fence to provide sniper cover and the other two would
apprehend anyone fleeing west from the residence.
Shortly after midnight on September 24 the Tact Team met with members of the
Task Force, who planned to follow two minutes after the Tact Team. The Tact Team
3
then began to execute its plan. The lead Bronco approaching from the east was driven by
Trooper John Hamilton with Trooper David “Rocky” Eales as passenger. Its emergency
lights were not on. The second Bronco and patrol car followed closely behind. The
patrol car and perhaps the second Bronco had emergency lights on. As the vehicles drove
toward the residence, the lead Bronco began receiving gunfire at “approximately head
level, middle of the windshield.” Id. at 700. The gunfire intensified as the vehicle drew
closer. Hamilton was struck in the face with glass or bullet fragments.
Meanwhile, the troopers coming from the south arrived at the fence. Two of them
scaled it and headed toward the residence. They saw Defendant’s son, Toby Barrett,
outside the residence and ordered him to get on the ground. Toby eventually complied.
The gunfire erupted either shortly before or while they were shouting at Toby. After
Toby was handcuffed he yelled for his father.
The lead Bronco continued to receive gunfire until it reached the residence. The
driver, Hamilton, ducked between the bucket seats. The passenger, Eales, exited and was
shot three times while attempting to get behind the Bronco. Hamilton threw a “flash-
bang” stun grenade out the window, which temporarily stopped the gunfire. Id. at 707.
He exited the Bronco and was shot in the shoulder as he moved toward Eales, who was
lying face-down. Trooper Ricky Manion joined him behind the vehicle. Hamilton saw
Defendant standing in his doorway holding a rifle, and Manion saw him entering the
house. Hamilton fired two shots at Defendant that missed, but Manion shot him through
a window and hit his legs. Defendant was dragged out to the front yard. He tried to
4
move his hand toward the front of his body, where he had a pistol in his waistband, but he
was subdued and the gun removed.
Eales was fatally wounded. An autopsy indicated that one of the three bullets
entered his upper back, broke four ribs, and perforated his left lung and aorta.
Later investigation showed that 18 bullets struck the lead Bronco and that
Defendant probably fired 19 shots from a Colt Sporter .223 rifle (there were 72 rounds
remaining in a set of three magazines taped together to hold 90 rounds, and one could
have been in the chamber to start). A search of the premises revealed several firearms,
including two that were loaded, and various items used to manufacture
methamphetamine. A later search of Defendant’s clothes at a police laboratory revealed
$2120.10 in cash and plastic bags holding red phosphorus, an ingredient for
manufacturing methamphetamine.
B. Procedural History
The same day as the shootings, Defendant was charged by information in
Oklahoma state court with one count of first-degree murder and three counts of shooting
with intent to kill. After several amendments the final information charged him with one
count of first-degree murder (for Eales’s death), one count of shooting with intent to kill
(for shooting Hamilton), and two counts of discharging a firearm with intent to kill (for
shots fired at two other troopers). His first state trial resulted in a hung jury. In 2004 he
was retried and found not guilty on the two counts of discharging a firearm with intent to
kill but guilty on two lesser-included offenses—namely, manslaughter, instead of first-
5
degree murder, and assault and battery with a dangerous weapon, instead of shooting
with intent to kill. He was sentenced to 30 years in prison.
On September 23, 2004, Defendant was charged with various federal drug and
murder offenses in the United States District Court for the Eastern District of Oklahoma.
A superseding indictment charged him with three offenses: (1) causing Eales’s death in
the course of using a firearm in furtherance of a drug-trafficking offense, see 18 U.S.C.
§ 924(c)(1)(A), (j); (2) causing Eales’s death in the course of using a firearm in
furtherance of a crime of violence, see id.; and (3) intentionally killing Eales during a
federal drug offense while Eales was engaged in, and on account of, the performance of
his official duties, see 21 U.S.C. § 848(e)(1)(B). The government sought the death
penalty on each count. On November 4, 2005, a jury found him guilty on all three
counts, and thereafter recommended life imprisonment on the first two and death on the
third. The judge imposed the recommended sentence. On direct appeal we affirmed the
convictions and sentence. See Barrett, 496 F.3d 1079. The Supreme Court denied
Defendant’s petition for certiorari. See Barrett v. United States, 552 U.S. 1260 (2008).
Defendant then moved for relief under 28 U.S.C. § 2255. The district court denied
the motion and declined to issue a COA. See Barrett, 2012 WL 3542609, at *94.
Defendant then sought a COA from this court. We granted a COA on seven issues
related to ineffective assistance of counsel:
1. “Whether trial counsel provided ineffective assistance in the guilt phase
by failing to present an expert as to whether the police tactics employed
6
during the search warrant’s execution would have identified the police as
law-enforcement personnel”;
2. “Whether trial counsel provided ineffective assistance in the guilt phase
by failing to present a crime-scene expert”;
3. “Whether trial counsel provided ineffective assistance in the guilt phase
by failing to investigate and present mental-health evidence”;
4. “Whether trial counsel provided ineffective assistance in the guilt phase
by failing to seek an instruction concerning the credibility of drug-addict
witnesses”;
5. “Whether trial counsel provided ineffective assistance in the guilt phase
by failing to seek an instruction on the defense’s theory of the case”;
6. “Whether appellate counsel provided ineffective assistance by not
raising the trial court’s refusal to give a lesser-included-offense
instruction”; and
7. “Whether trial counsel provided ineffective assistance in the penalty
phase by failing to develop mitigation evidence.”
Case Mgmt. Order at 1–2, United States v. Barrett, No. 12-7086 (10th Cir. May 2, 2013).
II. DISCUSSION
A. Standard of Review
On appeal from the denial of a § 2255 motion, ordinarily “we review the district
court’s findings of fact for clear error and its conclusions of law de novo.” United States
v. Rushin, 642 F.3d 1299, 1302 (10th Cir. 2011). “[W]here, as here, the district court
does not hold an evidentiary hearing, but rather denies the motion as a matter of law upon
an uncontested trial record, our review is strictly de novo.” Id. We review claims of
ineffective assistance of counsel according to the two-pronged test in Strickland v.
Washington, 466 U.S. 668 (1984). First, a movant must show that counsel’s performance
was deficient, meaning it “fell below an objective standard of reasonableness as
measured by prevailing professional norms.” Rushin, 642 F.3d at 1302 (internal
7
quotation marks omitted). This is a demanding standard, requiring a showing that the
performance was “outside the wide range of professionally competent assistance.” Byrd
v. Workman, 645 F.3d 1159, 1168 (10th Cir. 2011) (internal quotation marks omitted).
The performance “must have been completely unreasonable, not merely wrong.” Id.
(internal quotation marks omitted). Next, a movant must show prejudice, meaning “there
is a reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Rushin, 642 F.3d at 1302 (internal quotation
marks omitted). “A reasonable probability is a probability sufficient to undermine
confidence in the outcome of the trial . . . .” Byrd, 645 F.3d at 1168 (internal quotation
marks omitted). “Courts are free to address these two prongs in any order, and failure
under either is dispositive.” Id.
B. Police-Tactics Expert
Defendant first contends that his trial attorneys were ineffective by choosing the
wrong expert on police tactics. He asserts that criminologist George Kirkham (whom the
court had authorized the defense to retain as an expert) could have established that the
Tact Team’s raid was ill-conceived in that it prevented him from knowing that it was
law-enforcement officers, rather than drug dealers or other trespassers, who had invaded
his property. Instead of using Kirkham, Defendant’s trial attorneys called as an expert
witness Cloyce Van Choney, a former FBI SWAT-team leader who had testified for the
prosecution in the two state trials. Defendant contends that this was an inexplicable
mistake because his attorneys knew that Choney was extremely hostile and would
8
inevitably change his testimony in the federal trial to the defense’s detriment. We
disagree.
“[T]he decision of which witnesses to call is quintessentially a matter of strategy
for the trial attorney.” Boyle v. McKune, 544 F.3d 1132, 1139 (10th Cir. 2008). And
“[t]he selection of an expert witness is a paradigmatic example of the type of strategic
choice that, when made after thorough investigation of the law and facts, is virtually
unchallengeable.” Hinton v. Alabama, 134 S. Ct. 1081, 1089 (2014) (per curiam)
(brackets and internal quotation marks omitted). We are satisfied that the decision to call
Choney was a strategic choice within the bounds of professionally reasonable conduct.
Even though Defendant’s trial attorneys did not contact Kirkham, they had good reason
to use Choney instead. As they said to the trial court at the ex parte hearing to establish a
trial budget, Choney’s testimony on cross-examination at the first state trial was
extremely helpful to the defense in establishing that the methods used by the Tact Team
were contrary to best practices. See R., Vol. 3 at 98–101. At the second state trial, he
apparently refused to testify for the defense. But when the defense said it would read to
the jury his testimony from the first trial, the prosecution called him and his testimony
was, as acknowledged in Defendant’s opening brief on appeal, a “debacle” for the
prosecution. Aplt. Br. at 19.
Although Defendant contends that, given Choney’s hostility, he would inevitably
change his testimony in the federal trial, he had not done so between the two state trials.
Defendant’s trial attorneys could have reasonably believed his testimony would be much
9
the same the third time around. “[F]or counsel to repeat a winning strategy in a later trial
for the same type of crime, involving the same defendant, strikes us as eminently
reasonable.” Laws v. Armontrout, 863 F.2d 1377, 1393 (8th Cir. 1988) (en banc). To the
contrary, had they departed from that strategy, Defendant may well have argued that it
was ineffective to do that instead. See Guerrero v. United States, 84 F. App’x 933, 934–
35 (9th Cir. 2003) (remanding for § 2255 hearing on ineffectiveness claim when attorney
departed from strategy that led to hung jury in first trial); cf. Putman v. Head, 268 F.3d
1223, 1229, 1244–45 (11th Cir. 2001) (rejecting habeas applicant’s argument that trial
counsel in second trial should have followed the same strategy used in first trial).
Although Defendant contends that his trial attorneys could have avoided the risk of
Choney’s testimony going awry by calling Kirkham instead, there is no guarantee that
Kirkham’s testimony would have survived cross-examination. See Boyle, 544 F.3d at
1138–39 (medical experts if called may have made damaging concessions on cross-
examination). They could have rationally concluded that it was preferable to use
Choney—a known commodity who had testified favorably twice in the past—rather than
a new expert.
Defendant’s claim thus fails Strickland’s first prong because the decision to call
Choney was within “the wide range of professionally competent assistance.” Byrd, 645
F.3d at 1168 (internal quotation marks omitted).
10
C. Crime-Scene Reconstruction Expert
Defendant contends that his trial attorneys were ineffective by failing to counter
the government’s crime-scene reconstruction expert, Iris Dalley. He says they could have
called or at least consulted with Edward Hueske, a ballistics and crime-scene
reconstruction expert who had been retained in the state-court proceedings and for whom
the district court had authorized funding. Instead, they decided to rely solely on cross-
examining Dalley. According to Defendant, that was an ineffective strategy: His trial
attorneys should have objected to Dalley’s testimony in the first place; called Hueske as a
witness; and prepared adequately for Dalley’s testimony by consulting with Hueske and
reviewing all Dalley’s state-court transcripts.1 Defendant states that Dalley’s testimony
was damaging for two reasons. First, it placed him standing outside his residence when
shooting, which countered his defense that he shot from a prone position inside his
residence where he could not see any emergency lights on the vehicles behind the lead
Bronco and thus did not know that the intruders were law-enforcement officers. Second,
Dalley’s testimony established that Eales was shot after he exited the Bronco, which, he
1
The government argues that the first and third of these arguments are outside the bounds
of the COA, which provides for argument only on “[w]hether trial counsel provided
ineffective assistance in the guilt phase by failing to present a crime-scene expert.” Case
Mgmt. Order at 1, Barrett, No. 12-7086. Defendant responds that his request for a COA
on this issue encompassed all the challenges he now raises on appeal. We need not
decide whether Defendant’s claims exceed the scope of the COA because they fail
regardless.
11
says, again tended to negate Defendant’s defense that he was unaware he was firing on
law-enforcement officers.
Central to all of Defendant’s complaints is the contention that his trial attorneys
could not have made an informed strategic choice to forgo Hueske and rely solely on
cross-examination of Dalley because they never consulted with Hueske about Dalley’s
testimony, did not have transcripts of her testimony from the second state trial, and spent
little time preparing for her cross-examination. The government does not appear to
contest that Defendant’s trial attorneys consulted no expert and concedes that they were
without the second-trial transcripts. Nevertheless, the government argues that an
informed strategic choice was made. It points to an affidavit executed during the § 2255
proceedings by one of Defendant’s trial attorneys, Roger Hilfiger, which states:
The State Court transcripts caused me to be aware that during the pendency
of Mr. Barrett’s Sequoyah County prosecution, the presiding judge had
considered striking Iris Dalley’s testimony. I felt that during the federal
trial, the defense could rely on the same plan for cross-examination that
Mr. Barrett’s lawyers had successfully employed in the county case. I did
not think that employing a defense expert on crime scene reconstruction
would make a difference in our ability to confront Ms. Dalley’s testimony.
Aplee. Br. at 26 (internal quotation marks omitted). And it contends that Dalley’s
testimony from the first state trial included a critical concession that Defendant’s trial
attorneys knew would negate her impact: a concession that Defendant may have fired
every shot from inside his residence.
As was true for the decision to call Choney, we cannot condemn the decision to
rely solely on cross-examination of Dalley when that strategy apparently worked well in
12
the state trials. According to one of Defendant’s previous lawyers, “[H]er testimony was,
quite frankly, I think kind of embarrassing for the Government down there, because she
contradicted her written reports with her testimony in court, and her creation of [a]
computer model had numerous flaws that were pointed out to the jurors in both trials.”
R., Vol. 3 at 218. Although consultation with an expert to prepare for cross-examination,
or calling a rebuttal expert in addition to cross-examination, may have been a better
choice, we cannot say that failure to do so was deficient performance. “[S]trategic
choices made after less than complete investigation are reasonable precisely to the extent
that reasonable professional judgments support the limitations on investigation.”
Strickland, 466 U.S. at 690–91. When a strategy produced such favorable results at a
prior trial on essentially the same charges, a reasonably competent attorney could decide
that it would be foolhardy to experiment with a different approach absent a good reason
to believe that some new factor would alter the equation.
Defendant also contends that his trial attorneys were ineffective for failing to
consult with Hueske on whether the bullet fragments found in Eales’s body came from
Defendant’s rifle. A government expert testified that they matched Defendant’s weapon.
But Defendant has not shown that Hueske would have testified to the contrary. All he
proffers is a letter from Hueske stating that he was “unable to assess the validity” of the
government’s bullet-fragment analysis without access to that analysis and the evidence.
R., Vol. 1a pt. 1 at 1221. This is not enough. To establish the prejudice prong of
13
Strickland, Defendant was required to go a step farther, showing that Hueske would have
contradicted the government’s expert if he had obtained access to the fragments.
D. Guilt-Phase Mental-Health Evidence
Defendant argues that his trial attorneys were ineffective because they failed to
present evidence of his mental defects during the guilt phase of the trial. Defendant’s
theory is that this evidence would have borne “directly on what he perceived and what his
(diminished) intent was in the midst of an unannounced raid led by an unmarked
vehicle.” Aplt. Br. at 41–42. We need not decide whether Defendant’s trial attorneys
should have investigated Defendant’s mental health more vigorously during the guilt
phase of his trial because Defendant has failed to show prejudice.
Our analysis is guided by United States v. Brown, 326 F.3d 1143 (10th Cir. 2003).
That opinion noted that “psychological or psychiatric evidence that negates the essential
element of specific intent can be admissible,” but “[t]he admission of such evidence will
depend upon whether the defendant clearly demonstrates how such evidence would
negate intent rather than merely present a dangerously confusing theory of defense more
akin to justification and excuse.” Id. at 1147 (internal quotation marks omitted). A court
must “carefully scrutinize proposed psychiatric evidence to determine whether the
evidence rests upon a legally acceptable theory for negating intent.” Id. This requires
screening out invalid legal theories, such as those that show only “impaired volitional
control or inability to reflect on the consequences of . . . conduct.” Id. The “proper
focus” is on whether the evidence shows a “link or relationship between the specific
14
psychiatric evidence offered and the mens rea at issue in the case.” Id. at 1148 (internal
quotation marks omitted). Yet Defendant points to no available expert testimony that he
could not form the intent to shoot the victims (or any other relevant mens rea). We reject
this claim of error.
E. Jury Instructions
Defendant’s next issues relate to the failure to give various jury instructions. Most
of these omitted jury instructions would supplement the jury instructions given by the
court on Defendant’s three charged offenses, so we set out the relevant portions of those
instructions. Count One, charging a drug-trafficking felony-murder violation of
18 U.S.C. § 924(c)(1)(A) and (j), required the jury to find the following elements:
First: The defendant committed at least one of the drug trafficking
crimes charged in Count One of the superseding indictment;
Second: During and in relation to the commission of one of those
drug trafficking crimes, the defendant knowingly used or carried a firearm,
or possessed a firearm in furtherance of such drug trafficking crime;
Third: The firearm played an integral part in one or more of the drug
trafficking crimes charged in Count One; that is, the firearm increased its
likelihood of success; and
Fourth: During the commission of one or more of the drug
trafficking crimes charged in Count One of the superseding indictment, the
defendant directly caused the death of David Eales through the use of a
firearm.
R., Vol. 1 pt. 1 at 1398–99. Count Two, charging a crime-of-violence felony-murder
violation of 18 U.S.C. § 924(c)(1)(A) and (j), required the jury to find the following
elements:
First: The defendant committed a crime of violence, the killing of a
state law enforcement officer engaged in or on account of the performance
15
of such officer’s official duties, as charged in Count Two of the
superseding indictment;
Second: During and in relation to the commission of such crime of
violence, the defendant knowingly used or carried, or in furtherance of such
crime of violence possessed a firearm;
Third: The firearm played an integral part in the crime of violence
charged in Count Two; that is, the firearm increased its likelihood of
success; and
Fourth: During the commission of such crime of violence as charged
in Count Two, the defendant directly caused the death of David Eales
through the use of a firearm.
Id. at 1399–1400. And Count Three, charging the killing of a state law-enforcement
officer in violation of 21 U.S.C. § 848(e)(1)(B), required the jury to find the following
elements:
1. During the commission of, or in furtherance of, or while attempting to
avoid apprehension, prosecution, or service of a prison sentence for, a
felony drug violation;
2. The defendant, Kenneth Eugene Barrett, intentionally killed and/or
counseled, commanded, induced, procured and/or caused the intentional
killing of David Eales;
3. That David Eales was a State law enforcement officer;
4. That the defendant, Kenneth Eugene Barrett, knew or had reason to
know David Eales was a law enforcement officer; and
5. David Eales was killed while engaging in and on account of the
performance of his official duties.
Id. at 1411. We address in turn each of Defendant’s arguments related to omitted jury
instructions.
1. Self-Defense
Defendant contends that his trial attorneys were ineffective for failing to request a
jury instruction on self-defense and defense of another. “A person may resort to self-
defense if he reasonably believes that he is in imminent danger of death or great bodily
16
harm, thus necessitating an in-kind response.” United States v. Toledo, 739 F.3d 562,
567 (10th Cir. 2014). A defendant’s “burden of production to warrant a self-defense
instruction is not onerous.” Id. at 568 (internal quotation marks omitted). It requires only
that there be “evidence sufficient for a reasonable jury to find in his favor.” Id. at 567.
Because the government must disprove a defense of self-defense beyond a reasonable
doubt, see United States v. Corrigan, 548 F.2d 879, 883 (10th Cir. 1977), it follows that
the defendant need only produce enough evidence to persuade the jury to have a
reasonable doubt about whether the defendant acted in self-defense. See Toledo, 739
F.3d at 568 (“a defendant is entitled to an instruction if the evidence viewed in his favor
could support the defense”). In other words, a self-defense instruction would have been
warranted if the jury could have had a reasonable doubt about whether Defendant
reasonably believed he was “in imminent danger of death or great bodily harm, thus
necessitating an in-kind response.” Id. at 567.
Perhaps a self-defense instruction was warranted and Defendant’s trial attorneys
should have requested one. Even so, however, Defendant has failed to show the requisite
prejudice. To convict on Count Three (and by extension, Count Two) the jury had to find
that Defendant “knew or had reason to know David Eales was a law enforcement
officer.” R., Vol. 1 pt. 1 at 1411. Thus, the jury must have found that Defendant knew,
or that “a reasonable person who possessed the information possessed by [Defendant]
would have the requisite knowledge,” that Eales was a law-enforcement officer. United
17
States v. Williamson, 746 F.3d 987, 994 (10th Cir. 2014) (defining having reason to
know).
In light of that jury finding beyond a reasonable doubt, we think it exceedingly
unlikely that the jury, on the evidence before it, could have had a reasonable doubt that
Defendant reasonably believed that he needed to use deadly force to defend himself (or
anyone else). Nothing in the record would support the view that Defendant had reason to
believe that law enforcement (who he had reason to know were the “intruders”) had come
to his home to kill him (or anyone else). The possibility that a self-defense instruction
would have resulted in acquittal is far too slim to undermine our confidence in the
verdict.
2. Identity of Victim
Defendant contends that his trial attorneys were ineffective by failing to request an
instruction that the jury should acquit him if it found that he did not know that the
vehicles approaching his residence contained law-enforcement officers. But the one-
sentence “argument” in his brief, which cites no authority, is woefully inadequate to
preserve this highly questionable proposition for review. See, e.g., Vondrak v. City of Las
Cruces, 535 F.3d 1198, 1204 n.4 (10th Cir. 2008) (argument in one-sentence footnote
insufficient to invoke appellate review).
3. Drug Manufacturing
Defendant argues that his trial attorneys were ineffective for failing to request an
instruction that he was not engaging in drug manufacturing or distribution when the raid
18
took place. We are not persuaded. Count 1 charged a violation of 18 U.S.C.
§ 924(c)(1)(A) and (j), which requires that the defendant “[1] during and in relation to
any . . . drug trafficking crime . . . , uses or carries a firearm, or . . . [2] in furtherance of
any such crime, possesses a firearm.” Id. § 924(c)(1)(A). Count 3 charged a violation of
21 U.S.C. § 848(e)(1)(B), which punishes anyone who intentionally kills a law-
enforcement officer “during the commission of, in furtherance of, or while attempting to
avoid apprehension . . . for . . . a felony violation of [the drug laws in 21 U.S.C. §§ 801–
971].” Neither statute required Defendant to be manufacturing or distributing drugs at
the time of the shooting. Rather, the jury needed to find only that Defendant possessed a
controlled substance with intent to manufacture or distribute, see 21 U.S.C. § 841(a)(1),
possessed any equipment or chemical intending to use it to manufacture a controlled
substance, see id. § 843(a)(6), or maintained a place for the manufacture or distribution of
drugs, see id. § 856(a). Since Defendant’s suggested instruction was not warranted under
the law, his trial attorneys could not have been ineffective for failing to propose it. See
Hawkins v. Hannigan, 185 F.3d 1146, 1158 (10th Cir. 1999) (“Because this claim is
meritless, [defense] counsel was not ineffective for failing to raise it.”); see also
Williamson, 746 F.3d at 990 (“[O]f course, the court can reject an instruction that
misstates the law.”).
4. Drug-Addicted Witnesses
Defendant argues that his trial attorneys were ineffective for failing to seek an
instruction cautioning the jury to assess the testimony of drug-addicted witnesses with
19
extra care. Such an instruction should be given when warranted. See United States v.
Smith, 692 F.2d 658, 661 (10th Cir. 1982). But the failure to give a drug-addict
instruction is rendered harmless when vigorous cross-examination and other jury
instructions alert the jury to view with skepticism a drug addict’s testimony. See United
States v. Nicholson, 983 F.2d 983, 991–92 (10th Cir. 1993); United States v. Cook,
949 F.2d 289, 295 (10th Cir. 1991); Smith, 692 F.2d at 661. The failure was harmless
here. The government called seven witnesses with a history of drug use, and defense
counsel cross-examined each of them about that issue. Also, the jury was instructed on
evaluating the credibility of witnesses in general and to treat with caution the testimony
of witnesses who have given inconsistent statements, who have been discredited or
impeached by prior criminal convictions, or who have been promised an advantage for
testifying. Defendant’s claim that his trial attorneys were ineffective for failing to request
a drug-addict jury instruction fails the prejudice prong of the Strickland test.
5. Lesser-Included Offenses
Finally, Defendant argues that his attorneys on direct appeal were ineffective for
failing to raise the trial court’s denial of a lesser-included-offense instruction. During the
trial both the defense and the prosecution requested an instruction on voluntary
manslaughter on the theory that it was a lesser-included offense of the crimes charged.
20
But the district court rejected the idea, stating its view that the evidence could not support
that offense and “[i]t’s either murder or it’s nothing.” R., Vol. 5 pt. 2 at 2951.2
Our analysis begins with the constitutional requirement established in Beck v.
Alabama, 447 U.S. 625 (1980). Beck holds that a court must not leave the jury with an
“all-or-nothing” choice between a capital conviction and acquittal when a lesser-included
offense is available, Hooks v. Ward, 184 F.3d 1206, 1224 (10th Cir. 1999) (internal
quotation marks omitted), even when the jury can sentence the defendant on the capital
charge to something less than death, see id. at 1227. Whether one offense is a lesser-
included offense of another is determined by the law of the jurisdiction prosecuting the
offense. See Hopkins v. Reeves, 524 U.S. 88, 94–98 (1998) (because Nebraska law holds
that second-degree murder and manslaughter are not lesser-included offenses of felony
murder, defendant charged with capital offense of felony murder was not entitled to
instructions on those two offenses). Under federal law an offense is not a lesser-included
offense of another offense “unless the elements of the lesser offense are a subset of the
elements of the charged offense. Where the lesser offense requires an element not
required for the greater offense, no [lesser-included-offense] instruction is to be given
. . . .” Schmuck v. United States, 489 U.S. 705, 716 (1989).
2
The government argues that Defendant defaulted on the claim by failing to raise it on
appeal. The claim, however, is not that the district court failed to instruct but that
appellate counsel should have raised the failure on appeal. This claim of ineffective
appellate counsel obviously could not have been raised until this § 2255 motion.
21
We examine whether voluntary manslaughter was an available lesser-included
offense for any of Defendant’s three counts. Because we decide that it was not available,
Defendant’s appellate counsel was not inadequate for failing to raise it. See Hooks, 184
F.3d at 1221 (“If the omitted issue is without merit, [appellate] counsel’s failure to raise it
does not constitute constitutionally ineffective assistance of counsel.” (internal quotation
marks omitted)).
a. Counts One and Two
Counts One and Two charged Defendant with felony-murder violations of
18 U.S.C. § 924(c)(1)(A) and (j). To determine whether a lesser-included offense was
available, we must first review the statutory scheme underlying these charges.
Subparagraph (c)(1)(A) provides: “[A]ny person who, during and in relation to any
crime of violence or drug trafficking crime . . . uses or carries a firearm, or who, in
furtherance of any such crime, possesses a firearm, shall” be guilty of an offense. See
Abbott v. United States, 562 U.S. 8, 12 (2010) (describing § 924(c)(1)(A) as an offense).
Subsection (j) expands on the offense, treating it as a more serious offense (with harsher
punishment) when someone is killed as a result. It states:
(j) A person who, in the course of a violation of subsection (c), causes the
death of a person through the use of a firearm, shall—
(1) if the killing is a murder (as defined in [18 U.S.C.] section 1111),
be punished by death or by imprisonment for any term of years or
for life; and
(2) if the killing is manslaughter (as defined in [18 U.S.C.] section
1112), be punished as provided in that section.
22
18 U.S.C. § 924(j). In turn, 18 U.S.C. § 1111(a) states that “[m]urder is the unlawful
killing of a human being with malice aforethought.” It then sets forth four varieties of
first-degree murder and one variety of second-degree murder:
Every murder [1] perpetrated by poison, lying in wait, or any other kind of
willful, deliberate, malicious, and premeditated killing; or [2] committed in
the perpetration of, or attempt to perpetrate, any arson, escape, murder,
kidnapping, treason, espionage, sabotage, aggravated sexual abuse or
sexual abuse, child abuse, burglary, or robbery; or [3] perpetrated as part
of a pattern or practice of assault or torture against a child or children; or
[4] perpetrated from a premeditated design unlawfully and maliciously to
effect the death of any human being other than him who is killed, is murder
in the first degree.
Any other murder is murder in the second degree.
Id. § 1111(a) (emphasis added).
As the jury was instructed, Counts One and Two incorporated only the second
variety of first-degree murder. This provision—“[e]very murder . . . committed in the
perpetration of, or attempt to perpetrate, [various crimes]”—is a felony-murder provision,
with the listed crimes as the available predicate felonies.3
What is not obvious from the language of §1111, but is settled law in this circuit,
is that the meaning of malice aforethought, which is required for all murder, is not the
3
In his reply brief Defendant mentions in passing that the predicate felonies charged in
Counts One and Two—drug trafficking and the killing of a law-enforcement officer,
respectively—are not among the crimes listed in § 1111’s felony-murder provision. This
mention is not adequate to present the issue for review. And we typically do not consider
issues first raised in a reply brief, see United States v. Smith, 606 F.3d 1270, 1284 n.5
(10th Cir. 2010), especially when the appellant fails to invoke plain error, as is the case
here, see United States v. MacKay, 715 F.3d 807, 834 (10th Cir. 2013).
23
same for felony murder as it is for the other varieties of murder. See United States v.
Chanthadara, 230 F.3d 1237, 1258 (10th Cir. 2000) (although “‘malice aforethought’ is
an element of every type of murder” under § 1111(a), its meaning “differs with respect to
each kind of murder” (internal quotation marks omitted)). For felony murder, “malice
aforethought is proved by commission of the felony, [and] there is no actual intent
requirement.” Id. In contrast, the “malice aforethought” requirement of § 1111(a)’s
second-degree murder provision requires proof of “(1) intent-to-kill without the added
ingredients of premeditation and deliberation; (2) intent to do serious bodily injury; (3) a
depraved-heart; or (4) commission of a felony when the crime does not fall under the
first-degree murder paragraph of § 1111(a).” Id. (internal quotation marks omitted).
Because § 1111 felony murder does not require proof of any of these four alternatives,
second-degree murder is not a lesser-included offense of felony murder. We so held in
Chanthadara:
Unlike second-degree murder, conviction for felony murder under
18 U.S.C. § 1111 requires the commission of an enumerated felony with
the requisite mens rea for the underlying offense. Obversely, second-
degree murder requires proof that defendant acted with malice
aforethought, whereas under a felony murder charge the commission of the
underlying offense substitutes for malice aforethought. Therefore, the
elements of second-degree murder are not a subset of the elements of first-
degree felony murder, for each offense requires proof of an element that the
other does not.
Id. at 1259 (internal quotation marks omitted).
Likewise, voluntary manslaughter (Defendant makes no argument regarding
involuntary manslaughter) is not a lesser-included offense of felony murder. Voluntary
24
manslaughter is defined in 18 U.S.C. § 1112(a) as “the unlawful killing of a human being
without malice” and “[u]pon a sudden quarrel or heat of passion.” We have held:
[V]oluntary manslaughter encompasses all of the elements of murder: it
requires proof of the physical act of unlawfully causing the death of
another, and of the mental state that would constitute malice, but for the
fact that the killing was committed in adequately provoked heat of passion
or provocation. Thus, the only difference between second degree murder
and voluntary manslaughter in the homicide hierarchy is that voluntary
manslaughter is committed in the heat of passion, and the presence of this
mitigating factor negates the malice that would otherwise attach given an
intentional or reckless mental state.
United States v. Serawop, 410 F.3d 656, 665 (10th Cir. 2005) (citation and internal
quotation marks omitted). As we concluded, “Voluntary manslaughter requires proof
beyond a reasonable doubt that the defendant acted, while in the heat of passion or upon a
sudden quarrel, with a mental state that would otherwise constitute second degree
murder—either a general intent to kill, intent to do serious bodily injury, or with
depraved heart recklessness.” Id. at 666. Because felony murder does not require this
mental state (it requires only commission of the predicate felony, not “a mental state that
would otherwise constitute second-degree murder,” id.) the elements of voluntary
manslaughter are not a subset of the elements of felony murder, and therefore voluntary
manslaughter is not a lesser-included offense of felony murder. See United States v.
Miguel, 338 F.3d 995, 1005 (9th Cir. 2003) (“neither [§ 1112] voluntary nor involuntary
manslaughter is a lesser included offense of [§ 1111] felony murder”).
b. Count Three
25
Count Three charged Defendant with a violation of 21 U.S.C. § 848(e)(1)(B),
which provides:
[A]ny person, during the commission of, [or] in furtherance of, . . a felony
violation of [the drug laws in 21 U.S.C. §§ 801–971] who intentionally kills
. . . any Federal, State, or local law enforcement officer engaged in, or on
account of, the performance of such officer’s official duties . . . shall be
sentenced . . . up to life imprisonment, or . . . to death.
Defendant contends that he was entitled to an instruction on voluntary manslaughter as a
lesser-included offense of this offense. The problem with that contention is that
Defendant has not identified any federal voluntary-manslaughter statute whose elements
are a subset of those for this offense. Section 848(e)(1)(B) defines no other offense,
much less a lesser-included voluntary-manslaughter offense; and, unlike 18 U.S.C.
§ 924(j), it does not incorporate or cross-reference 18 U.S.C. § 1112. Defendant seems to
suggest that § 1112 can still apply, but it defines a voluntary-manslaughter offense only
“[w]ithin the special maritime and territorial jurisdiction of the United States,” id.
§ 1112(b), which is quite narrowly defined by 18 U.S.C. § 7 and does not include the area
around Defendant’s property where the offense occurred.
As a result, Defendant’s only contention could be that Beck requires the courts to
create a lesser-included offense for this case. That contention would fail. In Hopkins,
524 U.S. at 96–97, the Supreme Court held that Beck does not compel a state court to
instruct on a noncapital offense that was not a lesser-included offense under the state’s
law. To do so, the Court reasoned, would “require[] in effect that States create lesser
included offenses to all capital crimes, by requiring that an instruction be given on some
26
other offense—what could be called a ‘lesser related offense’—when no lesser included
offense exists.” Id. at 97. That would be both “unprecedented” and “unworkable”
because “[u]nder such a scheme, there would be no basis for determining the offenses for
which instructions are warranted.” Id. That same reasoning would also apply to judicial
creation of a federal criminal offense (which is barred in any case, see United States v.
Hudson, 11 U.S. (7 Cranch) 32, 34 (1812)).
c. Ineffective Assistance
The above analysis reflects our view that there was no available lesser-included
offense of voluntary manslaughter for the charges against Defendant. Perhaps we have
missed something. But even so, in light of that analysis we can hardly say that
Defendant’s counsel on direct appeal was ineffective for failing to make the argument we
reject. A reasonable, even a highly competent, attorney could examine the issue and
decide that raising a lesser-included-offense issue would do little more than detract from
the strength of other issues to be presented on appeal. See Smith v. Robbins, 528 U.S.
259, 288 (2000) (“counsel . . . need not (and should not) raise every nonfrivolous claim,
but rather may select from among them in order to maximize the likelihood of success on
appeal”); accord Cargle v. Mullin, 317 F.3d 1196, 1201 (10th Cir. 2003). We therefore
reject this claim of ineffective assistance of counsel on appeal.
F. Penalty-Phase Mental-Health Evidence
Defendant’s final argument is that his trial attorneys were ineffective by failing to
properly investigate his background and mental health in preparation for the penalty
27
phase of his case. We evaluate trial counsel’s penalty-phase performance “under the
prevailing professional norms at the time of . . . trial [September 2005 in this case].”
Porter v. McCollum, 558 U.S. 30, 39 (2009) (per curiam). We must bear in mind that
“[b]eyond the general requirement of reasonableness, specific guidelines are not
appropriate,” and “[n]o particular set of detailed rules for counsel’s conduct can
satisfactorily take account of the variety of circumstances faced by defense counsel or the
range of legitimate decisions.” Cullen v. Pinholster, 131 S. Ct. 1388, 1406 (2011)
(internal quotation marks omitted). Still, the Supreme Court has emphasized that as a
general rule counsel has a duty to pursue leads indicating a defendant’s troubled
background and diminished mental capacity. See Wiggins v. Smith, 539 U.S. 510, 523–
525 (2003); see also Hooks v. Workman, 689 F.3d 1148, 1201 (10th Cir. 2012) (“Counsel
has a duty to conduct a thorough investigation—in particular, of mental health
evidence—in preparation for the sentencing phase of a capital trial.” (internal quotation
marks omitted)). That standard is supported (though not mandated, see Bobby v. Van
Hook, 558 U.S. 4, 7‒9 (2009)) by the American Bar Association’s Guidelines for the
Appointment and Performance of Defense Counsel in Death Penalty Cases (rev. 2003)
(ABA Guidelines), which state that a capital defense team should include a “mitigation
specialist” and someone “qualified by training and experience to screen individuals for
the presence of mental or psychological disorders or impairments.” ABA Guidelines
4.1.A.1 to .2.
28
The issue before us is whether Defendant’s trial attorneys prepared a mitigation
case that measures up to professional norms and, if not, whether that made a difference.
In our view, the record before us is inadequate to resolve the issue. Defendant has
presented considerable evidence supporting his claims. But other evidence may counter
it. Rule 8(a) of the Rules Governing Section 2255 Proceedings requires the district court
to review the record “to determine whether an evidentiary hearing is warranted.” That
decision turns on “whether such a hearing could enable [the movant] to prove the
[motion’s] factual allegations, which, if true, would entitle the [movant] to . . . relief.”
Schriro v. Landrigan, 550 U.S. 465, 474 (2007) (stating standard in § 2254 cases). We
hold that an evidentiary hearing is necessary to enable the district court to make the
findings needed to determine whether Defendant has a valid claim. We therefore reverse
and remand for further proceedings on the issue.
1. Deficient Performance
We begin with an overview of the penalty-phase defense that was presented.
Defendant’s trial attorneys called his mother, father, stepmother, brother, ex-wife, uncle,
and cousin to testify that Defendant was a loved family member and good person who
was sorry for killing Eales. The defense also called a state-court clerk to testify about
Defendant’s state-court proceedings and his lack of prior felonies, several state-prison
employees to testify that Defendant was a well-behaved prisoner, two neighbors to testify
that Defendant was a good mechanic and a nonviolent person, and a bondsman to testify
that he had no concerns about Defendant’s being a danger while his bench warrant was
29
outstanding. None of the witnesses discussed Defendant’s mental health or troubled
background in any significant detail, and Defendant’s closing argument included only
one mention of his commitment to a hospital almost 20 years earlier “for drug abuse and
other treatment,” and that was in the context of describing his “rocky” marriage. R., Vol.
5 pt. 2 at 4108.
The defense that was presented apparently helped to some extent. The jury did not
find unanimously that the government had proved beyond a reasonable doubt that
Defendant would pose a continuing and serious danger to others in prison, and
unanimously found that he was a father and a loved son and stepson, and that his death
would have an impact on his family and friends. Seven jurors found that he was a good
neighbor and friend; five found that he had accepted responsibility for Eales’s death from
his state-court conviction and that he had been convicted and punished for the killing; and
two found that he would not be a danger to society if imprisoned for life without parole.
What was missing from the presentation was evidence of Defendant’s mental
condition that could have been persuasive to the jury. In his § 2255 proceedings
Defendant has presented a case that his defense team did little to investigate his
background and mental condition. First, it may never have hired a mitigation expert or a
mental-health professional to assess Defendant’s mental capacity. The district court
pointed to one of the defense attorneys’ expense vouchers and attached documentation
that said that they had retained the services of psychologist Jeanne Russell for “mitigation
and assistance on mental health questions” at least in part because “she [had been]
30
consulted during the State trials as the mitigation expert.” Barrett, 2012 WL 3542609, at
*72 (internal quotation marks omitted). There is evidence, however, that Dr. Russell’s
work was restricted to an assessment of Defendant’s future dangerousness. According to
her declaration in these § 2255 proceedings, she “did not evaluate [Defendant’s]
neuropsychological functioning or focus on his psychological make-up, as the referral
request was specific to risk assessment.” Am. Mot. for Collateral Relief, to Vacate, Set
Aside, or Correct Sentence & for a New Trial, Ex. 56 at 1–2, Barrett, No. 6:09-civ-105-
JHP (Sept. 25, 2009). She states that in mid-August 2005, about a month before the
federal trial began, she was approached by Bret Smith, one of Defendant’s trial attorneys,
to be a mitigation investigator. She declined, stating that she was unqualified to perform
such an investigation and there was not time to do so. She updated her risk assessment
on Defendant and submitted it to Defendant’s trial attorneys on September 15. On
October 12 she visited Defendant in prison but this was after she had already submitted
her updated report.
Additional evidence further supports Defendant’s assertion of a lack of effort to
retain mitigation expertise. According to the declaration of Julia O’Connell, Federal
Defender for the Northern and Eastern Districts of Oklahoma, defense attorney Hilfiger
called her office less than three months before the start of trial to ask if her mitigation
specialist would be willing to meet sometime in the future. O’Connell referred him to
Dick Burr, a federal death-penalty resource attorney. Burr declares that he never heard
from Hilfiger or Smith on anything of substance. Similarly, the firm that was approved
31
by the court for mitigation services, Inquisitor, Inc., was contacted only once by John
Echols (an attorney for Defendant who withdrew and was replaced by Smith) and was
never asked to perform any mitigation work.
Defendant’s trial attorneys also apparently did little to investigate his background
or mental health through his family. According to the declarations of the family
members who testified during the sentencing phase, the trial attorneys’ preparation for
their testimony consisted more or less of five-minute interviews before going on the
stand, and none were asked about Defendant’s background, mental health, or family
history.
Typically, this kind of superficial investigation would constitute deficient
performance. See Hooper v. Mullin, 314 F.3d 1162, 1171 (10th Cir. 2002) (“A decision
not to undertake substantial pretrial investigation and instead to ‘investigate’ the case
during the trial is not only uninformed, it is patently unreasonable.” (brackets and internal
quotation marks omitted)); see also Sears v. Upton, 561 U.S. 945, 952 (2010) (per
curiam) (quoting, with apparent approval, the postconviction state-court determination
that “the cursory nature of counsel’s investigation into mitigation evidence—limited to
one day or less, talking to witnesses selected by [the defendant’s] mother—was on its
face constitutionally inadequate”) (ellipsis and internal quotation marks omitted)). The
government nevertheless offers three reasons why trial counsel’s efforts were not
deficient: first, they had no indications that Defendant suffered from a mental
impairment, so there was no reason to pursue that line of inquiry; second, Defendant
32
opposed a mitigation strategy based on personal sympathy or his childhood; and third,
they already had a reasonable mitigation strategy. Each is questionable on this record.
To support the first argument, the government directs us to the declarations of
Hilfiger and Smith. They state that nothing in Defendant’s behavior during the federal
case, nor in what his family members reported to them during interviews, nor in what
Dr. Russell said to them indicated that Defendant had a significant mental impairment. In
essence, according to the government, there were no “red flags” indicating a need to go
further. Rompilla v. Beard, 545 U.S. 374, 392 (2005) (internal quotation marks omitted);
see Strickland, 466 U.S. at 690–91 (“strategic choices made after less than complete
investigation are reasonable precisely to the extent that reasonable professional
judgments support the limitations on investigation”). What the trial attorneys’
declarations fail to address, however, is whether they ever asked about Defendant’s
mental health, background, or family history. Cf. Cole v. Trammell, 755 F.3d 1142, 1161
(10th Cir. 2014) (“[b]ecause ‘family and social history’ is one of the crucial areas of
investigation emphasized in the ABA Guidelines,” court assumes that a failure to contact
family members was constitutionally deficient performance).
Also, the record suggests that Defendant’s trial attorneys had indications that
Defendant’s mental health and background merited further investigation. According to
Echols, Defendant’s previous attorney:
At the time I withdrew from the case, I advised Mr. Hilfiger that he needed
to immediately undertake extensive investigation and preparation for a
possible penalty phase. I explained to him that the work performed by
33
Roseann Schaye, the mitigation investigator in the state case, was very
preliminary in nature and far from complete. Ms. Schaye’s investigation,
and preliminary consultation with mental health experts prior to the state
court trial had identified, but not developed, several potentially fruitful
areas to pursue, including Mr. Barrett’s mental illness and prior suicide
attempt. In particular, the expert advice included seeking assessment of
neurological damage and conducting an investigation of family illness.
R., Vol. 1a pt. 1 at 547. Hilfiger does not recall this conversation, but factual disputes
should be resolved in an evidentiary hearing. Further, it is undisputed that six months
before trial Echols and Hilfiger requested funding from the court for an expert on
diagnosing organic brain disorders resulting from Defendant’s drug use and significant
head injuries, and that even earlier Echols copied Hilfiger on a letter to the court
discussing the use of Schaye’s mitigation-investigation services during the state
proceedings and stating that she and another psychologist “disagreed completely
concerning Mr. Barrett’s mental well being.” Id. at 967. In addition, Hilfiger admits that
Echols gave him Defendant’s medical, educational, and mental-health records. Those
records reveal that Defendant developed at a delayed pace as an infant, struggled in
school, attempted suicide with a shotgun in January 1986, was subjected to a mental-
health proceeding in October 1986 and committed to a hospital after complaints from his
mother and ex-wife that he was violent and very suicidal, and was hospitalized for three
days in 1995 after arriving in the emergency room complaining of “losing his mind.” Id.,
Vol. 2d pt. 8 at 358. During his hospital stay in October 1986 he was diagnosed with
substance abuse and mixed personality disorder, and during his hospital stay in 1995 he
was diagnosed with substance abuse and organic affective disorder. Also, the report
34
prepared by Dr. Russell and given to Hilfiger and Smith includes a list of records she
relied upon, which included records noting Defendant’s suicide attempt in January 1986,
hospital stays in October 1986 and in 1995, and a psychological evaluation completed in
2002 by psychologist William Sharp, who found that Defendant was paranoid and had a
family history of depression and mental illness, and who said that his behavior warranted
investigation for organic brain damage. Defendant’s trial attorneys never contacted
Dr. Sharp.
This is evidence that counsel failed to make an effort “to discover all reasonably
available mitigating evidence” despite ample indication of potential mental-health
problems. Wiggins, 539 U.S. at 524 (emphasis and internal quotation marks omitted).
The government’s second argument is that Defendant’s trial attorneys were
constrained from conducting a mental-health investigation by their client, who did not
want a mitigation strategy based on personal pity or embarrassment of his family. The
government again cites the declarations of Hilfiger and Smith, which both state in
identical words:
Mr. Barrett did not want the defense to “beg for his life” during the penalty
phase of the trial. He did not want the outcome of the case to hinge on
personal sympathy for him.
Mr. Barrett did not want the mitigation case to dwell on his childhood. He
also wanted to minimize the amount of testimony elicited from his
relatives, particularly his son, mother and ex-wife, though he understood
that decision could work to his detriment.
35
R., Vol. 2d pt. 8 at 346 (paragraph numbering omitted); see also id. at 349 (same). The
government also directs us to Defendant’s outburst during the prosecution’s closing
argument in the guilt phase. After United States Attorney Sheldon Sperling mentioned
Defendant’s mother, Defendant exclaimed, “Get off my family, Sperling. This is about
murder, not my family. . . . I’ve heard enough of him talking about my family. Take me
out of the courtroom. Take me out.” Id., Vol. 5 pt. 2 at 4151.
This evidence, however, does not establish an unambiguous command to refrain
from investigating or presenting evidence of Defendant’s personal history or mental
health. Defendant has presented evidence that his trial attorneys were not so constrained.
Echols stated in a declaration that during state-trial preparation Defendant willingly
submitted to a mental-health examination, provided information about his background,
and placed no restrictions on mitigation investigation. Smith stated in his declaration that
Defendant “impressed me as among the most cooperative criminal defense clients I have
ever had.” Id., Vol. 2d pt. 8 at 345. Most strongly indicating Defendant’s cooperative
attitude is his undated letter to Hilfiger apologizing for his changes of mind and
expressing his willingness (at least at that moment) to allow his attorneys to do their best
to win the case:
[A]t this time I don’t know what I’m doing or going to do. Or should
do. . . . One day I feel one way and the next I feel another. I guess I have
no choice now than to let you do your best. . . . Just try your hardest to beat
this to w[h]ere I can go home. . . . I’ve got alot of thangs that are good for
this case. So hopefully now that there is no-other means for me but to beat
this we can put this behind us and start over and do this right and win. I’ll
try my best to act right.
36
Id., Vol. 1a pt. 1 at 555.
As for Defendant’s outburst during closing argument (which both his trial
attorneys say was an exceptional event), Hilfiger suggests in his declaration that it was
not a reaction to the presentation of mitigation evidence, but to argument about
Defendant’s family:
Mr. Barrett’s outburst during the prosecution’s penalty phase argument was
a very unusual and unanticipated event. That outburst must be placed in a
perspective that this was toward the end of a very contentious trial. At this
stage the U.S. Attorney was arguing about the defendant’s mother or step-
mother, as she related to the case, and Mr. Barrett’s outburst was to inform
the prosecutor that he was the one on trial and his mother or step-mother
should not be subjected to that kind of examination.
Id., Vol. 2d pt. 8 at 349.
The government nonetheless contends that the Supreme Court’s opinion in Schriro
forecloses an evidentiary hearing. We are not persuaded. Schriro involved a challenge
under 28 U.S.C. § 2254 to a state death sentence. See 550 U.S. 465. At the sentencing
hearing the defendant in Schriro confirmed to the judge that he had told his counsel not to
present mitigating evidence and then repeatedly interrupted his counsel’s efforts to do so,
often by interjecting incriminating details. See id. at 469‒70. The record in this case (at
least as it currently stands) is hardly as definitive as Schriro’s. Defendant’s one
ambiguous outburst during closing argument is not the same as repeatedly interrupting at
sentencing to strengthen the case against oneself. And the conclusory descriptions of
Defendant’s wishes in the declarations of Hilfiger and Smith are a far cry from the
Schriro defendant’s statement to the judge at the close of the sentencing hearing, “I think
37
if you want to give me the death penalty, just bring it right on. I’m ready for it.” Id. at
470. Perhaps most importantly, the Court in Schriro was applying § 2254’s deferential
standard of review, which permits setting aside the state-court finding of waiver only if it
“was based on an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2). Given that standard, a
federal-court evidentiary hearing on waiver was unnecessary.
Because of the evidence that Defendant (1) changed his mind from time to time on
how he wished the case to be tried, (2) at least at some times deferred to the best
judgment of his lawyers, and (3) may not have made a fully informed decision (because
his attorneys inadequately investigated his background and mental health), we cannot say
that the unelaborated statements by his attorneys necessarily establish that those attorneys
were barred by Defendant from pursuing a defense to the death penalty based on his
background or mental health. We express no opinion on the issue; an evidentiary hearing
can resolve the matter.
Finally, the government suggests that the actions of Defendant’s trial attorneys
were justifiable because they were able to present an alternative yet still effective
portrayal of Defendant as a beloved family member. But an uninformed choice is not a
reasonable tactical decision: “[A] decision to focus on one potentially reasonable trial
strategy [cannot be] justified by a tactical decision when counsel did not fulfill their
obligation to conduct a thorough investigation of the defendant’s background.” Sears,
561 U.S. at 954 (citation and internal quotation marks omitted); see also Littlejohn v.
38
Trammell, 704 F.3d 817, 867 (10th Cir. 2013) (Sears and Rompilla “emphasized the need
for courts to consider the prejudicial effect of counsel’s failure to investigate a viable
mitigation theory even in the face of an otherwise reasonable mitigation defense”);
Brecheen v. Reynolds, 41 F.3d 1343, 1368 (10th Cir. 1994) (“If . . . the decision is not
tactical, and counsel’s performance is therefore deficient, then the first prong of
Strickland is satisfied.”). Defendant’s trial attorneys had an obligation to investigate
carefully before setting out on a course of action, and there is evidence that they did not
do so.
2. Prejudice
To obtain relief, Defendant must also establish that the alleged deficient
performance of counsel caused him prejudice. His burden is to show that “there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Rushin, 642 F.3d at 1302 (internal quotation
marks omitted). “To assess that probability, we consider the totality of the available
mitigation evidence—both that adduced at trial, and the evidence adduced in the [§ 2255]
proceeding—and reweigh it against the evidence in aggravation.” Porter, 130 S. Ct. at
453–54 (brackets and internal quotation marks omitted). This is a “probing and fact-
specific analysis,” which “will necessarily require a court to ‘speculate’ as to the effect of
the new evidence.” Sears, 561 U.S. at 955–56. But we need not be certain that the
omitted evidence would have changed the outcome of the proceeding: it is sufficient if
confidence in the outcome has been undermined. See Byrd, 645 F.3d at 1168.
39
Taking Defendant’s proffered mitigation evidence as true, it is sufficient to require
an evidentiary hearing. It includes documents and declarations and the assessments of
three experts: Dr. Bill Sharp, who examined Defendant in 2002; Dr. Myla Young, a
clinical neuropsychologist who examined Defendant in 2009 and reviewed his records;
and Dr. George Woods, a psychiatrist who also reviewed Defendant’s records and
examined him in 2009. The evidence supports the following:
Defendant’s family has a long history of mental-health problems, alcoholism, and
abuse. On Defendant’s maternal side, several members of his extended family suffer
from mental-health problems and relatives of his grandparents committed suicide or were
involuntarily committed for psychiatric treatment. On his paternal side, several members
of the extended family have mental-health problems, his great-great-grandfather was
once committed to a psychiatric hospital, his great-grandfather committed suicide, and
his grandfather was an alcoholic who spent time in a mental hospital under a Certificate
of Lunacy and who chronically abused his family members, including Defendant’s father.
Defendant’s childhood was less than ideal. His father supported the family
financially but was largely absent. Throughout Defendant’s childhood and adolescence
his father drank, fought constantly with Defendant’s mother and others, and engaged in
numerous extramarital affairs. He once had a violent altercation with Defendant’s
mother. He also punched Defendant once when Defendant was in ninth grade.
Defendant’s parents separated when he was 10 or 11 years old. His mother drank
constantly and subjected him to physical and emotional abuse and neglect. Such
40
evidence of childhood abuse, neglect, and instability can play a significant role in
mitigation. See Sears, 561 U.S. at 948 (emotionally abused by parents, who fought
physically and divorced, and sexually abused by cousin); Wiggins, 539 U.S. at 516–17
(neglected and abused by birth mother and abused physically and sexually in foster care);
Williams v. Taylor, 529 U.S. 362, 395 (2000) (“nightmarish childhood” of abuse and
neglect by parents and foster home); see also, e.g., Hooks, 689 F.3d at 1203 (defendant’s
“premature birth, . . . abusive father, frequent moves, educational handicaps, and personal
family tragedies” constituted “a life story worth telling”). Also, Dr. Woods said that
Defendant’s genetic history and poor upbringing increased his risk for developing mental
disorders and chemical dependency.
Defendant’s own history suggests mental illness. His mother drank alcohol while
pregnant with him, he was developmentally delayed as an infant, repeated a grade in
school, and dropped out after being referred to special-education classes. He suffered
various incidents of head trauma while growing up and as a young man. He began
consuming alcohol, tobacco, and other drugs between the ages of 11 and 14, when the
brain’s frontal lobes are first beginning to develop. In January 1986, at the age of 24, he
attempted suicide by shooting himself in the chest with a shotgun, after which he
received psychiatric intervention and was prescribed antidepressants. Later that year he
was involuntarily committed to a hospital after complaints from his mother and ex-wife
that he was violent and suicidal; he was diagnosed as suffering from substance abuse and
mixed personality disorder. In 1995 he was again hospitalized for three days after
41
arriving in the emergency room complaining of “losing his mind.” R., Vol. 2d pt. 8 at
358. He was discharged with diagnoses of substance abuse and organic affective
disorder. According to Dr. Woods, throughout Defendant’s life he has had a significantly
impaired ability to function normally and live independently and has suffered from
irritability, racing thoughts, paranoia, and cognitive impairment.
Drs. Young, Woods, and Sharp concluded that Defendant labors under substantial
mental impairment. Dr. Woods diagnosed Defendant with bipolar disorder and
posttraumatic stress disorder. Dr. Sharp’s evaluation from 2002 (during the state-court
proceedings) found that Defendant had avoidant personality disorder, long-term memory
problems, a tremor in his hands, and buzzing in his ears.
Most important are the findings relating to Defendant’s judgment. Dr. Young said
(1) that Defendant’s history suggests he has sustained brain damage that inhibits his
ability to process new information and (2) that tests she administered likewise indicated
that Defendant’s executive functioning—which involves the ability to reason, anticipate
consequences to actions, and respond to new information and act accordingly—was
significantly impaired. She stated that Defendant’s “brain dysfunction . . . would
particularly impair his abilities to organize, think, reason, plan, anticipate consequences
of actions, and change actions as needed based on information he receives from the
environment. His disabilities would be further exacerbated under conditions of
complexity and/or highly stressful situations.” R., Vol. 1a pt. 1 at 1105. Dr. Woods
concurred with Dr. Young’s findings. He determined that Defendant suffers from brain
42
damage sustained early in his life, which impairs his inhibition, reasoning, and judgment.
He opined that Defendant’s “frontal lobe impairments are known to be the foundation for
disinhibition, impaired judgment, and grandiosity/paranoia found in bipolar disorder.”
Id. at 1297. Dr. Sharp’s 2002 evaluation found Defendant to be fearful and paranoid, and
he agreed with Dr. Young’s findings and Dr. Wood’s diagnosis.
We have said that evidence of mental impairments “is exactly the sort of evidence
that garners the most sympathy from jurors,” Smith v. Mullin, 379 F.3d 919, 942 (10th
Cir. 2004), and that this is especially true of evidence of organic brain damage, see
Littlejohn, 704 F.3d at 864 (“Evidence of organic mental deficits ranks among the most
powerful types of mitigation evidence available.”). Organic brain damage is so
compelling, according to one of our decisions, because “the involuntary physical
alteration of brain structures, with its attendant effects on behavior, tends to diminish
moral culpability, altering the causal relationship between impulse and action.” Hooks,
689 F.3d at 1205. This evidence goes beyond the generalized mental conditions we have
determined to be unhelpful in mitigation. See Grant v. Trammell, 727 F.3d 1006, 1020–
21 (10th Cir. 2013) (generalized personality disorders, borderline personality disorder,
bipolar disorder, compulsive personality disorder, and severe emotional distress). It
enables counsel to “explain to the jury why [the] defendant may have acted as he did[,]
. . . connect[ing] the dots between, on the one hand, [his] mental problems, life
circumstances, and personal history and, on the other, his commission of the crime in
question.” Hooks, 689 F.3d at 1204. Little of this evidence was presented to the jury.
43
On the other hand, “we do not consider omitted mitigation evidence in a vacuum.”
Wilson v. Trammell, 706 F.3d 1286, 1305 (10th Cir. 2013). “[W]e must consider not just
the mitigation evidence that Defendant claims was wrongfully omitted, but also what the
prosecution’s response to that evidence would have been.” Id. at 1306; cf. Burger v.
Kemp, 483 U.S. 776, 788–95 (1987) (reasonable for counsel not to present evidence of
defendant’s background in mitigation because it would have revealed defendant’s violent
tendencies).
That response would have surely called into question Defendant’s diagnoses of
various mental defects and suggested he was simply a dangerous drug addict. The
government directs us to evidence that when Defendant was involuntarily committed for
psychiatric treatment in 1986, his then-wife executed a sworn statement describing
Defendant as “a very dangerous person to himself and others” and stating that he was
abusing drugs and had sexually abused her, had kidnapped their son, had destroyed and
burned her possessions, and had threatened to kill her and to take away their son. R.,
Vol. 2d pt. 8 at 350. A medical history sheet completed at that time stated that he had no
symptoms of neurological problems and that he denied having suffered any head injuries.
Although his discharge summary from that stay diagnosed him with a “[m]ixed
personality disorder,” it also described him as a drug abuser who had failed to continue
taking his medication after his suicide attempt. Also, it offered a prognosis of
“[g]uarded, because of the unpredictability of his behavior, depending on the
circumstances and depending on whether or not he is taking drugs at the time.” Id. at
44
353. A few months after his release from the hospital, Defendant had a claim denied by
the Social Security Administration. The denial letter stated that “[m]edical reports show
that you are moderately depressed but there are no signs of a severe mental illness. Most
of the time you are able to think clearly and to carry out your normal activities.” Id. at
362. As for Defendant’s 1995 hospitalization, the government points out that a
physician’s evaluation found him to be calm, normal, and free of any paranoia, delusions,
hallucinations, or homicidal ideation, but still addicted to drugs. And finally, the
government could have introduced evidence that Defendant had amphetamines and
marijuana in his system on the night of the shooting.
Perhaps the evidence of spousal abuse and drug involvement would not have
surprised the jury and presented little downside risk to Defendant’s offering evidence of
his mental condition. See Smith, 379 F.3d at 943 & n.11 (when aggravating aspects of
defendant’s mental illness had already been presented to jury, little risk to presenting the
mitigating aspects as explanation for defendant’s behavior). After all, the jury heard
extensive testimony of Defendant’s abuse of his ex-wife, including her requests for and
his violations of multiple protective orders, an incident in which he destroyed her
furniture and other items, and his threat after their separation to “blow off her head.” Id.,
Vol. 5 pt. 2 at 3486. Their divorce was granted, the jury learned, on grounds of physical
abuse. The jury was also presented with significant evidence of Defendant’s drug use,
including the testimony of a drug addict that he took methamphetamine with Defendant,
and the testimony of a state prison employee that Defendant self-reported first using
45
alcohol at age 12, cocaine and heroin at age 14, and methamphetamine at age 20, and had
been using marijuana, methamphetamine, heroin, tranquilizers, and other drugs up until
the time of the shooting. And, of course, there was the guilt-phase evidence of
Defendant’s outstanding warrant for failure to appear in state court on drug charges and
the drug paraphernalia found on Defendant’s person and property after the shooting.
But additional current mental-health evidence could have been offered by the
government once Defendant opened the door to such evidence. In particular, the
government could have called Dr. Randall Price in rebuttal. Dr. Price conducted a
psychological evaluation of Defendant on behalf of the government, and he may have
testified that Defendant was a psychopath and would be at a high risk of committing
violent offenses if freed. Such expert testimony can be devastating. See Wilson, 706
F.3d at 1298–99, 1307–08. We hesitate, however, to rely on Dr. Price’s evaluation to
establish lack of prejudice. Although the district court noted the report and apparently
relied on it to some extent, it is not clear how much of the report was disclosed to
Defendant, which may explain why the government’s appellate brief does not discuss it.
In short, we believe that Defendant presented sufficient evidence of deficient
performance and prejudice to entitle him to an evidentiary hearing. Based on the
evidence presented at a hearing, the district court can make findings on disputed facts and
render its decision, both on performance and prejudice.
46
III. CONCLUSION
We REVERSE and REMAND Defendant’s death sentence for the district court to
hold an evidentiary hearing on whether the performance of trial counsel was deficient in
not investigating Defendant’s background and mental health and whether Defendant
suffered prejudice from any deficiency during the penalty phase of his trial. In all other
respects we AFFIRM. Also, we DENY Defendant’s Motion for Certificate of
Appealability in Light of Carter v. Bigelow.
47
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Notice: This opinion is subject to correction before publication in the P ACIFIC R EPORTER .
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, e-mail
[email protected].
THE SUPREME COURT OF THE STATE OF ALASKA
KELLI M. RIGGS, )
) Supreme Court No. S-15172
Appellant, )
) Superior Court No. 1SI-05-00214 CI
v. )
) OPINION
ERIC E. COONRADT, )
) No. 6961 - October 16, 2014
Appellee. )
)
Appeal from the Superior Court of the State of Alaska, First
Judicial District, Sitka, David V. George, Judge.
Appearances: Teka K. Lamade, Sitka, for Appellant. David
Avraham Voluck, Sitka, for Appellee.
Before: Fabe, Chief Justice, Winfree, Stowers, Maassen, and
Bolger, Justices.
MAASSEN, Justice.
I. INTRODUCTION
A mother appeals from a modified decree involving the custody of her three
children. The superior court decided that the parents’ inability to communicate justified
a modification of the existing joint-custody arrangement, and that the best interests of the
children favored an award of sole legal custody to their father. We conclude that the
superior court did not abuse its discretion in making these decisions and therefore affirm
them. We also affirm, as within the superior court’s discretion, its allocation of the costs
of the court-appointed guardian ad litem. We remand for the superior court’s
clarification of one issue: whether it meant to include, in its final modified decree, a
change to the father’s weekend visitation schedule made by the attorney who drafted the
decree.
II. FACTS AND PROCEEDINGS
Kelli Riggs and Eric Coonradt were married and divorced twice, first
marrying in 2000 and divorcing for the second time in 2006. They have three minor
children. Their relationship deteriorated after their second divorce, but they successfully
negotiated a custody agreement. Under the agreement they shared custody on an
alternating two-week basis, and the non-custodial parent had dinner with the children on
Wednesday evenings.
Despite the agreement, tensions between Kelli and Eric persisted: there
were disputes over child support, allegations that Kelli’s nephew sexually abused the
parties’ youngest son, allegations that Kelli exposed the children to an abusive partner,1
and Kelli’s arrest for drunk driving. In September 2011 Eric moved for primary physical
and sole legal custody of the children, alleging that Kelli was exposing them to violence
and substance abuse. The superior court found that a neutral party was necessary to
advocate on the children’s behalf and in March 2012 appointed a guardian ad litem.
The superior court held a two-day evidentiary hearing in January 2013 and
at its close issued an oral decree. Finding that the parties’ inability to cooperate required
a modification of custody, and weighing what it found to be the most relevant best
interest factors, the court determined that Eric should be awarded sole legal custody. The
court also found that the alternating two-week system did not provide the stability that
1
Kelli was engaged to a different partner by the time of trial.
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the children required, especially during the school year; it therefore modified the physical
custody arrangement so that the children would live with Eric for most of the school year
and with Kelli for most of the summer.
Kelli was not represented by counsel during the hearing, and the superior
court asked Eric’s attorney to draft a proposed modified custody decree reflecting its
findings and conclusions. After Kelli had a chance to respond to the first draft, Eric’s
attorney submitted a revised version of the modified decree. Kelli, through newly
retained counsel, pointed out a change in the revised draft: the end of Eric’s summertime
weekend visits had been unilaterally extended from Sunday evening to Monday morning.
The court signed the revised version of the modified decree without expressly addressing
the change.
Kelli appeals, arguing that the superior court erred in four ways: (1) by
concluding that a substantial change in circumstances justified a modification of custody;
(2) by finding that the best interest factors favored a grant of sole legal custody to Eric;
(3) by allocating to Kelli 20 percent of the guardian ad litem’s fees; and (4) by signing
the custody decree including the late-added change to Eric’s visitation schedule.
III. STANDARDS OF REVIEW
We review de novo a superior court’s decision that there has been a
material change in circumstances justifying a modification of a prior child custody
order.2
Superior courts have broad discretion in child custody decisions, and we
will reverse only if findings of fact are clearly erroneous or if the superior court abused
2
Frackman v. Enzor, 327 P.3d 878, 882 (Alaska 2014).
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its discretion.3 “A factual finding is clearly erroneous when a review of the record leaves
the court with a definite and firm conviction that the superior court has made a mistake.”4
“An abuse of discretion exists where the superior court ‘considered improper factors in
making its custody determination, failed to consider statutorily mandated factors, or
assigned disproportionate weight to particular factors while ignoring others.’ ”5
IV. DISCUSSION
A. The Superior Court Did Not Err When It Determined That A
Substantial Change In Circumstances Warranted Modification of
Custody.
Kelli contends that Eric failed to demonstrate a change in circumstances
sufficient to justify a modification of custody under AS 25.20.110(a). She notes that
Eric’s motion to modify was based on allegations of violence and substance abuse which
the superior court did not find substantiated. She argues that the superior court relied
instead on the children’s academic performance, which she contends had not changed
since the earlier order and thus could not justify modification.
But the superior court did not base its modification decision on either of
these possible grounds; rather, it relied on evidence that the parents could not effectively
communicate. The court found “a complete breakdown in communication between the
[p]arties, making joint legal custody impracticable and injurious to the children’s overall
well-being.” Kelli admits that legal custody was not working because of the parents’
3
Ronny M. v. Nanette H., 303 P.3d 392, 399 (Alaska 2013) (citing Hamilton
v. Hamilton, 42 P.3d 1107, 1111 (Alaska 2002)).
4
Id. (quoting Fardig v. Fardig, 56 P.3d 9, 11 (Alaska 2002)) (internal
quotation marks omitted).
5
Id. (quoting Siekawitch v. Siekawitch, 956 P.2d 447, 449 (Alaska 1998)).
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inability to cooperate, though she contends it was one-sided; in her brief she lays out
what she portrays as Eric’s failures to communicate about the children. But she
acknowledged in her testimony in the superior court that “it’s partly [Eric’s] fault and it’s
partly my fault. . . . It’s lack of communication.” And what matters to a change in
circumstances is not which parent is most at fault, but whether the parents are able to
communicate in their children’s interests — and here they indisputably were not.
A “continued lack of cooperation” between parents may be a change in
circumstances sufficient to justify a modification of custody under AS 25.20.110.6 And
in T.M.C. v. S.A.C., we upheld the superior court’s reliance on the parents’ sustained
non-cooperation to reopen the custody arrangement even where, as here, neither parent
had raised it as grounds for modification.7 Although Eric’s motion to modify was based
on other grounds, the superior court did not err when it relied instead on the “complete
breakdown in communication” that has substantial support in the evidence.
B. The Superior Court Did Not Abuse Its Discretion When It Awarded
Sole Legal Custody To Eric.
Kelli contends that the superior court abused its discretion when, in
considering the best interests of the children, it granted sole legal custody to Eric, who
Kelli asserts was likely to withhold information about the children. She points to facts
supporting Eric’s “history of withholding or hiding information from [her] [and Eric’s]
general uncommunicativeness.” She also argues that the court did not give enough
weight to her own greater availability for the children during the day due to her more
flexible schedule.
6
T.M.C. v. S.A.C., 858 P.2d 315, 319 (Alaska 1993).
7
Id. at 318-19.
-5 6961
Having found that the parents’ inability to communicate made joint legal
custody unworkable, the superior court had to award sole legal custody to one parent or
the other.8 The court found neither parent to be an ideal choice. It based its decision
primarily on what it found to be Eric’s clearer recognition of the children’s educational
and emotional needs. The court “did not believe [Kelli] appreciates the dire straits of
these children educationally as much as [Eric] does,” and it found that Eric “more
accurately and adequately considered the [emotional] needs of his youngest son.” The
court acknowledged the possibility that Eric might “establish a wall to keep [Kelli] out”
if he was awarded sole legal custody. But Kelli, the court found, was prone “to use her
custody privileges as a sword” against Eric, and this attitude was “more destructive to
the parental relationship than ignoring it.” Supporting the court’s finding was testimony
that Kelli distrusted the police department, the Office of Children’s Services, and local
counseling facilities, and that she therefore limited contact between her children and the
services that were likely to benefit them. On balance, the court viewed the likelihood
that Eric would try to shut Kelli out as less harmful to the children than Kelli’s desire to
use custody as a weapon against Eric.
It is true, as Kelli argues, that her day-to-day availability is a relevant
consideration, as it could contribute to the stability of the children’s home environment.9
But the court was aware of Kelli’s schedule and still found this benefit outweighed by
other factors, concluding that the children’s educational and emotional needs would be
better served by Eric, especially during the school year.
8
See Peterson v. Swarthout, 214 P.3d 332, 336-37 (Alaska 2009).
9
Farrell v. Farrell, 819 P.3d 896, 899 (Alaska 1991) (approving of the
superior court’s consideration a parent’s day-to-day availability).
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“We give ‘particular deference’ to the trial court’s factual findings when
they are based primarily on oral testimony, because the trial court, not this court,
performs the function of judging the credibility of witnesses and weighing conflicting
evidence.”10 There is substantial evidence in the record to support the superior court’s
findings of fact, which are not clearly erroneous. Presented with a difficult choice, the
superior court reached a reasonably balanced custody arrangement that falls within the
bounds of its broad discretion.
C. The Superior Court Did Not Abuse Its Discretion When It Allocated
Kelli A Portion Of The Guardian Ad Litem’s Fees.
Kelli argues that the superior court abused its discretion when it allocated
to her 20 percent of the fees charged by the guardian ad litem (GAL) assigned to
advocate for the best interests of the children. She argues she should not have to bear
any of the expense, given that it was Eric who demanded the GAL and committed to bear
the cost; that “[b]ut for Eric’s disparately high income, the appointment could have been
made at public expense”; and that she was financially stressed.
We have already rejected the argument that only the party who requests a
GAL may be held liable for the fees.11 The appointment of a GAL is ultimately the
court’s responsibility and is committed to its discretion.12 In this case the superior court
found the appointment to be “necessary and proper to protect the best interests of the
10
Ebertz v. Ebertz, 113 P.2d 643, 646 (Alaska 2005) (quoting In re Adoption
of A.F.M., 15 P.3d 258, 262 (Alaska 2001)).
11
Siggelkow v. Siggelkow, 643 P.2d 985, 989-90 (Alaska 1982).
12
AS 25.24.310; see also Thomas v. Thomas, 171 P.3d 98, 104 (Alaska
2007); H.P.A. v. S.C.A., 704 P.2d 205, 212 (Alaska 1985) (citing Siggelkow, 643 P.2d
at 989-90).
-7 - 6961
minor children” due to “the extreme tension between the parents and the need for a
neutral party to independently investigate and present evidence and advocate on behalf
of the children’s best interests.” The children’s best interests are the responsibility of
both parents equally. That it was Eric who filed the motion prompting the court’s
appointment of the GAL is irrelevant to the issue of the GAL’s fees.
Nor was Kelli’s financial situation such as to necessarily relieve her of her
share of the expense. Alaska Statute 25.24.310 and Alaska Rule of Civil Procedure 90.7
govern a GAL’s appointment and payment. We have held that the statute “generally
precludes the superior court from taxing only one parent with the costs of a guardian ad
litem where both parents can afford the cost,”13 and Rule 90.7(m) provides that the costs
should be shared equally “unless the court finds good cause to change this allocation.”
In H.P.A. v. S.C.A., for instance, we affirmed the superior court’s decision to allocate to
the wife one-third of the GAL’s costs where she could “reasonably afford to pay [the]
amount.”14
In this case, the superior court expressly considered the disparity in the
parents’ incomes in calculating its allocation of the GAL’s fees. The court had earlier
held Eric solely responsible for the GAL’s $1,500 retainer. Of the remaining fees, the
court assigned Eric 80 percent ($4,689.84) and Kelli 20 percent ($1,172.46), based on
their relative incomes.15 Implicit in this allocation is a finding of good cause to deviate
13
Siggelkow, 643 P.2d at 990. The statute at issue in Siggelkow was
AS 09.65.130, later renumbered as AS 25.24.310.
14
H.P.A., 704 P.2d at 212.
15
The court extrapolated the parties’ incomes from their paystubs, W-2s, and
the affidavits required by Civil Rule 90.3.
-8 - 6961
from the 50/50 allocation contemplated by Rule 90.7(m). The court did not abuse its
discretion in making this allocation.
D. The Scrivener’s Change To The Modified Custody Decree Should Be
Addressed On Remand.
Kelli argues that the superior court abused its discretion when it signed a
proposed modified custody decree allowing Eric to return the children on Monday
mornings following his summertime weekend visits; this was a departure from an earlier
version of the modified decree, which required the children to be returned on Sunday
evenings. Kelli argues that the alteration was also a substantial departure from the
court’s oral decree16 and that it lacks sufficient explanation in the record. We agree that
the issue needs clarification.
The superior court, after giving its findings orally, assigned Eric’s attorney
the task of drafting the modified custody decree. The attorney’s first draft defined both
parties’ visitation weekends in the same way: beginning at 5:00 p.m Friday and ending
at 5:00 p.m. Sunday. Kelli filed objections related to other aspects of the decree and the
court ruled on them; Eric’s attorney then submitted a revised version of the modified
decree. But the revised version also made the change at issue here: it changed the timing
of Eric’s weekend visits so that they extended to Monday mornings.
Kelli had represented herself at the modification hearing but retained a
lawyer afterward. Through her new lawyer, she immediately filed a notice calling the
superior court’s attention to the change in visitation timing, which she suggested was “a
drafting errata.” The court did not respond to Kelli’s notice, however; it signed the
16
There is no direct conflict with the court’s oral findings and conclusions.
The court explicitly stated the timing of Kelli’s weekend visits with the children: 5:00
p.m. Friday to 5:00 p.m. Sunday. It went on to assign certain summertime weekends to
Eric, but it did not specify the hours for those visits.
-9 - 6961
revised version of the modified custody decree as submitted, with a Monday morning
return for Eric’s summer weekend visits.
We have held that “the superior court is not required to articulate its
thoughts on every issue it considers” when it makes decisions about custody.17 But this
specific issue was not discussed at trial, and the different definitions of Eric’s and Kelli’s
weekends did not surface until the revised version of the modified decree, after Kelli’s
objections to the first draft had been ruled on and incorporated into the second.
Moreover, although notice to the other side is not at issue here because Kelli’s attorney
saw the change, “[n]ew or additional matter should not have been included in the written
findings without giving [the other side] advance notice of the changes and an opportunity
to object.”18
We have repeatedly observed that “[c]ounsel agreeing to draft written
findings and conclusions for the superior court is essentially a scribe who must
accurately memorialize the court’s oral findings and conclusions.”19 Furthermore, “[i]f
[the drafting] counsel has questions about what a court has ruled or perceives ambiguity,
the proper course is to flag the issue so that the court may revisit it.”20 It is particularly
17
Peterson v. Swarthout, 214 P.3d 332, 338 (Alaska 2009) (citing Thomas,
171 P.3d at 102-03); AS 25.20.110.
18
Ogden v. Ogden, 39 P.3d 513, 519 (Alaska 2001) (citation omitted).
19
McDougall v. Lumpkin, 11 P.3d 990, 998 (Alaska 2000); see also Ogden,
39 P.3d at 518.
20
McDougall, 11 P.3d at 998; see also Ogden, 39 P.3d at 519 (“[I]f Julie’s
counsel encountered questions or uncertainties in drafting the findings and conclusions,
she should have at least specified in her proposed order those findings that were
extrapolations from the court’s oral remarks or otherwise were not mentioned by the
(continued...)
-10 - 6961
important that the drafting counsel take care “to ensure faithful and accurate renditions
of the court’s rulings” when the other party is unrepresented;21 here, although Kelli
obtained counsel after trial, the order being transcribed had been stated first on the record
at the hearing, when Kelli was proceeding pro se and had no attorney of her own to
independently recollect or record the substance of the court’s rulings.
Although Kelli’s new attorney immediately caught the deviation and called
it to the court’s attention, the circumstances leave us in some doubt as to whether the
court intended to incorporate it into the signed decree. It is the role of the superior court
to ensure that any decree drafted by a party conforms to the court’s own rulings.22 We
remand the issue to the superior court for an express adoption or rejection of Eric’s
proposal that summer weekend visits extend to Monday mornings.
V. CONCLUSION
We REMAND for the superior court to expressly adopt or reject the change
to Eric’s weekend visitation in the second draft of the modified custody decree. We
AFFIRM the superior court’s orders in all other respects.
20
(...continued)
court.”).
21
McDougall, 11 P.3d at 998.
22
Id. (“An attorney’s failure to submit written proposed findings conforming
to the oral findings does not relieve a trial court of responsibility for confirming that the
written findings reflect the court’s thinking.”); Indus. Indem. Co. v. Wick Constr. Co.,
680 P.2d 1100, 1108 (Alaska 1984) (“A trial court is . . . entitled to adopt findings and
conclusions prepared by counsel, so long as they reflect the court’s independent view of
the weight of the evidence.” ) (discussing Alaska Civil Rule 78(a)).
-11 - 6961
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92 B.R. 263 (1988)
In re Kenneth H. ROBERSON, Laura A. Roberson, Debtors.
Robert C. WARD, Plaintiff,
v.
Kenneth H. ROBERSON, Defendant.
Bankruptcy No. 2-86-03077, Adv. No. 2-86-0314.
United States Bankruptcy Court, S.D. Ohio, E.D.
September 12, 1988.
David B. Barnhart, Columbus, Ohio, for plaintiff.
Mark H. Gams, Columbus, Ohio, for defendant.
ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND SETTING TRIAL DATE
BARBARA J. SELLERS, Bankruptcy Judge.
This matter is before the Court on the merits of plaintiff Robert C. Ward's motion seeking summary judgment. The motion was opposed by defendant Kenneth H. Roberson and is before the Court for decision.
The Court has jurisdiction in this proceeding under 28 U.S.C. § 1334(b) and the General Order of Reference entered in this district. This complaint, which seeks to except a specific debt from the operation of the discharge in bankruptcy granted to the defendant, is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(I) and is a matter in which this Bankruptcy Judge may enter a final order.
The basis for the plaintiff's motion is a default judgment in his favor in the Court of Common Pleas of Pickaway County, Ohio. That judgment found the defendant to be guilty of willful and wanton misconduct in the operation of a motor vehicle in connection with an accident which apparently caused serious personal injury to the plaintiff. The plaintiff asserts that the finding of the state court, which resulted in a judgment in favor of the plaintiff in the amount of $1,500,000, establishes the willfulness and maliciousness of defendant's actions toward the plaintiff for purposes of an exception to discharge under § 523(a)(6) of the Bankruptcy Code. That assertion is premised either upon the use of collateral estoppel or upon a finding that operation of a motor vehicle in violation of state law is, per se, a willful and malicious act within the meaning of 11 U.S.C. § 523(a)(6).
The Court of Appeals for the Sixth Circuit has considered the assertion of a prior state court judgment as collateral estoppel in favor of a plaintiff in a dischargeability action in a later bankruptcy case where the original defendant in the state court action is the debtor. Spilman v. Harley (In re Harley), 656 F.2d 224 (6th Cir.1981).
The Spilman court observed that the legal issue of the dischargeability of an obligation is not properly before the state court where its action both preceded the bankruptcy filing and involved an exception to discharge for which the Bankruptcy Court has exclusive jurisdiction. Spilman, 656 F.2d at 226. This proceeding under 11 U.S.C. § 523(a)(6) is such an action.
*264 Collateral estoppel may be available, however, to prevent the redetermination of facts already decided by a state court when such facts were necessary to its judgment and were actually litigated in the first action. Where the pre-bankruptcy judgment was a default judgment, however, collateral estoppel does not bar the defendant in the state court action from attempting to prove facts necessary to defeat such an action in the context of a later dischargeability proceeding. Spilman, 656 F.2d at 227-228. Collateral estoppel, as a discretionary doctrine of judicial economy, is available only where the facts sought to be used in the later action were actually litigated or agreed upon by represented parties in the prior action. It does not encompass the offensive use of facts established only by default to preclude proof of contrary facts in a later action in which both parties are represented. Spilman at 228; Shafer v. Wintrow (In re Wintrow), 57 B.R. 695 (Bankr.S.D.Ohio 1986).
The Court also finds that a violation of state law in the operation of a motor vehicle does not, without more, establish the willfulness and/or maliciousness of an action within the meaning of 11 U.S.C. § 523(a)(6). Clair v. Oakes (In re Oakes), 24 B.R. 766 (Bankr.N.D. Ohio 1982). The willfulness and maliciousness of a defendant's actions are issues of mixed fact and law capable of establishment only by application of certain standards of law to the findings of facts in a particular case. The willfulness or maliciousness of a debtor's acts for purposes of 11 U.S.C. § 523(a)(6) are not found by implication, but from demonstrated intent. Clair at 770. Further, there has been no showing that "willful and wanton," under state law, describe the same behavior as "willful and malicious" within an exception to discharge action.
Based upon the foregoing, the Court finds that the plaintiff in this action cannot use a default judgment in his favor against the defendant, obtained in a state court action prior to the defendant's bankruptcy filing, to establish the willfulness and maliciousness of the defendant's actions for purposes of this dischargeability action. Accordingly, material issues of fact remain in dispute and summary judgment would be inappropriate. See Fed.R.Civ.Proc. 56. Therefore, plaintiff's motion for summary judgment is denied and this matter shall proceed to trial on its merits on Wednesday, December 14, 1988 at 2:00 p.m., in Courtroom 130, United States Bankruptcy Court, 85 Marconi Boulevard, Columbus, Ohio 43215, unless other action is taken as the parties deem appropriate.
IT IS SO ORDERED.
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100 F.2d 408 (1938)
THOMAS
v.
COMMISSIONER OF INTERNAL REVENUE.
No. 75.
Circuit Court of Appeals, Second Circuit.
December 5, 1938.
Spotswood D. Bowers, of New York City (Alice B. Baldridge and Joseph W. Kirkpatrick, both of New York City, of counsel), for petitioner.
James W. Morris, Asst. Atty. Gen., and Sewall Key and Arnold Raum, Sp. Assts. to Atty. Gen., for respondent.
Before MANTON, L. HAND, and AUGUSTUS N. HAND, Circuit Judges.
AUGUSTUS N. HAND, Circuit Judge.
The Board of Tax Appeals determined a deficiency in the income tax of the petitioner Elisabeth R. Thomas for the year 1930 amounting to $21,183.54, the correctness of which is disputed by her on the present appeal.
The taxpayer married Edward R. Thomas on November 5, 1912, and their son and only child was born on October 2, 1913. On May 8, 1924, the couple having already separated, entered into a contract for the settlement of property rights and claims arising out of the marital relation. This was followed by a decree of divorce rendered on June 27, 1924, by the Circuit Court of Florida, where the parties were domiciled. The decree of divorce awarded to the taxpayer the custody of her son.
In the contract of May 8, 1924, the taxpayer relinquished all her rights of dower, inheritance and descent in the property of her husband, renounced any right to administer his estate, released all claims for future maintenance and support, and assumed liability for the support of the child. The husband on his part agreed to pay his wife various amounts in cash, to convey to her certain real estate and to create a trust fund of $200,000 on her behalf. In addition to these undertakings which were to be performed at once, he also agreed (a) to pay the taxpayer specified sums annually during their joint lives; (b) to create within five years (that is, by May 8, 1929) an additional trust fund of $100,000; (c) to charge his estate with a loan of $93,400 on certain insurance policies on his own life of the face amount of $425,000 payable to her, and to pay premiums upon such policies when due; (d) to assign to her his interest to the extent of $300,000 in the remainder of an estate created by his father's will, such $300,000 to become *409 payable upon the death of the life tenant, who was Ann Augusta Thomas, his mother, on condition, however, that the taxpayer should not have remarried; (e) to create upon the mother's death a trust fund of $200,000, the income of which should be paid to the taxpayer for life or until remarriage; (f) to guarantee performance by the Morning Telegraph Company of its contract with the taxpayer whereby she was to receive $10,400 annually for fifteen years for writing articles.
The husband died on July 6, 1926. At the time of his death he had fully performed all the obligations of the separation agreement which had become due. There remained unperformed: (1) The creation of the $100,000 trust by May 8, 1929, (2) the repayment by his estate of the $93,400 loan upon the life insurance policies; (3) the creation of a $200,000 trust upon his mother's death; (4) the payment of $300,000 to the taxpayer out of his father's estate after the death of his mother.
In addition, the taxpayer had not received payment from the Morning Telegraph Company for her articles since September 27, 1926.
A compromise agreement was executed in 1930 by the taxpayer, by the second wife of Edward R. Thomas, by the executors of his will and by the trustee named in the contract of May 8, 1924. Under this agreement the $100,000 trust was created for the taxpayer; the $93,400 loan on the insurance policies, together with interest, was paid in full, and the executors agreed to establish the $200,000 trust upon the death of the mother, and $125,000 in cash plus interest of $12,304.17 were paid directly to her in consideration of her release of her rights under the separation agreement.
During the year 1930 the taxpayer received $8,552.88 as her distributable share of the income from the trust of $200,000 created in 1924, and likewise $6,858.73 from the trust of $100,000 set up in 1930. The returns of the taxpayer were on a cash basis, but she failed to report either of these two receipts of income in her tax returns, regarding them as only payments in exchange for her relinquishment of personal rights growing out of the marital status. The Commissioner assessed them against her for that year. From the income returned for 1930 she claimed a bad debt deduction of $232,322.67 on the theory that the various obligations under the separation agreement of May 8, 1924, were debts and that the deduction was allowable since the unperformed obligations valued as of a given date exceeded the aggregate of the items in the compromise agreement as then valued. The Commissioner rejected the deduction. His rulings against the taxpayer in assessing both items of income derived from the trusts and in rejecting the bad debt deduction she had claimed were sustained by the Board of Tax Appeals.
The questions presented on this appeal are: (1) Whether the income from the trusts, paid over to the taxpayer in 1930, was properly taxable against her, and (2) whether she was entitled to a bad debt deduction as a result of the settlement of the obligations which her husband had entered into under the separation agreement of May 8, 1924, and not fulfilled prior to his death.
The question whether the income from the trusts was taxable against the taxpayer or her husband's estate is not on its face a simple one. It would have been taxable against the husband during his lifetime, even though a part of the consideration was in lieu of the dower rights or statutory interests in his estate to which she would be entitled upon his death. Douglas v. Willcuts, 296 U.S. 1, 56 S.Ct. 59, 80 L.Ed. 3, 101 A.L.R. 391. Hughes, C. J., there said (at page 8, 56 S.Ct. at page 62): "However designated, it was a provision for annual payments to serve the purpose of alimony, that is, to assure to the wife suitable support. The fact that the provision was to be in lieu of any other interest in the husband's property did not affect the essential quality of these payments."
There is, however, authority for holding that the wife is liable for the tax after the legal obligations of the husband to support her in settlement of which a trust was created, had ceased. In Commissioner v. Harry S. Blumenthal, 2 Cir., 91 F.2d 1009, affirming 34 B.T.A. 994, per curiam, we held that the income of a trust set up for support and maintenance of a divorced wife was taxable to her upon her remarriage. In Robert Glendinning v. Commissioner, 36 B.T.A. 486, affirmed in 3 Cir., 97 F.2d 51, the opposite result was reached. In neither of the last two cases cited were the courts confronted with the difficulty that exists here of apportioning the consideration between the wife's right to support and her statutory rights in her husband's *410 property; nor were they confronted with the administrative difficulty of taxing his estate after he had died.
In Helvering v. Brooks, 2 Cir., 82 F. 2d 173, where a trust settlement had been made in exchange both for relinquishment of the divorced wife's right to support and for her statutory rights in her husband's property, we held that the husband alone was subject to the tax, saying: "Whether the trust income is used to discharge the husband's duty, made specific by agreement, to support the wife, or to discharge an obligation to pay her agreed sums for a release of rights in his property, cannot be material in determining the taxability of the husband." The same result was reached by the Supreme Court under similar circumstances in Douglas v. Willcuts, 296 U.S. 1, 56 S.Ct. 59, 80 L.Ed. 3, 101 A. L.R. 391.
In Helvering v. Butterworth, 290 U.S. 365, 54 S.Ct. 221, 78 L.Ed. 365, the Supreme Court held that the income from a testamentary trust accepted by a wife in lieu of dower was taxable to her. From Helvering v. Brooks, 2 Cir., 82 F.2d 173, and Helvering v. Butterworth, 290 U.S. 365, 54 S.Ct. 221, 78 L.Ed. 365, it may be inferred that the income in the case at bar should for reasons of practical administration be treated as paid by the husband for support and maintenance of the wife while he is alive and received by her for her dower or other statutory rights after he has died. Such a ruling avoids subjecting the husband's estate to administrative burdens after his death and also avoids attempting to discover what portion of the consideration was furnished for support and maintenance of the wife and what portion for her statutory interest in her husband's property. In Helvering v. Brooks, 2 Cir., 82 F.2d 173, such a determination was held to be impracticable during the life of the husband and would be equally so after his death.
Apportioning the consideration would be impossible in the present case. Accordingly the taxpayer has not sustained the burden of overcoming the decisions of the Commissioner and the Board.
We hold that the income received from the trusts in 1930 was properly assessed to the taxpayer.
The final question is whether the bad debt deduction of $232,322.67 was available to the taxpayer as claimed in her income tax report. We think it was properly disallowed by the Board.
Under the compromise agreement the obligations to create the trust fund of $100,000 and to pay off the loan on the insurance policies were carried out. The executors of the will of the taxpayer's deceased husband also entered into an agreement to establish the $200,000 trust fund on the death of his mother as he had himself done in the separation agreement. The only remaining obligations were the guarantee of payment of $300,000 out of the estate of the husband's father upon the death of Ann Augusta Thomas and the guarantee that the Morning Telegraph Company would pay the taxpayer $10,400 annually for fifteen years for writing articles. These obligations were extinguished by the payment of $125,000 and $12,304 interest under the compromise. The payment of $300,000 was only to be made if the taxpayer did not remarry. The amount due the taxpayer from the Morning Telegraph Company at the time of the compromise amounted with interest to $42,619.72 and the value of the balance to be paid her in annual instalments during the remaining life of the contract had a value of $71,167.20, but was dependent upon her writing articles. There was no proof that the Morning Telegraph was unable to pay the $42,619.72 that was due.
We think there has been no showing that either of these items gave rise to bad debts or losses. In respect to the $300,000 item the taxpayer received an assignment of a remainder interest in property held in trust for the life of Ann Augusta Thomas which was guaranteed to yield $300,000 when the remainder fell in. But no proof was adduced that it would not then yield $300,000 and by the terms of the separation agreement the guarantee would cease to operate if the taxpayer remarried. It seems impossible to treat such a guarantee either as a bad debt or a loss whatever may have been the financial condition of the estate of the guarantor prior to the compromise. The same considerations apply to the obligations of the Morning Telegraph Company for there was no proof that it was necessary to resort to the guarantee to secure full payment of the claims against the primary obligor. There was, therefore, neither a bad debt nor a loss.
For the reasons we have already given there was no bad debt which might be deducted. *411 But even if the obligations running to the taxpayer under the separation agreement had not been performed, the nonperformance would not, in our opinion, have resulted in "bad debts" within the statutory meaning of the term, but rather in losses arising from breaches of contract. Lewellyn v. Electric Reduction Co., 275 U. S. 243, 48 S.Ct. 63, 72 L.Ed. 262; Wadsworth Mfg. Co. v. Commissioner, 6 Cir., 44 F.2d 762. The provisions in the income tax laws allowing deductions for "bad debts" and for losses sustained during the taxable year are mutually exclusive. Spring City Foundry Co. v. Com'r, 292 U. S. 182, 54 S.Ct. 644, 78 L.Ed. 1200.
The best that the taxpayer can claim is that if her rights under the separation agreement be taken as a whole she was forced to compromise them for less than their value assuming that the obligor was solvent. But we are not persuaded that the taxpayer has proved any deductible loss even on that assumption. Had there been a loss it would not be deductible under the income tax acts because it did not arise "in any transaction entered into for profit."
Order affirmed.
L. HAND, Circuit Judge, concurs in separate memorandum.
L. HAND, Circuit Judge (concurring).
I concur, but I wish to state some doubts, which seem to me substantial, as to the propriety of taxing a widow upon the income of a trust fund, accepted by her during her husband's life, in exchange for alimony. The husband is confessedly taxable upon that income while he lives, and the wife is not; we are holding that the reverse is true after his death. In principle I find it very hard to support this change, because the income during the later period seems to me equally with that during the earlier, part of a single consideration. The husband's liability is only for their joint lives, which is always actuarially a shorter period than the life of either one. Ordinarily, therefore, the annual income will be less than what she would have accepted, if she were confined to the period during which he is liable. If it were practicable to continue the tax upon his estate after his death, I should therefore think that that was the proper way he has given a quid pro quo measured by a less sum for a longer period. But I cannot see how this could be administered in practice. The income of the trust must be calculated as part of the husband's income, which, being dead, he cannot have; and it would not be possible even by impounding some part of his estate to provide for it. True, one could in that way secure the normal tax, but that is not enough; the actual tax could not even be calculated. I know that it is not a very good reason for taxing one person that it is impossible to collect the tax out of another, but we are continually admonished that the taxation is a practical matter, and here I am disposed to accept that as an adequate excuse. The result may be somewhat unfair before the law becomes fixed, but thereafter women who accept such settlements will be apt to take into consideration the fact that if their husbands die first, the tax will shift to them.
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In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-18-00047-CV
IN THE MATTER OF THE MARRIAGE OF
HOLLY LYNN MITCHELL AND JEREMY GUY MITCHELL AND
IN THE INTEREST OF C.P.M., A CHILD
On Appeal from the 276th District Court
Morris County, Texas
Trial Court No. 26077
Before Morriss, C.J., Burgess and Stevens, JJ.
Opinion by Justice Stevens
OPINION
Holly Lynn Mitchell petitioned for divorce from her husband, Jeremy Guy Mitchell, and
asked the trial court to appoint them both as joint managing conservators of her three children,
Amber, Heather, and Claire. 1 Jeremy filed a cross-petition for divorce and requested that he be
appointed sole managing conservator of their children “due to [Holly’s] addiction to prescriptive
medications” and alleged history of child neglect. Don Butler intervened to adjudicate his
parentage of and conservatorship to the youngest child, Claire, who was born in March 2014. After
adjudicating Butler as Claire’s father, the trial court appointed Butler, Holly, and Jeremy as joint
managing conservators of Claire, and designated Jeremy as the “non-parent joint managing
conservator” with the exclusive right to establish Claire’s primary residence. The trial court also
ordered Butler to pay child support to Jeremy.
On appeal, Butler argues that the trial court erred in appointing a nonparent as managing
conservator because the record contains insufficient evidence that Butler’s appointment would
significantly impair Claire’s physical health or emotional development. On the condition that his
first argument is correct, Butler argues that the trial court erred in requiring him to pay child
support to Jeremy.
We find that Jeremy presented legally and factually sufficient evidence to show that, absent
Jeremy’s appointment, appointment of only the child’s biological parents would significantly
impair Claire’s emotional development. We also find that the trial court did not abuse its discretion
1
We use pseudonyms to protect the identity of the children as much as is possible given the style of this case. See
TEX. R. APP. P. 9.8; TEX. FAM. CODE ANN. § 109.002(d) (Supp.).
2
in appointing Jeremy joint managing conservator. Because of these findings, we overrule Butler’s
conditional argument and affirm the trial court’s judgment.
I. Factual Background
At trial, Jeremy testified that he lived with Holly, Amber, Heather, and Claire until Holly
left him in March or April 2017. Jeremy viewed himself as Claire’s father and testified that Claire,
who was four at the time of trial, had lived with him for all of her life, except for a four-month
period when Claire lived with Holly after the separation. During that period, Holly was arrested
in Claire’s presence for possession of a controlled substance. Jeremy said that Holly abused
prescription medication, had burned Claire on the hand with a cigarette, and was not mentally
capable of caring for the girls. He testified that Holly had “court cases pending for drugs that she’s
been selling or that she’s had found in her car” and had another pending charge for unlawful
possession of a firearm she carried in her purse. Holly admitted she had hydrocodone and a
weapon in her purse when arrested and testified that two of four criminal charges were still pending
at the time of trial.
Jeremy described his home and testified that it was in Claire’s best interest to keep living
with him, Amber, and Heather. He added that his parents, whom Claire had believed were her
grandparents since birth, also lived with him and helped care for Claire. Jeremy’s mother, Gina
Cobb, mirrored Jeremy’s testimony about Claire’s best interest and added that Claire called Jeremy
her father and called Butler by name. Cobb also testified that she owned the daycare that Claire
attended and that she was happy there. According to Cobb, Claire acted as if she did not want to
leave to see Butler.
3
Despite Cobb’s testimony, Jeremy agreed that Claire was bonded with Butler and that he
did not know of anything Butler had done that would endanger her physically or emotionally.
Even so, Holly testified that it was in Claire’s best interest for Jeremy, not Butler, to be the joint
managing conservator with the exclusive right to determine the child’s primary residence. Holly
testified that Jeremy has been Claire’s father figure since birth even though he knew he was not
the child’s biological father. Butler also testified that he spoke with Jeremy a month after Claire
was born and that Jeremy knew the child was not his at the time. Holly believed that it was not in
Claire’s best interest to separate with the family she had known since birth and that it would
negatively impact the child if she had to live with Butler 200 miles away.
Holly’s testimony about her relationship with Butler helped clarify her best interest
opinion. The evidence showed that Butler was still married to his wife of fourteen years, Cindy.
According to Holly, she and Butler had a sexual relationship for years while they were both
married, the relationship was still ongoing, and they had sex a few days before the trial. Holly said
Butler had photos and video recordings of their sexual activities and her sexual activities with other
men. Holly testified that Butler kept telling her that he would divorce Cindy and marry her.
Holly’s father, Jimmy Waits, said Butler told him he would divorce Cindy to be with Holly.
According to Holly, Butler purchased an engagement ring for her and said he “would take [Claire]
and get custody and hand her back to [Holly] because he was filing for divorce as soon as [the case
was] over.” Telephone conversations admitted into evidence supported Holly’s testimony. Holly
testified that Butler did not have a stable home life.
4
Holly also testified that Butler was physically abusive toward her two times. One assault
occurred in the summer of 2017 while the case was pending. According to Holly, Butler hit her
in the face with a closed first. Photos of Holly after the assault were admitted into evidence. Holly
claimed that she did not report the abuse to the police because she was scared that Butler would
kill her. Holly admitted that her relationship with Butler affected her parenting. Even so, she
testified that Butler had impregnated her again in 2017, but that she miscarried and had never told
him about the pregnancy.
Butler had an eighty-percent disability rating because of post-traumatic stress disorder
(PTSD) and a concussion as a result of his time in the military. He believed himself cured and had
not seen a doctor in three years. Several witnesses testified that Butler consumed alcohol, but
Butler and Cindy claimed it was never to excess even though Holly had described him as drunk in
a text message. Waits testified that Butler brought a 9mm weapon and a cooler full of hard liquor
to his home during the last Easter celebration and opined that “anybody that walks in your home
and is drinking as much hard liquor as [Butler] was” would have parenting issues. According to
Waits, Holly said Butler knew that Claire was his child from conception but did not “man up.”
Waits noted that Butler and Holly text and talk constantly and that the calls interfered with her
visitation with her children. Waits agreed that it was in Claire’s best interests to live with Jeremy,
not Butler, and that Jeremy should have the exclusive right to determine the child’s primary
residence.
Butler testified that he worked in a supervisory position for BNSF Railroad, had been
married to Cindy, a dispatcher for the Gatesville City Police Department, for fourteen years, and
5
had two daughters from the marriage. According to Butler, he and Cindy did not have an open
marriage, and he only slept with Holly and sent naked photos of himself to her during a period of
separation and pending divorce from Cindy after a derogatory photo of Cindy having sex with
other men appeared on the internet. After he reconciled with Cindy, Butler claimed he had not
had sex with anyone else.
Butler and Cindy testified that Holly told Butler that Claire was his child when she was
pregnant. Butler paid her $1,000.00, but said he “second guess[ed]” Holly because he knew she
was married to Jeremy. Butler claimed that Holly denied his offer to pay Claire’s medical expenses
because the child was on Medicaid, but said he refused Holly’s other requests for money for
Claire’s care because Holly would not relent to his requests for a DNA test and would not let him
see the child. Butler said Jeremy should have known by December 2014 that Claire was not his
child. Butler testified that he had previously tried to file papers to establish the child’s parentage,
but claimed the paperwork went missing from the clerk’s office.
When asked about his ongoing relationship with Holly, Butler classified it as purely
platonic. When confronted with text messages and telephone records refuting the claim, Butler
said he only told Holly he would marry her so he could be with Claire because Holly would restrict
his access to the child if he did not pretend they were in a relationship. Butler claimed that he kept
leading Holly on because she was mentally unstable and had threatened suicide. That said, Butler’s
father testified that Butler admitted to an ongoing sexual relationship with Holly and said Cindy
was okay with their relationship even though she knew Butler and Holly had sex three days before
trial.
6
Cindy admitted that she knew Butler and Holly had some sort of relationship because Holly
was the mother of Butler’s child. But she denied knowledge of their sexual relationship after the
reconciliation. Cindy testified that she did not have an open marriage and that it would hurt her if
Butler and Holly were having sex and if he had purchased an engagement ring for Holly. Even
so, she did not currently consider her marriage at risk.
Although Butler first stated that he did not have concerns about Holly’s ability to parent,
he later claimed that both Holly and Jeremy were addicted to prescription medication. Though
Holly was a computer tomography technologist at Good Shepherd Medical Center and had a four-
bedroom home, Butler claimed she had no income and would not be a suitable parent. Butler also
testified that he did not think Jeremy’s home was suitable because “the living arrangements [were]
a little tight.” As a result, he wished for Claire to move to Gatesville to live with him.
Butler testified that, even though the trial court’s temporary orders did not provide for his
possession of the child, Claire had spent nine months with him and visited his house several times.
Cindy testified that she was willing to be responsible for Claire and had even watched her alone
two or three times when Butler was unable to visit with the child. Butler and Cindy testified that
their fourteen-year-old and eight-year-old daughters loved Claire, that Claire was happy when she
was around them, and that it was important for Claire to have a relationship with them.
Cindy admitted that Child Protective Services had found out that she and Butler had left
their children home alone when the oldest child was eight or nine years old. But the remaining
evidence from Butler, his father, and Cindy established that Butler was a good father to his other
daughters, who made straight As and were active in extracurricular activities and church. While
7
Butler agreed that it was important for Claire to maintain a relationship with Amber, Heather, and
Jeremy, he did not believe they needed to be together. Instead, he believed that Claire should live
with him, Holly should exercise supervised visitation, and Jeremy should also have some
nonparent visitation rights. 2 Butler planned for Claire to attend the daycare at Gatesville Memorial
Church, where Cindy’s mother served as the director of the children’s program. Cindy testified
that Amber and Heather were welcome in her home anytime.
Jessica Attaway, an employee of the Department of Family and Protective Services,
testified that she had no concerns with Claire being placed with either Jeremy or Butler, but added
that it was in Claire’s best interest to remain in Morris County. Jeremy, Butler, and Butler’s father
testified that Butler had not done anything to cause Claire physical or emotional harm.
The amicus attorney appointed for the children, who was the first witness at trial, said he
wanted to see Claire “maintain the close relationship that she has with Jeremy” and determined it
was not in the child’s best interest to be separated from Amber and Heather. The amicus attorney
said that a move to Butler’s home would change her lifelong relationships and that he was “not
completely sure that [that] move” was in the child’s best interests. He did not believe that Jeremy
rebutted the parental presumption, but admitted that he did not investigate Butler’s sex life and
based his opinion on the strength of Butler and Cindy as an “upstanding” couple. In a letter written
after the trial, the court expressed its concern that the amicus attorney did not have the benefit of
evidence establishing that Butler and Holly had an ongoing sexual relationship and that Butler
planned to divorce Cindy and leave Holly after obtaining primary custody of Claire.
2
Butler also testified that he made $119,000.00 per year and would pay child support if necessary.
8
II. The Trial Court Did Not Err in Appointing Jeremy the Joint Managing Conservator
with the Right to Designate Claire’s Primary Residence
A. Standing
“Standing is implicit in the concept of subject-matter jurisdiction, which is never presumed
and cannot be waived.” In re D.W.G.K., 558 S.W.3d 671, 677–78 (Tex. App.—Texarkana 2018,
pet. denied) (citing Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 444–45 (Tex.
1993)). Because standing is a threshold issue, it “may be raised for the first time on appeal.” In re
M.T.C., 299 S.W.3d 474, 479 (Tex. App.—Texarkana 2009, no pet.) (citing Tex. Ass’n of Bus.,
852 S.W.2d at 445–46).
Butler questions Jeremy’s standing under Section 102.004 of the Texas Family Code,
which states:
Standing for Grandparent or Other Person
....
(b) An original suit requesting possessory conservatorship may not be
filed by a grandparent or other person. However, the court may grant a
grandparent or other person . . . deemed by the court to have had substantial past
contact with the child leave to intervene in a pending suit filed by a person
authorized to do so under this chapter if there is satisfactory proof to the court that
appointment of a parent as a sole managing conservator or both parents as joint
managing conservators would significantly impair the child’s physical health or
emotional development.
TEX. FAM. CODE ANN. § 102.004 (Supp.). Butler argues that a “nonparent establishes standing . . .
only in ‘extreme circumstances’” and suggests that Jeremy failed to do so. Because Jeremy did
not have to establish standing as a nonparent, we reject this argument.
9
Jeremy was Claire’s presumptive father because she was born while Holly and Jeremy
were married, and his name appeared on the child’s birth certificate. See TEX. FAM. CODE ANN.
§ 160.204(a)(1) (Supp.). Jeremy’s petition also alleged that he was Claire’s father. As a result,
Jeremy was considered a parent under the Texas Family Code, had general standing to file an
original suit affecting the parent-child relationship (SAPCR), and did not have to establish
nonparent standing. See TEX. FAM. CODE ANN. §§ 101.024, 102.003(a)(8) (Supp.). 3 Jeremy’s
standing under Section 102.003(a)(8) was not erased by the trial court’s final order adjudicating
parentage in Butler’s favor. Because we find that Jeremy had standing to maintain the SAPCR,
we now address the merits of the case.
B. Standard of Review
“A trial court’s order regarding conservatorship is reviewed under an abuse of discretion
standard.” In re J.Y., 528 S.W.3d 679, 686 (Tex. App.—Texarkana 2017, no pet.) (citing In re
J.A.J., 243 S.W.3d 611, 616 (Tex. 2007)). “A trial court abuses its discretion if it acts arbitrarily
and unreasonably or without reference to any guiding principles.” Id. (citing Downer v.
Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985)). “We, therefore, will not
reverse a trial court’s appointment of a non-parent as . . . managing conservator unless we
determine that the appointment was arbitrary and unreasonable.” Id. (citing J.A.J., 243 S.W.3d at
616; Earvin v. Dep’t of Family & Protective Servs., 229 S.W.3d 345, 350 (Tex. App.—Houston
[1st Dist.] 2007, no pet.)). “We view the evidence in the light most favorable to the trial court’s
3
Under Section 101.024, the term “‘[p]arent’ means . . . a man presumed to be the father, a man legally determined
to be the father, a man who has been adjudicated to be the father by a court of competent jurisdiction, a man who has
acknowledged his paternity under applicable law, or an adoptive . . . father.” TEX. FAM. CODE ANN. § 101.024.
10
decision and indulge every legal presumption in favor of its judgment.” Id. (quoting Earvin, 229
S.W.3d at 350).
“Legal and factual sufficiency are not independent grounds of error in conservatorship
cases but are merely relevant factors in deciding whether the trial court abused its discretion.” Id.
(citing In re W.M., 172 S.W.3d 718, 725 (Tex. App.—Fort Worth 2005, no pet.)). “In applying
the abuse of discretion standard, we initially determine whether the trial court had sufficient
evidence upon which to exercise its discretion.” Id. “If so, we then determine whether the trial
court erred in its exercise of that discretion.” Id.
“In determining legal sufficiency, the appellate court determines ‘whether the evidence at
trial would enable reasonable and fair-minded people to reach the verdict under review.’”
Petrohawk Props., L.P. v. Jones, 455 S.W.3d 753, 770 (Tex. App.—Texarkana 2015, pet. dism’d)
(citing City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005); Basley v. Adoni Holdings, LLC,
373 S.W.3d 577, 582 (Tex. App.—Texarkana 2012, no pet.)). “In looking at the evidence, we
credit favorable evidence if a reasonable [fact-finder] could and disregard contrary evidence unless
a reasonable [fact-finder] could not.” Id. (citing City of Keller, 168 S.W.3d at 827).
The evidence is legally insufficient if (1) there is a complete absence of
evidence of a vital fact; (2) the rules of law or of evidence bar the court from giving
weight to the only evidence offered to prove a vital fact; (3) there is no more than
a mere scintilla of evidence offered to prove a vital fact; or (4) the opposite of the
vital fact is conclusively established by the evidence.
Id. (citing Jelinek v. Casas, 328 S.W.3d 526, 532 (Tex. 2010)). “More than a scintilla of evidence
exists when the evidence reaches a level enabling reasonable and fair-minded people to differ in
their conclusions.” Id. (citing Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.
11
1997)). “Less than a scintilla of evidence exists when the evidence is ‘so weak as to do no more
than create a mere surmise or suspicion’ of a fact.” King Ranch, Inc. v. Chapman, 118 S.W.3d
742, 751 (Tex. 2003) (quoting Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983)).
“When we review a finding for factual sufficiency, we consider all of the evidence and will
set aside a finding only if it is so contrary to the overwhelming weight of the evidence as to be
clearly wrong and unjust.” Edwards v. Mid-Continent Office Distribs., L.P., 252 S.W.3d 833, 836
(Tex. App.—Dallas 2008, pet. denied) (citing Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242
(Tex. 2001) (per curiam); Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986) (per curiam)).
When, as here, no findings of fact and conclusions of law were requested or filed, it is
implied that the trial court made all findings necessary to support its judgment. In re Crumbley,
404 S.W.3d 156, 162 (Tex. App.—Texarkana 2013, no pet.) (citing Worford v. Stamper, 801
S.W.2d 108, 109 (Tex. 1990) (per curiam)).
C. Relevant Statutes and Caselaw
“The primary consideration in determining conservatorship is always the best interest of
the child.” J.Y., 528 S.W.3d at 686 (citing TEX. FAM. CODE ANN. § 153.002). “Because the trial
court is in a position to analyze the facts, with regard to issues of conservatorship, control,
possession, child support, and visitation, the trial court is given ‘wide latitude in determining the
best interests of a minor child.’” In re M.T.C., 299 S.W.3d 474, 479 (Tex. App.—Texarkana 2009,
no pet.) (quoting Stallworth v. Stallworth, 201 S.W.3d 338, 347 (Tex. App.—Dallas 2006, no
pet.)). Yet, “[b]ecause a trial court has no discretion in determining what the law is or applying
12
the law to the facts . . . discretion is abused when a court grants conservatorship or access to a
[non]parent who fails to meet the statutory requirements” of the Texas Family Code. Id.
“The presumption that the best interest of the child is served by awarding custody to the
parent is deeply embedded in Texas law.” In re V.L.K., 24 S.W.3d 338, 341 (Tex. 2000) (citing
Lewelling v. Lewelling, 796 S.W.2d 164, 166 (Tex. 1990)). “The parental presumption is based
upon the natural affection usually flowing between parent and child.” Id. (citing Taylor v. Meek,
276 S.W.2d 787, 790 (1955)). The Texas Legislature codified the parental presumption in Chapter
153 of the Texas Family Code. Id. Section 153.131 states:
[U]nless the court finds that appointment of the parent or parents would not be in
the best interest of the child because the appointment would significantly impair
the child’s physical health or emotional development, a parent shall be appointed
sole managing conservator or both parents shall be appointed as joint managing
conservators of the child.
TEX. FAM. CODE ANN. § 153.131(a). “Thus, under Chapter 153, the nonparent [must] rebut the
parental presumption by showing that the appointment of the parent would significantly impair the
child’s health or development.” V.L.K., 24 S.W.3d at 341–42 (citing Brook v. Brook, 881 S.W.2d
297, 298 (Tex. 1994)). This required finding under Section 153.131 “is governed by a
preponderance-of-the-evidence standard.” J.A.J., 243 S.W.3d at 616; J.Y., 528 S.W.3d at 687.
There must be evidence of “specific actions or omissions of the parent that demonstrate an
award of custody to the parent would result in physical or emotional harm to the child.” J.Y., 528
S.W.3d at 687 (citing Lewelling, 796 S.W.2d at 167), In re T.R.B., 350 S.W.3d 227, 233–34 (Tex.
App.—San Antonio 2011, no pet.)); see In re R.D.Y., 51 S.W.3d 314, 321 (Tex. App.—Houston
[1st Dist.] 2001, pet. denied). “Absent such specific evidence, general evidence that a non-parent
13
would be a better custodian of the child is inadequate to rebut the parental presumption.” R.D.Y.,
51 S.W.3d at 321. “When a parent and a nonparent are both seeking managing conservatorship,
‘close calls’ should be decided in favor of the parent.” R.H. v. D.A., No. 03-16-00442-CV, 2017
WL 875317, at *5 (Tex. App.—Austin Mar. 2, 2017, pet. dism’d) (mem. op.) (quoting Lewelling,
796 S.W.2d at 168).
The trial court may consider several factors in deciding when a nonparent has met their
burden. Under Section 153.004 of the Texas Family Code,
[i]n determining whether to appoint a party as a sole or joint managing conservator,
the court shall consider evidence of the intentional use of abusive physical force
. . . by a party directed against . . . a parent of the child . . . committed within a two-
year period preceding the filing of the suit or during the pendency of the suit.
TEX. FAM. CODE ANN. § 153.004(a) (Supp.). Other “acts or omissions that constitute significant
impairment include, but are not limit[ed] to, . . . severe neglect, abandonment, drug or alcohol
abuse, or immoral behavior by a parent.” J.Y., 528 S.W.3d at 687. Other considerations include
“a history of mental disorders, . . . bad judgment, . . . and an unstable, disorganized, chaotic lifestyle
that has and will continue to put the child at risk.” Id. (citing In re S.T., 508 S.W.3d 482, 492 (Tex.
App.—Fort Worth 2015, no pet.)).
“A fact[-]finder may infer the present fitness of the parent to be managing conservator from
the parent’s recent, deliberate past misconduct.” R.H., 2017 WL 875317, at *5. “However,
evidence of past misconduct, standing alone, may not be sufficient to show present unfitness.” Id.
(citing Chavez v. Chavez, 148 S.W.3d 449, 458 (Tex. App.—El Paso 2004, no pet.); In re M.W.,
959 S.W.2d 661, 666 (Tex. App.—Tyler 1997, writ denied); Taylor v. Taylor, 254 S.W.3d 527,
536 (Tex. App.—Houston [1st Dist.] 2008, no pet.)).
14
D. Analysis
First, we dispel Butler’s argument that his appointment as a joint managing conservator
was inconsistent with a finding that his appointment would significantly impair Claire’s physical
health or emotional development. Section 153.131 prohibits the appointment of a nonparent as a
child’s managing conservator unless the trial court finds that the parents’ appointment would
significantly impair the child’s physical health or emotional development. TEX. FAM. CODE ANN.
§ 153.131(a). Even so, the statutory language does not prohibit the parents’ appointment even if
such a finding is made. See id. “Where a trial court appoints a parent and nonparent as joint
managing conservators, it implicitly rules that parent’s sole custody would significantly impair the
child’s physical health or emotional development.” In re L.D.F., 445 S.W.3d 823, 830 (Tex.
App.—El Paso 2014, no pet.) (finding that father’s appointment did not preclude grandmother’s
appointment as joint managing conservator) (citing Mauldin v. Clements, 428 S.W.3d 247, 264
(Tex. App.—Houston [1st Dist.] 2014, no pet.)). Similarly, where both parents and a nonparent
are appointed joint managing conservators, a trial court implicitly finds that appointment of only
the parents would result in significant impairment to the child’s physical health and emotional
development. See id.; R.D.Y., 51 S.W.3d at 320–21 (naming father, mother, and grandmother joint
managing conservators with the grandmother having the exclusive right to designate the child’s
primary residence). Because the trial court permitted three-way joint custody, we must assume it
impliedly found that Holly and Butler’s appointment as the only joint managing conservators
would significantly impair Claire’s physical health or emotional development.
15
Our conclusion is bolstered by ample evidence presented at trial on several factors showing
that appointment of only the biological parents would significantly impair Claire’s emotional
development. Holly testified that Butler had been physically abusive toward her twice, including
when he punched her in the face during the pendency of the case. Holly admitted photos of the
results of Butler’s intentional use of physical force against her. “It is a rebuttable presumption that
the appointment of the parents of a child as joint managing conservators is in the best interest of
the child. A finding of a history of family violence involving the parents of a child removes the
presumption.” TEX. FAM. CODE ANN. § 153.131(b).
Butler admitted he knew that he could be Claire’s father by the time she was born, but
testified that he asked Holly for a DNA test several times in response to her requests to support the
child financially. Because Butler testified that Jeremy should have known Claire was not his
biological child by December 2014, the trial court could have concluded that Butler knew the child
was his then and had willingly failed to support her.
Butler testified Holly was emotionally unstable, suicidal, and had issues with prescription
drug abuse. He knew she had been arrested on several criminal charges, including one that
occurred in Claire’s presence, which were still pending at trial. The trial court’s finding that
Holly’s appointment would significantly impair Claire’s emotional development is unchallenged.
Even though Holly was unfit, the trial court heard evidence that Butler planned on returning Claire
to Holly after obtaining custody of the child. The trial court also heard that Butler and Holly were
continuing their immoral, adulterous relationship and that it was Butler’s plan to divorce Cindy
and marry Holly so Claire could live with them. Butler had a history of PTSD, considered himself
16
cured, was no longer seeking treatment, and consumed alcohol to excess according to Holly and
Waits. Given the plan to resume their tumultuous relationship, history of physical abuse between
Butler and Holly, and Holly’s unfitness, the trial court could have found Claire would be in danger
of significant impairment to her emotional development if in the custody of only Butler and Holly.
There was also evidence that Butler exercised poor judgment by conspiring with Holly to
violate court orders. The trial court’s temporary orders only allowed Holly to have visitation
supervised by Waits and did not provide for Butler’s or Cindy’s possession of Claire. Even so,
Cindy testified that Holly allowed Butler and her to take the child to Gatesville during Holly’s
periods of possession. According to Cindy, Butler left Claire alone with her on several occasions
during these times.
When she was in Gatesville, the evidence showed that Claire spent considerable time with
Cindy and her other half-sisters and had even referred to Cindy’s parents as “Granny and Papa.”
Butler and Cindy described how Claire had become attached to and was a part of their entire
family. Although Butler and Cindy testified that they planned on moving Claire to Gatesville to
live in their marital home, the trial court could have rejected Cindy’s testimony that she did not
expect to divorce Butler because she knew nothing of Butler and Holly’s continued immoral sexual
relationship. Instead, the trial court could have believed Holly’s testimony that Butler’s family
life was unstable and concluded Claire’s stability and emotional development would be harmed if
she was moved to live in Gatesville in a home that was about to suffer the ravages of divorce.
From this evidence, the trial court could have concluded that Butler was not presently fit
to be managing conservator with Holly absent Jeremy’s joint appointment. The child had lived
17
most of her life with Jeremy and had only visited Butler a few times. An audio recording of a
telephone call between Butler and Holly showed that Claire called Jeremy “daddy” and Butler
“David.” Most of the witnesses at trial testified that it was critical for Claire to remain with Amber
and Heather because the sisters had grown up together and needed each other. These witnesses
also established that Claire’s life was in Morris County, not in Gatesville. “[S]ignificant
impairment of emotional development may be inferred from uprooting a child,” and the trial court
could have concluded that separation from Jeremy and more time apart from Amber and Heather
would uproot Claire from the life she had known since birth. See In re De La Pena, 999 S.W.2d
521, 529 (Tex. App.—El Paso 1999, no pet.) (citing In re Rodriguez, 940 S.W.2d 265, 273 (Tex.
App.—San Antonio 1997, writ denied)).
We conclude that Jeremy presented more than a scintilla of evidence on the issue of
whether appointment of Claire’s biological parents alone would significantly impair her emotional
development. Because the evidence of violence between Butler and Holly, alone, was sufficient
to rebut the parental presumption, Jeremy rebutted the presumption by a preponderance of the
evidence. After reviewing all the evidence, we cannot conclude that the trial court’s decision was
so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. As a
result, we find the evidence legally and factually sufficient to support the finding that Jeremy
successfully rebutted the parental presumption.
We also conclude that the trial court did not abuse its discretion in appointing Jeremy as
the primary joint managing conservator. Although Section 153.131 sets forth “the standard for
appointing a nonparent as managing conservator, the trial court’s decisions are also governed by
18
Section 153.002, which mandates that ‘[t]he best interest of the child shall always be the primary
consideration . . . in determining the issues of conservatorship and possession of and access to the
child.’” In re H.N.M., No. 06-08-00136-CV, 2009 WL 3365110, at *5 (Tex. App.—Texarkana
Oct. 21, 2009, no pet.) (mem. op.) (quoting TEX. FAM. CODE ANN. § 153.002). Every party at trial,
including Butler, testified that it was important for Claire to continue her relationship with Jeremy
and her sisters. The evidence also showed that, even though he may have known Claire was not
his biological child, Jeremy, not Butler, had provided for Claire all of her life. Claire referred to
Jeremy, not Butler, as her father. We, therefore, find that sufficient evidence supports the trial
court’s finding that appointing Jeremy as the primary joint managing conservator was in Claire’s
best interests.
III. Conclusion
We affirm the trial court’s judgment.
Scott E. Stevens
Justice
Date Submitted: May 30, 2019
Date Decided: May 31, 2019
19
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133 F.3d 911
U.S.v.Phill Gross
NO. 96-1683
United States Court of Appeals,Third Circuit.
Nov 26, 1997
Appeal From: E.D.Pa. ,No.94001592 ,
Cahn, J.
1
Affirmed.
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-31477
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WALTER LEE JOHNSON,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 01-CV-2262
USDC No. 99-CR-50082-7
--------------------
April 17, 2002
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Walter Lee Johnson, a federal prisoner (# 10373-035), moves
this court for a certificate of appealability (“COA”) to appeal
the district court’s summary dismissal of his 28 U.S.C. § 2255
motion. He argues that the district court erred in dismissing
his claim, that his trial counsel had a conflict of interest
rendering counsel’s representation ineffective, without providing
findings and conclusions for the dismissal or conducting an
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 01-31477
-2-
evidentiary hearing. He also contends that the district court
erred in summarily dismissing his claim that his appellate
counsel was ineffective in failing to raise on appeal the claim
of ineffective assistance of trial counsel. Johnson does not
address on COA the issue of the district court’s dismissal of his
remaining 28 U.S.C. § 2255 claims. Therefore, these issues are
waived. See Hughes v. Johnson, 191 F.3d 607, 613 (5th Cir.
1999).
To obtain a COA, Johnson must demonstrate that jurists of
reason would find it debatable whether the district court was
correct in summarily dismissing his 28 U.S.C. § 2255 motion.
Slack v. McDaniel, 529 U.S. 473, 484 (2000). A COA is GRANTED on
the issue whether the district court’s summary dismissal was
correct of Johnson’s claim that his trial counsel had a conflict
of interest. See Hart v. United States, 565 F.2d 360, 362 (5th
Cir. 1978) (findings and conclusions in 28 U.S.C. § 2255 denial
are “plainly indispensable” to appellate review); Myers v. Gulf
Oil Co., 731 F.2d 281, 284 (5th Cir. 1984) (when there is no
apparent reason for the district court’s decision, this court has
not “hesitated to remand the case for an illumination of the
district court’s analysis through some formal or informal
statement of reasons”). COA is DENIED as to all remaining
issues.
The denial of habeas relief is VACATED as to the issue
whether trial counsel had a conflict of interest which rendered
No. 01-31477
-3-
his performance ineffective, the case is REMANDED, and the
district court is instructed to state reasons for the denial of
habeas relief as to this issue and to conduct an evidentiary
hearing regarding this issue if the district court deems a
hearing appropriate. See Dickinson v. Wainwright, 626 F.2d 1184,
1185 (5th Cir. Unit B Sept. 1980) (granting CPC and vacating and
remanding without further briefing); Burton v. Oliver, 599 F.2d
49, 50 & n.3 (5th Cir. 1979) (same).
COA GRANTED ON ISSUE WHETHER JOHNSON’S TRIAL COUNSEL WAS
INEFFECTIVE BECAUSE COUNSEL HAD A CONFLICT OF INTEREST; COA
DENIED ON REMAINING ISSUES; VACATED AND REMANDED FOR FURTHER
PROCEEDINGS.
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700 So.2d 1201 (1997)
Ex parte K.H.
(In re STATE of Alabama v. K.H.).
CR-96-1872.
Court of Criminal Appeals of Alabama.
August 6, 1997.
*1202 James D. Moffatt, Athens, for petitioner.
No brief filed for respondent.
LONG, Presiding Judge.
The petitioner, K.H.,[1] a high school student, filed this petition for a writ of mandamus, asking us to order the Honorable James W. Woodroof, circuit judge for the thirty-ninth judicial circuit, to dismiss the indictment against him. After K.H. was indicted for three counts of distributing a controlled substance and one count of possessing a controlled substance, the Limestone County Board of Education (the "Board") suspended him from regular classes, pursuant to § 16-1-24.1, Code of Alabama 1975, pending disposition of the criminal charges. The Board sent a notice of suspension to K.H.'s parents. The notice stated the following reason for the suspension: "Charges of criminal conduct that are pending which interferes with or obstructs the mission or operations of the Limestone County School System or the safety or welfare of students or employees." K.H. moved to dismiss the indictment, alleging as grounds that his suspension and criminal prosecution for the same conduct violated his right to be free from double jeopardy. Judge Woodroof denied the motion; this petition followed.
Initially, we must determine if a petition for a writ of mandamus is the appropriate vehicle by which to review a pretrial ruling on a motion to dismiss an indictment, which states as a ground a violation of the Double Jeopardy Clause. The Alabama Supreme Court addressed this issue in Ex parte Ziglar, 669 So.2d 133 (Ala.1995), where the Court, departing from the long-established practice of not reviewing double jeopardy issues by way of mandamus,[2] stated:
"We are satisfied that a criminal defendant with a double jeopardy defense should not be foreclosed from pretrial correction of a trial judge's erroneous denial of a plea of former jeopardy. Therefore, the appellate courts of this State will review double jeopardy claims properly presented by petitions for the writ of mandamus. Rule 21(e), Ala.R.App.P. This procedure will adequately protect the interest of a defendant, as emphasized in Abney [v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977)], so as to avoid the personal strain, public embarrassment, and expense of a subsequent criminal trial."
669 So.2d at 135.
The Fifth Amendment to the United States Constitution provides:
"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces or in the militia, when in actual service in time of war or public danger; nor shall any person be subject *1203 for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall property be taken for public use, without just compensation."
(Emphasis added.) See Alabama Constitution of 1901, Art. I, § 9.
K.H. contends that his suspension violates the Double Jeopardy Clause because, he says, the suspension was punitive in nature. K.H. cites United States v. Halper, 490 U.S. 435, 109 S.Ct. 1892, 104 L.Ed.2d 487 (1989), and Crump v. Alabama Alcoholic Beverage Control Board, 678 So.2d 133 (Ala.Civ.App. 1995), cert. denied, 678 So.2d 140 (Ala.1996), in support of his contention. In Halper, the United States Supreme Court held that a civil penalty imposed in conjunction with a criminal prosecution amounts to a double jeopardy violation when the fine is so extreme that it amounts to punishment. In Crump, the appellant was charged with selling alcoholic beverages to a minor. She was acquitted of this criminal charge and was later named in a civil proceeding seeking to revoke her liquor license. Crump lost the civil suit and was fined $1,000. She argued on appeal that she had been twice put in jeopardy because, she said, the fine was punitive in nature. The Court of Civil Appeals, citing Halper, concluded that the purpose of the fine was to punish and held that the appellant had been twice put in jeopardy for the same offense.
Whether a suspension from school imposed pursuant to § 16-1-24.1, and a subsequent criminal prosecution for the offense that formed the basis of the suspension violates the Double Jeopardy Clause is an issue of first impression in Alabama. Other states such as Georgia, Kansas, Minnesota, and North Carolina have addressed this issue and found that these circumstances do not violate double jeopardy principles. See Clark v. State, 220 Ga.App. 251, 469 S.E.2d 250 (1996); In the Matter of C.M.J., 259 Kan. 854, 915 P.2d 62 (1996); In the Matter of the Welfare of E.R.D., 551 N.W.2d 238 (Minn. App.1996); State v. Davis, 485 S.E.2d 329 (N.C.App.1997).
Judge Norton, writing for the Minnesota Court of Appeals in E.R.D., addressed the issue now before this court. Judge Norton in depth, in a well-reasoned opinion, wrote:
"To support his claim that the school suspension is `punishment,' E.R.D. relies on United States v. Halper, 490 U.S. 435, 109 S.Ct. 1892, 104 L.Ed.2d 487 (1989). In Halper, the Supreme Court held that in `rare' instances a civil sanction may qualify as punishment for double jeopardy purposes if the sanction `may not fairly be characterized as remedial, but only as a deterrent or retribution.' Id. at 448-49, 109 S.Ct. at 1901-02. The Minnesota Supreme Court recently issued decisions applying the Halper analysis in the context of civil driver license revocation and administrative prison discipline proceedings, holding that neither proceeding constituted punishment for purposes of double jeopardy. State v. Hanson, 543 N.W.2d 84, 88-90 (Minn.1996) (civil license revocation followed by prosecution for driving under the influence does not violate Double Jeopardy Clause); [State v.] McKenzie, 542 N.W.2d [616] at 620-21 [(Minn.1996)] (disciplining prison inmate with placement in segregation and loss of good time credit served remedial purpose and did not bar subsequent criminal prosecution for same misconduct). The supreme court explained the Halper test:
"`Any sanction that only serves the goals of deterrence and retribution, and cannot be described as remedial, is "punishment" under Halper. In our view, this test permits the imposition of a civil sanction that can be "fairly characterized" as remedial, but also may deter or punish the offender.'
"McKenzie, 542 N.W.2d at 619.
"E.R.D. argues that the suspension here is not sufficiently related to any remedial purpose, but instead was intended only to serve purposes of punishment and deterrence. He contends, without citing legal authority, that the school's sanction must be `narrowly tailored' to serve a remedial purpose. To the contrary, a disciplinary sanction is remedial and does not involve *1204 double jeopardy if it is `rationally related to the remedial goal.' McKenzie, 542 N.W.2d at 620 (quoting United States v. Newby, 11 F.3d 1143, 1145 (3rd Cir.1993), cert. denied, 513 U.S. 834, 115 S.Ct. 111, 130 L.Ed.2d 58 (1994)).
"E.R.D. argues ... that school discipline is certainly punishment for purposes of double jeopardy, because it affects a student's right to obtain an education, as mandated by law. See Minn.Stat. § 120.101, subd. 5 (1994) (requiring compulsory school instruction for children ages 7 through 16). By way of contrast, E.R.D. notes that, in determining that the civil sanction of driver license revocation was not `punishment' for purposes of double jeopardy, the supreme court considered it `crucial' that `[a] driver's license is a privilege... laden with civic responsibilities.' Hanson, 543 N.W.2d at 89. To the extent this distinction has any legal impact, we believe it makes no legal difference in the context of school disciplinary proceedings at issue here. As the state has aptly noted, all students are required to be in school, not just E.R.D. The crucial issue is whether the sanction against a disruptive student serves the remedial educational goals involving all the students, not just E.R.D. Although E.R.D. may have experienced his suspension purely as punishment, we do not review this issue from E.R.D.'s perspective. Whether a particular sanction constitutes punishment for double jeopardy purposes is determined not from `the defendant's perspective,' but rather with reference to `the purposes actually served by the sanction....' Halper, 490 U.S. at 447 n. 7, 109 S.Ct. at 1901 n. 7.
"The supreme court's recent decision regarding double jeopardy in relation to prison disciplinary proceedings guides our review here of school disciplinary proceedings and double jeopardy. In McKenzie, the supreme court held that inmate segregation and loss of good time credit for violent conduct served remedial goals of institutional order and safety, `remedial goals, intended to prevent further disruption of prison security....' McKenzie, 542 N.W.2d at 620. The supreme court then recognized that, in a `rare case,' a disproportionately severe sanction for a minor violation of prison rules could trigger double jeopardy. Id. at 621. The court concluded that 300 days in segregation and a proportionate loss of good time credit did not constitute such a rare case, because the sanction was `not overwhelmingly punitive considering the seriousness of McKenzie's misconduct.' Id.
"We now turn to the purpose that school suspension serves. The Pupil Fair Dismissal Act (the Act) governs a school's dismissal of a student. See Minn.Stat. § 127.29, subd. 1 (1994)."... The Act allows a school to dismiss a pupil on three grounds: (1) `Willful violation of any reasonable school board regulation,' (2) `[w]illful conduct which materially and substantially disrupts the rights of others to an education,' and (3) `[w]illful conduct which endangers the pupil or other pupils, or the property of the school.' Minn.Stat. § 127.29, subd. 2. Each of these grounds serves a remedial goal. Accordingly, we conclude that a student's suspension that falls within these statutory grounds serves remedial goals of safety, institutional order, and protection of the rights of other students to an education. Cf. McKenzie, 542 N.W.2d at 620 (prison discipline, designed to establish institutional order and to protect safety of staff and inmates, serves remedial goals).
"....
"Other states have applied the Halper test in the context of school disciplinary proceedings and have unanimously held that no double jeopardy violation occurred. C.M.J., 915 P.2d at 69 (expulsion of student who had loaded gun in his car located on school property served remedial purpose of ensuring safety and effective administration of school order and discipline); Clark v. State, 220 Ga.App. 251, 469 S.E.2d 250, 252 (1996) (10-day suspension of student for armed robbery of convenience store served remedial purpose of providing for safety and welfare of students by preventing student who confessed to violent crime from returning to school if released from jail); In re Gila County Juvenile Delinquency Action Nos. DEL 6280, DEL *1205 6281, & DEL 6282, 169 Ariz. 53, 816 P.2d 950, 951 (App.1991) (`While the school board's action in expelling a student from school clearly has a punitive effect on the individual student, we believe its primary purpose and function is to protect the other students and the faculty and to preserve the integrity and continuity of the educational process'); see also In re Dandridge, 614 So.2d 129, 131 (La.App.1993) (`administrative proceeding resulting in expulsion does not constitute a criminal prosecution and trigger double jeopardy protection'), writ denied, 616 So.2d 684 (La. 1993). We find no authority holding that a school discipline bars subsequent juvenile prosecution for the same conduct.
"We recognize that the sanction of suspension imposed on E.R.D. undoubtedly carries the `sting of punishment.' It also has a deterrent effect. But because the suspension also serves remedial goals enumerated in the Pupil Fair Dismissal Act, as implemented by the school district in which E.R.D. lives, the suspension may `fairly be characterized as remedial' and passes the test set forth in Halper and applied to disciplinary sanctions in McKenzie, 542 N.W.2d at 619 (quoting Halper, 490 U.S. at 448-49, 109 S.Ct. at 1901-02)."
551 N.W.2d at 241-43. (Footnotes omitted.)
We adopt the reasoning of the Minnesota Court of Appeals in E.R.D.; thus, our inquiry centers on the purpose behind Alabama's school suspension statute. Section 16-1-24.1(b) provides:
"The principal shall notify appropriate law enforcement officials when any person violates local board of education policies concerning drugs, alcohol, weapons, physical harm to a person, or threatened physical harm to a person. If any criminal charge is warranted arising from the conduct, the principal is authorized to sign the appropriate warrant. If that person is a student enrolled in any public school in the State of Alabama, the local school system shall immediately suspend that person from attending regular classes and schedule a hearing at the earliest possible date, which shall not be later than five school days. The decision to suspend or initiate criminal charges against a student, or both, shall include a review and consideration of the student's exceptional status, if applicable, under Chapter 39, or appropriate federal statutory or case law."
The grounds for suspension listed above serve "remedial goals of safety, institutional order, and protection of the rights of other students to an education." E.R.D., 551 N.W.2d at 242. The stated purpose behind the statute is contained in § 16-1-24.1(a), which states, in pertinent part:
"The Legislature finds a compelling public interest in ensuring that schools are made safe and drug-free for all students and school employees. The Legislature finds the need for a comprehensive safe school and drug-free school policy to be adopted by the State Board of Education. This policy should establish minimum standards for classes of offenses and prescribe uniform minimum procedures and penalties for those who violate the policies. It is the intent of the Legislature that our schools remain safe and drug-free for all students and school employees."
Alabama has consistently held that the protection afforded by the Double Jeopardy Clause is not applicable to administrative proceedings. In Jenkins v. State, 367 So.2d 587 (Ala.Cr.App.1978), writ denied, 367 So.2d 590 (Ala.1979), this Court held that the Double Jeopardy Clause is not violated when a prisoner is subjected to a disciplinary action and also criminally prosecuted based on the same conduct. In Coleman v. State, 642 So.2d 532, 534 (Ala.Cr.App.1994), this court, quoting Project: Twenty-Second Annual Review of Criminal Procedure: United States Supreme Court and Courts of Appeals 1991-1992, 81 Geo. L.J. 1029, 1221 (1993), stated: "`The Double Jeopardy Clause does not apply to actions that are not "essentially criminal".... Nor does it apply to disciplinary, parole, probation, or bond revocation hearings, because they are administrative proceedings.'"
We hold, as did the Minnesota Court of Appeals in E.R.D., that a suspension from school imposed pursuant to § 16-1-24.1 and a criminal prosecution for the same conduct does not violate the Double Jeopardy Clause.
*1206 For the foregoing reasons, the petition is due to be denied.
PETITION DENIED.[*]
All the Judges concur.
NOTES
[1] The anonymity of the petitioner is being protected pursuant to Rule 52, Ala.R.App.P.
[2] See Ex parte Spears, 621 So.2d 1255 (Ala. 1993).
[*] Note from the reporter of decisions: On September 10, 1997, the Supreme Court, without opinion, denied a related mandamus petition (1961909).
| {
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} |
In the United States Court of Federal Claims
No. 18-972C
(Filed: April 8, 2019)
********************************** )
BP EXPLORATION & ) Suit for leasehold royalty overpayments
PRODUCTION, INC., ) and interest; jurisdiction; Federal Oil and
) Gas Royalty Management Act, 30 U.S.C.
Plaintiff, ) §§ 1701-59, as amended by the Federal Oil
) and Gas Royalty Simplification and
v. ) Fairness Act; jurisdiction under the Tucker
) Act for a monetary claim; 28 U.S.C. §
UNITED STATES, ) 1491(a) not displaced by 30 U.S.C. §
) 1724(h)(2)(B) for a monetary claim;
Defendant, ) contractual remedy for refund and interest
) supplanted by the statutory remedial
********************************** ) scheme; takings claim for accrued interest
Jonathan A. Hunter and Sarah Y. Dicharry, Jones Walker, LLP, New Orleans, Louisiana,
for plaintiff.
Tanya B. Koenig, Trial Attorney, Commercial Litigation Branch, Civil Division, United
States Department of Justice, Washington, D.C., for defendant. With her on the briefs were
Joseph H. Hunt, Assistant Attorney General, Civil Division, and Robert E. Kirschman, Jr.,
Director, and Allison Kidd-Miller, Assistant Director, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washington, D.C. Of counsel was Joseph D.
Coleman, Attorney-Advisor, Rocky Mountain Regional Solicitor’s Office, United States
Department of the Interior, Lakewood, Colorado.
OPINION AND ORDER
LETTOW, Senior Judge.
Plaintiff BP Exploration & Production, Inc. (“BP”) has brought suit against the United
States (the “government”) acting through the Department of the Interior’s (the “Department’s”)
Office of Natural Resources Revenue (“ONRR”) to recover overpayments of royalties made to
the government between 2004 and 2007 pursuant to lease agreements on several oil and gas
leases in the Gulf of Mexico. The government refunded some, but not all, of the overpaid
royalties claimed by BP and refused to pay interest on the amount refunded.
BP seeks $1,536,785 plus interest for royalty overpayments denied by ONRR. Compl. ¶¶
28, 33-34. In addition, BP seeks interest on the approximately $6.5 million in royalties that
ONRR refunded to BP pursuant to an administrative decision rendered in December 2017.
Compl. ¶¶ 14, 18, 28-29, 42-43. In its complaint, BP advances four claims against the
government. Count I asserts that ONRR owes BP $1,536,785 for royalty overpayments, Compl.
¶¶ 33-35, and Count II avers that ONRR owes BP interest on both the $1,536,785 in unrefunded
overpayments and on the approximately $6.5 million in refunded overpayments, Compl. ¶ 42.
Counts I and II arise under money-mandating provisions of the Federal Oil and Gas Royalty
Management Act of 1982 (“Royalty Management Act”), Pub. L. No. 97-451, 96 Stat. 2447
(codified at 30 U.S.C. §§ 1701-59), as amended by the Federal Oil and Gas Royalty
Simplification and Fairness Act of 1996 (“Royalty Simplification Act”), Pub. L. No. 104-185,
110 Stat. 1700 (1996). Compl. ¶¶ 35, 43. Count III alleges that ONRR breached its leases and
tolling agreements with BP by refusing to refund overpayments and interest. Compl. ¶¶ 45-47.
Count IV claims that ONRR has taken accrued interest owed to BP in violation of the Takings
Clause of the Fifth Amendment. Compl. ¶ 52.
The government has moved to dismiss the complaint pursuant to Rules 12(b)(1) and (6)
of the Rules of the Court of Federal Claims (“RCFC”). Def.’s Mot. to Dismiss Pl.’s Compl.
(“Def.’s Mot.”), ECF No. 10. The issues have been fully briefed, see Pl.’s Opp’n to Def.’s Mot.
to Dismiss (“Pl.’s Opp’n”), ECF No. 13; Def.’s Reply in Supp. of its Mot. to Dismiss Pl.’s
Compl. (“Def.’s Reply”), ECF No. 18, and the court held a hearing on February 26, 2019.
The court concludes that it possesses jurisdiction to hear claims for refunds and interest
denied by the government under the Royalty Management Act. Accordingly, the government’s
motion to dismiss the complaint for lack of subject-matter jurisdiction is denied. In other
respects, unresolved legal and factual issues mean that BP may well have stated a claim upon
which relief can be granted, although the remedial scheme of the Royalty Management Act
limits the types of claims that can be brought. As a result, the government’s motion to dismiss
for failure to state a claim upon which relief can be granted is granted in part and denied in part.
BACKGROUND
A. ONRR’s Audit of BP’s Royalty Payments
BP leases several oil and gas fields in the Gulf of Mexico from the government, and BP
owes royalties to the government based on the value of oil and gas produced from the leased
fields. Compl. ¶ 1. BP may deduct transportation costs from the value of oil and gas produced,
thus reducing the royalties owed. Compl. ¶¶ 8-11, Ex. 1 at 2.1 Deductible transportation costs
include those incurred for the “construction, operation, and maintenance of non-arm’s-length
transportation facilities,” i.e., where BP owns the transportation infrastructure. Compl. ¶ 11, Ex.
1 at 6; see also Hr’g Tr. at 29:9 to 30:3 (Feb. 26, 2019).2
Royalty obligations are governed by the Royalty Management Act, 30 U.S.C. §§ 1701-
59, which establishes obligations for leases executed on federal lands. Amendments by the
Royalty Simplification Act in 1996 added, among other things, procedures for conducting audits
1
Exhibit 1 to the Complaint consists of a copy of the ONRR Director’s decision of
December 11, 2017, regarding BP’s royalty appeal, BP Expl. & Prod. Co., ONRR-14-0020-
OCS, 2017 WL 10662077, at *1 (Dec. 11, 2017). Citations to Exhibit 1 refer to the page
numbering assigned by the court’s electronic case filing system and not to the page number of
the decision.
2
Subsequent references to the transcript of the hearing will omit the date.
2
and requesting corrections of overpayments and underpayments, as well as a limitation on time
for the Department of the Interior to issue a final decision on demands made by lessees. The
Royalty Simplification Act also allowed lessees to recover interest on refunds of overpayments,
although the provision authorizing interest was repealed in 2015 by the Fixing America’s
Surface Transportation Act of 2015 (“FAST Act”), Pub. L. No. 114-94, Div. C, Title XXXII, §
32301, 129 Stat. 1312 (Dec. 4, 2015).
On February 7, 2009, ONRR commenced an audit of calculations of costs claimed by BP
for transporting oil and gas through BP’s Na Kika subsea complex. Compl. ¶ 8, Ex. 1 at 4-5.
The audit covered royalties owed between January 1, 2004, and December 31, 2007. Compl. ¶
10, Ex. 1 at 5. Because BP employed the same methodology to calculate transportation costs for
the Na Kika complex as it used for its other Gulf of Mexico leases, ONRR intended to carry over
audit findings for that complex to other BP leases (collectively, the “Deepwater Properties”).
Compl. Ex. 1 at 5; see also Compl. ¶¶ 15-16 (showing dates covered by BP’s refund request).3
The Deepwater Properties included the Holstein property, but excluded the Mad Dog and Mica
properties. See Compl. Ex. 3 (fourth tolling agreement, which covered the Na Kika complex and
Deepwater Properties and listed covered properties); see also Compl. Ex 1 at 6, 9.
The Royalty Management Act imposes limitations on the periods in which the
government and BP may seek corrections to past royalty payments. See 30 U.S.C. §§
1721a(a)(4) (adjustment period),4 1724(b)(1) (limitation period).5 The Royalty Management Act
3
ONRR contends that BP agreed to carry over audit findings, Compl. Ex. 1 at 4-5,
although BP’s appeal of ONRR’s decision to the Department of Interior’s Board of Land
Appeals contested this point, Compl. Ex. 5 at 7-8.
4
Paragraph 1721a(a)(4) provides:
(4) For purposes of this section, the adjustment period for any obligation shall
be the six-year period following the date on which an obligation became due.
The adjustment period shall be suspended, tolled, extended, enlarged, or
terminated by the same actions as the limitation period in section 1724 of this
title.
30 U.S.C. § 1721a(a)(4).
5
Subsection 1724(b) provides:
(b) Limitation period
(1) In general
A judicial proceeding or demand which arises from, or relates to an
obligation, shall be commenced within seven years from the date on which
the obligation becomes due and if not so commenced shall be barred. If
commencement of a judicial proceeding or demand for an obligation is
barred by this section, the Secretary, a delegated State, or a lessee or its
designee (A) shall not take any other or further action regarding that
3
allows the government and a lessee to toll the period by written agreement. 30 U.S.C. § 1724(d);
see also id. § 1721a(a)(4). BP and ONRR executed a series of seven tolling agreements from
2010 to 2014. Compl. Ex. 1 at 5. The first tolling agreement, executed on November 19, 2010,
tolled the periods for the Na Kika properties from November 30, 2010, through December 31,
2011. Compl. Ex. 1 at 5. The second agreement covered the Na Kika and Deepwater Properties
from February 28, 2011, through December 31, 2011. Compl. Ex. 1 at 5. The third, fourth, and
fifth agreements tolled the periods for both the Na Kika and Deepwater Properties through
February 15, 2014. Compl. Ex. 1 at 5; see also Compl. Ex. 3. The sixth and seventh agreements
tolled the periods for the separate Mad Dog property from May 31, 2013, to February 15, 2014.
Compl. Ex. 1 at 5. In sum, the agreements tolled 1,173 days for the Na Kika complex, 1,083
days for the Deepwater Properties, and 260 days for the Mad Dog property. Compl. Ex. 1 at 9.
On July 13, 2013, ONRR notified BP by e-mail that it was closing the audit of the Na
Kika complex. Compl. Ex. 1 at 7. ONRR issued its final audit report on November 18, 2013,
Compl. Ex. 1 at 8, although ONRR continued to ask BP questions pertaining to the audit into
2014, and BP alleges the audit did not actually end until 2014. See Compl. Ex. 1 at 14, Ex. 5 at
8.
During the audit, BP identified allowable transportation costs for months covered by the
audit that it had not previously deducted. Compl. ¶ 11, Ex. 1 at 7. BP subsequently submitted
two requests for refunds to ONRR. On November 13, 2013, BP requested $6,955,581.89 plus
interest for royalty overpayments for January 2004 through August 2007 for the Na Kika and
obligation, including (but not limited to) the issuance of any order,
request, demand or other communication seeking any document,
accounting, determination, calculation, recalculation, payment, principal,
interest, assessment, or penalty or the initiation, pursuit or completion of
an audit with respect to that obligation; and (B) shall not pursue any other
equitable or legal remedy, whether under statute or common law, with
respect to an action on or an enforcement of said obligation.
(2) Rule of construction
A judicial proceeding or demand that is timely commenced under
paragraph (1) against a designee shall be considered timely commenced as
to any lessee who is liable pursuant to section 1712(a) of this title for the
obligation that is the subject of the judicial proceeding or demand.
(3) Application of certain limitations
The limitations set forth in section 2401, 2415, 2416, and 2462 of Title 28
and section 226-2 of this title shall not apply to any obligation to which
this chapter applies. Section 3716 of Title 31 may be applied to an
obligation the enforcement of which is not barred by this chapter, but may
not be applied to any obligation the enforcement of which is barred by this
chapter.
30 U.S.C. § 1724(b) (emphasis added).
4
Holstein properties. Compl. ¶ 15, Ex. 1 at 7-8. On February 12, 2014, BP requested
$6,619,730.51 plus interest for royalty overpayments for January 2004 through December 2007
for some Deepwater Properties, including additional requests for the Holstein property. Compl.
¶ 16, Ex. 1 at 8. The second request also sought refunds attributable to the Mad Dog and Mica
properties. Compl. ¶ 16, Ex. 1 at 8.6
In February and June 2014, ONRR partially granted BP’s refund requests, refunding BP
$5,556,497.32 of the $13,575,312.40 claimed, plus interest. Compl. ¶¶ 14, 18. ONRR
concluded that the tolling agreements only operated in favor of the government’s claims for
underpayments, and, applying the period specified in 30 U.S.C. § 1724(b), held that BP could
only request refunds for overpayments within seven years of its request. Compl. ¶ 18. ONRR
accordingly denied refunds for months more than seven years from the dates of BP’s requests.
Regarding BP’s November 2013 claim covering the Na Kika and Holstein properties, ONRR
granted refunds for October 2006 through August 2007, but rejected refunds covering January
2004 through September 2006. See Compl. Ex. 1 at 8. Regarding BP’s February 2014 claim for
the Deepwater, Holstein, Mad Dog, and Mica properties, ONRR granted refunds for January
2007 through December 2007, but rejected refunds for January 2004 through December 2006.
Compl. Ex. 1 at 8. BP appealed the decision to the ONRR Director on October 17, 2014.
Compl. ¶ 19.
B. ONRR Director’s Decision on BP’s Appeal of the Audit
The ONRR Director granted BP partial relief some three years later. Although the
decision of December 11, 2017 provided a net benefit for BP, the Director denied some of the
relief sought and reversed some of the relief granted by the initial decision. First, the Director
held that the tolling agreements did apply bilaterally. Compl. Ex. 1 at 10-11. Next, the ONRR
Director found that the applicable deadline for requests was the six-year “adjustment period” of
30 U.S.C. § 1721a(a) and not seven-year “limitation period” of 30 U.S.C. § 1724(b)(1). Compl.
Ex. 1 at 10-14. The ONRR Director reasoned that adopting the seven-year limitation period
would render “superfluous” the six-year adjustment period, the latter of which altered for refunds
the general seven-year rule. Compl. Ex. 1 at 11-13. He ruled that a lessee may not seek a refund
outside of the adjustment period unless requested during an ongoing audit. Compl. Ex. 1 at 12;
see also 30 U.S.C. § 1721a(a)(4). The Director further concluded that BP’s demands of
November 2013 and February 2014 occurred after the audit closed in July 2013, and that the
government’s requests for information after July 2013 were merely to verify information
provided by BP. Compl. Ex. 1 at 13-14. Accordingly, applying the six-year period and the
tolling agreements, ONRR found that the first five months for Na Kika request, first nine months
of the 2013 Holstein request, and first 12 months of the Deepwater Properties request (to include
claims made in 2014 for the Holstein property) remained ineligible for refund. See Compl. Ex.
1. The remaining months previously excluded were now deemed eligible, and the ONRR
6
BP also mentions that the Atlantis property was among those included in the February
2014 refund request. Compl. ¶ 16. Atlantis, however, does not appear among the Deepwater
Properties listed in the fourth tolling agreement, see Compl. Ex. 3, and ONRR’s refund decisions
do not mention this property as among those excluded from the refund, see Compl. Ex. 1 at 8,
15-16. Much like the property’s fabled namesake, the status of the Atlantis property remains
unknown.
5
Director granted a refund of an additional $6,736,368, leaving $1,282,447 not refunded. See
Compl. ¶¶ 14, 18, 28.7
The ONRR Director, however, found that $254,338 of the initial refund was improper
and had to be returned to the government. See Compl. ¶ 28, Ex. 1 at 16-17. Specifically,
$188,821 for the Mad Dog property and $65,517 for the Mica property should not have been
refunded. Compl. ¶ 28, Ex. 1 at 16-17. The Mica property was not covered by the tolling
agreement and the request was thus untimely, while the Mad Dog property’s tolling agreement
only covered the latter nine months of 2007 and not the 12 months refunded. Compl. ¶ 28, Ex. 1
at 16-17. Notably, however, had ONRR applied the seven-year limitation period urged by BP,
the $1,282,447 not refunded and the $254,338 BP had to return would have been timely. See
also Compl. Ex. 1 at 10.
Finally, the ONRR Director denied interest on the additional $6.5 million refunded to BP
pursuant to the appeal. Compl. ¶ 28. While BP’s appeal was pending before the Director,
Congress had enacted the FAST Act on December 4, 2015, amending 30 U.S.C. § 1721 by
removing the requirement for ONRR to pay interest on overpayments refunded to lessees. FAST
Act, Pub. L. No. 114-94, § 32301, 129 Stat. at 1741; see also 30 U.S.C. § 1721(h) (2012).
ONRR reasoned that this statutory change barred interest on refunds granted after enactment,
even if the refund request was made, and interest had accrued, prior to enactment of the FAST
Act. Compl. Ex. 1 at 14-15.
BP appealed the ONRR Director’s decision to the Interior Board of Land Appeals
(“Board of Land Appeals”) on December 29, 2017. Compl. Ex. 5 at 10. BP argued that the
FAST Act should not be applied retroactively and that ONRR incorrectly applied the six-year
adjustment period instead of the seven-year limitation period. Compl. Ex. 5 at 6. BP reiterated
its argument that despite ONRR’s finding that the audit ended in July 2013, the audit actually
extended into 2014, which would also make the refund requests timely for all periods sought.
Compl. Ex. 5 at 8. Finally, BP contended that ONRR was statutorily time-barred from seeking
repayment of improper refunds relating to the Mad Dog and Mica properties. Compl. Ex. 5 at 6.
Ultimately, the Interior Board of Land Appeals dismissed the appeal for lack of
jurisdiction on June 21, 2018. Compl. Ex. 6 (dismissal decision).8 The Royalty Management
Act provides that if the Secretary of the Interior (the “Secretary”) does not issue a final decision
within 33 months from the date the proceeding commences, the Secretary is presumed to have
issued a decision affirming the agency’s prior decision. 30 U.S.C. § 1724(h).9 The 33-month
7
Although not explicitly stated in the complaint or the ONRR Director’s decision, the
court calculates the amount of $6,736,368 by subtracting the June 2014 refund amount from the
total requested and then subtracting the amount the Director refused to refund, $1,282,447, for a
total additional refund of $6,736,368.
8
A decision by the Board of Land Appeals constitutes final agency action. See 43 C.F.R.
§ 4.21(d).
9
Subsection 1724(h) provides as follows:
6
period ended in early 2018. Compl. Ex. 5 at 9, Ex. 6. Upon expiration, the lessee may seek
judicial review within 180 days of receipt of notice of final agency action. 30 U.S.C. §
1724(h)(2), (j). BP sought judicial review in this court on July 6, 2018. Compl. at 1.
STANDARDS FOR DECISION
A. Rule 12(b)(1) - Lack of Subject-Matter Jurisdiction
The Tucker Act provides this court with jurisdiction over “any claim against the United
States founded either upon the Constitution, or any Act of Congress or any regulation of an
executive department, or upon any express or implied contract with the United States, or for
liquidated or unliquidated damages in cases not sounding in tort.” 28 U.S.C. § 1491(a)(1). The
(h) Appeals and final agency action
(1) 33-month period
Demands or orders issued by the Secretary or a delegated State are subject
to administrative appeal in accordance with the regulations of the
Secretary . . . . The Secretary shall issue a final decision in any
administrative proceeding, including any administrative proceedings
pending on August 13, 1996, within 33 months from the date such
proceeding was commenced or 33 months from August 13, 1996, which is
later. The 33-month period may be extended by any period of time agreed
upon in writing by the Secretary and the appellant.
(2) Effect of failure to issue decision
If no such decision has been issued by the Secretary within the 33-month
period referred to in paragraph (1)—
(A) the Secretary shall be deemed to have issued and granted a decision in
favor of the appellant as to any nonmonetary obligation and any
monetary obligation the principal amount of which is less than
$10,000; and
(B) the Secretary shall be deemed to have issued a final decision in favor
of the Secretary, which decision shall be deemed to affirm those issues
for which the agency rendered a decision prior to the end of such
period, as to any monetary obligation the principal amount of which is
$10,000 or more, and the appellant shall have a right to judicial
review of such deemed final decision in accordance with Title 5.
30 U.S.C. § 1724(h) (emphasis added).
BP and the government disagreed about when the 33–month period expired, but both
agreed that its expiration precluded the Board of Land Appeals from rendering a decision. See
Compl. Ex. 6 at 2.
7
Tucker Act does not, however, provide a plaintiff with any substantive rights. United States v.
Testan, 424 U.S. 392, 398 (1976). To establish this court’s jurisdiction under the Tucker Act, “a
plaintiff must identify a separate source of substantive law that creates the right to money
damages.” Fisher v. United States, 402 F.3d 1167, 1172 (Fed. Cir. 2005) (en banc in relevant
part) (citing United States v. Mitchell, 463 U.S. 206, 216 (1983); Testan, 424 U.S. at 398). If a
plaintiff fails to raise a claim under a money-mandating provision, this court “lacks jurisdiction,
and the dismissal should be for lack of subject matter jurisdiction.” Jan’s Helicopter Serv., Inc.
v. Federal Aviation Admin., 525 F.3d 1299, 1308 (Fed. Cir. 2008) (quoting Greenlee Cty. v.
United States, 487 F.3d 871, 876 (Fed. Cir. 2007)).
A claim in this court is “barred unless the petition thereon is filed within six years after
such claim first accrues.” 28 U.S.C. § 2501. This six-year statute of limitations is jurisdictional
and is not susceptible to equitable tolling or any of the other doctrines that would excuse an
untimely claim. See John R. Sand & Gravel Co. v. United States, 552 U.S. 130, 134-38 (2008).
BP, as plaintiff, must establish jurisdiction by a preponderance of the evidence. Trusted
Integration, Inc. v. United States, 659 F.3d 1159, 1163 (Fed. Cir. 2011) (citing Reynolds v. Army
& Air Force Exch. Serv., 846 F.2d 746, 748 (Fed. Cir. 1988)). When ruling on the government’s
motion to dismiss for lack of jurisdiction, the court must “accept as true all undisputed facts
asserted in the plaintiff’s complaint and draw all reasonable inferences in favor of the plaintiff.”
Id. at 1163 (citing Henke v. United States, 60 F.3d 795, 797 (Fed. Cir. 1995)). “If a court lacks
jurisdiction to decide the merits of a case, dismissal is required as a matter of law.” Gray v.
United States, 69 Fed. Cl. 95, 98 (2005) (citing Ex parte McCardle, 74 U.S. (7 Wall.) 506, 514
(1868); Thoen v. United States, 765 F.2d 1110, 1116 (Fed. Cir. 1985)); see also RCFC 12(h)(3)
(“If the court determines at any time that it lacks subject-matter jurisdiction, the court must
dismiss the action.”).
B. Rule 12(b)(6) - Failure to State a Claim Upon Which Relief Can be Granted
A complaint will survive a motion to dismiss under RCFC 12(b)(6) if it “contain[s]
sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Id. The factual matters alleged “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).” Twombly, 550 U.S. at 555-56 (citations omitted).
When reviewing the complaint, “the court must accept as true the complaint’s undisputed
factual allegations and should construe them in a light most favorable to the plaintiff.”
Cambridge v. United States, 558 F.3d 1331, 1335 (Fed. Cir. 2009) (citing Papasan v. Allain, 478
U.S. 265, 283 (1986) (additional citation omitted)). Conclusory statements of law and fact,
however, “are not entitled to the assumption of truth” and “must be supported by factual
allegations.” Iqbal, 556 U.S. at 679. “‘[N]aked assertions[s]’ devoid of ‘further factual
enhancement”’ are insufficient to state a claim. Id. at 678 (quoting Twombly, 550 U.S. at 557);
Accord Bradley v. Chiron Corp., 136 F.3d 1317, 1322 (Fed. Cir. 1998) (“Conclusory allegations
of law and unwarranted inferences of fact do not suffice to support a claim.”).
8
ANALYSIS
A. Jurisdiction Over BP’s Claims Under the Tucker Act
The government argues that the Royalty Management Act contains a detailed remedial
scheme that displaces the Tucker Act. Def.’s Mot. at 10-14. In consequence, the government
avers that 30 U.S.C. § 1724(h) requires that judicial review be pursued only in federal district
court. Id. at 11. As quoted earlier, Paragraph (2) of Subsection 1724(h) provides in pertinent
part that “the appellant shall have a right to judicial review of such deemed final decision in
accordance with Title 5.” 30 U.S.C. § 1724(h)(2) (emphasis added). While judicial review
pursuant to Subsection 1724(h) does not specify where a lessee must file its complaint, the
government interprets “in accordance with Title 5” as invoking not only the standard of review
of the Administrative Procedure Act (the “APA”), but also implicitly routing relief to district
courts, as this court lacks authority to invoke the APA as a source of jurisdiction. Def.’s Mot. at
13.
This argument ignores that the APA is not itself an independent grant of jurisdiction to
any court, whether to district courts or this court. See Califano v. Sanders, 430 U.S. 99, 107
(1977); Shinyei Corp. of Am. v. United States, 355 F.3d 1297, 1304 (Fed. Cir. 2004) (“It is well
established that the APA does not afford an implied grant of subject-matter jurisdiction
permitting federal judicial review of agency action.”) (quoting Califano, 430 U.S. at 107). The
APA also notably waives sovereign immunity only for claims “seeking relief other than money
damages.” 5 U.S.C. § 702. That adjudication under the APA, as contrasted to merely invoking
and using its standard or review, expressly excludes monetary relief gives the government no
pause. As it would have it, if relief is warranted, the district court can issue a declaratory
judgment reversing the agency and a remand to the agency for relief in accordance with the
court’s equitable decision. Hr’g Tr. at 18:11 to 19:21; see Def.’s Reply at 12. In this respect, the
government ignores Delano Farms Co. v. California Table Grapes Commission, 655 F.3d 1337,
1347 (Fed. Cir. 2011), in which the court commented that the APA “cannot serve as a ‘backdoor’
to . . . district court jurisdiction over a monetary claim.” Even so, the government bases its
displacement argument on the statutory language used to invoke judicial review, the express
waiver of several specified statutes of limitations, and the legislative history of the Royalty
Simplification Act.10
10
For purposes of its motion only, the government assumes that the former provisions of
Section 1721 regarding interest on refunds of overpayments were money-mandating prior to its
repeal by the FAST Act. Def.’s Mot. at 10 n. 3. The government also asserts without
explanation that Sections 1721a and 1724 are not money-mandating. Id. at 10. Because the
Tucker Act predicates this court’s jurisdiction on the plaintiff’s invoking a money-mandating
statute, e.g., Jan’s Helicopter Serv., 525 F.3d at 1308 (quoting Greenlee Cty., 487 F.3d at 876),
the court must address the money-mandating character of these statutes as part of its
jurisdictional inquiry, see, e.g., Fisher, 402 F.3d at 1173.
Prior to the FAST Act, Subsection 1721(j) stated in part: “If the estimated payment
exceeds the actual royalties due, interest is owed on the overpayment.” 30 U.S.C. § 1721(j)
(2014); see also id. § 1721(h) (“Interest shall be allowed and paid or credited on any
9
BP counters that Subsection 1724(h) is silent as to which court has jurisdiction and
contains no waiver of sovereign immunity. Pl.’s Opp’n at 2. It avers that the remedial scheme
of 30 U.S.C. § 1724(h) does not displace the Tucker Act. Id. at 16. Rather, whether this court or
a district court has jurisdiction would depend on the relief sought. “The Tucker Act waives
sovereign immunity with regard to actions for money damages . . . and the APA waives
sovereign immunity for actions ‘seeking relief other than monetary damages.’” Id. at 22 (citing
28 U.S.C. § 1491 and quoting 5 U.S.C. § 702). BP contends that the Royalty Management Act,
along with the Outer Continental Shelf Lands Act, Pub. L. No. 95-372, 43 U.S.C. §§ 1331-56b,
provide the money-mandating statutes required to invoke the Tucker Act. Pl.’s Opp’n at 5. Thus
in short, BP argues that the text of the Royalty Management Act and the APA, the legislative
intent of the Royalty Simplification Act, and precedent in the circuit courts of appeals which had
previously ruled on jurisdiction all point to this court as the proper forum for addressing BP’s
refund and interest claim.
“The Tucker Act is displaced . . . when a law assertedly imposing monetary liability on
the United States contains its own judicial remedies. In that event, the specific remedial scheme
establishes the exclusive framework for the liability Congress created under the statute.” United
States v. Bormes, 568 U.S. 6, 12 (2012) (citing Hinck v. United States, 550 U.S. 501, 506
(2007)). “A remedy furnished by statute preempts a more general remedy.” E.g., Shearin v.
United States, 992 F.2d 1195, 1196 (Fed. Cir. 1993) (collecting cases). By a “detailed remedial
scheme,” the Supreme Court referred to one which “‘set out a carefully circumscribed, time-
limited, plaintiff-specific’ cause of action [and] ‘precisely define[d] the appropriate forum.”’
Bormes, 568 U.S. at 15 (quoting Hinck, 550 U.S. at 507). In short, displacement occurs when
another statute “enables claimants to pursue in court the monetary relief contemplated by the
statute” “[w]ithout resort to the Tucker Act.” Id. at 15. “But where two statutes are ‘capable of
co-existence, it is the duty of the courts, absent a clearly expressed congressional intention to the
contrary, to regard each as effective.’” Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1017 (1984)
(quoting Regional Rail Reorganization Act Cases, 419 U.S. 102, 133-34 (1974)) (subsequent
citations omitted) (discussing Tucker Act displacement specifically).
“To determine whether a statutory scheme displaces Tucker Act jurisdiction, a court must
‘examin[e] the purpose of the [statute], the entirety of its text, and the structure of review that it
establishes.”’ Horne v. Department of Agriculture, 569 U.S. 513, 527 (2013) (quoting United
overpayment.”). Section 1721a provides the process for a lessee to request a refund due to
“overpayment of an obligation,” id. § 1721a(a)(1), and Section 1724 describes the rights and
process to enforce a royalty obligation, to include enforcing a “demand” arising from or relating
to a lessee’s royalty obligation, id. § 1724(b), (c), (i), (j). “‘Obligation’ means . . . any duty of
the Secretary . . . to pay, refund, offset, or credit monies including . . . principal . . . [or] interest.”
Id. § 1702(25)(A). A “refund” is “the return of an overpayment,” id. § 1702(30) and an
“overpayment” is “any payment by a lessee . . . in excess of an amount legally required to be
paid . . . and includes the portion of any estimated payment . . . in excess of the royalties due,” id.
§ 1702(27). A “demand” includes “a separate written request by a lessee . . . which asserts an
obligation due the lessee.” Id. § 1702(23)(B). The non-discretionary nature of the statutory text
requiring refunds with interest to the lessee when properly requested therefore indicates that
these provisions are money-mandating. The Act also mandates payment of refunds by the
Secretary of the Treasury. Id. § 1721a(b)(2).
10
States v. Fausto, 484 U.S. 439, 444 (1988) (alteration in original)). “[T]he proper inquiry [for
displacement] is not whether the statute ‘expresses an affirmative showing of congressional
intent to permit recourse to a Tucker Act remedy,’ but ‘whether Congress has in the [statute]
withdrawn the Tucker Act grant of jurisdiction to the Court of Claims . . . .’” Ruckelshaus, 467
U.S. at 1017 (quoting Regional Rail Reorganization Act Cases, 419 U.S. at 126) (alteration in
original).
Displacement requires an unambiguous intent, even where a comprehensive remedial
scheme is present. E.g., Ruckelshaus, 467 U.S. at 1017; see also Acceptance Ins. Co. Inc. v.
United States, 503 F.3d 1328, 1336 (Fed. Cir. 2007) (“[W]ithdrawal of Tucker Act jurisdiction
by implication is disfavored, which means that a court must find that the statute at issue . . .
reflects an unambiguous congressional [] intent to displace.”). Consequently, the Supreme Court
has ruled that “a comprehensive regulatory statute” does not inherently displace the Tucker Act.
Ruckelshaus, 467 U.S. at 991, 1017. In Ruckelshaus, the Supreme Court found that the Federal
Insecticide, Fungicide, and Rodenticide Act was a “comprehensive regulatory statute” that
created a “mandatory data-licensing scheme” between private parties and the Environmental
Protection Agency, with an administrative process followed by judicial review to resolve
disputes involving compensation. Id. at 991-97, 1017. A district court had held that several data
disclosure provisions constituted a Fifth Amendment Taking but that the remedies afforded by
the statute were inadequate and the Tucker Act was displaced by the comprehensive scheme, and
thus enjoined enforcement of those provisions. Id. at 999-1000. The Supreme Court, in vacating
the district court’s decision, held that while a Fifth Amendment Taking did occur, a remedy
under the Tucker Act remained because Congress had not clearly withdrawn its jurisdiction and
the district court could have construed the statues as complimentary. Id. at 1016-17.
1. Statutory scheme for refund requests under the Royalty Management Act.
The Royalty Simplification Act’s amendments to the Royalty Management Act
established an administrative process for both the government and a lessee to correct royalty
payments, subject to judicial review. See Royalty Simplification Act §§ 4, 5 (codified at 30
U.S.C. §§ 1721a, 1724). A lessee must resort to the administrative process before seeking
judicial review. See 30 U.S.C. § 1724(h); see also 43 C.F.R. § 4.21(c) (providing that a
Department of Interior Director’s decision that remains administratively appealable is not final
agency action).
A lessee may seek a refund of an overpayment within “a reasonable period of time” and
within the “adjustment period.” Id. § 1721a(a)(1). The adjustment period is a “six-year period
following the date on which an obligation became due,” but the period may be tolled for
enumerated reasons, such as mutual agreement of the lessee and the government. Id. §
1721a(a)(4); see also id. § 1724(d). An obligation becomes due “when the right to enforce the
obligation is fixed,” which occurs on the last day of the month following the month of
production. Id. § 1724(c). Outside of the adjustment period, a refund may only be requested
during an audit of the royalty paid or due. Id. § 1721a(a)(3).
A lessee seeks a refund by making a written request to the Secretary that is identified as a
“demand” and describes when and why the overpayment occurred and to whom it is owed. 30
U.S.C. § 1721a(b). The Secretary must pay or deny the refund within 120 days of receipt. Id. §
11
1721a(b)(3). A lessee’s refund demand is made to ONRR. ONRR’s decision to pay or deny the
refund constitutes an order, see 30 C.F.R. § 1290.102 (defining “order” to include a “decision to
deny a lessee’s . . . written request that asserts an obligation due the lessee”), and is appealable
within a prescribed time to the ONRR Director, id. § 1290.105(a). The decision of the ONRR
Director is appealable within a prescribed time to the Interior Board of Land Appeals. Id. §
1290.108; see also 43 C.F.R. § 4.1(b)(2) & subpt. E. A decision by the Board of Land Appeals
constitutes final agency action. 43 C.F.R. § 4.21(d).
The Secretary must, however, “issue a final decision in any administrative proceeding . . .
within 33 months from the date such proceeding was commenced,” though the parties may agree
to extend the period. 30 U.S.C. § 1724(h)(1). An administrative proceeding encompasses “any
Department of the Interior agency process in which a demand, decision or order issued by the
Secretary . . . is subject to appeal or has been appealed.” Id. § 1702(18). A demand includes a
“written request by a lessee . . . which asserts an obligation due the lessee . . . that provides a
reasonable basis to conclude that the obligation in the amount of the demand is due and owing.”
Id. § 1702(23)(B).
If there is no final decision after 33 months, “the Secretary shall be deemed to have
issued a final decision . . . affirm[ing] those issues for which the agency rendered a decision prior
to the end of [the 33-month] period” as to any monetary obligation exceeding $10,000. 30
U.S.C. § 1724(h)(2)(A)-(B). A lessee without a final decision after the time has expired has a
“right to judicial review of such deemed final decision in accordance with Title 5.” Id. §
1724(h)(2)(B). No judicial forum for review is specified. The lessee may seek review beyond
the seven-year limitation period “so long as such judicial proceeding is commenced within 180
days from receipt of notice by the lessee . . . of the final agency action.” Id. § 1724(j).
2. Whether unambiguous intent to displace the Tucker Act exists.
The Royalty Management Act, as amended, does provide a remedial scheme for
requesting refunds by establishing requirements for a lessee to pursue refund demands with
ONRR and requiring a final agency decision within 33 months. See 30 U.S.C. §§ 1721a(4),
1724(b), (h). It contains time limits for requesting refunds, commencing demands, or initiating
judicial proceedings, and specifies when claims accrue and methods to terminate or toll the time
limits. Id. §§ 1721a, 1724(b)-(d), (e), (j). It identifies plaintiffs in refund demands as lessees or
their designees. Id. § 1721a. The cause of action available to a lessee when the Secretary fails to
act is, as stated previously, “judicial review [of the agency’s last decision] . . . in accordance with
Title 5.” Id. § 1724(h)(2)(B).
As noted earlier, the existence of a remedial scheme does not inherently displace the
Tucker Act. Rather, the existence of a remedial scheme requires that the terms of that scheme
govern the process for relief and the relief afforded. See Bormes, 568 U.S. 12-14; see also
Ruckelshaus, 467 U.S. at 992-97.11 Here, the Royalty Management Act contains no express
11
BP argues that the Royalty Management Act does not waive sovereign immunity, see
Pl.’s Opp’n at 29, but the court disagrees. It allows a lessee to request a monetary refund and, if
denied, to seek judicial review, which could result in a grant of the refund. 30 U.S.C. § 1724(h).
The Act also mandates payment of refunds by the Secretary of the Treasury. Id. § 1721a(b)(2).
12
requirement of where judicial review must be sought. Therefore, for the Royalty Management
Act’s remedial scheme to displace this court’s jurisdiction under the Tucker Act, the Royalty
Management Act’s invocation of the APA must necessarily imply judicial review before a court
other than this court. The court finds it does not and that no displacement of this court’s
jurisdiction occurs. Rather, existing jurisdictional principles determine the proper forum. See
Ruckelshaus, 467 U.S. at 1016-17; Straughter v. United States, 120 Fed. Cl. 119, 125 (2015). As
a result, claims by a lessee against the government for money damages come to this court, and
claims against a lessee or by a lessee seeking relief other than money damages head to a district
court.
Merely invoking the APA when permitting judicial review does not deprive this court of
jurisdiction. The APA waives sovereign immunity with respect to equitable relief sought against
the United States and provides a standard for reviewing administrative decisions. See 5 U.S.C. §
702. It does not channel relief to any specific court. See id. (referring to “a court of the United
States”). This court’s Tucker Act jurisdiction encompasses monetary claims against the
government not sounding in tort and disputes regarding government contract solicitations and
award decisions. 28 U.S.C. § 1491. A claim challenging an agency action can therefore
properly arise under the Tucker Act, and when it does, this court invokes the standards of review
under the APA when reviewing the agency’s action.12
Review under the APA is pertinent for a number of types of claims before this court, and
the court has a specific rule in place to facilitate review in such cases. See, e.g., RCFC 52.1(a)
(“When proceedings before an agency are relevant to a decision in a case, the administrative
record of those proceedings must be certified by the agency and filed with the court.”).
For example, the Tucker Act expressly invokes the APA regarding this court’s review of
agency procurement decisions involving contract solicitations, bid evaluations, and contract
awards. 28 U.S.C. § 1491(b)(1), (4). It requires this court to review the agency’s decisions
“pursuant to the standards set forth in section 706 of Title 5,” i.e., the standard of review
prescribed in the APA. Id. § 1491(b)(4). And, for military service members seeking monetary
payments or disability benefits in this court under the Tucker Act, it is “well established that
judicial review of military correction boards is conducted under the APA.” Walls v. United
States, 582 F.3d 1358, 1367 (Fed. Cir. 2009) (citations omitted); see also Metz v. United States,
466 F.3d 991, 998 (Fed. Cir. 2006) (“[T]he Court of Federal Claims reviews [a military board]
action under the same standard as any other agency action, [which is] whether the decision is
arbitrary, capricious, unsupported by substantial evidence, or contrary to law.”) (citing Porter v.
United States, 163 F.3d 1304, 1312 (Fed. Cir. 1998)). Contrastingly, if correction of a military
board’s decision would not mandate compensation, this court would lack jurisdiction. See, e.g.,
Murphy, 93 F.2d at 874. The court accordingly invokes the rubric of the APA to review an
agency action when the claim arises under a grant of jurisdiction to this court independent of the
12
A suit seeking “relief other than money damages” under the APA would not be
reviewable by this court, except for government procurement decisions, because the agency’s
action would not be money-mandating within this court’s Tucker Act jurisdiction. See Heuss v.
United States, 315 Fed. Appx. 255, 257 (Fed. Cir. 2008) (“[T]he Court of Federal Claims does
not have jurisdiction to hear cases arising under the APA.”) (citing Murphy v. United States, 993
F.2d 871, 874 (Fed. Cir. 1993) (emphasis added).
13
APA. See Martinez v. United States, 333 F.3d 1295, 1313-14 (Fed. Cir. 2003) (“To be sure, in
monetary actions brought under the Tucker Act, the . . . Court of Federal Claims [has] often
reviewed [military personnel decisions] . . . . [It has] treated a claim for back pay within [its]
jurisdiction as an appropriate occasion for review the actions of the [military]. And in doing so,
[it has] granted relief [if it has] found that the [military’s] decision is arbitrary, capricious,
unsupported by substantial evidence, or contrary to law.”) (citations and internal quotations
omitted).
BP presents claims arising under the Tucker Act, as BP seeks monetary damages against
the United States arising from a money-mandating statute, mainly the Royalty Management Act.
See generally Compl. That the court must proceed by reviewing the agency’s decisions under
the APA standard rather than conducting a de novo determination of the facts presents no
impediment to this court’s jurisdiction. Put simply, the court is not exercising jurisdiction over
claims arising under the APA. Rather, the court is exercising jurisdiction under the Tucker Act,
and will review the underlying agency decision pursuant to the standards of the APA and RCFC
52.1, just as it would for a government procurement case or a military pay or disability case.
The government asks the court to distinguish between the language used to invoke the
APA by the Tucker Act regarding procurement protests and by the Royalty Management Act.
Def.’s Mot. at 13-14. While the Tucker Act states that this court reviews an agency’s
procurement decision “pursuant to the standards set forth in section 706 of Title 5,” 28 U.S.C. §
1491(b)(4) (emphasis added), the Royalty Management Act grants a “right to judicial review . . .
in accordance with Title 5,” 30 U.S.C. § 1724(h)(2)(B) (emphasis added). The government
contends there is an “unambiguous” difference in this express language, specifically that
“pursuant to the standards” merely imports the standard, but “in accordance with title 5” also
imports the forum implicit in the equitable relief permitted by APA review. Def.’s Mot. at 13-
14. Yet, directing judicial review “in accordance with Title 5” neither explicitly nor implicitly
connotes exclusive jurisdiction in the district courts. As the government’s own motion noted,
“the prepositional phrase ‘pursuant to’ carries the meaning of ‘. . . in accordance with.”’ Def.’s
Mot. at 13 (quoting Baird v. Sonnek, 944 F.2d 890, 893 (Fed. Cir. 1991)). Thus, the introductory
phrases of both statutes are on a par with each other. More tellingly, other remedial schemes that
displace the Tucker Act specify a particular forum of review, including those that invoke the
APA.
For example, the Federal Crop Insurance Reform and Department of Agriculture
Reorganization Act of 1994 (“Agriculture Reorganization Act”), Pub. L. No. 103-354
(amending, among other provisions, 7 U.S.C. §§ 6991-7002), creates one remedial scheme
invoking the APA, see St. Bernard Parish Gov’t v. United States, 916 F.3d 987, 991 (Fed. Cir.
2019). When St. Bernard Parish brought suit against the Department of Agriculture in this court
under the Tucker Act invoking a contract theory, the Court of Appeals for the Federal Circuit
affirmed the trial court’s dismissal of the action, finding that Congress had “provided for such
claims to be addressed [administratively], followed by judicial review in a federal district court.”
Id. at 991. The Agriculture Reorganization Act stated that a “final determination of the
[Department of Agriculture’s National Appeals] Division shall be reviewable and enforceable by
any United States district court of competent jurisdiction in accordance with chapter 7 of Title
5.” 7 U.S.C. § 6999 (emphasis added); St. Bernard Parish Gov’t, 916 F.3d at 997. Similarly, the
Medicare Act displaces the Tucker Act because it specifies “district court” review “pursuant to
14
the applicable provisions under chapter 7 of Title 5.” 42 U.S.C. § 1395oo(f)(1); accord St.
Vincent’s Med. Ctr. v. United States, 32 F.3d 548, 550 (Fed. Cir. 1994) (citing 42 U.S.C. §
1395oo(f)(1)).
Statutes found to displace the Tucker Act absent reference to the APA also identify the
forum with particularity. The Fair Credit Reporting Act specifies that “jurisdiction will lie ‘in
any appropriate United States district court, . . . or any other court of competent jurisdiction,’”
and thus a claimant could “pursue in court the monetary relief contemplated by the statute”
“[w]ithout resort to the Tucker Act.” Bormes, 568 U.S. at 15 (quoting 15 U.S.C. § 1681p); see
also Horne, 569 U.S. at 527-28 (relying on the specification of district court review in the
Agricultural Marketing Agreement Act); Alpine PCS, Inc. v. United States, 878 F.3d 1086, 1093-
94 (Fed. Cir. 2018) (relying on the specification in the Communications Act of the D.C. Circuit
as the forum to review orders by the Federal Communication Commission); Shearin, 992 F.2d at
1196 (A request for an award of attorney fees under the Criminal Justice Act “shall be made to
the district court [or the] appellate court before which the attorney provided representation.”)
(quoting 18 U.S.C. § 3006A(d)(4)).13
In contrast, statues that do not specify a forum have been held to not displace the Tucker
Act. See Abbey v. United States, 745 F.3d 1363, 1369-70 (Fed. Cir. 2014) (distinguishing the
Fair Credit Reporting Act from the Fair Labor Standards Act by finding that the latter act did not
displace the Tucker Act because designating “‘any Federal or State court of competent
jurisdiction’ . . . does not specify a forum that is contrary to that specified by the Tucker Act.”).
To sum, statutes found to displace the Tucker Act are unambiguous as to where
jurisdiction lies. What distinguishes the remedial scheme in the Royalty Management Act from
those statutes that displace the jurisdictional grant of the Tucker Act are statutorily-specified
forums of review. Such specification “afford[s] . . . a ready avenue to bring . . . claims,” Horne,
13
The government cites to Colorado Dep’t of Human Servs. v. United States, 74 Fed. Cl.
339 (2006), where this court held that “appeal and review . . . for purposes of chapter 7 of . . .
Title 5” under the Randolph-Sheppard Act precluded this court’s jurisdiction, id. at 347 n.7
(citing 20 U.S.C. § 107d-2) (emphasis added). The Randolph-Sheppard Act gives “blind
vendors a priority to operate vending facilities on federal property,” id. at 341, and contains a
“comprehensive scheme for the resolution of disputes,” id., where an arbitration panel must first
issue a decision, which is then subject to ‘“appeal and review . . . for purposes of chapter 7 of . . .
Title 5,”’ id. at 345 (quoting 20 U.S.C. § 107d-2) (emphasis added). The claim arose as a protest
to the Air Force’s decision to let a dining facility contract with the plaintiff expire and thus allow
the Air Force to perform the services in-house. Id. at 341-42. Plaintiffs sought a preliminary
injunction in this court pending the decision of the arbitration panel. Id. at 340. The court held it
lacked jurisdiction to issue an injunction because it lacked jurisdiction to review an arbitration
panel’s decision, either under the APA (because the APA is not a jurisdictional statute) or under
the Tucker Act. Id. at 347-48. While the court found the Tucker Act displaced by the Randolph-
Sheppard Act’s remedial scheme, it was not evident that Tucker Act jurisdiction would have
existed regardless, and the court even “question[ed] whether a ‘procurement’ exists in this case.”
Id. at 348. At bottom, even though no forum was specified by the statute, it appears that no
claim in that case was or could have been brought within Tucker Act jurisdiction.
15
569 U.S. at 527, and “precisely define[s] the appropriate forum,” Hinck, 550 U.S. at 506-07. The
Royalty Management Act does neither.
Furthermore, the general reference to APA review in Subparagraph 1724(h)(2)(B) stands
in contrast to other portions of the Royalty Management Act in which district courts are
expressly designated as the appropriate forum for certain types of actions. Prior to 1996, district
courts were empowered to compel compliance with a subpoena issued by the Department, 30
U.S.C. § 1717(b), to review on the administrative record civil penalties issued by the
Department, id. § 1719(j), to hear civil actions for injunctive and specific enforcement brought
by the Attorney General, id. § 1722, and to hear suits brought by a state against a lessee, id. §
1734(b). After amendment by the Royalty Simplification Act in 1996, district courts were
further enabled to review Department orders regarding state delegation proposals. Id. § 1735(g).
Each such grant of jurisdiction to the district courts specifies which district court has jurisdiction.
E.g., id. § 1719(j) (where the alleged violation took place); id. § 1722(b) (where the violation
allegedly occurred or where the defendant is found or transacts business); id. § 1735(g) (district
that includes the capital of the affected state). That Congress specifically identified district
courts as the judicial forum for five types of claims, but did not do so for Subparagraph
1724(h)(2)(B), indicates that district courts were not intended to be the exclusive forum for
judicial review under Subparagraph 1724(h)(2)(B). See Keene Corp. v. United States, 508 U.S.
200, 208 (1993) (“Where Congress includes particular language in one section but omits it in
another,” it is “presumed that Congress acts intentionally and purposely in the disparate inclusion
or exclusion.”). In short, nothing in the statutory context demonstrates the unambiguous intent
necessary to displace the Tucker Act for actions for monetary relief under Subparagraph
1724(h)(2)(B).
The government nonetheless contends that Congress adopted Subparagraph
1724(h)(2)(B) with an awareness that most review litigation had occurred in district courts, with
a few cases in this court. Def.’s Mot. at 14. Given this background, the government argues that
Congress intended to confirm that judicial review would occur before district courts, “by tying
judicial review to ‘Title 5.”’ As an example, the government points to the Senate Committee
Report to S. 1014,14 which mentions that under current practice, after the Secretary takes
jurisdiction of a matter, “an appellant [could] pursue relief in U.S. District Court.” Def.’s Mot. at
14 (citing S. Rep. No. 104-260, at 14 (1996)) (alteration in original).
As previously discussed, merely tying judicial review to the APA does not inherently
channel cases exclusively to the district courts. Rather, reference to the APA serves to delineate
the type of adjudication that would occur, not the forum that would conduct the review. Had 30
U.S.C. § 1724(h) merely provided for judicial consideration, de novo determination of the facts
might be permissible. The APA, however, dictates a review of factual matters based on the
administrative record as it existed at the time of the decision. See 5 U.S.C. § 706.
The legislative history of the Royalty Simplification Act supports this inference regarding
the standard of review over that offered by the government. As initially proposed by H.R. 1975,
the Royalty Simplification Act provided a “lessee [with] a right of de novo judicial review and
14
S. 1014 was the Senate’s companion bill to H.R. 1975, the House’s Royalty
Simplification Act.
16
appeal of such final agency action.” H.R. 1975, 104th Cong., § 3 at 8 (1995) (enacted, as
amended) (emphasis added); accord 141 Cong. Rec. 18,060 (1995) (S. 1014, companion bill to
H.R. 1975). During a hearing on H.R. 1975 held by the House Subcommittee on Energy and
Mineral Resources on July 18, 1995, an organization of royalty auditors for states and tribal
authorities submitted written testimony objecting to de novo review. A Bill to Improve the
Management of Royalties From Federal & Outer Continental Shelf Oil & Gas Leases, and for
Other Purposes: Hearing on H.R. 1975 Before the H. Subcomm. on Energy & Mineral Res. of
the H. Comm. on Res., 104th Cong. 140-41 (1995) [hereinafter Hearing on H.R. 1975]
(statement of Wanda Fleming, First Vice Chair, State & Tribal Royalty Audit Comm.). When
H.R. 1975 was reported from the committees and subsequently passed by both houses, judicial
review was changed to be “in accordance with Title 5.” 142 Cong. Rec. 17,291 (1996) (H.R.
1975, Royalty Simplification Act, as passed by the House of Representatives); accord S. Rep.
No. 104-260, at 8, 39 (1996) (Report on S. 1014, amending the judicial review provision among
others); see also 142 Cong. Rec. 21,662 (1996) (Senate’s passage of H.R. 1975 as amended,
noting it was identical to S. 1014 as reported); H.R. Rep. No. 104-667, at 8, 38 (1996) (Report on
H.R. 1975, amending the judicial review provision, among others).
The Senate Report’s brief reference to existing practice of judicial review in district court
occurs in the context of explaining why the “lengthy administrative appeals process,” which was
causing “$450 million in disputed claims [to] languish in a bureaucratic appeals process,”
necessitated cutting off the administrative process after 33 months. S. Rep. 104-260, at *14.
The court sees no intent that this remark served to indicate Congress’s intention to specify a
particular forum. If that had been Congress’ goal, it would have had to express a desire to
eliminate this court as a forum, dislodging established practice.
Prior to enactment, this court had exercised jurisdiction over royalty claims in which
lessee sought monetary relief by way of a refund, while district courts did not. See Diamond
Shamrock Expl. Co. v. Hodel, 853 F.2d 1159, 1168 (5th Cir. 1988) (finding that a referred
request “against the United States seeking monetary relief in excess of $10,000.00” and brought
“under the authority of 30 U.S.C. § 1711(c)(1)” is “within the exclusive jurisdiction of the
Claims Court under the Tucker Act”) (citing Amoco Production v. Hodel, 815 F.2d 352 (5th Cir.
1987); Marathon Oil Co. v. United States, 16 Cl. Ct. 332 (1989) (“[T]his court has subject matter
jurisdiction to the extent Marathon seeks a refund of the approximately $1,700,000 paid
[pursuant to the Royalty Management Act].”); cf. Chevron U.S.A., Inc. v. United States, 923 F.2d
830 (Fed. Cir. 1991) (holding that the “Claims Court appropriately took jurisdiction of the
[royalty] refund claim based on the [Outer Continental Shelf Lands Act.”]).15 And when the
15
While not binding on this court, the court notes cases in three circuits that address
jurisdiction over refund requests subsequent to enactment of the Royalty Simplification Act. The
Fifth and Tenth Circuit Courts of Appeals have maintained that suits for refunds of royalty
overpayments arise under the Tucker Act and must be brought in this court. In Santa Fe Snyder
Corporation v. Norton, 385 F.3d 884, 893 (5th Cir. 2004) and Amerada Hess Corp. v.
Department of Interior, 170 F.3d 1032, 1035-36 (10th Cir. 1999), both courts dismissed claims
for refunds of royalty overpayments for lack of subject-matter jurisdiction, and cited Diamond
Shamrock, 853 F.2d at 1168, for the proposition that the Court of Federal Claims has exclusive
jurisdiction over refund claims. Plaintiffs in both cases, however, requested refunds under other
17
legislative history does refer to prior judicial decisions, it does so in the context of the need to
resolve circuit splits over the applicable statute of limitations. See H.R. Rep. 104-667, at 14, 48-
49; see also Hearing on H.R. 1975, at 2, 20-21, 101-03.
The House Report of the Royalty Simplification Act describes the purpose as
“establish[ing] clear and equitable provisions for the effective and efficient administration of
leases . . . to further exploration and development of oil and gas resources.” H.R. Rep. 104-667,
at 13. The House Report identifies as the basis for the amendments a “lack[] in clarity,
consistency and reciprocity, and [] inequities which impose unnecessary and unreasonable costs
and burdens on lessees and the [f]ederal [g]overnment alike.” Id. “For example, multiple
conflicting statutes of limitation for suits to collect royalty payments and recent court decisions .
. . have created uncertainty and unfairness for lessees and operators subject to indefinite audit
collection. . . . In addition, current law severely restricts [] lessees’ access to overpayments made
to the [f]ederal [g]overnment, and does not provide for the time value of lessees’ overpayments.”
Id. at 14. According to the Senate Report, the Royalty Simplification Act would, among other
things, speed the audit, collection, and appeals process, lessen record retention requirements and
burdens, grant reciprocity regarding interest for incorrect payments, and reduce the
administrative burden on small operators. S. Rep. 104-260, at 13-14. The Senate Report also
noted uncertainties regarding the statute of limitations applicable to government audits. Id. at 14.
Overall, neither the text of the Act nor the legislative history in the House and Senate identify the
purpose of the Royalty Simplification Act as channeling judicial review to any particular court.
The expressed statutory purposes simply do not bear on the court’s exercise of jurisdiction.16
offshore royalty statutes, not the Royalty Management Act. See Santa Fe Snyder, 385 F.3d at
885-86; Amerada Hess, 170 F.3d at 1033.
Tangentially, the Court of Appeals for the D.C. Circuit found that a district court had
jurisdiction under Subsection 1724(h) where the issue was whether the 33-month period had
elapsed. See Murphy Expl. & Prod. Co. v. United States Dep’t of the Interior, 252 F.3d 473, 475
(D.C. Cir. 2001). The D.C. Circuit held that the 33-month deadline commenced when the
plaintiff submitted its refund request, not when the administrative appeal commenced, and thus
the agency’s decision could be deemed final. Id. at 475, 477. The agency action appealed to the
district court was not a refund denial, but rather the agency’s 1998 order to plaintiff to pay the
government $368,000 in royalties, which represented the balance after accounting for
underpayments and overpayments. Id. at 476-77. The precise jurisdictional issue addressed was
whether the agency’s action should be deemed final. Id. at 480-82.
16
As amended, the Royalty Simplification Act made changes to the remedial scheme as
follows. Section 2 added 17 definitions, including terms such as “adjustment,” “commence,”
“demand,” “obligation,” “overpayment,” and “refund.” Section 3 expanded activities that the
Secretary of the Interior could delegate to the states and the process for delegation, and provided
judicial review of the Secretary’s decision before a district court in the affected state. Pub. L.
No. 104-185, § 3, 110 Stat. at 1702-04 (codified at 30 U.S.C. § 1735). Section 4 added Section
1724 in its entirety, which, among other things, established the seven-year limitation period and
tolling criteria, replaced several statutes of limitations, specified records that lessees must
maintain, and established the appeals process and right of judicial review under the APA when
18
In sum, the Royalty Management Act does not displace this court’s jurisdiction.
Subsection 1724(h) does not specify a particular forum for judicial review of ONRR’s rejection
of BP’s monetary claims. The reference to the APA in Subparagraph 1724(h)(2)(B) provides the
standard of review, not the forum of review, a conclusion supported by the legislative history
and consistent with the statutory purpose. To find displacement here, the court would have to
adopt inferences lacking support from the statutory text or legislative history. But Tucker Act
displacement requires an unambiguous intent. E.g., Ruckelshaus, 467 U.S. at 1017; Acceptance
Ins., 503 F.3d at 1336-37. Absent express intent to displace the Tucker Act and without a need
to do so to effectuate the statutory remedial scheme, the court has no basis to infer that
invocation of the APA does anything more than establish the standard for judicial review.
Accordingly, so long as the claims arise under the Tucker Act by invoking a money-mandating
statute, a contract, or the Constitution, this court continues to have jurisdiction over a lessee’s
monetary refund claims following the amendments wrought by the Royalty Simplification Act.
3. Accrual of the claims and application of statute of limitations.
The government argues that even if jurisdiction is proper under the Tucker Act, BP’s
claims are time-barred by the six-year statute of limitations applicable to claims before this court
under 28 U.S.C. § 2501. Def.’s Mot. at 18. While the government raises this statute of
limitation for only BP’s contract claim (Count III), Def.’s Mot. at 18-20, BP’s claims invoke
only different theories for the same relief requested, and accordingly the court’s analysis does
not distinguish between the legal theories to analyze whether any of BP’s claims are barred by
the statute of limitations. Moreover, the relevance of the specific limitation periods in the
Royalty Management Act, see supra, at 4-5 & nn. 3-4, bears on the court’s analysis. Because BP
filed its claim on July 6, 2018, the government contends that claims before July 6, 2012 are
untimely. Id. at 20. BP’s claims relate to overpayments made between January 2004 and
December 2007. BP argues that because the Royalty Management Act specifies mandatory
administrative remedies, its claims did not accrue until final agency action, which occurred in
June 2018. Pl.’s Opp’n at 12-13.
A claim in this court is “barred unless the petition thereon is filed within six years after
such claim first accrues.” 28 U.S.C. § 2501. The six-year statute of limitations is jurisdictional
and is not susceptible to equitable tolling or any of the other doctrines that would excuse an
the agency fails to act within 33 months. Id. § 4, 110 Stat. at 1704-10 (codified at 30 U.S.C. §
1724). Section 5 added Section 1721a in its entirety, which established the process for lessees to
make adjustments to incorrect payments and request refunds of overpayments. Id. § 5, 110 Stat.
at 1710-12 (codified at 30 U.S.C. § 1721a). Section 6 added the subsequently repealed
provisions governing payment to lessees of interest on overpayments, and revised methods for
paying royalties and allocating production and royalty liability among lessees. Id. § 6, 110 Stat.
at 1710-15 (codified at 30 U.S.C. § 1721). Section 7 allowed for prepayment and regulatory
relief for lessees of marginally producing properties. Id. § 7, 110 Stat. at 1715-16 (codified at 30
U.S.C. § 1721). The remaining sections included a statement that two provisions, including the
original statute of limitations, were no longer applicable given other amendments, exempted
leases on Indian or private lands from these amendments, established an effective date, and
explicitly stated that no property right or interest arose with a state against any Federal lease or
land. Id. §§ 8-12, 110 Stat. at 1717 (codified at 30 U.S.C. §§ 1701, 1732).
19
untimely claim. See John R. Sand & Gravel Co., 552 U.S. at 134. Yet, Congress can always
carve out exceptions by statute, U.S. Const. Art. I § 8, Art. III § 2, and a “remedy furnished by
statute preempts a more general remedy,” e.g., Shearin, 992 F.2d at 1196. And “if a dispute is
subject to mandatory administrative proceedings, the plaintiff’s claim does not accrue until the
conclusion of those proceedings.” E.g., Martinez, 333 F.3d at 1304.
BP’s refund claim was subject to the mandatory administrative proceedings of the
Royalty Management Act. That process commences with a refund request made either within
six years of the obligation becoming fixed or during an audit, can be appealed though
administrative procedures, and can be followed by judicial review contingent upon either final
agency action or 33 months elapsing since requesting the refund. See 30 U.S.C. §§ 1721a, 1724.
Judicial review could be had within seven years of the obligation becoming fixed, although this
seven-year period could be tolled or terminated early. See id. § 1724(b), (d), (e), (h). Further,
judicial review of an obligation more than of seven years old is timely if sought within 180 days
of notice of final agency action. See id. § 1724(j).
BP complied with the statutory requirements to seek judicial review within 180 days of
notification of final agency action, having been notified on June 21, 2018 of the dismissal of its
appeal due to the agency’s inaction, and then having filed its complaint on July 6, 2018. Specific
to BP’s contract claim, the claim accrued not when either parties’ royalty obligations became
fixed, but when the alleged breach occured. To the extent a breach occurred, it would have
occurred when ONRR denied BP its refund and interest, which given the mandatory
administrative remedies, also occurred upon the final agency action. To the extent a taking of
interest occurred, it too would have accrued upon the final agency action that refused interest that
had accrued at the time of BP’s requests.
B. Whether the Court Can Grant Relief
Separate from its argument about statute of limitations, the government contends that BP
fails to allege sufficient facts to show that the leases or tolling agreements contained terms that
entitled BP to a refund of overpayments or interest. Def.’s Mot. at 21-22. The government
accordingly seeks to dismiss Counts III and IV, but not Counts I and II, for failure to state a
claim upon which relief can be granted. See id. at 25 (arguing that the court should dismiss the
complaint for lack of jurisdiction, “or, in the alternative, dismiss Count III for failure to state a
claim upon which relief may be granted.”).
1. Count III: contract theory for refund and interest claimed.
Count III repackages the refund and interest claims of Counts I and II under a contract
theory. See Compl. ¶¶ 45-47. It is undisputed that BP executed leases and tolling agreements
with the government. BP alleges that pursuant to these contracts, it is entitled to pay no more
than the royalty it actually owed. Compl. ¶¶ 1, 45-48. BP’s underlying claim is plausible, given
the facts and statutory obligations. Even so, the court cannot independently grant relief to BP
under this theory in light of the remedial scheme, which delineates the type of relief BP may seek
and the process by which it may claim that relief. See 30 U.S.C. §§ 1721, 1721a, 1724; see also
Bormes, 568 U.S. at 13-14 (“We have long recognized that an additional remedy in the Court of
Claims is foreclosed when it contradicts the limits of a precise remedial scheme. . . . Where a
20
specific statutory scheme provides the accoutrements of a judicial action, the metes and bounds
of the liability Congress intended to create can only be divined from the text of the statute
itself.”); see also Alpine PCS, 878 F.3d at 1093-94. The statutory relief covers the entirety of
BP’s claims.
BP defends the claim by invoking several cases in which new statutes that prevented the
government from adhering to oil and gas lease terms gave rise to cognizable contract claims.
Pl.’s Opp’n at 11 & n.7 (citing, among others, Mobil Oil Expl. & Prod. SE., Inc. v. United States,
530 U.S. 604 (2000); Amber Res. Co. v. United States, 538 F.3d 1358 (Fed. Cir. 2008)). Yet,
these cases address jurisdiction and not whether an independent contract claim can survive a
remedial scheme that specifies remedies. Further, to the extent that a new statute precluded
adherence to contract terms, that new statute here would be the FAST Act, and thus only apply to
BP’s claim for interest on overpayments. The interest entitlement, however, was a statutory
creation, and BP has not alleged sufficient facts to assert it was entitled to interest independent
from the terms of 30 U.S.C. § 1721. Because BP does not allege it was owed interest pursuant to
contract terms, BP has not plausibly alleged the FAST Act breached its contract. Count III
consequently must be dismissed for failure to state a claim.
2. Count IV: Fifth Amendment taking of interest.
Count IV presents BP’s interest claim as a Fifth Amendment Takings claim. Compl. ¶
52-55. The government contends that because BP “exclusively relies on a statutory entitlement,”
no property interest exists. Def.’s Mot. at 23. BP counters that it alleged a property right and
that a dispute over a property interest is not fatal to the claim at the pleadings stage. Pl.’s Opp’n
at 14. In effect, the government seeks to dismiss Count IV for lack of jurisdiction.
The court has jurisdiction over takings claims and BP alleges a property right in interest
on its overpayment. Whether BP has a property right in the interest presents questions of law
and fact, but not ones of this court’s jurisdiction. See Jan’s Helicopter Serv., 525 F.3d at 1309
(“In determining whether the Court of Federal Claims has jurisdiction, all that is required is a
determination that the claim is founded upon a money-mandating source and the plaintiff has
made a nonfrivolous allegation that it is within the class of plaintiffs entitled to recover under the
money-mandating source. There is no further jurisdictional requirement that the court determine
whether the additional allegations of the complaint state a nonfrivolous claim on the merits.”).
Accordingly, the court addresses the government’s argument as alleging that BP has failed to
state a claim upon which relief can be granted. Pl.’s Opp’n at 14-15.
“[N]o statutory obligation to pay money . . . can create a property interest within the
meaning of the Takings Clause.” Adams v. United States, 391 F.3d 1212, 1225 (Fed. Cir. 2004).
Nevertheless, a property interest has been found to exist in interest that has accrued on a
claimant’s principal. See Phillips v. Washington Legal Found., 524 U.S. 157, 166-69 (1998)
(finding that interest accrued on the principal in a trust account constituted private property of
the owner of the principal). In distinguishing a statutory entitlement that creates a property
interest from one that does not, the Federal Circuit noted the difference between “an actual sum
of money representing interest derived from ownership of particular deposits in an established
account, as opposed to some abstract sum of money capable of being calculated.” Adams, 391
F.3d at 1225. The “lack of immediate right [to deposited funds] does not automatically bar a
21
claimant ultimately determined to be entitled to all or a share of the fund from claiming a proper
share of the interest . . . that is realized in the interim.” Webb’s Fabulous Pharmacies, Inc. v.
Beckwith, 449 U.S. 155, 161-62 (1980).
In this instance, BP’s claim to a property right in interest may be distinct from a monetary
entitlement pursuant to statute, and BP may have stated a plausible claim for relief under the
Takings Clause if the FAST Act does have retroactive effect.17 It is undisputed that BP overpaid
royalties. Compl. ¶¶ 14, 18, 28, Ex. 1 at 10-11, 16. Under the Royalty Management Act prior to
amendment by the FAST Act, interest began to accrue from the date of overpayment. See 30
U.S.C. § 1721(h) (2012). Interest accrued on the overpayment principal until at least December
3, 2015, and, if final action had occurred by then, would have been paid to BP. BP’s entitlement
to interest is derivative from its overpayment. To the extent it has a property interest in the
overpayment principal, it may thus have a property interest in the overpayment interest as well.
Thus, BP can plausibly claim a property interest in what had already accrued to prior to
enactment of the FAST Act. Retroactive effect of the FAST Act may then have affected a
taking, having separated BP from part of its money. While BP’s overpayment is not held in an
account owned by BP, BP’s right to a refund of an overpayment seems more akin to a return of
BP’s property than to a statutory obligation to payment by the government. The Royalty
Management Act refers to overpayments as “principal,” e.g., 30 U.S.C. § 1702(25) (defining
“obligation” to include “any duty of the Secretary . . . to pay, refund, offset, or credit monies
including . . . the principal amount of any royalty . . . .”); see also 30 U.S.C. §§ 1721a(a)(2)(A),
1724(b)(1), 1724(h)(2), a characteristic that has distinguished a property interest from mere
obligations to pay, compare Phillips, 524 U.S. at 166-168, and Webb’s Fabulous Pharmacies,
449 U.S. at 160-62, with Adams, 391 F.3d at 1220-23. Further, a refund is not merely a statutory
right to payment, but a “return of an overpayment.” 30 U.S.C. § 1702(30) (emphasis added).
The Federal Circuit rejected a similar argument in Getty Oil Co. v. United States, 767
F.2d 886 (Fed. Cir. 1985), but in light of the Royalty Simplification Act, that rationale may no
longer hold. Getty sued for approximately $364,000 in interest derived from approximately
$775,000 in overpaid royalties relating to offshore oil and gas leases. Id. at 887. Getty alleged
that the government’s use of its money for three years without paying interest constituted a
taking. Id. at 887-88. In rejecting Getty’s allegation, the court noted that “[w]hile Getty's
argument would make sense to any banker or economist, or even to the typical taxpayer, [the
court was] bound by judicial precedent and the Constitution; authorities that do not go so far as
Getty contends.” Id. at 888. Specifically, the court observed that no statutory or contractual
provision mandating interest on overpayments existed at that time, id. at 887, 889, and “Getty’s
payments were never put in a designated account where they specifically earned interest,” id. at
888. Also the specific statute under which Getty sued expressly barred paying interest, and “any
waiver of sovereign immunity must be strictly construed.” Id. at 889. Unlike Getty’s
overpayment, BP’s overpayment was earning interest until at least December 3, 2015, and
sovereign immunity had been waived until December 3, 2015.
17
If the FAST Act does not have retroactive effect, then BP’s remedy would be pursuant
to the terms of the Royalty Management Act.
22
Because the government’s obligation to pay interest arises from statute, Congress is free
to change the terms and cut off future liability. See, e.g., Marathon Oil v. United States, 374
F.3d 1123, 1126-27 (Fed. Cir. 2004) (discussing the no-interest rule absent express waiver of
sovereign immunity). Unlike the trust accounts in Phillips where the government took interest
for public use that had accrued to a depositor by an arrangement with a private bank, the
government here is the source of interest and can dictate the terms of future interest accrual.
Whether BP has a property interest in interest that had accrued prior to enactment of the
FAST Act presents questions of law for which a decision is premature, especially since the
retroactive effect of the FAST Act remains undetermined. Accordingly, BP can maintain a
Takings claim for interest that had accrued up to enactment of the FAST Act, but not for interest
thereafter.
CONCLUSION
For the foregoing reasons, the court concludes that it has jurisdiction under the Royalty
Management Act to hear BP’s Tucker Act claims for a denied refund and interest on its
overpayments. The government’s motion to dismiss the complaint for lack of subject-matter
jurisdiction is DENIED.
BP has provided sufficient legal and factual support to constitute a plausible claim for (1)
its refund and interest request under the money-mandating provisions of the Royalty
Management Act and (2) a taking of interest under the Fifth Amendment’s Takings Clause.
Even so, because the Royalty Management Act provides a remedial scheme and dictates
entitlement to interest on overpayments, BP’s independent contract claim set out in Count III
cannot survive and must be dismissed. Count IV may be maintained with respect to interest that
accrued up to December 3, 2015. Accordingly, the government’s motion to dismiss for failure to
state a claim is GRANTED in part and DENIED in part.
The government shall file its answer to BP’s complaint by April 24, 2019.
It is so ORDERED.
s/ Charles F. Lettow
Charles F. Lettow
Senior Judge
23
| {
"pile_set_name": "FreeLaw"
} |
This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA
IN COURT OF APPEALS
A15-0033
State of Minnesota,
Respondent,
vs.
Nathan Edward Palmer,
Appellant.
Filed November 30, 2015
Affirmed
Cleary, Chief Judge
Chisago County District Court
File No. 13-CR-13-63
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Janet Reiter, Chisago County Attorney, Nicholas A. Hydukovich, Assistant County
Attorney, Center City, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Andrea Barts, Assistant Public
Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Cleary, Chief Judge; Connolly, Judge; and Johnson,
Judge.
UNPUBLISHED OPINION
CLEARY, Chief Judge
Appellant Nathan Edward Palmer was convicted after a court trial of felony
domestic assault (harm) in violation of Minn. Stat. § 609.2242, subd. 4 (2012) and
malicious punishment of a child-less than substantial bodily harm, a gross misdemeanor,
in violation of Minn. Stat. § 609.377, subds. 1, 2 (2012). Appellant argues that the
district court erred in finding that he used unreasonable force when disciplining his child
for behavioral problems. Because a reasonable fact-finder could conclude that appellant
used unreasonable force, we affirm.
FACTS
On January 17, 2013, appellant’s 12-year-old son, N.E.P., was suspended from
school for disrespectful and disruptive behavior. This was not his first suspension from
school. Appellant left work to pick up N.E.P. after the suspension, and the two returned
home. Appellant told N.E.P. to clean his room, but N.E.P. did not, and this angered
appellant. Appellant attempted to physically discipline N.E.P. by spanking him with a
leather belt. Appellant attempted to grab N.E.P. to spank him, but N.E.P. struggled. To
control him, appellant grabbed N.E.P. by the collar of his sweatshirt and pulled at it,
leaving marks around N.E.P.’s neck. Appellant then hit N.E.P. approximately five times
with a leather belt, leaving marks on his legs and back. N.E.P. left the house and went to
the police station, and police transported him to Fairview Lakes Hospital. N.E.P. initially
told doctors that appellant had strangled him, but later stated that he exaggerated that fact
because he was angry at appellant.
2
At trial, evidence was admitted related to the nature and extent of N.E.P.’s
injuries. Nurse Linda Godden, who treated N.E.P. at the hospital, testified that “[h]is
neck and chest had petechiae, which [are] red little arterial breaks.” She stated that
petechiae are caused by things such as “crushing injury, vomiting, [or] pressure.” On
cross-examination, Godden stated that such petechiae could be caused by a person
struggling against being dragged by his shirt. Dr. John Eikens, who also treated N.E.P. at
the hospital, stated that N.E.P. had a petechial rash which indicated pressure was applied
to those areas, and red marks that were consistent with being struck with a belt. The
district court found that appellant “exceeded any reasonable use of his disciplinary
authority . . . when he caused the injuries to N.E.P.’s neck by the use of extreme force,”
and recorded convictions for domestic assault and malicious punishment of a child. This
appeal followed.
DECISION
The district court convicted appellant of domestic assault and malicious
punishment of a child, but sentenced appellant only on the domestic assault conviction.
This court must address a conviction on appeal, even if the defendant receives no
sentence for that conviction. See State v. Cox, 820 N.W.2d 540, 552-53 (Minn. 2012)
(holding that the district court erred in convicting defendant “[e]ven though the court did
not sentence” defendant on that conviction); Spann v. State, 740 N.W.2d 570, 574 (Minn.
2007) (reviewing convictions for lesser-included offenses, for which defendant received
no sentence).
3
Appellant argues that there was insufficient evidence for the district court to find
that he used unreasonable force in disciplining N.E.P. Therefore, appellant argues, the
convictions for domestic assault and malicious punishment should be reversed.
When reviewing for sufficiency of evidence, this court “view[s] the evidence in
the light most favorable to the verdict and assume[s] that the factfinder disbelieved any
testimony conflicting with that verdict.” State v. Chavarria-Cruz, 839 N.W.2d 515, 519
(Minn. 2013) (quotation omitted). We defer to the fact-finder’s determinations of witness
credibility and we acknowledge that any “attempt to retry [the] case by asking us to
reevaluate [witness] credibility is contrary to our role.” State v. Bliss, 457 N.W.2d 385,
391 (Minn. 1990). This court will not reverse a conviction when the fact-finder, “acting
with due regard for the presumption of innocence and for the necessity of overcoming it
by proof beyond a reasonable doubt,” could reasonably find the appellant guilty of the
offense. Bernhardt v. State, 684 N.W.2d 465, 476-77 (Minn. 2004) (quotation omitted).
For a defendant to be found guilty of domestic assault (harm), the state must prove
that defendant “intentionally inflict[ed] or attempt[ed] to inflict bodily harm” upon “a
family or household member.” Minn. Stat. § 609.2242, subd. 1 (2012). For a defendant
to be found guilty of malicious punishment of a child, the state must prove that defendant
is a “parent, legal guardian, or caretaker who, by an intentional act or a series of
intentional acts with respect to a child, evidences unreasonable force or cruel discipline
that is excessive under the circumstances.” Minn. Stat. § 609.377, subd. 1. Both are
general-intent crimes, requiring only that a defendant “intended to do the physical act,
4
[not] . . . that the defendant meant to violate the law or cause a particular result.” State v.
Fleck, 810 N.W.2d 303, 309-10 (Minn. 2012).
“The law does not condone injury of children . . . .” Johnson v. Smith, 374
N.W.2d 317, 321 (Minn. App. 1985), review denied (Minn. Nov. 18, 1985). However, a
parent is not guilty of domestic assault or malicious punishment when they use
reasonable force. “[R]easonable force may be used . . . by a parent, guardian, teacher, or
other lawful custodian of a child or pupil, in the exercise of lawful authority, to restrain or
correct such child . . . .” Minn. Stat. § 609.06 (2014). When determining the scope of
reasonable disciplinary force, this court has considered a child’s age, height, and weight;
“the seriousness of the [child’s] infraction; the degree of force used by the parent; and the
physical impact of the discipline.” In re Welfare of Children of N.F., 735 N.W.2d 735,
738-39 (Minn. App. 2007), aff’d in part, rev’d in part on other grounds, 749 N.W.2d 802
(Minn. 2008).
There was sufficient evidence to support the finding of unreasonable disciplinary
force. The district court received a great deal of evidence regarding the nature and extent
of N.E.P.’s injuries. Both appellant and 12-year-old N.E.P. testified regarding the actions
that caused the injuries. N.E.P. had been badly misbehaving, but was not being
aggressive in a way that demanded physical correction at that time. Appellant caused the
petechiae on N.E.P.’s neck area by restraining N.E.P. Once restrained, appellant
intentionally struck him with a belt, which caused marks on his legs and back. Multiple
exhibits showed the injured areas of N.E.P.’s body through photographs taken at the
hospital that day. Testimony by Godden and Dr. Eikens demonstrated the nature and
5
seriousness of the injuries. Considering appellant’s use of a belt as an instrument of
physical punishment, and taking the facts in the light most favorable to the verdict, a
reasonable fact-finder could conclude appellant used unreasonable force.
Affirmed.
6
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 17-4414
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOHN WILLIAM RANSIER,
Defendant - Appellant.
Appeal from the United States District Court for the District of Maryland, at Baltimore.
J. Frederick Motz, Senior District Judge. (1:15-cr-00300-JFM-1)
Submitted: March 28, 2018 Decided: April 4, 2018
Before WILKINSON, NIEMEYER, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Teresa Whalen, LAW OFFICE OF TERESA WHALEN, Silver Spring, Maryland, for
Appellant. Stephen M. Schenning, Acting United States Attorney, P. Michael
Cunningham, Lauren E. Perry, Assistant United States Attorneys, OFFICE OF THE
UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Following a jury trial, John William Ransier was convicted of using and
attempting to use a facility of interstate commerce to persuade, induce, entice, or coerce a
person who had not attained the age of 18 to engage in sexual activity, in violation of 18
U.S.C. § 2422(b) (2012). Ransier appeals, asserting that the evidence was insufficient to
support his conviction. For the reasons that follow, we affirm.
We review de novo the sufficiency of the evidence supporting a conviction.
United States v. Barefoot, 754 F.3d 226, 233 (4th Cir. 2014). A defendant challenging
evidentiary sufficiency carries “a heavy burden.” United States v. Cornell, 780 F.3d 616,
630 (4th Cir. 2015) (internal quotation marks omitted). This court will uphold a
conviction if, “view[ing] the evidence in the light most favorable to the government
. . . [,] any rational trier of fact could have found the essential elements of the crime
charged beyond a reasonable doubt.” Barefoot, 754 F.3d at 233 (internal quotation marks
omitted). “[R]eversal for insufficient evidence is reserved for the rare case where the
prosecution’s failure is clear.” United States v. Said, 798 F.3d 182, 194 (4th Cir. 2015)
(internal quotation marks omitted).
Under 18 U.S.C. § 2422(b), “[w]hoever, using the mail or any facility or means of
interstate or foreign commerce, . . . knowingly persuades, induces, entices, or coerces any
individual who has not attained the age of 18 years, to engage in . . . any sexual activity
for which any person can be charged with a criminal offense, or attempts to do so, shall
be fined under this title and imprisoned not less than 10 years or for life.” Id. Section
“2422(b) comprises four elements: (1) use of a facility of interstate commerce; (2) to
2
knowingly persuade, induce, entice, or coerce; (3) a person who is younger than eighteen;
(4) to engage in an illegal sexual activity.” United States v. Fugit, 703 F.3d 248, 254 (4th
Cir. 2012) (internal quotation marks omitted). Ransier contends that the evidence was
insufficient to establish the second element: to wit, that he persuaded, induced, enticed,
or coerced. *
We agree with Ransier that the evidence does not support a finding of coercion
and therefore consider only whether the Government established that Ransier persuaded,
induced, or enticed. Because the terms “persuade,” “induce,” and “entice” are not
statutorily defined, we accord them their ordinary meaning. United States v. Clarke, 842
F.3d 288, 296 (4th Cir. 2016). In ordinary usage, the terms “persuade,” “induce,” and
entice” “are effectively synonymous, and the idea conveyed is of one person leading or
moving another by persuasion or influence, as to some action or state of mind.” United
States v. Engle, 676 F.3d 405, 411 n.3 (4th Cir. 2012) (internal quotation marks and
brackets omitted).
*
Ransier implies that, because the jury instructions listed these actions in the
conjunctive, the Government was required to prove that he persuaded, induced, enticed,
and coerced. However, § 2422(b) employs disjunctive language. Consequently, the
jury’s verdict may be upheld as long as the evidence was sufficient to establish that
Ransier persuaded, induced, enticed, or coerced. See Musacchio v. United States, 136
S. Ct. 709, 715 (2016) (“when a jury instruction sets forth all the elements of the charged
crime but incorrectly adds one more element, a sufficiency challenge should be assessed
against the elements of the charged crime, not against the erroneously heightened
command in the jury instruction”); see also United States v. Iverson, 818 F.3d 1015, 1027
(10th Cir.) (citing Musacchio in rejecting sufficiency of the evidence argument based on
jury instructions that set forth the means of committing the offense in the conjunctive,
where statute was worded in disjunctive), cert. denied, 137 S. Ct. 217 (2016).
3
We conclude the evidence in this case was sufficient to establish that Ransier
attempted to use a facility and means of interstate commerce to persuade, induce, or
entice a person he believed to be a 13-year-old girl to engage in sexual activity. Ransier
answered a Craigslist ad under the Casual Encounters listing posted by an undercover
Baltimore County detective using the name “Christy S.” This ad did not indicate that the
advertiser was a minor. However, two weeks later, the detective posing as Christy S.
responded to Ransier’s email and identified “herself” as a 13-year-old girl. Ransier
readily acknowledged his belief that he was speaking to a 13-year-old girl and requested
her photo. When Christy S. told Ransier that she did not have a phone, he told her he
could get her one if she was “good,” and promised to “spoil” her. He initiated the next
email exchange by asking “Christy S” for a “sexy pic,” began a sexually explicit dialog
with her, said that he wanted someone to spoil and who, in exchange would take care of
him, and he requested that they meet in person. When “Christy S” asked Ransier how
she could know that he would not “cut [her] up and put [her] in a hole,” he reassured her
by saying that he would spoil her so much that all of her friends would be jealous and she
would fall in love with him. In all these ways, Ransier sought to persuade, induce, and
entice a 13-year-old girl to engage in sexual activity.
We conclude that the evidence was sufficient to support Ransier’s conviction and
therefore we affirm the criminal judgment. We dispense with oral argument because the
facts and legal contentions are adequately presented in the materials before this court and
argument would not aid the decisional process.
AFFIRMED
4
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400 F.3d 586
Douglas F. LONGIE, Appellant,v.SPIRIT LAKE TRIBE; Spirit Lake Health Administration; Spirit Lake Tribe Refuse Control Services, Appellees.
No. 04-1578.
United States Court of Appeals, Eighth Circuit.
Submitted: December 13, 2004.
Filed: March 7, 2005.
Chad R. McCabe, argued, Bismarck, ND, for appellant.
Terry L. Pechota, argued, Rapid City, SD, for appellee.
Before WOLLMAN, LAY, and COLLOTON, Circuit Judges.
WOLLMAN, Circuit Judge.
1
Douglas L. Longie appeals the district court's1 dismissal of his case for lack of federal jurisdiction and, alternatively, for his failure to exhaust tribal court remedies. We affirm.
I.
2
This appeal involves a dispute between the Spirit Lake Tribe and one of its members over two tracts of land within the Spirit Lake Nation Indian Reservation. Longie, an enrolled tribal member, submitted a request for a land exchange to the tribe in 1976, seeking to trade his family's 40-acre allotment (No. DLS-888) for the 80-acre Devils Lake Sioux Allotment No. SL-0878. Congress originally allotted the 40-acre plot to Longie's family members; the 80 acres are tribal lands. The United States holds both land parcels in trust. In negotiating the transfer, both parties acknowledged that they would transfer only their existing interests in the land and that the land would retain its associated restrictions and conditions. The transfer, once complete, would be subject to the approval of the Bureau of Indian Affairs of the Department of the Interior, as is required for all exchanges of Indian trust land. See 25 U.S.C. § 464.
3
Believing that the agreement would soon be finalized, Longie made improvements on the 80-acre parcel, including a road and a well. The tribal council passed Resolution No. A05-86-069, authorizing the transfer, and Longie signed the deed to transfer title to his land. The transfer remained incomplete, however, because the tribal council members did not sign the deed authorizing the formal transfer of title. Longie began living on the land and made additional improvements over the years. He continues to receive rent income from his family's 40-acre allotment, which was never formally transferred to the tribe.
4
Longie received a letter in May 2001 from the Bureau of Indian Affairs (charged with management of the leasing of Indian lands), stating that the land transfer had never occurred, that Longie owed $12,075 for unauthorized use of the land, and that Longie needed to obtain leases from the tribe in order to continue to use the property. In December 2002, the Spirit Lake Tribe began to build a mini satellite solid waste transfer station on a portion of the 80-acre plot where Longie resides.
5
Longie filed this action in federal district court in August 2003 seeking quiet title, an injunction against the waste transfer station, and other equitable relief. He believed that he would face prejudice and unfair treatment if he tried to proceed in tribal court because of a prior dispute with tribal council members.2 Longie sought to amend his complaint to add bases for federal jurisdiction (28 U.S.C. §§ 1331, 1361 and 1362) and to add the United States as a party (based on its belief that it is an indispensable party), along with other government agencies. The tribe moved to dismiss on numerous grounds. The district court dismissed the case, finding that it lacked subject matter jurisdiction because the case did not raise a federal question and the other jurisdictional provisions were inapplicable.
II.
6
Longie argues on appeal that this court has subject matter jurisdiction over his case under both 28 U.S.C. §§ 1331 and 1361.3 We review questions of subject matter jurisdiction de novo. Prince v. Ark. Bd. of Examiners in Psychology, 380 F.3d 337, 340 (8th Cir.2004). We conclude that the district court properly held that it lacked subject matter jurisdiction to resolve this dispute.
7
Federal courts have consistently affirmed the principle that it is important to guard "the authority of Indian governments over their reservations." Williams v. Lee, 358 U.S. 217, 223, 79 S.Ct. 269, 3 L.Ed.2d 251 (1959); see also Fisher v. Dist. Ct., 424 U.S. 382, 387-88, 96 S.Ct. 943, 47 L.Ed.2d 106 (1976) (per curiam) (finding no state court jurisdiction over adoption of child member of the tribe because such jurisdiction "would interfere with the powers of [tribal] self-government" and "would cause a corresponding decline in the authority of the Tribal Court"). In light of the fact that "Indian tribes retain attributes of sovereignty over both their members and their territory," and out of our obligation to avoid impairing "the authority of the tribal courts," United States ex rel. Kishell v. Turtle Mountain Housing Auth., 816 F.2d 1273, 1276 (8th Cir.1987), we will exercise our section 1331 jurisdiction in cases involving reservation affairs only in those cases in which federal law is determinative of the issues involved. See Smith v. McCullough, 270 U.S. 456, 459, 46 S.Ct. 338, 70 L.Ed. 682 (1926) (stating that either the suit "was one arising under the [federal] legislation relating to Quapaw allotments, or was one where there was an absence of federal jurisdiction"). This is particularly true when, as here, the case involves an intra-tribal dispute.
8
This case is not one "arising under the Constitution, laws, or treaties of the United States" within the meaning of 28 U.S.C. § 1331. Longie argues that his claim raises a federal question because it implicates the tribe's possessory interest in the land, protected by the United States in trust. Section 1331 jurisdiction, however, does not broadly incorporate every case that indirectly implicates an interest that is grounded in the laws of the United States. See Shulthis v. McDougal, 225 U.S. 561, 569-70, 32 S.Ct. 704, 56 L.Ed. 1205 (1912). A case does not "arise under" the laws of the United States "unless it really and substantially involves a dispute or controversy respecting the validity, construction or effect of such a law, upon the determination of which the result depends." Id. (finding no jurisdiction even though the title to the land at issue had originally been granted under an act of Congress creating allotments for individual Indians); see also Gully v. First National Bank, 299 U.S. 109, 114, 57 S.Ct. 96, 81 L.Ed. 70 (1936) (finding that "[t]here is no necessary connection between the enforcement of [ ] a contract according to its terms and the existence of a controversy arising under federal law" just because the contract implicated federal statutory obligations).
9
We therefore ask whether federal law or local/tribal law controls the existence and enforceability of Longie's asserted right. See Weeks Constr., Inc. v. Oglala Sioux Housing Auth., 797 F.2d 668, 672 (8th Cir.1986). We agree with our sister circuits that a federal question exists if the outcome is "controlled or conditioned by Federal law," Prairie Band of the Pottawatomie Tribe of Indians v. Puckkee, 321 F.2d 767, 770 (10th Cir.1963), but does not exist if "the `real substance of the controversy' centers upon" something other than the construction of federal law. Littell v. Nakai, 344 F.2d 486, 488 (9th Cir.1965) (citation omitted) (noting that a retainer contract dispute "center[ed] upon the contract and its construction," not the fact that federal law required approval of the contract by federal officials before it was enforceable). If an interpretation of tribal or local law is necessary to establish or clarify a right sought to be enforced based on a contract, then jurisdiction under section 1331 does not exist, even if the subject of the contract is Indian trust property. Weeks Constr., 797 F.2d at 672. Similarly, if the dispute centers on discretionary tribal action that affects tribal members, it is not a federal question, even if the discretionary act was taken pursuant to a federal statute and with the approval of the Secretary of the Interior. See Martinez v. Southern Ute Tribe, 273 F.2d 731, 732-34 (10th Cir.1959) (finding that the district court did not have jurisdiction to issue a declaration that Martinez was a member of the tribe and should have received per capita payments designated by the tribe to its members because the dispute centered on the tribe's exercise of discretionary authority, not the federal statute authorizing the tribe to make such designations).
10
The interpretation of federal law is central, however, to the resolution of cases that involve the question whether a tribal court has exceeded its jurisdiction. National Farmers Union Ins. Cos. v. Crow Tribe of Indians, 471 U.S. 845, 851, 105 S.Ct. 2447, 85 L.Ed.2d 818 (1985) (finding jurisdiction under section 1331 because federal common law establishes the limits of tribal sovereignty).4 It is also central to cases that involve whether a federal agency action is unlawful. See Goodface v. Grassrope, 708 F.2d 335, 338 (8th Cir.1983) (finding jurisdiction to review a Bureau of Indian Affairs (BIA) officer's refusal to recognize a newly elected tribal council due to a tribal election dispute). Yet agency action is reviewable only after it has occurred. The fact that the Secretary of the Interior must approve every land transfer within a reservation does not establish that every dispute related to a transfer of land involves a federal question.5 See Id.; see also Conroy v. Conroy, 369 F.Supp. 179, 180 (D.S.D.1973) (stating that "[i]t is well settled that merely because there is some federal involvement — because the land is trust property — does not create a federal question").
11
Longie's right to ownership of the 80-acre plot is contingent upon whether the tribe legally consented to and effectuated the transfer, i.e., whether there was an express or implied contract or other legal basis to force the tribe to honor its resolution consenting to the transfer. This intra-tribal matter is contingent upon tribal law, not federal law. Longie contends that the federal courts may order the land transfer as part of the remedy he seeks. We disagree. Neither the federal courts nor the Secretary of the Interior has authority to determine in the first instance that a land transfer should occur between a tribe and a member of that tribe. The Secretary's authority is limited to the choice of whether to approve or deny a completed and voluntary land transfer agreement by the parties involved. 25 U.S.C. § 464. That limited statutory authority, grounded in the trust responsibility of the United States and its fee interest in Indian lands, is the only federal law concept implicated in this case, and it is insufficient to provide jurisdiction under section 1331.
12
Longie also argues that the federal district court has jurisdiction over his case under 28 U.S.C. § 1361. He claims to be seeking a writ of mandamus against the United States and contends that the United States has a duty to honor the previously agreed-upon land exchange. His claim fails, however, because he has not named a federal officer as a defendant and because he has not identified a legal basis for the duty he claims exists. For section 1361 to apply, the plaintiff must seek "to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff." 28 U.S.C. § 1361. Mandamus may issue under section 1361 against an officer of the United States "only when the plaintiff has a clear right to relief, the defendant has a clear duty to perform the act in question, and the plaintiff has no adequate alternative remedy." Borntrager v. Stevas, 772 F.2d 419, 420 (8th Cir.1985).
13
Even if Longie had identified the federal officer who is responsible for approving land transfers within the reservation, that officer would not have a duty to act — and in fact, as detailed above, would lack authority to act — on a land transfer until it has been established that the transfer was voluntary and complete in every other respect. Longie cannot claim that the Secretary of the Interior refused to approve a land transfer that was never presented to him for approval because the predicate steps never took place. See, e.g., Martinez, 273 F.2d at 734.
14
Our holding does not preclude Longie from seeking relief in tribal court. The tribal court is well suited to determine whether a binding agreement existed between Longie and the tribe regarding the land exchange and whether any obligations still exist under that agreement.
15
The order of dismissal is affirmed.
Notes:
1
The Honorable Ralph R. Erickson, United States District Judge for the District of North Dakota
2
Longie had been elected in 1997 by the members of the tribe as Chief Judge for the Spirit Lake Nation. The tribal council adopted resolutions in 1999 allowing its members to remove and appoint judges and promptly acted to remove Longie from his position as Chief Judge. Longie filed suit in the Northern Plains Intertribal Court of Appeals and in federal court, both of which suits were dismissed for failure to exhaust tribal remedies. We affirmed the dismissal of the federal court actionLongie v. Pearson, No. 99-4142, 2000 WL 427630 (8th Cir. Apr.21, 2000) (unpublished per curiam). Longie's subsequently filed tribal court action was unsuccessful, as was his appeal to the Intertribal Court of Appeals.
3
As a preliminary matter, Longie argues that the district court abused its discretion in not granting his request to amend his complaint. His argument is immaterial if the urged bases for subject matter jurisdiction in the amended complaint would nevertheless result in dismissal. We have held that amended complaints, although liberally permitted under Fed.R.Civ.P. 15(a), may be denied if there has been undue delay, there has been bad faith on the part of the moving party, the amendment would be futile, or unfair prejudice would resultSee Roberson v. Hayti Police Dep't, 241 F.3d 992, 995 (8th Cir.2001). Here, the district court evaluated the amended complaint and, concluding that it would be futile, dismissed the case without formally accepting the amended complaint. Its decision to do so was appropriate and did not constitute an abuse of discretion.
4
Even when an Indian law case involves a federal question, other jurisprudential considerations may nevertheless prevent it from proceeding in federal district courtSee National Farmers, 471 U.S. at 855-56, 105 S.Ct. 2447. For example, with very few exceptions we require that the parties exhaust tribal court remedies so that the tribal court may first consider the limits of its own sovereignty and may develop a full record. Id. at 856, 105 S.Ct. 2447; see also Reservation Tel. Coop. v. Three Affiliated Tribes, 76 F.3d 181, 184 (8th Cir.1996) (finding exhaustion necessary in case involving tribal authority to tax telephone lines and rights of way on reservation land).
5
We agree with Judge Hazel's conclusion inUnited States v. Seneca Nation of New York Indians, 274 F. 946, 951 (W.D.N.Y.1921):
[I]n the absence of congressional action bestowing upon the individual Indians the right to litigate internal questions relating to their property rights in the federal courts, and conferring jurisdiction upon this court to determine such controversies, this court should not assume jurisdiction.
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990 F.2d 1263
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.UNITED STATES of America, Plaintiff-Appellee,v.Jeffrey W. KLEINSMITH, Defendant-Appellant.UNITED STATES of America, Plaintiff-Appellant,v.Jeffrey W. KLEINSMITH, Defendant-Appellee.
Nos. 92-50333, 92-50380.
United States Court of Appeals, Ninth Circuit.
Submitted April 8, 1993.*Decided April 12, 1993.
MEMORANDUM***
1
Before NOONAN and LEAVY, Circuit Judges, and FITZGERALD,** Senior District Court Judge.
2
The appellant was charged with the manufacture and attempted manufacture of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 846, and the possession of methamphetamine with the intent to distribute, in violation of 21 U.S.C. § 841(a)(1). The appellant entered a conditional plea of guilty, reserving the right to appeal the denial of his motion to suppress (No. 92-50333). He was sentenced to ninety-seven months' imprisonment, to be followed by four years of supervised release. The government cross-appeals the sentence on the grounds that the court was required by statute to sentence Kleinsmith to a mandatory minimum of ten years (No. 92-50380).
3
Whether the Court Abused Its Discretion in Denying an Evidentiary Hearing on the Motion to Suppress
4
Whether an evidentiary hearing is warranted on a motion to suppress rests in the discretion of the district court. United States v. Wardlow, 951 F.2d 1115 (9th Cir.1991), cert. denied, 113 S.Ct. 469 (1992).
5
Kleinsmith's main argument is that there were no exigent circumstances to permit a warrantless search of his residence. We disagree.
6
Kleinsmith relies on a declaration of Mellinger, at whose residence this incident began. He also relies on his own interpretation of the actions the police took to show there were no exigent circumstances. However, "[e]xigency must be viewed from the totality of the circumstances known to the officers at the time of the warrantless entry." People of the Territory of Guam v. Borja, 732 F.2d 733, 736 (9th Cir.), cert. denied, 469 U.S. 919 (1984).
7
The record of telephone conversations between Mellinger (who was concerned about his wife), a police dispatcher, and several officers at the time of the incident shows that: (1) Kleinsmith and a friend were yelling outside the Mellinger residence for Mellinger's new wife, Donna, at 2:00 a.m. on the morning of December 1, 1991; (2) Kleinsmith came through a bedroom window, which he may have previously broken, and ripped the telephone from its connection as Donna was trying to call 911 (Supplemental Excerpt of Record at 10-13); (3) Kleinsmith threatened Mellinger and grabbed Donna's wrists; (4) Donna left with Kleinsmith, a former boyfriend, to avoid further confrontation and possible physical harm to herself and her husband; (5) Mellinger provided Kleinsmith's address and asked the police to check on Donna's welfare; (6) eighteen minutes after Mellinger's request, two officers arrived at the Kleinsmith residence and were told falsely by a J. Terry Miller that he was alone in the house when in fact the officers had observed another male leave the front room; (7) Deputy Basham informed Miller, who changed his story to say there were two children in the house, that he was going to make a quick check of the residence for Donna; (8) Deputy Basham saw and smelled a large quantity of methamphetamine in plain view in one of the bedrooms; and (9) Deputy Basham found Kleinsmith and Donna in another room, with a plastic tube filled with marijuana in plain view.
8
Because these facts clearly support the district court's finding of exigency, there was no abuse of discretion in denying an evidentiary hearing. See Borja, 732 F.2d at 736 (exigent circumstances where the intruder was known and from threats made earlier, it was thought his wife was with him and in danger).
9
We agree with the district court that there were exigent circumstances and that the entry into Kleinsmith's residence was not illegal; that the telephonic search warrant was valid;1 and that Kleinsmith's statements to the police should not be suppressed. Therefore, we affirm in No. 92-50333.
10
Whether the District Court Erred in Sentencing Kleinsmith to Less Than the Mandatory Minimum Sentence Required by Law
11
We review de novo the question of whether the guidelines have been properly applied. United States v. Hill, 915 F.2d 502, 505 (9th Cir.1990).
12
The district court specifically found that a total of 142.3 grams of methamphetamine were recovered from Kleinsmith. Supplemental Excerpt of Record at 55-56. Title 21, United States Code, Section 841(b)(1)(A)(viii) mandates a minimum mandatory sentence of ten years, or 120 months, for the possession of more than 100 grams of methamphetamine with the intent to distribute. Nevertheless, the district court sentenced Kleinsmith to only 97 months.
13
We have held that where sentencing statutes mandate minimum terms in excess of the maximum applicable Guideline sentence, the statutes control. United States v. Williams, 939 F.2d 721, 725-26 (9th Cir.1991). Therefore, we must reverse the district court's sentence in No. 92-50380.
14
AFFIRMED in part and REVERSED and REMANDED for imposition of sentence in accordance with 21 U.S.C. 841(b)(1)(A)(viii) (1988).
*
The panel unanimously finds this case suitable for submission on the record and briefs and without oral argument. Fed.R.App.P. 34(a) and Ninth Circuit Rule 34-4
**
The Honorable James M. Fitzgerald, Senior United States District Judge for the District of Alaska, sitting by designation
***
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3
1
Kleinsmith argues that the warrant contained false and recklessly inaccurate information in violation of Franks v. Delaware, 438 U.S. 154 (1978). The record does not support the contention that there was anything misleading in the affidavit
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219 P.3d 28 (2009)
231 Or. App. 59
Rex Lee LARSEN, Petitioner,
v.
BOARD OF PAROLE AND POST-PRISON SUPERVISION, Respondent.
No. A136135.
Court of Appeals of Oregon.
On Petitioner's Petition for Reconsideration January 30, 2009.
Appellate Commissioner's Order of Dismissal June 26, 2008.
Decided September 23, 2009.
*29 Rex Lee Larsen pro se for petition.
Before WOLLHEIM, Presiding Judge, and SCHUMAN, Judge, and ROSENBLUM, Judge.
ROSENBLUM, J.
Petitioner seeks reconsideration of the Appellate Commissioner's order dismissing his petition for judicial review of an order by respondent Board of Parole and Post-Prison Supervision. In 2002, petitioner requested that the board conduct a murder review hearing under ORS 163.105(3) (1977).[1] The board ultimately denied relief.[2] Petitioner requested administrative review of that decision and then, before the board acted on that request, filed the petition for judicial review at issue here. The board moved to dismiss the petition for judicial review, and the commissioner granted the board's motion on the ground that petitioner had not exhausted his administrative remedies as required by ORS 144.335(1)(b). Petitioner now seeks reconsideration of the commissioner's order. We conclude that the commissioner correctly dismissed the petition for judicial review.
Petitioner asserts that the board's decision in a murder review hearing held pursuant to ORS 163.105 is subject to judicial review under ORS 183.480 and ORS 183.482 of the Administrative Procedures Act (APA), rather than ORS 144.335. Petitioner notes that ORS 163.105(3) governs the murder review and requires that the "proceeding shall be conducted in the manner prescribed for a contested case hearing under ORS 183.310 to 183.500 * * *." Petitioner argues that a proceeding under the APA includes the judicial review provision in ORS 183.482 which does not require exhaustion of administrative remedies and, thus, that it was not necessary for him to seek administrative review under ORS 144.335(1) before seeking judicial review.
ORS 144.335(1)(b) provides that a person over whom the board exercises its jurisdiction may seek judicial review of a final order of the board if the person "has exhausted administrative review as provided by board rule." The rule adopted by the board, OAR XXX-XXX-XXXX(2), provides that administrative review is exhausted when the board "denies review, or grants review and either denies or grants relief." In other words, administrative review is not exhausted until the board acts on the request for review.
ORS 163.105, the statute governing murder review hearings, provides that its provisions apply "[n]otwithstanding the provisions of ORS chapter 144 * * *." That *30 clause does not mean, however, that every provision in ORS chapter 144 is inapplicable in matters related to murder review hearings. The "notwithstanding" clause simply means that, to the extent that ORS 163.105 and ORS chapter 144 contain conflicting provisions, the former controls. Severy v. Board of Parole, 318 Or. 172, 178, 864 P.2d 368 (1993). In other words, the provision of ORS chapter 144 provides the governing laws unless ORS 163.105 provides a different law.
Petitioner contends that ORS 163.105(3) governs judicial review and, thus, that ORS 144.335 does not apply. To determine the legislature's intent in enacting ORS 163.105(3), we first look to the text of the statute in context. State v. Gaines, 346 Or. 160, 171, 206 P.3d 1042 (2009). ORS 163.105(3) provides that, following a conviction for aggravated murder, after a minimum period of confinement has passed, the board,
"upon the petition of a prisoner so confined, shall hold a hearing to determine if the prisoner is likely to be rehabilitated within a reasonable period of time. The sole issue shall be whether or not the prisoner is likely to be rehabilitated within a reasonable period of time. The proceeding shall be conducted in the manner prescribed for a contested case hearing under ORS 183.310 to 183.500 [with certain exceptions that are not at issue here]."
Petitioner first argues that, because ORS 163.105(3) refers to "ORS 183.310 to 183.500," all of the statutes encompassed within that range apply to murder review hearings, including the judicial review statutes, ORS 183.480 and ORS 183.482. We disagree. In 1977, the year ORS 163.105 was enacted, ORS 183.310 to 183.500 comprised all of ORS chapter 183 that is, the entire APA. The legislature appears to have used the wording "ORS 183.310 to 183.500" to refer to the APA generically, rather than to signify that every statute therein applies to murder review hearings. Indeed, a number of the statutes in the APA had nothing to do with contested case hearings and thus would have had no application in a proceeding "conducted in the manner prescribed for a contested case hearing." See, e.g., ORS 183.330-183.390 (governing administrative agency rulemaking); ORS 183.484 (providing for judicial review of orders in "other than contested cases").
Perhaps most telling is ORS 183.500 (1977), amended by Or. Laws 2003, ch. 576, § 394, the last statute in the 1977 version of the APA, which is specifically referred to in ORS 163.105(3). It provided, "Any party to the proceedings before the circuit court may appeal from the decree of that court to the Court of Appeals. Such appeal shall be taken in the manner provided by law for appeals from the circuit court in suits in equity." The only proceedings before the circuit court that arose out of the APA concerned "orders other than contested cases." ORS 183.484 (1977). Thus, that statute had no application to murder review hearings. It follows that the legislature did not intend that every provision of the APA would apply in murder review hearings.
We turn, then, to whether the judicial review provisions in the APA specifically do apply. As noted, ORS 163.105(3) provides, "The proceeding shall be conducted in the manner "prescribed for a contested case hearing under ORS 183.310 to 183.500 * * *." Petitioner contends that the word "proceeding" must be construed broadly to include judicial review. In Icenhower v. SAIF, 180 Or.App. 297, 302, 43 P.3d 431 (2002), we observed that the term "proceeding" can refer either to the entire course of litigation or to individual steps within that process. We look to the context in which the word appears to determine which meaning the legislature intended.
In this instance, petitioner points out that ORS 163.105(3) provides that the board "shall hold a hearing to determine if the prisoner is likely to be rehabilitated within a reasonable period of time" but that "[t]he proceeding shall be conducted in the manner prescribed for a contested case hearing * * *." (Emphasis added.) He contends that the use of two different words "hearing" and "proceeding" is significant. In his view, if the legislature had intended that only the hearing itself would be conducted in the manner prescribed by the APA, it would *31 have used the word "hearing" throughout the statute. Thus, he argues, the word "proceeding" must be understood to mean something other than just the hearing.
At first blush, petitioner's argument is not without appeal. Ordinarily, "[w]hen the legislature uses different terms in the same statute, we infer that it intended those terms to have different meanings." Brown v. Hackney, 228 Or.App. 441, 447, 208 P.3d 988 (2009). That is not always the case, however. See Abbott v. Baldwin, 178 Or. App. 289, 297, 36 P.3d 516 (2001), rev. den., 334 Or. 75, 45 P.3d 449, cert. den., 537 U.S. 901, 123 S.Ct. 217, 154 L.Ed.2d 174 (2002) (noting that "the legislature has used the terms `prosecution' and `criminal action' interchangeably" in the statutes related to time limitations in criminal actions). Petitioner's argument is problematic because his reading of ORS 163.105(3) ignores the second appearance of the word "hearing" in the statute: "The proceeding shall be conducted in the manner prescribed for a contested case hearing under ORS 183.310 to 183.500 * * *." (Emphasis added.)
Judicial review is not part of a contested case hearing. As we have previously noted,
"the `manner prescribed for a contested case hearing' derived from specific statutes setting out those requirements, that is, the requirements for contested case hearings set out in ORS 183.310 to 183.500. In 1977, the statutes within that range of citations that pertained to contested case proceedings consisted of ORS 183.415 (notice, hearing, and record requirements), ORS 183.418 (interpreters for the disabled in contested cases), ORS 183.425 (depositions and subpoenas of material witnesses), ORS 183.440 (subpoenas generally), ORS 183.450 (rules of evidence in contested cases), ORS 183.460 (examination of the evidence in contested cases), and ORS 183.470 (orders in contested cases). Apparently, the legislature intended those statutes to apply to aggravated murder review hearings; they were the specific statutes to which the legislature collectively referred in describing what it meant by a hearing in the `manner prescribed for a contested case hearing.'"
Larsen v. Board of Parole, 206 Or.App. 353, 360, 138 P.3d 16 (2006). Thus, the statutes that prescribe the manner for a contested case hearing do not include the provisions governing judicial review. To conclude otherwise would read the word "hearing" out of the last sentence in ORS 163.105(3), which we may not do. See ORS 174.010 (in construing a statute, a court may not "omit what has been inserted"). It follows that the APA statutes governing judicial review do not apply.[3]
Because ORS 163.105 does not create a conflict with the judicial review provision in ORS 144.335, the latter statute applies. The Appellate Commissioner did not err in ordering dismissal of the petition for judicial review on that ground.
Petitioner makes other arguments in support of his position that judicial review should proceed in this case. We reject those arguments without discussion, with the following exception: Petitioner contends that applying the current version of ORS 144.335 violates due process as well as the prohibition of ex post facto legislation. Petitioner asserts that the current version of ORS 144.335 and the rules adopted thereunder impose no time limit by which the board must decide a request for administrative review. Petitioner contends that, without a time limit, the board could forever decline to decide a request for administrative review, thereby denying an offender the opportunity to seek judicial review and the possibility of obtaining release on parole if the board's decision were reversed on judicial review. By contrast, the version of ORS 144.335 in effect in 1978, the time of petitioner's underlying crime, did not require administrative review at all, so a prisoner could seek judicial review of the board's decision in a murder review hearing as soon as the final order was issued.
*32 The flaw in petitioner's argument is this: In Taylor v. Board of Parole, 200 Or.App. 514, 521, 115 P.3d 256, rev. den., 339 Or. 475, 124 P.3d 1248 (2005), we held that the board may not, by "protracted inaction," preclude judicial review of its orders. We stated that,
"consistently with the exhaustion policy of ORS 144.335(1), this court has jurisdiction over a board order when the board, through protracted inaction, has unreasonably failed to resolve a request for administrative review of that order. In such a circumstance, administrative review might be so frustrated by neglect or inaction as to be futile."
Id. (omitted). Thus, even under the current version of ORS 144.335(1), the time within which the board must decide a request for administrative review is not limitless. We observe that the passage of time between petitioner's request for administrative review and his petition for judicial review in this case is even shorter than the passage of time in Taylor, in which we dismissed judicial review. Accordingly, we reject petitioner's ex post facto and due process arguments.
Reconsideration allowed; prior order adhered to.
NOTES
[1] ORS 163.105 was enacted in 1977. Or. Laws 1977, ch. 370, § 2. It has been amended a number of times since then. Because petitioner committed the crime underlying this case in 1978, the substantive provisions of the 1977 version of the statute apply. However, the procedural provisions that were in effect when petitioner requested the murder review hearing in 2002 govern the procedures. See Alexander v. Board of Parole, 205 Or.App. 443, 134 P.3d 1055, rev. den., 341 Or. 449, 143 P.3d 772 (2006) (applying substantive criteria for parole release provided in the version of the statute in effect at the time of the petitioner's crime; applying procedural requirements in effect at the time of the hearing). For present purposes, that distinction is of no moment, because the material provisions were substantively the same at both times, although, by 2002, subsection (3) had been renumbered as subsection (2). Or. Laws 1985, ch. 3, § 1. In determining the legislature's intent as to whether judicial review is to be governed by the Administrative Procedures Act or ORS 144.335, we look to the 1977 version of ORS 163.105 and its context. Because the primary question in this case is which statute governs judicial review, all references to ORS 163.105 in this opinion are to the 1977 version.
[2] The board initially held a hearing that did not comport with the manner prescribed for a contested case hearing. See Larsen v. Board of Parole, 206 Or.App. 353, 365, 138 P.3d 16 (2006). Petitioner sought judicial review, and we remanded for a new hearing. Id.
[3] In Morgan v. MacLaren School, 23 Or.App. 546, 548, 543 P.2d 304 (1975), we held that, "[u]nder the terms of ORS 183.480(2)[,] administrative orders arising from `contested cases' must be appealed directly to this court for judicial review." Because we conclude that, in this context, ORS 183.480 does not apply, Morgan is inapposite here.
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38 So.3d 362 (2010)
In re Subia EKRAM.
No. 2010-OB-1210.
Supreme Court of Louisiana.
June 25, 2010.
Granted. Petitioner is allowed to take the Louisiana State Bar Examination. Upon satisfactorily passing the examination, petitioner may apply to this court for the appointment of a commissioner in accordance with Supreme Court Rule XVII, Section 9, to take evidence and report to this court as to whether petitioner has the appropriate character and fitness to be admitted to the bar and allowed to practice law in the State of Louisiana.
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578 F.Supp. 359 (1984)
The CRISPIN COMPANY, Plaintiff,
v.
M/V MORNING PARK, Her Engines, Tackle, Apparel, Etc. and Cho Yang Shipping Co., Ltd., Clover Trading Co., Nassau Navigation, Inc. and Valor Stevedoring Co., Defendants.
Civ. A. No. H-82-1707.
United States District Court, S.D. Texas, Houston Division.
January 27, 1984.
Judgment Amended May 11, 1984.
Sharpe & Kajander, A. Thomas Kajander, Houston, Tex., for plaintiff.
Royston, Rayzor, Vickery & Williams, Gus A. Schill, Haight, Gardner, Poor & Havens, Vidal Martinez, and Brown, Sims & Ayre, G. Byron Sims, Houston, Tex., for defendants.
MEMORANDUM AND ORDER
STERLING, District Judge.
This case arises from the non-delivery of a cargo of steel pipe carried aboard the vessel M/V MORNING PARK from the Port of Puerto Cabello, Venezuela, to Houston, Texas, in June, 1981. Plaintiff seeks damages, prejudgment interest, interest on its total judgment, costs of court, and attorney's fees.
Defendants Nassau Navigation, Inc. and Valor Stevedoring have been dismissed from the case. Defendant Clover Trading Co. is presently in bankruptcy in Denmark and has not appeared or answered. Defendant Cho Yang Shipping Co., Ltd., owner of the M/V MORNING PARK, has appeared and denied Plaintiff's claim.[1] All relevant facts have been stipulated by the Plaintiff and Defendant Cho Yang, the latter admitting liability for the non-delivery of eight bundles of Plaintiff's cargo. Jurisdiction of this Court is proper pursuant to 28 U.S.C. § 1333.
The only contested issue of law is that of damages under § 1304(5) of the Carriage of Goods By Sea Act ("COGSA"), 46 U.S.C. § 1300 et seq. If the missing steel pipe[2] was shipped in "packages" as defined by COGSA then Defendants' liability is limited to $4,000.00. If calculated by COGSA's "customary freight unit" limitation, then Plaintiff's damages total $7,492.00.
COGSA provides no definition of the term "package," and the legislative history is unhelpful. Decisions on this issue fall into two general groups. Those courts following the Second Circuit's approach adopt an expansive definition of the term "package" as "a class of cargo, irrespective of size, shape or weight, to which some packaging preparation for transportation has *360 been made which facilitates handling, but which does not necessarily conceal or completely enclose the goods." Aluminios Pozuelo Ltd. v. S.S. NAVIGATOR, Et Al, 407 F.2d 152, 155 (2nd Cir.1968). Other courts have adopted the Ninth Circuit's narrower view that a cargo is a "package" under COGSA only when the preparation of the goods for shipment conceals their identity. Hartford Fire Insurance Co. v. Pacific Far East Line, Inc., 491 F.2d 960, 964 (9th Cir.1974), cert. denied, 419 U.S. 873, 95 S.Ct. 134, 42 L.Ed.2d 112 (1974). While the Fifth Circuit apparently has not conclusively defined "package" in this context, it has stated clearly that cargo does not have to be fully enclosed to qualify as a package, Calmaquip Engineering West Hemisphere Corporation v. West Coast Carriers, Ltd., 650 F.2d 633, 639 (5th Cir. 1981), and has identified itself more closely with the Second Circuit's approach. Allstate Insurance Company v. Inversiones Navieras Imparca, C.A., 646 F.2d 169, 172 (5th Cir.1981); Croft & Scully Co. v. M/V Skulptor Vuchetich, 664 F.2d 1277, 1281 (5th Cir.1982).
Black's defines "package" as
"[a] bundle put up for transportation or commercial handling; a thing in form to become, as such, an article of merchandise or delivery from hand to hand. A parcel is a small package; `parcel' being the diminutive of `package.' Each of the words denotes a thing in form suitable for transportation or handling, or sale from hand to hand. As ordinarily understood in the commercial world, it means a shipping package."
Black's Law Dictionary 998 (5th ed. 1979). It is stipulated that the bundling of the pipes into lifts "facilitated the handling and transportation of the pipe." Joint Stipulation of Facts No. 11. The documentation used in the transaction on balance indicates that each lift of pipe constituted a package.[3] Although the parties' characterization of the cargo cannot override the statutory definition, Brown & Root, Inc. v. M/V PEISANDER, 648 F.2d 415, 420 (5th Cir. 1981), see also Gebr. Bellmer KG. v. Terminal Services Houston, Inc., 711 F.2d 622, 624 (5th Cir.1983), the Fifth Circuit permits an examination of documents which might indicate the intent and mutual understanding of the parties as to the meaning of the term "package." Croft & Scully Co., supra, 664 F.2d at 1281.[4] Finally, the Court notes that the bundled pipe has the common sense, visual appearance of a package, and concludes that each five-piece lift constituted a "package" as that term is employed in § 1304(5) of COGSA.[5]
It is therefore ORDERED that Plaintiff's damages total $4,000, plus costs of court and attorney's fees of $2,976.57 pursuant to TEX.REV.CIV.STAT.ANN. art. 2226 (Vernon Supp.1982-83). Plaintiff is entitled to prejudgment interest of 9%, said rate based on TEX.REV.CIV.STAT.ANN. art. 5069-1.05 (Vernon Supp.1982-83) and accruing from the date of delivery of the pipe, June 22, 1981. Postjudgment interest shall accrue at the applicable legal rate.
ORDER
Attorney's fees were improvidently awarded in the Final Judgment previously entered in this admiralty suit based upon the Carriage of Goods by Sea Act (COGSA), 46 U.S.C. § 1300 et seq. See Noritake Co., Inc. v. M/V HELLENIC CHAMPION, 627 F.2d 724, 730 (5th Cir.1980); Platoro Ltd., Inc. v. Unidentified Remains, Etc., 695 F.2d 893, 905-06 (5th Cir.1983), cert. *361 denied ___ U.S. ___, 104 S.Ct. 77, 78 L.Ed.2d 89; Brazosport Towing Co., Inc. v. Donjon Marine Co., Inc., 556 F.Supp. 640, 644 S.D.Tex. 1983). It is therefore ORDERED that the motion to amend judgment to exclude the award of attorney's fees is hereby GRANTED.
Plaintiff's motion to dismiss with prejudice and for relief from judgment, pursuant to Rules 41(a)(2) and 60(b)(5), FED.R. CIV.P. is hereby DENIED.
NOTES
[1] The Marine Office of America Corporation has become subrogated to the named Plaintiff's rights and is now the real party in interest.
[2] The bill of lading shows that fifty-two lifts of five pieces of pipe each were loaded at Puerto Cabello; the dock delivery receipts indicate that only forty-four lifts were unloaded at the Port of Houston. Each "lift" consisted of five pieces of 42-foot pipe strapped together by steel bands, but not otherwise boxed, crated or enclosed.
[3] The bill of lading, in the column captioned "No. of Pkgs." says "Lifts 52." Dock delivery receipts issued in Houston list a total of "44" in the column labeled "No. Pkgs." and describe the cargo as "Bdls pipe." under the column headed "Commodity." None of the dock delivery receipts refers to the total number of pieces of pipe delivered; the bill of lading does.
[4] At least in the situation where COGSA does not apply of its own force and effect, and is merely incorporated as a term of the bill of lading. Croft & Scully, supra, 664 F.2d at 1280 n. 7.
The Fifth Circuit in Allstate Insurance Co., supra, 646 F.2d at 172, expressly adopted the holding and reasoning of two Second Circuit opinions defining "package" under COGSA, both of which referred to the shipping documents and other evidence of the intention of the parties. Leather's Best, Inc. v. SS MORMACLYNX, 451 F.2d 800, 815 (2nd Cir.1971); Mitsui & Co., Ltd. v. American Export Lines, 636 F.2d 807, 822-23 (2nd Cir.1981).
[5] There can be little doubt that the Second Circuit would conclude that the lifts in the instant case were "packages." Mitsui, supra, 636 F.2d at 823 ("If the ingots had in fact been bundled, each bundle would have been a package.").
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United States Court of Appeals for the Federal Circuit
05-3364
PATRICIA A. HERNANDEZ,
Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent.
Patricia A. Hernandez, of Bonita, California, pro se.
Steven J. Abelson, Attorney, Commercial Litigation Branch, Civil Division, United
States Department of Justice, of Washington, DC, for respondent. With him on the brief
were Peter D. Keisler, Assistant Attorney General; David M. Cohen, Director; and
Franklin E. White, Jr., Assistant Director.
Appealed from: United States Merit Systems Protection Board
United States Court of Appeals for the Federal Circuit
05-3364
PATRICIA A. HERNANDEZ,
Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent.
__________________________________________________
NONPRECEDENTIAL DECISION ISSUED: March 10, 2006
PRECEDENTIAL OPINION ISSUED: June 21, 2006
__________________________________________________
Before RADER, Circuit Judge, CLEVENGER, Senior Circuit Judge, and DYK, Circuit
Judge.
DYK, Circuit Judge.
Patricia A. Hernandez (“Ms. Hernandez”) appeals the final decision of the Merit
Systems Protection Board (the “Board”) affirming the decision of the Office of Personnel
Management (“OPM”) denying her request for survivor annuity benefits under the Civil
Service Retirement System (“CSRS”). We affirm.1
BACKGROUND
Ms. Hernandez married Juan Hernandez (“Mr. Hernandez”) on June 18, 1976.
Mr. Hernandez filed for CSRS retirement annuity benefits effective May 1, 1999,
electing reduced annuity payments to provide survivor benefits for his spouse. Mr. and
1
This opinion was originally issued on March 10, 2006, as non-
precedential. The panel has granted the respondent’s Request that the Court’s March
10, 2006, Opinion Be Reissued as Precedential.
Ms. Hernandez divorced on August 17, 2001. The marital separation agreement
(“MSA”) allocated “Retirement benefits from [Mr. Hernandez’s] employment through the
Federal Government . . . TO HUSBAND.” App. at 2.
Mr. Hernandez informed OPM of the divorce and inquired about terminating
surviving spouse benefits by letter dated December 25, 2001. OPM in a letter to Mr.
Hernandez dated February 23, 2002, responded: “If you would like to terminate your
survivor election please forward your divorce decree to [OPM] . . . . Upon receipt of
your divorce decree we should be able to give you the amount of your annuity
recalculation.” App. at 24. On September 16, 2002, Mr. Hernandez informed OPM by
telephone that he had forwarded a copy of the MSA to OPM and that he wanted to
terminate survivor benefits. The record does not disclose whether OPM received the
MSA; Ms. Hernandez alleges that Mr. Hernandez’s annuity was never increased to
reflect termination of the survival election. Annual written notices distributed to all
CSRS annuitants between 1989 and 2003 stated that “retirees are eligible to elect a
reduced annuity to provide a survivor annuity for a former spouse if they send a signed
request to OPM . . . within 2 years after the date the marriage ended by divorce or
annulment . . . .” App. at 6. Mr. Hernandez never explicitly elected former spouse
benefits for his former spouse, Ms. Hernandez. Mr. Hernandez died February 4, 2004.
OPM denied Ms. Hernandez’s request for survivor benefits on June 22, 2004.
Ms. Hernandez appealed to the Board, which affirmed OPM’s determination in an initial
decision issued December 17, 2004. The Board concluded that under 5 C.F.R.
§ 831.632, because they divorced, Mr. Hernandez was required to make an affirmative
election to grant Ms. Hernandez former-spousal survivor benefits; that OPM had
05-3364 2
properly notified Mr. Hernandez of this requirement; that Mr. Hernandez had neither
expressly nor impliedly made such an election; and that Mr. Hernandez did not intend to
afford Ms. Hernandez survivor benefits after the divorce. The Board also found no
provision in the MSA granting Ms. Hernandez survivor annuity benefits. The Board
denied Ms. Hernandez’s petition for review of the initial decision on July 21, 2005.
Ms. Hernandez timely appealed to this court, and we have jurisdiction pursuant
to 28 U.S.C. § 1295(a)(9).
DISCUSSION
We must affirm the Board’s decision unless it was arbitrary, capricious, an abuse
of discretion, or otherwise not in accordance with law; obtained without procedures
required by law, rule or regulation; or unsupported by substantial evidence. 5 U.S.C.
§ 7703(c) (2000); Yates v. Merit Sys. Prot. Bd., 145 F.3d 1480, 1483 (Fed. Cir. 1998).
Divorce terminates a prior election of spousal survivor benefits. 5 U.S.C.
§ 8339(j)(5)(A) (2000). A former spouse may receive survivor benefits if the CSRS
annuitant makes an affirmative election to grant such benefits. 5 U.S.C. § 8339(j)(3)
(2000). The government must “on an annual basis, inform each annuitant of such
annuitant’s rights of election under section 8339(j).” 5 U.S.C. § 8339 note (2000).
Congress’ enactment of this notice requirement “means that the information must be
correct and not misleading.” Wood v. Office of Pers. Mgmt., 241 F.3d 1364, 1367 (Fed.
Cir. 2001). A former spouse may receive survivor annuity benefits even without an
affirmative election by the annuitant if (1) the annuitant did not receive the required
notice, and (2) “there [is] evidence sufficient to show that the retiree indeed intended to
05-3364 3
provide a survivor annuity for the former spouse.” Id. at 1368; Vallee v. Office of Pers.
Mgmt., 58 F.3d 613, 616 (Fed. Cir. 1995).
In Simpson v. Office of Personnel Management, 347 F.3d 1361, 1365 (Fed. Cir.
2003), we held that notice is insufficient if it does not “stat[e] that a pre-divorce election
automatically terminates upon divorce and that an annuitant must make a new election
to provide a survivor annuity for a former spouse.” The annual notices Mr. Hernandez
received made neither of these statements—rather, they stated that an annuitant is
“eligible to elect” survivor benefits for a former spouse and that the election may be
made by a “signed request to OPM.” The notice here does not make clear that such a
written election is required for survivor benefits to continue after divorce. In Wood, we
also held that notice is insufficient if it does not inform the annuitant “that his continued
receipt of a reduced annuity would not suffice to constitute an election.” 241 F.3d at
1367. No notice was given here to inform Mr. Hernandez that “continued receipt of a
reduced annuity would not suffice to constitute an election.” After receiving the annual
notices Mr. Hernandez, who, we assume, continued to receive the reduced annuity
required to provide survivor benefits, could still have reasonably concluded that his pre-
divorce election remained effective after the divorce, and that no further action was
required to preserve Ms. Hernandez’s survivor benefits. Thus, the notice was
insufficient to inform Mr. Hernandez that, after divorce, a written reelection of survivor
benefits was required. Under Simpson, OPM’s annual notice was legally insufficient.
Nevertheless, the Board’s decision was supported by substantial evidence
despite the inadequacy of the notice. Under Wood, inadequate notice only entitles a
former spouse to benefits if there is sufficient evidence that the annuitant intended the
05-3364 4
former spouse to receive such benefits. Ms. Hernandez asserts that although OPM
never increased Mr. Hernandez’s annuity payments after he requested discontinuance
of survivor benefits, Mr. Hernandez did not contact OPM again regarding his annuity
after the September 16, 2002, telephone call.2 We have held that “an employee’s
continued acceptance of a reduced annuity following divorce, standing alone,
adequately demonstrate[s] that employee’s intent to provide a survivor annuity for the
former spouse,” Wood, 241 F.3d at 1368. Here, however, Mr. Hernandez’s continued
acceptance of a reduced annuity does not stand alone. The Board found that Mr.
Hernandez took affirmative steps to discontinue survival benefits for Ms. Hernandez
after the divorce. Such actions are fundamentally inconsistent with the intent to
continue to provide such benefits. We thus conclude that the Board’s decision to affirm
the denial of survivor benefits is supported by substantial evidence.
CONCLUSION
The Board’s decision is
AFFIRMED.
COSTS
No costs.
2
Mr. Hernandez’s will, executed November 24, 2003, provides in pertinent
part that Mr. Hernandez’s “[OPM] insurance policy shall be distributed to Patricia
Hernandez (per policy survivor benefits).” App. at 27. Ms. Hernandez insists that this
provision is pertinent to Mr. Hernandez’s intent regarding survivor benefits. We agree
with the Board that this provision is irrelevant because it bequeaths an insurance policy
and does not relate to CSRS survivor annuity benefits.
05-3364 5
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629 F.Supp.2d 644 (2009)
Aslee SMITH, Plaintiff
v.
John E. POTTER, Postmaster General, United States Postal Service, Defendant.
Civil Action No. 3:07CV634L-JCS.
United States District Court, S.D. Mississippi, Jackson Division.
May 8, 2009.
*647 Latrice Westbrooks, Jackson, MS, for Plaintiff.
Mitzi Dease Paige, U.S. Attorney's Office, Jackson, MS, for Defendant.
MEMORANDUM OPINION AND ORDER
TOM S. LEE, District Judge.
This cause is before the court on the motion of defendant John E. Potter, Post-master *648 General, United States Postal Service, for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Plaintiff Aslee Smith has responded in opposition to the motion and the court, having considered the memoranda of authorities, together with attachments, submitted by the parties, concludes that defendant's motion is well taken and should be granted.
Plaintiff Aslee Smith filed this action alleging claims against her employer, the United States Postal Service (USPS), for race and gender discrimination under Title VII, 42 U.S.C. § 2000e et seq., for age discrimination under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq., for disability discrimination under the Americans with Disabilities Act (ADA), 42 U.S.C.A. § 12101 et seq., and for breach of contract and intentional and/or negligent infliction of emotional distress. The United States has moved for summary judgment on all of these claims. In response to the Government's motion for summary judgment, plaintiff has explicitly conceded her claims for gender and age discrimination and for breach of contract. However, she maintains that the motion should be denied as to her remaining claims.
The following facts are undisputed. Plaintiff became employed by the Postal Service in November 1986. In 1997, she was diagnosed with carpel tunnel syndrome, which was deemed by the Office of Workers' Compensation Programs (OWCP) to be an on-the-job injury, as a result of which she was placed on limited duty status pursuant to Part 546.141 of the Postal Service Employee and Labor Relations Manual,[1] and offered the limited duty/rehabilitation position of Modified Distribution Clerk at the Jackson, Mississippi General Mail Facility, with hours of 10:50 p.m. to 7:00 a.m., and with Tuesdays and Wednesdays (Monday and Tuesday nights) off. Plaintiff accepted this position on May 24, 1997, and continued to work the referenced position' and schedule until around 2000, when she bid on a position with the same job duties and hours, but with off days of Friday and Saturday (i.e., Thursday and Friday nights). From the record, it appears that plaintiff continued to work this schedule until April 2006, when Mary Gordon, identified by the parties as a Manager, In-Plant Support, presented her with a modified job offer for a position with the same job duties, but with hours of 10:00 p.m. to 6:00 a.m. and days off of Saturday and Sunday (i.e., Friday and Saturday nights). Plaintiff promptly accepted this offer because she wanted Friday and Saturday nights off. However, her immediate supervisor Diamond Taylor, upon learning of this modified job offer only after it had already been accepted by plaintiff, took the position that the offer had been extended in error by Gordon, who was not plaintiff's supervisor. In fact, two weeks earlier, on April 4, 2006, a modified job offer had been directed to plaintiff by Taylor which purported to *649 change plaintiffs work hours from 1:00 a.m. to 9:30 p.m. (which would have had plaintiff working 20.5 hour shifts), but which did not change her days off. Plaintiff rejected this job offer because of the time discrepancy. On April 19, Taylor had directed that a corrected job offer be prepared setting forth work hours of 1:00 a.m. to 9:30 a.m., but again, not changing plaintiffs days off. In the meantime, though, Gordon had prepared a modified job offer which not only corrected the error in the hours as appeared in the April 4 offer but also changed the days off from Friday and Saturday to Saturday and Sunday.
Taylor promptly rescinded Gordon's modified job offer of Saturdays and Sundays off, and on May 3, presented plaintiff with a modified job offer returning her to Fridays and Saturdays off. In addition, Taylor and her supervisor, Robert Howard, met with plaintiff and her union representative on May 6, and advised her that the April 19 job offer had been rescinded and that she should report to work in accordance with the job offer of May 3. However, plaintiff refused to sign the May 3 modified job offer.
Another modified job offer returning plaintiff to Fridays and Saturdays off was sent to plaintiff on May 16, by regular and certified mail. Plaintiff refused and/or otherwise ignored these offers, as well. On May 18, a memo signed by Human Resource Manager Ted Woodall was presented to plaintiff from the Injury Compensation Office, again notifying her that the modified job offer of April 19 had been rescinded and that the new modified offer had been mailed to her, and informing plaintiff that she was scheduled to work on Saturday, May 20, at 10:00 p.m. Plaintiff, however, refused to sign the memo and, notwithstanding having been repeatedly informed that the April 19 modified job offer had been rescinded and a new job offer issued, plaintiff repeatedly refused to accept and/or sign the new modified offer and continued to report for work on Fridays (i.e., Thursday nights) and not report for work on Sundays (i.e., Saturday nights). Thus, when plaintiff arrived for work on Friday July 28, 2006, at Taylor's direction, she was sent home because it was not an authorized work day.
Immediately thereafter, on July 31, plaintiff contacted the EEOC, complaining of race, age, gender, retaliation and disability discrimination, based on her claim that Diamond Taylor "instructed [her] to leave the premises for refusing to sign an illegal job offer." Plaintiff also promptly sought medical care, ostensibly for depression and stress-related issues stemming from alleged mistreatment at work by Taylor.
Pursuant to instructions from her doctor, plaintiff did not return to work until October 2, 2006. When she did return to work, she continued to report for work according to the April 19 modified job offer, i.e., on Friday and Saturday and treating Saturday and Sunday as her days off. Thus, on November 9, Tunya Hill, Manager, Distribution Operations (plaintiff's acting supervisor), informed plaintiff in writing that effective November 18, she was expected to adhere to the modified job offer of May 16, with a schedule of 9:30 p.m. to 6:00 a.m. and with Friday and Saturday as her days off. Plaintiff disregarded Hill's notice and reported for work on Friday, November 23. On that day, Hill took plaintiff "off the clock" since it was not an authorized work day, and asked plaintiff to leave. When plaintiff refused to leave despite Hill's repeated requests, Hill contacted the police, who arrived and at Hill's request, escorted plaintiff from the premises. Plaintiff did not thereafter return to work, and on February 12, 2007, she filed a charge of discrimination, alleging race, gender, age, retaliation and disability *650 discrimination. Following receipt of a notice of right to sue, she brought the present action.
As plaintiff lacks direct evidence of discrimination, the analysis of her Title VII race discrimination claim is governed by a well-established McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) methodology:
A plaintiff must first establish a prima facie case of disparate treatment on the basis of race by demonstrating that: (1)[she] is a member of a protected class; (2)[she] was qualified for the position; (3) despite [her] qualification, [she] suffered an adverse employment decision made by a defendant; and (4)[she] was replaced by, or received less favorable treatment than, similarly situated non-African Americans.
Wakefield v. State Farm Ins., 229 F.3d 1148, 2000 WL 1239170, 2 (5th Cir.2000) (table) (citations omitted). If the plaintiff demonstrates a prima facie case, the defendant employer must articulate a legitimate, nondiscriminatory reason for the adverse employment action. Id. (citing McDonnell Douglas). If it does so, the inference of discrimination created by the plaintiffs prima facie case disappears, and the court focuses on the ultimate question of whether the employer intentionally discriminated against the plaintiff employee. Id. (citing St. Mary's Honor Center v. Hicks, 509 U.S. 502, 510-11, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993)). The employee demonstrates discrimination by showing either direct evidence of discrimination or, circumstantially, that the employer's articulation of a legitimate reason for adverse treatment was pretextual. Id. (citing McDonnell Douglas, 411 U.S. at 804, 93 S.Ct. 1817).
Her claim for disability discrimination under the Rehabilitation Act involves the same burden-shifting methodology. See Seaman v. CSPH, Inc., 179 F.3d 297, 300 (5th Cir.1999).[2]
To qualify for relief under the Rehabilitation Act, a plaintiff seeking to establish a prima facie case of discrimination must show that (1) she has a disability; (2) she is an individual qualified for the job in question; (3) she worked for a program or activity receiving Federal financial assistance; and (4) an adverse employment decision was made solely because of this disability.
McKay v. Johanns, 265 Fed.Appx. 267, 268 (5th Cir.2008). If the plaintiff establishes a prima facie case of discrimination, the burden shifts to the employer to show that it had a legitimate nondiscriminatory reason for taking the adverse employment action; and, if it provides such a legitimate nondiscriminatory reason for the employment action, the burden shifts back to the plaintiff to show that the adverse action would not have occurred "but for" the protected activity. See Calderon v. Potter, 113 Fed.Appx. 586, 592 (5th Cir.2004).
Plaintiff in this case, being black, is a member of a protected class, and she was qualified for her position; defendant does not contend otherwise. Thus, she can establish these two elements of her prima facie case for race discrimination. In the court's opinion, however, she cannot establish the other elements of her prima facie race discrimination claim as it is manifest *651 both that plaintiff suffered no adverse employment action, and that she has not presented evidence sufficient to support a finding that she was treated less favorably than similarly situated non-black employees.
As for her disability discrimination claim, plaintiff is able to establish that she was qualified for her position and that she worked for a program or activity receiving federal financial assistance. However, the evidence clearly establishes that she did not have a disability and that she was not subject to an adverse employment action because of any disability or perceived disability.
In the context of discrimination claims under both Title VII and the ADA (or Rehabilitation Act), the Fifth Circuit has limited adverse employment actions to acts which affect compensation, duties and benefits. Carthren v. RT Bossier Hotel Partners, Civ. Action No. 07-2043, 2009 WL 57106, 4-5 (W.D.La. Jan. 8, 2009) (citing McKay v. Johanns, 265 Fed.Appx. 267, 268-69 (5th Cir.2008)). Under this standard, to establish a prima facie case of discrimination, a plaintiff must show that she was subject to an ultimate employment decision, such as hiring, granting leave, discharging, promoting, or compensating. Id. (citing McCoy v. City of Shreveport, 492 F.3d 551, 559 (5th Cir.2007)). As noted by the court in Carthren, in Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006), "the Supreme Court abrogated the Fifth Circuit's adverse employment action standard in the retaliation context, redefining `an adverse employment action as any action that "might well have dissuaded a reasonable worker from making or supporting a charge of discrimination."'" Carthren, 2009 WL 57106, at 4-5 (quoting McCoy). Burlington does not appear to have changed the Fifth Circuit's "adverse employment action" definition or standard for discrimination claims, however. See id.; see also Richardson v. St. Phillips College, Civ. Action No. S08-CV-0054 FB(NN), 2008 WL 5273296, 2 (W.D.Tex. Dec. 19, 2008) (expressly applying "ultimate employment decision" standard to Title VII discrimination claim to find that assignment of professor to teach at affiliated campus rather than main campus did not constitute an adverse employment action where the employee's pay, benefits and level of responsibility remained the same).
Indeed, in Grosskopf v. Potter, No. 07-51397, ___ Fed.Appx. ___, ___, 2008 WL 2884544, 1 (5th Cir.2008), a panel of the Fifth Circuit, citing the court's pre-Burlington opinion in Watts v. Kroger Co., 170 F.3d 505, 511 (5th Cir.1999), affirmed a lower court's ruling that a change in a postal service employee's scheduled days off[3] did not constitute an adverse employment action so that the employee could not make out a prima facie case of employment discrimination under Title VII.[4] As *652 suggested by the court's opinion in Grosskopf, the Fifth Circuit has long recognized that "a change in an employee's work schedule does not ordinarily represent an adverse employment action." Otis v. Bd. of Sup'rs of Louisiana State Univ., 275 F.3d 47, 2001 WL 1268969, 1 (5th Cir.2001) (table); Watts, 170 F.3d at 511 (holding that changes in employee's work schedule did not rise to level of adverse employment decisions where change did not affect her pay); Benningfield v. City of Houston, 157 F.3d 369, 377 (5th Cir. 1998) (holding that merely changing an employee's working hours, without more, does not constitute an adverse employment action). Thus, plaintiffs claim that defendant discriminated against her on account of her race by forcing her to accept a schedule change and by having her removed from the workplace when she refused to work according to the schedule dictated by defendant, as a matter of law cannot succeed because these actions did not affect plaintiffs compensation, duties or benefits.
Even under the Burlington standard, the schedule change of which plaintiff complains would not constitute an adverse employment action. In Burlington, the Court cited a schedule change as an example of an action that may constitute an adverse employment action in a retaliation case, depending on the circumstances: "A schedule change in an employee's work schedule may make little difference to many workers, but may matter enormously to a young mother with school age children." Burlington, 548 U.S. at 69, 126 S.Ct. at 2415. Thus, in McNeill v. City of Canton, Miss., Civil Action No. 3:06cv74 DPJ-JCS, 2008 WL 249437, 10 (S.D.Miss. Jan. 29, 2008), also a retaliation case, the court found that the plaintiff had arguably identified a materially adverse employment action under Burlington "[b]ecause the change in Plaintiffs work schedule interfered with Plaintiff's outside teaching commitment." Plaintiffs claim herein is that Taylor attempted to force her to return to working a schedule with off days of Friday and Saturday, the very same schedule she had worked for the preceding six years.[5] While plaintiff has indicated that she desired Saturdays and Sundays off, this was simply a matter of personal preference. There has been no allegation or suggestion that the schedule "change" imposed by Taylor, returning plaintiff to her original schedule of Fridays and Saturdays off, created any hardship for plaintiff or took advantage of any "unique vulnerability" of plaintiff. Under the circumstances, this was no adverse employment action. See Thomas v. Potter, 202 Fed. Appx. 118, 119 (7th Cir.2006) (finding plaintiffs assertion that shift change was undesirable or inconvenient did not rise to the level of a materially adverse employment action under Burlington where the plaintiff did not assert and record did not contain evidence that the plaintiff had "a unique vulnerability that the Postal Service knew about and sought to exploit by changing his shift schedule"); Arredondo v. Flores, Civil Action No. L-05-191, 2008 WL 4450311, 6 (S.D.Tex. Sept. 30, 2008) (where the only evidence was that employees' schedules were changed, court concluded that "[e]ven if the Burlington standard applies, a change in schedule, shift, and days off, in this circumstance, is insufficient *653 to establish an adverse employment action"); Robinson v. Paulson, Civil Action No. H-06-4083, 2008 WL 4692392, 13 (S.D.Tex. Oct. 22, 2008) (observing that "[u]nder Title VII, `being yelled at, receiving unfair criticism, receiving unfavorable schedules or work assignments ... do not rise to the level of adverse employment actions ... because they [do] not have a material impact on the terms and conditions of Plaintiffs employment'") (quoting Smalls v. Allstate Ins. Co., 396 F.Supp.2d 364, 371 (S.D.N.Y.2005); Miller v. Wachovia Bank, N.A., 541 F.Supp.2d 858, 866 (N.D.Tex.2008)) (change to employee's work schedule and assignment to tasks she had not previously been asked to perform did not constitute an adverse employment action); cf. Aryain v. Wal-Mart Stores Texas LP, 534 F.3d 473, 485 (5th Cir.2008) (negative treatment, undesired transfer to another department, undesirable break schedule, and assignment of more arduous and dirty jobs are not adverse employment actions in the retaliation context).
Even if plaintiff could establish that she suffered an adverse employment action, she still cannot succeed on her race discrimination claim since she has presented no evidence tending to show that she was treated less favorably than similarly situated white workers. "To establish disparate treatment, a plaintiff must demonstrate that a `similarly situated' employee under `nearly identical' circumstances, was treated differently." Wheeler v. BL Dev. Corp., 415 F.3d 399, 406 (5th Cir.2005) (quoting Mayberry v. Vought Aircraft Co., 55 F.3d 1086, 1090 (5th Cir.1995)). In an effort to make this required showing, plaintiff, during the EEOC investigation and in her deposition in this case, initially identified two white employees, Kelli Rhinewalt and Larry Bridgers, as persons similarly situated to her who received better treatment than she received. However, as the Government pointed out in its motion, Bridgers was not similarly situated because, unlike plaintiff, he was a light duty employee (not a limited duty employee) and thus had never been offered a modified/rehabilitation/limited duty job. See O'Connell v. Potter, 274 Fed.Appx. 518, 520 (9th Cir.2008) ("light duty" employees not similarly situated to plaintiff, a "limited duty" employee).[6] And as the Government further noted, plaintiff acknowledged in her deposition that she did not know of any occasion when either of the claimed comparators, Rhinewalt (who was a limited employee like plaintiff) or Bridgers, failed to work their assigned schedules, reported for work on their scheduled days off, or were given but refused to accept a modified job offer, and she admitted she did not know if the Postal Service had ever attempted to change those employees' off days.
In response to the Government's motion, plaintiff apparently has abandoned her earlier assertion of Bridgers and Rhinewalt as alleged comparators; she does not mention them in her response and thus implicitly has conceded she has no evidence that either Rhinewalt or Bridgers was treated more favorably than she under nearly identical circumstances. Instead, she now claims that her alleged white replacement, Sinda Hall, was treated more favorably.
*654 Since plaintiff has not alleged that she was discharged, much less that she was discharged on account of her race, plaintiffs allegation that she was replaced by a white person has no bearing on her prima facie case. Her charge, though, is not just that she was replaced by a white person, but that the white person who replaced her was treated more favorably in that, even though Hall had less time or seniority than plaintiff, she was given Saturdays and Sundays off. In this regard, plaintiff points out that Diamond Taylor claimed during the EEOC investigation that the reason she rescinded plaintiff's April 19 modified job offer for Saturdays and Sundays off and required plaintiff to return to a schedule with Fridays and Saturdays off was that if anyone was going to have Saturdays and Sundays off, employees with more seniority should have been given that option. Plaintiff seems to take the position that the fact that Hall had less seniority than plaintiff and yet was given Saturdays and Sundays off tends to show not only that a similarly situated white employee was treated more favorably than plaintiff, but also that the reason given by Taylor for rescinding plaintiff's April 19 modified job offer was false, and a pretext for unlawful discrimination.
Plaintiff has offered no competent evidence that Hall, her alleged replacement, had less seniority than plaintiff, or other limited duty workers who, under Taylor's proffered seniority explanation for her decision, should have been given priority consideration for a Saturday/Sunday off-days schedule. The only evidence plaintiff has offered is an affidavit from a former coworker, James Schuller, who states that Hall had "less time" than plaintiff. Yet there is nothing to suggest that Mueller has any personal knowledge or basis for personal knowledge of Hall's employment status or history with the USPS. The Government, on the other hand, has offered Hall's employment records, which show that she was hired by the USPS two years before plaintiff and thus had greater seniority than plaintiff. In short, the only competent record evidence refutes plaintiff's claim that Hall had less seniority than plaintiff.[7]
*655 Based on the foregoing, the court concludes that plaintiff cannot prevail on her claim of race discrimination because she has not alleged that she suffered an adverse employment action, and because she has failed to present evidence to establish that she received less favorable treatment than any similarly situated white worker. Accordingly, defendant is entitled to summary judgment on this claim.
With reference to plaintiffs disability discrimination claim, the Government argues in its motion that plaintiff has not shown she suffered a disability within the meaning of the Rehabilitation Act, and further, that she cannot show that any other employee with no disability who was in a situation similar to hers received better treatment than plaintiff. To succeed on her claim of disability discrimination, plaintiff must prove that (1) she is "disabled" within the meaning of the Rehabilitation Act; (2) she is "otherwise qualified" (that is, she can perform the essential functions of the job with or without accommodation); and (3) the personnel action was taken by defendant because of her disability. Woodman v. Runyon, 132 F.3d 1330, 1338 (10th Cir.1997); Prewitt v. United States Postal Service, 662 F.2d 292 (5th Cir.1981). In order to establish a disability, plaintiff must show that she (1) has a physical or mental impairment which "substantially limits one or more of such person's major life activities"; (2) has a "record" of such an impairment; or (3) is "regarded" as having such an impairment. 29 U.S.C. § 705(9)(B). "A physical or mental impairment that affects the claimant's ability to engage in a narrow range of jobs only or a particular job alone does not `substantially limit' one or more major life activities." Id. "Major life activities are functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." 29 C.F.R. § 1630.2(i). "Substantially limits" means either the inability to perform a major life activity or a severe restriction on the ability to perform a major life activity as compared to the general population. 29 C.F.R. § 1630.2(j)(1). The only alleged disability plaintiff has identified is carpal tunnel syndrome; yet she has presented no evidence that the physical limitations resulting therefrom substantially limit any major life activity. She has admitted, in fact, that her alleged disability does not impair her ability to perform the functions in her daily life, and has admitted, as well as demonstrated, that it has not affected her ability to work. Plaintiff cannot, therefore, establish her prima facie case and summary judgment will be granted for the Government on this claim. See Moreno v. Brownlee, 85 Fed. Appx. 23, 27-28 (5th Cir.2004) (employee failed to establish prima facie case of disability discrimination where he proffered no evidence that his carpal tunnel syndrome had substantially limited his ability to work and where proof was that his condition had simply precluded him from performing one particular job, which was "not enough to constitute a substantial limitation in the major life activity of working").[8]
In addition to her race and disability discrimination claims, plaintiff has alleged a claim for retaliation in violation of Title VII. Specifically, she alleges that Tunya Hill and Diamond Taylor "retaliated against her by having her escorted away from the premises of the Jackson Downtown Post Office on November 23, *656 2006," presumably for plaintiffs having made the earlier EEOC complaint regarding Taylor's having asked her to leave the premises on July 28, 2006. Title VII claims are analyzed using a modified version of the burden-shifting analysis set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Rios v. Rossotti, 252 F.3d 375, 380 (5th Cir.2001). To establish a prima facie case of retaliation, a plaintiff must show the following: (1) that she engaged in an activity protected by Title VII, (2) that an adverse employment action occurred, and (3) that a causal link existed between the protected activity and the adverse action. Gee v. Principi, 289 F.3d 342, 345 (5th Cir.2002) (internal citation omitted). While "[t]he causal link required by the third prong of the prima facie case does not rise to the level of a `but for' standard," id., the plaintiff must produce some evidence of a causal link between the protected activity and the adverse employment action to establish a prima facie case of retaliation. Ackel v. Nat'l Comm'n, Inc., 339 F.3d 376, 385 (5th Cir.2003).
The Government argues that plaintiff cannot make out a prima facie case of retaliation for prior EEO activity because she cannot show that Tunya Hill, the management official who made the decision on November 23, 2006 to place plaintiff off the clock and have her escorted from the premises, was aware of plaintiffs prior EEO activity. In fact, Hill testified in her EEO Investigative Affidavit that she was not aware of any prior EEO activity by plaintiff. The Government submits that without proof of such knowledge, or awareness, by Hill, plaintiff cannot establish her prima facie case. See Santos v. Texas Workforce Com'n, Civ. Action No. H-08-1869, 2009 WL 483132, 3 (S.D.Tex. Feb. 24, 2009) ("A prima facie case of retaliation under Title VII requires a showing that the decisionmaker was aware of protected activity; otherwise, there can be no causal connection between the protected activity and any adverse employment action taken by that decisionmaker.") (citing Watts v. Kroger Co., 170 F.3d 505, 512 (5th Cir.1999)); Perches v. Elcom, Inc., 500 F.Supp.2d 684, 692-693 (W.D.Tex.2007) ("As part of the causation prong, a plaintiff must show that the decisionmaker who committed the adverse employment action was aware of the plaintiffs protected, activity.").
For her part, plaintiff has admitted she has no proof that Hill knew of her prior EEO activity. She submits, however, that she can prove the required causal link based on proof that Hill, in having her removed from the premises on November 23, 2006, was acting under the direction of Diamond Taylor, who was obviously aware of plaintiffs earlier EEOC charge. The Fifth Circuit has held that "in determining whether an adverse employment action was taken as a result of retaliation, [the court's] focus is on the final decisionmaker." Gee, 289 F.3d at 346. Yet while the focus is on the ultimate decisionmaker, "a plaintiff can make out a prima facie case by showing that other employees, with discriminatory motives, `had influence or leverage over the official decisionmaker.'" Dumas v. Union Pacific R.R. Co., 294 Fed.Appx. 822, 826 (5th Cir.2008) (quoting Gee, 289 F.3d at 346). See also Long v. Eastfield Coll., 88 F.3d 300, 307 (5th Cir. 1996) (noting that if the final decisionmaker serves as the "cat's paw" of those acting with retaliatory motives, the causal link remains intact).
The only evidence plaintiff has offered to support her claim that Hill was acting as the "cat's paw" of Taylor is Schuller's affidavit, in which he claims that he heard Taylor page Hill over the intercom and saw the two talking shortly before the police arrived and escorted plaintiff from *657 the building. Plaintiff posits that the two must have been talking about her. This is nothing more than speculation, however, and both Hill and Taylor have denied that Taylor either informed Hill of plaintiffs EEOC charge or that Taylor had any involvement whatsoever in Hill's decision to take plaintiff off the clock and have her removed from the workplace. As plaintiff has presented no evidence either that Hill knew of her EEO activity or acted at the direction of or was influenced by Taylor in having her removed from the premises, plaintiff cannot establish her prima facie case of retaliation and defendant is entitled to summary judgment on this claim.
Defendant also has moved for summary judgment on plaintiffs claim for intentional and/or negligent infliction of emotional distress. In response to the motion, plaintiff argues that she is entitled to recover emotional distress damages in connection with her Title VII claim for discrimination and retaliation pursuant to 42 U.S.C. § 1981a(b)(3) (allowing a Title VII plaintiff who wins a backpay award [to] also seek compensatory damages for "future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary losses"). This being her position, it follows' that inasmuch as the court has concluded that defendant is entitled to summary judgment on plaintiff's Title VII claims, defendant is entitled to summary judgment on her attendant claim for emotional distress damages.
Based on the foregoing, it is ordered that defendant's motion for summary judgment is granted.
A separate judgment will be entered in accordance with Rule 58 of the Federal Rules of Civil Procedure.
NOTES
[1] The Postal Service has certain obligations to injured workers who are eligible to receive benefits from the Office of Workers' Compensation Programs (OWCP). If the OWCP accepts the claim of an injured employee with permanent partial restrictions, then the USPS must find work for that employee consistent with that employee's restrictions. See 20 C.F.R. § 10.507(b) ("If the employee can perform restricted or limited duties, the employer should determine whether such duties are available or whether an existing job can be modified.").
Pursuant to Part 546.141 of the Postal Service Employee and Labor Relations Manual, when an employee has partially overcome a disability from a compensable an on-the-job injury, "the USPS must make every effort toward assigning the employee to limited duty consistent with the employee's medically defined work limitation tolerance."
[2] Although plaintiff has purported to sue under the ADA, the federal government is not subject to the ADA and therefore, disability discrimination claims against the USPS must be brought under the Rehabilitation Act of 1973, 29 U.S.C. §§ 701-796. See Henrickson v. Potter, 327 F.3d 444, 447 (5th Cir.2003) (no claim is permitted under ADA against the USPS). However, "discrimination claims brought under the Rehabilitation Act are governed by the same standards as claims brought under Title I of the Americans with Disabilities Act of 1990 ("ADA")." McKay v. Johanns, 265 Fed.Appx. 267, 268 (5th Cir. 2008) (citing 29 U.S.C. § 794(d)).
[3] Ironically, the plaintiff in Grosskopf was a Caucasian employee who alleged that she was discriminated against on account of race when her scheduled off days were changed from Saturdays and Sundays to Fridays and Saturdays. The lower court ruled that "a change in scheduled-days-off is not an adverse employment action for the purpose of [her] employment discrimination claim based on ... race." Grosskopf v. Potter, Civil Action No. SA-05-CA-0836 FB (NN), 2007 WL 2428151, 3 (W.D.Tex. Aug. 22, 2007).
[4] The court does note that in McKay v. Johanns, 265 Fed.Appx. 267, 269 (5th Cir.2008), the court observed that it was "not entirely clear that this Circuit's formulations of the ultimate employment decision standard comports with the Supreme Court's characterization of the Title VII standard in Burlington," but the court found it unnecessary to decide the issue in the case under consideration because nothing in Title VII or the Supreme Court's Burlington decision "indicates that moving an employee to a smaller work station is the type of employment condition that Congress intended to be actionable."
[5] Although it appears from the record that plaintiff did not return to work after the November 23 incident in which she was escorted from the premises by police officers, plaintiff has not alleged that she was terminated, or constructively discharged, and hence certainly has not alleged a claim in this cause (nor filed an EEOC charge relating to any potential claim) for discriminatory discharge.
[6] Employees who are injured on the job are put in limited duty positions in accordance with the Federal Employees Compensation Act, 5 U.S.C. Chapter 81. Employees who are injured while employed by USPS but whose injuries are not caused by their work may request light duty positions under the collective bargaining agreement between the USPS and the American Postal Workers Union. See Webster v. Henderson, 32 Fed.Appx. 36, 39 (4th Cir.2002). The USPS has different duties to workers in these distinct categories with respect to job assignments.
[7] Since plaintiff has failed to establish her prima facie case, the court need not reach the question whether the USPS has articulated a legitimate nondiscriminatory reason for its actions (though it has certainly done so), or consider plaintiff's claim of pretext. The court would nevertheless observe that plaintiff has failed to demonstrate pretext. Plaintiff has offered Schuller's affidavit to refute Taylor's claim that seniority was a factor in assigning limited duty employees and a reason plaintiff's April 19 modified job offer was rescinded. Schuller declares, "Seniority is not relevant when it comes to job placement of a limited duty employee." However, Schuller was a clerical employee of the Postal Service who does not speak for or on behalf of the Postal Service and whose putative knowledge of the factors the Postal Service does or does not take into account in assigning employees cannot be other than hearsay and thus is appropriately disregarded. See Hill v. Dept. Of Veterans Affairs, No. 08-60532, ___ Fed. Appx. ___, ___, 2009 WL 348767, 3 (5th Cir. Feb. 12, 2009) (inadmissible hearsay cannot be used to oppose summary judgment).
Taylor has testified additionally that she took staffing needs into account in setting the schedule and that she rescinded plaintiff's April 19 modified job offer and returned her to her regular schedule of Fridays and Saturdays off because she needed plaintiff at work on Saturdays and Sundays. Plaintiff contends that Taylor's explanation is false because on November 23, the day she was sent home, Taylor was seen doing work that plaintiff would have done had she remained. Plaintiff reasons that this evidence tends to show that she was needed for work on the very days Taylor refused to allow her to work. However, even if this evidence were interpreted in the manner suggested by plaintiff, it does not undermine Taylor's explanation that she had a greater need for plaintiff's presence on Saturdays and Sundays.
[8] The court notes that plaintiff has made no effort to respond to the Government's motion on her disability discrimination claim. Though in the court's view, she has effectively conceded the claim, she has not done so explicitly, as she did with respect to her gender and age discrimination claims; and for that reason only, the court addresses this claim.
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268 B.R. 483 (2001)
In re Jorge H. PINO, Debtor.
Jorge H. Pino, Plaintiff,
v.
Elena Pino, Defendant.
Bankruptcy No. 00-31547-LK. Adversary No. 00-3044-LK.
United States Bankruptcy Court, W.D. Texas, El Paso Division.
August 15, 2001.
*484 *485 *486 *487 E.P. Bud Kirk, El Paso, TX, for plaintiff.
Don W. Minton, El Paso, TX, for defendant.
MEMORANDUM OPINION
LARRY E. KELLY, Bankruptcy Judge.
Before the Court is Debtor's Complaint to Determine Dischargeability of Debt. The Complaint describes six debts, each of which is recognized to arise out of a divorce, and asks the Court to determine whether they are non-dischargeable under § 523(a)(5) or § 523(a)(15), and if under § 523(a)(15), whether the Debtor is entitled to a discharge under the exceptions to non-dischargeability of marital debts under § 523(a)(15)(A) or (B). A timely Response and Counterclaim was filed by the Defendant (non-debtor spouse) also asking the court to determine the issues under 11 U.S.C. § 523(a)(5) and (a)(15). The matter was tried before the court on May 31, 2001. After considering argument of the counsel, the evidence presented, observing the candor and demeanor of the witnesses and otherwise being duly advised in the premises, the court enters the following findings of fact and conclusions of law pursuant to Fed.R.Civ.P. 52(a) as adopted by Fed.R.Bankr.P. 7052. This is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(I), and this court has exclusive jurisdiction over this matter pursuant to 28 U.S.C. § 1334(b), and 28 U.S.C. § 157(a) & (b)(1).
BACKGROUND INFORMATION
The Debtor Jorge Pino was married one time prior to his marriage to Elena. That marriage dissolved in divorce in or about 1993. He then married Elena. He and Elena had been involved in an ongoing relationship for several years before their marriage. They had two children and adopted a third. These children and their years of birth are Jorge (Coco) 1986, Julian 1991; and Briana 1993. The couple divorced in June 1999.
*488 Mr. Pino is a pilot for Federal Express and earns approximately $180,000 per year. He is currently 52 years old and faces mandatory retirement at age 60, 7½ years from this date. He earned a B.S. degree in aeronautical engineering and served in the Marines for about 10 years. He is not eligible for any military retirement pay. Ms. Pino is 42 years old. She is a registered nurse with a Masters of Science degree, and is currently employed by Columbia Healthcare System earning approximately $58,000 per year and participates in the company's 401k plan. Both parties now live in the El Paso area in the State of Texas.
During the marriage Jorge and Elena became involved with two orphans, nephews of a girl who worked for them. The two boys, Eusebio and Jesus, were Mexican Nationals. While married, the couple initiated actions to adopt the two children. With the divorce pending, Elena withdrew from the adoption process. Mr. Pino advises the court that he continued with adoption proceedings. Since the divorce he has remarried and has completed the adoption process with Jesus. However, at the time of trial, Jesus was still living in Juarez, Mexico in a house rented by the Debtor and with a housekeeper paid for by the Debtor. Eusebio is now living in Durango, Mexico in a boarding school and is being supported by the Debtor. The information about the current status of these two children and the status of adoption proceedings was all provided through oral testimony. No documents, court papers, or written evidence was introduced to establish the accuracy of this information.
While married, Jorge and Elena Pino enjoyed a "high standard" of living. They built a luxurious and expensive home in New Mexico, referred to as the Appaloosa house, owned another home in which Elena operated a child care business in El Paso, and owned yet a third a home in Memphis, Tennessee. They had a Lincoln Navigator automobile and a new Motor Home. According to the divorce papers they owned quite a bit of furniture, a collection of art work and various items described as "collectibles." With this standard of living came a lot of debt. The divorce itself was worked out in two major stages. A Bifurcated Judgment of Divorce (Px-3) was entered on or about June 28, 1999 which actually granted the divorce. A Final Judgment on Reserved Issues was entered on June 12, 2000 which essentially divided the property, debts and established the child support and custody arrangements.
Since the divorce Mr. Pino has remarried. He acquired a smaller home in El Paso and drives a 1989 van with over 175,000 miles on it. Ms. Pino has not remarried, now resides in the house that was once used for her child care business, and has a 1995 Pontiac, a 1993 Ford pickup and a the 1997 Motor Home. The two younger children reside full time with Ms. Pino while Jorge (Coco) has moved back with Mr. Pino. Child support is being paid by Mr. Pino in the amount of $3,851/month. Mr. Pino also maintains a $600,000 policy of life insurance with the children listed as beneficiaries, pays approximately 75% of any extracurricular activity expense they are involved with and maintains health insurance coverage for them. Mr. Pino also had part of his retirement account with Federal Express allocated to Elena Pino; she would be entitled to $1,000/month upon his retirement.
The two parties agreed at trial that of all the issues involved in their divorce, there were only 6 debts which Mr. Pino was ordered to pay in the divorce that are in dispute.. They are described as follows:
1. $30,000 attorney fees owed to Elena Pino's attorney;
*489 2. $15,628 "equalization payment";
3. $3,231.49 bill of Levitz furniture company;
4. $48,000 unpaid mortgage payments to Norwest;
5. unknown deficiency amount from foreclosure of home in New Mexico;
6. $5,000 to Elena for loan used to pay obligation to first wife.
What the parties disagree on is whether the specified obligations fall within the "support or maintenance" provisions of 11 U.S.C. 523(a)(5) or the "property settlement" provisions of 11 U.S.C. 523(a)(15) and if under this latter section, whether the Debtor is entitled to discharge all or any of them.
ANALYSIS
I. Discussion 11 U.S.C. § 523(a)(5):
Section 523(a) of the Bankruptcy Code excepts certain categories of debts from a debtor's discharge granted under section 727, 1141, 1228(a), 1228(b) or 1328(b). Among the debts rendered non dischargeable by this provision are marital obligations owed to a spouse, former spouse, or child of the Debtor incurred by the Debtor in the course of a divorce or separation. Specifically, § 523(a)(5) of the Code excepts from discharge any debt:
to a spouse, former spouse, or child of the Debtor, for alimony to, maintenance for, or support of such spouse or child, in connection with a separation agreement, divorce decree or other order of a court of record, determination made in accordance with State or territorial law by a governmental unit, or property settlement agreement, but not to the extent that
(A) such debt is assigned to another entity, voluntarily, by operation of law, or otherwise (other than debts assigned pursuant to section 408(a)(3) of the Social Security Act, or any such debt which has been assigned to the Federal Government or to a State or any political subdivision of such State); or
(B) such debts includes a liability designated as alimony, maintenance, or support, unless such liability is actually in the nature of alimony, maintenance, or support.
11 U.S.C. § 523(a)(5).
Thus, under § 523(a)(5), a debt that is "actually in the nature of alimony, maintenance or support of a spouse, former spouse, or child of the Debtor" is nondischargeable in bankruptcy. The burden of proof is on the person who asserts nondischargeability of a debt to prove its exemption from discharge. In re Benich, 811 F.2d 943, 944 (5th Cir.1987); In re Harrell, 754 F.2d 902, 904 (11th Cir.1985). The standard of proof is by a preponderance of the evidence. Grogan v. Garner, 498 U.S. 279, 287, 111 S.Ct. 654, 659-60, 112 L.Ed.2d 755 (1991).
The question of whether a particular debt constitutes "alimony, maintenance or support" is a question of federal bankruptcy law, and not of state law. In re Strickland, 90 F.3d 444, 446 (11th Cir. 1996); In re Tatge, 212 B.R. 604, 608 (8th Cir.BAP1997); H.R. REP. NO. 95-959, 95th Cong. & Ad. News at p. 6319 (1977). The crucial issue in making this determination is the intent of the parties (or the divorce court) and the function the award was intended to serve at the time of the divorce. Cummings v. Cummings, 244 F.3d 1263, 1265-66 (11th Cir.2001); In re Kline, 65 F.3d 749, 751 (8th Cir.1995). To make this determination, a bankruptcy court should undertake "a simple inquiry as to whether the obligation can legitimately be characterized as support, that is, whether it is in the nature of support". In re Harrell, 754 F.2d 902, 906 (11th Cir. *490 1985) If the debt is in the nature of "alimony, maintenance or support," the debt is not dischargeable.
The Fifth Circuit has set forth a list of factors to consider in determining this issue, including intent of the parties. See Dennis v. Dennis, 25 F.3d 274, 279 (5th Cir.1994); In re Davidson, 947 F.2d 1294, 1296 (5th Cir.1991); In re Benich, 811 F.2d 943, 945 (5th Cir.1987). In Dennis, the Fifth Circuit stated:
[T]his Court set forth a nonexclusive list of factors which bankruptcy courts should review in deciding whether a divorce obligation constitutes alimony, maintenance, or support. The considerations include the parties' disparity in earning capacity, their relative business opportunities, their physical condition, their educational background, their probable future financial needs, and the benefits each party would have received had the marriage continued.
In the context of § 523(a)(5), "substance prevails over form." In re Warren, 160 B.R. 395, 398 (Bankr.D.Me. 1993); In re Sweck, 174 B.R. 532, 534 (Bankr.D.R.I., 1994)(Code requires the bankruptcy court "to determine the nature of the debts, regardless of the labels placed on them by the parties or the family court"). In conducting this inquiry, a court cannot rely solely on the label used by the parties. As other courts have recognized, "it is likely that neither the parties nor the divorce court contemplated the effect of a subsequent bankruptcy when the obligation arose." In re Gianakas, 917 F.2d 759, 762 (3rd Cir.1990) (citations omitted). Applying federal principles, the bankruptcy court must examine the circumstances that existed at the time that the obligation was created to ascertain whether it then functioned to provide support to the non-Debtor obligee. In re Sweck, 174 B.R. at 535; In re Fitzgerald, 9 F.3d 517 (6th Cir.1993); In re Sampson, 997 F.2d 717, 723 (10th Cir.1993); In re Gianakas, 917 F.2d 759, 763 (3rd Cir.1990) (While the intention of the parties or the divorce court is the ultimate question, even the uncontradicted testimony of one of the spouses is not decisive. The trial court is entitled to weigh the credibility of the witness, the worth of the testimony when weighed against the language of the agreement, the actual situation of the parties at the time when the agreement was made, and any other evidence that may help to determine the reality of the nature of the payments.)
Other than the two "judgments" introduced as Plaintiff's Exhibits 2 and 3, the court received no other pleadings from the state court divorce proceedings, no transcript of the proceedings and no copy of an "Interim Order" which is referred to in several places in Px. 2, ¶ 17, 18, 21 or any of the exhibits, transcript, pleadings or orders emanating from the contempt hearing and testimony on offsets, held in September 1999. See Px. 2 ¶ 18. These items would have been helpful in discerning the intent of the divorce court with respect to several of the debt obligations in this case. The six debt obligations will be discussed individually:
First: $30,000 attorney fee obligation for Elena Pino's divorce court attorney:
Paragraph 21 of Px-2 provides:
The Court finds there is a disparity of income between the parties, and that it is appropriate to require Petitioner to contribute an additional amount toward Respondent's attorneys fees. It is acknowledged that pursuant to an interim order, Petitioner paid $1,190.78 of Respondent's attorneys fees. Petitioner shall pay the additional sum of $30,000 toward Respondent's attorneys fees within one year of the entry of the final decree. Any attorneys fees incurred by *491 Respondent in excess of $31,190.78 shall be the responsibility of the Respondent. Petitioner is solely responsible for his attorneys fees and costs. (emphasis added)
The referenced "interim order" is the one which has not been provided to this court. Counsel for the Debtor argues that since he was ordered to pay the specific sum of $1,190.78 during the divorce trial, that sum should be presumed to be the only amount that was necessary to assist Elena Pino and that any additional sums added on at the end of the divorce proceedings are to be treated merely as ordinary debt and handled under § 523(a)(15). Ms. Pino's counsel urges that the parties' disparity of income, the fact that there were three minor children involved, and that the divorce proceedings took over a year to complete, show that the trial court was attempting to provide sufficient funds to see that Ms. Pino's interests were protected. No other evidence was presented on this point, no testimony from any counsel from the divorce, no transcript, and frankly little testimony from the two litigants before this court.
From the sparse evidence presented this court, the following facts are evident. The divorce proceeding between these two parties was acrimonious. There were three minor children involved, dozens of items of property valued at several hundred thousands of dollars and debt which, including the Appaloosa house, was in the neighborhood of $800,000. At the time of the proceedings Jorge Pino earned $180,000/year and Elena Pino earned under $60,000. Elena Pino's attorneys fees exceeded 50% of her gross annual salary. The divorce court deemed it necessary to enter an interim order requiring Jorge Pino to advance some of Elena Pino's attorney's fees during the trial. None of the property ultimately awarded to Elena Pino (Px-2, Schedule B) shows any readily available source of funds from which to pay such fees.
Many courts have found that attorney's fees are deemed non-dischargeable debt in order to provide a party with the financial means to represent adequately their interests during the divorce. See e.g., Marcus, Ollman & Kommer v. Pierce, 198 B.R. 665 (S.D.N.Y.1996); Kavanakudiyil v. Kavanakudiyil, 143 B.R. 598 (Bankr.S.D.N.Y. 1992). In re Silberfein, 138 B.R. 778, 781 (Bkrtcy.S.D.N.Y.1992) ("If a debtor is ordered to pay an ex-spouses' attorneys fees incident to a dissolution, and the fees awarded are based upon need, such fees are usually non dischargeable being in the nature of support"), citing In re Hart, 130 B.R. 817, 825 (Bankr.N.D.Ind.1991); In re Will, 116 B.R. 254, 256 (D.Colo.1990).
This court is convinced that the attorney's fees awarded during the Pino divorce were based upon need and represent an award for support or maintenance. As such this Court finds that they are nondischargeable under 11 U.S.C. Sec. 523(a)(5).
Second: $15,628 Equalization Payment:
This award is argued to be a support obligation by Elena Pino while Jorge Pino asserts it is merely an "equalization" based on the disparity of property values in the case. There are two exhibits reflecting on this award, Px-16 which is a letter from the divorce court judge to the divorce counsel stating her decision and asking counsel to draft the final judgment; and the final judgment itself, Px-2. In her letter the judge states:
OFFSETS. Both parties have argued for offsets to the property distribution. The final page of Schedule B prepared by the court indicates the offsets I have allowed. The final distribution leaves a balance of $15,628.39 payable by the Petitioner (Jorge) to the Respondent (Elena). *492 This amount shall be payable in full within six months from the date of the final decree. (Emphasis added)
Px-2 ¶ 16 starts off by stating "The Court has divided the community property and community liabilities as shown on Schedule B attached." Then Px-2 ¶ 18 includes the exact language of the judge's letter recited above. To be candid, the attached Schedule B is not a model of clarity, especially with the missing pleadings and exhibits from the offset hearing alluded to above. It essentially has columns showing the net value of property being allocated between the parties, with Elena apparently receiving about $32,755.21 more in value than Jorge. It then makes an "equalization" adjustment in favor of Jorge for $15,693.10. Each of the parties is then granted offsets, Jorge received $1,433.72 and Elena received $32,755.21. After adjusting these sums, Elena was awarded the $15,628. The burden of demonstrating that this award falls under the § 523(a)(5) provision is on Elena and the court is unable to find that she has met her burden. The Court finds that the $15,628 Equalization Payment is a marital debt which is non-dischargeable under § 523(a)(15).
Third: $3,231.49-Levitz Furniture:
The only evidence of this award is its listing in Schedule B of Px-2 and Elena's exhibit Dx-4, which is a demand letter which was identified as relating to the Levitz bill. There was no invoice or other evidence of what was purchased or showing what time the charge was incurred. Elena testified that "most" of the bill was made up of furniture items for the children. Jorge testified that at the time of the divorce the children's rooms were completely furnished, that during and after the divorce Elena had stored excess furniture or given it away to relatives, and that most of the items from Levitz were items such as a sofa, table and chairs. Again, this court is left with little to guide it. At first glance the Levitz debt is just another community debt being allocated to one spouse during the divorce. There is little to show a need to have incurred the debt because the timing and description of purchases is not before this Court. Again, the burden of demonstrating that this debt is one for support or maintenance is on Elena and she has not met her burden. This Court finds that this debt is a marital obligation which is non-dischargeable under § 523(a)(15).
Fourth: $48,000 line of credit with Norwest Bank:
At some point in the marriage Elena Pino decided to open a child care business. She and Jorge owned a house on Gilberto Avila street in El Paso, Texas which they renovated to operate the business. They obtained a line of credit from Norwest Bank for this purpose. Apparently some of the debt at issue was incurred during the divorce proceedings, after the child care business was no longer being operated. Elena testified that Jorge acquired some of the funds and then used them to purchase his current residence and to improve it, despite an interim order in the divorce proceeding prohibiting him from incurring debt without court approval. Again, this is the interim order not provided to this court. The dates of incurring credit and the amounts was also not entered into evidence. Also, no evidence of the purpose for any advances was introduced. The line of credit itself was clearly originated prior to the divorce proceedings and the amounts, if any, incurred during the divorce are unknown. This debt appears in Schedule B of the divorce judgment as a debt allocated to Jorge. There is no other evidence to show that Jorge's obligation to repay this debt was in any way intended to be a specific support or *493 maintenance obligation for Elena. The burden of demonstrating that this debt is one for support or maintenance is on Elena and she has not met her burden. This Court finds that this debt is a marital obligation which is non-dischargeable under § 523(a)(15).
Fifth: Judgment and possible deficiency from foreclosure of Appaloosa residence:
The divorce proceedings began in May 1998, the parties were divorced with a Bifurcated Judgment of Divorce and Child Custody on June 28, 1999 (Px-3), Elena Pino vacated the family residence on Appaloosa in or about June 1999, and a Final Judgment on Reserved Issues was entered on June 12, 2000. It was the Final Judgment that allocated "sole responsibility for any deficiency assessed on the Appaloosa residence" to Jorge Pino. He was found by the divorce court to have violated the terms of an interim order (still missing) which required him to make the monthly mortgage payments. By the middle of the divorce proceedings, Elena and the children were no longer living in the Appaloosa residence; thus, making the mortgage payments was not necessary for their support or maintenance. There is no indication as to which monthly payments were missed. Elena is ten years younger than the Debtor, healthy from all evidence, well educated and employed. At the time of the allocation of this debt, it appears to be nothing more than what it says it is. The Court finds that this debt is a marital obligation which is non-dischargeable under § 523(a)(15).
Sixth: $5,000 to Elena for personal loan:
Jorge Pino was divorced once before. In that divorce he was found to owe his ex-wife some money. Elena loaned Jorge $5,000 to resolve that debt. It was a personal loan made in or about 1993. These facts are not in dispute. Jorge testified that the loan was repaid within 6 7 months from community funds that he and Elena had. At the time he was making most of the income in his new marriage and thus he believes he had fully satisfied any obligation to repay. Elena testified that the money was still owed and she was still making payments to her Credit Union. It is difficult to understand how this relatively small debt could still be due and owing eight years after it was originally incurred. However, that is not a dispute to be determined by this court. The divorce court settled the issue by finding the debt due and allocating it to Jorge. That judgment was not appealed and thus the debt is due and owing. There is no evidence to show that obligating Jorge to repay it was intended as any form of support or maintenance however. The burden of demonstrating that this debt is one for support or maintenance is on Elena and she has not met her burden. This Court finds that this debt is a marital obligation which is non-dischargeable under § 523(a)(15).
II. Discussion 11 U.S.C. § 523(a)(15)
With respect to the 523(a)(15) cause of action, Counter-Plaintiff's case is established by demonstrating that the debts were incurred by the debtor in the course of a divorce proceeding, was imposed by a court of record in that proceeding, and did not qualify under 523(a)(5). Since the parties agreed that the six debts at issue met the first two prongs of this test, it is this court's ruling that establishes which fall within 523(a)(5) and 523(a)(15). So with respect to debts 2 6 Counter-Plaintiff has proven a prima facie case of nondischargeability.
Section 523(a)(15) was enacted as part of Public Law No. 103-394 and signed into law by the President on October 2, *494 1994. See In re Owens, 191 B.R. 669, 673 (Bankr.E.D.Ky.1996). Section 523(a)(15) was enacted to prevent the discharge of property settlements arising out of divorce proceedings by "the Chapter 7 filing of a `high income' spouse dissatisfied with the prospect of paying a substantial property settlement to [an ex] spouse." In re Hesson, 190 B.R. 229 (Bankr.D.Md.1995) (emphasis and internal quotes added). Section 523(a)(15) provides that:
(a) A discharge under Section 727, 1228(a), or 1328(b) of this Title does not discharge an individual debtor from any debt (15) not of the kind described in paragraph (5) that is incurred by the debtor in the course of a divorce or separation or in connection with a separation agreement, divorce decree or other order of a court of record, a determination made in accordance with State or Territorial law by a governmental unit unless
(A) the debtor does not have the ability to pay such debt from income or property of the debtor not reasonably necessary to be expended for the maintenance or support of the debtor or a dependent of the debtor and, if the debtor is engaged in a business, for the payment of expenditures necessary for the continuation, preservation, and operation of such business; or
(B) discharging such debt would result in a benefit to the debtor that outweighs the detrimental consequences to a spouse, former spouse, or child of the debtor.
11 U.S.C. § 523(a)(15)(A) & (B).
There are a number of legal issues raised by this portion of the adversary proceeding which have to be considered by this Court, as follows:
a. With whom does the burden of proof lie regarding a § 523(a)(15) action?
b. What method should be used to measure the debtor's "ability to pay"?
c. What about a partial discharge?
d. What point in time does the Court use under § 523(a)(15) for purposes of balancing the equities of a discharge v. a non-discharge?
e. Whether the Debtor has the ability to pay the marital obligations set forth in the Final Decree from income or property of the debtor not reasonably necessary to be expended for the maintenance or support of the debtor or a dependent of the debtor; or, if discharging such marital debt would result in a benefit to the debtor which outweighs the detrimental consequences to a spouse, former spouse, or children of the debtor?
a. With whom does the burden of proof lie regarding a § 523(a)(15) action?
After the enactment of § 523(a)(15), courts broke into several camps regarding the burden of proof. Generally some courts held that the burden of proof lies with the debtor once the creditor has established that the sued-upon debt arose out of a divorce proceeding; another theory held that the burden remains with the objecting creditor throughout, but the burden of going forward lies with the debtor once the creditor has established that the debt arose out of a divorce proceeding; and yet another theory held that the burden under 523(a)(15)(A) is upon the debtor once the creditor successfully established that the debt arose out of the divorce; and the burden is upon the creditor under 523(a)(15)(B). See cases collected in In re Willey, 198 B.R. 1007 (Bankr.S.D.Fla. 1996). In any event, the case law under this statute does clearly establish that the *495 debtor need only prevail under 523(a)(15)(A) or (B), not both. See e.g. In re Jodoin, 209 B.R. 132, 141 fn. 24 (9th Cir BAP 1997) (Courts are generally in agreement that § 523(a)(15)'s subsections present a two-prong test). First, the court must examine debtor's ability to pay. If debtor does not have the ability to pay, the debt is discharged. Only if debtor has the ability to pay does the court then turn to § 523(a)(15)(B) and measure whether the benefit of giving the discharge to the debtor outweighs the detriment that such discharge would cause the nondebtor spouse. In re Huddelston, 194 B.R. 681, 689 (Bankr.N.D.Ga.1996); In re Florio, 187 B.R. 654, 657 (Bankr.W.D.Mo., 1995); In re Taylor, 191 B.R. 760, 764 (Bankr. N.D.Ill.1996).
In In re Jodoin, 209 B.R. at 140 in discussing the burden of proof, the Bankruptcy Appellate Panel observed that several courts which have maintained that § 523(a)(15)'s subsections do not shift the burden of proof on the debtor relied heavily on dicta in Grogan v. Garner, 498 U.S. 279, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991) and the perception that the creditor has the burden of proof for all purposes in § 523(a), citing In re Butler, 186 B.R. 371, 373 (Bankr.D.Vt.1995). It noted however that a careful review of Grogan indicated that it was actually silent on that point. It dealt only with the burden of proof that a party is required to demonstrate to the court in order to be successful in a non dischargeability action. The B.A.P. opinion did, however, find dicta in Grogan to ameliorate the mantra of the "fresh start" argument.
In fact, there is dicta in Grogan that suggest that we should not give overriding preference to the "fresh start" policy of the debtor:
The statutory provision governing non dischargeability reflects a congressional decision to exclude from the general policy of discharge certain categories of debts such as child support, alimony, and certain unpaid educational loans and taxes, as well as liabilities for fraud. Congress evidently concluded that the creditors' interest in recovering full payment of debts in these categories outweighed the debtors' interest in a complete fresh start, citing Grogan, 498 U.S. at 287, 111 S.Ct. at 659-60 (emphasis added). Jodoin, at 140 fn. 22.
Bankruptcy law has had a long-standing corresponding policy of protecting a debtor's spouse and children when the debtor's support is required. See Wetmore v. Markoe, 196 U.S. 68, 77, 25 S.Ct. 172, 49 L.Ed. 390 (1904) ("The bankruptcy law should receive such an interpretation as will effectuate its beneficent purposes and not make it an instrument to deprive dependent wife and children of the support and maintenance due them from the husband and father, which it has ever been the purpose of the law to enforce."); Shine v. Shine, 802 F.2d 583, 585 (1st Cir.1986) ("The exception from discharge for alimony and payments for maintenance and support has long been an accepted part of bankruptcy law.")
There is now a clear majority of courts that find that the complaining creditor has the general burden of demonstrating that the debt falls within 523(a)(15), then the burden of proving that one of the exceptions contained in 523(a)(15) at subparagraphs (A) or (B) is on the debtor. One of the best opinions explaining this is found in The Matter of Crosswhite, 148 F.3d 879 (7th Cir.1998) stating:
Upon consideration of the statutory language, the structure of the statute, the legislative history and the case law, we conclude that there is a clear shift in the burden of proof under § (a)(15). The burden of proving initially that she holds *496 a subsection (15) claim against the debtor should be borne by the creditor (nondebtor/former spouse). To make that showing, the creditor must establish that the debt is within the purview of subsection (15) by demonstrating that it does not fall under § 523(a)(5) and that it nevertheless was incurred by the debtor in the course of the divorce or in connection with a divorce decree or similar agreement. Once that showing has been established, the burden of proving that he falls within either of the two exceptions to non dischargeability rests with the debtor. In short, once the creditor's initial proof is made, the debt is excepted from discharge and the debtor is responsible for the debt unless either of the two exceptions, subpart (A) the "ability to pay" test, or (B) the "detriment" test, can be proven by the debtor.
It is logical and reasonable that the debtor bear the burden of proving either exception to non dischargeability. Certainly the Debtor is most able to make the showing, under subpart (A) that he cannot pay the debt. Thus, it is appropriate that the Debtor have the burden of proving his inability to pay the obligations in question. The Debtor is also the appropriate party to make the showing, under subpart (B) that the benefit he receives from not having to pay the debt at issue is greater than the detrimental effects on the creditor his spouse, former spouse or child who then must pay the debt. If Congress had intended that the burden be placed on the creditor/former spouse, the provision would have been reversed to require a showing that the detrimental consequences to the creditor outweigh the benefit to the Debtor.
It is true that the burden-of-proof analysis is more complex under subpart (B) because the court must consider the equity of the discharge by weighing its effect on each party. In the end, however, the appropriate judicial methodology follows the same basic approach as the one employed in subpart (A). "The Debtor ultimately must demonstrate that, if the debt is discharged, the benefit to the Debtor of that discharge is greater than the harm to the creditor". To be sure, each party must come forward with the information necessary to make that final assessment: The Debtor alone can show how beneficial the discharge of that debt would be; the creditor alone can demonstrate how detrimental the discharge of that debt would be. Nevertheless, the statute clearly places the ultimate burden on the Debtor to prove to the court, in the manner of an affirmative defense, that the debt should be discharged under subpart (A) because he is unable to pay, or under subpart (B) because the benefit to him outweighs the harm to the creditor.
The Fifth Circuit and two Bankruptcy Appellate Panels have decided the burden of proof issue the same way as the Seventh Circuit. In re Gamble, 143 F.3d 223, 226 (5th Cir.1998) (the burden of proof rests with the Debtor to show that one of the exceptions applies.) See In re Jodoin, 209 B.R. 132, 141 (9th Cir. BAP 1997)(Because the debtor is the party claiming the exception to the non-dischargeability of the property settlement debt, it is the debtor who has the burden of "coming forward with evidence to establish the viability of either test."); In re Moeder, 220 B.R. 52, 56 (8th Cir. BAP 1998)(concluding that sub-parts (A) and (B) were exceptions that "constitute affirmative defenses to non-dischargeability which must be proven by the debtor to escape non-dischargeability of the disputed debt").
b. What method does the court use to measure the Debtor's ability to pay?
In order to resolve disputes under the "ability to pay" exception in *497 § 523(a)(15)(A), most courts rely on the "disposable income test" of § 1325(b)(2) of the Bankruptcy Code[1] because that section's language essentially mirrors the language § 523(a)(15)(A). See e.g. In re Cameron, 243 B.R. 117 (M.D.Ala.1999); In re Adams, 200 B.R. 630, 634 (N.D.Ill.1996); In re Henrie, 235 B.R. 113, 120 (Bankr. M.D.Fla.1999); In re Metzger, 232 B.R. 658, 663-64 (Bankr.E.D.Va.1999); In re Bushee, 211 B.R. 114 (Bankr.D.R.I.1997). This test is described in Cameron, at 122:
Under the disposable income test, the bankruptcy court is to subtract the debtor's budgeted expenses, assuming they are reasonably necessary, from Debtor's income and determine if there is any money left. See Metzger, 232 B.R. at 664; Soforenko v. Soforenko, 203 B.R. 853, 864 (Bankr.D.Mass.1997); In re Smith, 218 B.R. 254, 259 (Bankr.S.D.Ga. 1997) In re Willey, 198 B.R. 1007, 1014 (Bankr.S.D.Fla.1996) For purposes of the disposable income test, a debtor's expenses and income include those of his or her new spouse, if applicable. See In re Gamble, 143 F.3d 223, 226 (5th Cir. 1998); In re Leonard, 231 B.R. 884, 888 (E.D.Pa.1999); Morris v. Morris, 197 B.R. 236, 243-44 (Bankr.N.D.W.Va.1996) The emphasis of the court's evaluation under the disposable income test is whether the debtor's budgeted expenses are reasonably necessary. See Leonard, 231 B.R. at 888; In re Tersen, 234 B.R. 189, 193 (Bankr.M.D.Fla.1999); Smith, 218 B.R. at 259; Willey, 198 B.R. at 1014.
This disposable income test appears to be the majority view. See e.g. In re Myrvang, 232 F.3d 1116 (9th Cir.2000) In re Gamble, 143 F.3d 223 (5th Cir.1998); In re Osborne, 262 B.R. 435 (Bankr.E.D.Tenn. 2001); In re Konick, 236 B.R. 524, 527 (1st Cir. BAP 1999)(It is proper to use the disposable income test to determine [debtor's] ability to pay); In re Jodoin, 209 B.R. 132 (9th Cir. BAP 1997).
The best statement of the "ability to pay test," in this court's view, is found in In re Osborne, 262 B.R. at 444:
A debtor is able to repay a § 523(a)(15)(A) obligation if he "has sufficient disposable income to pay all or a material part of a debt within a reasonable amount of time." citing In re Armstrong, 205 B.R. 386, 392 (Bankr. W.D.Tenn.1996). (emphasis added).
c. What about a partial discharge?
The Ninth Circuit BAP, in In re Taylor, 223 B.R. 747 (9th Cir. BAP 1998), in deciding a student loan hardship discharge decision under § 523(a)(8), prohibited a partial discharge, interpreting the language (such debts) of the section which is very similar to the language in § 523(a)(15). However the Ninth Circuit in In re Myrvang, 232 F.3d 1116, 1122 (9th Cir.2000) noted that the Taylor opinion had elicited criticism and had been rejected by a number of courts. It specifically cited the opinion of the Sixth Circuit in Tennessee Student Assistance Corp. v. Hornsby, 144 F.3d 433 (6th Cir.1998) which rejected the notion that a bankruptcy court lacks the power to order a partial discharge of a separate liability. That court reasoned that 11 U.S.C. § 105(a) permits a bankruptcy court to order a partial discharge. In Myrvang the Ninth Circuit adopted the reasoning of In re Hornsby, stating that *498 "its analysis applies with equal force to dischargeability proceedings under § 523(a)(15)."(emphasis added)
The District Court in In re Cameron, 243 B.R. 117, 125-26 (M.D.Ala.1999) remanded a case to the bankruptcy court, directing it to consider on remand the merits of granting debtor only a partial discharge, once it determined the debtor's disposable income at the time of trial. The Bankruptcy Court in In re Miley, 228 B.R. 651, 656 (Bankr.N.D.Ohio 1998) also has approved the concept of a partial discharge, though it makes that determination only after reviewing § 523(a)(15)(B) first to determine whether the debtor is entitled to have the debt discharged in full. If not, it then looks at the possibility of a partial discharge. This court agrees with these opinions and finds that it has the ability to consider whether the debtor is entitled to a partial discharge of the debts at issue.
d. What point in time does the Court use under Sec. 523(a)(15) for purposes of balancing the equities of a discharge v. a non-discharge?
Some courts have determined that the appropriate time for the court to consider the condition of the debtor and the creditor is at the time of filing the petition in bankruptcy. See e.g. In re Carroll, 187 B.R. 197, 200 (Bankr.S.D.Ohio 1995); In re Becker, 185 B.R. 567, 570 (Bankr.W.D.Mo. 1995); In re Anthony 190 B.R. 433, 438 (Bankr.N.D.Ala., 1995). Other courts have looked at the time period running through the time of trial and into the immediate future. See In re Taylor, 191 B.R. 760 (Bankr.N.D.Ill.1996).
In re Dressler, 194 B.R. 290, 300-01 (Bankr.D.R.I.1996) gives the best argument for applying the "time of trial" as the point in time at which the court should analyze the issues:
Unlike sec 523(a)(5)'s "rear view mirror" analysis, sec 523(a)(15) instructs us to look out the windows. It calls for a "current circumstances" review of nonsupport divorce obligations and the consequences of discharge upon them. I conclude that the appropriate time to appraise those circumstances is as of the trial date. As one court recently observed:
In a sec 523(a)(15) case the court is not dealing with the court's or the parties' intent at the time of the decree or agreement. Instead, the court is directed to determine the debtor's ability to pay the debt and weigh the benefit of discharging the debt against the detrimental consequences to the recipient . . . This is not a historical search, but as with a student loan inquiry under sec. 523(a)(8), is an examination of current circumstances. For example, after the filing of the case, either party might have sustained a disabling injury or may have won the lottery, or have experienced a substantial change in earnings. Postfiling events could easily affect either the debtor's ability to pay the debt or the balance between debtor's benefit from discharge and the detrimental consequences of discharge to the recipient. Use of a time substantially before the trial date could produce a silly result that mocks congressional intent.
In re Hesson, 190 B.R. at 238 (citations omitted).
This view is adopted by the Ninth and the Fifth Circuits in recent opinions. See, e.g. In re Myrvang, 232 F.3d 1116 (approving bankruptcy court's imposition of a 5 year payout plan); In re Gamble, 143 F.3d 223 (5th Cir.1998) (disagreeing with the debtor's argument that the could not pay because he did not have sufficient *499 funds at the time of filing the bankruptcy and instead, agreeing that the bankruptcy court was correct to focus its investigation on whether the debtor could make "reasonable payments on the debt from his disposable income", ie/his ability to pay at time of trial and into the future.).
e. Whether the Debtor has the ability to pay the marital obligations set forth in the Final Decree from income or property of the debtor not reasonably necessary to be expended for the maintenance or support of the debtor or a dependent of the debtor; or, if discharging such marital debt would result in a benefit to the debtor which outweighs the detrimental consequences to a spouse, former spouse, or children of the Debtor?
1. § 523(a)(15)(A): (Ability to Pay Test)
Now the Court has to take the information elicited at the trial and apply the analysis above. It has been decided that the first debt obligation attorneys fees is non dischargeable under 11 U.S.C. § 523(a)(5). Obligations two through six are thus non-dischargeable under § 523(a)(15). The Debtor has the burden of demonstrating the applicability of one of the two exceptions to this section. Thus the Debtor has to show either that he does not have the ability to pay all or a material part of these debts within a reasonable amount of time, or that the benefit of granting him a discharge of these debts outweighs the detriment caused to Elena Pino. § 523(a)(15)(A) or (B).
In reviewing the Debtor's ability to pay, the court received Px. 13A, which was Debtor's purported budget. It was modified with testimony to reflect that the Adjusted Net Income was $5,982.74. This beginning "net" figure already took into account Debtor's gross pay, deducted taxes and social security and child support. From the "adjusted net" additional expenses to be deducted were described as follows:
$1,229.64 shelter
275.00 electric/gas
150.00 water
475.00 telephone
97.69 cable
250.00 home maintenance
1,000.00 food
200.00 clothing
90.00 laundry, dry cleaning
150.00 medical, dental
450.00 transportation
200.00 recreation
50.00 charitable contributions
20.15 car insurance
144.00 tuition, lunches, supplies
520.00 child care
50.00 travel expenses
__________
TOTAL EXPENSES $5,451.48
The math indicates that the Debtor has a "net" income, after expenses and child support of only $531.26. However, some adjustments need to be made. According *500 to the Debtor's testimony, he has now completed adoption proceedings for Jesus. In his "shelter" expense was included a rental for a house in Juarez, Mexico of $350/month. Also included in his expenses is $520/month childcare in Juarez, which was to take care of Jesus. With the adoption completed, it is reasonable to assume and the testimony in the case was consistent with the view that the Juarez "expenses" will soon go away. Thus the Debtor's net monthly income can reasonably be expected to jump to $1,401.26/ month. Debtor argued that his "travel expenses" were low and should be increased. However, he also admits that his electric/gas, water and telephone bills include expenses related to the Juarez house and that once Jesus is living with him in the United States, these expenses will go down. The court believes that whatever additional travel expenses should be found to exist will be offset by the savings in these itemized expenses related to the Juarez property.
One additional "wrinkle" that came out at trial was the "new" legal litigation being instigated by the debtor against Elena, relating to custody and child support. The divorce court was located in New Mexico. Since the divorce the debtor, Elena and all the children have relocated to homes in El Paso, Texas. Apparently the Debtor has hired counsel to file a suit to remove venue of the divorce to Texas and to revisit child custody issues and child support issues. No documentary evidence was introduced on this subject, nor did the court hear from the divorce lawyer for either side. However, it was argued and apparently agreed in this hearing that Texas child support guidelines under the circumstances of these two parties would apparently allow for a fairly significant reduction in the current amount of ordered child support. It was stated that support could fall from the current level of $3,851/month to as low as $1,500/month.
Using the "disposable income" test to determine the debtor's ability to pay also requires one additional factor time. That is, over what period of time would the debtor be required to make payments. If this were a chapter 13 bankruptcy case, the maximum period of time that a debtor could be required to pay would be 36 months. But, this is not a chapter 13 case. The Ninth Circuit had occasion to review this very issue in a recent opinion. See In re Myrvang, 232 F.3d 1116 (9th Cir.2000). In that case the debtors challenged on appeal the bankruptcy court's decision to compel debtor to repay his debt over a five year period, contending that "a five-year payment period is unreasonable as a matter of law." In its analysis, the Circuit stated:
Whether five-year repayment plans are acceptable in the context of Chapter 7 proceedings appears to be a novel question. The parties do not cite a controlling case, and our research has revealed none. The bankruptcy court's employment of a five-year repayment plan would be impermissible under Chapter 13. For this reason, at least one court has implicitly held that repayment plans under 11 U.S.C. § 523(a)(15) should be limited to three years. See In re Greenwalt, 200 B.R. 909, 913 (Bankr. W.D.Wash.1996) (adopting the Chapter 13 test for determining ability to pay under § 523(a)(15)(A) and stating that "[u]nder this standard, the court must critically assess the debtor's budgeted expenses to determine the minimum the debtor could afford to pay over a three-year period").
Inconsistencies between Chapters 7 and 13, however, are relatively common. Debts arising from fraud, fiduciary fraud, willful and malicious injury, and *501 matrimonial obligations can be determined to be non dischargeable in Chapter 7 but are fully dischargeable in Chapter 13. Unlike the three-year limitation set forth in Chapter 13, Chapter 7 does not expressly prohibit a bankruptcy court from ordering a debtor to pay the debts in five years.
We are aided in our analysis by the Supreme Court's interpretation of § 523(a) and its exceptions. In Cohen v. de la Cruz, 523 U.S. 213, 118 S.Ct. 1212, 140 L.Ed.2d 341 (1998), the Court considered an appeal from a bankruptcy court's decision that an award of treble damages against a landlord-debtor for fraud was non dischargeable under § 523(a)(2)(A). Id. at 215-17, 118 S.Ct. 1212, 140 L.Ed.2d 341. In affirming, the Court explained that "[t]he various exceptions to discharge in § 523(a) reflect a conclusion on the part of Congress `that the creditors' interest in recovering full payment of debts in these categories outweigh[s] the debtors' interest in a complete fresh start.'" Id. at 222, 118 S.Ct at 1212 (alteration in original) (quoting Grogan v. Garner, 498 U.S. 279, 287, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991)); see also In re Bammer, 131 F.3d 788, 793 (9th Cir.1997) (discussing Grogan and concluding that § 523(a) acts as a limitation on the traditional goal of the Bankruptcy Act to provide debtors a fresh start.) In light of the Supreme Court's view of the Congressional intent underlying § 523(a), it becomes less incongruous for a court to employ the Chapter 13 disposable income test, while at the same time foregoing the three-year plan requirement. Cohen makes clear that the § 523(a) exceptions to discharge under Chapter 7 are special and need not conform precisely to the "fresh start" philosophy of the Bankruptcy Code. The bankruptcy court did not err in ordering repayment over five years.
This court has considered this issue carefully. In the "real world", that is, outside of bankruptcy court, the divorce decree-ordered debt could be collected over a period of time far exceeding five years. Subject only to some procedural limitations having to do with "dormancy," a judgment can be collected for decades. Also, this Debtor has a reasonable expectation of working at his current job for at least another 7 years. This court feels that under the circumstances of this case a five year repayment period is justified.
Thus, without any "savings" from a child support reduction, the Debtor can reasonably be expected to have at least $84,075.60 available to pay on these debts in the next 60 months, with his current "net income" of $1,401.26. If the Debtor is successful in reducing his monthly child support by only an additional $500/month, he would then have $114,075.60 available. Testimony indicated that he could have the child support reduced by as much as $2,300/month. The six debts add up to approximately $101,859.49, plus the deficiency on the Appaloosa house. Clearly the Debtor could pay a material part of these obligations and thus he has not met his burden under § 523(a)(15)(A).
2. § 523(a)(15)(B): (Benefit/Detriment Test)
In re Osborne, 262 B.R. 435, 444 (Bankr.E.D.Tenn.2001) stated the test for determining the exception to non-dischargeability under § 523(a)(15)(B):
Section 523(a)(15)(B) requires that courts compare each party's financial condition and relative standard of living to "determine the true benefit of the debtor's possible discharge against any hardship the former spouse . . . would suffer as a result of a discharge." In re *502 Patterson, 132 F.3d 33, 1997 WL 745501 at *3 (6th Cir.1997). The debt should be discharged under § 523(a)(15)(B) only if a debtor's standard of living will fall "materially" below the non-debtor spouse's standard of living if the debt is not discharged. Id. at *3 n. 1 (citing Smither, 194 B.R. 102, 111 (Bankr. W.D.Ky.1996)).
Addressing the same issue the Seventh Circuit, In the Matter of Crosswhite, 148 F.3d 879, 888 (7th Cir.1998) said:
"We appreciate the difficult role that this statute imposes on courts that are charged with applying that equitable balancing test. Bankruptcy courts have expressed their frustration over the lack of guidance from Congress with respect to this responsibility for balancing the benefit and the detriment in order to reach an equitable resolution (cite omitted). In an effort to meet this difficult responsibility, the bankruptcy courts have developed a `totality of the circumstances' test as the general method for weighing benefit and detriment . . . "
Crosswhite, at 888 in footnote 16, gathered a number of cases to show that courts use a number of different approaches for applying this umbrella test. That note provides:
Some courts, like the bankruptcy court in this case, follow a finances-based test; others incorporate intangible non-economic factors into their analyses. Some bankruptcy courts count a spouse's contributions under subpart (B). See In re Gantz, 192 B.R. 932, 936-37 (Bankr. N.D.Ill.1996) ("The extent to which a spouse's contributions or expenses impact on the debtor should be relevant in balancing the equities."). Some count the contributions of live-in companions on the ground that all income that is part of the debtor's household should be considered when weighing the equities. See In re Halper, 213 B.R. 279, 284 (Bankr.D.N.J.1997); In re Cleveland, 198 B.R. 394, 399 (Bankr.N.D.Ga.1996). Other courts focus only on the debtor and creditor and do not take into consideration a spouse's or companion's income. See In re Willey, 198 B.R. 1007, 1015 (Bankr.S.D.Fla.1996). There is disagreement, as well, about whether the court should take into account the parties future possible income and expenses in its balancing. See In re Jodoin, 209 B.R. 132, 142 (9th Cir. BAP 1997) (noting that the test is properly applied when it weighs the prospective income that the debtor should earn). As the case law has grown, legal scholars and courts surveying the decisions under subpart (B) have noted inconsistent results rather than consensus in the equitable balancing. See, e.g. Barbara J. Van Gorder, Section 523(a)(15) of the Bankruptcy Code: A Paving Stone on the Road to the Region of Hades Reserved for Litigation Nightmares, 77 B.U.L.Rev. 1121, 1125, 1146-49 (1997); Meredith Johnson, At the Intersection of Bankruptcy and Divorce: Property Division Debts Under the Bankruptcy Reform Act of 1994, 97 Colum L.Rev. 91, 110, 113, 125 (1997).
Some courts have found that the non-debtor spouse would suffer little detriment from the debtor's non-payment of an obligation required to be paid under a hold harmless ruling, perhaps because it could not be collected from the non-debtor spouse or because the non-debtor spouse could easily pay the obligation, or the non-debtor spouse has no assets for creditors to seize, or could file for bankruptcy and receive their own discharge. See, e.g. In re Willey, 198 B.R. 1007, 1015 (Bankr. S.D.Fla.1996); In re Morris, 193 B.R. 949, 954 (Bankr.S.D.Cal.1996); In re Huddelston, *503 194 B.R., 681, 689 (Bankr.N.D. Ga.1996); In re Woodworth, 187 B.R. 174, 177-78 (Bankr.N.D.Ohio 1995). This court is not able to tell from the sparse record before it whether or not Elena is "judgment proof" or whether or not she is eligible for her own bankruptcy discharge.
The Fifth Circuit has expressed its opinion adopting the "totality of the circumstances, not just a comparison of the parties relative net worths" as the appropriate test. In re Gamble, 143 F.3d 223, 226 (5th Cir.1998).
Here it is useful to take a look at the non-debtor spouse's budget. It was also disclosed in Px. 13a, but supplemented extensively by testimony. Elena Pino gets paid biweekly, so she "annualized" her income as $4,654.67 monthly. From this she began her deductions as follows:
$ 890.00 taxes
284.00 social security
63.16 medicare
13.00 life insurance
188.57 repayment of 401k loan
106.00 contribution to Core +
216.00 repayment of credit union loan
661.00 house payment
75.00 electric/gas
70.00 water
50.00 telephone
40.00 cable
125.00 house maintenance
1000.00 food
250.00 clothes
125.00 laundry, etc.
40.00 dental insurance
100.00 gas, oil for vehicle
250.00 recreation
10.00 charities
125.00 car insurance
500.00 tuition, lunches
200.00 child care
80.00 vacation
461.00 motor home payment
350.00 Baca attorney fees (divorce attorney)
160.00 Discover Card bill
500.00 David Sypes (Texas divorce proceedings attorney)
80.00 Dillards
67.00 Sears
75.00 new refrigerator
63.00 Orkin
__________
Total expenses = $ 7,217.73
In addition to her monthly paycheck, Elena Pino also receives child support in the amount of $3,851/month. Adding this to her paycheck of $4,654.67 starts her off with $8,505.67. After deducting her expenses she is left with "net income" of $1,287.94. As with the Debtor, however, her "expenses" deserve a closer look. First is the Motor Home payment of $461/month. This is not found to be reasonable or necessary. If this expense is deleted, Elena Pino has a "net income" monthly of $1,748.94.
From the evidence presented at trial, there are a couple of reasonably foreseeable *504 scenarios that are facing the Pinos. First, they are continuing litigation with movement of the divorce court venue and revisiting the child support issues. This causes the "new" $500/month "expense" for Elena for attorney David Sypes, who was identified from the testimony as the attorney handling the new state court litigation. Ultimately this expense will disappear and her "net income" monthly will be $2,248.94. However, from the testimony of the parties, this will likely end up with the child support income being reduced. If it is reduced by the $500 posed as one possible outcome for Jorge Pino, then her "net income" is increased by ceasing to owe additional attorney's fees, but decreased by the reduction in child support, in this example leaving her net income at $1,748.94. If the child support fees are reduced as much as $2,300, which was one supposition discussed earlier, then her "net income" becomes a negative.
The burden of proof on § 523(a)(15)(B) is on the debtor. Even with some belt tightening, under a totality of the circumstances, the Debtor has failed to meet his burden of demonstrating that a discharge of the divorce debts will benefit him more than it will cause a detriment to his exspouse.
3. Is the Debtor entitled to a Partial Discharge of any of the marital obligations?
The Debtor clearly is obligated for six marital debts, none of which are dischargeable under § 523(a)(5) or § 523(a)(15). This Court has found one of the obligations, the reimbursement of Elena's divorce attorney's fees, to fall within the § 523(a)(5) description for non-dischargeable debts. The other five obligations fall, by default, under the § 523(a)(15) category of non-dischargeable debts. This court has also found that the Debtor failed to meet his burden of proof under either of the exceptions to non-dischargeability under § 523(a)(15)(A) or (B). This is not, however, the same as finding that the Debtor clearly has the ability to pay "all" of the marital obligations.
At best, the Debtor has a sufficient net monthly cash flow to enable him, over an extended five year period, to repay a substantial majority of the debts. However, one of the obligations, the final deficiency amount to be derived once the Appaloosa house is finally sold, is yet unknown. The default judgment revealed in Dx-3 at page 4, paragraph B indicates that the judgment to be in the amount of $558,440.82 and subject to an interest rate of 7.375% per year until paid. Interest therefore accrues at the approximate rate of $41,850/year or $3,432/month. No evidence was introduced at this trial of the value of this house. At best there is a negative inference derived from the fact that neither of these parties sought to have the house awarded to them in the divorce proceeding; the divorce judge merely assessed the expected deficiency against Jorge Pino, the house did not sell during the extended divorce proceedings and it has not sold since the final decree of divorce. This court believes from these facts it is reasonable to infer that a substantial deficiency could result.
This Court is convinced by the evidence that the Debtor cannot pay the Appaloosa deficiency and the five other marital obligations within the five year period it has found to be the reasonable projection for determining Debtor's disposable income. Although the record is sparse with respect to Elena's assets and bankruptcy options, it is apparent to this court that requiring Jorge Pino to do the impossible will not be of any assistance to anyone.
Several of the marital obligations are merely "indemnity" or "hold harmless" liabilities. *505 That is, if Elena Pino did not have any liability on the obligations to Levitz or Norwest, for example, then she would not have any need of this ruling. Only two of the debts are owed directly by Jorge Pino to her. These are the reimbursement for the $15,628 "equalization payment" and the $5,000 "personal loan".
The court finds that the Debtor is entitled to a partial discharge for the marital obligation for the deficiency on the Appaloosa house debt owed to Norwest Mortgage or its successor or assigns. With respect to the obligations owed to Ms. Pino's divorce attorney, Levitz furniture company, and the line-of-credit obligation owed to Norwest, the court finds that IF Elena Pino files for bankruptcy and receives a discharge of her liability to these creditors, that Mr. Jorge Pino is entitled to a partial discharge of his obligation to reimburse or hold her harmless from same. With respect to the direct obligations owed by Jorge Pino to Elena Pino of the $5,000 loan and the $15,628 equalization payment, there will be no partial discharge.
CONCLUSION
This Court finds that it has jurisdiction over the dispute between these two parties as a core proceeding. There are six defined marital obligations. One, the $30,000 obligation to reimburse Elena Pino for the divorce attorney's fees is a support obligation which is non-dischargeable under § 523(a)(5). The Court finds that Elena Pino failed in meeting her burden of proof to demonstrate that the other five marital obligations fell under the § 523(a)(5) exception to discharge. However, by default these remaining five debts are non-dischargeable under § 523(a)(15).
Jorge Pino then tried to meet his burden of demonstrating that he was entitled to a discharge under the exceptions found in § 523(a)(15)(A) or (B). He failed in that effort. Thus all of the marital obligations are non-dischargeable. The court next considered whether the Debtor Jorge Pino was entitled to any partial discharge. It found that he was so entitled with respect to the obligation owed to Norwest Mortgage, or its successors, on the deficiency owed on the Appaloosa home. It further found that IF Elena Pino obtained a subsequent discharge of her liabilities to certain specified creditors that Mr. Jorge Pino was entitled to a partial discharge of his indemnity liability to Elena Pino on those obligations. Of course, if she does not obtain a release or discharge of those liabilities, his obligation to her remains undischarged. With respect to two of the marital obligations, the $15,628 "equalization payment" and the "$5,000 loan," the court finds no partial discharge is warranted. The Court's Findings of Fact and Conclusions of Law will be effectuated by an Order of even date herewith.
NOTES
[1] Section 1325(b)(2) defines "disposable income" as income which is received by the debtor and which is not reasonably necessary to be expended-(A) for the maintenance or support of the debtor or a dependent of the debtor . . . and (B) if the debtor is engaged in business, for the payment of expenditures necessary for the continuation, preservation, and operation of such business. 11 U.S.C. sec. 1325(b)(2).
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515 F.2d 506
Bambergerv.U. S.
74-2036
UNITED STATES COURT OF APPEALS Third Circuit
5/15/75
1
D.N.J.
AFFIRMED
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717 S.E.2d 568 (2011)
STATE of North Carolina
v.
Timothy Tramel VAUGHN.
No. 115P11.
Supreme Court of North Carolina.
August 25, 2011.
Anne Bleyman, for Vaughn, Timothy Tramel.
Kevin Anderson, Special Deputy Attorney General, for State of N.C.
C. Branson Vickory, III, District Attorney, for State of N.C.
ORDER
Upon consideration of the notice of appeal from the North Carolina Court of Appeals, filed by the Defendant on the 22nd of March 2011 in this matter pursuant to G.S. 7A-30, and the motion to dismiss the appeal for lack of substantial constitutional question filed by the State of NC, the following order was entered and is hereby certified to the North Carolina Court of Appeals: the motion to dismiss the appeal is
"Allowed by order of the Court in conference, this the 25th of August 2011."
*569 Upon consideration of the petition filed on the 22nd of March 2011 by Defendant in this matter for discretionary review of the decision of the North Carolina Court of Appeals pursuant to G.S. 7A-31, the following order was entered and is hereby certified to the North Carolina Court of Appeals:
"Denied by order of the Court in conference, this the 25th of August 2011."
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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
-------------------------------------------U.S. COURT OF APPEALS
No.06-14838 ELEVENTH CIRCUIT
NOV 08, 2007
Non-Argument Calendar
-------------------------------------------- THOMAS K. KAHN
CLERK
D.C. Docket No. 06-20137-CR-DLG
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ONELIO DIAZ,
Defendant-Appellant.
--------------------------------------------
Appeal from the United States District Court
for the Southern District of Florida
--------------------------------------------
(November 8, 2007)
Before EDMONDSON, Chief Judge, TJOFLAT and HULL, Circuit Judges.
PER CURIAM:
Defendant-Appellant Onelio Diaz appeals his consecutive sentences of 108
months’ imprisonment and 84 months’ imprisonment for conspiracy to affect
commerce by robbery, 18 U.S.C. § 1951(a), and possession of a firearm in
furtherance of a crime of violence, 18 U.S.C. § 924(c)(1)(A).1 No reversible error
has been shown; we affirm.
Diaz first argues that the district court erred in denying his request to reduce
his sentence for acceptance of responsibility, U.S.S.G. § 3E1.1. We review a
district court’s factual determinations about a reduction for acceptance of
responsibility for clear error. United States v. Williams, 408 F.3d 745, 756 (11th
Cir. 2005); see also United States v. Moriarty, 429 F.3d 1012, 1022 (11th Cir.
2005) (noting that, because “[t]he sentencing judge is in a unique position to
evaluate a defendant’s acceptance of responsibility,” “the determination of the
sentencing judge is entitled to great deference on review”) (internal quotation
omitted); United States v. Kendrick, 22 F.3d 1066, 1069 (11th Cir. 1994) (“The
decision to deny a reduction for acceptance of responsibility is discretionary . . .
.”). The Sentencing Guidelines allow an offense level reduction where a
defendant “clearly demonstrates acceptance of responsibility for his offense.”
U.S.S.G. § 3E1.1(a).
1
Diaz worked as part of a security team who transported large cash shipments from international
flights arriving at the Miami airport to the Federal Reserve Bank in Miami. Diaz told his friend,
Karls Monzon, about these cash shipments and that security around these shipments was lax.
Monzon and others then robbed one of these shipments when Diaz was working as part of the
security team; and the group stole over seven million dollars. Diaz received a share of the proceeds
of the robbery.
2
We see no clear error in the district court’s denial of a reduction for
acceptance of responsibility in this case. Although Diaz entered a guilty plea,
Special Agent Alejandro Peraza testified that Diaz needed prodding to tell the
truth about his involvement in the robbery and initially denied knowing that
Monzon had committed the robbery. Agent Peraza also testified that he believed
that Diaz did not tell authorities everything that he knew about money seized
during the robbery.
We also conclude that the district court committed no clear error in denying
Diaz a minor-role reduction. Diaz asserts that, although he alerted Monzon about
the money shipments at the Miami airport and the lax security surrounding these
shipments, Diaz should receive a minor-role reduction because he did not actually
commit the robbery.
That Diaz has preserved his objection about receiving a minor-role
reduction is not clear; but even assuming that this objection was preserved, we see
no clear error in denying Diaz a minor-role reduction. See United States v. De
Varon, 175 F.3d 930, 937, 940 (11th Cir. 1999) (en banc) (explaining that we
review the denial of a minor role reduction for clear error and that a sentencing
court should consider “the defendant’s role in the relevant conduct for which [he]
has been held accountable at sentencing”). Diaz provided the information
3
necessary for the robbery to occur; and he received a share of the proceeds of the
robbery. We affirm the district court’s decision not to grant Diaz a minor-role
reduction.2
Diaz next argues that the district court erred in sentencing him to a seven-
year consecutive sentence pursuant to 18 U.S.C. § 924(c)(1)(A)(ii) because a
firearm was brandished in this case. He asserts that the district court instead
should have sentenced him to no imprisonment or to no more than five years’
imprisonment because, according to Diaz, he was unaware that a firearm would be
used during the robbery. Diaz explains that one of his co-conspirators decided to
bring a gun to the robbery without informing the other conspirators.
“Where a defendant brandishes a firearm during the course of a crime of
violence, [section] 924(c) explicitly requires the imposition of a seven-year
sentence ‘in addition to’ whatever punishment is due for the crime of violence
itself.”3 United States v. Dowd, 451 F.3d 1244, 1251 (11th Cir. 2006). At his
2
Diaz also appears to challenge the district court’s denial of safety-valve relief, 18 U.S.C. §
3553(f); U.S.S.G. § 5C1.2; but he concedes that safety-valve relief does not apply to him because
his case did not involve a drug-related crime. And Diaz’s lawyer informed the district court at
sentencing that safety-valve relief “was not applicable at all.” Diaz is correct that he is ineligible for
safety-valve relief because, among other reasons, he was not convicted of a drug offense. See United
States v. Figueroa, 199 F.3d 1281, 1282 (11th Cir. 2000) (“The safety valve provision . . . requires
a district court to sentence a defendant in certain drug-possession cases without regard to any
statutory minimum sentence . . . .”).
3
The Supreme Court has explained that increasing a defendant’s minimum sentence based on a
judicial finding of brandishing is constitutional. Harris v. United States, 122 S.Ct. 2406, 2420
4
change-of-plea hearing, Diaz did not object to the government’s factual proffer,
which included the statement that Monzon and another person brandished at least
one firearm during the robbery. As the district court explained, it was reasonably
foreseeable that a gun would be brandished during the robbery in this case of
several million dollars; and we conclude that it was not reversible error for the
district court to sentence Diaz to a seven-year sentence pursuant to section
924(c)(1)(A)(ii).4
Therefore, we affirm Diaz’s sentence.5
AFFIRMED.
(2002). And we review for clear error the district court’s factual findings about sentencing. United
States v. Smith, 480 F.3d 1277, 1278 (11th Cir. 2007).
4
To the extent that Diaz is attempting to challenge his conviction under 18 U.S.C. § 924(c)(1)(A)
for possession of a firearm in furtherance of a crime of violence, we reject this argument as without
merit. Diaz has raised no argument on appeal that his guilty plea to this charge was not knowing and
voluntary; so this claim is abandoned. See United States v. Cunningham, 161 F.3d 1343, 1344 (11th
Cir. 1998) (“[B]ecause [defendant] has offered no argument on this issue on appeal, we find that he
has abandoned it.”).
5
We note that, although Diaz asserts that his sentence was unreasonable, he offers no argument
other than the claims we have addressed on why his sentence was unreasonable. Therefore, Diaz has
abandoned this issue. See Sepulveda v. U.S. Attorney Gen., 401 F.3d 1226, 1228 n.2 (11th Cir.
2005).
5
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IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
Assigned On Briefs August 31, 2011
MICHAEL G. McCALL v. JENNIFER SUE McCALL a/k/a JENNIFER SUE
JORDAN
Direct Appeal from the Chancery Court for Crockett County
No. 9313 George R. Ellis, Chancellor
No. W2011-01146-COA-R3-CV - Filed October 4, 2011
Mother and Father, the divorced parents of two minor children, filed a joint motion in the
trial court to modify the permanent parenting plan. The trial court denied the joint motion
and Mother appeals.
Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed
D AVID R. F ARMER, J., delivered the opinion of the Court, in which H OLLY M. K IRBY, J., and
J. S TEVEN S TAFFORD, J., joined.
Mitchell G. Tollison, Jackson, Tennessee, for the appellant, Jennifer Sue McCall a/k/a
Jennifer Sue Jordan.
MEMORANDUM OPINION 1
Jennifer Sue Jordan (formerly Jennifer Sue McCall) and Michael G. McCall are the
parents of two minor children. The children were born in 2003 and 2007. The parents filed
a joint motion to modify the Permanent Parenting Plan which was entered following their
1
Rule 10 of the Rules of the Court of Appeals of Tennessee provides:
This Court, with the concurrence of all judges participating in the case, may affirm, reverse
or modify the actions of the trial court by memorandum opinion when a formal opinion would have
no precedential value. W hen a case is decided by memorandum opinion it shall be designated
“MEMORANDUM OPINION”, shall not be published, and shall not be cited or relied on for any
reason in any unrelated case.
divorce.2 Following a hearing on the joint motion, the trial court entered an order denying
the joint motion to modify the Permanent Parenting Plan “because Robert Lee Amerson 3 is
a registered sex offender and it does not matter to the court that the victim of the sex offense
was not a minor at the time of the commission of the sex offense.” Mother, the only
appellant, argues that the trial court erred in denying the joint motion on the basis that the
victim in the case to which Mr. Amerson plead guilty to sexual battery by an authority figure
was an adult, there was no legal prohibition to the minor children being in the presence of
Mr. Amerson.
The proposed parenting plan sought in the joint motion would decrease Mother’s
parenting time from 233 days per year to 198 and increase Father’s from 132 days to 167.
The child support to be paid by Father would be reduced from $197 per month to $4 per
month, changes would be made in the vacation and holiday schedules and, significantly, the
children would be allowed to be in the presence of Mr. Amerson.
Upon reviewing this record, this Court issued the above mentioned show cause order
because the trial court did not address the other relief sought in the petition but limited the
denial of the motion to the request that Mr. Amerson may be in the presence of the minor
children. The response insisted that the trial court’s order was a final order because, while
the order did not specify all of its reasons for denying all of the portions of the joint motion,
the motion was nevertheless denied.
Rule 3 of the Tennessee Rules of Appellate Procedure provides that if multiple parties
or multiple claims are involved in an action, any order that adjudicates fewer than all the
claims or the rights and liabilities of fewer than all the parties is not enforceable or
appealable. Except where otherwise provided, this Court only has subject matter jurisdiction
over final orders. See Bayberry Assoc. v. Jones, 783 S.W.2d 553 (Tenn. 1990).
We have determined that this Court does not have jurisdiction because the trial court
failed to address the remainder of the relief sought in the joint petition as set forth above.
Since it does not appear that all the claims have been adjudicated, this Court could only have
jurisdiction to hear this matter if permission to appeal has been granted, or if the order
appealed has been made final pursuant to Rule 54.02 of the Tennessee Rules of Civil
Procedure. The record does not reflect, however, that permission to appeal has been granted,
or that the order appealed was made final pursuant to Rule 54.02.
2
In her response to this Court’s show cause order, Mother, the appellant herein, attached a copy of the final
decree of divorce and the original Permanent Parenting Plan.
3
The record before us does not further identify Robert Lee Amerson or his relationship, if any, to the parties.
-2-
The appeal is hereby dismissed for lack of a final judgment. The case is remanded to
the trial court for further proceedings consistent with this opinion. Should a new appeal be
filed, the Clerk of this Court shall, upon request of the Appellant, consolidate the record in
this appeal with the record filed in the new appeal. The costs of this appeal are taxed to the
Appellant, Jennifer Sue McCall a/k/a Jennifer Sue Jordan, and her surety, for which
execution may issue if necessary.
_________________________________
DAVID R. FARMER, JUDGE
-3-
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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
January 6, 2004 Session
STATE OF TENNESSEE v. CARY RAY DAVIS
Appeal from the Criminal Court for Tipton County
No. 4519 Joseph H. Walker, III, Judge
No. W2003-01202-CCA-R3-CD - Filed May 19, 2004
The Tipton County Grand Jury indicted the defendant for one count of aggravated assault. After a
jury trial, the defendant was found guilty of aggravated assault. He was sentenced to three years as
a Range I Standard Offender. The trial court ordered the defendant to serve 180 days in incarceration
and the balance of the sentence in community corrections.1 The defendant argues two issues in his
appeal: (1) there was insufficient evidence to convict him of aggravated assault because he was
acting in self-defense; and (2) the trial court erred in denying the defendant full probation. We
affirm the actions of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Trial Court is Affirmed.
JERRY L. SMITH , J., delivered the opinion of the court, in which DAVID G. HAYES and THOMAS T.
WOODALL, JJ., joined.
J. Thomas Caldwell, Ripley, Tennessee, for the appellant, Cary Ray Davis.
Paul G. Summers, Attorney General & Reporter; Kathy D. Aslinger, Assistant Attorney General;
Elizabeth Rice, District Attorney General; and Colin Campbell, Assistant District Attorney General,
for the appellee, State of Tennessee.
1
Tennessee Code Annotated section 40-36-106(a)(1)(B) provides that persons convicted of a crime against the
person as provided in title 39, chapter 13, parts 1-5 are not generally eligible for community corrections. Aggravated
assault is prohibited by Tennessee Code Annotated section 39-13-102. Thus, the defendant is not eligible for community
corrections unless he meets the special needs exception for persons with chronic substance abuse and/or mental health
problems. See Tenn. Code Ann. § 40-36-106(C). N othing in the record indicates that the defendant was placed in
community corrections pursuant to the special need exception, however because of the defendant’s mental health
problems we cannot definitely say he is not eligible for community corrections under this exception. The State has not
raised this issue and we will not address it further herein. Should the State wish to address this issue it may do so in the
trial court where an illegal sentence may be corrected at any time. See State v. Burkhart, 566 S.W .2d 871, 873 (Tenn.
1978); Cox v. State, 53 S.W.3d 287, 291 (Tenn. Crim. App. 2001).
OPINION
FACTUAL BACKGROUND
On April 15, 2002, the victim, Brandon McClain, and the defendant, Cary Ray Long,
encountered each other at a three-way stop on Highway 59, near Covington. The victim drove a Ford
Ranger extended-cab pick-up truck. The defendant drove a Ford Mustang. The victim’s brother,
Chad McClain and two female passengers rode with the victim. Tabitha Theriot, who is now
Tabitha Davis, the defendant’s wife, and was the victim’s ex-girlfriend, rode with the defendant.
After passing each other on the highway several times, both the defendant and the victim
ended up in the parking lot of a flea market. Both men got out of their vehicles and began to argue.
When the defendant saw the victim’s brother get out of the truck, the defendant returned to his
vehicle and retrieved an aluminum softball bat. After a few more minutes of arguing, both the victim
and the defendant considered the argument over. However, when the victim turned to walk back to
his car, the defendant hit him in the head with the ball bat, causing serious injuries.
The Tipton County Grand Jury indicted the defendant on November 4, 2002, for one count
of aggravated assault. A jury found the defendant guilty as charged on March 17, 2003. At a
sentencing hearing held on April 9, 2003, the trial court sentenced the defendant to three years as a
Range I Standard Offender and ordered the defendant to pay restitution to the victim in the amount
of $4,800. The trial court entered an order the same day transferring the defendant’s sentence to the
Corrections Management Corporation after service of 180 days in jail.
As noted, the defendant argues two issues in this appeal: (1) Whether the evidence was
sufficient to support his conviction; and (2) whether the trial court erred in failing to grant the
defendant full probation.
ANALYSIS
Sufficiency of the Evidence
When a defendant challenges the sufficiency of the evidence, this Court is obliged to review
that claim according to certain well-settled principles. A verdict of guilty, rendered by a jury and
“approved by the trial judge, accredits the testimony of the” State’s witnesses and resolves all
conflicts in the testimony in favor of the State. State v. Cazes, 875 S.W.2d 253, 259 (Tenn. 1994);
State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992). Thus, although the accused is originally cloaked
with a presumption of innocence, the jury verdict of guilty removes this presumption “and replaces
it with one of guilt.” State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). Hence, on appeal, the
-2-
burden of proof rests with the defendant to demonstrate the insufficiency of the convicting evidence.
Id. The relevant question the reviewing court must answer is whether any rational trier of fact could
have found the accused guilty of every element of the offense beyond a reasonable doubt. See Tenn.
R. App. P. 13(e); Harris, 839 S.W.2d at 75. In making this decision, we are to accord the State “the
strongest legitimate view of the evidence as well as all reasonable and legitimate inferences that may
be drawn therefrom.” See Tuggle, 639 S.W.2d at 914. As such, this Court is precluded from re-
weighing or reconsidering the evidence when evaluating the convicting proof. State v. Morgan, 929
S.W.2d 380, 383 (Tenn. Crim. App. 1996); State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim.
App. 1990). Moreover, we may not substitute our own “inferences for those drawn by the trier of fact
from circumstantial evidence.” Matthews, 805 S.W.2d at 779.
The State and the defendant both presented several witnesses at trial. The State’s first
witness was Trooper Steve Max. Trooper Max testified that he was not on duty, but working at his
house down the street from the scene of the altercation. He saw two vehicles and a motorcycle pass
by, then heard squealing tires. His sister, who was at the house with him, left the house and came
back to tell him that there was a boy lying in the highway. Trooper Max and his wife drove to the
scene and saw a young man lying in a parking lot two feet from the edge of the road. When he drove
up he saw a Mustang, a pick-up truck and several teenagers standing around. Max could tell the
young man had a serious injury because he was semi-conscious. Max identified the defendant in the
courtroom as being at the scene. Trooper Max also said there was an older gentleman standing over
the victim yelling at him, but Trooper Max could not understand what he was saying. A witness told
Trooper Max that the victim had been hit by a ball bat, and Trooper Max gave the police that
information. However, the police did not locate the ball bat while Max was on the scene.
The State’s next witness was the victim’s younger brother, Chad McClain. Mr. McClain
stated that he knew who the defendant was, but had never actually met him. On the day of the
incident, Mr. McClain was riding with his brother, the victim, and their two girlfriends in the
victim’s pick-up truck. They came to a three-way stop on Highway 59 and encountered the
defendant. The defendant “flipped off” the victim. The victim continued on his way then turned
behind the defendant to go to a gas station that was down the road. The victim then pulled out of
the gas station and drove back toward the three way stop, planning to continue on to his mother’s
house. They did not see the defendant at the gas station. The next time Mr. McClain saw the
defendant, the defendant was three or four cars back and weaving in and out of traffic until he was
behind the victim. The defendant then got in front of the victim and cut him off. According to Mr.
McClain, both the defendant and the victim, came to a sliding stop in a parking lot. Tabitha Theriot,
the victim’s ex-girlfriend, was in the defendant’s car. The defendant and the victim got out of their
vehicles at the same time. The defendant then returned to his car and came back with an aluminum
bat. When Mr. McClain saw that the defendant had a bat, he got out of the truck. Mr. McClain said
that the defendant accused the victim of “messing with” Tabitha. Then the victim told the defendant
that he did not have a problem with the defendant. The defendant stated that if the victim did not
have a problem with him, he did not have a problem with the victim. Mr. McClain stated that he
then started back toward the truck and looked over his shoulder to see the defendant hitting the
victim in the head with the bat. The victim took a half step and turned around immediately before
-3-
he was hit. Mr. McClain ran to the victim because he hit the ground as soon as he was hit. Mr.
McClain stated that the defendant continued to hold the bat until Tabitha’s parents arrived, and they
got the bat from him. Mr. McClain testified that Tabitha’s father stood over the victim and yelled
at him, “you got what you deserved.” Mr. McClain said that Trooper Max grabbed Tabitha’s father
and told him to stand by his truck. Mr. McClain also stated that the defendant was unarmed
throughout the altercation and he did not usually carry a weapon of any sort. He also stated that the
victim was not trying to chase down the defendant or pick a fight.
The State’s next witness was Jenny Boshell. Jenny Boshell was the victim’s girlfriend at the
time of the incident. They had been dating for four months. On the day of the incident, the victim
picked her up at her friend’s house. She was riding in the truck with the victim that day to go to his
mother’s house. She stated that they first went to the store and then turned onto Highway 59 to go
to the victim’s mother’s house. Ms. Boshell said that the victim looked in the rearview mirror and
asked if the defendant was behind them. Ms. Boshell looked back and saw the defendant passing
cars and catching up with the victim. When the defendant caught up with the victim, he swerved in
front of the victim and hit his brakes. They both went into a parking lot. Ms. Boshell testified that
the defendant got out of his car and then the victim got out of his car. She said that the defendant
then got a ball bat out of his car. When the defendant got the bat, the victim’s brother also got out
of the truck. Ms. Boshell stated that the defendant and the victim were yelling at each other and the
other girl riding in the victim’s truck was standing between them trying to get them to stop. Ms.
Boshell said that Chad McClain was standing beside the truck on the driver’s side. No one in the
truck had any weapons. Ms. Boshell did not hear any threats exchanged between the victim and the
defendant. At one point she thought the defendant and the victim were finished with their argument
and thought the victim was moving back towards the truck. Then Ms. Boshell heard the defendant
hit the victim, and it sounded like something hitting a wall. When she heard the sound, she saw the
victim fall to the ground and ran over to him. Ms. Boshell also stated that the victim did not have
his hands in his pockets and made no sudden movements toward the defendant before being hit.
On cross-examination, the defendant’s attorney specifically asked Ms. Boshell about a
portion of her statement to the police after the incident. In her statement to the police, Ms. Boshell
said that the defendant pulled in front of the them and signaled them to pull over. On cross-
examination, she stated that she meant that the defendant pulled in front of them and slammed on
his brakes.
The State’s next witness was Bobby Gene Malone. Mr. Malone was at his son’s house the
day of the incident. His son’s backyard backed up to the parking lot where the defendant and the
victim fought. The witness and his son heard tires “squalling” and three or four seconds later they
heard wheels screeching to a stop and “screaming and hollering.” Mr. Malone and his son got down
to the fence and saw a truck and a car where people were “arguing and cussing.” It looked like the
truck had pulled around in front of the car. Mr. Malone testified that a boy and a girl got out of the
truck and at least one boy got out of the truck. Both the boys were arguing and a girl was standing
-4-
between them. Then he saw the boy who got out of the truck go and get a ball bat.2 According to
Mr. Malone, the boy in the car turned to go back to the car and the boy from the truck hit the boy
from the car in the right temple with a ball bat. The boy who was hit had no weapons. Mr. Malone
also stated the boy with the bat gave it to another boy and told him to hide it. The third boy put the
bat behind the seat with some other stuff.
The State’s next witness was the victim, Brandon McClain. He stated that the day of the
incident he was driving his pick-up truck and his brother and two girls were passengers. He knew
of the defendant, but had never spoken with him. He first saw the defendant at the three-way stop
on Highway 59. One of the girls identified the defendant as the driver of the car. The defendant then
“flipped off” the victim, and the victim “flipped off” the defendant. The victim went to the gas
station, and then returned to Highway 59 to go to his mother’s house. The victim saw the defendant
behind him, “driving like a maniac,” weaving in and out of traffic. The defendant caught up to the
victim and go in front of him and began slamming on his brakes. The victim yanked the wheel to
keep from hitting him and ended up in a parking lot. The victim testified that he was not chasing
the defendant in any way and was not looking for any trouble. When they stopped in the parking lot,
both the victim and the defendant got out of their vehicles. The victim stated that he did not even
know what was going on at first and did not even know that the defendant had a problem with him.
He said that Ms. Theriot was an ex-girlfriend, but that he had not kept in touch with her in the year
since they had broken up. When they got out of their vehicles, the defendant accused the victim of
calling Ms. Theriot. They began to argue. At some point, the victim told the defendant that he did
not have a problem with him. The victim felt like they had reached a resolution at that time, and the
victim turned to go get in the truck. While he was turning around to go get in the truck, he felt the
bat hit his head. He did not have any weapons and made no sudden movements.
The victim testified that he was treated in a hospital. Between his hospital stay and his in-
patient therapy, the victim spent four months in some sort of medical care. The victim had to relearn
how to walk and talk. At the time of the trial, he was working at the Millington Wal-Mart. Before
the incident, he worked at the Sav-A-Lot in Covington. The victim stated that it was “real hard to
think” and if he gets nervous, it is hard to talk, and he begins to stutter.
The State’s next witness was Officer Robert Tankersley. Officer Tankersley testified that
he arrived at the scene and found a white male lying on the ground. The male was moving his
mouth, but was unable to talk. Someone at the scene told the officer about the bat, and he found it
behind the seat of a pick-up truck. Also testifying at trial was Investigator Scottie Delashmit who
had brought the bat to court the day of the trial.
The State’s next witness, Beth Ezra, was the manager at the Save-A-Lot and had employed
the victim both before and after the incident. The victim began as a stockman and was promoted to
assistant produce person on the night shift. The victim came back to the Sav-a-Lot four months after
the incident. Ms. Ezra testified that when the victim came back his speech was slow and slurred, and
2
Apparently, Mr. Malone confused the drivers of the vehicles in his testimony.
-5-
he would hesitate when answering questions. When he worked for her before the incident, he needed
no supervision, but after the incident he needed supervision all the time. The incident really seemed
to affect his memory. She could not give him more than two tasks at a time, or he would have to
find her or she would have to find him to clarify.
The victim’s aunt, Lisa McClain, also testified. She cared for the victim after he came home
from his stay at a rehabilitation center following his hospital stay. When he came home, he had to
have therapy three days a week and could not be left alone. After the accident, the victim could not
communicate or talk at all. He was weak and could not walk without someone helping him. Even
at the time of trial, his speech would become slurred or he would forget what he was saying. It was
four weeks after the accident before he could speak well enough to say what he wanted to say.
The defendant also presented proof at trial. His first witness was Leroy Johnson. Mr.
Johnson knew the defendant, but was not close friends with him. He was riding his bike down
Highway 59 the day of the incident when he saw the truck and the car go by him. He said the car
was in front and it pulled off to the side of the road. The truck also pulled off to the side of the road.
Mr. Johnson testified that he saw everyone get out of the car and the truck. He saw the defendant
and the victim arguing. Then, the defendant went back to his car to get a bat. Mr. Johnson said a
person other than the victim tried to come around the side of the defendant and stay out of the
defendant’s view. The driver of the truck was coming toward the victim and made an aggressive
move. When he made the aggressive move, the defendant hit the victim with the bat. On cross-
examination, Mr. Johnson repeatedly stated that the defendant was acting in self-defense. He also
stated that neither of the boys in the truck were armed. At one point during cross-examination, the
State asked the victim’s brother to stand up. The State then asked Mr. Johnson if the victim’s
brother was the man who was sneaking around the side of the defendant. Mr. Johnson said he was
the man he saw. Mr. Johnson also said the boy who was hit by the bat was not in the courtroom.
He also said he was so close to the fight, if there had been blood it would have splattered on him.
The defendant’s next witness was Tabitha Davis, the defendant’s wife and formerly Tabitha
Theriot. She said that she had dated the victim and they had broken up about a month before the
incident. She testified that the day of the incident she and the defendant were at her parents’ house
and the defendant asked her to marry him. The ring did not fit, so they decided to go to Wal-Mart.
On the way to Wal-Mart, they saw the victim at the three-way stop on Highway 59. The defendant
and Ms. Theriot went to a gas station, and the victim followed them to the gas station. When the
defendant saw the victim at the gas station, he jumped right back in the car. The victim followed
right behind them and was flashing his blinkers and lights. The victim would come up to the
defendant’s car as if he was trying to hit it. Then the victim passed the defendant and kept slamming
on his brakes so the defendant would run into the back of the truck. The defendant then pulled over
into a parking lot. The victim and his brother got out of the truck, then the two girls got out of the
truck. The victim’s brother went over to the truck like he was looking for something, so the
defendant came back to the car and got his bat. The defendant and the victim were arguing. They
decided not to fight and both turned to go to their vehicles. Then, the victim said something and
-6-
jumped at the defendant. The victim had his left hand in his pocket when he jumped at the
defendant. When the victim jumped at him, the defendant hit the victim in the head with the bat.
On cross-examination, Mrs. Davis stated that she did not see the defendant and the victim
flip each other off, but did see the victim say something, however she did not know what he said.
The defendant asked her who was driving the truck, and she told him it was Brandon. Mrs. Davis
said she did not understand why the victim was trying to run them down because she had not seen
him for about two months before this. She also said that when they got to the parking lot the
defendant just pulled over and that it was not a noisy stop. Mrs. Davis’ testimony contradicted that
of Mr. Johnson’s. She said the victim’s brother did not try to sneak around the defendant during the
argument and that Mr. Johnson was across the street from the fight.
The defendant also testified at trial. He stated that his father was beaten to death when he
was ten years old, and he has been in counseling most of his life since his father died. He had started
dating Ms. Theriot at the beginning of February before the incident. He and Ms. Theriot were going
to town and encountered the victim when they got to the three-way stop. He heard horns honking
and saw the victim lean out of the window and yell at them, but he could not understand what the
victim was saying. The defendant kept going toward town and pulled into the gas station. When
he got out of his car, he saw the victim pull into the parking lot. The defendant decided to go around
the block, and the victim followed them. The victim then began running up to him and slamming
on his brakes. The victim got in front of the defendant and began slamming on his brakes. The
defendant passed him, then the victim kind of cut him off and the defendant went off the road. Then
the defendant pulled off the road to let the victim go ahead, but the victim pulled in behind him. The
defendant got out of the car. Then the victim got out of his truck. The defendant also saw the
victim’s brother get out of the truck. They were just talking and eventually worked things out. The
defendant turned to walk back to his truck when he heard the victim say something behind him.
When the defendant turned around, he saw the defendant with his left hand in his pocket. The
defendant thought that the victim was going to hurt him because the victim jumped at him, so the
defendant swung the bat and hit the victim. The defendant had heard from several sources that the
victim liked to fight and carried a knife with him. He believed the victim had a knife when the
victim lunged at him. He was also scared because the victim’s brother was there. The defendant felt
like it was a situation of two against one. The defendant also saw the victim’s brother going through
the back of the defendant’s truck as if he was looking for a weapon. However, he did not know if
the victim actually had a weapon.
The defendant’s final witness was Dorothy Fleming. Ms. Fleming is the defendant’s mother.
She stated that the defendant’s father was killed when the defendant was nine years old. She said
that the beating death of his father resulted in a lot of counseling, medication and fear. Ms. Fleming
testified that the defendant has been in counseling throughout his life as a result of the death of his
father. The defendant lived with his mother up until and even after he married Ms. Theriot. At the
time of the trial, he and Ms. Theriot were living with his grandmother. She stated that the defendant
was not a violent person. He is very easygoing and quiet with a good heart.
-7-
On appeal, the defendant argues that the jury should have found him not guilty because he
acted in self-defense. Self-defense requires a reasonable belief that “force is immediately
necessary to protect against the other’s use or attempted use of unlawful force” and that there was
an “imminent danger of death or serious bodily injury” to the defendant. Tenn. Code Ann. § 39-
11-611(a). When a defendant relies upon a theory of self-defense, the State bears the burden of
proving that the defendant did not act in self-defense. State v. Sims, 45 S.W.3d 1, 10 (Tenn.
2001). Further, it is well settled that whether an individual acted in self-defense is a factual
determination to be made by the jury as the sole trier of fact. State v. Ivy, 868 S.W.2d 724, 727
(Tenn. Crim. App.1993). It was within the jury’s purview to reject the self-defense theory. See
State v. Goode, 956 S.W.2d 521, 527 (Tenn. Crim. App.1997). Upon our review of a jury’s
rejection of a claim of self-defense, “in order to prevail, the [appellant] must show that the
evidence relative to justification, such as self-defense, raises, as a matter of law, a reasonable
doubt as to his conduct being criminal.” State v. Clifton, 880 S.W.2d 737, 743 (Tenn. Crim.
App. 1994).
It is obvious in this case that the jury chose to reject the defendant’s claim of self-defense.
The testimony concerning the events immediately prior to the defendant’s attack on the victim
was contradictory. The jury could have decided that the witnesses for the defendant who testified
that the victim had his hand in his pocket and jumped at the defendant were being untruthful.
Even if the jury believed that the victim had his hand in his pocket and jumped at the victim as
testified to by the defendant and his wife, there was no testimony that anyone had seen a knife or
any kind of a weapon in the victim’s possession. Therefore, the jury also could have concluded
that the defendant was not justified in using a bat to hit the unarmed victim. See State v. Marcus
Duvalle Hurston, No. W2000-01721-CCA-R3-CD, 2001 WL 912753, at * 3 (Tenn. Crim. App.
at Jackson, Aug. 13, 2001). For this reason, we conclude that the evidence was sufficient for the
jury to find that the defendant’s actions were not consistent with the defense of self-defense.
1. The defendant only challenges the jury’s rejection of his self-defense claim. He does
not challenge his aggravated assault conviction based on the facts adduced at trial. However, we
conclude that there was sufficient evidence for the jury to find the appellant guilty of aggravated
assault. This issue is without merit.
Sentencing
The defendant also challenges his sentence to three years to be served as 180 days in jail and
the balance to be served in community corrections. The defendant argues that he is entitled to full
probation. “When reviewing sentencing issues . . . , the appellate court shall conduct a de novo
review on the record of such issues. Such review shall be conducted with a presumption that the
determinations made by the court from which the appeal is taken are correct.” Tenn. Code Ann. §
40-35-401(d). “However, the presumption of correctness which accompanies the trial court’s action
is conditioned upon the affirmative showing in the record that the trial court considered the
-8-
sentencing principles and all relevant facts and circumstances.” State v. Ashby, 823 S.W.2d 166,
169 (Tenn. 1991). In conducting our review, we must consider the defendant’s potential for
rehabilitation, the trial and sentencing hearing evidence, the pre-sentence report, the sentencing
principles, sentencing alternative arguments, the nature and character of the offense, the enhancing
and mitigating factors, and the defendant’s statements. Tenn. Code Ann. §§ 40-35-103(5), -210(b);
Ashby, 823 S.W.2d at 169. We are to also recognize that the defendant bears “the burden of
demonstrating that the sentence is improper.” Ashby, 823 S.W.2d at 169.
In balancing these concerns, a trial court should start at the presumptive sentence, enhance
the sentence within the range for existing enhancement factors, and then reduce the sentence within
the range for existing mitigating factors. Tenn. Code Ann. § 40-35-210(e). No particular weight
for each factor is prescribed by the statute. See State v. Santiago, 914 S.W.2d 116, 125 (Tenn. Crim.
App. 1995). The weight given to each factor is left to the discretion of the trial court as long as it
comports with the sentencing principles and purposes of our code and as long as its findings are
supported by the record. Id.
` A defendant “who is an especially mitigated offender or standard offender convicted of a
Class C, D, or E felony is presumed to be a favorable candidate for alternative sentencing in the
absence of evidence to the contrary.” Tenn. Code Ann. § 40-35-102(6)(emphasis added). In
choosing among possible sentencing alternatives, the trial court should consider Tennessee Code
Annotated section 40-35-103(5), which states, in pertinent part, "The potential or lack of potential
for the rehabilitation or treatment of a defendant should be considered in determining the sentence
alternative or length of a term to be imposed." Id. § 40-35-103(5); State v. Dowdy, 894 S.W.2d 301,
305 (Tenn. Crim. App.1994). The trial court may consider a defendant's untruthfulness and lack of
candor as they relate to the potential for rehabilitation. See State v. Nunley, 22 S.W.3d 282, 289
(Tenn. Crim. App.1999); see also State v.Bunch, 646 S.W.2d 158, 160-61 (Tenn.1983); State v.
Zeolia, 928 S.W.2d 457, 463 (Tenn. Crim. App.1996); State v. Williamson, 919 S.W.2d 69, 84
(Tenn.Crim.App.1995); Dowdy, 894 S.W.2d at 305-06.
The defendant argues that he should have been given full probation. When seeking full
probation, the burden rests with the defendant to prove his suitability to that manner of sentence.
See Tenn. Code Ann. §40-35-303(b); State v. Boggs, 932 S.W.2d 467, 477 (Tenn. Crim. App. 1995).
“Probation is a privilege or act of grace which may be granted to a defendant who is eligible and
worthy of this largesse of law.” State v. Dykes, 803 S.W.2d 250, 259 (Tenn. Crim. App. 1990). In
determining whether to grant probation, the court must consider the nature and circumstances of the
offense; the defendant’s criminal record; his or her background and social history; his or her present
condition, including physical and mental condition; the deterrent effect on the defendant; and the
likelihood that probation is in the best interests of both the public and the defendant. See Stiller v.
State, 516 S.W.2d 617, 620 (Tenn. 1974); State v. Kendrick, 10 S.W.3d 650, 656 (Tenn. Crim. App.
1999).
At the sentencing hearing, the trial court stated the following:
-9-
I have reviewed the Presentence Report that’s been filed, considered the
testimony heard here today, and find that the defendant should be sentenced as a
standard offender. I’ve reviewed the Victim Impact Statement, also.
The Court finds, under T.C.A. 40-35-114, that enhancing factor number 2
applies; that is, the defendant has a previous history of criminal convictions or
criminal behavior in addition to those necessary to establish the appropriate range.
The Court finds there are no mitigating factors that apply.
The Court finds it’s a proper case to sentence the defendant to the
presumptive sentence of three years as a standard offender.
The defendant has been tried on occasions with medication. He’s been tried
on occasions with anger management classes. The Court is also very concerned
about the defendant’s behavior, not only in this particular case, but apparently his
past history that’s made evident by the Presentence Report, that the court was
unaware of at the time of trial.
The Court’s opinion of the facts of this particular case was that the defendant
was much agitated and instigated by someone. I’ve got my suspicions about exactly
who had been doing that to him. But, in any event, the defendant acted in a very
unacceptable way, and the results were tragic to the victim in this particular case.
The Court finds that this is a case where the defendant deserves incarceration.
He qualifies, under T.C.A. 40-35-303, for probation, and under T.C.A. 40-35-
106, for alternate sentencing.
The Court finds that the defendant has a history of criminal conduct, to avoid
deprecating the seriousness of this offense, and that other measures have been used
in the past with regard to the defendant, violent behavior, including while he was an
adult and a juvenile, with no success, that incarceration is proper.
As evidenced by the trial court’s above-quoted findings of fact and ruling, the trial court
considered all the factors required when determining whether to grant full probation. Testimony at
the sentencing hearing and the contents of the Presentencing Report showed that the defendant was
convicted of domestic assault shortly after the trial in this case ended, and he also had prior adult
convictions involving bad checks and reckless driving. He has additional juvenile adjudications for
domestic assault, misdemeanor theft, and traffic violations. The defendant has received mental
health treatment since the age of nine, and he takes the anti-psychotic medication “Zyprexa.” The
defendant himself stated that the medication keeps him from getting mad and depressed, but because
it makes him sleepy, he does not always take it as directed. He also admitted that he was involved
in a domestic assault with his mother-in-law before the incident with the victim and a domestic
assault with his father-in-law shortly after the incident with the victim. There was also evidence of
a domestic assault against his wife. He committed assault on his mother while a juvenile and was
ordered to attend anger management courses, but they “didn’t seem to help much.”
Clearly, it would not be in the best interest of either the defendant or the community to grant
him full probation. As the trial court stated, the defendant is on medication and has had anger
-10-
management courses, but as evidenced by his assaults on his wife and her family, they have clearly
had no effect. It is possible that some time in incarceration will demonstrate to the defendant what
a serious concern his violent tendencies are to both his family and the community as a whole.
The trial court followed the sentencing principles in its determination of the defendant’s
sentence. Therefore, the defendant has not overcome the presumption of correctness in regard to the
defendant’s sentence. We conclude that the evidence presented at the sentencing hearing supports
the trial courts denial of full probation for defendant, as well as the three year sentence with 180 days
to be served in incarceration and the balance to be served through community corrections.
CONCLUSION
For the reasons stated above, we affirm the defendant’s conviction for aggravated assault and
his sentence.
___________________________________
JERRY L. SMITH, JUDGE
-11-
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456 F.Supp. 1108 (1978)
IOWA CENTER ASSOCIATES, an Illinois limited partnership, Plaintiff,
v.
Frederick O. WATSON and Watson Centers, Inc., Defendants.
No. 78 C 3364.
United States District Court, N. D. Illinois, E. D.
September 19, 1978.
*1109 Bruce S. Sperling, Paul E. Slater, and Stephen J. Spitz, Sperling & Slater, Chicago, Ill., for plaintiff.
Terrence Hutton, Jenner & Block, Chicago, Ill., for defendants; John Mason, Dorsey, Windhorst, Hannaford, Whitney & Halladay, Minneapolis, Minn., of counsel.
OPINION
BUA, District Judge.
The court conducted a hearing in this cause on September 14, 1978, to determine whether plaintiff should be granted a preliminary injunction, pursuant to Rule 65, Fed.R.Civ.P. It has taken detailed testimony from the parties and their witnesses. This testimony has uncovered a sharp disagreement between the parties, who are partners in a shopping center development, over the proper interpretation of their partnership agreement. The following are the court's findings of fact and conclusions of law.
FINDINGS OF FACT
1. Plaintiff Iowa Center Associates (ICA) is an Illinois limited partnership with its principal place of business at 601 Skokie Boulevard, Northbrook, Illinois. Gary R. Edidin, a resident of Glencoe, Illinois, is a general partner of the plaintiff limited partnership. ICA is one of several limited partners in a limited partnership known as Valley West D.M., which operates a shopping center in Des Moines, Iowa.
*1110 2. The defendants are the general partners of Valley West D.M.: Frederick O. Watson, a resident of Minnesota, and Watson Centers, Inc., a Minnesota corporation, with its principal place of business at 252 South Plaza Building, Gamble Center, Minneapolis, Minnesota.
3. The plaintiff and defendants are sophisticated real estate developers who negotiated their agreements in arms-length bargaining.
4. ICA became a limited partner in Valley West D.M. on January 1, 1975.
5. The present transaction is governed by the most recent partnership agreement, the "Third Amended Certificate and Restated Limited Partnership Agreement," effective as of December 31, 1977.
6. Under the agreement, ICA is a "special limited partner."
7. One of ICA's rights as a special limited partner is its entitlement under Article VIIIB of the agreement to the first $50,000 of cash flow from the Valley West D.M. partnership each year, not counting certain specified exceptions.
8. On April 20, 1978, Valley West D.M. entered into a joint venture agreement with the Post Office Staff Superannuation Fund (POSSF), creating a joint venture under the laws of Illinois to be known as "POSSF-Valley Venture." This joint venture was amended by a letter agreement dated August 29, 1978.
9. Under the terms of the amended agreement, POSSF has made a $3,250,000 "capital contribution and loan" to Valley West D.M. This consists of a capital contribution of $100,000, and a second mortgage of $3,150,000. In the resultant joint venture, both POSSF and Valley West D.M. have one-half interests in the property formerly held by Valley West D.M. The POSSF-Valley Venture leases the shopping center back to Valley West D.M., which operates the shopping center for the joint venture.
10. The August 30, 1978 settlement sheet for this transaction, (DX4), and the testimony indicate that $2,523,333.30 of this money was used to pay off a temporary second mortgage, $428,466.45 was sent to the POSSF-Valley Venture, (as administered by the defendants), to create a reserve to be used for expenses, and the remainder was used to pay various expenses of the transaction. Of the money sent to POSSF-Valley Venture, about $200,000 is now left to be used as a reserve for future expenses.
11. In the near future, Valley West D.M. expects to receive $2,500,000 in additional money from Massachusetts Mutual Life Insurance Co., the first mortgagee. This money is the final funding of the first mortgage on the shopping center. The defendants intend to distribute the $2,500,000 in the following ways: (a) $500,000 to buy a certificate of deposit, which will be issued to and held by POSSF as security for its loan for a specified period; (b) $500,000 to pay off outstanding loans made to Valley West D.M. by the general partners; and (c) $1,500,000 to be distributed to the partners under Article VIIIA of the partnership agreement.
12. The defendants claim that the intended distribution will be proper under the agreement. They contend that the propriety of the distribution is supported by an equitable entitlement to the money, as the proceeds of their sale of half of their interest in the shopping center. They have chosen to structure this sale to include a mortgage for business and tax reasons.
13. The plaintiff claims that the intended distribution will prejudice its rights to the $50,000 cash flow preference. In borrowing $3,150,000 from POSSF and $2,500,000 from Massachusetts Mutual, Valley West D.M. will have to pay the interest on, ("service"), $3,150,000 more dollars than under the mortgage agreement with IDS. This additional servicing charge will cost Valley West D.M. approximately $200,000 each year.
14. Valley West D.M. is currently operating at about the break-even point. Assuming that all other income and expenses remain the same, Valley West will lose *1111 $200,000 each year under these agreements, unless it leases additional space in its shopping center or increases its rents.
15. In addition to the added servicing charge, certain tenant improvement expenses can be anticipated in connection with the leasing of new space in the shopping center. About 60,000 square feet remain to be leased. Mr. Edidin, general partner of plaintiff ICA, testified that $10 per square foot, based on his extensive experience, would be a fair estimate of average shopping center tenant improvement costs. Richard Weigel, Vice President of defendant Watson Center, testified that the cost for the space that was actually leased in the past year averaged $2.20 per square foot.
16. Defendants intend to cover any losses by exhausting the $200,000 that remains in the reserve set up by the POSSF agreement. If necessary, they will then borrow additional money from the general partners.
17. Plaintiff claims that the added servicing expenses of the new loan transactions, combined with the tenant improvement expenses and other costs, will act to defeat its preference on the cash flow generated by the shopping center. These loans will have priority over the plaintiff's preference on the first $50,000 of the cash flow. Thus, the plaintiff claims that the current equity and debt of Valley West is being converted to future expenses.
18. All findings of fact deemed to be conclusions of law are hereby adopted as conclusions of law, and all conclusions of law deemed to be findings of fact are hereby adopted as findings of fact.
CONCLUSIONS OF LAW
A. This court has jurisdiction over the subject matter of this case due to the diversity of the parties and the fact that the amount in controversy exceeds $10,000. 28 U.S.C. § 1332. Jurisdiction for declaratory relief is provided by 28 U.S.C. § 2201.
B. This court has jurisdiction over the persons of the defendants. The presence of defendants (or their agents) in Illinois on two occasions in negotiating these transactions, together with the numerous oral and written communications on these transactions with the Illinois plaintiff, provides a basis for the Illinois courts to have personal jurisdiction over the defendants, satisfying all constitutional and statutory tests. See Scovill Manufg. Co. v. Dateline Elec. Co., 461 F.2d 897 (7th Cir. 1972). Consequently, this court, sitting in a diversity case, has jurisdiction over the persons of the defendants.
C. Venue is founded on 28 U.S.C. § 1391(a), in that this is the judicial district where the sole plaintiff resides.
D. As provided in Articles I and XXI, the laws of Minnesota govern the interpretation of the partnership agreement.
E. The present action is, inter alia, for breach of fiduciary duty, breach of the partnership agreement, and fraud, and is analogous to an action for an accounting. Such an action can be maintained without dissolution of the partnership under the Uniform Limited Partnership Act, as adopted by Minnesota. See M.S.A. §§ 322.09-322.10, 323.20-323.21; Note, Procedures and Remedies in Limited Partners' Suits for Breach of the General Partner's Fiduciary Duty, 90 Harv. L. Rev. 763, 783-89 (1977).
F. Since actions for breach of fiduciary duty and for an accounting of a partnership agreement, see Maras v. Stilinovich, 268 N.W.2d 541, 544 (Minn.1978), are equitable actions, the full range of the court's equitable powers, including the granting of a preliminary injunction to preserve the status quo, may be used. See generally, Jones v. Schellenberger, 201 F.2d 29 (7th Cir. 1953), rev'd and remanded on other grounds, 225 F.2d 784 (7th Cir. 1955).
G. Under Minnesota law, a general partner owes a fiduciary duty to a limited partner. M.S.A. §§ 322.09, 323.20-323.21. "[T]he relationship between partners is essentially one of mutual trust and confidence and . . . the law imposes upon them the highest standard of integrity and good faith in their dealings with each other." *1112 Lipinski v. Lipinski, 227 Minn. 511, 35 N.W.2d 708, 712 (1949); Venier v. Forbes, 223 Minn. 69, 74, 25 N.W.2d 704, 708 (1946).
H. In deciding this case, the court is following the general principle applied to an action for an accounting under Minnesota law, by exercising "its powers to find the most advantageous plan which will not prejudice the rights of either party." Maras v. Stilinovich, 268 N.W.2d at 544.
I. The resolution of this dispute is governed by the Third Amended Certificate and Restated Limited Partnership Agreement. The applicable portion of the agreement is Article VIIIA:
The general partners shall determine and distribute the excess net cash receipts, if any, of the Partnership for each fiscal year. The general partners may determine, in their absolute discretion, to make advance distributions on a monthly, quarterly, or any other basis. The term "excess net cash receipts of the Partnership" as used herein shall mean net income derived from the operation of the Partnership as determined under the cash receipts and disbursements method of accounting applied on a consistent basis, except that . . . (c) net cash proceeds of any financing . . . shall be considered as net receipts, and (d) if the general partners shall so determine, a reasonable reserve shall be deducted for working capital needs, or to provide funds for improvements or for any other business purposes or contingencies of the Partnership, which reserve shall also be taken into account in the determination of excess net cash receipts of the Partnership; provided, however, that as to the special limited partner, excess net cash receipts shall not include loans made to the Partnership by POSSF, or by any other joint venturer . . . to the extent received by the Partnership prior to January 1, 1980 . . ..
J. In order to determine the likelihood of the plaintiff prevailing in this action, it is necessary to construe the agreement between the parties.
K. The Third Amended Certificate and Restated Limited Partnership Agreement is, as evidenced by Article XXI, an integrated contract. It is therefore possible to construe the contract without reference to any parol evidence offered by the parties.
L. This court holds that the provision in Article VIIIA which authorizes the general partners to distribute excess net cash receipts is limited by clause (d), which states that
if the general partners shall so determine, a reasonable reserve shall be deducted for working capital needs, or to provide funds for improvements or for any other business purposes or contingencies of the Partnership, which reserve shall also be taken into account in the determination of excess net cash receipts of the Partnership . . .."
M. Clause (d) requires the general partners to maintain a reasonable reserve to cover the specified purposes.
N. Conclusion M is supported by the general fiduciary duty of defendants as general partners. See Conclusions F-G, supra. Any other result would permit the defendants to dispense with a reasonable reserve and, in effect, give them license to raid the Valley West D.M. partnership and withdraw funds necessary to its business operations. If clause (d) were construed to allow a raid of Valley West D.M. partnership funds, it would permit the general partners to ignore their fiduciary duty "of mutual trust and confidence and . . . the highest standard of integrity and good faith," Lipinski v. Lipinski, 35 N.W.2d at 712; Venier v. Forbes, 25 N.W.2d at 708.
O. Conclusion M is also supported by the language of Article VIIIA. Clause (d) states that a reasonable reserve will be set up "if the general partners shall so determine . . ." Earlier in Article VIIIA, the partners are authorized to "determine, in their absolute discretion," whether advance distributions of the excess net cash receipts can be made. The parties, by that language, demonstrated that they knew how to use language to commit a decision to the absolute discretion of the general partners, *1113 when they thought that absolute discretion was appropriate. Their failure to use such language indicates that the general partners' discretion in setting up a reserve for anticipated expenses was not meant to be absolute, but was meant to be limited by their general fiduciary duty.
P. Plaintiff has no adequate remedy at law. In order to achieve similar results, he would be forced to rely on a continuing series of lawsuits. Prospective monetary relief would be speculative. Relief might be thwarted by the contemplated distribution of the proceeds of the challenged transactions to the various members of the limited partnership. Furthermore, as noted above, equity traditionally takes jurisdiction over breaches of fiduciary duty, and actions in the nature of an accounting. See generally C. Wright & A. Miller, Federal Practice and Procedure: Civil § 2944 (1973).
Q. Plaintiff would suffer irreparable injury if relief were not granted. In addition to the conclusions stated in Conclusion P, the court relies on the testimony of Mr. Weigel that defendants might have to default in certain unrelated transactions if they would not receive the proceeds of the current transaction. Such an admission of the relatively weak status of defendants' finances provides a strong indication that if defendants proceed to strip Valley West D.M. of all cash reserves, they might be unable to meet future cash needs, and further irreparable injury to the plaintiff might result.
R. The plaintiff has demonstrated a high probability of success at trial.
S. The balancing of hardships favors the granting of an injunction, particularly considering the fact that the denial of a preliminary injunction, and the consequent distribution of assets, might thwart the court's ability to maintain the status quo until a final determination of the merits is made. See generally Wright & Miller, Civil § 2948.
T. Based on the evidence before the court, the court concludes that a reserve of $500,000 will be adequate to cover anticipated expenses of Valley West D.M.
U. Under Rule 65(a)(2), the evidence taken at the preliminary injunction hearing is automatically admissible at trial. Thus, even though these findings of fact and conclusions of law are not binding at trial, a significant change in the record would be necessary to persuade the court to reach a different conclusion. See cases collected in Wright & Miller, Civil § 2950.
V. Pending any trial, the court will consider submissions from either side which will demonstrate that the reserve set by the court is too high or too low.
ACCORDINGLY, defendants Frederick O. Watson and Watson Centers, Inc., are hereby enjoined and restrained from distributing to the members of the Valley West D.M. Partnership during the pendency of this trial the proceeds of the Massachusetts Mutual and POSSF transactions beyond the amount needed to maintain a reserve fund of $500,000. In computing the $500,000, the defendants may include the approximately $200,000 currently included in the reserve fund, and need only retain approximately $300,000 of the proceeds of the two transactions. The defendants may pay out normal business expenses, including the interest on loans, from this fund, and such payments may be allowed to deplete the fund below $500,000.
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538 U.S. 1043
CONKLINv.LEHMAN, SECRETARY, WASHINGTON DEPARTMENT OF CORRECTIONS.
No. 02-9860.
Supreme Court of United States.
May 19, 2003.
1
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT.
2
C. A. 9th Cir. Certiorari denied.
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183 F.Supp. 402 (1959)
UNITED STATES of America, Plaintiff,
v.
9.85 ACRES OF LAND, MORE OR LESS, IN THE CITY OF HAMPTON, VIRGINIA, and Tidewater Development and Sales Corporation, et al., Defendants.
Misc. No. 531, Tracts No. 42 and 42E.
United States District Court E. D. Virginia, Newport News Division.
September 1, 1959.
*403 Franklin C. Baugh, Asst. U. S. Atty., Norfolk, Va., for Government.
Jodie L. Atkins, Newport News, Va., John J. Baecher and S. Beryl Adler, Norfolk, Va., for landowners.
WALTER E. HOFFMAN, District Judge.
In this condemnation proceeding, requiring three days of trial before a jury demanded by all parties, the landowner complains of an award of $21,100 ascertained by the jury as just compensation for certain property taken by the United States of America in fee simple, together with a perpetual and assignable easement and temporary easement for the establishment and maintenance of navigation clearance areas or zones in and over certain other property. The area of the fee simple taking consisted of 3.78 acres, and an additional 3.74 acres were subjected to the easement. Not all of the property owned by Tidewater Development and Sales Corporation, and encumbered by the deed of trust hereinafter stated, was the subject of the proceeding.
The award of the jury was within the permissible range of the valuations fixed by the witnesses. The expert presented by the Government placed a valuation of $11,735 upon the property taken and easement acquired. One Rue, the trustee under a deed of trust on said property *404 and engaged in the mortgage loan business in the area of Washington, D. C., valued the property at $91,180. The principal officer of the corporate owner was permitted to testify that the corporation had expended $74,972.25 on the project consisting of 14 houses. Three houses remained on the 3.74 acres subjected to the easement. With one exception, all rulings on evidence were favorable to the landowner. The landowner took no exception to the Court's charge to the jury.
Manifestly the determination of value within permissible limits rested with the jury. It was for this fact-finding body to evaluate the testimony of the witnesses and determine the qualifications of each witness. It is not for the Court to substitute its judgment of value under such circumstances. The award does not shock the conscience of the Court, and to set aside the verdict would be the equivalent of totally disregarding the testimony of the Government's witness, Mears (Meares), who is a fully qualified expert even though he was employed at the time by the Army Engineersa fact that was clearly revealed by the evidence.
The main contention now advanced by the landowner and the noteholders under the deed of trust is that the United States, at the time of the filing of the Declaration of Taking, paid into Court the sum of $56,100 as "estimated compensation" for the property and easement so acquireda figure which is $35,000 in excess of the jury award. This information was not presented to the jury, and counsel obviously recognized that such evidence of "estimated compensation" was not admissible as no effort was made to submit such as evidence. Generally, the presentation of such a figure of "estimated compensation" would be prejudicial to the condemnee as it is usually the practice of the acquiring agency to pay into Court a lesser sum than what the evidence upon trial discloses to be the fair market value. The payment of "estimated compensation" into the registry of the Court is nothing more than a compliance with the constitutional rights of the landowner. It has no real bearing upon the amount of just compensation which may ultimately be determined.[1] How the Under Secretary of the Air Force arrived at a figure of $56,100 is unknown and certainly not revealed by the evidence. In fact, after hearing the evidence presented, it is difficult to believe that the Air Force could be so far off in estimating just compensation. It is possible that the Air Force may have learned of the alleged corporate expenditures aggregating approximately $75,000. It is also possible that the Air Force conducted little or no examination as to just compensation before filing its Declaration of Taking. In the usual haste of acquiring property, the Government undoubtedly pays "estimated compensation" into court which is not comparable to the just compensation provided by law. But, in the absence of bad faith, the Court has nothing to do with the amount of "estimated compensation". United States v. 29.40 Acres of Land, D.C.D.N.J., 131 F. Supp. 84; United States v. 44.00 Acres of Land, 2 Cir., 234 F.2d 410, certiorari denied 352 U.S. 916, 77 S.Ct. 215, 1 L.Ed. 2d 123; but see In re United States, 5 Cir., 257 F.2d 844, certiorari denied Certain Interests in Property in Hillsborough County of Florida v. United States, 358 U.S. 908, 79 S.Ct. 234, 3 L.Ed.2d 228.
It is argued that the landowner, on petition, could have received at least 95% of the "estimated compensation" paid into Court, without prejudicing its rights to secure a trial of the issue of just compensation. Apparently due to a conflict between the landowner and noteholders, this procedure was not followed in this case. That is neither the fault *405 of the Court nor the Government. It has nothing to do with the facts of this case.
The view expressed by this Court is that where an award returned by the jury is within the permissible limits of the evidence, the amount of "estimated compensation" paid into court by the acquiring agency should not be considered on a motion to set aside the award of the jury. Other than for the consideration of interest on the verdict, the "estimated compensation", if paid in good faith, must be totally disregarded.
The landowner urges that the Government failed to produce any witness who testified as to the figure of $56,100. Indeed, it is not known whether such a witness exists. As land condemnation cases are governed by the Federal Rules of Civil Procedure, rule 81(a) (7), 28 U.S.C.A., the liberal discovery processes available to the parties would readily have brought forth the names and addresses of all persons who may have inspected the properties, or ascertained the values, in behalf of the Government.
Wholly without merit is the argument that the verdict was based upon prejudice from the successful effort of the Government to create a bad impression toward the landowner. If such an impression existed, the landowner is not blameless. Perhaps the landowner "overplayed the cards", thus creating the impression that the Government was the victim. The charge to the jury, perhaps unduly favorable to the landowner, would have removed such contended prejudices, if any existed.
During the testimony of Rue, the trustee under the deed of trust, the landowner endeavored to show that a loan was made by Rue and his clients on the subject property. The landowner contended it could show that notes were given for the loan, which notes could readily be converted into cash, and that such is a factor in determining fair market value. Landowner relies upon Riley v. District of Columbia Redevelopment Land Agency, 100 U.S.App.D.C. 360, 246 F.2d 641, 644. In that case the court charged the jury that the term "fair market value" meant "what the property would sell for in cash or on terms equivalent to cash", together with the customary language as to a willing buyer and willing seller. The appellate court held that the jury should have received an explanation of the expression "terms equivalent to cash". The evidence disclosed that the property was acquired by the landowner in 1951 at a price of $300 in cash and $9,655 evidenced by three notes secured by trusts upon the property. Monthly payments on the notes aggregated $72.50. Improvements were made and the investment of the landowner by way of obligations (notes) and expenditures amounted to approximately $10,800. Government appraisers valued the property in 1954 at $7,000 or less, and stated that they had attached little significance to the 1951 sale to the landowner because "the third trust would run at perpetuity" as the monthly payment was not enough to pay the interest on the property.
The Riley case stands for the premise that a credit sale is indicative of the fair market value only to the extent to which the notes can be turned into cash, and that the jury was entitled to know the meaning of the term "equivalent to cash". It was important in Riley only because of the fact that evidence of the cost of acquisition of property is admissible on the subject of fair market value, when the acquiring date is sufficiently near in point of time to the date of condemnation.
In no sense can this be considered as authority for the contention that the landowner could present evidence as to a specific loan granted to it with a deed of trust being taken as security. Such a pronouncement would violate every principle known in condemnation law as to fair market value. It would, in effect, be most prejudicial to the average landowner whose property is condemned as the lender seldom loans any sum fairly representing the fair market value. Moreover, in this case the loan *406 was made on the project as a whole and the Government did not acquire all of the land encumbered by the trust deed. It was sufficient protection to the landowner in permitting Rue, the noteholder, to give his appraisal of the fair market value.
Holding that no error exists, the United States Attorney will prepare a judgment order in accordance with the verdict of the jury, and permit a return of the excess deposited with the Clerk to the acquiring agency, or to the Treasurer of the United States, as may be customary in such matters.
One final word. Subsequent to the jury trial the various noteholders filed a motion to intervene contending that their representation at the trial was inadequate and that a new trial should be awarded. Manifestly, it is unnecessary to specifically name the noteholders as parties defendant in a condemnation proceeding. Assuming arguendo that such is not the law, it is clear from the file in this action that the noteholders, represented by Oliver Ellsworth Rue, were actively participating at all times. Indeed, by letter dated March 6, 1958, addressed to the Clerk, a copy of which was sent to the United States Attorney, the Court, and the attorney for the landowner, Rue complained of inaction by "those charged with responsibility for the discharge of the obligations against this property". By letter dated March 14, 1958, the Court advised Rue that it was the first time the matter had been directed to its attention, but that a trial date would be assigned. Thereafter, by agreement of counsel, the case was heard on July 8, 1958, at Norfolk; this due to the fact that the courtroom at the Newport News Division was in the process of renovation. As indicated, Rue appeared and testified in behalf of the landowner. The noteholders cannot now be heard to complain.
The motion to intervene is properly filed for the sole purpose of protecting the noteholders in the distribution of the aforesaid $21,100. The endorsement of the judgment order by counsel for the landowner will be accepted as proof of the fact that the noteholders are entitled to the entire award, less such reasonable attorney's fees as may be due and unpaid, if any, to counsel for the landowner. In the event of a dispute between the noteholders and landowner with respect to the distribution, counsel shall promptly notify the Court in order that the respective rights of these parties may be determined.
NOTES
[1] The rule in Virginia is the same. Duncan v. State Highway Commission, 142 Va. 135, 128 S.E. 546; Ryan v. Davis, 201 Va. 79, 109 S.E.2d 409 (June 22, 1959).
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9 F.3d 104
U.S.v.Phillips
NO. 92-02566
United States Court of Appeals,Fifth Circuit
Nov 09, 1993
1
Appeal From: S.D.Tex.
2
AFFIRMED.
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791 F.2d 916
Danskyv.Werst
85-1634
United States Court of Appeals,Third Circuit.
5/14/86
E.D.Pa.,
Huyett, J.
AFFIRMED
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927 N.E.2d 740 (2010)
AMERISURE MUTUAL INSURANCE COMPANY and Amerisure Insurance Company, Plaintiffs and Counterdefendants-Appellees,
v.
GLOBAL REINSURANCE CORPORATION OF AMERICA, f/k/a Gerling Global Reinsurance Corporation of America, Defendant and Counterplaintiff-Appellant.
No. 1-09-0820.
Appellate Court of Illinois, First District, First Division.
March 15, 2010.
Rehearing Denied April 15, 2010.
*742 Hinshaw & Culbertson LLP, Chicago, IL (Edward K. Lenci, Fritz K. Huszagh and Christine Olson McTigue, of counsel), for Appellant.
DLA Piper LLP, Chicago, IL (Stephen W. Schwab, Holly M. Spurlock and Amanda L. Fox, of counsel), for Appellees.
Justice LAMPKIN delivered the opinion of the court:
This case involves a dispute over attorney fees awarded by an arbitration panel pursuant to section 155 of the Illinois Insurance Code (Code) (215 ILCS 5/155 (West 2006)). Amerisure Mutual Insurance Company and Amerisure Insurance Company (Amerisure) were awarded $1,556,709.27 in damages plus interest and attorney fees for the underlying reinsurance claim against Global Reinsurance Corporation of America, f/k/a Gerling Global Reinsurance Corporation of America (Global). Global challenged the propriety of the section 155 attorney fee award in circuit court. The circuit court affirmed. On appeal, Global contends the attorney fee award should be vacated where the arbitration panel either exceeded its powers or committed a gross error of law on the face of the award by awarding attorney fees pursuant to section 155.
*743 FACTS
Effective July 1, 2001, Amerisure and Global entered an "Umbrella Quota Share Reinsurance Agreement," a/k/a the treaty, wherein Global agreed to reinsure a number of Amerisure's outstanding umbrella insurance policies. Pursuant to article 24 of the treaty, the parties agreed to arbitrate disputes.
According to Amerisure, in May 2006, it billed Global for a reinsurance claim valued at approximately $1.5 million. In response, Global made a number of requests to review documents related to the claim. Amerisure complied with the requests; however, Global never notified Amerisure of its intent with regard to the claim. On December 27, 2006, Amerisure sent a letter to Global demanding arbitration because Global refused to pay the claim. Amerisure demanded "the amounts due under" the treaty, in addition to "interest, costs and exemplary damages." Pursuant to their treaty, the parties appointed a three-person panel to hear the dispute in Chicago, Illinois. According to the choice-of-law provision in article 24 of their treaty, the parties agreed Illinois law governed.
In October and November 2007, in prearbitration filings and meetings, Amerisure expressly informed the panel it was seeking attorney fees.[1] On November 20, 2007, Global submitted a letter response to the panel. In relevant part, Global argued:
"[T]he Panel has no authority to award [attorney] fees to either party because both parties have not requested them * * *, the arbitration agreement does not authorize the Panel to award them, and there does not appear to be any statute that would support such an award."
Global supported its argument by citing article 24 of the parties' treaty, Rule 43(d) of the American Arbitration Association's (AAA) Supplementary Procedures for the Resolution of Intra-industry United States Reinsurance and Insurance Disputes (Rule 43(d))[2], and Illinois law.
Following discovery, Amerisure filed a prehearing brief on September 22, 2008, arguing for the first time that its claim for attorney fees was supported by section 155 of the Code, which punishes an insurer for vexatious and unreasonable actions or delays. Amerisure filed a memorandum in support of its argument. Global responded by filing its own prehearing memorandum, arguing that section 155 did not apply to reinsurance relationships and therefore could not support Amerisure's attorney fee claim.
On October 16, 2008, the parties' attorneys and at least one panel member participated in a teleconference. During the teleconference, Amerisure said it was seeking attorney fees under reinsurance law in general and Illinois law in particular.
The arbitration hearing was held from October 20, 2008, to October 24, 2008. Amerisure referred to a list of examples of Global's bad faith conduct, as outlined in its prehearing brief. Amerisure reiterated that it was seeking attorney fees based upon section 155 of the Code. Then, when one of the panel members asked what law controlled the dispute, Amerisure replied that section 155 controlled, but that the *744 panel should otherwise "fill in the intersperses in the parties' agreement with reinsurance custom and practice." Amerisure continued, "[t]hat's my understanding of the derivation of the utmost good faith rule, so the parties do not have to put in their contracts all kinds of provisions you see in a classic Wall Street M & A agreement. That's what custom and practice do."
The record contains a document prepared by Amerisure entitled "Proposed Findings and Conclusions." The document is not signed by the panel or either of the parties. However, in the document, Amerisure proposed that "[Global's] refusal to pay the [underlying] loss is unreasonable and vexatious within the meaning of Section 155, because [Global] was uncooperative, acted contrary to its duty of utmost good faith and forced Amerisure to demand arbitration, depriving Amerisure of indemnification."
On November 10, 2008, the panel awarded Amerisure the principal disputed amount of $1,556,709 plus interest and attorney fees. The panel said, "[Global] is hereby ordered to pay by December 10, 2008, [Amerisure's attorney] fees as billed and paid in an amount not to exceed $1,500,000 based on the finding by this panel of [Global's] violation of its duty of utmost good faith to [Amerisure]." (Emphasis added.) Global timely paid the principal amount plus interest, but did not pay the attorney fees.
On November 12, 2008, Amerisure moved to confirm the award pursuant to the Uniform Arbitration Act (Act)(710 ILCS 5/1 et seq. (West 2006)). On December 4, 2008, Global filed an answer and a counterapplication to reject the award of attorney fees. In its answer, Global admitted that Amerisure alleged Global engaged in bad-faith conduct and that Amerisure sought fees pursuant to section 155. In its counterapplication, Global alleged the panel exceeded its authority by awarding fees: (1) on a theory not submitted; (2) where not authorized by the parties' arbitration agreement; (3) where the parties "collectively did not vest the [p]anel with authority to decide the issue"; (4) where section 155 does not authorize fees in a reinsurance case; (5) where only a court and not an arbitration panel may award section 155 attorney fees; (6) where Illinois does not provide a legal basis for awarding fees based on a violation of the duty of utmost good faith; and (7) where Rule 43(d) does not authorize the award.
On December 19, 2008, Global filed a motion for summary judgment, alleging the panel exceeded its authority in awarding the attorney fees because the award was not given based upon the theory advanced by the parties, i.e., section 155 of the Code, and it was not otherwise authorized by Illinois law. Moreover, Global alleged the panel did not have the authority to award attorney fees pursuant to section 155 because the statute only authorizes courts to award fees. In the alternative, Global claimed a gross error of law appeared on the face of the award.
On January 12, 2009, Amerisure filed a response to Global's motion for summary judgment. Amerisure alleged Global waived its ability to challenge the arbitrability of attorney fees by failing to file a petition before a court pursuant to section 2 of the Act (710 ILCS 5/2 (West 2006)) and by participating in arguments before the panel regarding whether Amerisure was entitled to section 155 fees. Moreover, Amerisure alleged the panel did not exceed its powers in awarding attorney fees, maintaining "a vexatious and unreasonable delay of payment is part and parcel of a violation of the duty of utmost good faith, which the arbitration clause placed squarely before the [p]anel for decision." *745 Amerisure additionally alleged there was no gross error of law on the face of the panel's award.
On March 16, 2009, Amerisure filed an answer to Global's counterapplication to reject a portion of the award, denying Global's allegations and asserting the affirmative defenses of waiver and proper jurisdiction.
The circuit court denied Global's motion for summary judgment, finding the panel did not exceed its authority and no gross error of law appeared on the face of the award. Specifically, the court said:
"There [is], it seems to the Court, some overlap with regard to the issue of whether or not the Panel exceeded its authority and whether or not the Panel made a gross error in law because it seems to the Court that based on the entire record, I am really not able to say that the Panel exceeded its authority in that it was deciding an issue that was not permitted to decide under Illinois law.
I know [the Panel] didn't use the words Section 155.
I know [the Panel] used a term that [the Panel] was probably more familiar with as a result of its expertise in reinsurance, but it seems to the Court that given the entire record, which is that the primary dispute and the briefs and the arguments were all about whether Section 155 of the Illinois Insurance Code applied.
I cannot find, frankly, in good faith, that the Panel exceeded its authority.
It may, in fact, have [not] used precise and specific terms that are embodied in Section 155, but certainly the sentiment is expressed in that award.
And given the fact that that wasn't heartfelt, the parties' arguments with regard to [attorney] fees, I can't find that the Panel exceeded its authority.
Secondly, I think that the question of the gross error or the gross misapplication of the law, in fact, is a harder hurdle to overcome for any person or entity contesting an arbitration award.
It seems to the Court that the recent decisions of our Appellate Court, including the First District Appellate Court which are binding on this Court[,] really give the Panel broad berth in making judgment calls about what the appropriate law is and really admonished the Courts by their actions, if not by their words, that it should not disturb an arbitration award just because it may disagree with the application of law.
So, while this might be an odd posture for a Court which normally reviews questions of law de novo, it is, it seems to the Court, clear from the Appellate Court's direction that this is territory that the Court is not permitted to tread on except in those extreme circumstances.
I don't find that those extreme circumstances exist in this case.
I know that there are two decisions cited, one from the First District and one from the Fifth District, involving questions of whether Section 155 applies to reinsurance agreements, but it seems to the Court that ultimately the law in Illinois on that issue is in flux, and that there is not a clear precedent that clearly defines the scope of that provision, which would presumably bind the Arbitration Panel applying Illinois law.
But I don't think that the law is that clear, well defined.
And I certainly can't find, given that situation, that the Panel committed a gross misapplication or gross error of law."
*746 On March 25, 2009, the court granted Amerisure's motion to confirm the arbitration award, entering judgment against Global for $861,176 in attorney fees and $27,217.04 in interest. Global appeals.
DECISION
Global contends the circuit court erred in denying its motion for summary judgment where the arbitrators exceeded their contractual and statutory authority by awarding attorney fees to Amerisure and committed a gross error of law in doing so.
We review a circuit court's ruling on a motion for summary judgment de novo. Neiman v. Economy Preferred Insurance Co., 357 Ill.App.3d 786, 793, 293 Ill.Dec. 982, 829 N.E.2d 907 (2005). Summary judgment is proper where the pleadings and documents on file, viewed in a light most favorable to the nonmoving party, demonstrate there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Neiman, 357 Ill.App.3d at 793, 293 Ill.Dec. 982, 829 N.E.2d 907.
"Judicial review of an arbitration award is more limited than the review of a trial court's decision. [Citation.] Because the parties have agreed to have their dispute settled by an arbitrator, it is the arbitrator's view that the parties have agreed to accept, and the court should not overrule an award simply because its interpretation differs from that of the arbitrator. [Citation.] There is a presumption that the arbitrator did not exceed his authority [citation], and a court must construe an award, if possible, so as to uphold its validity [citation]. A court has no power to determine the merits of the award simply because it strongly disagrees with the arbitrator's contract interpretation. [Citation.] Also, a court cannot overturn an award on the ground that it is illogical or inconsistent. [Citation.] In fact, an arbitrator's award will not even be set aside because of errors in judgment or a mistake of law or fact. [Citation.]" Galasso v. KNS Cos., 364 Ill.App.3d 124, 130, 300 Ill.Dec. 968, 845 N.E.2d 857 (2006).
The parties agree Illinois law applies in this case because the situs of the arbitration was Chicago. Section 12(a) of the Act provides that an award "shall" be vacated under very limited circumstances. See 710 ILCS 5/12(a) (West 2006). In relevant part, an award "shall" be vacated where the "arbitrators exceeded their powers." 710 ILCS 5/12(a)(3) (West 2006). In addition, our supreme court has determined that courts have the power to vacate an arbitration award when a gross error of law appears on its face. Lee B. Stern & Co. v. Zimmerman, 277 Ill.App.3d 423, 425, 213 Ill.Dec. 913, 660 N.E.2d 170 (1995), citing Board of Education v. Chicago Teachers Union, Local No. 1, 86 Ill.2d 469, 477, 56 Ill.Dec. 653, 427 N.E.2d 1199 (1981).
I. Authority for the Award
Global contends the panel exceeded its authority in awarding attorney fees to Amerisure.
Amerisure contends Global waived review of this contention because it failed to challenge the arbitrability of attorney fees in the circuit court during the pendency of the arbitration. Amerisure relies on section 2 of the Act (710 ILCS 5/2 (West 2006)) and Galasso for support.
Global contends it did not commit waiver because it agreed Rule 43(d) of the AAA authorized the panel to award attorney fees if permitted by Illinois law; however, it timely argued before the panel that Illinois law provided no authority to award the attorney fees in this case. We agree.
*747 The parties here have a contractual right to limit the awarding of attorney fees in an arbitration proceeding. "A contractual right with respect to arbitration can be waived as can any other contract right." Ure v. Wangler Construction Co., 232 Ill.App.3d 492, 498, 173 Ill.Dec. 785, 597 N.E.2d 759 (1992); see also First Health Group Corp. v. Ruddick, 393 Ill. App.3d 40, 52, 331 Ill.Dec. 971, 911 N.E.2d 1201 (2009) (a party cannot "sit silent, wait until an adverse award issued, and then first argue that the arbitrator did not have the authority even to hear the claim"). "Waiver of a contract term may occur when a party conducts itself in a manner which is inconsistent with the subject clause, thereby indicating an abandonment of its contractual right." Ure, 232 Ill. App.3d at 498-99, 173 Ill.Dec. 785, 597 N.E.2d 759 (the defendant waived his right to consent to consolidation by waiting until the joint arbitration convened and objecting for the first time during opening statements). However, if a party makes a timely objection, i.e., at the earliest possible time, "the issue will be preserved for judicial review, even if the party then participates in the subsequent arbitration proceeding." First Health Group Corp., 393 Ill.App.3d at 49, 331 Ill.Dec. 971, 911 N.E.2d 1201; see Ure, 232 Ill.App.3d at 499, 173 Ill.Dec. 785, 597 N.E.2d 759.
Here, Global preserved the attorney fee issue for judicial review with its timely objections. Initially, in response to Amerisure's announcement that it intended to seek attorney fees without specifying its basis for the fees, Global said:
"[T]he Panel has no authority to award [attorney] fees to either party because both parties have not requested them * * *, the arbitration agreement does not authorize the Panel to award them, and there does not appear to be any statute that would support such an award."
Then, once Amerisure expressly articulated that it was relying on section 155 to support its attorney fee claim, Global argued in its prehearing brief and at the hearing that section 155 does not allow arbitration panels to award attorney fees in reinsurance actions.
Despite Global's consistent objections, Amerisure claims Global waived review of this issue because Global did not bring a section 2 petition to stay the arbitration and challenge the arbitrability of the attorney fees before a court. We disagree. Because Global does not dispute the arbitrability of attorney fees but, rather, the applicability of section 155 to the instant reinsurance action, Global was not required to bring an arbitrability challenge.
Section 2 of the Act provides:
"On application, the court may stay an arbitration proceeding commenced or threatened on a showing that there is no agreement to arbitrate. That issue, when in substantial and bona fide dispute, shall be forthwith and summarily tried and the stay ordered if found for the moving party. If found for the opposing party, the court shall order the parties to proceed to arbitration." 710 ILCS 5/2(b) (West 2006).
Section 2 is permissive. "On application" indicates the challenging party has a choice whether to "apply" for review of the arbitrability of an issue. 710 ILCS 5/2(b) (West 2006). If the party so decides to challenge arbitrability, the circuit court "may" stay an arbitration. 710 ILCS 5/2(b) (West 2006).
Amerisure's reliance on Galasso to support its contention that Global had to file a section 2 petition to avoid waiver is misplaced. In Galasso, an arbitration panel awarded attorney fees pursuant to the Attorneys Fees in Wage Actions Act (Attorneys Fees Act) (705 ILCS 225/0.01 (West *748 2002)) based on a finding that the appellees were employees under the Illinois Wage Payment and Collection Act (820 ILCS 115/1 et seq. (West 2002)). Galasso, 364 Ill.App.3d at 132, 300 Ill.Dec. 968, 845 N.E.2d 857. On appeal, the appellant contended the panel exceeded its authority because the fees were not part of the parties' employment agreements or permitted by the Attorneys Fees Act, and therefore were not arbitrable. Galasso, 364 Ill.App.3d at 132, 300 Ill.Dec. 968, 845 N.E.2d 857. The appellant, however, did not submit a section 2 petition to challenge the arbitration agreement nor did the appellant object, at any point during the arbitration, to the arbitrability of the fees sought. Galasso, 364 Ill.App.3d at 133, 300 Ill.Dec. 968, 845 N.E.2d 857. Furthermore, in asking the circuit court to vacate the award, the appellant argued that, in addition to the panel's award not being authorized by contract or permitted by the statute at issue, it improperly included fees related to other claims. Galasso, 364 Ill. App.3d at 133, 300 Ill.Dec. 968, 845 N.E.2d 857. This court found the appellant conceded before the circuit court that the arbitrator could resolve the issue of attorney fees. Galasso, 364 Ill.App.3d at 133, 300 Ill.Dec. 968, 845 N.E.2d 857. As a result, this court held the appellant forfeited its argument. Galasso, 364 Ill.App.3d at 133, 300 Ill.Dec. 968, 845 N.E.2d 857.
Contrary to Amerisure's argument on appeal, Galasso does not stand for the proposition that a party must utilize section 2 in all instances to preserve an issue for judicial review. Rather, Galasso noted that matters relating to preliminary questions of arbitrability, like the scope of arbitrable issues or the validity of an employment agreement between the disputing parties, should be decided by arbitrators rather than courts in accordance with Illinois public policy favoring arbitration as a means of dispute resolution. Galasso, 364 Ill.App.3d at 128-130, 300 Ill.Dec. 968, 845 N.E.2d 857. Nevertheless, Galasso acknowledged that section 2 provided a procedure to a party to petition the circuit court to determine arbitrability questions where a party challenges the existence of an arbitration agreement. Galasso, 364 Ill.App.3d at 129-130, 300 Ill.Dec. 968, 845 N.E.2d 857. Relevant to this appeal, Galasso ruled the defendant forfeited review of his argument that the arbitrator exceeded his authority by awarding attorney fees because the defendant neither submitted a section 2 petition to the court nor raised an objection before the arbitrator. Galasso, 364 Ill.App.3d at 132-33, 300 Ill.Dec. 968, 845 N.E.2d 857. Thus, we reject Amerisure's contention that arbitration parties must utilize section 2 to preserve issues for judicial review.
Furthermore, Galasso is distinguishable from the case at bar. In the instant case, as we stated, Global was not required to submit a section 2 petition where it was not challenging the arbitrability of the panel's authority to award attorney fees in general. Global simply contested whether the panel had the power to award attorney fees to Amerisure based on section 155. Moreover, in contrast to the Galasso appellant, Global, as discussed above in detail, clearly objected in a timely manner to the panel's authority to award attorney fees pursuant to section 155. First Health Group Corp., 393 Ill.App.3d at 48-49, 331 Ill.Dec. 971, 911 N.E.2d 1201; see Ure, 232 Ill.App.3d at 499, 173 Ill.Dec. 785, 597 N.E.2d 759. Accordingly, Global did not waive its challenge to the panel's authority to award the fees pursuant to section 155.
Turning to the substance of this appeal, Global contends the arbitrators exceeded their authority because (1) they awarded attorney fees on a basis the parties did not submit for resolution, and (2) Illinois law *749 does not authorize arbitrators to award section 155 attorney fees.
Although an arbitration panel need not disclose its basis for an award (Edward Electric Co. v. Automation, Inc., 229 Ill.App.3d 89, 100, 171 Ill.Dec. 13, 593 N.E.2d 833 (1992)), the instant panel did. The arbitrators awarded attorney fees "based on a finding of * * * [Global's] violation of its duty of utmost good faith to [Amerisure]."
Insurers have an implied duty to use good faith in representing their insureds. Pekin Insurance Co. v. Home Insurance Co., 134 Ill.App.3d 31, 33, 89 Ill.Dec. 72, 479 N.E.2d 1078 (1985). An insurer violates that duty when it acts in a vexatious, unreasonable, or outrageous manner. Pekin Insurance Co., 134 Ill. App.3d at 34, 89 Ill.Dec. 72, 479 N.E.2d 1078. More specific to the instant appeal, the reinsurance industry imposes the duty of utmost good faith. See Northwestern Mutual Life Insurance Co. v. Amerman, 119 Ill. 329, 338, 10 N.E. 225 (1887).
"[R]einsurance relationships are governed by the traditional principle of `utmost good faith' (`uberrima fides'). [Citations.] `Utmost good faith ... requires a reinsurer to indemnify its cedent for losses that are even arguably within the scope of the coverage of the reinsured, and not to refuse to pay merely because there may be another reasonable interpretation of the parties' obligations under which the reinsurer could avoid payment.'" Commercial Union Insurance Co. v. Seven Provinces Insurance Co., 217 F.3d 33, 43 (1st Cir.2000), quoting United Fire & Casualty Co. v. Arkwright Mutual Insurance Co., 53 F.Supp.2d 632, 642 (S.D.N.Y.1999).
Global focuses much of its energy on arguing that the panel exceeded its authority because it awarded the attorney fees based on a violation of the duty of utmost good faith, which was not a basis submitted by Amerisure or briefed by the parties. The record, however, establishes that Amerisure requested attorney fees based on both section 155 of the Code and the practices of the reinsurance industry, which, as just described, include the duty of utmost good faith.
A review of the portions of the pleadings and the arbitration hearing transcript included in the record on appeal[3] demonstrates the parties and the panel members repeatedly referred to the reinsurance custom of utmost good faith. Global admits such in its reply brief. In fact, during the hearing, Amerisure urged the panel to rely on its reinsurance expertise, specifically referencing the "utmost good faith rule," in conjunction with section 155 in making its decision. Global did not object then, or at any point when Amerisure referenced the duty of utmost good faith. And, Amerisure consistently argued before the panel that it was entitled to section 155 attorney fees based on Global's conduct in violation of the duty of utmost good faith.
We recognize a violation of the duty of utmost good faith does not, in itself, provide a basis for awarding attorney fees. However, Illinois does recognize that allowing the recovery of damages incurred as a result of unreasonable delays in the settlement of insurance claims will encourage insurers to act with the utmost good faith in resolving disputes. Calcagno v. Personalcare Health Management, Inc., *750 207 Ill.App.3d 493, 505, 152 Ill.Dec. 412, 565 N.E.2d 1330 (1991) (finding an insurer that paid the underlying claim prior to being sued still may be held liable for section 155 fees where the insurer unreasonably delayed settling the claim). The instant record demonstrates that the terms "violation of the duty of utmost good faith" and "vexatious and unreasonable delay pursuant to section 155" were consistently used, if not interchangeably, then as counterparts throughout the arbitration. This was not, as Global contends, similar to Quick & Reilly, Inc. v. Zielinski, 306 Ill.App.3d 93, 101, 239 Ill.Dec. 208, 713 N.E.2d 739 (1999), where the arbitrators in that case exceeded their authority because they awarded attorney fees based on a statute not presented by the parties. Here, the panel did not exceed its authority in considering the reinsurance industry duty of utmost good faith in its ultimate award.
Nevertheless, we do find that the panel exceeded its authority because it relied on Illinois law as the basis for awarding attorney fees; however, Illinois law is clear that section 155 of the Code does not authorize arbitrators to award attorney fees.
Section 10 of the Act (710 ILCS 5/10 (West 2006)) provides:
"Unless otherwise provided in the agreement to arbitrate, the arbitrators' expenses and fees, together with other expenses, not including attorney's fees, incurred in the conduct of the arbitration, shall be paid as provided in the award." (Emphasis added.)
This court has interpreted the statute to mean:
"[A]bsent a contrary provision in the arbitration agreement, the Act authorizes arbitrators to assess all fees and costs associated with an arbitration proceeding, except for attorney fees. With respect to attorney fees, the statute neither permits nor prohibits the arbitrators' assessment of attorney fees. Rather, the Act delegates this decision to the parties. As such, an arbitrator's authority to assess attorney fees derives solely from the agreement to arbitrate." Lee B. Stern & Co., 277 Ill.App.3d at 426, 213 Ill.Dec. 913, 660 N.E.2d 170.
Moreover, "`[P]arties are only bound to arbitrate those issues which by clear language they have agreed to arbitrate; arbitration agreements will not be extended by construction or implication.'" Lee B. Stern & Co., 277 Ill.App.3d at 427-28, 213 Ill. Dec. 913, 660 N.E.2d 170, quoting Flood v. Country Mutual Insurance Co., 41 Ill.2d 91, 94, 242 N.E.2d 149 (1968).
Here, the parties' arbitration agreement did not expressly provide for attorney fees; however, in relation to the agreement to arbitrate, the treaty said "except as provided * * *, arbitration shall be based upon the procedures of the American Arbitration Association insofar as applicable." In addition, the treaty said "[t]he arbitrators shall not be obliged to follow judicial formalities or rules of evidence except to the extent required by governing law that is, the state law of the situs of the arbitration * * *; they shall make their decisions according to the practice of the reinsurance business."
Rule 43(d)(2) of the AAA provides three bases upon which an arbitration panel may award attorney fees: (1) "if all parties have requested such an award"; (2) if "it is authorized by law"; or (3) if it is authorized by "their arbitration agreement." Both parties did not request attorney fees, only Amerisure did, and, as stated, the arbitration agreement did not expressly provide for attorney fees. Therefore, the parties agreed to arbitrate only those attorney fees authorized by Illinois law, as the chosen forum.
*751 Section 155 of the Code provides, in relevant part:
"(1) In any action by or against a company wherein there is in issue the liability of a company on a policy or policies of insurance or the amount of the loss payable thereunder, or for an unreasonable delay in settling a claim, and it appears to the court that such action or delay is vexatious and unreasonable, the court may allow as part of the taxable costs in the action reasonable attorney fees." 215 ILCS 5/155 (West 2006).
A court's primary objective in interpreting a statute is to give effect to the intent of the legislature. Harshman v. DePhillips, 218 Ill.2d 482, 493, 300 Ill.Dec. 498, 844 N.E.2d 941 (2006). The best indicator of the legislators' intent is the plain language of the statute. Harshman, 218 Ill.2d at 493, 300 Ill.Dec. 498, 844 N.E.2d 941. When a statute's language is clear and unambiguous, we will give it effect without resorting to other aids of construction. Harshman, 218 Ill.2d at 493, 300 Ill.Dec. 498, 844 N.E.2d 941.
In interpreting section 155, this court has said:
"Section 155 is intended to penalize vexatious delay or rejection of legitimate claims by insurance companies. If the insurance company vexatiously delays or rejects legitimate claims, it is responsible for the expense resulting from the insured's efforts to prosecute the claim. [Citation.] When an insured must resort to bringing a declaratory action against the insurer in order to enforce its right to coverage in an underlying lawsuit, the insured may recover section 155 attorney fees incurred in both the underlying case and the declaratory action. [Citation.]" (Emphasis added.) Estate of Price v. Universal Casualty Co., 334 Ill.App.3d 1010, 1012, 268 Ill. Dec. 770, 779 N.E.2d 384 (2002).
Since the statute was implemented in 1937, it has designated the court as the authority to allow section 155 attorney fees. Moreover, this court has held that a party may not "recover attorneys fees under section 155 by way of an arbitration proceeding." American Service Insurance Co. v. Passarelli, 323 Ill.App.3d 587, 591, 256 Ill.Dec. 755, 752 N.E.2d 635 (2001). Relying on the plain language of the statute, this court found the insured improperly attempted to recover attorney fees from an arbitration panel when the fees may only be awarded by a circuit court. Passarelli, 323 Ill.App.3d at 591, 256 Ill.Dec. 755, 752 N.E.2d 635. Specifically, the Passarelli court relied on the language of section 155: "`the court may allow as part of the taxable costs in the action reasonable attorney fees' and that such an award is allowable if `it appears to the court that such action or delay is vexatious and unreasonable.'" (Emphasis in original.) Passarelli, 323 Ill.App.3d at 591, 256 Ill.Dec. 755, 752 N.E.2d 635, quoting 215 ILCS 5/155(1) (West 1998); see McGee v. State Farm Fire & Casualty Co., 315 Ill.App.3d 673, 681, 248 Ill.Dec. 436, 734 N.E.2d 144 (2000) ("[w]hether an insurer's conduct is vexatious and unreasonable is a matter committed to the circuit court's discretion"); see also Estate of Price v. Universal Casualty Co., 322 Ill. App.3d 514, 517-18, 255 Ill.Dec. 822, 750 N.E.2d 739 (2001) (when determining whether an insurer is subject to section 155, a circuit court must consider the totality of the circumstances).
More recently, in Smith v. State Farm Insurance Cos., 369 Ill.App.3d 478, 485, 308 Ill.Dec. 118, 861 N.E.2d 183 (2006), this court said a section 155 claim "is only proper in court and not in arbitration proceedings, as the statute vests the court *752 with the discretion to determine the award." (Emphasis added.) We found in Smith that the plaintiff's section 155 action was not authorized by statute and was not "covered under the scope of an arbitration" because "section 155 itself vests the court with discretion to determine the award, if any, in a matter brought pursuant to it." (Emphasis added.) Smith, 369 Ill.App.3d at 485, 308 Ill.Dec. 118, 861 N.E.2d 183 (holding a release agreement following arbitration did not bar the plaintiff from filing a subsequent section 155 claim in a circuit court).
The arbitrators were required to recognize the parties' contractual agreement that limited the arbitrators' authority to award attorney fees in conformance with Illinois law. When the arbitrators awarded attorney fees based on section 155, they did so in violation of Illinois law.
Amerisure relies on Beatty v. Doctors' Co., 374 Ill.App.3d 558, 312 Ill.Dec. 738, 871 N.E.2d 138 (2007), to support its contention that Illinois courts have allowed arbitrators to award section 155 attorney fees. Amerisure's reliance, however, is misplaced.
In Beatty, the plaintiff's amended complaint in the circuit court alleged the defendant failed to defend and indemnify the plaintiff in a professional liability action, and sought, inter alia, attorney fees pursuant to section 155. Beatty, 374 Ill. App.3d at 560, 312 Ill.Dec. 738, 871 N.E.2d 138. The parties eventually agreed to arbitrate, and the circuit court issued a consent order in which the parties agreed to binding arbitration for those matters raised in the plaintiff's amended complaint. Beatty, 374 Ill.App.3d at 565, 312 Ill.Dec. 738, 871 N.E.2d 138. The arbitrators then awarded attorney fees pursuant to section 155, and the award was confirmed. Beatty, 374 Ill.App.3d at 561-62, 312 Ill.Dec. 738, 871 N.E.2d 138.
On appeal, the defendant primarily contended the arbitrators grossly erred in finding it acted vexatiously and unreasonably pursuant to section 155. Beatty, 374 Ill.App.3d at 564, 312 Ill.Dec. 738, 871 N.E.2d 138. The Fifth District held it was outside the scope of the court's review to reanalyze the arbitrators' determination because the facts upon which the decision was based did not appear on the face of the award. Beatty, 374 Ill.App.3d at 564, 312 Ill.Dec. 738, 871 N.E.2d 138. In addition, the Fifth District held Passarelli was distinguishable because the parties mutually consented to arbitrate the issue of section 155 attorney fees. Beatty, 374 Ill. App.3d at 565, 312 Ill.Dec. 738, 871 N.E.2d 138.
We find Beatty inapplicable to the case at bar where it is narrowly limited to its facts. Beatty never addressed the arbitrator's authority under Illinois law to award section 155 attorney fees because judicial review was essentially forfeited where the parties agreed to arbitrate all matters alleged in the amended complaint, including the claim for attorney fees under section 155. Beatty, 374 Ill.App.3d at 565, 312 Ill.Dec. 738, 871 N.E.2d 138. We find no indication in Beatty that the appellant timely argued to the arbitrators that Illinois law did not authorize them to award section 155 attorney fees.
Here, in contrast, Global consistently argued in a timely manner that section 155 fees could not be awarded. As discussed in detail above, Amerisure and Global entered a standard arbitration agreement when they first contracted, agreeing to arbitrate only those attorney fees authorized by Illinois law. Section 155 does not provide arbitrators with the authority to award attorney fees; the plain language of the statute reserves that authority to circuit courts. 215 ILCS 5/155 (West 2006). Therefore, the instant arbitrators were not *753 authorized under Illinois law to award attorney fees pursuant to section 155.
We are not persuaded by Amerisure's argument that Passarelli is distinguishable simply because the parties there did not have an arbitration agreement and were forced to arbitrate their uninsured motorist claim based on the Code. The Passarelli holding that section 155 fees may only be awarded by a court, not an arbitration panel, applies regardless of the method by which the parties entered arbitration. And, we find Amerisure's reliance on Father & Sons, Inc. v. Taylor, 301 Ill.App.3d 448, 234 Ill.Dec. 671, 703 N.E.2d 532 (1998), to be misplaced. The statute at issue there was the Consumer Fraud and Deceptive Business Practices Act (815 ILCS 505/10a(e) (West 1996)). We need not turn to other construction aids, such as the comparative language of another statute, to interpret the clear and unambiguous language of section 155. Harshman, 218 Ill.2d at 493, 300 Ill.Dec. 498, 844 N.E.2d 941.
We do not come to our decision lightly, without consideration of the deference given to arbitrators and the public policy behind arbitration. However, the instant case is an extraordinary one where the arbitrators awarded attorney fees based on a statute which clearly reserves the authority to award such fees to the courts. This was a gross error of law, as we discuss in the next section. A panel exceeds its authority when "`all fair and reasonable minds would agree that the construction of the contract made by the arbitrator was not possible under a fair interpretation of the contract.'" Garver v. Ferguson, 76 Ill.2d 1, 9-10, 27 Ill.Dec. 773, 389 N.E.2d 1181 (1979), quoting M. Pirsig, Some Comments on Arbitration Legislation & the Uniform Act, 10 Vand. L. Rev. 685, 706 (1957). We conclude that standard has been met here.
We need not address whether section 155 applies to reinsurance relationships because, even assuming, arguendo, it does, the arbitrators did not have the authority to award attorney fees pursuant to the statute.
II. Gross Error on the Face of the Award
Amerisure contends that any error by the arbitrators in interpreting or applying section 155 was merely a mistake of law, and, thus, not a sufficient ground to vacate the attorney fee award. We disagree because this appeal does not involve a mere dispute concerning the arbitrators' statutory interpretation but, rather, the awarding of attorney fees contrary to clear Illinois law.
"Errors of judgment in law are not grounds for vacating an arbitrator's award when the interpretation of the law is entrusted to the arbitrator." Board of Education v. Chicago Teachers Union, Local No. 1, 86 Ill.2d 469, 477, 56 Ill.Dec. 653, 427 N.E.2d 1199 (1981). "Only where it appears on the face of the award (and not in the arbitrator's opinion) that the arbitrator was so mistaken as to the law that, if apprised of the mistake, the award would be different may a court review the legal reasoning used to reach the decision." Board of Education, 86 Ill.2d at 477, 56 Ill.Dec. 653, 427 N.E.2d 1199.
Here, on its face, the arbitrators awarded attorney fees based on Global's violation of the duty of utmost good faith. However, in Illinois, the "American" rule only allows a successful litigant to recover attorney fees if authorized by the parties' agreement or statute. Krantz v. Chessick, 282 Ill.App.3d 322, 329, 217 Ill.Dec. 892, 668 N.E.2d 77 (1996). The parties here did not contract for the awarding of fees, by an arbitration panel or otherwise, in the *754 event of a violation of the duty of utmost good faith. Amerisure does not cite, and our research has not revealed, any statute providing fees in that event. Moreover, Illinois does not recognize a bad-faith exception to the "American" rule for attorney fees. Krantz, 282 Ill.App.3d at 330, 217 Ill.Dec. 892, 668 N.E.2d 77. Since there is no methodology in the parties' agreement or under Illinois law for awarding attorney fees due to a violation of the duty of utmost good faith, we find the panel was so mistaken that if apprised of the law it would have made a different decision.
Accordingly, we may review the arbitration record, as we previously did when analyzing whether the panel exceeded its authority by considering a matter not raised by the parties. Board of Education, 86 Ill.2d at 477, 56 Ill.Dec. 653, 427 N.E.2d 1199. As the record demonstrated, the panel awarded the attorney fees based on section 155 in conjunction with the reinsurance practice of the duty of utmost good faith. Significantly, the parties admit that Passarelli was never submitted or argued to the panel during the arbitration proceedings. Moreover, neither party apprised the panel of Smith. Passarelli and Smith clearly establish that Illinois law has consistently held that arbitrators do not have the authority to award section 155 attorney fees. And, as discussed above, Beatty does not detract from that consistent statement of Illinois law. The failure to provide the arbitrators with an accurate argument concerning Illinois law on this issue resulted in the panel being so mistaken as to the law that, if apprised of the mistake, the award would have been different.
CONCLUSION
We respectfully reverse the circuit court's summary judgment finding in favor of Amerisure and vacate that part of the arbitrators' order awarding attorney fees.
Judgment reversed; award vacated in part.
HALL, P.J., and PATTI, J., concur.
NOTES
[1] Amerisure maintains it requested attorney fees from "the beginning," noting it listed "costs" and "exemplary damages" in its initial arbitration demand. Global does not take issue with the timing of Amerisure's request for attorney fees.
[2] The parties agreed to waive all AAA rules except Rule 43(d).
[3] The arbitration record was originally sealed by agreement of the parties; however, the circuit court dissolved its order during the proceedings and ordered the parties to file future filings in the "usual fashion."
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STATE OF MICHIGAN
COURT OF APPEALS
KHALANI CARR, UNPUBLISHED
June 20, 2017
Plaintiff-Appellant,
v No. 330115
Oakland Circuit Court
ROGER A. REED, INC., doing business as REED LC No. 2013-134098-NI
WAX, KELLER HEARTT COMPANY, INC.,
AMOCO OIL COMPANY, also known as BP
PRODUCTS NORTH AMERICA, INC., THE
INTERNATIONAL GROUP, INC., and SASOL
WAX NORTH AMERICA CORPORATION, also
known as SASOL WAX NORTH AMERICA,
INC., also known as SASOL CHEMICALS USA,
LLC,
Defendants-Appellees,
and
PROS SERVICE, INC.,
Defendant.
Before: M. J. KELLY, P.J., and BECKERING and SHAPIRO, JJ.
PER CURIAM.
Plaintiff appeals as of right following the trial court’s grant of summary disposition to
defendants under MCR 2.116(C)(10) (no genuine issue of material fact). We affirm the grant of
summary disposition as to defendants Roger A. Reed Inc., Amoco Oil Company, and The
International Group, Inc. We reverse the grant of summary disposition to defendants Keller
Heartt Company Inc. and Sasol Wax North America Corporation.
I. FACTUAL BACKGROUND
Plaintiff, a DTE employee, was injured while performing repair work to electrical
components located in a city manhole. Part of the work involved cleaning the components using
a hot paraffin wax. The wax was melted on the job site in a kettle intended for that purpose.
-1-
Plaintiff’s co-worker testified that when they got to the job site, the kettle already had some wax
in it and that, after adding additional wax, he heated the kettle and gave it to plaintiff, who was in
the manhole. A fire began in the manhole, and there appears to be no dispute that the fire began
when the paraffin wax ignited. Plaintiff suffered serious injury. In this suit, plaintiff alleges that
the wax supplied to DTE failed to contain adequate information and warning about the unusual
flammability of the wax. He alleged that if that information had been provided, the wax would
have been handled in a manner to prevent his injury.
This case presents an unusual circumstance. Two companies, Keller Heartt and Reed,1
were the suppliers of identical paraffin wax to DTE. Each defendant filed a motion for summary
disposition pursuant to MCR 2.116(C)(10) on the grounds that there was no evidence from
which a jury could reasonably conclude that it had supplied the specific batch of wax used on the
date of injury. The trial court agreed and dismissed the claims against each defendant. Plaintiff
appeals from each of those orders.
II. ANALYSIS
Summary disposition under MCR 2.116(C)(10) is appropriate if, after considering the
affidavits, pleadings, depositions, admissions, and other evidence submitted by the parties in the
light most favorable to the party opposing the motion, no genuine issue of material fact exists.
Klein v HP Pelzer Auto Sys, Inc, 306 Mich App 67, 75; 854 NW2d 521 (2014). “The trial court
is not permitted to assess credibility, or to determine facts on a motion for summary disposition.”
Skinner v Square D Co, 445 Mich 153, 161; 516 NW2d 475 (1994). A genuine issue of material
fact exists when reasonable minds could differ on an issue after viewing the record in the light
most favorable to the nonmoving party. Allison v AEW Capital Mgt, LLP, 481 Mich 419, 425;
751 NW2d 8 (2008).
Plaintiff initiated this action under a negligence theory based on the failure to warn.
Therefore, as part of the prima facie case, plaintiff must show that a failure to warn attributable
to the manufacturer or supplier was a proximate cause of his injuries. Skinner, 445 Mich at 162.
Establishing proximate cause entails proof of two separate elements: (1) cause in fact, and (2)
legal cause, also known as “proximate cause.” Id. at 162-163. Cause in fact requires a showing
that “but for” the defendant’s actions, the plaintiff’s injury would not have occurred. Id. at 163.
Legal cause, on the other hand, involves examining the foreseeability of consequences and
whether a defendant should be held legally responsible for such consequences. Id. In Skinner,
our Supreme Court explained that “the plaintiff must present substantial evidence from which a
jury may conclude that more likely than not, but for the defendant’s conduct, the plaintiff’s
injuries would not have occurred.” Id. at 164-165. It is not sufficient for a plaintiff “to submit a
1
Defendants Amoco Oil Company and The International Group Inc., manufactured the wax that
defendant Roger A. Reed, Inc. supplied to DTE, and these defendants will collectively be
referred to as the Reed defendants. Defendant Sasol Wax North America Corporation
manufactured the wax that defendant Keller Heartt supplied to DTE, and these defendants will
collectively be referred to as the Keller Heartt defendants.
-2-
causation theory that, while factually supported, is, at best, just as possible as another theory.”
Id. at 164.
DTE’s records and the testimony of its employees established that DTE did not obtain
wax from any company other than Keller Heartt and Reed. Neither defendant has put forward
any evidence to suggest otherwise. Therefore, Keller Heartt’s claim that they did not supply the
wax used on the day of the accident unavoidably leads to the conclusion that Reed was the
supplier. And Reed’s claim that they did not supply the wax used on the day of the accident
unavoidably leads to the conclusion that Keller Heartt was the supplier. In other words, there is
no question of material fact but that the wax used on the day of plaintiff’s accident was supplied
by either Keller Heartt or Reed.
A. KELLER HEARTT
There is more than sufficient circumstantial evidence to create a question of fact
regarding whether the wax that was added to the kettle before it was handed to plaintiff was
manufactured and supplied by the Keller Heartt defendants. Keller Heartt delivered wax blocks
that measured approximately 19 X 12 X 1 1/2 inches. At the service center where the wax was
stored, DTE wrapped the Keller Heartt slabs in brown or manila paper.2 Because of the size of
the blocks, DTE employees who needed to use it would break the wax into pieces to fit them into
a kettle to melt the wax for use on jobs. By contrast, the Reed wax was delivered in much
smaller blocks, about 3.5 X 3.5 X ¾ inches, that could be placed into the kettle without the need
to break them into smaller pieces. According to the record evidence, Plaintiff went to the job-
site with three other employees. One of them, Akil Williamson, was responsible for ensuring the
truck was stocked with necessary materials for the job assignment. Williamson did not recall
whether the truck was already stocked with paraffin wax or if he loaded it that day. But he
testified that the type of wax in the truck was wrapped in brown paper, i.e. consistent with Keller
Hearrt wax. He also recalled breaking the wax into pieces and inserting them into the kettle to
melt. Erik O’Connell, another employee present at the incident, also testified that the wax
outside the manhole had been broken from a big block and that when the truck was loaded, the
only wax at the Service Center was in large blocks. Plaintiff similarly testified that the wax he
saw at the service center that day was 1 ½ feet to 2 feet long and two inches thick and that there
were also broken up pieces.
Furthermore, photographs taken at the scene shortly after the accident show two large and
several smaller, irregularly-shaped pieces of wax on a fire blanket, i.e. pieces of a large block
that had been broken off rather than the Reed-style bricks. Looking at the photograph,
Williamson testified at his deposition that “[i]f that’s the wax that’s out there, then, yes, that was
probably the wax I would have been using.” Three other DTE employees, including its
purchasing officer testified that the wax depicted in the photos was not Reed wax. No wax
consistent with the size and shape of the Reed smaller bricks was depicted on the photos of the
job-site.
2
Although Reed wax had been ordered by the time of the accident, the wax fitting the
description of the Keller Heartt defendants’ product remained available to DTE employees.
-3-
In response, Keller Heartt argues that a post-deposition affidavit signed by Williamson
establishes beyond a question of fact that the wax that caused the fire was not Keller Heartt wax.
We disagree. In his affidavit, Williamson averred that he did not know which of the two
companies’ wax he placed in the kettle that day and that if Reed wax had been on the truck he
would have used it first because it was easier. However, even assuming that is true, there is no
testimony that Reed wax was on the truck or present at the job site. Moreover, Williamson
testified that the wax on the truck was in a brown wrapping, which is consistent with Keller
Heartt product, not Reed product. O’Connell testified that the only wax at the Service Center
was the large blocks and, while plaintiff at one point in his deposition said there was Reed wax
there, he went on to describe the wax he saw as being 1 ½ feet long and two inches thick, a size
consistent only with the Keller Heartt wax. And, as noted, the only wax photographed at the
scene is of a size consistent with Keller Heartt wax.
In sum, while Williamson’s affidavit suggests that it was possible that Reed wax was
used, there is no evidence to support the conclusion that it was probable that Reed wax was used.
By contrast, there is substantial evidence to support the conclusion that it was more probable
than not that Keller Heartt was the wax loaded into the kettle.3 Therefore, we reverse the grant
of summary disposition to the Keller Heartt defendants.
B. REED
For the reasons just discussed, the record does not contain evidence to support the
conclusion that it was more likely than not that Reed provided the relevant wax. There is no
evidence that Reed wax was at the job site or even on the truck. There is evidence to support the
conclusion that Reed wax was available at the service center, but that is not sufficient to create a
question of material fact. See Skinner, 445 Mich at 164-165 (the evidence must show that it is
more than just a possibility that the defendant’s product was the cause of the plaintiff’s injury).
Plaintiff, essentially conceding the lack of evidence that Reed’s wax was loaded into the
kettle, has not relied on traditional tort law in its response to Reed’s motion for summary
disposition. Rather, plaintiff argues that, because there is no way to determine whether the wax
that was already in the kettle at the time Williamson added the additional wax and heated it was
provided by Reed or Keller Heartt, it can rely on the theory of alternative liability defined in Abel
v Eli Lilly and Company et al, 418 Mich 311; 343 NW2d 164 (1984). However, this theory may
not to be substituted for traditional tort principles in this case. Alternative liability may be
employed only where each of the multiple defendants has produced the same allegedly defective
product, and there is no evidence which of the defendant’s manufactured the particular unit of
the product that ultimately caused the injury. Id. at 334. As the Abel Court cautioned, this
theory may only be used where “to do otherwise would leave an innocent plaintiff remediless.”
Id. at 335. “Where plaintiffs are able to identify the causation in fact of their injury, traditional
tort remedies must be used to secure relief.” Id.
3
The burden of proof is “more likely than not,” not absolute certainty. See Skinner, 445 Mich at
165.
-4-
In this case, as just noted, there is sufficient evidence for a jury to conclude that Keller
Heartt’s product was the one loaded into the kettle and so was a cause in fact of plaintiff’s injury.
We agree with plaintiff that it is impossible to determine which company’s wax was in the kettle
before more was added by Williamson at the job site. However, this does not alter the fact that
plaintiff has an available remedy in this case – its suit against Keller Heartt based on what was
added at the job site. Thus, this is not a situation where plaintiff is without a remedy. For the
alternative liability theory to apply, it would have to be impossible to determine which of the two
companies wax was in the kettle upon arrival and which was added. If that were the case, we
would have to address the question whether the alternative liability theory was implicitly
abolished by the statutory elimination of joint and several liability as defendants contend. But
because plaintiff has a viable claim under traditional tort principles, we do not address that
question. Whether plaintiff is entitled to compensation from the Keller Heartt defendants
remains for the jury to determine, but he has a viable claim within the rubric of traditional tort
principles and so may not rely on a theory of alternative liability. For this reason, we affirm the
trial court’s decision to grant summary disposition to Reed.
III. ISSUES ON REMAND
Defendants have argued that regardless of the question now before us, they are entitled to
dismissal of plaintiff’s claims based upon the defense that plaintiff was a sophisticated user. The
trial court did not address that question or examine the facts relevant to it. Accordingly, we do
not address it here and leave it to the trial court to do so on remand at defendant’s request. See
Heydon v Media One of Southeast Mich Inc, 275 Mich App 267, 278; 739 NW2d 373 (2007)
(this Court need not address issues not ruled on by the trial court).
Given our determination that there is no factual basis to support a conclusion that Reed
wax was more likely than not used, we anticipate that on remand the parties may disagree on the
status of any notices of non-party at fault already filed or that may be filed following our
decision as to the Reed defendants. That issue is likely to engender another appeal to this court
and further delay for the parties, and so in the interest of judicial efficiency we address it now.
See People v Hermiz, 462 Mich 71, 77; 611 NW2d 783 (2000) (Opinion of TAYLOR, J.) (stating
that it is appropriate to review issues not raised by the parties when justice requires doing so and
determining that judicial economy and finality are factors that support reviewing such an issue).
In order to obtain an assessment of fault against a non-party, the party asserting such fault
must demonstrate that the non-party’s negligence, or other actionable conduct, was a cause of
plaintiff’s injury. MCLA 600.6304(8). The trial court has concluded, and we have affirmed, that
evidence, sufficient to allow a reasonable jury to find Reed at fault, does not exist.4 Thus, it
4
Keller Heartt had a full opportunity to present evidence in opposition to Reed’s motion and
presented none. Presumably this is because none existed since evidence that the wax was
provided by the Reed defendants would have been highly favorable to Keller Heartt. If Keller
Heartt was aware of such evidence but did not provide it, it may not now file a notice of non-
party fault based upon it in light of MCR 2.112(K)(3)(c) which bars the filing of a notice more
than 91 days after initial pleadings unless the “facts on which the notice is based were not and
-5-
would be improper for any party, either plaintiff or Keller Heartt to present such a claim to the
jury. See Romain v Frankenmuth Mutual Ins Co, 483 Mich 18, 20, 22; 762 NW2d 911 (2009).
V. CONCLUSION
We affirm the trial court’s dismissal of the Reed defendants and reverse the trial court’s
dismissal of the Keller Heartt defendants. The matter is remanded to the trial court for further
proceedings and trial. We do not retain jurisdiction. Reed may tax appellate costs against
plaintiff. Plaintiff may tax appellate costs against Keller Heartt. MCR 7.219.
/s/ Michael J. Kelly
/s/ Jane M. Beckering
/s/ Douglas B. Shapiro
could not with reasonable diligence have been known to the moving party.” Moreover, even if
that standard is met, the notice may not be filed if, as here, it would “result in unfair prejudice to
the opposing party.” Id.
-6-
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DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
STATE OF FLORIDA,
Appellant,
v.
T.M., a child,
Appellee.
No. 4D17-2735
[June 27, 2018]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Michael J. Orlando, Judge; L.T. Case No. 17-1507 DL.
Pamela Jo Bondi, Attorney General, Tallahassee, and Jessenia J.
Concepcion, Assistant Attorney General, West Palm Beach, for appellant.
Carey Haughwout, Public Defender, and Virginia Murphy, Assistant
Public Defender, West Palm Beach, for appellee.
LEVINE, J.
It was 8:00 p.m. when a Lauderhill detective observed appellee and two
other males standing in front of a vacant townhouse. The detective, who
was on routine patrol, continued to watch appellee and the other two
individuals. After five minutes, the detective pulled his car up beside
appellee and the other two individuals, who remained standing outside the
vacant house. The detective greeted the group using a “soft voice.”
Upon seeing the detective approach, appellee and the other two
individuals fled. They ran through the parking lot as the detective
commanded them to stop. But they did not stop—they kept running.
During the pursuit, the detective saw appellee reach into his pocket and
retrieve a clear plastic bag which he threw onto the ground. The detective
finally caught up with appellee, took him into custody, and recovered the
plastic bag. The contents of the bag tested positive for cocaine.
At the hearing on appellee’s motion to suppress, the detective testified
that he had participated in “many operations” in and near the townhouse
community where he saw appellee the day of the arrest. Based on his
experience as a narcotics officer for several years and the totality of the
circumstances, the detective believed the plastic bag discarded by appellee
contained narcotics as soon as he saw it. He explained that, in his
experience, clear plastic bags like that one are “indicative of holding
narcotics.”
After the suppression hearing, the trial court granted appellee’s motion
to suppress the bag as the fruit of an unlawful search and seizure. We,
however, conclude that the trial court erred in granting the motion to
suppress and as such we reverse and remand.
We review an order on a motion to suppress by applying a mixed
standard of review, deferring to the trial court’s factual determinations but
reviewing de novo its application of the law to the facts of the case. Lee v.
State, 868 So. 2d 577, 579 (Fla. 4th DCA 2004).
The trial court found that the detective lacked reasonable suspicion to
stop appellee. This conclusion was based in part on the trial court’s
erroneous interpretation of R.R. v. State, 137 So. 3d 535 (Fla. 4th DCA
2014). 1 The state contends that there was reasonable suspicion.
Alternatively, the state argues that even if there was no reasonable
suspicion, appellee’s flight after an officer’s command to stop and his
subsequent abandonment of the contraband does not constitute an
unlawful seizure.
We agree with the state’s alternate theory that contraband abandoned
during flight from the police is not fruit of an improper seizure and thus
not subject to suppression. Due to our agreement, there is no need to
determine if there was in fact reasonable suspicion to stop appellee before
he discarded the bag.
Both Florida and federal courts have held that reasonable suspicion
can arise after a suspect’s flight and that illegal contraband abandoned
1 While not dispositive of the issue on appeal, it appears that the trial court
misread R.R. to create a “holiday season exception” to what circumstances give
rise to reasonable suspicion. In R.R., we merely noted that the defendant was
seen walking around cars in a parking lot four days after Christmas. Our opinion
lists the holiday season and Christmas as potential factual circumstances that
the trial court could look at to determine if there was “sufficient reason to conduct
an investigatory stop”—not as factors that would lower the reasonable suspicion
bar ab initio or create a new exception to the quantum of evidence needed to meet
the reasonable suspicion standard. Id. at 539.
2
during flight from police is not properly suppressed as the fruit of a seizure.
In California v. Hodari D., 499 U.S. 621, 629 (1991), the United States
Supreme Court held that, for Fourth Amendment purposes, the defendant
was not seized by police until an officer physically caught up with and
restrained him after a chase. As such, the rock of cocaine the defendant
tossed away mid-run was not the fruit of any unlawful seizure and should
not have been suppressed. Id. Moreover, the Supreme Court in Hodari
D. noted that, if the officer recognized the rock as a rock of cocaine at the
time it was discarded, reasonable suspicion would have attached at that
point anyway. Id. at 624. Hodari D. is controlling law in this state
pursuant to the conformity clause of the Florida Constitution. See art. I,
§ 12, Fla. Const. (“The right of the people to be secure . . . against
unreasonable searches and seizures . . . shall be construed in conformity
with the 4th Amendment to the United States Constitution, as interpreted
by the United States Supreme Court.”).
This court has reached similar conclusions when a defendant discards
an item of contraband while fleeing from police. In Mosley v. State, 739
So. 2d 672, 674 (Fla. 4th DCA 1999), a defendant began to walk away
when he saw police approaching him. The officers pursued the defendant
and yelled for him to stop, whereupon he reached into his pocket and
discarded an object that both officers immediately recognized as a cocaine
pipe. Id. We held that the officers developed reasonable suspicion once
they recognized the pipe. Id. at 675. We also reversed a suppression order
in State v. Grant, 845 So. 2d 984, 985 (Fla. 4th DCA 2003), because the
officer immediately recognized a crack pipe discarded by the defendant.
Based on Hodari D., Mosley, and Grant, the trial court erred in
suppressing the plastic bag as the fruit of an unlawful seizure. Once
appellee abandoned the bag—which the detective, based on the totality of
the circumstances and his experience, believed contained drugs—the
police could lawfully seize it and later introduce it into evidence. For the
foregoing reasons, we reverse.
Reversed and remanded.
WARNER and TAYLOR, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
3
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Filed 8/25/15 P. v. Swain CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F068621
Plaintiff and Respondent,
(Super. Ct. No. FP003514A)
v.
RAYMOND SWAIN, JR., OPINION
Defendant and Appellant.
THE COURT*
APPEAL from an order of the Superior Court of Kern County. Kenneth C.
Twisselman, II, Judge.
John L. Staley, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney
General, Julie A. Hokans, Deputy Attorney General, for Plaintiff and Respondent.
-ooOoo-
* Before Gomes, Acting P.J., Kane, J. and Detjen, J.
Appellant Raymond Swain, Jr., originally appealed from an order pursuant to the
Sexually Violent Predator Act (SVPA) (Welf. & Inst. Code, § 6600 et seq.) civilly
committing him to the State Department of Mental Health for an indeterminate term. On
March 3, 2010, this court remanded to the trial court for it to determine whether sufficient
justification existed for treating sexually violent predators (SVP’s) differently than
mentally disordered offenders (MDO’s) and defendants who are found not guilty by
reason of insanity (NGI’s). (People v. Swain (Mar. 3, 2010, F056514).)
On this appeal, Swain contends he was denied his right to due process and the
equal protection of the law because on remand the trial court denied his equal protection
claim without holding an evidentiary hearing. We affirm.
FACTS
The commitment petition for Swain was filed on February 16, 2007, and went to a
jury trial on November 5, 2008. The jury concluded Swain was an SVP and the trial
court ordered him committed. Swain appealed, raising several challenges to the jury’s
verdict, including that he had been denied his right to equal protection of the law because
SVP’s receive treatment disparate from other similarly situated persons, specifically,
MDO’s subject to the Mentally Disordered Offender Act (Pen. Code, § 2960 et seq.) and
NGI’s.
While Swain’s appeal was pending, our Supreme Court filed its decision in
People v. McKee (2010) 47 Cal.4th 1172 (McKee I), which held, with respect to the equal
protection claim raised by the defendant, that SVP’s were similarly situated to MDO’s
and NGI’s. The court remanded the matter to the San Diego County Superior Court to
allow the People the opportunity to justify the disparate treatment, which had not been
addressed by the trial court. (Id. at pp. 1208-1211.)
On March 3, 2010, in accord with McKee I, we remanded People v. Swain
(F056514) back to the trial court for it “to hold proceedings to resolve the issue of
2
whether the People [could] prove a factually based justification for treating SVP’s
differently than MDO’s and NGI’s.”
On June 17, 2010, and again on January 14, 2011, the trial court suspended further
proceedings pending the finality of the proceedings on remand pursuant to McKee I.
Following an evidentiary hearing pursuant to McKee I, the trial court concluded
that the People had met their burden of justifying the disparate treatment of SVP’s. The
appellate court affirmed, concluding “the trial court correctly found the People presented
substantial evidence to support a reasonable perception by the electorate that SVP’s
present a substantially greater danger to society than do MDO’s or NGI’s.” (People v.
McKee (2012) 207 Cal.App.4th 1325, 1330-1331 (McKee II).) In reaching this
conclusion, the McKee II court found that “the People had presented evidence (1)
“‘showing the inherent nature of the SVP’s mental disorder makes recidivism
significantly more likely for SVP’s as a class than for MDO’s’ ([id.] at p. 1340); (2) ‘that
the victims of sex offenses suffer unique and, in general, greater trauma than victims of
nonsex offenses’ (id. at p. 1342); and (3) ‘showing SVP’s are significantly different from
MDO’s ... diagnostically and in treatment’ (id. at p. 1344).” (People v. Gray (2014) 229
Cal.App.4th 285, 290 (Gray).)
The California Supreme Court denied review of McKee II on October 10, 2012,
S204503.
On November 5, 2013, based on the decision in McKee II, the trial court in the
instant matter concluded that the SVP law did not violate Swain’s constitutional rights
and affirmed his commitment to the State Department of State Hospitals (DSH)1 for an
indefinite term.
1 DSH was formerly known as the State Department of Mental Health.
3
DISCUSSION
Swain contends that the summary denial of his equal protection claim without an
evidentiary hearing denied him his right to due process because it resulted in his equal
protection claim not being fully and fairly adjudicated. He also contends that McKee II
was erroneously decided. We reject these contentions.
In Gray, supra, 229 Cal.App.4th 285, after a jury found that the defendant was an
SVP, the court committed him to DSH for an indefinite term. (Id. at p. 287.) On appeal,
the defendant raised numerous arguments why McKee II was wrongly decided and urged
this court to reverse the judgment and remand to the trial court for it to hold an
evidentiary hearing on his equal protection claim. In rejecting the defendant’s
contentions, we noted that every published opinion to consider the issue had concluded
that the applicable version of the SVPA passed muster under the strict scrutiny test and
had found McKee II persuasive. (Gray, supra, 229 Cal.App.4th at pp. 291-292.) Swain
has not offered any persuasive reasons why we should not follow McKee II or our
opinion in Gray. In accord with these authorities, we reject Swain’s due process and
equal protection claims.
DISPOSITION
The judgment is affirmed.
4
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450 So.2d 336 (1984)
M.C., a Child, Appellant,
v.
STATE of Florida, Appellee.
No. 83-696.
District Court of Appeal of Florida, Fifth District.
May 24, 1984.
*337 Sally D.M. Kest, Orlando, for appellant.
Jim Smith, Atty. Gen., Tallahassee, and Kenneth McLaughlin, Asst. Atty. Gen., Daytona Beach, for appellee.
COWART, Judge.
When (1) a police officer encounters a person under circumstances[1] that authorize the officer to temporarily detain that person under Florida's Stop and Frisk statute (§ 901.151, Fla. Stat. (1983)) and (2) in the lawful execution of his legal duties the police officer intends to detain that person for the purpose of ascertaining the person's identity and to learn the circumstances surrounding his presence, and (3) under the facts and circumstances of the particular case that person learns, knows, or understands that the officer desires to detain that person, then if that person flees or takes other intentional action that prevents lawful detention, he may be guilty of obstructing or opposing such officer in violation of section 843.02, Florida Statutes (1983). See Price v. State, 318 So.2d 468 (Fla. 1st DCA 1975), cert. denied, 334 So.2d 607 (Fla. 1976). See also Johnson v. State, 433 So.2d 648 (Fla. 2d DCA 1983). Burgess v. State, 313 So.2d 479 (Fla. 2d DCA 1975), relates to the constitutional right to refuse to provide information and is distinguishable.
AFFIRMED.
DAUKSCH and SHARP, JJ., concur.
NOTES
[1] As to reasonable suspicion justifying detention and inquiry, see State v. Hunt, 391 So.2d 760 (Fla. 5th DCA 1980); as to probable cause, see State v. Jones, 417 So.2d 788 (Fla. 5th DCA 1982).
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Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
4-30-2008
Tjie v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-2721
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008
Recommended Citation
"Tjie v. Atty Gen USA" (2008). 2008 Decisions. Paper 1303.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1303
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 07-2721
___________
HIEN TJEN TJIE,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES
___________________________
Petition for Review of an Order of the
United States Department of Justice
Board of Immigration Appeals
(BIA No. A96 266 251)
Immigration Judge: Honorable Rosalind Malloy
__________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
April 16, 2008
Before: RENDELL, GREENBERG and VAN ANTWERPEN, Circuit Judges
(Filed April 30, 2008 )
___________
OPINION OF THE COURT
___________
PER CURIAM
Hien Tjen Tjie petitions for review of a decision of the Board of Immigration
Appeals (“BIA”) dismissing his appeal of the Immigration Judge’s (“IJ”) decision
denying his applications for asylum, withholding of removal, and protection under the
Convention Against Torture. We will deny the petition for review.
Tjie is a native and citizen of Indonesia. He came to the United States in 1999 as a
visitor. In 2003, the Immigration and Naturalization Service issued a notice to appear
charging that Tjie was subject to removal because he had stayed here longer than
permitted. Through counsel, Tjie conceded he was removable as charged. He applied for
asylum, withholding of removal, and relief under the Convention Against Torture. The IJ
found Tjie ineligible for asylum because his application was untimely, and considered his
other applications for relief.
At his hearing, Tjie relied on the affidavit he had submitted in support of his
applications. Tjie stated in the affidavit that he had suffered persecution on account of his
Chinese ethnicity and Christian religion. Tjie explained that he was a shopkeeper in an
area of predominantly Muslim shopkeepers of Madurese ethnicity, and that the Madurese
did not like Chinese Christians. One shopkeeper, who was jealous of Tjie’s shop’s
success, harassed Tjie constantly and told customers not to buy clothes from “the Chinese
man.” A.R. at 138.
The shopkeeper’s ill-will then appeared to subside, and she gave Tjie a cake. Tjie
was busy with customers and did not eat the cake, but his wife did. An hour later, she
became very ill. Tjie took his wife to the hospital, but she died. The doctor told Tjie that
she was poisoned. Tjie did not have the doctor perform an autopsy because he did not
want him to cut his wife’s body. At Tjie’s hearing, the IJ asked him why he did not have
2
the cake examined if he believed it was poisonous. He replied that he had thrown the
cake away because it was attracting flies. Tjie also testified that the doctor had told him
that his wife was poisoned based on her symptoms. When asked if the doctor made any
notes, at first Tjie said yes, but then replied that he asked the doctor not to make notes
because he was afraid the police would investigate and the shopkeeper’s family would
threaten him. Tjie submitted a death certificate, but it did not reflect the cause of death.
Tjie further stated in his affidavit that he did not report the crime to the police
because no one would have testified against the Muslim shopkeeper or would have helped
a Chinese Christian, and because Muslims would have retaliated against him. Tjie’s wife
died in 1987. Tjie stated that he closed his shop and could not concentrate on anything
for the next six years. He then worked for various companies for about seven years. Tjie
stated that he could not bear the violence of the May 1998 riots against the Chinese. He
came to the United States in October 1999.
Tjie testified that he is afraid to return to Indonesia because he is still traumatized
by his wife’s death, and because the Madurese have closed many churches and the
Muslims have tried to kidnap ministers. Finally, Tjie testified that he has twelve siblings
who, along with his mother, remain in Indonesia. Tjie also has two sons. One is a
student in Iowa, and the other lives in Canada. Tjie has one brother living here who is
seeking asylum.
The IJ did not doubt that Tjie is a widower, but found the evidence insufficient to
3
directly connect his wife’s death to the shopkeeper or to poisoning. The IJ did not believe
that the doctor agreed not to prepare a report, and found that Tjie’s testimony in this
regard weakened his claim. The IJ also noted that Tjie did not testify that he or his family
had any problems attending church in Indonesia, and that his twelve siblings, who are
Chinese and Christian, live in Indonesia without any problems. The IJ stated that Tjie
could return to an area where the Madurese do not live. Absent evidence of Tjie’s wife’s
cause of death, the IJ found that Tjie did not suffer past persecution. The IJ also found no
clear evidence that he would be persecuted in the future if he returned to Indonesia.
The BIA dismissed Tjie’s appeal. The BIA agreed that Tjie submitted insufficient
evidence to show that his wife’s death was a result of eating poisoned cake, and thus
concluded that he failed to establish a nexus between the harm he suffered and his
ethnicity or religion. The BIA also rejected Tjie’s argument on appeal that the IJ
incorrectly found no pattern or practice of persecution of Christians in Indonesia, noting
that the IJ had concluded that Tjie did not show a clear probability of future persecution
given that he had no problems attending church and his family still lived in Indonesia.1
We have jurisdiction to review the BIA’s decision pursuant to 8 U.S.C. § 1252(a).
We review the BIA’s findings under 8 U.S.C. § 1252(b)(4)(B), which provides that
“administrative findings of fact are conclusive unless any reasonable adjudicator would
1
The BIA also agreed with the IJ that Tjie’s asylum application was untimely, and that
Tjie did not show that he was eligible for relief under the Convention Against Torture.
These conclusions are not at issue in this appeal.
4
be compelled to conclude to the contrary.” We have read this standard to require that the
agency support its findings with substantial evidence, or evidence from which a
reasonable fact finder could make a determination based on the administrative record.
Gambashidze v. Ashcroft, 381 F.3d 187, 191 (3d Cir. 2004). In order to establish that he
was entitled to withholding of removal, Tjie was required to show a clear probability –
that it was more likely than not – that upon his return to Indonesia, he would be
persecuted. Id. If Tjie demonstrated past persecution, he is presumed to face future
persecution. Id.
Tjie argues in his brief that the BIA’s decision is not supported by substantial
evidence, and that the Muslim shopkeeper’s poisoning of his wife constituted past
persecution. Tjie, however, does not address the BIA’s conclusion that he presented
insufficient evidence to establish his wife’s cause of death, and thus failed to show a
nexus between the harm he suffered and his ethnicity or religion. Based on the evidence
discussed above, a reasonable fact finder could determine that Tjie did not establish that
the shopkeeper poisoned his wife or that the harm he suffered was on account of his
ethnicity or religion. The record does not compel a finding of past persecution.
Tjie also argues that he faces a clear probability of future persecution. Tjie does
not point to any evidence in the record in support of his argument. Instead, he contends
that there is a pattern or practice of persecution of Chinese Christians in Indonesia. Tjie,
however, did not present a pattern or practice claim before the IJ. His claim for relief
5
from removal was based on his wife’s death. See A.R. at 138-41. The BIA correctly
rejected Tjie’s argument on appeal that the IJ erred in finding no pattern or practice of
persecution because the IJ did not make such a finding. We also note that, contrary to
Tjie’s contention that he faces a clear probability of persecution if he returns to Indonesia,
Tjie lived in Indonesia for twelve years after his wife’s death without incident.
Accordingly, we will deny the petition for review.
6
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396 S.C. 525 (2012)
722 S.E.2d 805
In the Matter of Craig J. POFF, Petitioner.
Not in Source.
Supreme Court of South Carolina.
February 23, 2012.
ORDER
JEAN H. TOAL, CHIEF JUSTICE.
Respondent was suspended on August 22, 2011, for a period of six (6) months. He has now filed an affidavit requesting reinstatement pursuant to Rule 32, of the Rules for Lawyer Disciplinary Enforcement contained in Rule 413, SCACR.
The request is granted and he is hereby reinstated to the practice of law in this state.
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470 S.E.2d 574 (1996)
22 Va. App. 396
VIRGINIA INTERNATIONAL TERMINALS, INC.
v.
Melvin C. MOORE, Jr.
Record No. 2573-94-1.
Court of Appeals of Virginia, Norfolk.
May 14, 1996.
*575 F. Nash Bilisoly (Susan B. Potter; Vandeventer, Black, Meredith & Martin, on brief), Norfolk, for appellant.
John H. Klein (Rutter & Montagna, on brief), Norfolk, for appellee.
Present: BAKER, WILLIS and BRAY, JJ.
BAKER, Judge.
Virginia International Terminals, Inc. (employer) appeals from the decision of the Workers' Compensation Commission (commission) that affirmed the deputy commissioner's award of benefits to Melvin C. Moore, Jr. (claimant). Employer presents three questions: (1) whether there was sufficient evidence for the commission to find that claimant was disabled as of September 1, 1990, and that he made reasonable efforts to market his remaining work capacity; (2) whether claimant's claim is barred by the statutes of limitations embodied in Code §§ 65.1-56 and 65.1-99; and (3) whether employer is entitled to a credit for the total dollar amount paid under the Federal Longshore and Harbor Workers' Compensation Act (LHWCA).
Claimant sustained a compensable injury on November 10, 1986 while working as a *576 hustler driver for employer. A "hustler" is a vehicle which moves cargo containers. Claimant fractured both wrists as the result of a fall from a hustler vehicle. Claimant made several unsuccessful attempts to return to his pre-injury job and became a patient of Dr. Lawrence Morales, an orthopedic surgeon, on May 4, 1987. Dr. Morales concluded that claimant could not return to his job as a hustler driver but could do work of a lighter nature. On May 5, 1988, claimant filed a claim with the commission for the injury suffered in 1986.[1]
On June 1, 1988, surgery was performed on claimant's right wrist. On July 28, 1988, claimant was discharged from the care of his surgeon, Dr. Theodore DuPuy, having received from him a thirty-five percent permanent disability rating to his upper extremity. From that date through August 31, 1990, claimant received permanent partial disability benefits under the LHWCA, as well as periods of temporary total disability (during surgery in 1988 and 1993) under the LHWCA. Employer asserts it paid a total of $128,578.60 under that act.
Sometime during 1991, claimant began looking for work. Claimant could remember only that his search commenced during warm weather. Vocational counselor Michael Hulen attempted to assist claimant in job placement beginning July 31, 1991, and did so unsuccessfully for three months, though claimant was cooperative. Claimant offered into evidence a list of sixty-nine employers with their respective phone numbers from which he sought employment. Claimant's application was dismissed without prejudice by order entered May 8, 1992.
On June 7, 1993, surgery was performed on claimant's left hand. Prior to this surgery, claimant was capable of performing light-duty work with his right hand but not his left. Dr. Morales, claimant's surgeon and treating physician, released claimant, on September 21, 1993, to perform light and medium duty work. He limited claimant from work "requiring repetitive motions of both hands or both wrists such as assembly-type work, heavy lifting, pushing, pulling, repetitive grasping, turning of wrenches with different tools or instruments...."
I. Claimant's Disability and Efforts to Market Work Capacity
Employer contends that there was insufficient evidence for the commission to find that claimant was disabled as of September 1, 1990, when his benefits under the LHWCA were exhausted, and that claimant failed to make reasonable efforts to market his remaining capacity for work.
In reviewing the commission's decision, we are guided by well-settled principles. A finding of fact made by the commission which is supported by credible evidence is conclusive and binding upon this Court. Fairfax Hosp. v. DeLaFleur, 221 Va. 406, 410, 270 S.E.2d 720, 722 (1980). "A question raised by conflicting medical opinion is a question of fact." Commonwealth v. Powell, 2 Va.App. 712, 714, 347 S.E.2d 532, 533 (1986). "The fact that there is contrary evidence in the record is of no consequence if there is credible evidence to support the commission's finding." Wagner Enters., Inc. v. Brooks, 12 Va.App. 890, 894, 407 S.E.2d 32, 35 (1991).
While Dr. DuPuy opined on several occasions that claimant was capable of returning to his pre-injury employment, the commission discounted his opinion, noting that it was not apparent that Dr. DuPuy knew of the actual duties of a hustler driver. The commission, instead, placed greater weight on the opinion of claimant's treating physician, Dr. Morales, who, in reaching his conclusion that claimant could not return to his pre-injury employment, had visited claimant's work site and handled a hustler vehicle. Dr. Curtis Spear, also an orthopedic surgeon, who examined claimant at the request of claimant's union, concurred in Dr. Morales's opinion. In addition, claimant made several attempts to return to his former job but was unable to continue because of pain in his hands and arm. See Sky Chefs, Inc. v. Rogers, 222 Va. 800, 284 S.E.2d 605 (1981) (unsuccessful attempts to return to pre-injury employment may be considered in determining *577 the extent of a claimant's disability). The opinions of Drs. Morales and Spear and claimant's unsuccessful efforts at returning to work provide credible evidence to support the commission's finding that claimant's occupational injury kept him from resuming his pre-injury work.
In order to receive continued benefits, a disabled employee must prove that he made reasonable efforts to market his residual wage earning capacity. National Linen Serv. v. McGuinn, 8 Va.App. 267, 269, 380 S.E.2d 31, 34 (1989). "In determining whether a claimant has made a reasonable effort to market his remaining work capacity, we view the evidence in the light most favorable to ... the prevailing party before the commission." Id. at 270, 380 S.E.2d at 33.
In reviewing the commission's determination concerning claimant's efforts to market his work capacity, we note, as did the commission, that claimant was cooperative with Mr. Hulen, the rehabilitative counselor supplied by employer. However, Mr. Hulen could not secure employment for claimant. Also, Dr. Morales found claimant motivated to return to work. Though claimant's list of employers from whom he sought employment is not an extensive record for marketing efforts generally, the commission observed that claimant can read and write at only a second or third grade level. Given this record, credible evidence supports the commission's finding that claimant's marketing efforts were reasonable.
II. Statutes of Limitations
Employer argues that the statute of limitations under former Code § 65.1-56, now Code § 65.2-501, bars claimant's claim. Code § 65.2-501, in pertinent part, reads as follows:
After compensation has been paid as provided in § 65.2-503 [compensation for permanent loss], the employee may, within one year from the date compensation was last due under this section, file an application for incapacity to work....
(Emphasis added). Employer, noting that the commission affirmed the deputy commissioner's April 1, 1994 award of seventy weeks of permanent partial disability benefits, running from July 28, 1988 to November 29, 1989, reasons that November 29, 1990, one year from the last date compensation was allowed, was the last day on which claimant could seek compensation due to an incapacity to work. The statute of limitations in Code § 65.2-501, however, does not begin to run until compensation for permanent loss was "last due" under Code § 65.2-503. Because compensation for claimant's permanent loss did not become due under that code section until his award was entered by the deputy commissioner on April 1, 1994, claimant's claim was not time barred. The fact that under the LHWCA compensation was last due on November 29, 1989 is of no import; only an award made under Code § 65.2-503 can trigger Code § 65.2-501.
Employer also raises the statute of limitations of former Code § 65.1-99, now Code § 65.2-708. Code § 65.2-708(A) reads, in pertinent part, as follows:
A. Upon its own motion or upon the application of any party in interest, on the ground of a change in condition, the Commission may review any award and on such review may make an award ending, diminishing or increasing the compensation previously awarded .... No such review shall be made after twenty-four months from the last day for which compensation was paid, pursuant to an award under this title ....
(Emphasis added). This code section is inapplicable. Claimant's March 25, 1993 application by letter of counsel did not allege a change in condition but was an initial request for temporary total disability benefits. Under Code § 65.2-708, the commission is empowered to "end[], diminish[] or increas[e] the compensation previously awarded." (Emphasis added). Prior to April 1, 1994, no award had been entered by the commission on claimant's behalf. The award provided under the LHWCA is of no benefit to employer; the two-year limitation on review provided for in Code § 65.2-708 applies only to awards made "under this title," with "this title" referring to Title 65.2 the Virginia Workers' Compensation Act (Virginia Act).
*578 III. Credits for Benefits Paid Under the Longshore and Harbor Workers' Compensation Act
A review of the Virginia Act clearly discloses the General Assembly's intent that an injured employee not be awarded a double recovery for a compensable injury; equally evident in the Virginia Act is the General Assembly's intent that an employer not be required to pay twice for an employee's injury. The question presented here is whether under the facts of this case the award made by the commission requires employer to pay twice for claimant's compensable injury. We believe that it does.
Depending upon the circumstances, employees who are injured while working as longshoremen may elect whether to first seek workers' compensation benefits under the LHWCA or the Virginia Act. Both the LHWCA and the Virginia Act provide compensation for permanent injuries by ordering weekly payments for a stated number of weeks, depending upon the extent of the permanent injury. We were advised at oral argument that this claimant elected to pursue his claim for benefits under the LHWCA because that act provides larger weekly payments for wages lost due to injury, albeit for a lesser number of weeks. Thus, a longshoreman has a choice between higher payments for a lesser number of weeks under the LHWCA or lower payments for a greater number of weeks under the Virginia Act.
Employer asserts that pursuant to the provisions of the LHWCA, claimant was paid a total of $128,578 which includes weekly wage-loss payments and payments for a 35% permanent partial disability.
When claimant could no longer recover compensation payments under the LHWCA, he requested a hearing pursuant to the provisions of the Virginia Act. At the hearing before the deputy commissioner, employer contended that it was entitled to a dollar-for-dollar set off for amounts paid under the LHWCA against any award made by the commission pursuant to the provisions of the Virginia Act. The commission held that "the employer is entitled to set off the number of weeks that benefits were paid under LHWCA rather than the total amount ... of compensation paid under LHWCA."[2] Any weekly amounts employer paid under the LHWCA which exceeded what was due under the Virginia Act were not credited against employer's liability under the Virginia Act.
When enacting the Virginia Act, the General Assembly anticipated that compensation benefits might be paid to injured employees other than those ordered by an award. Among the provisions of the act addressing payments made other than by the terms of the Virginia Act is Code § 65.2-520, entitled "Voluntary payments by employer," which provides:
Any payments made by the employer to the injured employee during the period of his disability, or to his dependents, which by the terms of this title were not due and payable when made, may, subject to the approval of the Commission, be deducted from the amount to be paid as compensation provided that, in the case of disability, such deductions shall be made by shortening the period during which compensation must be paid and not by reducing the amount of the weekly payment.
(Emphasis added). Subject to the approval of the commission, an employer is entitled to a credit for any "voluntary payment" it may have made to the employee. As defined by the statute, a payment is "voluntary" if it was not "due and payable" by "the terms of this title" when made. Thus, the disability payments employer paid claimant under the LHWCA were "voluntary" because when paid they were not "due and payable" under "the terms of" the Virginia Act. Therefore, the amounts paid under the LHWCA should have been deducted from employer's liability as determined by the commission. The statute makes no exception to its command, and its language directing that a credit be provided for "any" voluntary payments indicates an *579 intent to provide a credit for all payments that fall within its classification of "voluntary."
Both employer and the deputy commissioner cite Tiller v. Long Homes, Inc., 228 Va. 343, 323 S.E.2d 71 (1984), as authority for their respective positions. In Tiller, the Supreme Court affirmed the commission's decision allowing the employer a credit against the award. The facts in Tiller are not the same as in the matter before us. The employer's overpayment in Tiller arose from its own mistake; employer's overpayment in this case resulted from payments made under the mandate of federal law. In both cases, however, the overpayments were "voluntary" as defined in the Virginia Act. A case more closely analogous to the one before us is Evans v. AT & T Technologies, Inc., 332 N.C. 78, 418 S.E.2d 503 (1992). In Evans, the North Carolina Supreme Court held that an employer is entitled to a full dollar-for-dollar credit toward its workers' compensation liability for amounts paid prior to an award pursuant to the employer's disability plan.
We hold that the commission erred in concluding that employer was not entitled to credit for the amount employer paid under the LHWCA that exceeded its obligation under the Virginia Act.
Except as to the issue of credit, the decision of the commission is affirmed. On the issue of credit for payments made by employer under the LHWCA, the commission is reversed and the case remanded. Upon remand, the commission shall determine the amount paid by employer as compensation under the LHWCA, which amount shall be set off against employer's liability under the Virginia Act and credit shall be given to employer for the excess amount paid against any future liability it may have to claimant for the injury received.
Affirmed in part, reversed in part, and remanded.
NOTES
[1] No hearing was held on this claim until February 10, 1994.
[2] The deputy commissioner found that the total compensation claimant was entitled to under the Virginia Act was $112,516.54. Employer asserted before the commission that since it had paid claimant more than that sum, any award to be made by the commission had been satisfied, and it was due a credit of the overage paid.
| {
"pile_set_name": "FreeLaw"
} |
J-S50034-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
HENRY B. RICHTER, :
:
Appellant. : No. 276 WDA 2018
Appeal from the PCRA Order, December 21, 2017,
in the Court of Common Pleas of Somerset County,
Criminal Division at No(s): CP-56-CR-0000476-2013.
BEFORE: BOWES, J., OTT, J., and KUNSELMAN, J.
MEMORANDUM BY KUNSELMAN, J.: FILED NOVEMBER 26, 2018
Henry Richter appeals from the order denying his first petition for relief
pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541 –
9546 following his convictions of Aggravated Indecent Assault and
Endangering the Welfare of Children. We affirm the order denying Richter’s
post-conviction relief on the basis of the PCRA court’s opinion.
The pertinent facts of this case as summarized by the PCRA court are as
follows:
On October 17, 2013, the District Attorney filed a
Criminal Information charging [Richter] with Statutory
Sexual Assault, Aggravated Indecent Assault (complainant
less than sixteen years old), and Endangering the Welfare
of Children. The charges arose out of reports that [Richter]
had sexual relations with his fourteen year old niece, N.H.,
an instance of which was witnessed by one of [Richter's]
sons on Father's Day, June 16, 2013. Trial Tr. 1.40-43, Jan.
19, 2016.
J-S50034-18
On the date of the incident, [Richter's] minor son B.R.
descended the stairs in the family residence and witnessed
the victim, N.H., bent over with her pants down, and
[Richter] standing directly behind her with his pants down,
from which B.R. immediately concluded that the two were
having sex. Id. at 1.113-17. N.H. was fourteen years of
age at the time. Id. at 1.46, 1.85. B.R. ran upstairs and
notified his brother through a series of messages on social
media, and later the brothers notified police. Id. at 1.116,
1.79-80. An investigation was conducted which ultimately
led to [Richter's] arrest. Id. at 1.40-58. [Richter] was
initially represented by Attorney Brian Salisbury in the
preliminary stages of the case, and on May 5, 2014, a
request for a continuance was submitted to allow for
additional plea negotiations and to allow [Richter] to find a
new attorney. See Req. for Continuance, May 5, 2014. This
Court granted that request, as well as additional
continuance requests from both [Richter] and the
Commonwealth, ultimately postponing the trial until
January 19 and 20, 2016.
Trooper William Ted Goins was the criminal investigator
for the Somerset County State Police who investigated the
incident, and he testified on behalf of the Commonwealth at
trial. Trial Tr. 1.38-59. Trooper Goins testified that on June
19, 2013, he received a report from a Children and Youth
Services (hereafter "CYS") caseworker of potential sexual
abuse involving a child, and subsequently travelled to
Quecreek to interview [Richter]'s sons, B.R. and A.R. Id. at
1.40-43. During the interview of B.R., Trooper Goins was
informed that on June 16, 2013, B.R. witnessed [Richter],
his father, having sexual intercourse with N.H., [Richter's]
fourteen year old niece. Id. at 1.43. As a result of the
information obtained from B.R. and A.R., Trooper Goins
determined he had probable cause to "certainly detain and
probably arrest" [Richter] for crimes related to his conduct
on June 16, 2013. Id. at 1.44. At that time, Trooper Goins
decided to take [Richter] and N.H. separately to the police
barracks for interviews. Id.
Trooper Goins testified that he first interviewed N.H with
a representative from CYS present, and stated that at first,
N.H. denied that she ever engaged in sexual intercourse
with [Richter]. Id. at 1.48-50. However, eventually N.H.
admitted to Trooper Goins that she had an ongoing
-2-
J-S50034-18
consensual sexual relationship with [Richter], and
"described Henry as sweet and that she was in love with
him." Id. at 1.50. [Richter] denied the allegations and
stated to Trooper Goins that "[B.R.] did not see what he
thought he saw," and requested an attorney. Id. at 1.50-
51.
N.H. and B.R. both testified to the events on June 16,
2013 at trial. Id. at 1.84, 1.108. N.H. testified to the
incident reported by B.R. that occurred on Father's Day
2013, as well as testified to an ongoing consensual sexual
relationship with [Richter]. Id. at 1.90-92. When asked why
she didn't report the relationship, N.H. stated that she
"didn't feel that anybody needed to know," and when asked
about her feelings regarding [Richter], N.H. stated "I felt
good because somebody was actually paying attention to
me and loving me." Id. at 1.90-91.
On cross-examination, counsel for [Richter] questioned
N.H. about interviews taken by CYS, wherein N.H. was
asked whether she had been abused by [Richter] or anyone
else in the household. Id. at 1.95. In relation to those
interviews, [Richter's] trial counsel, Attorney Gary Gerson,
asked N.H., "And you repeatedly denied that you had been
abused in any manner, particularly sexually, by Henry,
correct?" to which N.H. admitted that she had denied ever
being sexually abused by [Richter]. Id. Attorney Gerson
also questioned N.H. about her prior allegations of sexual
abuse against individuals other than [Richter], to which N.H.
denied that those allegations were made in an attempt to
get attention. Id. at 1.98. N.H. admitted that she had
issues with bedwetting, and at the time of the incident she
was a chronic bedwetter. Id. at 1.93.
N.H. also testified that while living in the residence, she
often asked [Richter] for permission to do things, [Richter]
set the rules of the house, and she was required to abide by
and listen to [Richter] as well as her aunt, Bobbi-Jo
([Richter]'s fiancé), who also lived in the residence. Id. at
1.87. [Richter] admitted that he provided food, shelter and
transportation for N.H., and that CYS had [Richter] listed as
a caretaker for N.H., however [Richter] maintained that he
was not a caretaker or provider for N.H. during the time
period she lived in the residence. Id. at 2.30-32.
-3-
J-S50034-18
B.R., [Richter]'s son, described what he witnessed on
June 16, 2013 at trial, stating, "I saw [N.H.] bent over with
her pants down and my father inside of her, and whenever
they saw me he pushed her away from him and they pulled
up their pants . . . ." Id. at L113. B.R. further testified that
he ran back upstairs after seeing his father and N.H. having
sex, and then N.H. came upstairs and brought B.R. a
handwritten note requesting that B.R. join her downstairs
for breakfast. Id. at 1.117. When B.R. went downstairs,
[Richter] was doing dishes and said, "I know what you saw
isn't right and you shouldn't have saw it." Id. at 1.118.
On cross-examination, Attorney Gerson thoroughly
questioned B.R. as to the amount of time that elapsed
between him seeing [Richter] and N.H. in the kitchen and
B.R. running back upstairs, as well as what exactly he saw
and did not see. Id. at 1.120-26. Attorney Gerson also
questioned B.R. at length regarding the conversation he had
with his brother, A.R., that morning via Facebook
messenger. Id. at 1.115-16, 1.122-29.
In addition to [Richter's] sons, the victim, and Trooper
Goins, the Commonwealth provided forensic evidence and
two scientific experts, Jennifer Badger, a serologist at the
Pennsylvania State Police Crime Lab, and Dr. Alex Glessner,
a forensic DNA scientist with the Pennsylvania State Police.
Id. at 1.134-35, 1.148-49. Jennifer Badger testified to
testing a blanket that was retrieved from [Richter's]
residence, indicating that serological testing determined
that there was semen on the blanket, and explained the
procedure that was followed in collecting samples from the
blanket and sending the samples for DNA testing. Id. at
1.139-45. Dr. Glessner explained the testing he performed
on the samples, indicating that the DNA on the blanket
matched that of both [Richter] and N.H. Id. at 1.151-62.
Before [Richter] testified, the [c]ourt explained
[Richter's] right against self-incrimination, and questioned
[Richter] on his understanding of his right not to testify,
whether [Richter] had been adequately informed of the
potential risks associated with testifying by Attorney
Gerson, and generally whether [Richter] was making an
informed, voluntary decision to waive his Fifth Amendment
rights and testify on his own behalf. Id. at 2.1-2. [Richter]
-4-
J-S50034-18
indicated that he was adequately informed of his rights and
intended to testify. Id.
In his testimony, [Richter] adamantly denied that he ever
had sexual intercourse with N.H. Id. at 2.18-19, 2.20.
[Richter] offered an alternative series of events, stating that
his pants were never down, and N.H. pulled her pants down
as a sort of practical joke, which was caught by B.R. at a
moment where it may have looked like something was going
on, even though [Richter] did not have his pants down and
was not having intercourse with N.H. Id. at 2.16-20.
[Richter] asserted that he told B.R. "What you saw isn't
what you think you saw," and denied ever apologizing. Id.
at 2.20. [Richter] denied all of the allegations by the District
Attorney that he ever had sexual intercourse with N.H. Id.
at 2.21-26. [Richter] also testified that he saw B.R. and
N.H. in B.R.'s bedroom with B.R.'s pants down two days
before Father's Day, and testified that his semen would only
be found on the blanket as a result of sexual activities he
had with his fiancé Bobbi-Jo, not N.H. Id. at 2.13-14, 2.30-
31, 2.33-34. Further, [Richter] offered the explanation of
N.H.'s DNA being present on the blanket as a result of her
chronic bedwetting. Id.
On January 20, 2016, a jury found [Richter] guilty of
Aggravated Indecent Assault and Endangering the Welfare
of Children, but returned a not guilty verdict on the
Statutory Sexual Assault charge. Trial Tr. 2.92-93. On April
18, 2016, [Richter] was sentenced by this [c]ourt.
PCRA Court Opinion, 12/22/17, 2-7.
The trial court sentenced Richter thirty-six months to one-hundred
twenty months incarceration and a $500 fine for aggravated indecent assault,
and was additionally sentenced to nine to eighteen months incarceration and
a $100 fine for endangering the welfare of children. Richter filed a direct
appeal from the judgment of sentence, arguing insufficient evidence existed
to sustain either of the convictions. This Court affirmed the trial court on
-5-
J-S50034-18
December 6, 2016. Commonwealth v. Richter, No. 755 WDA 2016 (Pa.
Super. Ct. Dec. 6, 2016) (unpublished).
On April 17, 2017, Richter filed a Petition for Post-Conviction Relief,
alleging ineffective assistance of counsel for Richter’s three previous lawyers.
The PCRA court held an evidentiary hearing on September 26, 2017. By order
entered December 21, 2017, the PCRA dismissed Richter’s petition. This
timely appeal follows. Both Richter and the PCRA court have complied with
Pa.R.A.P. 1925.
Richter raises the following allegations of ineffective assistance of
counsel:
1. Counsel Salisbury and Counsel Gerson were ineffective
for failing to assert a conflict of interest objection against
Assistant District Attorney Carolann Young on the basis
that Young had previously represented [Richter] during
child custody proceedings and further when Young
participated in the instant case as an Assistant District
Attorney.
2. Counsel Gerson was ineffective for failing to impeach the
victim with the victim's own prior inconsistent statements
and prior accusations that were offered in State Trooper
Goins testimony.
3. Counsel Gerson was ineffective for failing to call
[Richter’s] fiancée, Bobbi Jo Harbaugh as a witness, as
she was present in the house the morning of the alleged
criminal act.
4. Counsel Calabrese failed to "perfect" [the direct appeal]
from [Richter’s] judgment of sentence because he failed
to specify in the Pa.R.A.P. 1925(b) statement which
elements of the offenses lacked sufficient evidence.
See Richter’s Brief at 4.
-6-
J-S50034-18
Our scope and standard of review in a PCRA case is well settled:
In PCRA appeals, our scope of review is limited to the findings
of the PCRA court and the evidence on the record of the PCRA
court's hearing, viewed in the light most favorable to the
prevailing party. Because most PCRA appeals involve
questions of fact and law, we employ a mixed standard of
review. We defer to the PCRA court's factual findings and
credibility determinations supported by the record. In
contrast, we review the PCRA court's legal conclusions de
novo.
Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 779 (Pa. Super. 2015)
(internal citations and quotations omitted).
To obtain relief under the PCRA premised on a claim that counsel was
ineffective, a petitioner must establish, by a preponderance of the evidence,
that counsel's ineffectiveness so undermined the truth-determining process
that no reliable adjudication of guilt or innocence could have taken place.
Commonwealth v. Johnson, 966 A.2d 523, 532 (Pa. 2009). “Generally,
counsel’s performance is presumed to be constitutionally adequate. Id. To
succeed on a PCRA claim of ineffective assistance, a petitioner must
demonstrate that: (1) the underlying claim is of arguable merit; (2) counsel
had no reasonable strategic basis for his or her action or inaction; and (3)
petitioner was prejudiced by counsel's act or omission. Id. at 533.
Moreover, trial counsel's strategic decisions cannot be the subject of a
finding of ineffectiveness if the decision to follow a particular course of action
was reasonably based and was not the result of sloth or ignorance of available
alternatives. Commonwealth v. Collins, 545 A.2d 882, 886 (Pa. 1988)
(cited with approval by Commonwealth v. Hall, 701 A.2d 190, 204 (Pa.
-7-
J-S50034-18
1997)). Counsel's approach must be "so unreasonable that no competent
lawyer would have chosen it." Commonwealth v. Ervin, 766 A.2d 859, 862-
63 (Pa. Super. 2000) (quoting Commonwealth v. Miller, 431 A.2d 233, 234
(Pa. 1981). Our Supreme Court has defined “reasonableness” as follows:
Our inquiry ceases and counsel’s assistance is deemed
constitutionally effective once we are able to conclude that
the particular course chosen by counsel had some reasonable
basis designed to effectuate his client’s interests. The test is
not whether other alternatives were more reasonable,
employing a hindsight evaluation of the record. Although
weigh the alternatives we must, the balance tips in favor of
a finding of effective assistance as soon as it is determined
that trial counsel’s decision had any reasonable basis.
Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987) (quotation
omitted). See also Commonwealth v. Clark, 626 A.2d 154, 157 (Pa. 1993)
(explaining that a defendant asserting ineffectiveness based upon trial
strategy must demonstrate that the “alternatives not chosen offered a
potential for success substantially greater than the tactics utilized).” A
defendant is not entitled to appellate relief simply because a chosen strategy
was unsuccessful. Commonwealth v. Buksa, 655 A.2d 576, 582 (Pa. Super.
1995).
Finally, a finding of "prejudice" requires the petitioner to show "that
there is a reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different." Id. In assessing a
claim of ineffectiveness, when it is clear that appellant has failed to meet the
prejudice prong, the court may dispose of the claim on that basis alone,
-8-
J-S50034-18
without a determination of whether the first two prongs have been met.
Commonwealth v. Travaglia, 661 A.2d 352, 357 (Pa. 1995).
After careful review, we conclude that the Honorable Scott P. Bittner
prepared a thorough and well-reasoned opinion that correctly disposed of each
of Richter’s ineffectiveness claims. Judge Bittner discussed all three prongs
of the ineffectiveness test to each of Richter’s allegations. As to Richter’s first
claim, the PCRA court found no merit to the conflict of interest issue. The
PCRA court combined Richter’s next two claims and concluded that trial
counsel’s chosen strategy was reasonable, and the alternatives suggested by
Richter did not offer “a potential for success substantially greater than the
tactics utilized” by trial counsel. Clark, supra. As to Richter’s final claim,
Judge Bittner also concluded that he did not show how he was prejudiced by
appellate counsel’s alleged ineffectiveness since both the trial court and this
Court evaluated Richter’s direct appeal on its merits, despite counsel’s failure
to specifically address which elements of the two crimes were not sufficiently
established.
We agree with the PCRA court’s analysis and conclusions regarding all
four issues Richter raised in his appeal. Therefore, we adopt Judge Bittner’s
December 22, 2017 opinion as our own in disposing of the present appeal.
The parties are directed to attach a copy of the trial court opinion to this
memorandum in the event of further proceedings.
Order affirmed.
-9-
J-S50034-18
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/26/2018
- 10 -
Circulated 10/29/2018 03:12 PM
..
II COMMONWEALTH . 20 l 7 DEC ?2
c:
) ,iiMTiNT:'TIR'P
•. I 1-'ff �0U ·
COURT OF COMMON PLEAS
) OF SO:tvIBRSET COUNTY,
Fil.ED FOF; Rc.�CORD � PENNSYLVANIA
v.
)
) NO. 476CRIMINAL 2013
HENRY B. RICHTER )
)
)
Petitioner/Defendant. ) POST-CONVICTION RELIEF
MEMORANDUM
This matter comes before us on Petitioner/Defendant's Petition for Post-Conviction
Collateral Relief, filed pursuant to the Post Conviction Relief Act, 42 Pa. Cons. Stat. §9541, et
seq. (hereafter, the "PCRA"), wherein Defendant alleges ineffective assistance of counsel.
Defendant's PCRA Petition, for the reasons set forth herein, is dismissed.
PROCEDURAL HISTORY
On January 19 and 20, 2016, Henry B. Richter, (hereafter "Defendant") was tried
before this Court, sitting with a jury, charged with Statutory Sexual Assault, a first-degree
felony, Aggravated Indecent Assault', a second-degree felony, and Endangering the Welfare
of Children', a first-degree misdemeanor. On January 20, 2016, the jury found Defendant
guilty of Aggravated Indecent Assault and Endangering the Welfare of Children, but returned
a not guilty verdict on the Statutory Sexual Assault charge. Trial Tr. 2.92-93. On April 18,
2016, by Order of this Court, Defendant was sentenced to thirty-six to one-hundred twenty
months incarceration and a $500 fine for Aggravated Indecent Assault, and was additionally
sentenced to nine to eighteen months incarceration and a $100 fine for Endangering the
1
18 Pa. Cons. Stat. § 3122.1 (b ).
2
18 Pa. Cons. Stat. § 3125(a)(8) (with complainant less than 16 years of age).
3
18 Pa. Cons. Stat.§ 4304(a)(l).
,.
Welfare of Children. Sentencing Tr. 17-18 (Apr. 18, 2016).
Defendant filed a timely Notice of Appeal on May 17, 2016, and subsequently filed a
Concise Statement of Matters Complained of on Appeal, pursuant to Pa. R.A.P. 1925(b), on
June 8 , 2016. On June 21, 2016, this Court filed its Opinion Pursuant to Pa. R.A.P. 1925(a). ·
The Pennsylvania Superior Court subsequently affirmed the Defendant's conviction on the
basis of the trial court's opinion and further affirmed the judgment of sentence on December
06, 2016. On May 15, 2017, Defendant filed a Petition pursuant to the PCRA accompanied·
by a Brief in Support of Defendant's PCRA Petition, requesting an evidentiary hearing
pursuant to the Petition, the right to a new trial, and the reinstatement of Defendant's appeal
rights. This Court granted the request for an evidentiary hearing on Defendant's PCRA
Petition, which was held on September 26, 2017. At the conclusion of the evidentiary
hearing, Defendant's PCRA Petition was taken under advisement.
FACTUAL IDSTORY
On October 17, 2013, the District Attorney filed a Criminal Information charging
Defendant with Statutory Sexual Assault, Aggravated Indecent Assault (complainant less
than sixteen years old), and Endangering the Welfare of Children. The charges arose out of
reports that Defendant had sexual relations with his fourteen year old niece, N.H., an instance
of which was witnessed by one of Defendant's sons on Father's Day, June 16, 2013. Trial Tr.
1.40----43, Jan. 19, 2016.
On the date of the incident, Defendant's minor son B.R. descended the stairs in the
family residence4 and witnessed the victim, N.H., bent over with her pants down, and
Defendant standing directly behind her with his pants down, from which B.R. immediately
-
4
Defendant, his two sons B.R. and A.R., Bobbi-Jo Richter (N.H.'s aunt and Defendant's fiance), Bobbi-Jo and
Defendant's infant M.R., and N.H. all lived in. Defendant's residence when the incident occurred. Trial Tr.
2.31-32.
2
...
concluded that the two were having sex. Id. at .1.113-1 7. N.H. was fourteen years of age at
the time. Id. at 1.46, 1.85. B.R. ran upstairs and notified his brother through a series of
messages on social media, and later the brothers notified police. Id. at 1.116, 1. 79-80. An
investigation was conducted which ultimately led to Defendant's arrest. Id. at 1.40-58.
Defendant was initially represented by Attorney Brian Salisbury in the preliminary stages of
the case, and on May 5, 2014, a request for· a continuance was submitted to allow for
additional plea negotiations and to allow Defendant to find a new attorney. See Req. for
Continuance, May 5, 2014. This Court granted that request, as well as additional continuance
requests from both Defendant and the Commonwealth, ultimately postponing the trial until
January 19 and 20, 2016.
Trooper William Ted Goins was the criminal investigator for the Somerset County
State Police who investigated the incident, and he testified on behalf of the Commonwealth
. at trial. Trial Tr. 1.38-59. Trooper Goins testified that on June 19, 2013, he received a report
from a Children and Youth Services (hereafter "CYS") caseworker of potential sexual abuse
involving a child, and subsequently travelled to Quecreek to interview Defendant's sons,
B.R. and A.R. Id. at 1.40-43. During the interview ofB.R., Trooper Goins was informed that .
on June 16, 2013, B.R. witnessed Defendant, his father, having sexual intercourse with N.H.,
Defendant's fourteen year old niece. Id. at 1.43. As a result of the information obtained from
B.R. and A.R., Trooper Goins determined he had probable cause to "certainly detain and
probably arrest'' Defendant for crimes related to his conduct on June 16, 2013. Id. at 1.44. At
that time, Trooper Goins decided to take Defendant and N.H. separately to the police
barracks for interviews. Id.
Trooper Goins testified that he first interviewed N.H with a representative from CYS
3
I'
present, and stated that at first, N.H. denied that she ever engaged in sexual intercourse with
Defendant. Id. at 1.48-50. However, eventually N.H. admitted to Trooper Goins that she had
an ongoing consensual sexual relationship with Defendant, and "described Henry as sweet
and that she was in love with him." Id. at 1.50. Defendant denied the allegations and stated to
Trooper Goins that "[B.R.] did not see what he thought he saw," and requested an attorney.
Id. at 1.50-51.
N.H. and B.R. both testified to the events on June 16, 2013 at trial. Id. at 1.84, 1.108 .
N.H. testified to the incident reported by B.R. that occurred on Father's Day 2013, as well as
testified to an ongoing consensual sexual relationship with Defendant. Id. at 1.90-92. When
asked why she didn't report the relationship, N.H. stated that she "didn't feel that anybody
needed to know," and when asked about her feelings regarding Defendant, N.H. stated "I felt
good because somebody was actually paying attention to me and loving me." Id. at 1.90-91.
On cross-examination, counsel for Defendant questioned N.H. about interviews taken
by CYS, wherein N.H. was asked whether she had been abused by Defendant or anyone else
in the household. Id. at 1.95. In relation to those interviews, Defendant's trial counsel,
Attorney Gary Gerson, asked N.H., "And you repeatedly denied that you had been abused in
any manner, particularly sexually, by Henry, correct?" to which N.H. admitted that she had
denied ever being sexually abused by Defendant. Id. Attorney Gerson also questioned N.H.
about her prior allegations of sexual abuse against individuals other than Defendant, to which
N.H. denied that those allegations were made in an attempt to get attention. Id. at 1.98. N.H.
admitted that she had issues with bedwetting, and at the time of the incident she was a
chronic bedwetter. Id. at 1.93.
N.H. also testified that while living in the residence, she often asked Defendant for
4
I'
permission to do things, Defendant set the rules of the house, and she was required to abide
by and listen to Defendant as well as her aunt, Bobbi-Jo (Defendant's fiance), who also lived
in the residence. Id. at 1.87. Defendant admitted that he provided food, shelter and
transportation for N.H., and that CYS had Defendant listed as a caretaker for N.H., however
Defendant maintained that he was not a caretaker or provider for N.H. during the time period
she lived in the residence. Id. at 2.30-32.
B.R., Defendant's son, described what he witnessed on June 16, 2013 at trial, stating,
"I saw [N.H.] bent over with her pants down and my father inside of her, and whenever they
saw me he pushed her away from him and they pulled up their pants .... " Id. at 1 J 13. B.R.
further testified that he ran back upstairs after seeing his father and N.H. having sex, and then
N.H. came upstairs and brought B.R. a handwritten note requesting that B.R. join her
downstairs for breakfast. Id. at 1.117. When B.R. went downstairs, Defendant was doing
. dishes and said, "I know what you saw isn't right and you ·shouldn't have saw it." Id at
1.118.
On cross-examination, Attorney Gerson thoroughly questioned B.R. as to the amount
of time that elapsed between him seeing Defendant and N.H. in the kitchen and B.R. running
back upstairs, as well as what exactly he saw and did not see. Id. at 1.120-26. Attorney
Gerson also questioned B.R. at length regarding the conversation he had with his brother,·
A.R., that morning via Facebook messenger. Id. at 1.115-16, 1.122-29.
In addition to Defendant's sons, the victim, and Trooper Goins, the Commonwealth
provided forensic evidence and two scientific experts, Jennifer Badger, a serologist at the
Pennsylvania State Police Crime Lab, and Dr. Alex Glessner, a forensic DNA scientist with
the Pennsylvania State Police. Id. at 1.134-35, 1.148-49. Jennifer Badger testified to testing
5
1·
a blanket that was retrieved from Defendant's residence, indicating that serological testing
determined that there was semen on the blanket, and . explained the procedure that was
followed in collecting samples from the blanket and sending the samples for DNA testing. Id.
at 1.139-45. Dr. Glessner explained the testing he performed on the samples, indicating that
the DNA on the blanket matched that of both Defendant and N.H. Id. at 1.151-62.
Before Defendant testified, the' 'Court explained Defendant's right against self•
incrimination, and questioned Defendant on his understanding of his right not to testify,
whether Defendant had been adequately informed of the potential risks associated with
testifying by Attorney Gerson, and generally whether Defendant was making an informed,
voluntary decision to waive his Fifth Amendment rights and testify on his own behalf. Id. at
2.1-2. Defendant indicated that he was adequately informed of his rights and intended to
testify. Id.
In his testimony, Defendant adamantly denied that he ever had sexual intercourse
with N.H. Id. at 2.18-19, 2.20. Defendant offered an alternative series of events, stating that
his pants were never down, and N.H. pulled her pants down as a sort of practical joke, which
was caught by B.R. at a moment where it may have looked like something was going on,
even though Defendant did not have his pants down and was not having intercourse with
N.H. Id at 2.16-20. Defendant asserted that he told B.R. "What you saw isn't what you think
you saw," and denied ever apologizing. Id. at 2.20. Defendant denied all of the allegations by
the District Attorney that he ever had sexual intercourse with N.H. Id at 2.21-26. Defendant
also testified that he saw B.R. and N.H. in B.R.'s bedroom with B.R.'s pants down two days
before Father's Day, and testified that his semen would only be found on the blanket as a
result of sexual activities he. had with his fiance Bobbi-Jo, not N.H. Id. at 2.13-14, 2.30-31,
6
I'
2.33-34. Further, Defendant offered the explanation of N.H.'s DNA being present on the
blanket as a result of her chronic bedwetting. Id.
On January 20, 2016, a jury found Defendant guilty of Aggravated Indecent Assault
and Endangering the Welfare of Children, but returned a not guilty verdict on the Statutory
Sexual Assault charge. Trial Tr. 2.92-93. On April 18, 2016, Defendant was sentenced by
this Court. Subsequent to sentencing, Defendant selected new counsel, Attorney Tancredi
Calabrese, who filed a timely Notice of Appeal on May 17, 2016. On June 8, 2016, Attorney
Calabrese filed a Concise Statement of Matters Complained of on Appeal, pursuant to Pa.
R.A.P. 1925(b), as requested by the Order of this Court on May 19, 2017. The sole issue
raised in the Defendant's Concise Statement of Matters Complained of on Appeal was
whether the evidence at trial was sufficient to establish that Defendant committed
Aggravated Indecent Assault and Endangering the Welfare of Children.
On June 21, 2016, this Court issued an Opinion Pursuant to Pennsylvania Rule of
Appellate Procedure 1925(a), wherein we reasoned that Defendant was properly convicted of
Aggravated Indecent Assault and Endangering the Welfare of Children. See Op. Pursuant to
Pa. R.A.P. 1925(a), June 21, 2016. It was also acknowledged that Defendant's Concise
Statement of Matters Complained of on Appeal did not allege with specificity what elements
of either offense were not sufficiently established by the evidence offered at trial. Id.
Pennsylvania Rule of Appellate Procedure 1925(b)(4)(ii) provides, "The Statement shall
concisely identify each ruling or error that the appellant intends to challenge with sufficient
detail to identify all pertinent issues for the judge . . . ." Further, based on Rule
1925(b)(4)(vii), "Issues not included in the Statement and/or not raised in accordance with
the provisions of this paragraph (b)(4) are waived."
7
Although Defendant's Concise Statement of Matters Complained of on Appeal was
not specific as to which elements weren't sufficiently established, this Court nevertheless
analyzed and reviewed the evidence proffered at trial with respect to each and every element
of Aggravated Indecent Assault and Endangering the Welfare of Children, and determined
that there was sufficient evidence presented at trial to support Defendant's conviction on
each charge. Op. Pursuant to Pa. R.A.P. 1925.(a), June 21, 2016. On December 6, 2016, the
Pennsylvania Superior Court affirmed the decision of this Court, and likewise concluded that
Defendant's appeal was without merit. Commonwealth 'v. Richter, No. 755 WDA 2016 (Pa.
Super. Ct. Dec. 2, 2016).
Following the denial of Defendant's direct appeal, a Praecipe for Entry of
Appearance was filed by Attorney Joseph Luvara on April 17, 2017. Attorney Luvara
submitted a Petition for Post-Conviction Relief and Brief in Support of Defendant's PCRA
_Petition on May 15, 2017. Defendant's PCRA Petition alleges ineffective assistance of
counsel, with respect to each of Defendant's former counsel, namely Attorney Salisbury,
Attorney Gerson and Attorney Calabrese. An evidentiary hearing was held on September 26,
2017, and Defendant's ineffective assistance of counsel claims are discussed infra.
ANALYSIS
When ineffective assistance of counsel is alleged, a petitioner must prove that his
conviction or sentence resulted from "[i]neffective assistance of counsel which, in the
circumstances of the particular case, so undermined the truth-determining process that no
reliable adjudication of guilt or innocence could have taken place." 42 Pa. Cons. Stat. §
9543(2)(ii). A claim of ineffective assistance of counsel requires the petitioner to satisfy the
performance and prejudice test set forth in Strickland v. Washington, 466 U.S. 668 (1984).
8
.1
Strickland is a two-part test: "First, the defendant must show that counsel's
performance was deficient," which requires demonstrating "that counsel made errors so
serious that the counsel was not functioning as the 'counsel' guaranteed the defendant by the
Sixth Amendment." Id. at 687. Second, "the defendant must show that the deficient
performance prejudiced the defense," which requires "showing that counsel's errors were so
serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Id. In
Pennsylvania, the Strickland test has three distinct elements:
The petitioner must establish that: (1) the underlying claim has
arguable merit; (2) no reasonable basis existed for counsel's
actions or failure to act; and (3) the petitioner suffered
prejudice as a result of counsel's error such that there is a
reasonable probability that the result of the proceeding would
have been different absent such error.
Commonwealth v. Weiss, 81 A.3d 767, 782 (Pa. 2013) (citing Commonwealth v. Pierce, 527
A.2d 973, 975 (Pa. 1987)). The Pennsylvania Supreme Court has stated that "both the U.S.
Supreme Court and this Court have made clear that a court is not required to analyze the
elements of an ineffectiveness claim in any particular order of priority; instead, if a claim
fails under any necessary element of the Strickland test, the court may proceed to that
element first." Id. at 783 (internal citations omitted).
Defendant claims counsel was ineffective at each stage of his prosecution and through
the appeal process, particularly: 1) Attorney Salisbury was ineffective for failing to raise a
conflict of interest objection against the District Attorney's office due to Assistant District
Attorney Carolann Young's prior representation of Defendant in a custody matter in 2005; 2)
Attorney Gerson was ineffective for: failing to raise a conflict of interest objection against
Assistant District Attorney Carolann Young, as described above; failing to impeach the
victim with prior inconsistent statements and prior accusations; and failing to call a key
9
. I
witness; and 3) Attorney Calabrese was ineffective for "failing to perfect" Defendant's
appeal in accordance with Pa. R.A.P. 1925(b).
I. Neither Attorney Salisbury, nor Attorney Gerson, Was Ineffective for Failing to Raise
a Conflict of Interest Objection Against the Office of the Somerset County District
Attorney or _Assistant District Attorney Carolann Young.
Defendant claims that Attorney Salisbury and Attorney Gerson were ineffective for
failing to raise an objection to an alleged conflict of interest of Assistant District Attorney
Carolann Young, who had previously represented the Defendant in a custody matter
involving his ex-wife in 2005. The evidence indicates that Attorney Young did not
participate in the criminal investigation, strategy or prosecution of Defendant. Defendant
alleges that the failure of counsel to object to the alleged conflict was unreasonable and·
prejudiced him at trial, and therefore warrants relief under the PCRA. We disagree.
Rule 1.9 of the Pennsylvania Rules of Professional Conduct concerns "Duties to
Former Clients," and provides that "a lawyer who has formerly represented a client in a
matter shall not thereafter represent another person in the same or a substantially related
matter in which that person's interests are materially adverse to the interests of the former
client unless the former client gives informed consent." Pa. R.P.C. 1.9. The explanatory
comments to Rule 1.9 explain that "matters are 'substantially related' for purposes of this
Rule if they involve the same transaction or legal dispute or if there otherwise is a
substantial risk that confidential factual information as would normally have been obtained
in the prior representation would materially advance the client's position in the subsequent
matter." Pa. R.P.C. 1.9, cmt. 3 (emphasis added).
The fact that the two representations involve similar or related facts is likely not
10
sufficient to warrant the finding of a substantial relationship to disqualify an attorney.
Commonwealth Ins. Co. v. Graphix Hot Line, 808 F. Supp. 1200, 1204 (E.D. Pa. 1992). The
relevant inquiry is whether information acquired by an attorney in his or her former
representation is substantially related to the subject matter of the subsequent representation.
Id If an attorney might have acquired confidential information related to the subsequent
representation, Pennsylvania Rule of Professional Conduct 1.9 prevents the attorney from
representing the second client. Richardson v. Hamilton Int'l Corp., 469 F.2d 1382, 1385 (3d
Cir. 1972). Furthermore, a former client seeking to disqualify counsel representing an
adverse party on the basis of its past relationship has the burden of proving: (1) that a past
attorney/client relationship existed which was adverse to a subsequent representation of the
i
other client; (2) that the subject matter of the relationship is substantially related; and (3) that
the allegedly conflicted attorney acquired knowledge of confidential information from or
. concerning the former client. In re Estate of Pew, 655 A.2d 521, 545-46 (Pa. Super. Ct.
1994).
In order to prevail under the PCRA, Defendant must demonstrate that the underlying
claim has arguable merit. Weiss, 81 A.3d at 782. Based on Pennsylvania Rule of Professional
Conduct 1.9, as well as Pennsylvania case law interpreting the Rule, there was no conflict
requiring the disqualification of the Somerset County District Attorney's office, and
therefore, Defendant's claim that counsel was ineffective for failing to raise a conflict of
interest objection does not have arguable merit.
While Attorney Carolann Young did in fact represent Defendant in a custody matter
in 2005 and was an Assistant District Attorney at the time of Defendant's criminal trial in
2016, Attorney Young did not participate in the criminal prosecution of Defendant. At the
11
PCRA hearing, Attorney Young testified that she was not involved in Defendant's criminal
trial, and no evidence was presented to indicate that Attorney Young had anything to do with
the District Attorney's investigation.', preparation or prosecution of Defendant's criminal
case. See PCRA Hr' g Tr. 21-22. Since Attorney Young was not involved in Defendant's
criminal prosecution, there was no conflict of interest with respect to the Somerset County
District Attorney,' s office.
Additionally, Defendant's custody proceeding and criminal case are not the same or
substantially related matters, which is another requirement for disqualification under Rule
1.9. Attorney Young represented Defendant during a custody dispute involving Defendant
and his ex-wife in 2005, whereas Defendant's criminal prosecution concerned events that
occurred from approximately September 2012 through June 16, 2013. Since all relevant
events leading to Defendant's arrest and prosecution did not occur until long after Attorney
. Young's representation in the custody proceeding concluded, Defendant could not have
disclosed any relevant facts or confidences to Attorney Young related to those future events6 .
Further, nothing related to Defendant's divorce in 2005 or the custody of his sons was at
issue, discussed, or relevant to the criminal investigation and prosecution of Defendant. The
only connection between the two matters is the involvement of Defendant and his two sons.
5
Attorney Young signed off on an Application for Search Warrant presented to the Somerset County District
Attorney's office by Trooper Goins on June 21, 2013, in accordance with Pa. R. Crim. P. 2002a. However, this
action by Attorney Young was merely an administrative task in which she represented to the Issuing Authority
that there was probable cause to issue the warrant. Attorney Young did not assist as the on-call Assistant
District Attorney on-site during the execution of the warrant, and none of the information included on the search
warrant was related, in any way, to Attorney Young's prior representation of Defendant. Attorney Young did
not provide any information, at any time, about Defendant to the Somerset District Attorney's office or to the
Pennsylvania State Police. Additionally, the District Justice made an independent determination based on the
information provided by Trooper Goins that there was sufficient probable cause to support the issuance of a
search warrant. The mere signing off on the search warrant by Attorney Young to indicate the approval of the
search warrant application by the District Attorney's office does not represent involvement in Defendant's
prosecution and is not substantially related to Attorney Young's prior representation of Defendant.
6
There is nothing in the record to suggest that Attorney Young obtained any confidential information in the
course of her prior representation of Defendant that was or could have been utilized by the Pennsylvania State
Police or the Somerset County District Attorney's office.
12
This does not establish a substantial relationship, as the two matters did not arise from the
II same facts or even related events, and the subsequent matter occurred long after the prior
representation by Attorney Young had ended.
Even if there were concerns about a potential conflict of interest, both Attorney
Young and Attorney Gerson testified that during a prior Call of the Criminal Trial List or
Scheduling Conference Attorney Young was present in the courtroom concerning an
unrelated matter, and she disclosed to Attorney Gerson and the Court that she had previously
represented Defendant in a domestic matter. PCRA Hr'g Tr. 27. Attorney Gerson testified
that he wrote Defendant a letter" and discussed Attorney Young's prior representation of
Defendant and her position as an Assistant District Attorney. Id. at 58-60. Thereafter, the
next time that Attorney Gerson and Defendant spoke, they again discussed the potential
conflict of interest issue related to Attorney Young. Id. Attorney Gerson' s recollection was
. that Defendant dismissed him when the issue with Attorney Young was discussed and
Defendant indicated that this was not an issue, and that Defendant was ready to proceed to
trial. Id. at 59-60.
Defendant's claim that counsel was ineffective for failing to raise a conflict of interest
objection does not have arguable merit. Although Attorney Young and Defendant had a prior
attorney/client relationship, and Attorney Young was an Assistant District Attorney at the
time Defendant was prosecuted, Attorney Young did not participate in the prosecution of
Defendant, and the two matters are not the same or substantially related. Since no conflict of
7
During the Evidentiary Hearing on this matter, counsel for Defendant subpoenaed Attorney Gerson who
testified to various letters written to Defendant during the course of his representation. Attorney Gerson testified
that one of the letters specifically discussed the potential conflict of interest with the Somerset County District
Attorney's office, based on Attorney Young's disclosure that she had previously represented Defendant in an
unrelated custody matter. Attorney Gerson testified to what the contents of the various letters were from the
witness stand and used the letters to refresh his memory. Counsel for Defendant objected to the admission of the
letters as documentary evidence, and therefore, Attorney Gerson's uncontradicted testimony is the only
evidence in the record with respect to Attorney Gerson's letters to Defendant. See PCRA Hr'g Tr. 68,-73.
13
. \
interest existed, counsel was not ineffective tor failing to object to the prosecution of
Defendant by the Somerset County District Attorney's office. Attorney Carolann Young did
not provide information or strategy to the District Attorney, nor did she participate in
Defendant's prosecution in any way. Therefore, Defendant's claim of ineffective assistance
of Attorney Salisbury" and Attorney Gerson with respect to the alleged conflict of Assistant
District Attorney Carolann Young is dismissed.
II. Defendant Has Failed to Demonstrate that Attorney Gerson Was Ineffective for
Failing to Call a Key Witness and Failing to Impeach the Victim with Prior
Inconsistent Statements and Prior Accusations.
Defendant argues that Attorney Gerson's trial strategy fell below the objective
standard of reasonableness, and thus deprived him of the right to counsel guaranteed by the
_ Sixth Amendment, for two reasons: 1) Attorney Gerson failed to call a key witness, Bobbi Jo
Harbaugh, Defendant's fiance; and 2) Attorney Gerson failed to impeach the victim with her
prior inconsistent statements and prior accusations.
Strickland itself makes clear that "[w]hen a convicted defendant complains of the
ineffectiveness of counsel's assistance, the defendant must show that counsel's
representation fell below an objective standard of reasonableness." 466 U.S. at 687-88.
Strickland emphasizes that some deference must be afforded to the reasonable trial strategy
of counsel, explaining:
8
While Defendant's PCRA Petition claims that both Attorney Salisbury and Attorney Gerson were ineffective
for failing to raise a conflict of interest objection, the evidence indicates that the potential issue disclosed by
Attorney Young was not even discovered until after Attorney Salisbury's representation of Defendant had
ended, and therefore Attorney Salisbury would have been unaware of the potential issue and could not have
raised it. At the PCRA hearing, Defendant did not provide any evidence of Attorney Salisbury's allegedly
ineffective representation, in any regard, and therefore, the claim for ineffective assistance with respect to
Attorney Salisbury is dismissed. ·
14
Judicial scrutiny of counsel's performance must be highly deferential .
. . . Because of the difficulties inherent in making the evaluation, a
court must indulge a strong presumption that counsel's conduct falls
within the wide range of reasonable professional assistance; that is, the
defendant must overcome the presumption that, under the
circumstances, the challenged action might be considered sound trial
strategy.
Id. at 689 (internal quotations and citations omitted); see also Thomas v. Varner, 428 F.3d
491, 499 (3d Cir. 2005).
The Pennsylvania Supreme Court stated, "where matters of strategy and tactics are
concerned, counsel's assistance is deemed constitutionally effective if he chose a particular
course that had some reasonable basis designed to effectuate his client's interest."
Commonwealth v. Howard, 719 A.2d 233, 237 (Pa. 1998). A claim of ineffective assistance
generally cannot "succeed through comparing, by hindsight, the trial strategy employed with
alternatives not pursued." Id. Furthermore, a "finding that a chosen strategy lacked a
. reasonable basis is not warranted unless it can be concluded that an alternative not chosen
offered a potential for success substantially greater than the course actually pursued." Id.
a. Ineffectiveness for Failing to Call a Key Witness
Defendant alleges Attorney Gerson was ineffective for failing to call Bobbi Jo
Harbaugh (hereafter "Bobbi Jo"), Defendant's fiance and the victim's Aunt, as a defense
witness at trial. However, Attorney Gerson's decision not to call Bobbi Jo as a witness had a
reasonable basis designed to advance the interests of Defendant, and therefore does not fall
below the standard of reasonableness.
At the PCRA Hearing, Bobbi Jo gave conflicting testimony as to whether her
possibility of testifying as a witness was discussed or not. On direct examination, PCRA
-
counsel inquired:
15
Q: Did you have a discussion with Mr. Gerson with regard
to testifying at [Defendant's] trial?
A: No, he never brought that to my attention.
Q: He never brought it up?
A: No, sir.
Q: You never brought it up to him?
A: No.
Q: Was there any discussion with Henry with regard - with
you about testifying at trial?
A: Not that I recall.
Q: There was no discussion with regard to possibly being a
witness with regard to his character, what type of person
he was?
A: Um, he had suggested it once and never brought it back
up after that.
Q: Did you hear Mr. Gerson testify today?
A: Yes.
Q: Did Mr. Gerson - is it your understanding that Mr.
Gerson was speaking correctly when he said that you
said you would not testify?
A: Not that I recall. He never brought it to my attention for
me to be able to testify for Henry at the time.
PCRA Hr' g Tr. 80-81. Just a few minutes later, Bobbi Jo seemingly contradicts herself:
16
'·,
Q: Would you have been prepared to testify to Henry's
character for not being a violent man?
A: Yes.
Q: It was never discussed with Mr. Gerson that you could
testify to that matter?
A: No. It was not.
Q: Did you have a concern about your background in the
matters of CYS back in 2001 that would cause you to be
compromised in testifying in this case for Henry?
A: Yes.
Q: You had a problem with that?
A: I had a problem with it because I was currently in CYS,
and some of the stuff that came to questioning, I had a
problem with, that I had to address with Gerson.
Q: And you discussed that with him?
A: Yes.
Id. at 85.
Bobbi Jo first testified that she never had any discussion with Attorney Gerson or
Defendant about her testifying at Defendant's trial, then subsequently admitted there were
concerns about testifying that she discussed with Attorney Gerson with respect to her
involvement with CYS. PCRA Hr'g Tr. 80-85. Any CYS concerns that were unrelated to the
incident in question would only be relevant to Attorney Gerson in the event that Bobbi Jo
would be called to the witness stand to testify.
17
...
Additionally, Attorney Gerson testified that there were discussions about whether or
not Bobbi Jo would testify, and Bobbi Jo clearly refused.to testify or get involved. Id. at 52.
Attorney Gerson also testified that prior to trial, he sent Defendant a letter identifying the
likely witnesses, including Bobbi Jo. Id. at 70. The letter9 allegedly indicated what Bobbi Jo
would potentially testify to at trial. Id. Attorney Gerson's testimony contradicts Bobbi Jo's
testimony, and we found Bobbi Jo's testimony to be inconsistent and subject to credibility
concerns.
Attorney Gerson also testified to potential concerns about putting Bobbi Jo on the
witness stand, including: 1) Bobbi Jo previously gave conflicting reports about where N.H.
was sleeping in the house; 2) According to the CYS reports, Bobbi Jo had ran away with
Defendant when she was fifteen years of age which resulted in her placement within CYS
custody'"; 3) The CYS reports indicated that Mr. Richter's brother, Clarence, was in prison
. for sexually abusing N.H.; and 4) The CYS reports also indicated that Bobbi Jo's maternal
grandfather was convicted for sexually molesting her. Id. at 55-56. Attorney Gerson had
reasonable concerns about offering Bobbi Jo as a witness, but further testified that Bobbi Jo
flat out refused to testify, which was allegedly documented in the letters written to
Defendant. Id.
Additionally, it should be noted that on the date of the incident, Bobbi Jo was upstairs
sleeping and was not a witness to the events in question. Trial Tr. 1.89. Therefore, Bobbi Jo
would not have been able to testify as to what B.R. saw, and as acknowledged in Defendant's
Brief in Support of the PCRA Petition, Bobbi Jo would only have had personal knowledge of
9
As mentioned supra, the specific contents of the letters are unknown as counsel for Defendant objected to the
introduction into evidence of the letters at the PCRA Hearing. See PCRA Hr'g Tr. 68-73.
10
Attorney Gerson testified that he found this fact to be troubling because he thought it "sounded sort of
familiar" (to the facts in this case), and he interpreted the CYS records to suggest that Defendant had been
grooming Bobbi Jo when she was fifteen years old to run away with him. PCRA Hr'g Tr. 55-56.
18
.. .
the "demeanors" of Defendant, his sons and the victim on the date in question. See Br. Supp.
Def.'s PCRA� Pet. 13-14. While Defendant also alleges Bobbi Jo could have testified that she
was the sole caregiver to N.H. during this time, the testimony of both Defendant and N.H.
11
and the form from CYS demonstrate that Defendant was a caregiver to N.H.
Based on the testimony of Attorney Gerson and Bobbi Jo, as well as the ·factual
circumstances surrounding the available testimony of Bobbi Jo and her susceptibility to
potentially damaging impeachment on · the witness stand, it was not unreasonable for
Attorney Gerson to not call Bobbi Jo as a witness at Defendant's trial. Bobbi Jo refused to
testify or get involved, had already given conflicting reports to authorities, the history of her
involvement with Defendant at a young age was potentially problematic, and she was
perceived as contradictory and not credible at the PCRA hearing. Further, Bobbi Jo was
unable to provide any new or novel facts at trial since she did not witness the event in
. question. · Therefore, the fact that Bobbi Jo did not testify at trial is not sufficiently
unreasonable for this Court to determine that if she had testified there is any likelihood that
the result at trial would have been different. In fact, due to the various issues surrounding
Bobbi Jo, and the potential for damaging information to come to light as a result of her
testimony, the decision not to put her on the stand was a reasonable trial strategy. Defendant
has not demonstrated that had Bobbi Jo been offered as a witness, there was a substantially
greater probability of a successful defense, and therefore this claim fails.
11
The District Attorney questioned Defendant regarding whether he was a caretaker for N.H., and he denied
acting in a caretaker role, stating "I just provided meals for her, a place to live." Trial Tr. 2.31. The District
Attorney also asked why Defendant's name was listed as a "caretaker" for N.H. on- a CYS form, to which
Defendant replied, ''I guess that's what we were." Additionally, B.R. testified that Defendant was the head of
the household, that he didn't consider Bobbi Jo his stepmother and didn't refer to her as "mom" or "stepmom",
and that he had to answer to Defendant in the household. Id. at 1.112. B.R. also testified that N.H. called
Defendant "Uncle Henry" and mostly called Bobbi Jo "Bobbi", as opposed to "Aunt Bobbi." Id. While Bobbi
Jo could have offered her testimony that she was the sole caregiver to N.H., that testimony would have been
contradictory to the majority of the testimony provided at trial as well as the CYS documentation that indicated
that Defendant was a caregiver to N.H. during the time in question.
19
..
b. Ineffectiveness for Failing to Impeach the Victim With Prior Inconsistent
Statements
and Prior Accusations
Defendant also alleges that Attorney Gerson .was ineffective for failing to impeach
N.H. with her prior inconsistent statements when she was on the witness stand, and that
unreasonable error _of counsel prejudiced_ Defendant at trial. On direct examination, N.H.
testified to having sexual intercourse with Defendant, and largely corroborated the testimony
of B.R., Defendant's son who reported the incident. Trial Tr. 1. 84-92. On cross examination,
Attorney Gerson questioned N.H. about her bedwetting and about how N.H.'s life
significantly improved while living in the Richter household. Id. at 1.93-94. N.H. admitted to
chronic bedwetting, and agreed with Attorney Gerson that many aspects of her life improved
when she moved in with Defendant and Bobbi Jo. Id
Attorney Gerson even asked N.H. on cross-examination about her prior denial of any
sexual contact between her and Defendant:
Q: And in fact back on, I think it was June 19th of 2013, the
day that Henry was arrested, you had actually been taken
to Child Protective Services because of allegations m
another matter, correct, against Henry Richter?
A: Yes.
Q: And you were asked throughout those interviews
whether you had ever been abused by Henry or anyone
else in that household; correct?
A: Yes.
Q: And you repeatedly denied that you had been abused in
20
any manner, particularly sex'.1ally, by Henry; correct?
A: Yes.
Trial Tr. 1.96. Attorney Gerson questioned N.H. about a variety of inconsistencies in her
story, including whether she told Trooper Goins that her and Defendant used condoms when
they were having sex:
Q: Now, you also told Trooper Goins, this gentlemen sitting
next to me here, that -you had used condoms when you
had sex with him; is that correct?
A: I don't remember saying that.
Q: Are you saying you don't remember or that you didn't
say it?
A: I don't remember.
Q: At any rate, would you agree with me that you felt
comfortable living in the Richter household with all the
people who were living there?
A: Yes.
Id. at 1.96-97.
Additionally, other witnesses also testified that N.H. had originally denied any sexual
contact between her and Defendant, including Trooper Goins. Id. at 1.49-50. Trooper Goins
testified to his knowledge of other accusations made by N.H. against individuals other than
Defendant. Id at 1.64-65. B.R. agreed with Attorney Gerson that N.H. was a "practical
joker," and that N.H. was known to play jokes on people and act out. Id at 1.120. Defendant
himself offered testimony that N.H. was a "practical joker," and indicated that this-incident
21
would have been one of her "jokes." Id. at 2.18. Defendant also testified on cross•
examination that N.H. was lying, and that N.H. sometimes flirted with him. Id. at 2.34-40.
Throughout the trial, there were references to N.H. 's various other accusations of
sexual assault against individuals other than Defendant and testimony about her troubled
past. On direct examination, the District Attorney asked N.H., "[T]here's been some
discussion before you came in the courtroom about you making reports about other sexual
assaults. Is that true?" to which N.H., responded "Yes." Id. at 1.92. However, N.H. had no
explanation for why she did not report her sexual relationship with Defendant to authorities.
Id. On cross-examination, Attorney Gerson asked N.H., "The allegations you made against
the other four individuals were made in an attempt to get attention drawn to yourself; were ·
they not?" to which N.H. responded, "No." Id. at 1.98. Immediately afterwards, the District
Attorney again brought up the prior allegations, discussing the prior instances where N.H .
. had reported sexual abuse, starting with when she was eight years old. Id. at 1.99. During that
line of questioning, N.H. agreed with the District Attorney's questions, asserting that
Defendant never forced her to have sex with him, and that if B.R. had never came downstairs
that morning, she would not have reported the relationship or told police. Id
In addition to the discussion of the prior allegations within N.H.' s own testimony, at
the very beginning of trial, Trooper Goins testified to having knowledge of N.H.'s prior
accusations. Id at 1.64. Attorney Gerson questioned Trooper Goins on cross-examination as
to whether he was aware of prior accusations of sexual abuse reported by N.H.:
Q: As the lead investigator, you've referred to the fact that
[N.H.] had - did have Child Protective Services or
something like that, for previous reasons, that you were
22
aware of?
A: That I was aware of; yes, sir.
Q: Other investigations; correct?
A: Yes, sir.
Q: An d you were aware of what those other investigations
were, the subject matter of those other investigations?
A: To be honest, sir, unless it dealt with me, no, I was not.
Q: Okay. Were you aware, sir, that she had made
allegations against four other individuals of being
sexually assaulted from the age of 8 to the age of 14?
A: Yes, sir; I believe I would be aware of that.
Q: You were aware that she was, she claimed to be raped at
the age of 8 by a man by the name of John King?
A: I handled that case.
Q: I'm sorry?
A: I handled that case.
Q: Jeffrey Dean?
A: The name is familiar from [N.H.] during her interview.
Q: Also an individual by the name of Clarence Richter?
A: Yes.
Id. at 1.64-65. Additionally, there was discussion of N.H.'s prior accusations during
Defendant's own testimony on both direct and cross examination. Id. at 2.9-1 O; 2.26.
In his closing argument, Attorney Gerson pointed out the inconsistencies of N.H. 's
23
testimony, and suggested that N.H. was not credible. Id at 2.45. Attorney Gerson again
pointed out that N.H. made four prior accusations of rape against other individuals by the age
of fourteen, that she denied any sexual or physical abuse by Defendant to Child Protective
Services, that she changed her story to Trooper Goins, and he further stated:
Attorney Gerson: Which lie are we going to believe, ladies and
gentlemen? That's for you to make a
determination on. This child is a liar. She's
young. She's troubled. And I would suggest to
you that her testimony should be looked at
with a lot of suspicion and doubt.
Trial Tr. 2.47.
Pursuant to Strickland, Defendant must show that counsel's representation fell below
.an objective standard of reasonableness. 466 U.S. at 687-88. As explained supra, a claim of
ineffective assistance cannot succeed through comparing the trial strategy employed with
alternatives not pursued, and Defendant must demonstrate that the alternative not chosen
offered substantially greater potential for success. Commonwealth v. Howard, 719 A.2d 233,
23 7 (Pa. 1998). In the instant case, Defendant has failed to demonstrate that Attorney
Gerson's representation fell below the standard of reasonableness. Additionally, Defendant
had not established that any further questioning of N.H. regarding her inconsistent statements
or prior accusations would have substantially increased Defendant's likelihood of a
successful defense.
While Defendant argues that Attorney Gerson failed to cross-examine N.H. regarding
her inconsistent statements, the record reflects otherwise. Trial Tr. 1.96-97. Perhaps Attorney
24
Gerson could have been more aggressive in his. questioning of N.H., however, that strategy
could present its own concerns, including appearing argumentative or overbearing with a
young, fragile victim. Regardless, it is indisputable that the fact that N.H. had changed her
story, previously accused others of sexual abuse, and was subject to concerns about her
credibility was clearly placed before the jury. Further, Defendant's assertion that Attorney
Gerson could have been more effective in 'his cross-examination of N.H. does not indicate
that Attorney Gerson's representation fell below the standard of objective reasonableness,
nor has Defendant proven that some alternative strategy in the questioning of N.H. would .
have substantially improved Defendant's likelihood of a successful defense. As a result,
Defendant's claim that Attorney Gerson' s representation . was ineffective fails and is
dismissed.
-
III. Attorney Calabrese's Failure to Specify the Elements Not Sufficiently Supported by
Evidence at Trial on Appeal Did Not Prevent the Court from Considering the Merits
of Defendant's Appeal and No Prejudice Has Been Demonstrated.
Defendant's final claim of ineffective assistance is against Attorney Tancredi
Calabrese, who represented Defendant during his direct appeal. Attorney Calabrese timely
filed Defendant's appeal. Attorney Calabrese also timely filed. Defendant's Pa. R.A.P. l
925(b) statement identifying the issue raised on appeal, ("Whether the evidence at trial
sufficiently established that the Defendant committed aggravated indecent assault less than
16 years of age and endangering the welfare of a child?"), but the statement did not
specifically address which elements of the two crimes were not sufficiently established. See
Def.'s Concise Statement, June 8, 2016. This Court identified counsel's failure to specify
25
which elements were not established by the evidence in its Opinion Pursuant to Pa. R.A.P.
1925(a), filed on June 21, 2016. Additionally, this Court identified the elements of both
Aggravated Indecent Assault and Endangering the Welfare of a Child, and thoroughly
analyzed whether the evidence presented at trial was sufficient to establish each of those
elements. In the l 925(a) opinion, this Court determined that each element of each crime that
Defendant was convicted of was sufficiently established beyond a reasonable doubt. See Op.
Pursuant Pa. R.A.P. 1925(a), June 21, 2016.
The Superior Court considered Defendant's appeal, and on December 6, 2016, the
Superior Court held that "[a]fter a thorough review of the record, the briefs of the parties, the
applicable law ... we conclude that [Defendant]'s issue on appeal merits no relief."
Commonwealth v. Richter, No. 755 WDA 2016 (Pa. Super. Ct. Dec. 2, 2016). The Superior
Court squarely based its decision to affirm and uphold Defendant's conviction and sentence
. on the reasoning detailed in the trial court's Opinion Pursuant to Pa. R.A.P. 1925(a). Id.
Defendant alleges that Attorney Calabrese's failure to specifically identify the
elements not sufficiently established by the evidence at trial warrants the reinstatement of his
direct appeal rights. Br. Supp. Def.'s PCRA Pet. 14-18. Defendant's claim is based on a
family of case law that discusses the effect of a failure to file an appeal or the failure to
timely file a Pa. R.A.P. 1925(b) statement, as well as circumstances that support automatic
reinstatement of a criminal defendant's appeal rights when the failure of counsel resulted in
the complete waiver of an appeal. See Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998);
Commonwealth v. Butler, 812 A.2d 631, 635 (Pa. 2002); Commonwealth v. Halley, 870 A.2d
795, 801 (Pa. 2005); Commonwealth v. West, 883 A.2d 654, 657 (Pa. Super. Ct. 2005);
Commonwealth v. Castillo, 888 A.2d 775, 779�80 (Pa. 2005); Commonwealth v. Schofield,
26
·,
888 A.2d 771, 773-75 (Pa. 2005). We agree with PCRA counsel that when counsel's error
results in the waiver of a criminal defendant's right to .an appeal, reinstatement of appeal
rights under the PCRA is warranted. However, we find that in this case, Defendant's right to
an appeal was not waived or foreclosed, as both this Court and the Superior Court analyzed
and considered the merits of Defendant's appeal and ultimately determined that no relief was
warranted. Further, the error of counsel in this case did not entirely deprive Defendant of his
right to an appeal 12, and therefore, in order to be successful under the PCRA, Defendant has
the burden to demonstrate that his claim warrants relief under Pierce. Defendant has failed to
demonstrate prejudice resulting from counsel's missteps, and therefore Defendant's request
for the reinstatement of appeal rights is denied.
" [A]n accused who is deprived entirely of his right of direct appeal by counsel's
failure to perfect an appeal is per se without the effective assistance of counsel, and is
. entitled to reinstatement of his direct appellate rights." Commonwealth v. Grosella, 902 A.2d
1290, 1293 (Pa. Super. Ct. 2006) (quoting Commonwealth v. Johnson, 889 A.2d 620, 622
(Pa. Super. Ct. 2005)). There are very few circumstances where counsel's conduct warrants a
presumption of prejudice and the reinstatement of a petitioner's direct appeal rights nunc pro
tune. Commonwealth v. Reed, 971 A.2d 1216, 1225 (Pa. 2009). These circumstances include:
(1) where counsel failed to file a requested direct appeal; (2) where counsel failed to file a
concise statement of errors claimed of on 'appeal; or (3) where counsel failed to file a
requested petition for allowance of appeal. Id. "In those extreme circumstances, where
counsel has effectively abandoned his ... client and cannot possibly be acting in the client's
best interests, our Supreme Court has held that the risk should fall on counsel, and not the
12
Both the trial court and the Pennsylvania Superior Court analyzed whether the evidence presented at trial was
sufficient to establish beyond a reasonable doubt each of the elements of the crimes of which Defendant was
charged.
27
client." Commonwealth v. West, 883 A.2d 654, �58 (Pa. Super. Ct. 2005).
However, "the reinstatement of direct appeal rights is not the proper remedy when
appellate counsel perfected a direct appeal but simply failed to raise certain claims."
Grosella, 902 A.2d at 1293. The Superior Court explained:
Where. a petitioner was not entirely denied his right to a direct
appeal and only some of the issues the petitioner wished to
pursue were waived, the reinstatement of the petitioner's direct
appeal rights is not a proper remedy. In such circumstances, the
[petitioner] must proceed under the auspices of the PCRA, and
the P'CRA court should apply the traditional three-prong test for
determining whether appellate counsel was ineffective.
Id. at 1293-94 (emphasis in original) (internal citations and footnotes omitted); see also
Commonwealth v. Reaves, 923 A.2d 1119 (Pa. 2007) (in Reaves, the Pennsylvania Supreme
Court held that counsel's failure to preserve a challenge to the sentence did not entirely
foreclose appellate review of defendant's potential issues for direct appeal; the Superior
. Court addressed the merits of one of defendant's claims but waived the excessive sentence
claim for failure to preserve it, and the Supreme Court found that counsel's error did not
deprive defendant of his right to appellate review, but rather narrowed the ambit of issues for
direct appeal, and consequently, defendant was required to satisfy the traditional three-prong
ineffectiveness test to prevail under the PCRA).
In Commonwealth v. Reed, the Pennsylvania Supreme Court held that the filing of a
deficient appellate brief does not constitute a complete denial of counsel so as to warrant a
presumption of prejudice in the context of an ineffective assistance of counsel claim. 971
A.2d 1216, 1226-27 (Pa. 2009). The Supreme Court discussed the different circumstances
where prejudice should be presumed due to ineffective assistance through the appeal process,
but stressed that prejudice may only be presumed where counsel's errors completely deprive
28
'"
a defendant of the constitutional right to appeal. Id However, where defendant was able to
pursue a.11 · appeal, but defendant claims counsel was nevertheless ineffective during the
appeal process, defendant is required to establish actual prejudice under Pierce's three-prong
test. Id
The cases on which Defendant relies concern circumstances where the errors of
counsel completely foreclosed the defendant's ability to pursue a direct appeal. See, e.g.,
Commonwealth v. Halley, 870 A.2d 795; 801 (Pa. 2005); Commonwealth v. West, 883 A.2d
654, 657 (Pa. Super. Ct. 2005); Commonwealth v. Castillo, 888 A.2d 775, 779-80 (Pa. 2005).
Defendant's brief states, "By failing to file a complete Pa. R.A.P. 1925 statement, Counsel
Calabrese effectively did not file one at all." Br. Supp. Def.is PCRA Pet. 17.
However, Defendant's assertions in this respect fail to consider the factual differences
between the cases Defendant cites and the circumstances in the instant case. Additionally, the
. case law clearly indicates that there is a distinction between cases where a defendant's right
to appellate review is completely foreclosed and cases where certain issues are waived due to
a non-compliant 1925 statement or other errors, but the appeal is otherwise considered. Since
the merits of Defendant's appeal were considered, both by this Court and the Superior Court,
Defendant's right to an appeal was honored and appellate review in fact occurred.
Pursuant to the PCRA and Reed, no prejudice is presumed in this case, and thus in
order to prevail on an ineffectiveness claim against appellate counsel Defendant must
demonstrate that the underlying claim has arguable merit, that no reasonable basis existed for
counsel's actions or failure to act, and that Defendant suffered prejudice as a result of
counsel's error such that there is a reasonable probability that Defendant's appeal would have
been successful. See Weiss, 81 A.3d at 782. Here, Defendant has failed to demonstrate any
29
prejudice as a result of Attorney Calabrese's errors, nor has Defendant proven that but for
counsel's errors Defendant's appeal would have been successful, and therefore no relief is
warranted.
Defendant has not indicated how his appeal was prejudiced by the actions of Attorney
Calabrese. There is nothing in the record to indicate that any meritorious claims could have
been raised on appeal but were not. The issue that was raised on appeal was fully analyzed by
this Court and the Superior Court, with both Courts concluding that Defendant's appeal was
without merit. Defendant's argument that the incomplete 1925 statement is effectively no
statement at all is not supportable, since the appeal was, in fact, considered on its merits. No
additional arguments were presented as to how the actions of Attorney Calabrese prejudiced
Defendant. There is nothing in the record to indicate that had some other strategy been
pursued, Defendant's direct appeal would have been successful. Defendant has failed to
. establish prejudice as required under Pierce and Strickland, and as a result, Defendant's
claim of ineffective assistance of Attorney Calabrese fails.
CONCLUSION
Defendant's various claims of ineffective assistance of counsel all lack merit and
must be dismissed. The first claim concerning Attorney Salisbury and Attorney Gerson's
alleged failure to raise a conflict of interest fails as the claim that there was a conflict of
interest does not have arguable merit. The claim that Attorney Gerson was ineffective at trial
for failing to impeach the victim with prior inconsistent statements and prior accusations, and
for failing to call a key witness, do not warrant relief as Defendant has failed to demonstrate
· how counsel' s alleged errors prejudiced his defense at trial. Furthermore, Defendant did not
30
prove that Attorney Gerson's representatio1!- was objectively unreasonable. Finally,
Defendant failed to demonstrate how the incomplete .1925 statement filed by Attorney
Calabrese prejudiced his appeal, or that his appeal was not considered on its merits.
For the foregoing reasons, Defendant's PCRA petition is dismissed.
Accordingly_, we enter the following order:
31
\;
II COMMONWEALTH ) IN THE COURT OF CO:rvr:MON PLEAS
) OF SO:MERSET COUNTY,
) PENNSYLVANIA
V. . )
)
) NO. 476 CRIMINAL 2013
HENRY B. RJCHTER )
)
)
· Petitioner/Defendant. ) POST-CONVICTION RELIEF
ORDER
AND NOW, this 21st day of December, 2017, upon review of Defendant's PCRA
Petition, argument at the evidentiary hearing, Defendant's supporting brief, the entire record
of this case, and the applicable law, and in accordance with the foregoing Memorandum, we
find that Defendant has failed to prove ineffective assistance of counsel. Defendant's Post-
'Conviction Collateral Relief Act Petition is therefore DISMISSED.
The Clerk of Courts shall serve a copy of this Order on Defendant's PCRA counsel
and the Somerset County District Attorney.
SCOTT P. BITTNER, J.
Distribution: Lisa Lazzari-Strasiser, Esq. - Somerset County District Attorney
Joseph V. Luvara, Esq. - PCRA Counsel for Defendant
3
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"pile_set_name": "FreeLaw"
} |
IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,
AT AUSTIN
NO. 3-91-241-CV
BASTROP CENTRAL APPRAISAL DISTRICT
AND BASTROP COUNTY APPRAISAL REVIEW BOARD,
APPELLANTS
vs.
VERNON L. FRAMPTON,
APPELLEE
FROM THE DISTRICT COURT OF BASTROP COUNTY, 21ST JUDICIAL DISTRICT
NO. 19,310, HONORABLE JOHN L. PLACKE, JUDGE PRESIDING
In this ad valorem tax case, Vernon L. Frampton successfully challenged the denial
of open-space timber valuation on land he owns in Bastrop County. Based upon a jury verdict,
the trial court rendered judgment that 67.43 acres qualify for tax exemption. See Tex. Const. art.
VIII, § 1-d-1(a); Tex. Tax Code Ann. §§ 23.71-.79 (1984 & Supp. 1992). The Bastrop County
Appraisal District and Bastrop County Appraisal Review Board (hereafter collectively, the
"District") appeal.
Frampton applied for timber-use valuation seeking to have approximately 107 acres
of land valued for ad valorem tax purposes in accordance with Subchapter E of the Texas Property
Tax Code. See Tex. Tax Code Ann. § 23.75 (Supp. 1992). The District approved the
designation only as to forty acres. Frampton pursued an appeal in district court, and the jury returned a verdict in his favor on the remaining 67.43 acres. The trial court rendered judgment
for Frampton, ordering the property designated open-space timberland for 1988 and 1989, and
awarding him $2500 attorney's fees. We will affirm the judgment with respect to the timber-use
exemption and reverse the judgment on the issue of attorney's fees.
The Texas Constitution permits the legislature to tax open-space timber land on the
basis of its productive capacity. Tex. Const. art. VIII, § 1-d-1; see also Riess v. Williamson
County Appraisal Dist., 735 S.W.2d 633, 637 (Tex. App. 1987, writ denied). Land qualifies for
timber-use valuation if
it is currently and actively devoted principally to production of timber or forest
products to the degree of intensity generally accepted in the area with intent to
produce income and has been devoted principally to production of timber or forest
products . . . for five of the preceding seven years.
Tex. Tax Code Ann. § 23.72 (Supp. 1992). The burden of showing that the land meets these
qualifications is on the applicant. See Gragg v. Cayuga Indep. Sch. Dist., 539 S.W.2d 861, 869
(Tex.), appeal dism'd, 429 U.S. 973 (1976). The appraisal office can then appraise the value of
land that qualifies on the basis of the category of land in accordance with "accepted income
capitalization methods applied to average net-to-land," as defined by statute. See Tex. Tax Code
Ann. § 23.71 (1982); 1981 Tex. Gen. Laws, 1st C.S., ch. 13, §73, at 145 (Tex. Tax. Code Ann.
§ 23.73(b), since amended). In other words, land principally devoted to timber production is
appraised on the basis of its capacity to produce marketable timber. Thus, section 23.72 sets out
the conditions for determining whether property qualifies as timber land and, if so, section 23.73
provides the method for appraising the timber-productivity value. As directed by the legislature,
the State Property Tax Board (1) developed a manual of guidelines for use by each appraisal office
in appraising qualified timber land and established rules of procedure for use by the appraisal
office in verifying that land meets the conditions of § 23.72. Tex. Tax Code Ann. § 23.73(b).
Frampton first applied for timber-use valuation on his property in 1988. His forty
acres of property was the first tract ever to be approved in the county. The appraisal office denied
other landowners' requests for timber valuation in 1985 and 1988, but granted one request in
1988. The District had no local guidelines until late 1989.
The District argues on appeal that Frampton failed to prove his land qualifies for
timber valuation because he failed to satisfy the criteria the District employs to appraise qualified
land. Specifically, Framptom did not follow the District's "step-by-step calculations in order to
prove a net-to-land figure." This contention was not argued at trial below. The District claims
additionally that Framptom failed to prove he intends to produce income because he failed to
prove his land produces a rate of growth sufficient to support a commercial timber operation.
The jury was asked to decide whether Frampton's property qualified for the
exemption; it was not asked to appraise its value. The question inquired:
Do you find from a preponderance of the evidence that for the . . . years [1988 &
1989] the property was currently and actively devoted principally to production of
timber or forest products to the degree of intensity generally accepted in the area
with intent to produce income and has been devoted principally to production of
timber or forest products for five of the preceding seven years?
(Emphasis added). In connection with the inquiry, the jury was instructed that the emphasized
portion
means that the existing timber resources are sufficient to warrant management for
commercial production or the land resource is being developed and managed for
the production of timber. . . . Such lands are often referred to as commercial
forestland. Generally excluded . . . are lands which have trees . . . but are
incapable of producing at least 20 cubic feet of fiber per year.
(Emphasis added). The jury answered in Frampton's favor, which it could do if it was persuaded
that Frampton's land is (1) currently and actively (2) being developed and managed for the
production of timber (3) with intent to produce income, (4) and has been so used for the time
required. Although the jury was instructed that land incapable of producing at least twenty cubic
feet of wood fiber per year generally does not qualify, this level of growth is not mandatory for
qualification; the jury was not instructed it must find that amount of growth.
The District now asserts on appeal that Frampton failed to prove other required
elements of his case. The District did not object to the jury charge below, however, and does not
complain of it here. The charge inquired only as to the single issue and the related special
instruction set out above. The District did not request, by instruction or definition, factors
asserted here, and the District does not suggest additional matters should have been submitted.
To the extent the District attempts to complain that there were additional facts for the jury to
determine, any error is waived.
TAX EXEMPTION
The District complains generally that the evidence is legally and factually
insufficient to support the jury's verdict. Rather than addressing its complaints to any error made
by the trial court or challenging the judgment as improper, however, the District argues against
the weight given to and credibility of the evidence relied upon, matters within the jury's sole
province. In effect, the District argues Frampton's evidence is not credible and should be given
no weight, while the District's evidence is conclusive, binding, and must be believed.
In its first six points of error, the District complains that the record contains no
evidence or, alternatively, insufficient evidence to support the jury's verdict, particularly its
finding that Frampton operated "with intent to produce income." Even if Frampton's testimony
constitutes some evidence, the District argues that the finding is against the great weight of all the
evidence. The District contends that Frampton's evidence in support of the verdict constitutes no
evidence because it does not comply with the Tax Code and step-by-step valuation calculations
in the District's manual; and, the District's evidence does comply and, therefore, is conclusive.
To prove land is timberland, the District contends that lay opinion testimony is incompetent and
expert testimony is required. Because Frampton offered no expert testimony, the District's
testimony is dispositive. The District asserts that its expert's opinion affirmatively proves that
Frampton could never intend to manage the land with an intent to produce income, as required.
In its eighth point, the District simply complains without citation of authority that the jury verdict
is inequitable and wrong.
In reviewing a no-evidence challenge, we must consider only the evidence and
reasonable inferences tending to support the verdict and disregard all evidence and inferences to
the contrary. If any evidence of probative value exists that supports the finding, we must affirm
the jury verdict and the challenge must fail. King v. Bauer, 688 S.W.2d 845, 846 (Tex. 1985);
Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965). In reviewing a factual-sufficiency challenge,
we must review all the evidence to determine whether the evidence is insufficient or if the verdict
is so against the great weight and preponderance of the evidence as to be clearly wrong and
manifestly unjust. Sosa v. City of Balch Springs, 772 S.W.2d 71, 72 (Tex. 1989); In re King's
Estate, 244 S.W.2d 660, 661 (Tex. 1951); see also Pool v. Ford Motor Co., 715 S.W.2d 629
(Tex. 1986); see generally William Powers, Jr. and Jack Ratliff, Another Look at "No Evidence"
and "Insufficient Evidence," 69 Tex. L. Rev. 515 (1991).
The District's underlying position is that the issue of whether land qualifies as
timberland involves "highly technical matters" requiring "great technical expertise" about which
only a scientific expert is competent to offer an opinion. For this reason, the District contends,
only its expert's opinion was competent proof, and because the District's expert was the only
expert who testified, his testimony was conclusive. See, e.g., Exxon Corp. v. West, 543 S.W.2d
667 (Tex. Civ. App. 1976, writ ref'd n.r.e.). Frampton concedes that he is not a forestry expert.
Opinion testimony does not establish a material fact as a matter of law; an expert's
opinion, even when uncontroverted, is not conclusive and binding on the jury unless the subject
is one for experts alone, where the jury cannot be expected to form correct opinions based upon
the evidence as a whole, aided by their own experience and knowledge. McGalliard v.
Kuhlmann, 722 S.W.2d 694, 697 (Tex. 1986). The District cites no authority for its position that
this is such an instance. We do not believe that the subject in issue, particularly a landowner's
intent with respect to his property, is one solely for experts. Intent is almost always a question
within the jury's province. Valley Stockyards Co. v. Kinsel, 369 S.W.2d 19, 20 (Tex. 1963).
Generally, a landowner is entitled to give an opinion on the use and value of his own property
without being an expert. Grayce Oil Co. v. Peterson, 98 S.W.2d 781, 783 (Tex. 1937). The jury
decides the credibility and weight the testimony should be given. Benoit v. Wilson, 239 S.W.2d
792, 796 (Tex. 1951).
Further, the District suggests that it objected to the competence of Frampton's
evidence, exhibits, and testimony of his witnesses. The record does not support this contention.
The District did not challenge any witness as incompetent, move to strike any evidence or
testimony, request a limiting instruction or the like, or object to any exhibits except perhaps
Frampton's exhibit twenty-nine. The District refers us to more than three-hundred pages of the
statement of facts as its specific reference to the place in the record where error occurred. The
District does not direct any of its complaints by point of error to any ruling by the trial court, save
one.
In its fifth point of error, the District claims that the trial court erred by overruling
its objection to Frampton's lay-opinion testimony because Frampton was incompetent to testify
on the subject. The record reflects that, without objection, Frampton testified at length about his
land-management plan, commercial sales, related income and expenses incurred, the timber
inventory on his property, and the method he employed in measuring the property's inventory and
calculating its ability to sustain growth. The court admitted the many exhibits without objection.
Frampton then identified exhibit twenty-nine, a 1989 summary he compiled from his personal
measurements and calculations of the volume in cubic feet of stems he believed present on the
property, excluding oak but including pine and cedar. His data showed his property could sustain
approximately 400 cubic feet per acre of increased wood-fiber growth annually, and he explained
at length his method of reaching this total. Finally, an unidentified summary of the results of his
calculations, presumably exhibit twenty-nine, was admitted over the District's objection that
"there has been no predicate laid that Mr. Frampton used any of the accepted measures of the
industry to make these determinations, that he has the expertise necessary to do that." If any error
was preserved, it was with respect to admission of this exhibit only, which the District does not
challenge on appeal.
In cross examination and through its expert, the District attacked the credibility and
reliability of Frampton's assertions and calculations, especially on the basis that experts contend
very little land in Texas can produce even 165 cubic feet of growth per acre per year. The jury
did not have to believe all of Frampton's figures; it needed to be persuaded only that the property
was being managed with intent to produce timber income. Even if the property must be capable
of producing adequate annual growth, twenty cubic feet per acre is not absolutely required.
The evidence shows that Dr. Vernon Frampton bought the 107.43 acres in 1947
when his son Jerry was one-year old. Jerry lived with his wife on the property from 1972 until
1976. Vernon Frampton and his son Jerry Frampton had pastured cattle on the property but
removed the cattle in 1972 in order to foster the spread of pine trees. Their goal is to encourage
the growth of pine and cedar trees on their land, and eventually develop a forest of loblolly pine.
Aerial and other photos reveal pine and cedar growing on the property, as well as oak.
Since 1976, both men had been actively developing and managing the 107 acres as
a single tract of timberland. Each described his management efforts to encourage the spread of
pine trees throughout the property. These efforts included consulting with the Texas Forest
Service in 1976; culling oak hardwood; cutting firebreaks and roads; and selling pine or cedar in
1981, 1982, and 1989. Their efforts have resulted in the spread of pine and, for the moment,
cedar. They planted pine seedlings on one and one-half acres of the tract in dispute. In 1976,
twenty-seven acres out of the 107 was certified as a tree farm by the Texas Forest Service for the
American Tree Farm System. In 1986, the amount was upgraded to 100 acres. By 1988, 42.84
acres of the 107 acres was predominantly pine forest of commercial quantity. The District
eventually approved forty acres of this portion as timberland. The rest of the land is being
developed toward that goal. The disputed property contains a mixture of hardwood, cedar, and
pine, and there are now pockets of pine trees throughout the sixty-seven acres. Efforts to
encourage the spread of pines throughout the entire area have been successful. The property is
in transition to pine, with cedar intermittent. The men also described their work marketing timber
and wood products and developing a timber business for themselves and for the county. They
have contacted potential customers, some of whom have visited the property, and have made some
commercial sales of oak, pine and cedar.
Jerry Frampton has served as President of the Lost Pines Timber Growers
Association, trying to help develop the industry. He testified to a range of time devoted to the
project and this property, at times expending twenty to forty hours per month, sometimes eighty,
on the land management, the association, developing the timber industry, markets, and the like.
Vernon Frampton expends more than forty hours a month on this work. He believes the value
of his standing timber has been increased as a result of his efforts.
Vernon Frampton is a retired research chemist with a doctor of philosophy degree
in biochemistry and a minor in "mathematic physics," but he did not testify as an expert. He
testified that since 1972 he has been engaged in a continuous program of managing the property
toward the goal of developing a forest of loblolly pine in order to produce forest timber or forest
products. He described his efforts to determine the volume of timber on his property and its
annual rate of growth. He took sample plots and attempted a month long inventory of tree
products on the entire property by type, size and number. Frampton explained the means he
employed of measuring his trees. Using high-school level math he calculated the volume of wood
fiber on his land and its annual growth. Frampton freely admits he did not use any one of three
industry-accepted conversion tables in his calculations, these being unreliable in his opinion
because they underestimate the board-foot volume of a log and are inconsistent among themselves.
He concluded that his sixty-seven acres of land realized an increased growth of approximately 400
cubic feet of wood fiber per acre per year. The amount of growth is higher on the sixty-seven
acres than the pines on the forty acres. In his opinion, all 107 acres is being currently and actively
devoted principally to the production of timber or forest products with even greater intensity than
that of other tree farmers in the county. Although his timber business has been operating at a net
loss, Frampton insists that future prospects are optimistic and could be profitable.
Carl Bradford testified that he had spent ninety hours on the property cutting
pulpwood, that being oak, not pine or cedar. Bradford testified that in 1985, he cut twenty-two
cords of oak from Frampton's land; in 1990 he cut sixteen cords from seven-tenths of one acre
on the 67 acre tract; the area where he cut is "just about all pine and cedar now;" he has observed
a change in composition of the forest over the last six years; and there are pine and cedar
seedlings over most of the area.
Austin Wampler has been in the business of buying, logging, saw-milling and
processing timber in Bastrop County for twenty-seven years. He testified that many products can
be produced from timber besides lumber; that every bit of wood has a marketable use; that the
Doyle scale, one of the industry-accepted methods for measuring wood volume, underestimates
wood volume by fifteen to twenty per cent; that wood fiber can produce a volume of wood
shavings five times greater than the solid wood; that he pays ten dollars per cord for wood; and
that only an area of 1.5 acres out of Frampton's sixty-seven acres has been cleared of timber.
The District's expert, Charles Burditt, a forestry consultant for eleven years,
testified that from his calculations using the Doyle log rule scale, the volume of wood on the
sixty-seven acres is extremely low and in his opinion not sufficient to justify a commercial
operation. He discredited Frampton's inventory and calculations, and explained the accepted
method he, Burditt, used. He testified that Frampton's calculations would mean this property far
exceeds the best timberland in East Texas. Burditt disagrees that the sixty-seven acres ever will
produce twenty cubic feet of growth per acre per year; estimates it produces less than ten cubic
feet per acre per year, rather than 400; does not believe the land can produce a profit; and would
not recommend Frampton pursue a commercial operation. Burditt testified that the sixty-seven
acres contains almost no pine. During his first visit, he inspected only about two acres out of the
sixty-seven and took no measurements. During the second visit, he collected data on the forty
acres, while another expert examined the property now in dispute. The two combined to prepare
their findings, but Burditt did not actually gather the data.
In his preliminary report to the District in 1988 Burditt stated his opinion that the
"land owner is doing an excellent job of land stewardship . . . demonstrated by his obvious
interest in converting the acreage into more productive timber land. The approach to making this
conversion is a sound one." Nevertheless, he determined that the commercial value was marginal.
The District's local guidelines for Bastrop County now suggest that property have
a minimum site index of sixty-five in order to qualify for timber valuation. Site index is one
factor examined to determine a property's capacity to produce growth. Burditt took tree borings
on the forty acres and determined that it has an actual site index of sixty. (2) Burditt did not take
any borings, take any soil samples, or determine the site index for the sixty-seven acres in dispute.
He does not explain his method of determining its annual growth rate. Burditt nevertheless
concluded from looking at the growth that since there was "a fully stocked stand of hardwood
already there that wasn't producing 20 cubic feet I had to decline in approving the area."
Burditt agreed that had he not been on the property to make his own assessment,
he would have relied upon Soil Conservation Service maps and charts to assess the property's
ability to produce annual growth. While testifying, Burditt examined, compared, and interpreted
various maps and charts from the Texas Forest Service and the Soil Conservation Service and
testified that according to these, most of the sixty-seven acres has a site index of seventy, better
than that of the forty-acre tract, and is best suited for growing pine. Burditt conceded that from
looking only at these items the sixty-seven acres has a better site index and lower seed mortality
rate than the forty acres, and could produce more wood fiber per acre. A site index of this level
could have an estimated capability of producing in the range of fifty to eighty-four cubic feet of
wood per acre per year.
The jury was called upon to decide whether the property qualified for timber-use
valuation under the test of § 23.72. The District primarily complains that Frampton failed to
prove he intended to produce income from the property. We hold that the evidence is both legally
and factually sufficient to support the jury's affirmative verdict. The record contains ample
probative evidence on which the jury could render its verdict, and its answer is not against the
great weight of all the evidence. We overrule the District's points of error one through six and
eight.
ATTORNEY'S FEES
In its seventh point of error, the District complains that the trial court erred in
awarding Frampton attorney's fees. Frampton relies upon May v. Appraisal Review Bd. of
Tarrant Appraisal Dist., 794 S.W.2d 906 (Tex. App. 1990, writ denied). The Texas Supreme
Court, however, has recently held that a taxpayer who successfully challenges the denial of open-space land designation is not entitled to recover attorney's fees. Dallas Central Appraisal Dist.
v. Seven Inv. Co., 32 S.Ct.J. 856, 860 (June 10, 1992). We sustain the District's seventh point
of error.
CROSS POINT
Frampton complains by cross-point that the trial court erred by rendering judgment
without permitting him to complain of the District's denial of his 1990 application for timber-use
valuation. The jury returned its verdict in March 1990. In August 1990, without leave of court,
Frampton filed an amended petition in this cause complaining of denial for 1990. The trial court
rendered judgment on the verdict and signed the judgment February 26, 1991.
Frampton contends that he had an absolute right to amend his pleadings to add later
tax years so long as the appeal for review was pending in the trial court and thereafter was entitled
to another jury trial. Tex. Tax Code Ann. § 42.21(c) (Supp. 1992). The statute permits the
taxpayer to amend a pending action or file a separate cause. Frampton attempted the former. A
party is not entitled to amend his pleadings within seven days of trial, or after verdict, without
leave of court. Tex. R. Civ. P. Ann. 63 (Supp. 1992). We overrule Frampton's cross-point.
For the reasons set forth above, we reverse the portion of the judgment that awards
attorney's fees to Vernon L. Frampton and render judgment denying Frampton recovery for such
fees. The remainder of the judgment is affirmed.
Marilyn Aboussie, Justice
[Before Chief Justice Carroll, Justices Aboussie and Kidd]
Affirmed in Part; Reversed and Rendered in Part
Filed: July 1, 1992
[Do Not Publish]
1. In 1991 the Legislature placed this responsibility on the comptroller. See 1991 Tex. Gen.
Laws, 2nd C.S., ch. 6, § 26, at 30 (amending Tex. Tax Code Ann. § 23.73(b)).
2. As a general rule, a site index of sixty means that over fifty years a tree on the property
will grow sixty feet tall.
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963 F.Supp. 1067 (1997)
John Clark SCHARTZ, Plaintiff,
v.
UNIFIED SCHOOL DISTRICT NO. 512, and Blanche Banks, Defendants.
Civil Action No. 95-2491-EEO.
United States District Court, D. Kansas.
April 28, 1997.
*1068 Kurt D. Tilton, Brian L. Smith, Smith & Tilton, P.C., Kansas City, MO, for John Clark Schartz.
Patricia A. Bennett, Andrew F. Sears, Bennett, Lytle, Wetzler, Martin & Pishny, L.C., Prairie Village, KS, for Blanche Banks and Unified School District No. 512.
MEMORANDUM AND ORDER
EARL E. O'CONNOR, Senior District Judge.
This matter is before the court on plaintiff's motion to alter or amend judgment (Doc. # 98) and plaintiff's motion for oral argument (Doc. # 100), As an initial matter, plaintiffs' motion for oral argument will be denied because the court has determined that oral argument will not be of material assistance in resolving the motion. For the reasons set forth below, plaintiff's motion to alter or amend judgment is granted in part.
The factual background of this matter is set forth in the court's order of January 16, 1997. In that order, the court granted summary judgment in favor of defendants on counts I, III, IV, V, and VI and dismissed count II without prejudice. Plaintiff requests that the court alter or amend its order with respect to counts I and VI of plaintiff's amended complaint. In counts I and VI, plaintiff alleges that the Shawnee Mission School District, Unified School District No. 512 (the "District" or "defendant") discriminated against him, on the basis of his age, in violation of the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. § 621, et seq., and the Kansas Age Discrimination in Employment Act ("KADEA"), K.S.A. § 44-1110, et seq. Ms. Banks is not a defendant to plaintiff's age discrimination claims.
Standards For Motion To Alter Or Amend Judgment
Courts generally apply the same legal standards for motions to alter or amend a judgment and motions for reconsideration. See, e.g., Resolution Trust Corp. v. Greif, 906 F.Supp. 1446, 1456 (D.Kan.1995); Brinkman v. State of Kan., Dep't of Corrections, 869 F.Supp. 902 (D.Kan.1994). Reconsideration is proper when the court has made a manifest error of fact or law, when new evidence has been discovered, or when there has been a change in the relevant law. See Greif, 906 F.Supp. at 1456 (citing All West Pet Supply Co. v. Hill's Pet Prods. Div. Colgate-Palmolive, Co., 847 F.Supp. 858, 860 (D.Kan.), modified, 842 F.Supp. 1376 (D.Kan.1994)).
Analysis
Plaintiff seeks reconsideration of this court's previous ruling granting summary judgment in favor of defendant on plaintiff's age discrimination claims. Plaintiff argues that (1) the court's ruling is contradictory because the court found that plaintiff could establish a prima facie case but that he failed to produce sufficient evidence to show that defendant's reason for plaintiff's termination was pretextual and (2) the court applied an overly stringent standard in analyzing plaintiff's statistical evidence of an alleged pattern of age discrimination at Shawnee Mission North High School in light of Magistrate Judge Rushfelt's previous discovery rulings.
*1069 I. Plaintiff's Evidence of Satisfactory Job Performance.
Plaintiff maintains that the issue of pretext generally is a question for the jury. Many courts have decided the issue of pretext as a matter of law. See, e.g., Rea v. Martin Marietta Corp., 29 F.3d 1450 (10th Cir.1994). Although the court recognizes that in some cases the same evidence used to establish a prima facie case also may be sufficient to create a jury question on the issue of pretext, this is not such a case. See, e.g., Kehoe v. Anheuser-Busch, Inc., 995 F.2d 117, 120 (8th Cir.1993).
Plaintiff's burden of production for establishing a prima facie case is distinct from plaintiff's burden to establish that defendant's proffered reason for plaintiff's termination is pretextual for age discrimination. The Tenth Circuit has held that a plaintiff must make only a minimal showing to meet his prima facie burden that his performance was satisfactory. See Denison v. Swaco Geolograph Co., 941 F.2d 1416, 1420-21 (10th Cir.1991) (employer can raise performance issues in rebuttal of plaintiff's prima facie case) (citing La Montagne v. American Convenience Prods., Inc., 750 F.2d 1405, 1413-14 (7th Cir.1984)). After reviewing many decisions from other circuit courts, the Tenth Circuit has held that "a plaintiff may make out a prima facie case of discrimination in a discharge case by credible evidence that she continued to possess the objective qualifications she held when she was hired, or by her own testimony that her work was satisfactory, even when disputed by her employer, or by evidence that she had held her position for a significant period of time." MacDonald v. Eastern Wyoming Mental Health Center, 941 F.2d 1115, 1121 (10th Cir.1991) (citations omitted). The Tenth Circuit therefore cautions courts not to consider an employer's evidence or explanation of a plaintiff's unsatisfactory job performance in analyzing whether plaintiff has met his prima facie burden. See Reynolds v. School Dist. No. 1. Denver, Colo., 69 F.3d 1523, 1535 (10th Cir. 1995) (the MacDonald case "instructs us to address an employer's explanations for its actions in subsequent stages of the McDonnell Douglas inquiry and allow employees to clear the prima facie hurdle without countering those explanations"); Kenworthy v. Conoco, Inc., 979 F.2d 1462, 1470 (10th Cir. 1992) (finding that the MacDonald case establishes that "the employer's reasons for the adverse action are not `appropriately brought as a challenge to the sufficiency of [the plaintiff's] prima facie case'") (quoting MacDonald, 941 F.2d at 1120 (internal quotations omitted)).
In La Montagne, the Seventh Circuit explained the difference between plaintiff's prima facie burden and burden to show that defendant's offered reason is pretextual as follows:
La Montagne offers as evidence of pretext all the evidence of satisfactory job performance canvassed above, presumably in order to show again that his job performance was satisfactory. But to show pretext, it does not help for La Montagne to repeat the proof that his job performance was generally satisfactory. That question has already been resolved in his favor. The Company advanced specific reasons for his discharge, and his rebuttal evidence should be focused on them.
750 F.2d at 1414.
This court applied the above principles and held that (1) plaintiff met his prima facie burden of establishing satisfactory work performance and (2) plaintiff failed to produce sufficient evidence for a jury to conclude that defendant's offered reason for plaintiff's termination was pretextual for age discrimination. See Jan. 16, 1997, Mem. & Order at 14-20. Plaintiff's evidence simply did not cast doubt on the District's explanation that it was concerned about the student complaints that had been made regarding plaintiff. The court finds nothing contradictory in its two previous rulings.
II. Statistical Evidence Of A Pattern Of Discrimination.
Plaintiff contends that the court applied an overly stringent standard in analyzing plaintiff's statistical evidence. The court believes that it appropriately stated the standard for analyzing whether a pattern exists sufficient for a jury to infer that a defendant intentionally discriminated against a plaintiff because of age. The court previously noted the major *1070 deficiencies in plaintiff's statistical evidence.
Plaintiff argues that it filed a motion to compel the type of information the court noted was absent in support of plaintiff's summary judgment opposition. Magistrate Judge Rushfelt refused to compel defendant to produce much of the information plaintiff requested. See Dec. 19, 1996, Mem. & Order. Plaintiff chose not to file a motion for reconsideration of the magistrate judge's order. Plaintiff also chose not to file a motion to review the magistrate judge's order pursuant to Rule 72 of the Federal Rules of Civil Procedure and Local Rule 72.1.4(a). Plaintiff simply waited until he lost on defendant's motion for summary judgment before raising the issue. Plaintiff will not be heard at this late date regarding his new-founded objections to the magistrate judge's order. See Fed.R.Civ.P. 72(a) ("Within 10 days after being served with a copy of the magistrate judge's order, a party may serve and file objections to the order; a party may not thereafter assign as error a defect in the magistrate judge's order to which objection was not timely made.").
On December 19, 1996, Magistrate Judge Rushfelt did compel the District and Ms. Banks to answer one interrogatory that could give plaintiff additional information in support of an alleged pattern of conduct against older teachers at Shawnee Mission North High School. Plaintiff, however, made no attempt (either before or after the magistrate judge's ruling) to follow the procedure set forth in Rule 56(f) of the Federal Rules of Civil Procedure for requesting the court to postpone ruling on defendant's pending summary judgment motion. Plaintiff chose to file his opposition on November 25, 1996, with the information he had available despite his pending motion to compel. Plaintiff failed to notify the court that additional discovery was necessary for plaintiff to oppose defendant's summary judgment motion. In fact, plaintiff apparently agreed to allow defendant an extension until January 13, 1997, to answer the interrogatory. Notwithstanding these fundamental deficiencies, the court in the interest of justice will allow plaintiff, the non-movant, to pursue discovery based on defendants' answer to the interrogatory. Plaintiff shall have until June 30, 1997, to complete discovery related to the compelled answer produced by defendant. Plaintiff shall file any supplemental opposition to defendant's motion for summary judgment based on the additional information discovered by the compelled answer on or before July 14, 1997. Defendant shall file any reply on or before July 31, 1997. The court will reconsider its ruling on counts I and VI of plaintiff's Amended Complaint after it has received the parties' supplemental briefing.
Plaintiff is cautioned that the court also may reconsider, if necessary, defendant's motion to strike the exhibits submitted in support of plaintiff's opposition to defendant's motion for summary judgment. Plaintiff's exhibits include a number of "affidavits" that are unsworn, and not notarized or otherwise made under penalty of perjury. The form of affidavits is set forth in Rule 56(e) of the Federal Rules of Civil Procedure. A critical element of an affidavit is that it is sworn to or affirmed before an official who also notarizes the document. Plaintiff's attachments do not constitute appropriate affidavits or declarations. If plaintiff chooses to submit unsworn declarations in lieu of affidavits, plaintiff's counsel should review 28 U.S.C. § 1746 which sets forth the form for such declarations. Finally, counsel should review local rule 56.1 which requires that "[a]ll facts on which a motion or opposition is based shall be presented by affidavit, declaration under penalty of perjury, and/or relevant portions of pleadings, depositions, answers to interrogatories and responses to requests for admissions." There is no provision in the Federal Rules of Civil Procedure or the Local Rules for the District of Kansas for simply attaching a document as an exhibit with no supporting affidavit, deposition testimony, or other relevant evidence authenticating the document. Despite plaintiff's failure to submit his exhibits in proper form in the first place, the court will grant plaintiff, the nonmovant, leave to re-submit the same exhibits to his memorandum in opposition to defendant's motion for summary judgment in the proper form. Plaintiff shall file such exhibits on or before July 31, 1997.
IT IS THEREFORE ORDERED that plaintiff's motion for oral argument (Doc. # 100) is denied.
*1071 IT IS FURTHER ORDERED that plaintiff's motion to alter or amend judgment (Doc. # 98) is granted in part as discussed above.
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426 F.2d 820
Maynard Fred EDWARDS, Appellant,v.G. P. LLOYD and E. J. Oberhauser, Appellees.
No. 24697.
United States Court of Appeals, Ninth Circuit.
May 21, 1970.
Maynard Fred Edward, in pro. per.
Thomas C. Lynch, Atty. Gen., Mark L. Christiansen, Deputy Atty. Gen. of Los Angeles, Cal., for appellee.
Before HAMLEY and KILKENNY, Circuit Judges, and POWELL, District Judge.*
PER CURIAM:
1
This is an appeal from a denial by the district court of appellant's petition for a writ of habeas corpus. He was convicted, in a non-jury trial, of the crime of possession of heroin for sale under the provisions of the California Health and Safety Code, § 11500.5. After a study of the state court record, the district judge denied the petition without a hearing.
2
The record before the district court, and now before us, meets all of the requirements of Townsend v. Sain, 372 U.S. 293, 312-318, 83 S.Ct. 745, 9 L.Ed. 2d 770 (1963) and 28 U.S.C. § 2254.1 Beyond question, the trial judge accurately interpreted his judicial function and correctly decided: (1) that the merits of the factual dispute were resolved in the state court hearing; (2) that the factual determination by the state court was fairly supported by the record as a whole; and (3) that the fact finding procedure employed by the state court was adequate to afford a full and complete hearing. Moreover, we hold that the district judge correctly applied the federal law to the state court's findings on the facts.
3
We find it unnecessary to speak on the effect, if any, of the presumption created by 28 U.S.C. § 2254(d).
4
The judgment of the lower court is affirmed.
Notes:
*
The Honorable Charles L. Powell, United States District Judge for the Eastern District of Washington, sitting by designation
1
As amended November 2, 1966, 80 Stat. 1105
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276 F.2d 271
CRANE PACKING COMPANY, a corporation, Beth Bernice Green, individually and as Executrix of Earl J. Bullard, Deceased, and Ronald Eugene Green and Janis Leanore Green, Minors, by Beth Bernice Green, their Next Friend, Plaintiffs-Appellants,v.SPITFIRE TOOL & MACHINE CO., Inc., a corporation, Defendant-Appellee.
No. 12809.
United States Court of Appeals Seventh Circuit.
April 1, 1960.
Certiorari Denied June 13, 1960.
See 80 S.Ct. 1259.
Warren C. Horton, John R. Nicholson, Chicago, Ill., Horton, Davis & McCaleb, Charles F. Voytech, Chicago, Ill., Nicholson, Nisen & Elliott, Charles M. Nisen, Chicago, Ill., for appellants.
Clarence E. Threedy, Chicago, Ill., Edward C. Threedy, Chicago, Ill., for appellee.
Before KNOCH and CASTLE, Circuit Judges, and PLATT, District Judge.
CASTLE, Circuit Judge.
1
Crane Packing Company, a corporation, licensee under Patent Re. 23,937, and Beth Bernice Green (individually, as executrix of the estate of Earl J. Bullard, deceased, and as next friend of Ronald Eugene Green and Janis Leanore Green, minors), plaintiffs-appellants, brought suit against Spitfire Tool & Machine Co., Inc., defendant-appellee, for infringement of claims 1 to 4, inclusive, and 9 to 14, inclusive, of the patent.
2
Patent Re. 23,937 is a reissue of Patent No. 2,565,590 issued August 28, 1951 to Earl J. Bullard on a grinding and lapping device. It was issued February 8, 1955 on an application filed June 25, 1953.
3
Defendant's answer included assertions of invalidity of the patent and denial of infringement. The District Court did not reach the issue of infringement but found each of the patent claims in issue invalid and entered judgment for defendant. Plaintiffs appealed contending the court erred in its interpretation of the statutes relating to reissue patents, its interpretation of prior art, its interpretation of the law of aggregation, and in its failure to apply the correct criteria of invention.
4
A lapping machine is a particular type of fine grinding machine designed and intended to impart to a work piece a finely finished surface. It comprises one or more lapping surfaces, each of which is known as a lap plate, generally made of cast-iron, upon which an abrasive compound is applied. The work piece or article to be lapped is then moved over the surface of the lap plate until the desired surface is obtained on the work piece, or as nearly to the desired surface as the capabilities of the machine permit.
5
The lapping of an article causes wear and abrasion not only on the surface of the article but also on the surface of the lap plate resulting in its becoming grooved or roughened, and losing its "true" or desired surface. When this occurs the lap surface must be "dressed" or restored to its desired or "true" condition.
6
The patent in suit discloses maintenance of a true flat surface on the lap plate, or changing it from a convex to a flat, or to a concave surface, and vice-versa. A wear ring (or a plurality thereof) is placed on the surface of an annular lap plate having an inner edge around a central cavity, and an outer edge. The wear ring is adapted to hold work pieces which may be placed within the ring in a work holder. A felt pad and a pressure plate are placed over the articles to be lapped. The ring is maintained upon the lap surface by a pivot means or bearings, adjustable so that the ring may be shifted radially on the surface of the lap plate. As the lap plate is rotated, the frictional relationship between it and the ring causes the latter to rotate but not to travel with the lap since the ring is restrained from such travel by the adjustable pivot or bearings. The ring, therefore, rotates on the lap surface and by friction rotates the work holder and work within the ring. In its rotation on the lap and simultaneous rotation of the lap itself, the ring wears away the surface of the lap and maintains the desired true surface, serving to true the lap and hold the work at the same time. By moving the ring radially so that it overhangs the outer edge or the inner edge of the lap the pressure on portions of the lap surface will be made to vary. As a result a flat, a convex, or a concave surface may be produced or maintained on the lap plate, as desired. And grooves or roughness formed on the plate by pressure of articles against the abrasive material are removed as they form.
7
Claims 1 to 4, inclusive, and 9 and 10 of Patent Re. 23,937 are all claims of Bullard's 2,565,590 and remain unchanged in the reissue patent. Substantially, they cover an apparatus for forming a true surface of predetermined contour upon an article by grinding or lapping. Claims 11 to 14, inclusive, are added by the reissue. Claims 11 and 12 cover the method of preserving the flatness of a plane surface, or of changing the contour of the surface, of an annular lap to cause it to conform to a standard surface whether such surface be flat, convex or concave. Claims 13 and 14 cover an apparatus for forming a plane surface on an article.
8
The District Court in its findings of fact and conclusions of law found and concluded, inter alia, that claims 1 to 4, inclusive, and 9 and 10 are invalid for lack of invention in view of prior art, and that claims 11 to 14, inclusive, are invalid because the device of these reissue claims was on sale and in use more than one year prior to June 25, 1953, the date of the application for the reissue patent.
9
The feature of claims 1 to 4, inclusive, and 9 and 10, relied upon by plaintiffs to distinguish them from prior art and to constitute invention is a ring, resting loosely on and rotated by friction with the lap surface, which in addition to serving as a means to hold articles to be lapped may be utilized to loosely encircle, and rotate by friction, a separate work holder causing the articles to be rotated within the ring. The ring being free to rotate on the lap with a total pressure at least equal to that exerted by the articles lapped and thus by wearing the lap maintains a true lap surface during the lapping operation. The ring may be shifted radially on the lap to grind the lap to either a concave or convex form.
10
The automatic and continuous maintenance of a true surface serves to eliminate shutdown of the machine for a dressing operation with consequent loss of production, an obvious advantage in mass production industries.
11
The defendant relies on prior art from which the learned trial judge, on the basis of documentary evidence, exhibits, and the testimony of witnesses, found that it was clear that one having ordinary skill in the art would find the claimed invention obvious. This prior art included Desenberg patent 2,352,146 (1944); Hoke patent 1,536,714 (1925); Morton patent 1,691,120 (1928) and Missler (German) patent 345,443 (1921). All are grinding or lapping devices.
12
Desenberg discloses a rotatable lap, a work holder for holding the article to be lapped, a ring having a pivoted support and rotating in uniform facial contact with the lap, and by wear operating as a truing tool to automatically maintain the desired lap surface while the article is being lapped. Although the ring of Desenberg does not encircle the work or work holder, Hoke disclosed a work holder comparable to that of the claims under consideration and plaintiffs' commercial device. Hoke, utilizing opposed annular rotatable laps, discloses a work holder which is caused to rotate within a circular opening in a carrier disk by the rotation and oscillation of the circular carrier between the opposed laps.
13
Morton discloses a rotatable lap upon which a ring rests loosely and is rotated by friction with the lap surface. In this instance, although the ring is the article being lapped or ground, it is a fundamental principle of the mechanics of the art of lapping, illustrated in plaintiffs' Exhibit No. 14, that the article being lapped wears the surface of the lap. Thus the ring shown and described in Morton illustrated to anyone familiar with the basic mechanics of lapping a ring, resting loosely on and rotated by friction with the lap surface, capable of exerting a wearing action on the lap which may be utilized to automatically and continuously true the lap and maintain the desired surface, i. e., exert corrective action to offset wear, grooving or roughness caused by an article being lapped. The work holder of Hoke when placed in the ring of Morton anticipates the wear ring-work holder combination of the claims in question.
14
Missler discloses a rotatable lap utilizing a holding or restraining means disposed offset so that the articles being lapped interchangeably pass over the inner and outer rim of the lap in order to insure continuously the evenness of the lap.
15
It appears from the evidence that customers using plaintiffs' commercial device often omit using the work holder. Some articles may be lapped by being placed within the wear ring without a work holder (and the felt pad and pressure plate used therewith) or by being held on the lap outside of the wear ring, with the same function and result.
16
The findings and conclusions of the District Court in connection with reissue claims 1 to 4, inclusive, and 9 and 10 are supported by substantial evidence. The feature relied upon by plaintiffs to constitute invention is found in the combination of the truing ring of Desenberg, the loosely resting ring of Morton, the work holder of Hoke and the radial adjustment of Missler. The combination found in the above numbered claims is of elements found and demonstrated in prior art. Their adaption by Bullard resulted in an improvement but represented no more ingenuity than the work of a mechanic skilled in the art. There are no "unusual or surprising consequences from the unification of the elements here concerned" nor did Bullard's use of the features claimed "add to the sum of useful knowledge." Great Atlantic & Pacific Tea Co. v. Supermarket Equipment Corp., 340 U.S. 147, 71 S.Ct. 127, 130, 95 L.Ed. 162. The feature claimed lacks the impalpable something which distinguishes invention from simple mechanical skill.
17
It is enough to defeat a patent under 35 U.S.C.A. § 103 that from one or more related prior art patents, one having ordinary skill in the art would find the claimed invention obvious. Enterprise Ry. Equipment Co. v. Keystone Ry. Equipment Co., 7 Cir., 267 F.2d 102; Senco Products, Inc. v. Fastener Corporation, 7 Cir., 269 F.2d 33.
18
And the presumption of validity arising from the grant of a patent does not exist as against prior art not before the Patent Office. Hobbs v. Wisconsin Power & Light Company, 7 Cir., 250 F. 2d 100, 105. Of the prior art relied upon by defendant only Desenberg was before the Patent Office.
19
The District Court applied the correct criteria of invention. It did not err in holding reissue claims 1 to 4, inclusive, and 9 and 10 invalid for lack of invention.
20
Claims 11 to 14, inclusive, were held invalid under 35 U.S.C.A. § 102(b) because the device was on sale and in use more than one year prior to the filing of the reissue application. The common thread running through claims 11 to 14, inclusive, and contended by plaintiffs to constitute their novel feature, is the "overhanging" rotating wear ring which controls lap contour by overhanging one edge of the annular lap by an amount which takes into consideration the type of article being lapped, and the desired contour. The overhanging ring also smooths out irregularities in the lap and functions as a work holder or to rotate a separate work holder.
21
Plaintiffs concede that Bullard's commercial device incorporating the overhanging ring feature and embodying the other elements of claims 11 to 14, inclusive, was on sale and in public use in this country more than one year prior to the application for the reissue patent.
22
35 U.S.C.A. § 251 provides for the reissuance of a patent for the invention disclosed in the original patent "Whenever any patent is, through error without any deceptive intention, deemed wholly or partly inoperative or invalid, by reason of a defective specification or drawing, or by reason of the patentee claiming more or less than he had a right to claim in the patent * * *" provided that "No reissued patent shall be granted enlarging the scope of the claims of the original patent unless applied for within two years from the grant of the original patent" and subject to the condition that "The provisions of this title relating to applications for patent shall be applicable to applications for reissue of a patent, * * *". And 35 U.S.C.A. § 102(b) requires denial of an application for a patent if "the invention was patented or described in a printed publication in this or a foreign country or in public use or on sale in this country, more than one year prior to the date of the application for patent in the United States".
23
The language incorporating provisions of the title relating to applications in the section authorizing and governing reissue patents is an entirely new provision added by the Patent Act of 1952. It was not contained in the previous statute. (R.S. § 4916, 35 U.S.C.A.Appendix, § 64). Its scope is not limited to formal or procedural, as distinguished from substantive, matters. We agree with the District Court's conclusion that although a reissue application enlarging claims may be filed within two years from the grant of the original patent it is, nevertheless, subject to the conditions proscribed by § 102(b) which are by reference incorporated in § 251. The District Court did not err in holding § 102(b) applicable and that claims 11 to 14, inclusive, were invalid because of public use and sale of Bullard's commercial device more than one year prior to the application for the reissue patent. And such holding is harmonious with the provision of 35 U.S. C.A. § 252 that a reissue patent "to the extent that its claims are identical with the original patent, shall constitute a continuation thereof and have effect continuously from the date of the original patent". Claims 11 to 14, inclusive, are not identical with any claim of the original patent.
24
The invalidity of all of the patent claims in issue makes irrelevant any consideration of contentions relating to commercial success. Great Atlantic & Pacific Tea Co. v. Supermarket Equipment Corp., 340 U.S. 147, 71 S.Ct. 127, 95 L.Ed. 162.
25
The judgment of the District Court is affirmed.
26
Affirmed.
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J-S09010-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF : IN THE SUPERIOR COURT OF
PENNSYLVANIA, : PENNSYLVANIA
:
Appellee :
:
v. :
:
MOHAMMAD SOHAIL SALEEM, :
: No. 1097 MDA 2017
Appellant :
Appeal from the PCRA Order June 16, 2017
in the Court of Common Pleas of Lebanon County
Criminal Division at Nos.: CP-38-CR-0000565-2014
CP-38-CR-0001112-2014
BEFORE: GANTMAN, P.J., McLAUGHLIN, J., and PLATT*, J.
MEMORANDUM BY PLATT, J.: FILED MAY 01, 2018
Appellant, Mohammad Sohail Saleem, appeals pro se from the denial of
his second petition filed pursuant to the Post Conviction Relief Act (PCRA), 42
Pa.C.S.A. §§ 9541-9546, as untimely. We affirm.
We take our factual and procedural history from our review of the
certified record, and this Court’s March 28, 2017 memorandum affirming the
denial of Appellant’s first PCRA petition.
On April 21, 2015, Appellant pleaded “guilty to indecent assault and the
summary offense of harassment involving two victims. The victims were
employees of a small business owned by [Appellant].” (Commonwealth v.
Saleem, No. 645 MDA 2016, unpublished memorandum at *1 (Pa. Super.
filed Mar. 28, 2017) (footnote omitted)). After his guilty plea, the court
ordered an assessment to determine whether Appellant is a sexually violent
____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S09010-18
predator. Appellant was found to be a sexually violent predator. On June 3,
2015, following a discussion regarding possible deportation proceedings, the
trial court sentenced Appellant to not less than twenty-one months nor more
than ten years of incarceration. (See id.). Appellant filed post sentence
motions on July 31, 2015, claiming ineffective assistance of counsel and
seeking to withdraw his guilty plea.1 The trial court denied his motions on
August 4, 2015, without prejudice to Appellant seeking relief under the PCRA.
Appellant did not file a direct appeal from his sentence.
On September 3, 2015, Appellant filed a counseled first PCRA petition.
On March 24, 2016, the PCRA court conducted an evidentiary hearing, after
which it concluded that trial counsel was not ineffective, and that Appellant’s
plea was voluntarily entered, and therefore denied Appellant’s first PCRA
petition. (See N.T. PCRA Hearing, 3/24/16, at 43-44). Appellant filed a pro
se notice of appeal. After a Grazier2 hearing, the court permitted Appellant
to appeal pro se, and provided stand-by counsel. On March 28, 2017, this
Court affirmed the PCRA court’s denial of Appellant’s first petition. (See
Saleem, supra at *7-9).
____________________________________________
1 Because Appellant’s post sentence motions were not timely filed, he filed
them together with a request to file nunc pro tunc, which the court denied.
(See Order, 8/04/15).
2 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
-2-
J-S09010-18
On April 6, 2017, Appellant, pro se, filed the instant, second PCRA
petition. He filed an amended petition on May 18, 2017. On May 25, 2017,
the PCRA court issued notice of its intent to deny the petition as untimely.
(See Order, 5/25/17, at 6); Pa.R.Crim.P. 907(1). Appellant responded, and
on June 16, 2017, the court issued an order denying the petition as untimely.
This timely appeal followed.3
Appellant raises one question for our review:
I. Whether PCRA court erred by dismissing PCRA petition when
the Appellant proved that governmental interference
prevented him from asserting his innocence due to the
Commonwealth[’s] failure to provide or turn over video
evidence that could prove Appellant’s innocence?
(Appellant’s Brief, at 5) (most capitalization omitted).
Our standard of review of an order denying PCRA relief is
whether the record supports the PCRA court’s determination, and
whether the PCRA court’s determination is free of legal error. The
PCRA court’s findings will not be disturbed unless there is no
support for the findings in the certified record.
Commonwealth v. Brown, 143 A.3d 418, 420 (Pa. Super. 2016) (citations
omitted).
We begin by addressing the timeliness of Appellant’s petition.
The PCRA provides eligibility for relief in conjunction with
cognizable claims . . . and requires petitioners to comply with the
timeliness restrictions. . . . [A] PCRA petition, including a second
or subsequent petition, must be filed within one year of the date
that judgment becomes final. A judgment becomes final for
purposes of the PCRA at the conclusion of direct review, including
____________________________________________
3 Pursuant to the PCRA court’s order, Appellant filed his statement of errors
complained of on appeal on August 7, 2017. On September 19, 2017, the
court entered its opinion. See Pa.R.A.P. 1925.
-3-
J-S09010-18
discretionary review in the Supreme Court of the United States
and the Supreme Court of Pennsylvania, or at the expiration of
time for seeking the review.
It is well-settled that the PCRA’s time restrictions are
jurisdictional in nature. As such, this statutory time-bar implicates
the court’s very power to adjudicate a controversy and prohibits
a court from extending filing periods except as the statute
permits. Accordingly, the period for filing a PCRA petition is not
subject to the doctrine of equitable tolling; instead, the time for
filing a PCRA petition can be extended only by operation of one of
the statutorily enumerated exceptions to the PCRA time-bar.
The exceptions to the PCRA time-bar are found in Section
9545(b)(1)(i)-(iii) (relating to governmental interference, newly
discovered facts, and newly recognized constitutional rights), and
it is the petitioner’s burden to allege and prove that one of the
timeliness exceptions applies. Whether a petitioner has carried
his burden is a threshold inquiry that must be resolved prior to
considering the merits of any claim. . . .
Commonwealth v. Robinson, 139 A.3d 178, 185-86 (Pa. 2016) (quotation
marks and citations omitted).
Here, Appellant’s judgment of sentence became final on September 3,
2015, after he declined to file a direct appeal with this Court following denial
of his post-sentence motions. See Pa.R.A.P 903(a). Therefore, he had until
September 3, 2016, to file a timely PCRA petition. See 42 Pa.C.S.A. §
9545(b)(1) (“Any petition under this subchapter, including a second or
subsequent petition, shall be filed within one year of the date the judgment
becomes final[.]”). Because he filed the instant petition on April 6, 2017, it is
untimely on its face, and the PCRA court lacked jurisdiction to review it unless
he pleaded and proved one of the statutory exceptions to the time-bar. See
42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).
-4-
J-S09010-18
Section 9545 of the PCRA provides only three limited exceptions that
allow for review of an untimely PCRA petition:
(i) the failure to raise the claim previously was the result of
interference by government officials with the presentation of the
claim in violation of the Constitution or laws of this Commonwealth
or the Constitution or laws of the United States;
(ii) the facts upon which the claim is predicated were
unknown to the petitioner and could not have been ascertained by
the exercise of due diligence; or
(iii) the right asserted is a constitutional right that was
recognized by the Supreme Court of the United States or the
Supreme Court of Pennsylvania after the time period provided in
this section and has been held by that court to apply retroactively.
Id.
Any petition invoking an exception must “be filed within [sixty] days of
the date the claim could have been presented.” 42 Pa.C.S.A. § 9545(b)(2).
“If the [PCRA] petition is determined to be untimely, and no exception has
been pled and proven, the petition must be dismissed without a hearing
because Pennsylvania courts are without jurisdiction to consider the merits of
the petition.” Commonwealth v. Jackson, 30 A.3d 516, 519 (Pa. Super.
2011), appeal denied, 47 A.3d 845 (Pa. 2012) (citation omitted).
Here, Appellant claims that the governmental interference exception
applies. (See Appellant’s Brief, at 8-10). He asserts that the Lebanon City
Police Department possessed an exculpatory video, which the Commonwealth
was required, under Brady4, to turn over, but failed to do so. (See id.). He
____________________________________________
4 Brady v. Maryland, 373 U.S. 83 (1963).
-5-
J-S09010-18
argues that his failure to raise the claim previously was the result of the
Commonwealth not turning over this video, and therefore the governmental
interference exception applies. (See id.). We disagree.
“Although a properly plead Brady claim may fall within the
governmental interference exception, Commonwealth v. Beasley, 559 Pa.
604, 741 A.2d 1258, 1261 (1999), a petition invoking the exception must be
filed within [sixty] days of the date the claim could have been filed pursuant
to section 9545(b)(2).” Commonwealth v. Breakiron, 781 A.2d 94, 98 (Pa.
2001) (one citation omitted). In Breakiron, our Supreme Court concluded
that where the appellant “fail[ed] to offer a reasonable explanation as to why
this information, with the exercise of due diligence, could not have been
obtained earlier[,]” he failed to meet the requirements for the exemption to
the PCRA time-bar. Id. (footnote omitted).
Here, Appellant has not attempted to explain why, with the exercise of
due diligence, he could not have earlier learned of the Commonwealth’s
alleged violation of its obligation to disclose the surveillance video. (See
Appellant’s Brief, at 8-10). As the PCRA court noted, it appears that Appellant
has been aware of the existence of the surveillance video since at least
September 30, 2016, when he filed his first request for the video.5 (See PCRA
Ct. Op., at 5-7). The instant petition, filed on April 6, 2017, was well beyond
____________________________________________
5 The PCRA court also notes that, as the owner of the business where the
sexual assaults occurred and where the surveillance video was recorded,
Appellant would have known about the existence of a video surveillance
system, since well before his trial. (See PCRA Ct. Op., at 7).
-6-
J-S09010-18
the sixty-day time period after September 30, 2016, within which Appellant
must have filed his petition invoking the exception for it to apply. See 42
Pa.C.S.A. § 9545(b)(2). Thus the exception does not apply and the PCRA
court did not have jurisdiction to consider Appellant’s claim. See Jackson,
supra at 519.
In sum, we conclude Appellant has not met his burden of proving that
his untimely PCRA petition fits within one of the three exceptions to the PCRA’s
time-bar. See Robinson, supra at 185-86. Accordingly, we affirm the order
of the PCRA court.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 05/01/2018
-7-
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540 U.S. 1074
SAVASTA & CO., INC.v.GEROSA ET AL.
No. 03-523.
Supreme Court of United States.
December 8, 2003.
1
Appeal from the C. A. 2d Cir.
2
Certiorari denied. Reported below: 329 F. 3d 317.
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 00-6588
ALEXANDER CAMERON,
Plaintiff - Appellant,
versus
J. BOONE, Unit Manager; MS. ROBERTS, Counsel-
or; MS. MACER, Counselor,
Defendants - Appellees.
Appeal from the United States District Court for the Eastern Dis-
trict of Virginia, at Alexandria. James C. Cacheris, Senior Dis-
trict Judge. (CA-99-962-AM)
Submitted: October 26, 2000 Decided: November 1, 2000
Before WIDENER, MICHAEL, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Alexander Cameron, Appellant Pro Se. Pamela Anne Sargent, Assis-
tant Attorney General, Richmond, Virginia, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Cameron Alexander, a Virginia inmate, appeals the district
court’s order dismissing his 42 U.S.C.A. § 1983 (West Supp. 2000)
complaint under 28 U.S.C.A. § 1915A (West Supp. 2000). We have
reviewed the record and the district court’s opinion and find no
reversible error. Accordingly, we affirm on the reasoning of the
district court. See Cameron v. Boone, No. CA-99-962-AM (E.D. Va.
Apr. 6, 2000). We dispense with oral argument because the facts
and legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional process.
AFFIRMED
2
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985 F.2d 579
Sulkowskiv.American Medical Int'l*
NO. 92-2301
United States Court of Appeals,Eleventh Circuit.
Jan 29, 1993
1
Appeal From: M.D.Fla.
2
AFFIRMED.
*
Fed.R.App.P. 34(a); 11th Cir.R. 34-3
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April 17, 2012
JUDGMENT
The Fourteenth Court of Appeals
JOHN L. TREGRE, Appellant
NO. 14-10-01115-CV V.
HARRIS COUNTY, Appellee
____________________
This cause, an appeal from the judgment in favor of appellee, HARRIS COUNTY,
signed, was heard on the transcript of the record. We have inspected the record and find
no error in the judgment. We order the judgment of the court below AFFIRMED.
We order appellant, JOHN L. TREGRE, to pay all costs incurred in this appeal.
We further order this decision certified below for observance.
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446 P.2d 268 (1968)
OKLAHOMA ALCOHOLIC BEVERAGE CONTROL BOARD, Plaintiff-in-Error,
v.
Marcene Velma WELCH, Defendant-in-Error.
No. 41722.
Supreme Court of Oklahoma.
October 22, 1968.
Charles Nesbitt, Atty. Gen., Joseph C. Muskrat, Asst. Atty. Gen., for plaintiff in error.
John B. Doolin, of Newcombe, Redman & Doolin, Lawton, for defendant in error.
*269 DAVISON, Justice.
This is an appeal by the Oklahoma Alcoholic Beverage Control Board from a judgment of the lower court reversing an order of the Board which suspended the retail liquor license of Marcene Velma Welch for a period of fifteen days on the ground that she, by and through her employees, sold alcoholic beverages to two men who were at the time in an intoxicated condition. The Board does not contend and there is no evidence, that Welch personally knew of or participated in the sale in any way.
Welch was charged and the Board found she had violated 37 O.S. 1961, §§ 537(a) (2), 538(g) of the Oklahoma Alcoholic Beverage Control Act, and Article 1, #19, of the Rules and Regulations of the Board.
Section 537(a) (2) provides under "Enumerated prohibited acts" that "No person shall: * * * Sell, deliver or knowingly furnish alcoholic beverages to an intoxicated person. * * *"
Section 538(g) provides under "Penalties" that "Any person who shall knowingly sell, furnish or give alcoholic beverage to an * * * intoxicated person shall be guilty of a felony, and shall be" fined not to exceed $1000, or imprisoned not to exceed one year, or both fined and imprisoned.
Article 1, § 19, of the Rules and Regulations, at the time of the alleged violation, provided that if it appeared to the Board by a preponderance of the evidence, that any retail package store licensee, or an employee thereof, has, as a result of gross carelessness, failure to make due inquiry, imprudence, or a wanton disregard of obvious legislative intent, sold or permitted to be sold to any intoxicated person any alcoholic beverage, "it shall be deemed to have been done knowingly by such retail licensee, or his employees," and made such licenses subject to suspension.
The Board also relies on Article 1, § 5, of its Rules and Regulations. This Rule was the subject of our decision in Oklahoma Alcoholic Beverage Control Board v. Milam, Okl., 393 P.2d 823, and is quoted therein. The effect of the Rule is to make the acts of the employees the acts of the licensee and charge the licensee with knowledge of any unlawful acts.
The Board contends that its rule (Art. 1, §§ 5 and 19) making licensees responsible for the unlawful acts of their employees, has been approved by the Legislature and represents the law of this State by reason of the Secretary of State having transmitted the rules in question to the Legislature under our Administrative Procedures Act, 75 O.S.Supp. 1963, § 308(a), (d), (e), and the Legislature having failed to disapprove *270 the same by joint resolution within 30 days from such transmission.
The Board makes this contention for the purpose of supplying the element of "knowledge" on the part of the licensee Welch of the unlawful acts of her employees and thereby avoid the effect of our decision in the Milam case.
Title 75 O.S.Supp. 1963, § 308(a), (d) and (e), supra, of our Administrative Procedures Act, provide that copies of the Rules and Regulations filed with the Secretary of State shall be transmitted by him to the Legislature; that the Legislature by joint resolution may disapprove any rule; and that failure to disapprove a rule within 30 days shall result in the approval of the rule by the Legislature. The Board concludes that, since the subject rules were not disapproved, the rules have legislative approval and must be deemed to be the law in Oklahoma. No authority is cited in support of this conclusion. The Board insists the decision in the Milam case is not applicable, because in that case the Board's order suspending the licensee was made prior to the effective date of the above cited provisions of the Administrative Procedures Act.
It is our opinion that, regardless of what may be the legal effect of a failure of the Legislature to express its disapproval, the Rules and Regulations adopted by the Board must initially be those that the Board was empowered to adopt.
In the Milam case, supra, the Board sought to suspend the license of whole-sale liquor dealer because of certain unlawful acts of his salesmen, including payment of rebates to retail liquor store operators. The wholesale licensee had no personal knowledge of the transactions. We held that 37 O.S. 1961, § 528, providing that a license was revocable where the licensee had wilfully violated the Act, required a showing and finding that the licensee had knowingly violated the Act. We further held, for the reasons therein stated, that the Board had no authority to make Rules and Regulations which made the wholesaler's license subject to suspension solely because of the acts of his salesmen, of which he had no knowledge and which he neither authorized nor condoned. The decision in the Milam case is applicable to the present case.
In Wray v. Oklahoma Alcoholic Beverage Control Board, Okl., 442 P.2d 309, the license of a retail liquor store operator was revoked by the Board because of sales of alcoholic beverage by his employees, of which the licensee had no knowledge, to persons under 21 years of age. We held that the Milam case was applicable and controlling and upon authority thereof, and for other reasons reversed the license revocation. Therein we stated as follows:
"Legislatively provided sanctions and penalties for violations of Oklahoma Alcoholic Beverage Control Act, 37 O.S. 1961, § 501 et seq., are exclusive, and Alcoholic Beverage Control Board, under legislative authorization to promulgate rules and regulations necessary to carry out purposes of the Act, lacked authority to adopt rules which placed licensee under greater burden of responsibility than imposed by legislative enactment."
The effect of the Board's Rules and Regulations, supra, as applied to the instant situation where the licensee had no knowledge of her employee's unlawful acts, is to amend the provisions of 37 O.S. 1961, § 528, which requires wilful violation by the licensee, and make the wilful act of the employee the wilful act of the licensee.
The Legislature cannot delegate authority to an administrative board to amend or subvert a statute. Casualty Reciprocal Exchange v. Sutfin, 196 Okl. 567, 166 P.2d 434, and Application of State Board of Medical Examiners, 201 Okl. 365, 206 P.2d 211.
We can only conclude and hold that the Board has no authority to promulgate rules and regulations which make the license of a retail package store licensee subject to suspension solely because of the acts of his employees, of which he had no *271 knowledge and which he neither authorized nor condoned, without a showing and finding of wilful violation on the part of the licensee.
Affirmed.
All the Justices concur.
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77 F.3d 34
Alphonso SAMUELS, Plaintiff-Appellant,v.J. MOCKRY, G. Hewston, W. Higgins and J. Dowdle, Defendants-Appellees.
No. 534, Docket 94-2696.
United States Court of Appeals,Second Circuit.
Argued Nov. 28, 1995.Decided Feb. 20, 1996.
Mark E. Greenfield, New York City (Arthur S. Linker and David A. Cohen, Rosenman & Colin, New York City, on the brief), for Plaintiff-Appellant Alphonso Samuels.
Denise A. Hartman, Assistant Attorney General of the State of New York, Albany, New York (Peter H. Schiff, Deputy Solicitor General, and Nancy A. Spiegel, Assistant Attorney General, on the brief), for Defendants-Appellants J. Mockry, G. Hewston, W. Higgins and J. Dowdle.
Before: LUMBARD, ALTIMARI and JACOBS, Circuit Judges.
PER CURIAM:
1
Plaintiff-appellant Alphonso Samuels, an inmate in the custody of the New York Department of Correctional Services, appeals from a judgment of the United States District Court for the Northern District of New York (McCurn, J.), entered November 22, 1994, denying his motion for summary judgment and granting the defendants' motion for summary judgment dismissing Samuels's pro se complaint. Samuels's complaint alleged that the defendants placed him in a "limited privileges" prison program without affording him a hearing or giving him a statement of reasons for their action, in violation of his right to procedural due process. The district court adopted the magistrate judge's report and recommendation, which (i) found that Samuels had refused a work assignment that the prison officials had offered him and (ii) concluded that, under New York law and prison regulations, Samuels could therefore be placed in a limited privileges program without a hearing. On appeal, Samuels contends that entry of summary judgment was inappropriate because a genuine issue of material fact remains as to whether or not he refused a work assignment.
2
We vacate the order granting summary judgment for defendants and remand this case to the district court for further proceedings.
BACKGROUND
3
According to the regulations in force at Clinton Correctional Facility ("Clinton"), "all able-bodied inmates are expected to participate in work assignments ... when they are offered" and those who refuse work assignments are placed in the limited privileges program. Inmates in the limited privileges program are confined to their cells for 23 hours per day (with one hour for exercise), and have restricted access to, among other things, showers and the prison library. On or about April 21, 1989, inmate Alphonso Samuels was placed in the limited privileges program at Clinton, supposedly for having refused a work assignment, and stayed there until his transfer to Attica Correctional Facility seven months later.
4
On March 20, 1991, Samuels brought a pro se action pursuant to 42 U.S.C. § 1983 against defendants John Mockry, the Clinton education counselor; Geoffrey Hewston, a Clinton correctional officer; William Higgins, the Clinton industrial training supervisor; and James Dowdle, an instructor at Clinton. All defendants were members of the Clinton Program Committee, the body charged with assigning work to prison inmates and with placing inmates that refuse work assignments in the limited privileges program. Samuels's complaint alleged that he never refused a work assignment and was not afforded a hearing prior to being placed in the limited privileges program, and claimed that his placement therefore violated his right to procedural due process. The complaint also alleged that he was placed in the limited privileges program for "retaliatory" reasons.
5
Samuels's case was referred to Magistrate Judge Ralph W. Smith, Jr., who recommended on August 15, 1994 that the district court deny Samuels's motion for summary judgment and grant the defendants' cross-motion for summary judgment. In an order entered November 22, 1994, the district court approved and adopted the magistrate judge's report and recommendations, denied Samuels's motion for summary judgment and granted the defendants' cross-motion for summary judgment. Samuels appeals that decision.
DISCUSSION
6
A. Summary Judgment.
7
This Court reviews a district court's grant of summary judgment de novo. Giano v. Senkowski, 54 F.3d 1050, 1052 (2d Cir.1995). Summary judgment is proper if, viewing all facts of record in a light most favorable to the non-moving party, no genuine issue of material fact remains for adjudication. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-50, 106 S.Ct. 2505, 2509-11, 91 L.Ed.2d 202 (1986). On appeal "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Id. at 247-48, 106 S.Ct. at 2510 (emphasis in original). The non-movant may defeat summary judgment only by producing specific facts showing that there is a genuine issue of material fact for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). Furthermore, the non-movant " 'will have his allegations taken as true, and will receive the benefit of the doubt when his assertions conflict with those of the movant.' " Piesco v. City of New York, 933 F.2d 1149, 1154 (2d Cir.) (quoting 10 Wright, Miller & Kane, Federal Practice and Procedure § 2716 (1983)), cert. denied, 502 U.S. 921, 112 S.Ct. 331, 116 L.Ed.2d 272 (1991).
8
In one respect, we conclude that a material issue of fact was resolved erroneously in favor of the defendants rather than Samuels. The magistrate judge's Recommendation and Report states:
9
In their cross-motion, defendants have demonstrated that, during the time period at issue in this action, plaintiff had been placed in a so-called "limited privileges program" at Clinton based upon his refusal to accept a program assignment within the prison. It is well settled in this district that such confinement is administrative rather than disciplinary in nature, and that inmates who refuse to accept a program assignment can be placed in limited privileges status without being issued a misbehavior report and without a hearing.
10
(Citations omitted and emphasis added). However, Samuels's Rule 10(j) statement, to which he swore, states that he "never refused to accept an assignment considered appropriate by the Program Committee."1 In deciding whether "a reasonable jury could return a verdict" for Samuels, the magistrate judge should have accepted this sworn allegation as true. Anderson, 477 U.S. at 248, 106 S.Ct. at 2510; see also Piesco, 933 F.2d at 1154 ("We assess the record in the light most favorable to the party opposing summary judgment and draw all reasonable inferences in her favor.").
11
Although Samuels should have prevailed on this issue of fact even if it was contested, we note that the defendants offered no competent evidence to refute Samuels's contention. In support of their cross-motion for summary judgment, the defendants relied on: (a) a Rule 10(j) statement by an assistant attorney general averring that Samuels was assigned to the limited privileges program "due to his refusal to accept an assignment considered appropriate by the program committee"; (b) an affirmation by the same assistant attorney general averring that "[t]here is no dispute" that Samuels was placed in the limited privileges program "for his refusal to accept a program"; and (c) a document addressed to Samuels signed by defendant Mockry, the chairman of the Program Committee, informing him that he was being assigned to the limited privileges program for his refusal to accept a work assignment. Neither the Rule 10(j) statement nor the affirmation is direct evidence refuting Samuels's allegations, since the statements they contain are merely conclusory allegations made by a person who lacks personal knowledge of what transpired at the Program Committee meeting on April 21, 1989. The document, if delivered to Samuels, would have informed him of the reason for his placement in the limited privileges program, but no proof was offered that the document was delivered to him.
12
"[A]t the summary judgment stage the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson, 477 U.S. at 249, 106 S.Ct. at 2511. Because the defendants did not demonstrate that Samuels "fail[ed] to make a showing sufficient to establish the existence of an element essential" to his claim, Celotex, 477 U.S. at 322, 106 S.Ct. at 2552, and because the magistrate judge resolved a potentially crucial evidentiary issue against Samuels, summary judgment was improper. We therefore vacate the district court's order granting summary judgment to the defendants.
13
B. Sandin v. Connor.
14
The defendants argue that there is an alternative ground for affirming the grant of summary judgment in their favor. Days after judgment was entered in the district court, the Supreme Court handed down its decision in Sandin v. Conner, --- U.S. ----, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995), which considered whether an inmate's placement in disciplinary segregation implicates any protected liberty interest and fundamentally altered the way we go about answering that question. The defendants urge that we apply the analysis set forth in Sandin, conclude as a matter of law that Samuels had no protected liberty interest in avoiding placement in the Clinton limited privileges program, and thereby render immaterial any dispute about whether or not Samuels refused a work assignment.
15
The district court relied on cases decided using the then-determinative standard set forth in Hewitt v. Helms, 459 U.S. 460, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983), for analyzing whether a prisoner subjected to disciplinary or administrative confinement has a protected liberty interest under the Due Process Clause. Under Hewitt, a prisoner could allege a protected liberty interest where state law or regulation used " 'language of an unmistakably mandatory character' such that the incursion on liberty would not occur 'absent specified substantive predicates.' " Sandin, --- at ----, 115 S.Ct. at 2298 (quoting Hewitt, 459 U.S. at 471-72, 103 S.Ct. at 871). According to the Sandin Court, the Hewitt approach "encourage[s] prisoners to comb regulations in search of mandatory language on which to base" constitutional claims; "creates disincentives for States to codify prison management procedures" because standardized procedures may create additional liberty interests; and "has led to the involvement of federal courts in the day-to-day management of prisons, often squandering judicial resources with little offsetting benefit to anyone." Id. at ----, 115 S.Ct. at 2299. Because cases using Hewitt 's methodology "strayed from the real concerns undergirding the liberty protected by the Due Process Clause," id. at ----, 115 S.Ct. at 2300, the Sandin Court constructed a new framework for analyzing claims of prisoners (such as Samuels) who are segregated from the general prison population. The Court recognized
16
that States may under certain circumstances create liberty interests which are protected by the Due Process Clause. But these interests will be generally limited to freedom from restraint which, while not exceeding the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force, nonetheless imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.
17
Id. (citations omitted and emphasis added). Applying this test to the case before it, the Sandin Court ruled that the respondent's thirty-day segregated confinement "though concededly punitive, does not present a dramatic departure from the basic conditions of [his] indeterminate sentence." Id. at ----, 115 S.Ct. at 2301. Such a departure occurs when the "segregated confinement ... present[s] the type of atypical, significant deprivation in which a state might conceivably create a liberty interest." Id.
18
The Sandin decision applies retroactively. See Harper v. Virginia Dep't of Taxation, 509 U.S. 86, 95-97, 113 S.Ct. 2510, 2517, 125 L.Ed.2d 74 (1993) ("[A] rule of federal law, once announced and applied to the parties to the controversy, must be given full retroactive effect...."); Solem v. Stumes, 465 U.S. 638, 642, 104 S.Ct. 1338, 1341, 79 L.Ed.2d 579 (1984) ("As a rule, judicial decisions apply retroactively." (citation and quotation marks omitted)). This Court stated in Rodriguez v. Phillips, 66 F.3d 470, 480 (2d Cir.1995), that "Sandin may be read as calling into question the continuing viability of our cases holding that New York regulations afford inmates a liberty interest in remaining free from administrative segregation." It is also unclear to what extent the Sandin analysis confers a liberty interest on inmates subject to a state regulation that has been held under the Hewitt line of cases to confer no liberty interest in the first place. See Bulger v. United States Bureau of Prisons, 65 F.3d 48, 49 (5th Cir.1995) (noting that Sandin "did not instruct on the correct methodology for determining when prison regulations created a protected liberty interest"). An assessment as to whether an inmate has a protected liberty interest under Sandin, however, may require fact finding that the district court had no opportunity to do and that we are not in a position to undertake. Moreover, these questions may or may not be reached, depending on whether and when the district court resolves the fact issue (material under Hewitt, but arguably immaterial under Sandin ) of whether Samuels refused a work assignment. See Rimmer-Bey v. Brown, 62 F.3d 789, 790-91 (6th Cir.1995) ("Apart from any mandatory language in a regulation, the plaintiff also must prove that he suffered restraint which imposed an atypical and significant hardship...." (emphasis and quotation marks omitted)). We therefore decline the defendants' invitation that we decide in the first instance whether Samuels has a protected liberty interest, and remand for further consideration.
CONCLUSION
19
The judgment of the district court granting summary judgment to the defendants is vacated, and the case is remanded to the district court for further proceedings.
1
Samuels's memorandum of law opposing summary judgment, which of course was unsworn, also states that he "never refused a program and the defendants only said [he] refused a program so that they could retaliate against [him] for writing complaints against peers of the defendants."
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423 F.2d 875
UNITED STATES of America, Appellee,v.Berlin Acey ODOM, Appellant.
No. 24494.
United States Court of Appeals, Ninth Circuit.
March 24, 1970, Rehearing Denied April 21, 1970.
Peter R. Stromer (argued), Mountain View, Cal., for appellant.
David P. Curnow (argued), Asst. U.S. Atty., Wm. Matthew Byrne, Jr., U.S. Atty., Los Angeles, Cal., for appellee.
Before MERRILL, CARTER and HUFSTEDLER, Circuit Judges.
JAMES M. CARTER, Circuit Judge:
1
Appellant Odom was found guilty by a jury of violating the Dyer Act, 18 U.S.C. 2312. Odom's sole defense at trial was temporary insanity during the critical time of interstate transportation. Odom's primary claim on appeal, where he is now represented by counsel, is that he should not have been permitted to act as his own counsel at trial. We find no merit to this and other claims of error.
2
Prior to the start of the trial, and while Odom was still represented by counsel, a hearing was held before the court on the issue of Odom's competency to stand trial and to assist in his own defense. Two psychiatrists were called and testified. They were examined both by counsel for the government and for Odom, and at length by the court. The court found Odom was fully competent to stand trial and assist in his own defense.
3
On the morning trial was to start, Odom moved to discharge his appointed counsel and to act as his own counsel because '(counsel) sees the case one way and I would probably see it another and there would be a conflict.' The judge then interrogated Odom at length about the wisdom of the step he was taking. Odom indicated he knew of his constitutional right to counsel. He indicated he knew the substance of the charges against him and the defenses to those charges. Odom stated that he had represented himself on several occasions, including two felony trials with juries. On one of the felony charges he had been found not guilty. Odom indicated no present mental difficulties. He said that he was not presently insane and that he was 'all right' and 'not disturbed.' He said there had been no pressure on him to represent himself.
4
Odom's appointed counsel stated that he believed Odom was mentally capable of representing himself. He felt Odom had no mental impairment that would hinder the defense of the action. The court then granted Odom's motion to represent himself. It found that he was not suffering from mental derangement and was fully aware of the consequences of his act. The court ordered Odom's appointed counsel to be present at trial in an advisory capacity to the defendant.
5
This circuit, sitting in banc, recently considered the problem of intelligent waiver of counsel in Hodge v. United States (9 Cir. 1969), 414 F.2d 1040. In Hodge we defined 'intelligent' as meaning 'whether (a defendant) was sufficiently informed of the consequences of his choice.' p. 1042. We elaborated: 'The question before the judge was not whether the defendant was professionally capable of acting as his own lawyer. Few defendants are, and the right of self-representation is not so conditioned. The question was simply whether the defendant understood the charges against him and was fully aware of the fact that he would be on his own in a complex area where experience and professional training are greatly to be desired.' p. 1043.
6
We find the trial judge correctly assured himself that Odom was making an intelligent choice of self-representation according to the Hodge standards. The charges and defenses had been explained to Odom by the court. Odom's prior courtroom experience clearly indicated that he was aware of the burdens and possible consequences of self-representation. Odom's statements about his mental condition suggested nothing that would change the earlier determination that he was fully competent to stand trial.
7
As we reemphasized in Hodge, supra, p. 1042, a criminal defendant has the right to represent himself. Denial of an intelligent assertion of that right would clearly be error. Here the trial judge could have denied the self-representation motion only by revoking his previous finding of present mental competency. However, this would have placed the court in the anomalous position of finding a defendant incompetent for asserting a constitutional right. It also would have required immediate institutionalization for Odom. Under these circumstances, we feel the trial court acted properly.
8
Odom also attacks the voluntariness of a confession made to FBI agents. An evidentiary hearing was held with the jury absent. No evidence supports Odom's version of impropriety. The testimony of the FBI agent taking the confession was emphatic that Odom talked freely and without any signs of physical or mental strain. The court found the confession voluntary and admitted it into evidence. There was no error.
9
Finally, Odom challenges the instructions on insanity given to the jury. The instructions were based upon those approved in Sauer v. United States (9 Cir. 1957), 241 F.2d 640, cert. denied 354 U.S. 940, 77 S.Ct. 1405, 1 L.Ed.2d 1539. The Sauer test, in a case involving an insanity defense, was then and still is law in this circuit. Odom made no objection at the trial to the instructions. The record discloses that his advisory counsel participated in the setting of instructions and made no objection.
10
Ramer v. United States and Church v. United States (9 Cir.), 390 F.2d 564, was decided in banc in 1968, one year before Odom's trial. There the court refused to abandon the old Sauer rule on legal insanity because there were no defense objections to the instructions, no other definition of insanity was suggested by defense counsel and neither case was an appropriate one for reconsideration of the holding in Sauer. Since the same situation exists in the case at bar we must, as in Ramer and Church, reject the objections made for the first time on appeal to the Sauer test and to the instructions given in this case.
11
We must add that the district judge in his interrogation of the psychiatrists at the hearing on competency to stand trial, in his interrogation of Odom at the time of his waiver of his right to counsel, and through the trial, was extremely careful, patient and alert to protecting Odom's rights.
12
We find no error and the judgment is affirmed.
13
HUFSTEDLER, Circuit Judge (specially concurring):
14
I concur in all aspects of the majority opinion save one: the suggestion that the standard for competency to stand trial is identical with the standards of competency to waive counsel and to represent one's self. The comparative levels of competency required in these three situations present an extremely difficult problem, but it is a problem that need not be resolved on this appeal. I am satisfied from the record that Odom met even the most elevated of these standards.
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27 F.3d 554
NOTICE: First Circuit Local Rule 36.2(b)6 states unpublished opinions may be cited only in related cases.Marta Leyla Hernandez PINEDA, Petitioner,v.IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
No. 93-2293
United States Court of Appeals,First Circuit.
June 27, 1994
On Petition for Review of an Order of the Board of Immigration Appeals
Raymond Rivera on brief for petitioner.
Frank W. Hunger, Assistant Attorney General, Mark C. Walters, Assistant Director, Office of Immigration Litigation, and Kristen A. Giuffreda, Attorney, Civil Division, U.S. Department of Justice, Office of Immigration Litigation, on brief for respondent.
B.I.A.
AFFIRMED.
Before Selya, Cyr and Boudin, Circuit Judges.
Per Curiam.
1
Petitioner Marta Leyla Hernandez Pineda, a citizen of Nicaragua, has filed a petition for review of an order of the Board of Immigration Appeals (the Board) denying her motions to reopen and reconsider. She sought to have the Board reconsider its final decision, dated July 6, 1993, dismissing her appeal from the order of the immigration judge which denied her applications for suspension of deportation and asylum. The Board dismissed the appeal as untimely.
I.
2
Petitioner illegally entered the United States in July 1984. The Immigration and Naturalization Service (INS) issued an order to show cause on April 26, 1991, based on petitioner's failure to present herself for inspection upon entering this country. See 8 U.S.C. Sec. 1251(a)(1)(B). A hearing was held before an immigration judge. Petitioner was represented by counsel at this time. She conceded deportability and informed the immigration judge that she would apply for asylum, see 8 U.S.C.Sec. 1158, and suspension, see 8 U.S.C.Sec. 1254.
3
Accordingly, a hearing on these applications was held on January 14, 1992. Although petitioner had requested, and received, a postponement of the hearing on the ground that she was seeking new counsel, she appeared pro se at the hearing. In an oral decision, the immigration judge denied both applications. Petitioner then expressed her desire to appeal this decision to the Board. At this point, the immigration judge stated:
4
And if you decide to appeal, the appeal deadline is January 24, '92. Now I'm handing you the appeal forms which must be filed by the deadline date. And a form that you were given before, a 618 form that explains your appeal rights. Now, if you want to appeal, the fee for an appeal has to be filed here at this office. And then the appeal form has to be mailed to my office in Arlington, Virginia. And I'll give you the address. We'll find the address. I'm going to give you a summary of my decision and order and my address is listed at the top of that form. And I'm going to add our phone number there, too. Now if you hire a lawyer to help you with the appeal, the lawyer needs to fill out the gold appearance form.
5
Administrative Record, at 123-24 (emphasis added).
6
On January 22, 1992, petitioner asked for an extension of time to file her appeal. She was notified of the denial of her request on January 24th. She then used next-day mail to send her appeal. However, her documents were returned to her on January 27th because she had not used the proper appeal forms. By this time, petitioner had retained counsel. In March 1992, he filed an appeal using the correct forms, but had not made out the money order for the fee to the right entity. The appeal was perfected in April. After receiving several extensions of time, petitioner filed her brief in support of her appeal in October 1992.
7
On July 6, 1993, the Board issued its order dismissing petitioner's appeal as untimely. The motions for reopening and reconsideration ensued. Petitioner argued that the Board had made an error in its decision. Specifically, petitioner claimed that, at the hearing, she had not been informed that she was required to use specific forms to file an appeal. She acknowledged that she had been told of the January 24, 1992 deadline and asserted that by express-mailing her appeal on the 24th, she had appealed by the deadline. She also argued that she had been misinformed by the local INS office concerning to whom the money order should be made payable. Further, she pointed out that when her appeal was returned to her on January 27th, she was not told by anyone that her appeal had not been perfected according to the regulations.
8
She next asserted that to reject her appeal which had been "timely appealed but untimely filed," violated due process. That is, she went on, she should not be penalized when she had "fully complied" with the instructions given to her. Finally, petitioner maintained that the immigration judge violated due process when she failed to tell petitioner about the correct forms even though the immigration judge knew that petitioner was proceeding without counsel.
9
The Board, in a per curiam order, denied the motion. As for the request for reconsideration, it re-examined its decision in light of petitioner's arguments. It first pointed out that the appeal was mailed, using next-day delivery, on the day it was due. Next, the Board stated that the record revealed that the immigration judge had, in fact, handed the proper application forms to petitioner. Further, the immigration judge had given petitioner "explicit instructions" concerning when and where the form should be filed and where the fee should be paid. Next, the Board considered the request for reopening. It rejected it out of hand, though, because petitioner had failed to submit "new, previously unavailable evidence in support of her motion...." Administrative Record, at 2.
II.
10
In determining motions to reopen and reconsider, the Board is exercising "discretionary authority." 1 C. Gordon & S. Mailman, Immigration Law and Procedure Sec. 305[a], at 3-68 (rev. ed. 1993) (footnote omitted). "In reviewing a discretionary decision of the Board, we determine only whether the decision was arbitrary, capricious, or an abuse of discretion." Martinez v. I.N.S., 970 F.2d 973, 974 (1st Cir. 1992); LeBlanc v. I.N.S., 715 F.2d 685, 693 (1st Cir. 1983) (court will uphold discretionary action of the Board unless it had no rational explanation, did not follow established policies, or was based on impermissible grounds such as race discrimination). As for the Board's findings of fact, we review them under the "substantial evidence standard." Martinez, 970 F.2d at 974. As set forth in 8 U.S.C. Sec. 1105a(a)(4), "findings of fact, if supported by reasonable, substantial, and probative evidence on the record considered as a whole, shall be conclusive.... "
A. Motion to Reconsider
11
The Board found, as matters of fact, that petitioner had been given the appeal forms by the immigration judge and had been told where and when to file them. There is no question that the record supports these findings. The immigration judge announced, at the end of the hearing, that she was handing the forms to petitioner. She then explained that the fee was to be paid at the immigration office and the appeal forms sent to the immigration judge's office in Virginia. In light of such clear record evidence, the Board had the authority to reject petitioner's contention that she never received the forms.
12
Further, the Board's finding that the appeal was filed late also is supported by substantial evidence. Petitioner argues that January 24th was not the day the appeal was due. Rather, she maintains that she had 13 days (rather than 10) in which to appeal. Thus, the return, on January 27th, of petitioner's appeal materials indicates that her appeal must have arrived within the 13-day period. Petitioner misreads the regulation; the longer period in which to file an appeal applies when the decision of the immigration judge is mailed, not when the appeal is mailed. See 8 C.F.R. Sec. 3.38(b); Da Cruz v. I.N.S., 4 F.3d 721, 722 (9th Cir. 1993) (where decision of immigration judge was mailed, petitioner had 13 days to file an appeal).
13
Based on the foregoing, there is no question that the Board did not abuse its discretion in denying petitioner's motion to reconsider. The facts establish that her appeal was late. Where an appeal is not taken within the 10-day period, the right to appeal is lost. Da Cruz, 4 F.3d at 722; Matter of G.Z., 5 I & N Dec. 295 (1953); 1 Immigration Law and Procedure, Sec. 3.05[a], at 3-54.
B. The Motion to Reopen
14
Motions to reopen are disfavored and a petitioner bears a heavy burden in showing entitlement to this relief. I.N.S. v. Abudu, 485 U.S. 94, 107, 110 (1988). Given this, "the Board is to be accorded a great deal of leeway in exercising its authority." LeBlanc, 715 F.2d at 689. Under 8 C.F.R. Sec. 3.2, the Board is prohibited from reopening a proceeding "unless it appears to the Board that evidence sought to be offered is material and was not available and could not have been discovered or presented at the former hearing...." Similarly, 8 C.F.R. Sec. 3.8(a) states that "[m]otions to reopen shall state the new facts to be proved at the reopened hearing.... "
15
Petitioner failed to meet the basic requirement that she present "new facts" that previously were "not available." First, petitioner knew that the appeal was to be filed by January 24th. Second, the "fact" that the notice of appeal was late was established as early as January 24, 1992 when petitioner mailed her appeal papers on the day the appeal was due. Her argument that she did not know that her appeal was late because the INS continued to process her appeal after January 24th is not a "fact." The immigration judge had made clear when to file an appeal and her lack of authority to grant any extensions of time. As a result, we find that the Board did not abuse its discretion in refusing to reopen the proceeding to allow petitioner's late-filed appeal to proceed. See Da Cruz, 4 F.3d at 722 (Board may not reopen a case "solely to allow a late appeal"); Matter of D., 5 I & N Dec 520, 521 (1953) (same).
C. Due Process Violation
16
Petitioner maintains that by not informing her that her appeal was late and by continuing to process the appeal during the ensuing year and a half, the Board violated her procedural due process rights. She characterizes the Board as having made an "abrupt change" when it dismissed her appeal as late on July 6, 1993. This change, she goes on, deprived her of the chance to "effectively" present her case.
17
To establish a due process violation, petitioner must "demonstrate prejudice which implicates the fundamental fairness of the proceeding." See Michelson v. I.N.S., 897 F.2d 465, 468 (10th Cir. 1990). Petitioner's argument is that by permitting her appeal to proceed, the Board's action in "summarily" dismissing it was so arbitrary as to constitute constitutional error. We do not agree. The cases petitioner cites in support of her argument involved challenges to the failure of the INS to follow its own rules and regulations, see Montilla v. I.N.S., 926 F.2d 162, 166 (2d Cir. 1991), challenges to specific regulations, see Toquero v. I.N.S., 956 F.2d 193, 196 (9th Cir. 1992), or challenges to the sufficiency of the procedures used in a specific hearing, see Landon v. Plasencia, 459 U.S. 21, 36-37 (1982).
18
In contrast, petitioner complains here that in following the applicable regulation concerning the filing of timely appeals, the Board violated her due process rights. Although it would have been better if the Board had notified petitioner earlier in the appeals process that her appeal was late, it was not constitutional error to deny the motions to reopen and reconsider.
III.
19
Because this petition presents no substantial question, we summarily affirm the decision of the Board. See 1st Cir. Rule 27.1.
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981 F.2d 1200
UNITED STATES of America, Plaintiff-Appellee,v.Martin DAYTON, Defendant-Appellant.
No. 91-5838.
United States Court of Appeals,Eleventh Circuit.
Jan. 26, 1993.
Stephen J. Goldstein, Miami, FL, for defendant-appellant.
Dexter Lehtinen, U.S. Atty., Laura W. Bonn, Harriett Galvin, Linda Collins Hertz, Miami, FL, for plaintiff-appellee.
Appeal from the United States District Court for the Southern District of Florida.
Before TJOFLAT, Chief Judge, EDMONDSON, Circuit Judge, and DYER, Senior Circuit Judge.
DYER, Senior Circuit Judge:
1
Martin Dayton was convicted of conspiracy and mail fraud. His conviction was affirmed by this court in an unpublished per curiam opinion. United States v. Dayton and Sayegh, 869 F.2d 1500 (1989). Dayton is presently appealing the denial of a motion for a new trial based upon newly discovered evidence pursuant to Rule 33, Fed.R.Crim.P. We review the district court's decision that it lacked jurisdiction to consider the motion, which it found to be untimely filed. Based on our interpretation of Rule 33, and relying on Harrison v. United States, 191 F.2d 874 (5th Cir.1951) and United States v. Granza, 427 F.2d 184 (5th Cir.1970) as controlling authority, we find that the motion was timely filed, and we REVERSE.
2
The government has raised as a separate issue, that if we find the motion was timely filed, we should determine that Dayton's motion lacks merit because it fails to meet any of the criteria for newly discovered evidence pursuant to Rule 33. We decline to rule on the merits of the motion which the district court has not yet considered. Therefore, we REMAND this case for an evidentiary hearing on the motion for a new trial.
Background
3
A jury found Dayton guilty for his role in a conspiracy to defraud an insurance company. The scheme was set up by the parents of a burn victim to collect on a fraudulent claim. In Dayton's capacity as a medical doctor, he prepared a medical report in 1984 regarding the girl's injury. Dayton's participation facilitated the scam by the patient's parents to collect on an insurance claim for a 1982 injury even though the girl's burn was later found to be the result of a 1978 accident. A settlement amount of $100,000 had already been collected by the Sayeghs for the 1978 burn accident. Dayton now relies on allegedly newly discovered evidence to support his defense that there were two different girls with burn injuries, rather than one girl and a fraudulent claim for a second burn injury.
4
The date of Dayton's conviction and sentencing was November 14, 1986. Dayton moved for a new trial on March 19, 1991, less than two years from the date the appeal mandate was returned on March 21, 1989, but more than two years from the original judgment of conviction.
Discussion
5
Rule 33, Fed.R.Crim.P., sets the time limit for filing a motion for a new trial on the ground of newly discovered evidence. "[A motion] ... may be made only before or within two years after final judgment, but if an appeal is pending, the court may grant the motion only on remand of the case."
6
The language of Rule 33 to which the parties attach divergent interpretations is the meaning of "final judgment." Dayton argues that the two-year period begins to run upon the issuance of the mandate by the court of appeals, which is the final judgment in a criminal case in the context of Rule 33. The government argues that a motion must be filed within two years of the original judgment of conviction. We agree with Dayton and reject the government's interpretation of Rule 33.
7
The district court's ruling that the motion for a new trial was untimely was based on its reliance on United States v. Cross, 928 F.2d 1030, 1053 (11th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 594, 116 L.Ed.2d 618 (1991). In Cross, the court, by a footnote, commented on Rule 33 in connection with Cross' argument that a government witness had recanted his trial testimony. Cross did not file a Rule 33 motion, and the matter was clearly not an issue relevant to his appeal. The court made an observation in reference to Cross' failure to file a motion based on newly discovered evidence, that the two-year period had expired. "Cross was sentenced on May 16, 1986 and, therefore, would have had to file his motion no later than May 16, 1988." Id. n. 75. The Cross court did not consider ruling on the merits of a motion based on newly discovered evidence, and merely noted that the time was foreclosed anyway.
8
The government concedes that the comments made in Cross concerning the time within which Cross would have had to file a motion for a new trial are dicta. Thus, the gratuitous comments are not determinative of the meaning of "final judgment" as related to the time limit in Rule 33, which is the issue presented in this case, but was not presented in Cross. See Great Lakes Dredge & Dock Co. v. Tanker Robert Watt Miller, 957 F.2d 1575, 1578 (11th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 484, 121 L.Ed.2d 388 (1992) (explaining that dicta is neither law of the case nor binding precedent).
9
The issue presented here has been resolved in a firmly-established body of caselaw, which originated in our circuit in Harrison v. United States, 191 F.2d 874 (5th Cir.1951)1, and has been followed without exception by this circuit and every other circuit which has addressed the issue. See Smith v. United States, 283 F.2d 607, 610 (D.C.Cir.1960), cert. denied, 364 U.S. 938, 81 S.Ct. 387, 5 L.Ed.2d 369 (1961); Vega Pelegrina v. United States, 601 F.2d 18, 19 n. 1 (1st Cir.1979); United States v. Gross, 614 F.2d 365, 366 n. 2 (3rd Cir.), cert. denied, 447 U.S. 925, 100 S.Ct. 3019, 65 L.Ed.2d 1118 (1980); United States v. Leibowitz, 919 F.2d 482, 483 (7th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 1428, 113 L.Ed.2d 480 (1991); United States v. Spector, 888 F.2d 583, 584 (8th Cir.1989); United States v. Cook, 705 F.2d 350, 351 (9th Cir.1983); Casias v. United States, 337 F.2d 354, 356 (10th Cir.1964). No circuit has ruled to the contrary.
10
In Harrison, a Rule 33 motion was filed by the appellant and was considered by the district court after the appellate court had affirmed Harrison's conviction. The Harrison court stated that the distinction in Rule 33 in the language "after final judgment" and "after verdict or finding of guilty" is significant and that "final judgment" includes the mandate of affirmance. Harrison, 191 F.2d at 876. The Fifth Circuit, our predecessor court, explicitly stated this conclusive interpretation of Rule 33 in United States v. Granza, 427 F.2d 184, 185 (1970) (per curiam), by noting: "[w]hen a conviction is appealed, a motion for a new trial based on newly discovered evidence may only be made before or within two years after the issuance of the mandate of affirmance by the appellate court." Id. at n. 3. The time limit of Rule 33 was not discussed further in Granza other than the footnote 3 statement, and Harrison was cited as the controlling authority.
11
However, the government argues that the cases which have considered Rule 33 time limits should be analyzed, criticized and rejected as wrongly decided. The government submits that the Harrison court's statement that "final judgment includes the mandate of affirmance" is dicta, and that the Granza court blindly misapplied the statement as a settled matter of law. The government seeks to persuade this court to abandon this established understanding of the time limit because that interpretation is contrary to the intended policy of Rule 33. We are urged by the government to look at Harrison anew, and then to correct the mistake of Granza based on the court's misinterpretation of its own decision in Harrison.
12
The government's arguments are based, in part, on the history of the rule changes leading to the adoption of the present version of Rule 33, and also on policy concerns of staleness of evidence in long-delayed, post-appeal proceedings. This position suggests that the proper interpretation is to limit the defendant to two years from the date of conviction to bring a Rule 33 motion. The government argues that is what the drafters of Rule 33 originally intended.
13
However, at this point in time, we are confronted with a principle which has been accepted as the law and relied upon as such to provide continuity in judicial application. The interpretation of the term "final judgment" in Rule 33 when an appeal is filed is that the time runs from the return of the mandate after a criminal conviction has been affirmed. In well-developed, creative arguments, the government urges us to change the firmly settled law because the other courts failed to correctly apply legislative history and logical analysis in considering Rule 33, and, according to the government's view, reached the wrong conclusion.
14
Contrary to the government's position, we place greater significance on the fact that neither Congress nor the Supreme Court has intervened to "correct" this presumably "misguided" analysis applied in the cases which have reached the same conclusion as Harrison and Granza. See Johnson v. Transportation Agency, Santa Clara, Calif., 480 U.S. 616, 629 n. 7, 107 S.Ct. 1442, 1450 n. 7, 94 L.Ed.2d 615 (1987). As noted in Johnson, the court may assume that its interpretation was correct when "Congress has not amended the statute to reject [the court's] construction." Id. Nothing presented in the government's arguments has persuaded us not to apply the controlling authority of the law which is set forth in prior decisions to interpret Rule 33.
Conclusion
15
The motion for a new trial pursuant to Rule 33, Fed.R.Crim.P. which was filed by Dayton within two years of the return of the mandate of the appellate court was timely filed. Based on the foregoing discussion, we REVERSE the district court's decision which denied Dayton's motion for a new trial for lack of jurisdiction. We REMAND this case for an evidentiary hearing on the motion for a new trial pursuant to Fed.R.Crim.P. 33.
16
REVERSED and REMANDED.
1
The Eleventh Circuit, in the en banc decision Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981), adopted as precedent decisions of the former Fifth Circuit rendered prior to October 1, 1981
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73 F.3d 169
Robert Earl O'NEAL, II, Appellant,v.Michael BOWERSOX, Appellee.
Nos. 95-3986, 95-3987.
United States Court of Appeals,Eighth Circuit.
Submitted Nov. 30, 1995.Decided Dec. 1, 1995.Order Denying Rehearing, RehearingEn Banc, and Stay of ExecutionDec. 5, 1995.
Timothy K. Kellett and Michael J. Gorla, St. Louis, Missouri, for appellant.
Michael J. Spillane, Assistant Attorney General, Jefferson City, Missouri, for appellee.
Before BOWMAN, MAGILL, and HANSEN, Circuit Judges.
PER CURIAM.
1
On November 29, 1995, the District Court1 denied O'Neal's second petition for a writ of habeas corpus. This is a death penalty case and execution is set for 12:01 a.m. on December 6, 1995. On November 30, 1995, the District Court granted O'Neal's application for a certificate of probable cause and his motion for a stay of execution pending disposition of his appeal, which we now have before us. The state appeals the stay order entered by the District Court.
2
O'Neal's present habeas petition presents only one ground for relief not raised in his first petition: an alleged Brady violation. The District Court thoroughly considered this claim and concluded that it constitutes an abuse of the writ because O'Neal has failed to show why he could not have obtained the factual basis of the claim prior to filing his first petition. The Court further concluded that even if O'Neal could show that his new claim was not an abuse of the writ, the claim in any event lacks merit because there is no reasonable probability that the result of O'Neal's criminal trial would have been different had the evidence been disclosed.
3
Having reviewed the materials that have been submitted to the Court by the parties, we are satisfied that the District Court ruled correctly in denying O'Neal's second habeas petition. The order of the District Court is affirmed on the basis of that court's well-reasoned opinion and the stay of execution is vacated.
AMENDED ORDER
4
Before RICHARD S. ARNOLD, Chief Judge, and McMILLIAN, FAGG, BOWMAN, WOLLMAN, MAGILL, BEAM, LOKEN, HANSEN, MORRIS S. ARNOLD and MURPHY, Circuit Judges.
5
Appellant O'Neal's petition for rehearing by panel is denied. Appellant O'Neal's suggestion for rehearing en banc is also denied. Appellant O'Neal's motion for stay of execution of a sentence of death is denied.
6
IT IS SO ORDERED.
7
RICHARD S. ARNOLD, C.J., and McMILLIAN, J., would grant the suggestion for rehearing and would grant a stay of execution.
8
RICHARD S. ARNOLD, C.J. separately dissents, with which McMILLIAN, J., joins.
9
LOKEN, J., took no part in the vote on the suggestion for rehearing en banc and the motion for stay of execution.
10
RICHARD S. ARNOLD, Chief Judge, dissenting, joined by McMILLIAN, Circuit Judge.
11
I vote to grant the suggestion for rehearing en banc. I also vote to grant the motion for stay of execution until final disposition of the instant appeals in this Court.
12
This is a Brady case. The petitioner, Robert Earl O'Neal II, asked the prosecution, before his trial in the state court, whether any of the State's witnesses had a criminal record. The State said no. This was not a correct answer. In fact, one of the State's two key eyewitnesses, Correctional Officer John Maylee, had been convicted of three felonies. In other words, the State of Missouri broke the law in this case. In fact, it broke the highest law--the Constitution of the United States.
13
The District Court dismissed this claim, asserted by O'Neal's second habeas petition, as abusive. The claim was not alleged in O'Neal's first habeas petition. So the question is whether O'Neal can show cause for and prejudice resulting from this omission. The District Court held, on the issue of cause, that "O'Neal has failed to explain why he could not have obtained the factual basis of his claim prior to filing the first petition by either questioning a witness or reviewing public records." Robert Earl O'Neal, II v. Michael Bowersox, No. 4:95CV02140 GFG, slip op. 5 (E.D.Mo., November 29, 1995). A panel of this Court has agreed that "O'Neal has failed to show why he could not have obtained the factual basis of the claim prior to filing his first petition." Robert Earl O'Neal, II v. Michael Bowersox, 73 F.3d 169, 170 (8th Cir.1995) (per curiam).
14
I believe these statements are both true. O'Neal's lawyers could have obtained the information long ago either by interviewing Officer Maylee, which is what counsel for Lloyd Schlup, a co-defendant, did, or by searching the public record. (The prosecution also took neither of those steps.) But the law places no such duty on defense counsel. A defense lawyer who asks for this sort of potentially helpful evidence should be entitled to rely on the accuracy of the State's response. He should not be required to behave as if the prosecuting attorney cannot be trusted. Failure to reveal exculpatory evidence in violation of Brady is itself "cause" for present purposes. It is an " 'objective factor external to the defense [that] impeded counsel's efforts' to raise the claim...." McCleskey v. Zant, 499 U.S. 467, 493, 111 S.Ct. 1454, 1470, 113 L.Ed.2d 517 (1991), quoting Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 2645-46, 91 L.Ed.2d 397 (1986). We so held in Fairchild v. Lockhart, 979 F.2d 636, 640 (8th Cir.1992) (Magill, J.), cert. denied, --- U.S. ----, 113 S.Ct. 3051, 125 L.Ed.2d 735 (1993) (subsequent history omitted). Accord, 979 F.2d at 641, 642 (Arnold, C.J., concurring). In holding otherwise, the panel has departed from a prior panel opinion, which is grounds for rehearing en banc. 8TH CIR.R. 35A(a).
15
But what about "prejudice"? Is there "a reasonable likelihood that, if the withheld evidence had been introduced at trial, the verdict would have been different"? 979 F.2d at 642 (concurring opinion). Or, as the Supreme Court has most recently put it, could the undisclosed evidence "reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict"? Kyles v. Whitley, --- U.S. ----, ----, 115 S.Ct. 1555, 1566, 131 L.Ed.2d 490 (1995). I frankly do not know. I do not know how anyone could know without reading the transcript of O'Neal's trial. The withheld material relates to a witness's credibility, I concede, and not directly to O'Neal's guilt or innocence, but credibility of eyewitnesses (officers vs. inmates) seems to be what this trial was about. O'Neal killed Arthur Dade, but he said he acted in self-defense, and the eyewitnesses told different stories on that issue. The State thought criminal records were important enough to use to impeach O'Neal's witnesses. At the very least, the suggestion for rehearing en banc presents a persuasive theory of Brady prejudice. See Suggestion, pp. 8-13.
16
I have not read the trial transcript. The Suggestion for Rehearing En Banc arrived in my chambers by FAX at about 11 o'clock this morning, Monday, December 4, 1995. A call to our Clerk's Office, made before noon, revealed that the transcript was lodged with the Clerk of the District Court. At my request, the transcript has been sent to and is now (this is being written at 3:30 p.m.) in the Clerk's Office of this Court. The transcript is hundreds of pages long. It cannot get from St. Louis to Little Rock (where I now am) before tomorrow. The execution is set for a little more than 32 hours from now. I do not believe it would be responsible for me to order the transcript to be sent to me now. The Supreme Court might want to see it. But in the meantime, I decline to vote to send Mr. O'Neal to his death before someone, either on this Court or the Supreme Court, has read the transcript with O'Neal's Brady claim in mind.
17
I would stay this execution pending rehearing by this Court en banc.
1
The HONORABLE GEORGE F. GUNN, JR., United States District Judge for the Eastern District of Missouri
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Order entered April 6, 2020
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-20-00143-CV
THEODORE SIMMONS, Appellant
V.
MIDLAND FUNDING, LLC, Appellee
On Appeal from the County Court at Law No. 3
Dallas County, Texas
Trial Court Cause No. CC-19-01681-C
ORDER
Before the Court is appellant’s April 1, 2020 motion to compel the filing of
the supplemental clerk’s records he requested on March 12 and March 16, 2020.
We GRANT the motion TO THE EXTENT THAT we ORDER Dallas County
Clerk John. F. Warren to file the supplemental clerk’s records no later than April
17, 2020. If any of the items appellant has requested cannot be located or do not
exist, Mr. Warren shall state so in writing.
We DIRECT the Clerk of the Court to send a copy of this order to Mr.
Warren and the parties.
/s/ ROBERT D. BURNS, III
CHIEF JUSTICE
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Order Michigan Supreme Court
Lansing, Michigan
January 30, 2008 Clifford W. Taylor,
Chief Justice
Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
135288(19) Robert P. Young, Jr.
Stephen J. Markman,
Justices
WILLIAM SIM SPENCER, #384851,
Plaintiff-Appellant,
v SC: 135288
CoA: 281223
DEPARTMENT OF CORRECTIONS,
Defendant-Appellee.
___________________________________
On order of the Chief Justice, the motion for reconsideration of the order of
January 8, 2008 is GRANTED. The order of January 8, 2008 is amended to read as
follows:
“On order of the Chief Justice, plaintiff-appellant having failed to
refile his pleadings as directed by the order of November 20, 2007, the
Clerk of the Court is directed to close this file.”
I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
January 30, 2008 _________________________________________
Clerk
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144 Ariz. 89 (1985)
695 P.2d 1127
In re the MARRIAGE OF John T. GRAY, Petitioner-Appellee, Enthus Ann Gray, Respondent-Appellant.
No. 17829-PR.
Supreme Court of Arizona, En Banc.
February 20, 1985.
*90 Lowell A. Jensen, Clarkdale, for petitioner-appellee.
Dale L. Williams, Camp Verde, for respondent-appellant.
HAYS, Justice.
Enthus Ann Chance (formerly Enthus Ann Gray) petitions this court to review a decision of the court of appeals ordering dismissal of her appeal on grounds of untimeliness. In re Gray v. Gray (1984) [No. 1 CA-CIV 7856, filed Sept. 11, 1984]. We have jurisdiction pursuant to Ariz. Const. art. 6, § 5(3), A.R.S. § 12-120.24 and 17A A.R.S. Civil Appellate Proc. Rules, Rule 23. The opinion of the court of appeals is vacated.
We address only one issue: Is payment of the record preparation fee, required by A.R.S. § 12-2107, a condition precedent to the clerk of a superior court filing a notice of appeal? We hold it is not.
The facts follow. The trial court entered judgment against Enthus Ann Chance on May 3, 1984. She had 30 days in which to file notice of appeal. 17A A.R.S. Civil Appellate Proc. Rules, Rule 9(a). Her notice of appeal was received by the clerk of Yavapai County Superior Court on or before the 30 days expired, but her notice of appeal was not accompanied by the required $40 preparation fee. A.R.S. § 12-2107 (costs on appeal). After a request by the clerk of the superior court, petitioner promptly paid the $40 fee. On that same day (June 7, 1984), the clerk filed petitioner's notice of appeal. This filing, however, was three days after the time for appeal had expired (June 4, 1984).
The court of appeals, sua sponte, entered an order dismissing petitioner's appeal as untimely. The court cited as authority Ariz. Dept. of Economic Security v. Hall, 120 Ariz. 514, 586 P.2d 1326 (App. 1978). In Hall, the court of appeals held that a superior court clerk could properly refuse to file a notice of appeal tendered without contemporaneous payment of this preparation fee. The court reasoned that if payment of this fee is a condition precedent to filing a notice of appeal, then any payment after the time for appeal had run would result in an untimely appeal even though the clerk had received the proper pleading within the statutory period.
We disagree with Hall and note that it never came to this court for review. Certainly, the timely filing of a notice of appeal is a jurisdictional prerequisite to appellate review. Korens v. Arizona Dept. of Economic Security, 129 Ariz. 426, *91 427, 631 P.2d 581, 582 (App. 1981). We do not believe, however, that payment of a record preparation fee should be a prerequisite to filing a notice of appeal.
The preparation fee, required by A.R.S. § 12-2107, pays for preparing the trial court record for appellate review. See 17A A.R.S. Civil Appellate Proc. Rules, Rule 11(a) (Composition of Record on Appeal; Transmission of Record). It is not a filing fee charged by the clerk for noting receipt of the notice of appeal. Consequently, it seems a contortion to reason that payment of the fee to prepare the record for appeal is a prerequisite to filing a notice of intent to appeal.
Requiring timely filing of a notice of appeal serves two important functions: First, it gives warning to the appellee that the judgment is not final. Second, it serves to bar tardy appeals. Barassi v. Matison, 130 Ariz. 418, 421, 636 P.2d 1200, 1203 (1981). Here, we believe that both of those functions were served. On May 31, 1981 petitioner mailed notices of appeal to both the clerk of Yavapai County Superior Court and to respondent. The time for filing notice of appeal did not expire until after June 4, 1984. We conclude that both the superior court and respondent were aware, within the statutory period, that petitioner intended to appeal. There is, therefore, no possibility that respondent may have relied, to his detriment, upon the trial court's judgment. Similarly, the appeal was not so tardy that it should be barred on those grounds.
Why, then, would Hall bar petitioner from her appeal? The policy of Hall is to insure that the $40 record preparation fee is promptly paid. According to Hall, until this fee is paid, no notice of appeal may be filed. However good the policy of insuring prompt payment of fees, it must be balanced against the price of dismissing potentially well-founded appeals. The right to appeal is remedial and, where expressly given, the rule is to uphold it, if possible. Sears v. Walker, 127 Ariz. 432, 436, 621 P.2d 938, 942 (1980); Davis v. Campbell, 24 Ariz. 77, 80, 206 P. 1078, 1079 (1922).
Nowhere in A.R.S. § 12-2107 do we find any authority that authorizes a clerk of the superior court to condition his or her acceptance of a notice of appeal upon prepayment of this preparation fee. In fact, the statute supports the opposite view. A.R.S. § 12-2107 provides:
The appellant in a civil action appealed to the court of appeals or the supreme court, as the case may be, shall upon filing the notice of the appeal pay to the clerk of the superior court from which the action is appealed a preparation fee of forty dollars. If an appellee files a cross appeal in the same case a preparation fee of forty dollars shall be paid to the clerk of the superior court. (Emphasis added.)
It is a rule of statutory construction that clear language in a statute is given its usual meaning unless impossible or absurd consequences would result. Balestrieri v. Hartford Accident & Indemnity Insurance Co., 112 Ariz. 160, 163, 540 P.2d 126, 129 (1975). In this statute, the word "upon" suggests that notice of appeal must first be filed and then payment of the preparation fee is required. Cf. Hays v. The Arizona Corporation Comm'n, 99 Ariz. 358, 361, 409 P.2d 282, 284 (1965) ("upon" does not necessarily imply immediacy but can imply within a reasonable time thereafter); Webster's New International Dictionary (3rd ed. 1965) (definition of "upon" "immediately following on: very soon after").
Parissi v. Telechron, 349 U.S. 46, 75 S.Ct. 577, 99 L.Ed. 867 (1955), is factually similar to the case at bench. In Parissi, Anthony Parissi inadvertently failed to pay a $5 fee required to be paid "upon the filing" of the notice of appeal. Id. The clerk refused to file the notice of appeal until he received the filing fee. By the time the $5 was paid the period for appeal had run. Id. The Supreme Court held that the clerk of the court's receipt of the Parissi notice of appeal, within the 30-day period for appeal, was sufficient, despite the absence of the filing fee. Id.
*92 We hold that the record preparation fee required by A.R.S. § 12-2107 shall be paid within a reasonable time after notice of appeal has been filed. Failure to pay this fee within such reasonable time can and should result in sanctions. We limit this holding to the record preparation fee required by A.R.S. § 12-2107. Insofar as it conflicts with this opinion, we overrule Ariz. Dept. of Economic Security v. Hall, supra. We vacate the opinion and the order of the court of appeals and reinstate petitioner's appeal.
GORDON, V.C.J., and CAMERON and FELDMAN, JJ., concur.
HOLOHAN, Chief Justice, dissenting.
The clear language of A.R.S. § 12-2107 appears to me to require that the notice of appeal and preparation fee be filed simultaneously. There is no authority in the statute for the clerk to extend credit when the notice of appeal is filed. I agree with the Court of Appeals' decision in Dept. of Economic Security v. Hall, 120 Ariz. 514, 586 P.2d 1326 (App. 1978).
The decision by the majority has frustrated the purpose of the statute which is to have the appellant pay at least a small part of the expense associated with the preparation of an appellate record. Today's decision places the clerk of the superior court in the unhappy position of being in the collection business while the appellate courts of this state decide on the famous "case by case" method what is a reasonable time within which to pay the preparation fee.
I dissent.
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559 F.2d 830
182 U.S.App.D.C. 209
BASIC MEDIA, LTD., Petitioner,v.FEDERAL COMMUNICATIONS COMMISSION and United States ofAmerica, Respondents, Gaffney BroadcastingCompany, Intervenor.BASIC MEDIA, LTD., Appellant,v.FEDERAL COMMUNICATIONS COMMISSION, Appellee.BASIC MEDIA, LTD., Petitioner,v.FEDERAL COMMUNICATIONS COMMISSION and United States ofAmerica, Respondents.
Nos. 76-1271, 76-1513 and 76-1514.
United States Court of Appeals,District of Columbia Circuit.
Argued April 1, 1977.Decided June 8, 1977.
Norman E. Jorgensen, Washington, D. C., for petitioner.
Julian Rush, Counsel, F. C. C., Washington, D. C., for respondents.
Werner K. Hartenberger, Gen. Counsel, Daniel M. Armstrong, Associate Gen. Counsel, Richard J. Bodorff, Counsel, F. C. C., and Edward E. Lawson, Atty., Dept. of Justice, Washington D. C., were on the brief, for respondents. Ashton R. Hardy, Gen. Counsel, F. C. C., Washington D. C., at the time the record was filed entered an appearance for respondents. Barry Grossman, Robert B. Nicholson, Samuel R. Simon and Carl D. Lawson, Attys., Dept. of Justice, Washington, D. C., also entered appearances for respondent United States of America.
Richard M. Riehl, Washington, D. C., with whom Michael H. Bader and Raymond C. Fay, Washington, D. C., were on the brief, for intervenor.
Before TAMM, LEVENTHAL and MacKINNON, Circuit Judges.
Opinion for the court filed by MacKINNON, Circuit Judge.
MacKINNON, Circuit Judge:
1
The present appeal arises from three decisions of the Federal Communications Commission regarding FM radio licensing in and around Gaffney, South Carolina and Asheville, North Carolina. Basic Media, Ltd., appeals from the Commission's renewal of the FM-license of WAGI-FM (Gaffney, South Carolina, with broadcast tower in Forest City, North Carolina) (No. 76-1513), granting of an FM-license to a concern in Waynesville, North Carolina (No. 76-1514) (denial of reconsideration), and denial of Basic Media's request for an FM-license for Asheville, North Carolina (No. 76-1271) (denial of reconsideration). All three of these petitions revolve around the same issue: whether substantial evidence supported the Commission's decision to renew the existing FM-license for WAGI-FM, and, having granted the WAGI renewal to refuse to grant an exception to the 65-mile "short-spacing" rule so that Basic Media's proposed station could operate from Asheville, North Carolina, which is within 65 miles of WAGI's broadcast tower. This appeal is taken pursuant to 47 U.S.C. § 402(b) (1970).1
2
WAGI-FM has been broadcasting since 1959 from its tower midway between Forest City, North Carolina, and Gaffney, South Carolina. In 1970, the FCC granted approval for WAGI-FM to relocate its city of identification from Forest City to Gaffney while leaving its transmitter in Forest City. In re Forest City, North Carolina, and Gaffney, South Carolina, 26 FCC 2d 601 (1970). Had the transmitting tower moved to Gaffney, Basic Media's proposed station in Asheville, North Carolina, would have been outside the 65-mile limit. Alternatively, had WAGI-FM's 1975 request to renew been denied entirely, Basic Media would not be faced with the short-spacing problem. These two issues are really aspects of the same question: whether the Commission's decision to continue WAGI-FM's broadcasting arrangement should be sustained.
3
Basic Media did not participate in the 1970 decision permitting WAGI-FM's bifurcated broadcasting situation. The only issue it can now raise is whether, given that situation, WAGI-FM's petition to renew its license should be granted. On the record before the Commission, there was substantial evidence to grant the renewal (J.A. 216). Basic Media proposed that its service out of Asheville, North Carolina, would better serve the listenership currently served by WAGI-FM.
4
From the outset, Basic Media has a difficult case to make out because of the listenership numbers. If the WAGI-FM broadcast antenna were moved to Gaffney, the Commission found there would be a decrease in North Carolina listeners from 715,082 to 152,607 (J.A. 124). The increase in South Carolina listenership would only be from 288,073 to 338,434 (id.). All Basic Media can assert in response is that it would provide a North Carolina listenership of 152,633 (J.A. 125), but that would overlap at least in part the North Carolina listenership remaining for WAGI-FM. Hence, granting the Basic Media request would decrease the public served by over half a million persons.
5
In an attempt to overcome the strong persuasiveness of the numbers argument, Basic Media tried to demonstrate that the programming quality of WAGI-FM did not adequately serve the North Carolina listeners. WAGI-FM admittedly directs its programming to the needs and interests of the people of Cherokee County, South Carolina, in which is located its city of license, Gaffney, South Carolina. That alone is not proof, however, that it has ignored the needs and interests of the North Carolina listeners. The Commission found that many North Carolina listeners had grown accustomed to WAGI-FM, and that serious disruption would result from its replacement (J.A. 125-26).
6
Most importantly, however, the Commission is itself the best judge of an issue so incapable of quantification as quality of service, and of compliance with its own guidelines (see Primer on Ascertainment of Community Problems by Broadcast Applicants, 27 FCC 2d 650 (1971)). In the absence of documentation of some specific failure to serve the actual needs of North Carolina listeners, rather than a general allegation that a station with a South Carolina city of license cannot adequately serve North Carolinians, the judgment of the Commission (J.A. 216, 220) must be affirmed.
7
Basic Media argues in the alternative that, even if the WAGI-FM license remains unchanged, the Commission ought to dispense with the 65-mile rule in this case. If the Commission would consider such an exception, Basic Media contends that it could then argue for the desirability of its own licensing at Asheville, North Carolina, rather than the FM-station proposed for Waynesville, North Carolina. The Commission had excluded Basic Media from consideration in the Waynesville hearing because of the short-spacing problem.
8
Any rule of general applicability will involve particular cases of hardship for which an agency would be empowered to make individual dispensations. United States v. Allegheny-Ludlum Steel Corp., 406 U.S. 742, 755, 92 S.Ct. 1941, 32 L.Ed.2d 453 (1972). When an agency begins to grant exceptions in certain cases, however, interests represented in other cases can ask a court to review the denial of an exception as arbitrary in light of the agency's past practice. A different case is presented where an agency has made a general rule from which it has never deviated. Preserving the integrity of a general rule then takes on increased importance, if only because the certainty and administrative ease that accompany consistent application increase with each additional instance. "In this manner, one of the foremost advantages of rulemaking the formulation and effectuation of agency policy with a minimum expenditure of time and resources will not be undermined by the necessity for continuous case-by-case adjudication." Industrial Broadcasting Co. v. FCC, 141 U.S.App.D.C. 247, 250, 437 F.2d 680, 683 (1970).
9
When an agency decides to make an exception to the general rule, it is also subjecting itself to careful scrutiny by a reviewing court, and will be required to have stated the reasons for the exception clearly on the record. "(W)hile administrative agencies can . . . fashion exceptions and qualifications, they must explain departures from agency policies or rules apparently dispositive of a case." Brennan v. Gilles & Cotting, Inc., 504 F.2d 1255, 1264 (4th Cir. 1974). "(A)dministrative agencies should be bound by their own rules and regulations, so that an agency's power to suspend its own rules . . . must be closely scrutinized especially where the substantive rights of a party in the administrative process may be adversely affected." Safety-Kleen Corp. v. Dresser Industries, Inc., 518 F.2d 1399, 1403 (Cust.& Pat.App.1975).2 Further, granting exceptions can lead to a claim of vested interest, potentially applicable at a later time, cf. WAIT Radio v. FCC, 148 U.S.App.D.C. 179, 185, 459 F.2d 1203, 1209, cert. denied, 409 U.S. 1027, 93 S.Ct. 461, 34 L.Ed.2d 321 (1972). Hence, if an agency wishes to apply a general rule in a perfectly consistent manner, it must be admitted that such conduct alone automatically presents a number of good reasons to recommend it.
10
Simply as an applicant for a waiver, let alone an applicant for an exception to a previously uniformly followed rule, Basic Media has a very substantial burden. We held in Industrial Broadcasting Co. v. FCC, supra, 141 U.S.App.D.C. at 250, 437 F.2d at 683:(R)eviewing courts are naturally hesitant to require an agency to carry out extensive waiver proceedings once it has carefully promulgated a general rule. Thus, a heavy burden traditionally has been placed upon one seeking a waiver to demonstrate that his arguments are substantially different from those which have been carefully considered at the rulemaking proceeding.
11
See also WAIT Radio v. FCC, supra, 148 U.S.App.D.C. at 183, 459 F.2d at 1207 (1972). Basic Media has not sustained that burden. The Federal Communications Commission first promulgated its short-spacing rule for FM radio stations in 1963, after full rulemaking procedures had been followed. See Revision of FM Broadcast Rules, 40 FCC 662, 666 (1963) (relying on experience under flexible rules for AM stations to deny flexibility for FM). Since then, the Commission has allowed some leniency for existing stations, but has without exception refused to permit the licensing of a new station that violated the short-spacing rule. The Commission's Memorandum and Opinion in No. 76-1271 (J.A. 119) carefully recites the history of the short-spacing rule, concluding that "the integrity of the entire present FM plan in use requires strict adherence to the separation requirements and . . . the overall advantages of strict adherence outweigh any advantages that might accrue from departure therefrom in individual cases" (J.A. 127). Basic Media has presented no compelling reason for overcoming the FCC's reliance on its unbroken practice. Whatever persuasiveness might be found in the peculiar needs of the Asheville, North Carolina region is substantially undercut by the Commission's finding that Asheville is already directly served by four AM stations, and that four FM stations from neighboring communities carry over into Asheville.
12
There is substantial evidence in the record supporting the Commission's decision to award a renewed license to WAGI-FM, and to exclude Basic Media's proposed station at Asheville because of the short-spacing rule. Basic Media's objection to the granting of the Waynesville license was premised on the alternative desirability of the Asheville station; hence that objection drops away as well. The three decisions of the Federal Communications Commission are affirmed in their entirety.
13
So ordered.
1
Appeals may be taken from decisions and orders of the Commission to
United States Court of Appeals for the District of Columbia in any of the following cases:
(1) By any applicant for a construction permit or station license, whose application is denied by the Commission.
(2) By any applicant for the renewal or modification of any such instrument of authorization whose application is denied by the Commission.
(4) By any applicant for the permit required by section 325 of this title whose application has been denied by the Commission, or by any permittee under said section whose permit has been revoked by the Commission.
(6) By any other person who is aggrieved or whose interests are adversely affected by any order of the Commission granting or denying any application described in paragraphs (1)-(4) of this subsection.
47 U.S.C. § 402(b)(1), (2), (4) & (6) (1970).
The Commission challenges the ripeness of the appeal of the Waynesville license (No. 76-1514) because of Basic Media's failure to seek review before the full Commission in accordance with 47 U.S.C. § 155(d)(7). Inasmuch as the resolution of the issues properly before this court in Nos. 76-1513 & 76-1271 entirely controls the appeal in No. 76-1514, no opinion is expressed on the question of Basic Media's failure to exhaust administrative remedies in No. 76-1514.
2
See also Mary Carter Paint Co. v. FTC, 333 F.2d 654, 660 (5th Cir. 1964) (concurring opinion):
Our complex society now demands administrative agencies. The variety of problems dealt with make absolute consistency, perfect symmetry, impossible. And the law reflects its good sense by not exacting it. But law does not permit an agency to grant to one person the right to do that which it denies to another similarly situated. There may not be a rule for Monday, another for Tuesday, a rule for general application, but denied outright in a specific case.
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IN THE SUPERIOR COURT OF THE STATE OF DELAW-ARE
Richard M. Chamberlain, )
Plaintiff, §
v. § C.A. No.: NlSC-O7-035 SKR
Officer George Pyle, et al., §
Defendants. §
M
This 2nd day of November, 2018, upon consideration of Defendants’ Motion
to Dismiss, Plaintiff’ s Response thereto, Defendants’ Affidavit of No Insurance, and
the entire record in this case, it appears to the Court that:
1. Plaintiff Richard M. Chamberlain (“Plaintift”) Was an inmate housed at
Howard R. Young Correctional Institution (“H.R.Y.C.I”) in Wilmington, Delaware.
On July 5, 2018, Plaintiff filed a pro se complaintl (the “Complaint”) against two
officers at H.R.Y.C.I, George Pyle (“Officer Pyle”) and Bernard Srnith (“Ofiicer
Smith”), and Warden Kolawole Akinbayo (the “Warden”) (collectively,
“Defendants”). In the Complaint, Plaintiff alleges, among other things, that, While
conducting a strip search of Plaintiff, Officer Pyle “plac[ed] both of his hands on
1 Complaint (Trans. ID. 62203737).
Plaintiff’s buttocks and forcibly spread them open.”2 Plaintiff also alleges that
Officer Smith Witnessed the incident but did not intervene3 Plaintiff raises two
causes of action against all Defendants: (l) sexual battery; and (2)
intentional/reckless infliction of emotional distress.4 Plaintiff states that the claims
against the Warden are based on respondeat superior.5
2. On August 29, 2018, Defendants moved to dismiss the case on several
grounds6 Defendants contend that Plaintiff s case, if construed as brought against
Defendants in their official capacities, is barred by sovereign immunity. Defendants
also contend that, if Defendants are sued in their individual capacities, this case is
then barred by qualified immunity. Alternatively, Defendants contend that the
Complaint fails to state a claim, and should be dismissed under Superior Court Civil
Rule lZ(b)(6).
3. Although not a model of clarity, the Court finds that the Complaint may be
reasonably construed as asserting claims against Officer Pyle and Officer Smith both
in their official and individual capacities, and against the Warden only in his official
capacity. On October 3, 2018, the Court, after reviewing the briefs and hearing oral
arguments from the parties, granted the Motion to Dismiss With regard to Officer
2 ld. 11 8.
3 Id. 11 15.
4 1a 1111 23-28.
5 1a 11 18.
6 Defendants’ Motion to Dismiss (Trans. iD. 62393807).
2
Smith, in his individual capacity, on the basis of qualified immunity. But the Court
allowed the claims asserted against Officer Pyle in his individual capacity to
proceed.7 The Court deferred its decision on Whether Defendants should be kept in
this case in their official capacities
4. Defendants argue that any claims asserted against them in their official
capacities are barred by sovereign immunity. The doctrine of sovereign immunity
provides that the State, as Well as its agencies, cannot be sued Without its consent.8
The General Assembly, however, can Waive sovereign immunity by an Act that
“clearly evidences its intention to do so.”9 There are two means by Which the
General Assembly may Waive immunity: (l) by procuring insurance pursuant to
18 Del. C. § 65l l for claims cited in the complaint; or (2) by statute Which expressly
Waives immunity.10 Under 18 Del. C. § 6511, “[t]he defense of sovereignty is
Waived and cannot and Will not be asserted as to any risk or loss covered by the
state insurance coverage program, Whether same be covered by commercially
7 The Court found that Plaintiff has successfully stated a claim against Officer Pyle. The Court
also found that the claims asserted against him are not precluded under qualified immunity because
a reasonable jury could find that Officer Pyle engaged in the conduct alleged in the Complaint
With bad faith and gross negligence See 10 Del. C. § 4001.
8 Pauley v. Reinoehl, 848 A.Zd 569, 573 (Del. 2004).
9 Id.
10 J.L. v. Barnes, 33 A.3d 902, 913 (Del. Super. 2011) (internal citations omitted).
3
procured insurance or by self-insurance.”11 Sovereign immunity also extends to
state officials sued in their official capacities.12
5. The issue of sovereign immunity boils down to whether or not the State
maintains insurance that covers the type of claims asserted in the Complaint, or
otherwise waives its immunity through a statute. In order to resolve this issue, the
Court converted the Motion to Dismiss to a Motion for Summary Judgment, and
allowed the parties to submit relevant evidence Defendants submitted an affidavit13
(the “Affidavit”) of Debra Lawhead, the State’s Insurance Coverage Administrator,
which attests that the State does not have insurance that applies to the circumstances
alleged in the Complaint. Specifically, Ms. Lawhead states that her duties include
administration of insurance coverage in all instances in which the State has waived
sovereign immunity under 18 Del. C. § 65 l l, and that she has personal knowledge
of any such coverage.14 She further states that she has reviewed the Complaint and
determined that the State “has not purchased any insurance []or [] established any
self-insurance program” that would be applicable here.15 She also verifies that the
General Assembly “has not appropriated any money for obtaining said insurance,
nor has [it] enacted any legislation pertaining to or allowing any possible liability of
1118Del.C.§6511.
12 Harris v. Hosp.for the Chrom`cally Ill, 2001 WL 1739190, at *3 (Del. Super. Dec. 27, 2001).
13 Debra Lawhead’s Affidavit (Trans. ID. 62540009).
'4 1a 1111 2_3.
15 Id. 11 4.
the State resulting from” the facts here.16 The Court instructed Plaintiff that he may
respond to the Affidavit and contest its contents Plaintiff has not done so.
6. Based on the record currently before us, the Court finds that there is no
genuine issue of material fact that the State does not maintain any insurance coverage
that is applicable to the claims raised in the Complaint, and that there is no statute
through which the State has waived its immunity. Thus, sovereign immunity bars
Plaintiffs claims as alleged against Defendants in their official capacities
For the forgoing reasons, Defendants’ Motion to Dismiss, which has been
converted to a Motion for Summary Judgment, is GRANTED with regard to all
Defendants in their official capacities This leaves Officer Pyle as the only defendant
in this case, and the case will proceed against him solely in his individual capacity.
IT IS SO ORDERED.
/_i' m \.
_?_1#-._/--_-_
Sheldon K. Rennie, Judge
16 Id. 11 5.
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146 F.Supp.2d 1302 (2001)
J. Paul WEST, Plaintiff,
v.
TOWN OF JUPITER ISLAND, a municipal corporation, Defendant
No. 99-14378-CIV.
United States District Court, S.D. Florida.
June 5, 2001.
Louis Paul Pfeffer, Charles Dominic Thomas, Fischer & Pfeffer, Lake Worth, FL, for plaintiff.
Christine D. Hanley, Sally Ann Still, Christine D. Hanley & Associates, West Palm Beach, FL, for defendant.
ORDER ON DEFENDANT'S VERIFIED MOTION TO TAX ATTORNEYS' FEES AND COSTS
PAINE, District Judge.
This matter is before the court upon Defendant's Verified Motion to Tax Attorneys' *1303 Fees and Costs, filed on May 3, 2001 (D.E.# 82). In response to this court's Omnibus Order Granting Defendant's Emergency Motion for Reconsideration of Defendant's Motion for Summary Judgment and Denying Plaintiff's Motion for Voluntary Dismissal (D.E.# 79), and in conjunction with Local Rule 7.3, defendant has moved this court for attorneys' fees and costs incurred while defending the instant action.
In reviewing the file, this court notes that the action has been actively litigated for approximately 1½ years. Ultimately, this court granted summary judgment in favor of the defendant, after finding that plaintiff's action could no longer be supported in light of the requirements enunciated by the Eleventh Circuit in Maynard v. Pneumatic Products Corp., 233 F.3d 1344 (11th Cir.2000). This court finds that instead of recognizing the action could no longer be maintained in light of Maynard, plaintiff continued to litigate the matter instead of seeking voluntary dismissal. It was only after defendant reopened plaintiff's deposition that plaintiff, apparently unable to comply with this court's Order Requiring Comparative Evidence (D.E.# 73), finally moved for dismissal some four months after the Maynard decision.
Pursuant to 42 U.S.C.A. § 12205, the court has discretion to allow the prevailing party in this disability harassment and wrongful termination action a reasonable attorney's fee, including litigation expenses and costs. The Eleventh Circuit recently adopted the Christianburg standard for assessing attorney fees under the ADA. See Bruce v. City of Gainesville, Georgia, 177 F.3d 949 (11th Cir.1999). The Christianburg standard, a method of awarding prevailing party fees under Title VII, recognizes that a prevailing plaintiff should ordinarily be awarded attorney's fees, but a prevailing defendant should recover fees only "upon a finding that the plaintiff's action was frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith." Christianburg Garment Co. v. EEOC, 434 U.S. 412, 98 S.Ct. 694, 54 L.Ed.2d 648 (1978).
In considering defendant's motion, the court has reviewed the history of this case, and notes that plaintiff may have had a viable action up and until the pronouncement issued by Maynard on November 22, 2000. After the Maynard decision was announced, plaintiff's action was without foundation in the law. Had plaintiff taken the initiative and sought a voluntary dismissal upon learning of the Maynard pronouncement, this court would be disinclined to award fees. However, plaintiff maintained the action up and until he realized he could not cooperate with the court's instruction to provide evidence of how his impairments restrict major life activities compared to the general population, as required by Maynard. Thus, this court finds that an award of fees is appropriate under the Christianburg standard, since plaintiff continued this action well after any legal foundation for the action was dissipated by Maynard. Accordingly, this court will award defendant, prevailing party, attorneys' fees and costs incurred after November 22, 2000 (the date of the Maynard decision).
The court has reviewed the submission of fees and costs contained in Defendant's Motion.[1] Using defendant's submission as *1304 a guide, and finding the asserted fees and costs therein[2] to be reasonable, including the hourly rates for all legal personnel, the court awards defendant the following costs and fees:
Costs Fees Sub-Total
Nov. 23, 2000-
Nov. 30, 2000 109.00 519.50 628.50
December 2000 290.02 11,483.50 11,773.52
January 2001 3,353.49 22,462.00 25,815.49
February 2001 1,245.36 1,337.50 2,582.86
March 2001 122.54 3,976.50 4,099.04
________________________________
TOTAL $44,899.41
__________
Accordingly, it is
ORDERED AND ADJUDGED that Defendant's Verified Motion to Tax Attorneys' Fees and Costs is GRANTED IN PART. It is further
ORDERED AND ADJUDGED that defendant is hereby awarded forty-four thousand, eight hundred ninety-nine dollars and forty-one cents ($44,899.41) as the prevailing party in the instant action.
NOTES
[1] The court notes that Defendant certifies that, pursuant to Local Rule 7.3, parties have conferred in a good faith effort to resolve this motion by agreement (D.E.# 83). In its Rule 7.3 Certificate, counsel for defendant indicates that "Plaintiff has indicated he may request a hearing on Defendant's Motion to Tax Attorney's Fees and Costs." To date, the court has not received such a request, and will base its award of fees on its discretionary analysis of the submissions provided by the defendant.
[2] The court finds that all fees and costs after November 22, 2000, appear to be reasonable.
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996 So.2d 1104 (2008)
STATE of Louisiana
v.
Barry N. ARABIE.
No. 2008-KO-0928.
Supreme Court of Louisiana.
November 21, 2008.
Denied.
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293 So.2d 419 (1974)
Travis WARD
v.
STATE of Mississippi.
No. 47920.
Supreme Court of Mississippi.
April 15, 1974.
Williams & Williams, Water Valley, for appellant.
A.F. Summer, Atty. Gen., by William D. Boerner, Special Asst. Atty. Gen., Jackson, for appellee.
*420 INZER, Justice:
Appellant Travis Ward was indicted, tried and convicted in the Circuit Court of Grenada County of the unlawful sale of a controlled substance. He was sentenced to serve a term of four years in the State Penitentiary. From this conviction and sentence, he appeals. We affirm.
The evidence on behalf of the state established that on July 21, 1971, appellant sold six bottles of biphetamina, a type of amphetamine, which is a controlled substance, to Fred Sanders for $100. Sanders, an undercover agent for the state, testified that he was introduced to appellant by an unidentified cooperating individual who was present when the sale was consummated. During the cross examination of Sanders, counsel for appellant sought to have Sanders reveal the identity of the cooperating individual to which the state objected. Out of the hearing of the jury, the trial court inquired of counsel why the identity of the unidentified individual was vital to the defense, whereupon counsel stated:
If the Court please, we think we are entitled to know the name of this witness and to know whether or not he is a credible person. We think the defendant has the right to be confronted with witnesses against him and to deny this defendant this right and knowledge will deprive him of the right to cross examine this witness and perhaps other witnesses.
The district attorney insisted that it was important to the state to have the identity of this individual kept secret. Thereupon the court ruled that the witness would not be required to reveal the identity of the individual.
Ronnie White, a special investigator for the Mississippi Highway Patrol, was parked less than 100 yards from the place where the sale was made. He saw appellant get into the car with Sanders and the unidentified individual. He did not hear the conversation and did not see the sale consummated but did corroborate Sanders as to the meeting with appellant.
Appellant did not testify. The only evidence introduced in his behalf was a witness who testified that the pickup truck owned by appellant was of a different color than the one that the witness for the state testified appellant was driving on this occasion.
The principal error assigned, and the only one which merits discussion, is that the trial court was in error in failing to require the state to reveal the identity of the cooperating individual who set the stage, directly participated in and was an eye witness to the alleged sale. We recently addressed ourselves to this question in McCormick v. State, 279 So.2d 596 (Miss. 1973), wherein we stated:
The next proposition is that the trial court erred in not requiring Laurel Police Officer McDonald to reveal the name of the informant whose information led to the obtaining of the evidence from appellant in the case before us. We hold that law officers have a privilege in this regard. Public interest requires that informants ought to be encouraged to transmit information about crime to law officers. Unless the anonymity of the informant is preserved, the transmission of information pertaining to criminal activities will be discouraged. The resulting effect would be to prevent informers from cooperating with law enforcement officials. Informers would not be useful to the state if state officials and/or prosecuting witnesses should be required to identify informers and thereby expose the informer to possible harm by physical violence or to cause him to run the risk of suits being filed against him for defamation or malicious prosecution. We find no error in this regard and we hold that appellant here was not unconstitutionally deprived of the right to confront a witness *421 against him on the ground that the state did not produce the informant as a witness, or did not identify the informant. McCray v. Illinois, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62, rehearing denied, 386 U.S. 1042, 87 S.Ct. 1474, 18 L.Ed.2d 616 (1967). (279 So.2d at 599).
However, the informer privilege is not without limitations. Where the imformer is present and an eye witness to the sale and where the revelation of his identity is essential to a fair determination of the case, the state is required to reveal his identity. Appellant contended in the trial court that the failure to reveal the identity of the cooperating individual deprived him of the opportunity to determine the credibility of that individual and the constitutionally guaranteed rights of confrontation and cross examination of the witness against him. Since the state did not call the informer as a witness to testify against appellant, it is obvious that he was not deprived of his constitutional right to be confronted by a witness against him, and since the information furnished by the informer was not the basis for a search, it is immaterial whether such informer was a credible person. There is nothing in this record to indicate that the revelation of the identity of this informer was essential to a fair determination of this case. Furthermore, if Sanders is to be believed, appellant no doubt knew the identity of the informer. We cannot say that the trial court abused its discretion in refusing to require the state to reveal his identity. Cf. United States v. Davis, 487 F.2d 1249 (5th Cir.1973).
The testimony on behalf of the state in this case, is uncontradicted in any material respect, and it was strictly a jury issue as to whether appellant made the sale as charged. The jury determined this issue under proper instructions, and we certainly cannot say that its verdict is against the overwhelming weight of the evidence.
There being no reversible error in this cause, it must be and is affirmed.
Affirmed.
GILLESPIE, C.J., and PATTERSON, SMITH and SUGG, JJ., concur.
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668 S.E.2d 203 (2008)
In re FLOOD LITIGATION COAL RIVER WATERSHED.
In re Flood Litigation Upper Guyandotte River Watershed Subwatershed 2a.
In re Flood Litigation Upper Guyandotte River Watershed Subwatershed 2a.
Nos. 33664, 33710 and 33711.
Supreme Court of Appeals of West Virginia.
Submitted April 16, 2008.
Decided June 26, 2008.
*205 Scott S. Segal, Esq., Deborah L. McHenry, Esq., Samuel A. Hrko, Esq., The Segal Law Firm. W. Stuart Calwell, Jr., Esq., The Calwell Practice, J. David Cecil, Esq., James F. Humphreys & Associates, Charleston, WV, W. Randolph McGraw, Esq., Prosperity, WV, for Plaintiffs Below.
A.L. Emch, Esq., Jill M. Obenchain, Esq., Amber Lynn Hoback, Esq., Jackson Kelly, PLLC, Charleston, WV, for Defendants Below.
A.L. Emch, Esq., Jackson Kelly, PLLC, Charleston, WV, Amicus Curiae for Alex Energy, et al.
Richard J. Bolen, Esq., Cindy D. McCarty, Esq., Jonathan E. Porter, Esq., Huddleston, Bolen, Beatty, Porter & Copen, Huntington, WV, David E. Goddard, Esq., John Greg Goodykoontz, Esq., Steptoe & Johnson, Clarksburg, WV, for Western Pocahontas Properties.
PER CURIAM:
These two appeals from "flood litigation" cases have been consolidated for argument and decision. In one case we hold that a jury's determination was valid. In the other case, we hold that the lower court's dismissal of the case for failure to state a claim was erroneous.
*206 I.
Both of the instant appeals involve claims for injuries and damages resulting from flooding that occurred on July 8, 2001, in southern West Virginia flooding that the plaintiffs allege was caused or exacerbated by timbering and/or mining operations that disturbed the watersheds lying upstream from the plaintiffs. Several thousand such claims were consolidated and assigned to the Mass Litigation Panel ("the Panel") established by this Court pursuant to Trial Court Rule 26.01. This Court previously addressed a number of certified questions that were posed by the Panel about these claims in In re Flood Litigation, 216 W.Va. 534, 607 S.E.2d 863 (2004).[1]
I.
A.
The Slab Fork Case
One of the two appeals involves a jury trial that was conducted by a Mass Litigation Panel judge in March, April, and May of 2006, involving a number of defendants' mining and timbering operations in the Slab Fork and Oceana sub-watersheds of the Upper Guyandotte River (the "Slab Fork case"). In the Slab Fork case, the Panel judge adopted a Trial Plan in which a jury in a "Phase I" trial was asked to answer the following "common issues" questions as to each defendant:
1. Whether, as to each Defendant's individual operation or operations, the Defendant's use of its property materially increased the peak rate of surface water runoff leaving that operation as a result of the storm events on or about July 8, 2001, compared to the rate of peak surface water runoff that would have left the operation but for the Defendant's use of that property, and if so;
2. Whether the water from the individual Defendant's operations materially caused or contributed to, the stream or streams into which they discharged to overflow their banks, and;
3. Regardless of the findings made in 1 and 2 above, whether the Defendant's use of the property in question was unreasonable under the circumstances set forth by the Supreme Court of Appeals in the case *207 of In re Flood Litigation, 216 W.Va. 534, 607 S.E.2d 863 (2004).
Under the Trial Plan, the jury's answer to the three questions in the Phase I trial would determine whether a particular defendant could be held liable to a particular plaintiff in subsequent proceedings. Phase I of the Trial Plan excluded evidence from individual plaintiffs and other lay evidence about the flooding limiting both sides primarily to "expert" witnesses.
Prior to and during the Phase I trial, claims against a number of defendants were voluntarily dismissed by the plaintiffs (some due to settlements), leaving the jury at the end of the Phase I trial to answer the three questions only as they applied to two related defendant companies the appellees Western Pocahontas Properties LLP and Western Pocahontas Corporation (together, "Western Pocahontas"), whose properties were located only in the Slab Fork watershed and had only been timbered, not mined.
The jury in the Phase I trial answered each of the three questions "Yes," finding that Western Pocahontas had materially increased the peak flow of surface water from its property, that this increase in peak flow materially caused or contributed to causing the streams in the watershed to overflow their banks, and that Western Pocahontas' use of its land was not reasonable. Western Pocahontas sought relief from the jury's verdict by way of a Motion for Judgment as a Matter of Law or For a New Trial.
On March 15, 2007, the Panel judge entered an order striking the testimony of appellants' expert witnesses (and a report that they relied upon) and granting Western Pocahontas's Motion for Judgment as a Matter of Law, The Panel judge also awarded a conditional grant of Western Pocahontas' Motion For a New Trial under Rule 59 of the West Virginia Rules of Civil Procedure on six grounds, and ruled that if this Court should reverse the order as to the granting of Western Pocahontas' Motion for Judgment as a Matter of Law, then Western Pocahontas nevertheless is entitled to a new trial on all issues.[2]
Before this Court, the plaintiffs in the Slab Fork case appeal the Panel judge's March 15, 2007 order. The appellants seek to have the order reversed and vacated in its entirety and seek reinstatement of the jury verdict. Western Pocahontas has cross-appealed in the Slab Fork case, raising issues that we discuss infra.
B.
The Coal River Case
The second appeal before this Court arises from claims based on flooding in the Coal River watershed (the "Coal River case"). In that case, a different Panel judge did not permit the case to go to trial. Unlike the judge in the Slab Fork case, the judge in the Coal River case refused to allow the plaintiffs to take discovery from the defendants. Instead, the judge granted the defendants' motion to dismiss, stating that:
[the] Plaintiffs' complaints and amended complaints do not state what actionable conduct it is that any particular Defendant is alleged to have engaged in to cause of exacerbate any particular Plaintiff's alleged injuries.... [t]he complaints and amended complaints did not specify which plaintiffs were suing which defendants, which defendants' operations were at issue, or what was alleged to be improper with regard to any specific defendant operation.... *208 [w]here strict liability does not apply, there must be an allegation of some liability-producing act or omission related to the harm alleged on the part of each party against which recovery is sought. General allegations that all defendants engaged in the normal activities associated with the conduct of their lawful businesses without any specific information as to each defendant to indicate that such activities were conducted improperly or unreasonably are insufficient.
Following is an example of the plaintiffs' allegations against one of the defendants in the Coal River case allegations that the Panel judge concluded did not state a claim upon which relief could be granted:
a. Defendant failed to monitor, audit, and inspect timbering activities conducted on its land for compliance with BMPs (Best Management Practices industry standards);
b. Defendant failed to compare BMP compliance of timbering activities conducted on its land with state BMP surveys and failed to set benchmarks for future performance and improvement;
c. Defendant failed to implement riparian protection measures, such as marking or flagging streamside management zones (SMZs) in advance of timber harvests on its land;
d. Defendant failed to develop a program or plan for protection of streams from timbering; and
e. Defendant's timbering activities disturbed an unreasonable percentage of drainage area corresponding to one or more of the twenty-one client clusters set out in plaintiffs' April 7, 2006 Unified Disclosures.
f. Surface mining operations on defendant's land violated, and were found to be in violation of, West Virginia mining regulations intended to reduce surface water runoff and/or minimize downstream sediment deposition on July 8, 2001;
g. Defendant failed to conduct a surface water runoff analysis before, during, and/or after conducting its surface mining activities;
h. Defendant failed to develop a plan to control surface water runoff from mining operations;
j. Defendant failed to develop a plan to minimize downstream sediment deposition from mining operations;
k. Defendant engaged in surface mining activities and the construction of valley fills in an area that was unreasonably close to a local population center and where it was found to do harm; and
l. Defendant failed to reclaim its valley fills during construction by using a more appropriate valley fill construction method such as the "bottom-up" method, and instead used the less stable and more erosion-prone "end-dump" method.
m. Upon information and belief, the conduct of defendant was unreasonable in light of all the factors to be considered under the rule of reasonable use.
n. The conduct of the defendant was the proximate cause of, and/or materially contributed to, the flooding that occurred on July 8, 2001, on the property of those plaintiffs identified as claiming against the defendant.
o. The conduct of the defendant unreasonably increased the risk of flooding of the property of plaintiffs.
p. The defendant unreasonably interfered with the use and enjoyment of plaintiffs' property by increasing the risk of flooding.
The plaintiffs in the Coal River case ask that the Panel judge's order of dismissal be reversed and that their case be reinstated.
II.
A.
In the Slab Fork case, three major pieces of plaintiffs' evidence supported the Slab Fork jury's answers to the Phase I questions. The trial court struck all three pieces of evidence, leaving little or no direct plaintiffs' evidence that could support the jury's answers.[3]
*209 "[W]hen a circuit court excludes expert testimony as unreliable under the [Rule 702] Daubert/Wilt gatekeeper analysis, we will review the circuit court's method of conducting the analysis de novo." San Francisco v. Wendy's Intern., Inc., 221 W.Va. 734, 741, 656 S.E.2d 485, 492 (2007). "Although the ruling of a trial court in granting or denying a motion for a new trial is entitled to great respect and weight, the trial court's ruling will be reversed on appeal when it is clear that the trial court has acted under some misapprehension of the law or the evidence." Syllabus Point 4, Sanders v. Georgia-Pacific Corp., 159 W.Va. 621, 225 S.E.2d 218 (1976).
The first piece of evidence that the Panel judge struck was the report of the Flood Analysis Technical Team ("the FATT Report"), issued by a working group of West Virginia agency experts appointed by the Governor of West Virginia to review the 2001 flooding. The report used internationally-recognized computerized engineering models to assess the effects of land disturbance from mining and logging on flooding. The FATT report generally concluded that land disturbance from timbering and mining had increased flooding in southern West Virginia during the 2001 flood event, although the report did not look specifically at the watersheds in question in the instant appeals.
The second piece of evidence that the Panel judge struck was the testimony of Dr. Bruce A. Bell, an environmental engineer with distinguished credentials who designs and analyzes stormwater management systems. Dr. Bell, using computer models that are used by engineers in analyzing the effects of land disturbance on stormwater in a wide range of situations (computer models that were used by the FATT team), and having reviewed research on timbering effects on water flows, testified that land disturbances from timbering in the Slab Fork watershed caused a significant increase in the peak flow volume of the streams on July 8, 2001.
The third piece of plaintiffs' evidence that the Panel judge struck was the testimony of John Morgan, a mining engineer with expertise in hydrology and cumulative hydrologic impacts who has designed and reviewed stormwater management plans for state and federal governments. Relying in part on the same kind of computer model that the FATT team and Dr. Bell relied upon, Mr. Morgan's testimony emphasized the role of the extensive network of 245 miles of timbering skid roads located on the steep hillsides of the Slab Fork watershed in intercepting and altering the normal subsurface flow of infiltrated rainwater that characterizes the undisturbed forest floor.[4] Like Dr. Bell, Mr. *210 Morgan reviewed research on the effects of timbering on water flow. Mr. Morgan concluded that the Slab Fork watershed had a thirty to fifty percent increase in peak flow during the July 2001 event, caused by the defendants' land-disturbing activities, and that this increase caused or aggravated downstream flooding. Mr. Morgan also testified that Western Pocahontas' use of its property in the Slab Fork watershed was not reasonable, because the large proportion of the Slab Fork watershed disturbed by timbering significantly contributed to downstream flooding, and because there was no evidence that Western Pocahontas at any time conducted a hydrological or stormwater/flood runoff evaluation of their property and the effects of their logging and road building.
This Court stated in San Francisco v. Wendy's Intern., Inc., 221 W.Va. 734, 741, 656 S.E.2d 485, 492 (2007):
"The Rules of Evidence embody a strong and undeniable preference for admitting any evidence which has the potential for assisting the trier of fact." Kannankeril v. Terminix International, Inc., 128 F.3d 802, 806 (3rd Cir.1997). To assist the trier of fact, Rule 702 of the Rules of Evidence permits opinion testimony by an expert, and states:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
"Rule 702 reflects an attempt to liberalize the rules governing the admissibility of expert testimony." Weisgram v. Marley Co., 169 F.3d 514, 523 (8th Cir.1999). See also Gentry v. Mangum, 195 W.Va. at 520, 466 S.E.2d at 179. ("In Daubert/Wilt, the Frye test was abandoned by the courts, concluding that Frye's rigid standard was inconsistent with the liberal thrust of the Federal and West Virginia Rules of Evidence."); Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 169, 109 S.Ct. 439, 102 L.Ed.2d 445 (1988) (highlighting the "`liberal thrust' of the Federal Rules and their `general approach of relaxing the traditional barriers to opinion testimony.'"). The rule "is one of admissibility rather than exclusion." Arcoren v. United States, 929 F.2d 1235, 1239 (8th Cir.1991).
In Syllabus Point 2 of Wilt v. Buracker, 191 W.Va. 39, 443 S.E.2d 196(1993), this Court, following the lead of the United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469(1993), held that:
In analyzing the admissibility of expert testimony under Rule 702 of the West Virginia Rules of Evidence, the trial court's initial inquiry must consider whether the testimony is based on an assertion or inference derived from the scientific methodology. Moreover, the testimony must be relevant to a fact at issue. Further assessment should then be made in regard to the expert testimony's reliability by considering its underlying scientific methodology and reasoning. This includes an assessment of (a) whether the scientific theory and its conclusion can be and have been tested; (b) whether the scientific theory has been subjected to peer review and publication; (c) whether the scientific theory's actual or potential rate of error is known; and (d) whether the scientific theory is generally accepted within the scientific community.
In Gentry v. Mangum, 195 W.Va. 512, 525-27, 466 S.E.2d 171, 184-86(1995), this Court stated:
Because of the "liberal thrust" of the rules pertaining to experts, circuit courts should err on the side of admissibility. See II *211 Franklin D. Cleckley, Handbook on Evidence for West Virginia Lawyers § 7-2(A) at 24 ("[t]his standard is very generous and follows the general framework of the federal rules which favors the admissibility of all relevant evidence")[.] ... "[d]isputes as to the strength of an expert's credentials, mere differences in the methodology, or lack of textual authority for the opinion go to weight and not to the admissibility of their testimony." Gentry, 195 W.Va. at 525-27, 466 S.E.2d at 184-86.
The defendants assert that the Panel judge properly applied the Rule 702 Daubert/Wilt analysis and struck the plaintiffs' evidence. The plaintiffs assert that their experts' evidence was not "scientific" evidence under Wilt, but was rather technical engineering evidence, to which this Court has said that the Daubert/Wilt analysis does not apply:
Unless an engineer's opinion is derived from the methods and procedures of science, his or her testimony is generally considered technical in nature, and not scientific. Therefore, a court considering the admissibility of such evidence should not apply the gatekeeper analysis set forth by this Court in Wilt v. Buracker, 191 W.Va. 39, 443 S.E.2d 196 (1993), and Gentry v. Mangum, 195 W.Va. 512, 466 S.E.2d 171 (1995).
Syllabus Point 3, Watson v. Inco Alloys Intern., Inc., 209 W.Va. 234, 545 S.E.2d 294, 296 (2001). The plaintiffs further argue that even if their expert evidence is considered under a Daubert/Wilt analysis, the evidence met that test as well.
The record discloses that the plaintiffs' testifying experts (and the authors of the FATT report) had extensive training, education, and professional experience and expertise on how land disturbance affects the flow of surface water, and when one has to recognize and address those effects so as not to cause off-site impact to one's neighbors. The circuit court allowed substantial voir dire of the plaintiffs' experts by the defendants before qualifying the experts to testify to the jury, which voir dire firmly established their professional credentials and substantial experience. This was not a case of a befuddled jury confounded by bizarre, absurd, or irrational pseudoscientific assertions. See Wilt, 191 W.Va. at 45, 443 S.E.2d at 202.[5]
The computer models on which the plaintiffs' experts relied in part are a standard methodology used in the engineering profession to understand and assess peak stormwater flows from disturbed land and to design systems to control such flows. The same basic methodology was used by the FATT task force. The plaintiffs' experts' use of computer models is an accepted methodology for assessing and evaluating land disturbance effects on water within the engineering profession. The models' precision and utility in assessing the sensitivity of the Slab Fork watershed to land disturbance from Western Pocahontas' timbering was challenged in extensive cross-examination and by expert testimony, but these challenges went to the weight of the evidence, not its admissibility.
The fact that the plaintiffs' experts did not have substantial prior personal experience in assessing the effect of land disturbance from large-scale timbering operations as opposed to surface mining, highway construction, and other land-disturbing operations also went to the weight of their evidence; but their lack of such experience did not render that evidence inadmissible.
We need not decide whether the plaintiffs' expert testimony was properly subject *212 to a Daubert/Wilt "scientific" evidence analysis, because assuming arguendo that such an analysis was appropriate, the testimony was "reliable" in the sense that the jury if they credited the testimony could base their decision upon it. The testimony clearly met the liberal admissibility requirements of Rule 702. The jury was entitled to resolve the conflicts in the evidence and to believe the plaintiffs' experts and disbelieve the defendants' experts. The jury apparently did just that. Thus the weight of the evidence was not strongly against the plaintiffs, and an award of a new trial on that basis was erroneous.
We conclude that the Panel judge erred in striking, post-trial, the plaintiffs' expert evidence, and in granting judgment for the defendants; and in finding that defects in the plaintiffs' experts' evidence warranted the conditional grant of a new trial.[6]
The defendants have cross-appealed in the Slab Fork case, arguing that the inclusion in the Phase I trial of a jury determination of reasonableness was erroneous, and that the evidence permitted on reasonableness was incomplete and inadequate.
This Court held in Syllabus Point 2 of Morris Associates, Inc. v. Priddy, 181 W.Va. 588, 383 S.E.2d 770 (1989):
Generally, under the rule of reasonable use, the landowner, in dealing with surface water, is entitled to take only such steps as are reasonable, in light of all the circumstances of relative advantage to the actor and disadvantage to the adjoining landowners, as well as social utility. Ordinarily, the determination of such reasonableness is regarded as involving factual issues to be determined by the trier of fact. To the extent that Jordan v. City of Benwood, 42 W.Va. 312, 26 S.E. 266 (1896), differs, it is overruled.
In Pendergrast v. Aiken, 293 N.C. 201, 236 S.E.2d 787 (1977), a leading case cited by this Court in Morris v. Priddy, supra, the court said:
Regardless of the category into which the defendant's actions fall, the reasonable use rule explicitly, as in the case of intentional acts, or implicitly, as in the case of negligent acts, requires a finding that the conduct of the defendant was unreasonable. This is the essential inquiry in any nuisance action Reasonableness is a question of fact to be determined in each case by weighing the gravity of the harm to the plaintiff against the utility of the conduct of the defendant. Determination of the gravity of the harm involves consideration of the extent and character of the harm to the plaintiff, the social value which the law attaches to the type of use which is invaded, the suitability of the locality for that use, the burden on plaintiff to minimize the harm, and other relevant considerations arising upon the evidence. Determination of the utility of the conduct of the defendant involves consideration of the purpose of the defendant's conduct, the social value *213 which the law attaches to that purpose, the suitability of the locality for the use defendant makes of the property, and other relevant considerations arising upon the evidence.... We emphasize that, even should alteration of the water flow by the defendant be "reasonable" in the sense that the social utility arising from the alteration outweighs the harm to the plaintiff, defendant may nevertheless be liable for damages for a private nuisance "if the resulting interference with another's use and enjoyment of land is greater than it is reasonable to require the other to bear under the circumstances without compensation." The gravity of the harm may be found to be so significant that it requires compensation regardless of the utility of the conduct of the defendant.... "(W)hile today's mass home building projects ... are assuredly in the social good, no reason suggests itself why, injustice, the economic costs incident to the expulsion of surface waters in the transformation of the rural or semi-rural areas of our State into urban or suburban communities should be borne in every case by adjoining landowners rather than by those who engage in such projects for profit. Social progress and the common wellbeing are in actuality better served by a just and right balancing of the competing interests according to the general principles of fairness and common sense which attend the application of the rule of reason."
293 N.C. at 217-218, 236 S.E.2d at 797 (1977) (internal citations omitted).[7]
*214 Taking into account the wide range of "reasonableness" factors that must be considered in determining a defendant's ultimate liability vel non to a plaintiff under the Morris v. Priddy "reasonable use" doctrine and related causes of action asserted by the plaintiffs, it is true that the Phase I Slab Fork trial did not permit a complete range of evidence on the reasonableness issue to be presented to the jury. For example, there was no significant evidence about specific harm to any plaintiffs or their interests; and likewise the "social utility" of the defendants' conduct was not fully developed at the Phase I proceeding. However, the Phase I trial did present to the jury the basic fact of injurious flooding downstream from the defendants' operations; and there was very substantial evidence presented by the defendants on the reasonableness of their approach to conducting their operations and exercising responsibility to their downstream neighbors.[8]
The trial of "mass claim" cases may necessitate novel and creative trial procedures. "A creative, innovative trial management plan developed by a trial court which is designed to achieve an orderly, reasonably swift and efficient disposition of mass liability cases will be approved so long as the plan does not trespass upon the procedural due process rights of the parties." Syllabus Point 3, State ex rel. Appalachian Power Co. v. MacQueen, 198 W.Va. 1, 479 S.E.2d 300 (1996).
The first two Slab Fork Phase I trial questions asked the jury to make findings that would, if the jury's answer for a given defendant was "no," eliminate from the case those defendants whose conduct simply had not contributed to flooding. This was an eminently practical and fair goal. The third Phase I jury question allowed the jury to make a threshold finding that a defendant's contribution to the flooding was not unreasonable. Notably, a defendant's liability for damages to any plaintiff was not determined in Phase I. There is no basis for speculating *215 that appropriate additional evidence on reasonableness that was not developed in the Phase I proceeding will be precluded in further proceedings. If anything, the permissible scope of the evidence on reasonableness in the Phase 1 proceeding was skewed in favor of the defendants. While the "reasonableness" aspect of the Phase I trial may not have been perfect, it was not fundamentally unfair to the defendants, and the trial advanced the cases toward resolution.
We conclude that the Phase I trial was conducted in keeping with the approach approved in State ex rel. Appalachian Power Co. v. MacQueen, and did not trespass upon the procedural due process rights of the defendants. The defendants' cross-appeal on this issue is therefore not meritorious.
Based on the foregoing reasoning, we reverse the Panel judge's March 15, 2007 grant of judgment for the defendants and conditional grant of a new trial, and remand the case to the Mass Litigation Panel with instructions to reinstate the verdict of the Phase I jury and to proceed to further proceedings based thereon.
B.
The Coal River case involves claims and allegations that are very similar to those in the Slab Fork case. However, the Coal River case "never made it to trial" or even to the taking of discovery by the plaintiffs (who were nevertheless required to provide information to the defendants in the form of "more definite statements" pursuant to Rule 12(e) of the West Virginia Rules of Civil Procedure). Rather, the Panel judge assigned to try the Coal River case concluded that the allegations in the plaintiffs' complaint (including amended complaints) did not allege conduct, facts, and circumstances that if proven would subject the defendants to liability. Therefore the judge granted the defendants' Rule 12(b)(6) Motion to Dismiss.[9]
"Appellate review of a circuit court's order granting a motion to dismiss a complaint is de novo." Syllabus Point 2, State ex rel. McGraw v. Scott Runyan Pontiac-Buick, Inc., 194 W.Va. 770, 461 S.E.2d 516 (1995).
This Court stated in Ewing v. Board of Educ. of County of Summers, 202 W.Va. 228, 235, 503 S.E.2d 541, 548 (1998):
Generally, a motion to dismiss should be granted only where "`it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.'" Murphy v. Smallridge, 196 W.Va. 35, 36, 468 S.E.2d 167, 168 (1996) (quoting Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232, 81 L.Ed.2d 59, 65 (1984)) (additional citation omitted). For this reason, motions to dismiss are viewed with disfavor, and we counsel lower courts to rarely grant such motions. John W. Lodge Distrib. Co., Inc. v. Texaco, Inc., 161 W.Va. 603, 605-06, 245 S.E.2d 157, 159 (1978). Once a court has granted a motion to dismiss, though, we employ a de novo standard of review. See, e.g., Syl. pt. 1, Lipscomb v. Tucker County Comm'n, 197 W.Va. 84, 475 S.E.2d 84 (1996) ("Appellate review of a circuit court's order granting a motion to dismiss an appeal from a decision of a county commission is de novo."); Syl. pt. 2, State ex rel. McGraw v. Scott Runyan Pontiac-Buick, Inc., 194 W.Va. 770, 461 S.E.2d 516 (1995) ("Appellate review of a circuit court's order granting a motion to dismiss a complaint is de novo.").
As previously set forth, the complaint in the Coal River case alleges inter alia the following (a larger sample of these allegations is quoted at I. B. supra):
e. Defendant's timbering activities disturbed an unreasonable percentage of drainage area corresponding to one or more of the twenty-one client clusters set out in plaintiffs' April 7, 2006 Unified Disclosures.
f. Surface mining operations on defendant's land violated, and were found to be in violation of, West Virginia mining regulations *216 intended to reduce surface water runoff and/or minimize downstream sediment deposition on July 8, 2001;
g. Defendant failed to conduct a surface water runoff analysis before, during, and/or after conducting its surface mining activities;
h. Defendant failed to develop a plan to control surface water runoff from mining operations;
n. The conduct of the defendant was the proximate cause of, and/or materially contributed to, the flooding that occurred on July 8, 2001, on the property of those plaintiffs identified as claiming against the defendant.
o. The conduct of the defendant unreasonably increased the risk of flooding of the property of plaintiffs.
p. The defendant unreasonably interfered with the use and enjoyment of plaintiffs' property by increasing the risk of flooding.
Our discussion of the issues and proof in the Slab Fork case at II. A. supra shows that the allegations of the plaintiffs in the Coal River case set forth with adequate specificity the same sort of facts, conduct, and circumstances that the Slab Fork plaintiffs were required to prove essentially, that the defendants' land disturbance activities had unreasonably caused or contributed to flooding that injured the plaintiffs.[10] There is no merit to the defendants' argument and the Panel judge's conclusion that the plaintiffs' complaint does not give the Coal River defendants fair notice of the asserted factual and legal basis for the plaintiffs' claims.
Our discussion supra of the Slab Fork case further shows that such issues as causation, reasonableness, due care, injury, etc. will certainly be the subject of evidentiary conflict. But the plaintiffs in the Coal River case have sufficiently stated claims upon which relief may be granted, and they are entitled to try to prove those claims to a trier of fact. Accordingly, the dismissal of the plaintiffs' complaint in the Coal River case is reversed and the case is remanded to the Mass Litigation Panel.
III.
The Slab Fork and Coal River cases are remanded to the Mass Litigation Panel for further proceedings consistent with this opinion.
Reversed and Remanded.
Chief Justice MAYNARD, deeming himself disqualified, did not participate in the decision of this case.
Justice DAVIS, deeming herself disqualified, did not participate in the decision of this case.
Justice BENJAMIN, deeming himself disqualified, did not participate in the decision of this case.
Judge RUSSELL M. CLAWGES, JR., sitting by temporary assignment.
Judge DARRELL PRATT, sitting by temporary assignment.
JUDGE O.C. SPAULDING, sitting by temporary assignment.
NOTES
[1] Following are the certified questions answered in In re Flood Litigation, and this Court's answers:
1. Whether adjacent and non-adjacent plaintiffs have a cognizable cause of action based on allegations of unreasonable use of land under the balancing test set forth in Morris Associates, Inc. v. Priddy, 181 W.Va. 588, 383 S.E.2d 770 (1989). Answer: Yes.
2. Whether the plaintiffs have a cognizable cause of action upon the allegation that the defendants were negligent in the use of their land and therefore answerable under the classic theory of negligence. Answer: Yes.
3. Whether the plaintiffs have a cognizable cause of action upon the allegation that the operation of extracting and removing natural resources is an abnormally dangerous activity or that such activity produces ancillary conditions that create an unreasonably high risk of flash flooding so that the defendants are strictly liable to the plaintiffs for any damages caused by these activities. Answer: No.
4. Do those plaintiffs herein who are riparian owners, by virtue of the fact that they own property adjacent to a stream or through which a stream flows, have a cognizable cause of action for interference with riparian rights based on the fact that the stream's natural flow was increased by a flood or the water of the stream overflowed and stood upon the riparian owner's land? Answer: Yes.
5. In the event that a landowner conducts the extraction and removal of natural resources on its property in conformity with federal law and with permits issued by appropriate federal agencies, is any state court action preempted for damages caused by surface waters accumulating and migrating on residential property? Answer: No.
6. Is compliance of a landowner in the extraction and removal of natural resources on his or her property with the appropriate state and federal regulations evidence in any cause of action against the landowner for negligence or unreasonable use of the landowner's land if the injury complained of was the sort the regulations were intended to prevent? Answer: Yes.
7. Where a rainfall event of an unusual and unforeseeable nature combines with a defendant's actionable conduct to cause flood damage, and where it is shown that a discrete portion of the damage complained of was unforeseeable and solely the result of such event and in no way fairly attributable to the defendant's conduct, then is the defendant liable only for the damages that are fairly attributable to the defendant's conduct? Answer: Yes.
216 W.Va. at 550-551, 607 S.E.2d at 879-880.
[2] In conditionally granting a new trial, the Panel judge first found that the appellants' experts were not qualified to testify under Rule 702 of the West Virginia Rules of Evidence. Second, the judge found that the jury was "very likely overwhelmed by devastatingly prejudiced evidence" which was rendered irrelevant by the settlements and dismissals of other defendants. Third, the judge's exclusion of proffered evidence of flooding of the Twin Falls State Park golf course, when viewed in conjunction with the Panel judge's other "management errors" had a "cumulative effect" that "expanded exponentially" to significantly deny Western Pocahontas a fair trial. Fourth, the judge found that references to deaths resulting from the flood when tied with the "other errors" denied Western Pocahontas a fair trial and encouraged the jury to resort to passion and sympathy. Fifth, the judge found that he erroneously admitted what is known as the "FATT report" into evidence, see discussion infra. Sixth, the judge found that the verdict was against the clear weight of the evidence.
[3] There was, however, significant evidence adduced on cross-examination from defense witnesses by the plaintiffs that arguably supported the jury's answers. We do not address that issue.
[4] The evidence in the Slab Fork case showed that during the ten years preceding the July 2001 flood event, Western Pocahontas harvested timber from about forty percent of the 22,650-acre watershed. The timbering was done by felling all trees over a certain diameter, removing the trees' limbs, and dragging the logs with power winches and cables to a skid road and then along the skid road with mechanized skidders to log landings where the logs were cut into lengths and loaded onto trucks. The companies' evidence was that the skid roads were laid out and constructed in accordance with timbering Best Management Practices standards. The plaintiffs' evidence was that not all of the skid roads were so constructed. The panel judge cited Western Pocahontas' compliance with BMP standards as grounds for discrediting the plaintiffs' expert testimony. There was substantial evidence from which the jury could conclude that BMP standards were not designed or promulgated in order to significantly affect or control the quantity of stormwater leaving a timbering site, only the quality. In Syllabus Point 9 of In re Flood Litigation, supra, this Court held as follows:
Compliance of a landowner in the extraction and removal of natural resources on his or her property with the appropriate state and federal regulations may be evidence in any cause of action against the landowner for negligence or unreasonable use of the landowner's land if the injury complained of was the sort the regulations were intended to prevent. Such compliance, however, does not give rise to a presumption that the landowner acted reasonably or without negligence or liability to others in his or her extractions and removal activities.
216 W.Va. at 538, 607 S.E.2d at 867 (emphasis added). There was substantial evidence put on by experts for the defendants that tended to weigh against the methodology and the conclusions of the FATT report and the plaintiffs' experts. The defendants were critical of the plaintiffs' experts' choice of input figures in the computer models the experts used to demonstrate the effect of land disturbance on peak flows. The defendants' experts did not offer competing calculations or models to support their position that the defendants' land disturbance did not increase peak flows. The experts for the defendants generally testified that timbering according to BMP standards cannot cause significant increases in downstream peak flows; and that therefore a company following those standards, regardless of the extent of its operations in any given watershed, need not be concerned about causing any increased risk of downstream flooding. BMP standards apparently do not address the percentage of a watershed that may be safely timbered without having an effect on peak flows from a storm event.
[5] The assessment of whether scientifically-based expert testimony is "reliable," as that term is used in Daubert/Wilt, does not mean an assessment of whether the testimony is persuasive, convincing, or well-founded. Rather, assessing "reliability" is a shorthand term of art for assessing whether the testimony is to a reasonable degree based on the use of knowledge and procedures that have been arrived at using the methods of science rather than being based on irrational and intuitive feelings, guesses, or speculation. If the former is the case, then the jury may (or may not, in its sole discretion) "rely upon" the testimony. To be clear: this Court's jurisprudence (and the uniform practice in our trial courts) permits two reasonably well-qualified experts, each using a methodology that is grounded in something more than rank speculation or imagination (like reading tea leaves, detecting auras, and the like), to reach directly opposing conclusions and both of the experts' testimonies will nevertheless fully meet the "reliability" threshold for admissibility set forth in Daubert/Wilt.
[6] We conclude that the Panel judge's other reasons for the conditional grant of a new trial do not support that result. A full review of the lengthy trial transcript does not support the conclusion that the jury could not set aside evidence about other defendants who had been dismissed during the trial. It was clear from the testimony, exhibits, instructions, and argument to the jury that there were two defendants in one watershed remaining and that the case as submitted to the jury involved only timber management and harvesting in that watersheds. The jury could easily understand this and probably welcomed the simplification. It would make multi-plaintiff and multi-defendant litigation practically infeasible to conclude that partial settlements during trial authorize a judge to "start all over" because jurors cannot be trusted to clear their "mental databases." For better or for worse, courts in many instances rely on juries to do just that and there is no evidence that the jury did not do its job in the Slab Fork case. The Panel judge also cited the exclusion of photographs purporting to show flooding of the Twin Falls State Park golf course which is outside the Slab Fork watershed. Our review of the record leads to the firm conclusion that any error with respect to the photographs was de minimis. Nor was the brief mention of the fact that people had died in the July 2001 flooding in question grounds for a new trial; in fact, the Phase I trial was notably lacking in appeals to emotion or sympathy. The Panel judge also found that the plaintiffs' experts relied on a forestry expert for the plaintiff who did not testify, and that this reliance made the plaintiffs' experts' testimony inadmissible. Our review of the record does not show any reliance that would justify such a conclusion. We have considered the defendants' other arguments made in their cross-appeal and in support of the trial court's rulings, and likewise find them to be without merit.
[7] See also Wilkinson v. Charles Inv. Co., 48 N.C.App. 213, 215-16, 268 S.E.2d 263, 264-65(1980):
Each possessor is legally privileged to make a reasonable use of his land, even though the flow of surface water is altered thereby and causes some harm to others, but liability is incurred when his harmful interference with the flow of surface waters is unreasonable and causes substantial damage.... Reasonableness is a question of fact to be determined in each case by weighing the gravity of the harm to the plaintiff against the utility of the conduct of the defendant Determination of the gravity of the harm involves consideration of the extent and character of the harm to the plaintiff, the social value which the law attaches to the type of use which is invaded, the suitability of the locality for that use, the burden on plaintiff to minimize the harm, and other relevant considerations arising upon the evidence. Determination of the utility of the conduct of the defendant involves consideration of the purpose of the defendant's conduct, the social value which the law attaches to that purpose, the suitability of the locality for the use defendant makes of the property, and other relevant considerations arising upon the evidence.... We emphasize that, even should alteration of the water flow by the defendant be "reasonable" in the sense that the social utility arising from the alteration outweighs the harm to the plaintiff, defendant may nevertheless be liable for damages for a private nuisance "if the resulting interference with another's use and enjoyment of land is greater than it is reasonable to require the other to bear under the circumstances without compensation." (citations omitted).
See also Ferguson v. City of Keene, 111 N.H. 222, 224, 225, 279 A.2d 605, 607-08 (1971) (citations omitted):
Defendant in this case was liable if the harm imposed upon the plaintiff was "greater than it is reasonable to require (her) to bear under the circumstances, without compensation." The circumstances include balancing the utility of the use against the gravity of the harm suffered by the plaintiff and if it meets the above test plaintiff is entitled to damages even though she could not obtain an injunction. (citations omitted).
See also Walsh v. Town of Stonington Water Pollution Control Authority, 250 Conn. 443, 456-57, 736 A.2d 811, 819 (1999):
The charge to the jury in the present case was consistent with our prior holdings on the element of unreasonable use. When viewed in the context of the charge as a whole, the jury instructions concerning unreasonable use conveyed to the jury that it was to take into consideration and weigh the conflicting interests involved. The trial court stated at the outset of the explanation of the unreasonable use element of the claim that the jury "must consider the location of the condition and any other circumstances that you find proven which indicate whether the defendants [were] making a reasonable use of the property." (Emphasis added.) This statement indicates that the jury must take into account a multiplicity of factors. Reference to the fact that the use of the property for a plant is a reasonable use makes clear that the use of the defendants' land to operate a plant is reasonable in and of itself. By then noting that the determination of reasonableness is to be made in the context of odors produced by the plant, the trial court underscored that the weighing process for the jury to conduct is of the reasonableness of use in light of the production of unreasonable odors that the jury had determined existed in its answers to the first four interrogatories. We disagree with the defendants, therefore, that the effect of the jury instruction was to remove the interests of the defendants from the jury's consideration. Rather, we conclude that the trial court's charge provided a reasonably clear instruction that the jury must consider many factors in determining the reasonableness of use, including the reasonableness of use as a plant that creates certain odors in the course of its operation. [emphasis in original].
See also Rainey v. St. Lawrence Homes, Inc., 174 N.C.App. 611, 614, 621 S.E.2d 217, 220 (2005); Graber v. City of Peoria, 156 Ariz. 553, 753 P.2d 1209, 1211 (1988). Board of Transp. v. Terminal Warehouse Corp., 44 N.C.App. 81, 91, 260 S.E.2d 696, 702 (1979); Blue Ridge Poultry & Egg Co. v. Clark, 211 Va. 139, 144, 176 S.E.2d 323, 327 (1970):
The doctrine of "balancing of equities" must be viewed in light of our long standing pronouncement that a private landowner is to be protected for injuries he may sustain "even though inflicted by forces which constitute factors in our material development and growth." (citations omitted).
See also Taylor v. Culloden Public Service Dist., 214 W.Va. 639, 649, 591 S.E.2d 197, 207 (2003):
We take a dim view of WVAWC's suggestion that a reversal of the lower court's ruling will effectively halt other companies from ever agreeing to assume operation of utilities which are experiencing difficulties. We similarly find offensive the suggestion that the social value of providing a wastewater treatment plant so outweighs the gravity of the harm experienced by the Balls that there can be no recovery under nuisance law on the facts of this case. See generally, Hendricks v. Stalnaker, 181 W.Va. 31, 34-35, 380 S.E.2d 198, 201-02 (1989) (discussing use of balancing test for determining whether interference with landowner's private use and enjoyment of property is unreasonable and, therefore, a nuisance). Operating a business or providing a service that has societal benefits does not give a corporate entity license to freely pollute the waters of this State or to negatively affect the use and enjoyment of privately owned property.
See also Hughes v. Emerald Mines Corp., 303 Pa.Super. 426, 438, 450 A.2d 1, 7 (1982):
No one is contending that the mining of coal is not a useful activity, and airshafts are a necessary part of that activity as safeguards to the health of miners. "Unreasonable", however, is a term of art, a legal definition rather than a moral judgment on the good sense of a party. Utility of an act must be balanced against the bad effects resulting from that act in determining its reasonableness. The harm to plaintiffs in the loss of both their wells was undeniably "severe," and we are inclined to agree with the finder of fact that the loss is "greater than they should be required to bear without compensation," "regardless of the utility of the conduct." (Citations omitted).
[8] See generally Lewin, Jeff L., "The Silent Revolution in West Virginia's Law of Nuisance," 92 W.Va.L.Rev. 235 (Winter 1989-90) for a discussion of how, in the context of nuisance law and related causes of action and doctrines, determining "reasonableness" requires looking at the interests and conduct of both the plaintiff and the defendant.
[9] The plaintiffs in the Coal River case also argue that it was wrong for their complaints to be dismissed after nearly six years of litigation, after review by this Court in In re Flood Litigation, supra, and after the plaintiffs' investment of literally millions of dollars in investigation. We agree that these factors strongly militate against the dismissal of the complaint.
[10] The defendants cite to the recent United States Supreme Court case of Bell Atlantic v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). That case involved a complaint that alleged "parallel business conduct" in support of charging an alleged illegal conspiracy to violate anti-trust laws. The Supreme Court held that merely alleging such parallel conduct without also alleging an actual agreement between the alleged conspirators did not state a cause of action, and set forth language suggesting that a complaint in federal court must now "plausibly suggest" that there are facts that would support the plaintiffs' claim. Although this Court has not considered whether such a standard should be adopted, the Coal River plaintiffs' complaint clearly meets that standard. The Panel judge cited to Harold's Auto Parts, Inc. v. Mangialardi, 889 So.2d 493 (Miss.2004), where the court ruled that a generic "mass tort" complaint was not specific enough in a case where 264 plaintiffs were exposed over a seventy-five-year period of time to asbestos products associated with 137 manufacturers in approximately 600 workplaces. In the Coal River case, the plaintiffs are in one specific watershed, and they allege injuries suffered on one day as a result of the conduct of specific defendants' operations in that one watershed, and their complaint is far more specific than the one at issue in Harold's Auto Parts.
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265 Cal.App.2d 14 (1968)
THE PEOPLE, Plaintiff and Respondent,
v.
BENJAMIN GRAYS, Defendant and Appellant.
Crim. No. 6501.
California Court of Appeals. First Dist., Div. Two.
Aug. 19, 1968.
Edwin T. Caldwell, under appointment by the Court of Appeal, for Defendant and Appellant.
Thomas C. Lynch, Attorney General, Edward P. O'Brien and Horace Wheatley, Deputy Attorneys General, for Plaintiff and Respondent. *16
SHOEMAKER, P. J.
Defendants Benjamin Grays and Alfred Smith, Jr., were jointly charged by indictment with two counts of selling heroin, in violation of section 11501 of the Health and Safety Code. Defendant Smith subsequently entered a plea of guilty, and the case proceeded to trial against defendant Grays only. After a trial by jury, he was acquitted of the first count and convicted of the second. He appeals from the judgment of conviction.
The evidence bearing upon the offense charged in the second count of the indictment may be summarized as follows: Sometime between 8 and 9 p.m. on August 11, 1966, Walker, a state narcotic agent, met with Fish, an informant, at the office of the narcotic bureau in San Francisco. Fish placed a telephone call to Alfred Smith at 870 Grove Street, and Walker, with Fish's consent, recorded the call and listened in. Walker heard Fish inform Smith that he wanted a "whole one," a term which in narcotics parlance means a full ounce of heroin. Fish and Smith agreed upon a price of $350.
Fish was then searched by Noel, another narcotic agent, and was found to be in possession of no narcotics. Fish was equipped with a radio transmitter, and was then driven by Walker and Narcotic Agent Ohlson to the intersection of Eddy and Buchanan Streets. Noel, in the meantime, drove to the apartment building located at 870 Grove Street and parked outside. He saw Smith and defendant Grays emerge from the building and get into a white Ford Thunderbird. Noel followed the car, which proceeded to Gilmore's Barbecue on Fillmore Street. Defendant, who had been occupying the passenger seat, then got out of the car and entered the barbecue.
In the meantime, Agents Walker and Ohlson had arrived at Eddy and Buchanan Streets and had furnished Fish with $350 in state funds. The serial numbers of the bills had all previously been recorded by the narcotic bureau. Fish then got out of the car and stood in a parking lot located at the intersection.
Walker and Ohlson remained nearby and saw a white Thunderbird drive up. Fish got into the Thunderbird, and the two agents, who had a radio receiver in their car, heard Fish ask the driver of the Thunderbird what had taken him so long. A male voice, which Walker recognized as Smith's, replied that he had taken a friend to get some food. The Thunderbird then proceeded to the corner of Fillmore and Eddy Streets, and the agents, who had followed in their car, heard Fish counting out money. Fish asked Smith why he had *17 stopped the car, and the latter replied that he was going to pick up his friend who was in getting some food. Fish then stated that he thought it was a hot part of town and that they could be doing business elsewhere. At this point, Smith left the car, walked to Gilmore's Barbecue and entered.
Agents Walker and Ohlson had meanwhile driven past the Thunderbird, made a U-turn and parked on Fillmore Street opposite Gilmore's Barbecue. They saw defendant Grays looking out the window of the restaurant and then saw Smith enter and confer briefly with defendant. Smith then left the restaurant and walked back to Fish, and the agents heard him say that "this guy" didn't want to come out to the car; that he and Fish should go into the restaurant because he and his friend were concerned about a vehicle which had been parked near their house when they left it earlier that evening. Although Fish indicated that he would rather do business at another location, he ultimately agreed to enter the restaurant.
Agents Walker and Ohlson then observed Smith and Fish enter the restaurant, where they joined defendant and sat down in a booth. The agents heard Smith inquire whether there was a restroom. Fish replied that there was, and he and defendant then walked toward the rear of the restaurant and disappeared from the agents' view. The agents then heard a voice which Walker subsequently identified as defendant's state, "Here. I guess you know what you are doing. There is an awful lot of heat here." Fish and defendant then returned to the front of the restaurant, and Fish proceeded on out the door. He walked up Fillmore Street some distance and then took off his hat as a prearranged signal that he had made a purchase of narcotics. Agent Noel immediately approached Fish, and the latter handed him four balloons. Noel then searched Fish and found no currency in his possession. The contents of the four balloons were subsequently analyzed by a chemist. Three of the balloons were found to contain heroin, and the fourth was found to contain milk sugar. The quantity of heroin in the three balloons was slightly over one-half ounce.
Smith and defendant had left Gilmore's Barbecue shortly after Fish and had driven off in the Thunderbird. Agents Walker and Ohlson followed in their car until the Thunderbird came to a halt at a stoplight. The two agents then left their car and arrested Smith and defendant. Defendant was searched, and $350 was found in his pants pocket. The numbers on all the bills corresponded with those previously *18 recorded by the narcotic bureau. Walker denied that defendant made any statement at the time of his arrest. Ohlson likewise denied that Smith made any statement to the effect that he had given the $350 to defendant.
Defendant, testifying in his own behalf, stated that he lived in Fresno and had come to San Francisco on August 8 or 9, 1966, for the purpose of buying some clothes. He admitted that he knew Smith and had been with him on August 11, 1966, but denied having any knowledge of a sale of heroin. He admitted having been inside the apartment building at 870 Grove Street and further admitted that Smith had driven him to Gilmore's Barbecue on August 11, 1966. According to defendant, Smith subsequently returned to the restaurant, unaccompanied by anyone else, and sat next to defendant at the counter. Defendant did not know anyone else in the restaurant and did not speak to anyone other than Smith. He did not know Fish and did not see him at any time on August 11. He did not go to the rear of Gilmore's Barbecue at any time. Defendant explained his possession of the $350 in state funds by stating that immediately prior to his arrest, Smith had handed him the money and stated, "Hold this for me." Defendant asked no questions and put the money in his pocket. According to defendant, Smith later made the statement, in the presence of one of the narcotic agents, that he had given the money to defendant. Defendant believed that this statement was made after he and Smith had been taken to the narcotic bureau and at a time when Smith was being questioned in a room adjacent to that in which defendant was being held. Defendant was unable to say which of the narcotic agents was with him at the time or which of the agents was questioning Smith.
Ohlson testified in rebuttal that defendant and Smith were taken to the narcotic bureau immediately after their arrest and were placed in separate rooms in order that each might be questioned outside the hearing of the other. The rooms were not connected and the doors leading from each of the rooms into the hall were closed. Ohlson had talked with Smith about the events resulting in his arrest, and Smith had at no time stated that he had given the $350 to defendant.
[1a] Defendant Grays first contends that the evidence is insufficient to support his conviction because he was not shown to have been a party to the agreement between Smith and Fish, whereby the former was to sell heroin to the latter. Defendant takes the position that his only connection with the *19 illegal sale transacted by Smith and Fish was that he was an "unaware dupe" who happened to be present at Gilmore's Barbecue at a time when Smith was completing the sale to Fish. Defendant, in his brief, accepts the fact (contrary to his sworn testimony) that after Smith and Fish entered Gilmore's Barbecue, he (the defendant) was seen to accompany Fish to the rear of the restaurant and was thereafter heard to say, "Here. I guess you know what you are doing. There is an awful lot of heat here." Defendant also concedes that it was he who had possession of the $350 in state funds at the time of the arrest. However, defendant denies that this evidence made up for an alleged gap in the surveillance by the narcotic agents. Thus defendant reasons that Smith could easily have supplied Fish with the heroin while they were seated at the booth in Gilmore's Barbecue and that defendant's remarks from the rear of the restaurant could have been made while he was observing Fish in the act of taking an oral dose of the heroin received from Smith. Defendant likewise reasons that his possession of the $350 in state funds is entirely consistent with his innocence, since his testimony that Smith gave him the funds immediately prior to his arrest is supported by Walker's testimony that Fish counted out the money before he and Smith entered Gilmore's Barbecue and, according to defendant, presumably gave the money to Smith at that time. Defendant thus contends that the instant case is one in which the surveillance was not sufficiently continuous to exclude the possibility that the sale was effected by Smith alone. He also asserts that he could not properly be held guilty as an aider or abettor of the illegal sale because he was not shown to possess the requisite guilty knowledge.
[2] The basic difficulty with defendant's position is that he views the evidence in the light most favorable to his position and has overlooked the well-established rule that an appellate court must assume in support of the judgment the existence of every fact which the jury could reasonably deduce from the evidence. (People v. Alonzo (1958) 158 Cal.App.2d 45, 47 [322 P.2d 42].)
Although possession of marked money is insufficient, in itself, to prove that a defendant made an illegal sale of narcotics (People v. Mateo (1959) 171 Cal.App.2d 850, 855 [341 P.2d 768]), the evidence in support of defendant's conviction is clearly not confined to his possession of the $350 in state funds. The evidence likewise does not bring it within the purview of those cases, upon which defendant relies, which have *20 required proof that the purchaser of the narcotics lacked the opportunity to contact anyone other than defendant at the time of the alleged sale. (See opinion of this division in the case of People v. Castedy (1961) 194 Cal.App.2d 763, 766 [15 Cal.Rptr. 413].)
[1b] Although defendant argues that Smith could have given the heroin to Fish while they were seated in the booth at Gilmore's Barbecue, agents Walker and Ohlson were maintaining radio contact with Fish at the time and heard no remark indicative of such an occurrence. On the other hand, the agents did hear defendant remark, "Here," and comment upon the "heat" after he and Fish had gone to the back of the restaurant. The agents did not hear Fish speak to any person other than Smith or defendant at any time and similarly did not see him come into contact with anyone but them. This evidence, coupled with defendant's possession of the state funds, would certainly support the jury's implied finding that the heroin was transferred by defendant to Fish while the two men were in the rear of Gilmore's Barbecue. Under such circumstances, defendant was guilty as a principal, for knowingly aiding and abetting in the sale of heroin even if the money had in fact been previously given to Smith.
[3a] Defendant next contends that he was deprived of a fair trial because the prosecution failed to produce the informant, Fish, as a witness. Defendant contends that Fish was an active participant in the sale and that the People's case was legally insufficient in the absence of his testimony. Defendant also asserts that Fish's testimony might have served to exonerate him. He concedes that Walker denied, during voir dire examination, that he had any knowledge of Fish's whereabouts at the time of trial, but asserts that if the prosecution was unable to produce the witness, the trial court ought to have instructed the jury, on its own motion, to return a verdict of acquittal or, at the very least, that unless the absence of the witness was sufficiently explained, it should be inferred that his testimony would have been unfavorable to the prosecution.
Defendant's contention relative to the insufficiency of the People's case, in the absence of Fish's testimony, has been discussed above and determined to be untenable. It follows that an instruction to acquit would have been improper.
[4] It is also settled that the prosecution's failure to produce an informant is a ground for reversal only if there is a showing of active police connivance in the nonavailability of *21 the witness. (People v. Arzola (1968) 258 Cal.App.2d 124, 130 [65 Cal.Rptr. 372]; People v. White (1966) 239 Cal.App.2d 355, 357-358 [48 Cal.Rptr. 756]; People v. Brooks (1965) 234 Cal.App.2d 662, 678 [44 Cal.Rptr. 661].) [3b] In the instant case, no such showing was made. Moreover, defendant made no objection to the informant's absence, made no attempt to call him as a witness, and did not seek a continuance in order to locate him.
Defendant's suggestion that the jury should have been instructed to infer that Fish's testimony would have been unfavorable to the prosecution is based upon Washington v. United States (D.C. 1958) 258 F.2d 696 [103 App.D.C. 396], and People v. Castedy, supra, at page 770. In the Washington case, the court merely held that no claim of error could be predicated upon the government's failure to produce an informant at the trial where there was evidence that the prosecution had made reasonable efforts to locate the absent witness and the jury had been instructed that it might draw the inference that the testimony of that witness would be unfavorable to the government unless the witness' absence was sufficiently explained. In Castedy, the court referred to the holding in the Washington case with apparent approval.
Neither of these cases holds that the trial court is required, on its own motion, to instruct the jury relative to the inference which may be drawn from an informant's failure to testify. [5] The instant case falls within the general rule that a trial court has a duty to give instructions only on the general principles of law governing the case, but need not instruct on specific points developed at the trial unless requested. (People v. Jones (1964) 225 Cal.App.2d 434, 437 [37 Cal.Rptr. 406].) [3c] Since defendant did not request the instruction in question, he is precluded from claiming that its omission was error.
[6a] Defendant's third and final contention is that the public defender's representation of both Smith and defendant caused a conflict of interest which denied defendant the undivided loyalty of his counsel and thereby deprived him of a fair trial.
Defendant points out that McNamara, assistant public defender, represented both Smith and defendant at their arraignment on January 20, 1967. According to a certified copy of a document appended to defendant's brief, Smith pleaded guilty to the third count of the indictment on November 25, 1966, at which time he was represented by another member of *22 the public defender's office. Smith was subsequently committed to the California Rehabilitation Center, under section 3051 of the Welfare and Institutions Code, but remained subject to the imposition of a sentence in the future.
Defendant, who continued to be represented by McNamara, entered a plea of not guilty on January 24, 1967, and his trial commenced on March 20, 1967. During the course of the trial and allegedly upon the insistence of defendant, his counsel called Smith as a witness for the defense. After the witness had admitted having been a codefendant in the case and having been committed to the California Rehabilitation Center, defense counsel stated that he had concluded, as a result of having interviewed Smith, that the court ought to advise the witness of his constitutional rights. The court then advised the witness of the privilege against self-incrimination. Smith invoked the privilege and declined to testify.
Defendant's claim of divided loyalty on the part of his trial counsel is based solely upon the fact that he asked the court to advise Smith of his constitutional rights and, during the discussion immediately following, made the remark that he did not wish to violate Smith's confidence and wanted to be sure that he was fully aware of his rights and was acting on his own volition. Defendant contends that this conduct on the part of his counsel demonstrates that he was attempting to protect Smith, whom he had previously represented, at the expense of defendant. Under such circumstances, defendant asserts that the trial court was under a duty to intervene, even in the absence of any request by defendant, and see to it that he was furnished with another attorney who was capable of giving his full loyalty to his client.
[7] People v. Welch (1963) 212 Cal.App.2d 397, 400-401 [28 Cal.Rptr. 112], upon which defendant relies, is authority for the rule that the trial court is under no duty to ascertain whether or not a conflict of interest might arise between codefendants for whom the same counsel has been appointed and that any such conflict should be brought to the court's attention by objection raised by defendants or counsel. [6b] In the instant case, McNamara represented both Smith and defendant at their arraignment; however, Smith entered a plea of guilty, while represented by another member of the public defender's office, before defendant's case ever went to trial. Thus, at the time defendant's trial commenced, it was not reasonably foreseeable that McNamara's prior representation of Smith would in any way detract from his loyalty to defendant. *23 Any possibility of a conflict in interest could not have become apparent to the court until such time as McNamara called Smith as a witness and indicated that he felt it proper that the court instruct the witness as to his constitutional rights. The record discloses that McNamara, at all stages of the trial, conducted an able and vigorous defense for the defendant.
Research discloses no prior decision dealing with the precise situation here present. It is doubtless true that all possibility of prejudice to defendant could have been obviated had McNamara resigned as defendant's attorney when he became aware of defendant's desire to call Smith as a witness. However, the record does not indicate when the decision to call Smith was made and, in any event, McNamara did not choose to withdraw from the case.
Under such circumstances, the question squarely presented is whether the trial court, which had no reason to anticipate any conflict of interest until Smith was called as a witness, should at that stage in the proceedings have taken the action suggested by defendant and appointed another attorney to represent him. This question must be answered in the negative for two reasons. First, defendant became aware of his counsel's feeling that the witness should be advised of his constitutional rights at the same time as the trial court and did not object nor bring his present position on the matter to the court's attention in any way. Second, the appointment of a new defense attorney at this stage in the proceedings obviously would have had no effect on Smith's decision to avail himself of his right not to testify. Since defendant does not suggest that the appointment of new counsel would have benefited him in any other way, we are satisfied that the trial court was under no duty to make such an appointment even had defendant requested it.
Judgment affirmed.
Agee, J., and Taylor, J., concurred.
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IN THE SUPREME COURT OF THE STATE OF IDAHO
Docket No. 38683
KYLE ATHAY, )
)
Plaintiff-Respondent, )
)
v. )
) Boise, August 2012 Term
RICH COUNTY, UTAH, )
) 2012 Opinion No. 139
Defendant-Appellant, )
) Filed: November 16, 2012
and )
) Stephen W. Kenyon, Clerk
DALE M. STACY; CHAD L. LUDWIG; )
GREGG ATHAY; BRENT R. BUNN; BEAR )
LAKE COUNTY, IDAHO, )
)
Defendants. )
)
Appeal from the District Court of the Sixth Judicial District, State of Idaho, Bear
Lake County. Hon. Mitchell W. Brown, District Judge.
District court rulings following jury trial, affirmed.
Pike, Herndon, Stosich & Johnston, Salt Lake City, UT for appellant. Peter Stirba
argued.
Craig R. Jorgensen, Pocatello, argued for respondent.
_______________________
BURDICK, Chief Justice
This case comes before this Court on an appeal from several district court rulings in an
ongoing dispute between Kyle Athay (Athay) and Rich County, Utah (Rich County). Athay was
injured in a motor vehicle collision with Daryl Ervin (Ervin), who was fleeing police pursuit.
Subsequently, Athay filed a civil suit against the pursuing law enforcement officers from Bear
Lake County, Idaho and Rich County. This Court previously heard argument on this case in
Athay v. Stacey, 142 Idaho 360, 128 P.3d 897 (2005) (“Athay I”), and in Athay v. Stacey, 146
Idaho 407, 196 P.3d 325 (2008) (“Athay II”).
1
After Athay II, a jury trial commenced with Rich County as the sole remaining defendant.
The jury returned a special verdict for Athay and awarded him $2,720,126.00 in economic
damages and $1,000,000 in non-economic damages. The jury found that Ervin was 70%
responsible for Athay’s injuries, and that Rich County was responsible for the remaining 30%.
On appeal, Rich County argues that the district court made multiple errors: that the
district court abused its discretion when it declined to disqualify the presiding judge for the
limited purpose of deciding Rich County’s First Motion for a New Trial; that the district court
erred by denying Rich County’s first and second motions for new trial; and that the district court
erred when it denied Rich County’s Motion for Judgment Notwithstanding the Verdict. We
affirm the decisions of the district court.
I. FACTUAL AND PROCEDURAL BACKGROUND
On June 10, 1999, Athay was injured when his vehicle was struck by Ervin, as Ervin fled
police pursuit. Rich County Sheriff Dale Stacey (Sheriff Stacey) had commenced pursuit of
Ervin in northern Utah and followed him for roughly sixty miles through Wyoming and into
Idaho. Once the pursuit entered Bear Lake County, Idaho, it was joined by Bear Lake County
Deputies Gregg Athay and Chad Ludwig who followed behind Sheriff Stacey. Athay had pulled
off the highway and stopped to help at the scene of a deer-vehicle collision on the highway about
three miles north of Montpelier. As he was pulling back onto the highway, the Mustang crashed
into his car. Athay II, 146 Idaho at 410, 196 P.3d at 328.
On April 19, 2002, Athay filed this lawsuit against Sheriff Stacey and Rich County,
against Bear Lake County Deputies Gregg Athay and Chad Ludwig, and against Bear Lake
County and its Sheriff, Brent Bunn. The district court granted the Defendants' motions for
summary judgment, and Athay appealed. This Court affirmed the dismissal as to Sheriff Brent
Bunn and Deputy Chad Ludwig, vacated the summary judgments as to the remaining
Defendants, and remanded the case for further proceedings. Athay I, 142 Idaho 360, 128 P.3d
897.
The issue again reached this Court in 2008 after the district court granted summary
judgment to the defendants. Athay II, 146 Idaho 407, 196 P.3d 325.
The district court held that the complaint must be dismissed as to all defendants
for various reasons including that the plaintiff failed to comply with the notice of
tort claim requirements of the Idaho Tort Claims Act, the plaintiff failed to post a
2
bond as required by Idaho Code § 6–610, and the conduct of the defendants did
not rise to the level of reckless disregard.
Id. at 410, 196 P.3d at 328. This Court affirmed the decision of the district court except as to
Rich County. As to Rich County, this Court held that there were genuine issues of material fact
in regards to whether Sheriff Stacey acted with reckless disregard. Id. at 422, 196 P.3d at 340.
The jury trial began on July 13, 2010, with Rich County as the sole remaining defendant.
After nine days of testimony and argument, the jury returned a special verdict for Athay and
awarded him $2,720,126.00 in economic damages and $1,000,000 in non-economic damages. In
the verdict, the jury found that Sheriff Stacey, as an agent of Rich County, was 30% at fault, and
that Ervin was 70% at fault.
Judge Brown, the presiding district judge, scheduled a status conference on September
16, 2010, to discuss post-trial issues. During the telephonic conference, Judge Brown disclosed
that a member of the court staff engaged in communications with Athay. Judge Brown stated
that his courtroom clerk, Brandy Peck (Peck), had multiple conversations with Athay in the form
of conversations in the hallway and text messaging. Peck assured Judge Brown that no
substantive information was exchanged in these communications.
On October 8, 2010, the district court entered a Judgment against Rich County in the
amount of $1,126,843.01 in accordance with the jury verdict.
On October 1, 2010, Rich County filed a motion for new trial (“First Motion for New
Trial”) with a supporting memorandum. According to Rich County, the motion was based solely
upon disclosed information regarding the communications between Athay and Peck. However,
this motion was not immediately resolved because Rich County filed a motion for limited
disqualification of Judge Brown on October 22, 2010.
In the motion for limited disqualification, Rich County alleged that Judge Brown had an
interest in the disposition of the First Motion for New Trial and could not render an impartial
decision. On November 4, 2010, the district court heard argument on and denied the motion for
limited disqualification.
Rich County also filed a second Motion for New Trial (“Second Motion for New Trial”)
and a motion for judgment notwithstanding the verdict (JNOV) concurrent with the motion for
limited disqualification. The court heard arguments and evidence on these motions on
November 18, 2010.
3
The district court denied Rich County’s First Motion for New Trial in a memorandum
decision on February 1, 2011. In the decision, the district court ruled that the motion was
procedurally defective under I.R.C.P. 59(a)(1), as it lacked an accompanying affidavit. In a
separate memorandum decision issued on February 14, 2011, the district court denied Rich
County’s Second Motion for New Trial and Motion for JNOV. On the Second Motion for New
Trial, the district court held that the motion was “fatally flawed because it does not set forth with
particularity the factual basis for its claim for new trial pursuant to the requirements of I.R.C.P.
59(a)(7).” On the motion for JNOV, the district court found that there was substantial evidence
in the record to support the jury’s verdict that Sheriff Stacey’s conduct rose to the level of
reckless disregard as defined by this Court.
Rich County timely filed a notice of appeal with this Court, alleging that the district court
erred in denying the motion for limited disqualification, the motion for JNOV, and the two
motions for new trial.
II. ISSUES ON APPEAL
1. Whether the district court judge erred by denying Rich County’s Motion for Limited
Disqualification of Judge and by declining to voluntarily disqualify himself from
deciding Rich County’s Motion for a New Trial.
2. Whether the district court erred in denying Rich County’s First Motion for New Trial.
3. Whether the district court erred when it struck Rich County’s Second Motion for New
Trial as untimely.
4. Whether the district court erred in denying Rich County’s Motion for Judgment
Notwithstanding the Verdict.
5. Whether Athay is entitled to attorney fees and costs on appeal.
III. ANALYSIS
A. The district judge did not err by denying Rich County’s Motion for Limited
Disqualification of Judge and by declining to voluntarily disqualify himself from
deciding Rich County’s Motion for a New Trial.
Rich County filed a motion for limited disqualification on October 22, 2010, and
argument on the motion was heard on November 4, 2010. The motion was filed pursuant to
I.R.C.P. 40(d)(2) and alleged that Judge Brown had an interest in the disposition of the First
Motion for New Trial and could not render an impartial decision. After acknowledging that this
matter is one of discretion, the district court stated its belief in its ability to remain impartial.
4
On appeal, Rich County argues that Judge Brown should be disqualified from presiding
over the First Motion for a New Trial based on his involvement in the facts which form the basis
for the motion. Additionally, Rich County alleges that Judge Brown has a biased interest in the
resolution of the motion.
1. Standard of Review
“Whether a judge’s involvement in a case reaches a point where disqualification from
further participation in a defendant’s case becomes necessary is left to the sound discretion of the
judge himself.” Sivak v. State, 112 Idaho 197, 206, 731 P.2d 192, 201 (1986).
To determine whether there is an abuse of discretion this Court considers whether
(1) the court correctly perceived the issue as one of discretion; (2) the court acted
within the boundaries of such discretion and consistently with legal standards
applicable to specific choices; and (3) the court reached its decision by an
exercise of reason.
Lee v. Nickerson, 146 Idaho 5, 9, 189 P.3d 467, 471 (2008).
2. Whether the district judge erred by denying Rich County’s Motion for Limited
Disqualification of Judge and by declining to voluntarily disqualify himself from
deciding Rich County’s Motion for a New Trial.
On appeal, Rich County argues that in order for Judge Brown to rule on the merits of the
First Motion for New Trial, the Judge would have to decide whether his staff member’s
testimony was to be believed and whether the conduct unfairly impacted the trial proceedings:
In other words, to grant Rich County’s Motion, Judge Brown would have
to admit that his own actions directly or indirectly necessitated a new trial. There
is no doubt that despite his assertions to the contrary, Judge Brown could not
possibly make a fair determination on this issue and should have granted Rich
County’s Motion for Disqualification.
In response, Athay argues that Rich County failed to demonstrate that Judge Brown had
any bias which prevented him from acting properly on the First Motion for New Trial. Since
there was no showing of bias, Athay argues that Judge Brown properly exercised his discretion
in deciding not to disqualify himself.
This Court previously held in Bach v. Bagley that “the standard for recusal of a judge,
based simply on information that he has learned in the course of judicial proceedings, is
extremely high.” 148 Idaho 784, 792, 229 P.3d 1146, 1154 (2010). The decision in Bach
adopted a standard from the United States Supreme Court opinion in Liteky v. United States, 510
U.S. 540 (1994). In Liteky, the Court noted that:
5
[O]pinions formed by the judge on the basis of facts introduced or events
occurring in the course of the current proceedings, or of prior proceedings, do not
constitute a basis for a bias or partiality motion unless they display a deep seated
favoritism or antagonism that would make fair judgment impossible.
Id., at 555–56. In Bach, the moving party provided no specific evidence of bias or prejudice by
the trial judge and failed to meet the Liteky standard. 148 Idaho at 792, 229 P.3d at 1154.
“[U]nless there is a demonstration of ‘pervasive bias’ derived either from an extrajudicial source
or facts and events occurring at trial, there is no basis for judicial recusal.” Id. at 791, 229 P.3d at
1153.
a. Peck’s communication with Athay
In this case, Judge Brown held a telephonic conference with the parties after he learned of
the communication between Peck and Athay. In the conference, Judge Brown informed the
parties of the nature of the communication:
It came to my attention during the course of trial that there was an
occasion where my in-the-courtroom-clerk, Brandy, had some conversations out
in the hall during the course of the trial with the plaintiff Kyle Athay. I was made
aware of this and I told her at the time she was an extension of the Court and that
those types of communications were not appropriate and should not continue. . . .
I inquired of her at that time what the nature of the conversations were and
she indicated that they were just, you know, general in nature and in no way
involved the nature of the case or any of the proceedings or those kind of issues. .
. . I instructed her that those communications were to be discontinued.
After the trial I learned that those communications have continued in the
way of text messaging and I have again had discussions with her regarding those
communications and the inappropriate nature of those communications. I have
again been assured by her that there were no substantive issues discussed with
respect to the case but again they were more of a general nature and getting to
know one another, background information and those kind of issues.
The judge then indicated that he felt an obligation to disclose this information to the parties:
I did feel once I had learned that the conversations did not cease after my one
discussion with her about it during the course of the trial, I felt an obligation to
disclose that to both parties and so I have satisfied myself that despite the fact that
the conversations were wholly inappropriate and should not have occurred, I have
satisfied myself that nothing regarding the case or any of the privileged or
confidential information that went on in my chambers was a subject of those
conversations.
6
b. The motion for limited disqualification
After the conference, Rich County filed its First Motion for New Trial followed by the
motion for limited disqualification of Judge Brown. In an accompanying memorandum, Rich
County argued that disqualification was warranted under I.R.C.P. Rule 40(d)(2)(A) and the Idaho
Code of Judicial Conduct, Canon 3(E). Idaho Rule of Civil Procedure 40(d)(2)(A) states in
pertinent part that:
Any party to an action may disqualify a judge or magistrate for cause from
presiding in any action upon any of the following grounds:
1. That the judge or magistrate is a party, or is interested, in the action or
proceeding.
...
4. That the judge or magistrate is biased or prejudiced for or against any party or
the case in the action.
In the Idaho Code of Judicial Conduct, Canon 3(E)(1)(a) states that:
A judge shall disqualify himself or herself in a proceeding in which the judge’s
impartiality might reasonably be questioned, including but not limited to instances
where: (a) the judge has a personal bias or prejudice concerning a party or a
party’s lawyer, or has personal knowledge of disputed evidentiary facts that might
reasonably affect the judge’s impartiality in the proceedings.
On the application of the Idaho Code of Judicial Conduct to staff, Canon 3(C)(2) states that:
A judge shall require staff, court officials and others subject to the judge’s
discretion and control to observe the standards diligence that apply to the judge
and to refrain from manifesting bias or prejudice in the performance of their
official duties.
c. Hearing on the motion for limited disqualification
On November 4, 2010, a hearing was held on the motion for limited disqualification. At
the hearing, Rich County argued that Judge Brown had an irreconcilable appearance of bias or
interest in hearing evidence where his staff member’s credibility and conduct is to be decided.
The Judge began his analysis with a discussion of the relevant issues:
But as I see this, there are two distinct issues as I am analyzing this case. And one
is what my ethical and moral obligations are pursuant to the judicial canons and
how to deal with this issue based upon a clear breach of those canons by one of
my staff. . . . That was improper, inappropriate and it needs to be dealt with. And
I understand that and I have certain responsibilities that I feel flow from that as far
as educating, teaching and disciplining my staff associated with those issues.
And then the other prong of this analysis which is what I think we are here
about today is, how does that affect the proceeding of this trial and the now
request for a Motion for a New Trial. And as I evaluate that, I am not certain that
7
my role as a judge in fulfilling any judicial canon responsibilities and educating,
addressing and disciplining my staff for breaches of those necessarily come into
play. It is the communication and what effect, if any, that had on the Judge and/or
the jury that comes into play with respect to the Motion for a New Trial.
Judge Brown then stated confidence in his ability to render an impartial decision on the motion:
The Court does have the ability to adequately assess and determine
whether or not it . . . can continue to act in a fair and impartial manner in
addressing these issues, despite the fact that it involves one of my subordinates,
one of my employees, one of my staff who I do have a relationship with . . . .
With this rationale, the district court denied the motion for limited disqualification, and signaled
its intent to proceed with hearings on the First Motion for New Trial.
d. Applicable legal standards
When a member of the court staff engages in unauthorized communication with one of
the parties there is a clear problem with appearances and perceptions. Here however, there is
nothing in the existing case law that would impute the actions of a member of the court staff to
the judge. Idaho Code of Judicial Conduct Canon 3(B)(7) states that “[a] judge shall not initiate,
permit, or consider ex parte communications, or consider other communications made to the
judge outside the presence of the parties concerning a pending or impending proceeding . . . .”
Exceptions to Canon 3(B)(7) include circumstances that require ex parte communication for
scheduling or administrative purposes. Canon 3(B)(7)(a). The Canon specifically references
communications made either by or to the judge, including communication permitted by the
judge. There is no language in the Canon that would extend this prohibition to include all
communication by a court official to one of the parties. On the contrary, some communication
from court staff to the parties is essential for scheduling and other gatekeeping functions of the
court. To be considered ex parte, there must be some transmission of information between the
judge and the party—or the jury—through the court staff. See, e.g., Reichmann v. State, 966
So.2d 298, 318 (Fla. 2007) (“Nevertheless, we again caution that trial judges should be careful to
avoid ex parte contacts of any kind, even through the use of judicial assistants, that could be
perceived to have been made without the knowledge of all parties.”).
Appellant’s argument seems to be that based upon the Idaho Code of Judicial Conduct
Canon 3(C)(2), a staff member’s conduct must be equated to the court’s conduct. Canon 3(C)(2)
orders a judge to “require staff . . . to refrain from manifesting bias or prejudice.” The judge’s
responsibility then is to make sure the staff observes the same standards of diligence as a judge
8
in not showing bias or prejudice. But it does not impute a staff member’s conduct to the judge.
Additionally, in the first instance Judge Brown complied with Canon 3(C)(2) in admonishing the
staff member to cease contact and educating her about her inappropriate behavior. Then, upon
finding another violation, Judge Brown exposed her conduct to counsel for further independent
investigation. He has done as the Canons instruct.
Next, Appellant argues that the judge could not decide the credibility of his staff member
without an appearance of bias. However, Judge Brown’s acknowledgment of her misbehavior
shows he had no hesitancy in addressing his ethical and legal duty to tell counsel so they could
explore the possible impact that her conduct had on the fairness of the trial. Judge Brown’s
remarks show he found her conduct to be reprehensible but that he also knew his responsibilities
between his ethical duty and his legal duty under Canon 3(C)(2) pursuant to I.R.C.P. 40(d)(2)(A)
Additionally, there is no evidence that the staff member manifested bias or prejudice or
that any confidential information was passed between the staff member and Athay. This,
coupled with Judge Brown’s forthcoming disclosure, would indicate that the high standard from
Bach has not been met by Rich County. Judge Brown’s disclosure in the September 16, 2010
telephonic hearing also demonstrated his willingness to question the conduct of his staff member.
The clerk’s conduct cannot be defended at any level, but such conduct does not
necessarily taint the judge or the proceeding. Unless the court official is relaying information
between the judge and the party, any communication between the clerk and Athay was not ex
parte under the Judicial Canons. Therefore, in the absence of any evidence of bias or that ex
parte communications reached and influenced the jury, we hold that the district judge did not err
by denying Rich County’s motion for limited disqualification of the judge.
B. The district court did not err in denying Rich County’s First Motion for a New Trial.
On October 1, 2010, Rich County filed its First Motion for New Trial and an
accompanying memorandum. In the memorandum, Rich County argued that a new trial is
warranted under I.R.C.P. 59, or that in the alternative all ex parte communication should be
produced. Arguments were heard and evidence was presented on November 18, 2010. In its
February 1, 2011 memorandum decision, the district court denied Rich County’s First Motion for
New Trial as procedurally defective under I.R.C.P. 59(a)(1).
On appeal, Rich County makes two distinct arguments on whether the district court erred
in denying the First Motion for a New Trial. First, Rich County argues that the motion was not
9
procedurally defective under I.R.C.P. 59(a). Second, Rich County argues that the motion should
have been granted on the merits.
1. Standard of Review.
“The interpretation of the Idaho Rules of Civil Procedure is a matter of law over which
this Court exercises free review.” Harrison v. Bd. of Prof’l Discipline of Idaho State Bd. of Med.,
145 Idaho 179, 181, 177 P.3d 393, 395 (2008). The Idaho Rules of Civil Procedure “shall be
liberally construed to secure the just, speedy and inexpensive determination of every action and
proceeding.” I.R.C.P. 1(a).
2. The district court did not err by holding that Rich County’s First Motion for a New
Trial was procedurally defective.
In its February 1, 2011 memorandum decision, the district court denied Rich County’s
First Motion for New Trial, as procedurally defective under I.R.C.P. 59(a)(7). Idaho Rule of
Civil Procedure 59(a)(1) allows a new trial to be granted if “[i]rregularity in the proceedings of
the court, jury or adverse party or any order of the court or abuse of discretion by which either
party was prevented from having a fair trial.” However, a motion for a new trial under I.R.C.P.
59(a)(1) “must be accompanied by an affidavit stating in detail the facts relied upon in support of
such motion for a new trial.” I.R.C.P. 59(a)(7).
In its decision, the district court held that Rich County’s motion was “procedurally
defective for its failure to support the motion with an affidavit.” In so holding, the district court
acknowledged that Rich County filed an affidavit of R. Blake Hamilton in support of the motion,
but found the affidavit defective as it was not filed contemporaneously with the motion as
required under I.R.C.P. 59(a)(7).
On appeal, Rich County argues that the district court abused its discretion when it denied
Rich County’s First Motion for New Trial based on the failure to contemporaneously file an
affidavit. Rich County argues that the district court “was fully aware that the only facts forming
the basis of Rich County’s First Motion were those the Court stated on the record, on its own
volition, on September 16, 2011 . . . .” On that point, Rich County argues that I.R.C.P. 59(a)(7)
only requires the contemporaneous submission of an affidavit if the grounds for new trial require
some new information that the court would not likely be aware of. Additionally, Rich County
argues that I.R.C.P. 1(a) states that the civil “rules shall be liberally construed to secure the just,
speedy and inexpensive determination of every action and proceeding.”
10
However, previous holdings of this Court make it clear that the requirement for an
accompanying affidavit in I.R.C.P. 59(a)(7) is mandatory. Kuhn v. Coldwell Banker Landmark,
Inc., 150 Idaho 240, 247, 245 P.3d 992, 999 (2010); Johannsen v. Utterbeck, 146 Idaho 423, 429,
196 P.3d 341, 347 (2008). In Johannsen, this Court held that the Appellant “procedurally
defaulted on this ground by failing to file an affidavit to accompany his motion for a new trial.”
146 Idaho at 429, 196 P.3d at 347. Here, the record on appeal shows that the First Motion for
New Trial was filed without an accompanying affidavit. Therefore, we hold that the district
court interpreted the rule properly when it found Rich County’s First Motion for New Trial to be
procedurally defective.
C. The district court did not err when it struck Rich County’s Second Motion for New
Trial as untimely.
On October 22, 2010, Rich County filed its second Motion for New Trial and on
November 5, 2010, filed a memorandum in support of the motion. After argument on the motion
was heard, the district court issued a memorandum decision and order on February 14, 2011. In
the decision, the district court held that Rich County’s Second Motion for New Trial was,
although timely under I.R.C.P. 59(b), “fatally flawed because it does not set forth with
particularity the factual basis for its claim for new trial pursuant to the requirements of I.R.C.P.
59(a)(7).” In reliance upon this Court’s opinion in Kuhn, 150 Idaho at 246, 245 P.3d at 998, the
district court found that the memorandum in support of the Second Motion for New Trial was not
filed within the required fourteen days post entry of judgment.
1. Standard of Review.
Like in Part III.B, “[t]he interpretation of the Idaho Rules of Civil Procedure is a matter
of law over which this Court exercises free review.” Harrison, 145 Idaho at 181, 177 P.3d at
395. The Idaho Rules of Civil Procedure “shall be liberally construed to secure the just, speedy
and inexpensive determination of every action and proceeding.” I.R.C.P. 1(a).
2. The district court did not err when it struck Rich County’s Second Motion for New
Trial as untimely.
Rich County argues on appeal that I.R.C.P. 59 does not set forth a specific time for filing
supporting memoranda of facts and law. In the absence of specific language, Rich County
argues that it relied upon I.R.C.P. 7(b)(3), which states in part that “[a]ny brief submitted in
support of a motion shall be filed with the court, and served so that it is received by the parties, at
least fourteen (14) days prior to the hearing.” I.R.C.P. 7(b)(3)(E). Additionally, Rich County
11
argues that the district court erred by relying upon Kuhn in two ways. First, that Kuhn did not
overrule prior precedent in Nations v. Bonner Bldg. Supply, 113 Idaho 568, 569, 746 P.2d 1027,
1028 (Ct. App. 1987). And second, that the district court improperly applied the holding in Kuhn
retroactively.
Idaho Rule of Civil Procedure 59(b) states that “[a] motion for a new trial shall be served
not later than fourteen (14) days after the entry of the judgment.” Additionally, any motion
based on subdivisions 6 or 7 of I.R.C.P. 59(a) “must set forth the factual grounds therefor with
particularity.” I.R.C.P. 59(a)(7). In Kuhn, this Court held that the fourteen-day time limit applies
to the requirement for particularity.
Appellants’ motion for a new trial fails to provide any factual grounds, and only
suggests that the motion ‘will be supported by a Memorandum in Support of
Alternative Motions that will be filed with the Court.’ The judgment in this matter
was filed on February 5, 2003. Appellants’ new trial motion, which was strictly
generic in nature, was filed on February 14. It was not until May 5, 2003, that
appellants filed their memorandum specifying the grounds for the motion,
together with their supporting affidavits. Because there was no factual support
filed in support of these motions within the fourteen-day period prescribed by the
rule, the district court properly denied the motion.
Kuhn, 150 Idaho at 248, 245 P.3d at 1000 (emphasis in original). As Rich County highlights,
Kuhn was decided on December 23, 2010, after arguments were heard on the second motion for
new trial. “The usual rule is that decisions of this Court apply retroactively to all past and
pending cases.” BHA Investments, Inc. v. City of Boise, 141 Idaho 168, 173, 108 P.3d 315, 320
(2004) (citing State v. Tipton, 99 Idaho 670, 672, 587 P.2d 305, 307 (1978)). Although this
Court has discretion to limit the retroactive application of a particular case, Kuhn does not have
any such limitation. See id.; Kuhn, 150 Idaho at 248, 245 P.3d at 1000. Additionally, this
element of Kuhn is not a pronouncement of new law. It appears to be a restatement of the
procedural rule in keeping with previous opinions, including Johannsen. 146 Idaho at 430, 196
P.3d at 348. “Any motion for a new trial based on insufficiency of the evidence must ‘set forth
the factual grounds therefor with particularity.’” Id. (quoting I.R.C.P. 59(a)(7)). It is clear from
the language of the rule, and this Court’s interpretations pre-Kuhn, that the requirement for
contemporaneous explanation is at least implied. Therefore, the memorandum filed on
November 5, 2010 was untimely as it pertains to the requirements of I.R.C.P. 59(a)(7).
Since the memorandum is untimely, this Court is left with the language found in the
motion itself. Rich County’s Second Motion for New Trial in its entirety reads:
12
Defendant Rich County, Utah, by and through undersigned counsel,
pursuant to Idaho R. Civ. Proc. 50 and 59, hereby files this Motion for New Trial,
or Alternatively, for Judgment Notwithstanding the Verdict. A Memorandum in
Support of this Motion will be filed in accordance with Rule 7 of the Idaho Rules
of Civil Procedure.
The motion does not express with any particularity the factual basis for the claim for new trial,
nor does it specify the subsection of I.R.C.P. 59(a) used for the appeal. We hold that the district
court properly interpreted the Idaho Rules of Civil Procedure when it denied Rich County’s
Second Motion for New Trial as procedurally non-compliant with I.R.C.P. 59(a)(7).
D. The district court did not err in denying Rich County’s Motion for Judgment
Notwithstanding the Verdict.
Rich County argues that there was insufficient evidence produced at trial for the jury to
find reckless disregard by Sheriff Stacey, and that absent this evidence the district judge should
grant the motion for judgment notwithstanding the verdict. In response, Athay argues that the
district court recognized numerous facts that would support the verdict and the finding that
Sheriff Stacey acted with reckless disregard.
1. Standard of Review
The standard of review of a grant or denial of a motion for JNOV is the
same as that of the trial court when ruling on the motion. A jury verdict must be
upheld if there is evidence of sufficient quantity and probative value that
reasonable minds could have reached a similar conclusion to that of the jury. In
reviewing a grant or denial of a motion for JNOV the court may not reweigh
evidence, consider witness credibility, or compare its factual findings with that of
the jury. The court reviews the facts as if the moving party had admitted any
adverse facts, drawing reasonable inferences in favor of the non-moving party.
Hall v. Farmers Alliance Mut. Ins. Co., 145 Idaho 313, 324, 179 P.3d 276, 287 (2008) (quoting
Gillingham Const., Inc. v. Newby–Wiggins Const., Inc., 142 Idaho 15, 21, 121 P.3d 946, 951
(2005)).
2. The district court did not err in denying Rich County’s Motion for Judgment
Notwithstanding the Verdict.
In its memorandum decision on Rich County’s motion, the district court found substantial
evidence in the record to support the jury’s verdict that Sheriff Stacey’s conduct rose to the level
of reckless disregard. Reckless disregard was defined by this Court in Athay II.
To constitute reckless disregard, the actor’s conduct must not only create
an unreasonable risk of bodily harm, but, as we held in Athay I, the actor must
actually perceive the high degree of probability that harm will result and continue
in his course of conduct. Actual knowledge of the high degree of probability that
13
harm will result does not require knowledge of the actual person or persons at
risk, or the exact manner in which they would be harmed. It only requires
knowledge of the high degree of probability of the kind of harm that the injured
party suffered.
Athay II, 146 Idaho at 414, 196 P.3d at 332 (internal citations omitted). As this Court stated in
Athay II, when another state is a defendant in a tort action brought in an Idaho court, the Idaho
Tort Claims Act will be applied “in the same manner as our State would be treated.” 146 Idaho at
421, 196 P.3d at 339. Under this doctrine, the reckless disregard standard applied to Sheriff
Stacey’s conduct.
The district court noted fifteen facts that the jury might have relied upon to reach the
conclusion that Sheriff Stacey acted with reckless disregard:
(1) Stacey initiated a stop of Daryl Ervin (Ervin) near Sage Creek Junction in
Rich County, Utah. The purpose of the intended stop was due to erratic driving
behavior and suspicion of DUI;
(2) However, Ervin did not stop; instead he fled and high speed pursuit ensued;
(3) This pursuit, which began in Utah, continued through Wyoming and into
Idaho;
(4) The testimony at trial established that it was between 63 and 66 miles from the
scene of the attempted stop to the scene of the Athay/Ervin accident;
(5) This pursuit involved law enforcement personnel from Rich County, Utah,
Lincoln County, Wyoming and Bear Lake County, Idaho;
(6) The pursuit involved speeds in excess of 96 miles per hour;
(7) The pursuit went through two population centers, Cokeville, Wyoming and
Montpelier, Idaho;
(8) The evidence established that this high speed pursuit was ongoing while there
was other traffic on the road. In fact it was established that the utility of the spike
strips was impaired because of other vehicles in close proximity to the strips when
Ervin came through that area;
(9) The testimony established that the deployment of spike strips was not
successful in stopping or even slowing the Ervin vehicle;
(10) For a period of approximately eleven (11) miles the Ervin vehicle was
driving on three (3) tires and the remnants of a fourth which had been destroyed
during the spiking incident;
(11) Despite the destruction of one of the tires on the Ervin vehicle, the high
speed pursuit continued at speeds in excess of 96 miles per hour;
(12) There was testimony that Ervin went through Montpelier, Idaho at high rates
of speed;
14
(13) There was testimony that at times, between the point where the spike strips
were deployed and the accident occurred, Ervin was operating his vehicle without
headlights being activated;
(14) There was testimony concerning a collision between the Ervin vehicle and a
truck being pulled into the Ranch Hand and testimony concerning Ervin’s vehicle
starting to fishtail as it accelerated after leaving Montpelier proper;
(15) Finally, Sheriff Stacey testified that he knew that there were risks to the
travelling public involved in this high speed pursuit.
Athay goes even further in his Respondent’s Brief, highlighting numerous exchanges with
Sheriff Stacey during the trial regarding the pursuit and Stacey’s role in that pursuit. For
example, after spike strips were deployed causing tire damage to Ervin’s mustang:
Q. And did you decide at that time to continue the chase?
A. I decided that I would continue to follow him and the other officers by that
time were also following.
...
Q. And so we have gone over the spike strips, he slowed to 50, you are a hundred
yards behind but he speeds up to 90?
A. Yes.
Q. And you are following him at 90?
A. Yes.
Q. How far behind were you as you went through Montpelier?
A. Maybe half a mile.
...
Q. And the Mustang sped up as it left town; is that correct?
A. I think so, yes.
Q. And you decided to continue the chase?
A. I decided that I would continue to follow the Mustang.
Later in his testimony, Sheriff Stacey indicated that, like driving in general, police chases end
“either because we step on the brakes and we stop voluntarily, our car breaks down or we get
into an accident.”
These examples demonstrate there was evidence presented at trial to provide sufficient
basis for the jury’s conclusion that Sheriff Stacey acted with reckless disregard as defined by this
Court. Therefore, we find that the district court did not err in denying Rich County’s Motion for
Judgment Notwithstanding the Verdict.
15
E. Athay is entitled to attorney fees on appeal.
Athay argues that he is entitled to costs and attorney fees on appeal pursuant to I.C. § 12-
121. In reply, Rich County argues that Athay failed to submit any argument to support the
request for attorney fees aside from naming the statute under which attorney fees may be
awarded.
The mere citation to a code provision, without explaining how the cited code section
provides for an award in the case or providing argument of how the section applies to the
circumstances in the case, is insufficient for an award of attorney fees on appeal. Clair v. Clair,
153 Idaho 278, __, 281 P.3d 115, 128 (2012) (citing Bagley v. Thomason, 149 Idaho 799, 805,
241 P.3d 972, 978 (2010)).
Athay’s entire request for attorney fees on appeal reads as follows:
Respondent requests an award of attorney’s fees pursuant to Idaho Code §
12-121 and I.A.R. 41. Idaho Code § 12-121 allows an award of attorney’s fees in
a civil action if the appeal merely invites the court to second guess the findings of
the lower court. Crowley v. Critchfield, 145 Idaho 509, 514, 181 P.3d 435, 440
(2007).
Attorney’s fees may also be awarded under section 12-121 if the appeal is
brought or defended frivolously, unreasonably, or without foundation. Id.
This particular request for fees would be improved by additional explanation, but it is valid since
it cites to authority and contains argument.
Idaho Code section 12-121 states that “[i]n any civil action, the judge may award
reasonable attorney’s fees to the prevailing party or parties, provided that this section shall not
alter, repeal or amend any staute which otherwise provides for the award of attorney’s fees.”
“An award of attorney's fees under I.C. § 12–121 is proper only where the Court is left with the
abiding belief that the appeal was brought, pursued or defended frivolously, unreasonably or
without foundation.” Chavez v. Barrus, 146 Idaho 212, 225, 192 P.3d 1036, 1049 (2008)
(internal quotations omitted).
For Athay to receive attorney fees on appeal, all four issues must be pursued frivolously
or without foundation. “If there is a legitimate, triable issue of fact or a legitimate issue of law,
attorney fees may not be awarded under this statute even though the losing party has asserted
factual or legal claims that are frivolous, unreasonable, or without foundation.” Thomas v.
Madsen, 142 Idaho 635, 639, 132 P.3d 392, 396 (2006). However, analyzing each issue
individually, it is clear that the appeal was pursued without foundation. On the disqualification
16
motion, the communication was not ex parte, and there was no evidence at all of actual bias or
perceived bias. On the two motions for new trial, there were clear statements of the rules to be
followed with interpretations backed by case law. On the JNOV, the issue of reckless disregard
was supported by admitted, substantial evidence that the jury or court could rely upon.
Therefore, we award attorney fees to Athay on appeal.
IV. CONCLUSION
We hold that the district court did not err when it declined to disqualify the judge for the
limited purpose of hearing Rich County’s First Motion for a New Trial. We also hold that Rich
County’s First Motion for a New Trial was defective because it lacked an accompanying
affidavit, and that Rich County’s Second Motion for a New Trial was defective because it did not
specify the factual grounds for the motion with particularity. Further, we hold that the district
court did not err by denying Rich County’s motion for judgment notwithstanding the verdict,
since there was adequate evidence presented to the jury to support a finding of reckless disregard
by Sheriff Stacey.
Attorney fees and costs are awarded to Athay on appeal.
Justices EISMANN, J. JONES, W. JONES and HORTON, CONCUR.
17
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136 Ariz. 440 (1983)
666 P.2d 540
Lloyd ROBERTSON, Superintendent of the Arizona Department of Liquor Licenses and Control, Nicholas Guttilla and Robert K. Corbin, Petitioners,
v.
SUPERIOR COURT OF the STATE OF ARIZONA, In and For the COUNTY OF PIMA, and Joseph Bonanno, real party in interest, Respondents.
No. 2 CA-CIV 4819.
Court of Appeals of Arizona, Division 2.
May 26, 1983.
*441 Robert K. Corbin, Atty. Gen. by John F. Kelly, Asst. Atty. Gen., Tucson, for petitioners.
Donau & Bolt by Alfred S. Donau, III, Tucson, for respondents.
OPINION
HOWARD, Chief Judge.
The sole issue in this special action is whether the superior court, in a petition for special action, is limited to reviewing the record made before the Arizona Liquor Board. We assume jurisdiction as we agree with petitioners that only the evidence presented to the board could be considered in reviewing its order denying a motion to quash a subpoena for deposition.
Real party in interest Joseph Bonanno, was subpoenaed to appear for deposition in a contested matter before the liquor board. He filed a motion to quash the subpoena on the ground that the stress generated by oral deposition might be fatal to him. Appended to the motion were various medical records which indicated a variety of medical problems in recent years, including heart disease, hypertension, a partially occluded internal carotid artery and cancer of the bladder. There was no medical evidence that an oral deposition would be life-threatening to him. The hearing officer therefore denied the motion to quash on the ground that Bonanno had not presented a sufficient basis to justify quashing the subpoena.
A superior court special action was filed alleging that the hearing officer had acted arbitrarily, capriciously, improperly and with reckless disregard for the well-being of Bonanno. Medical evidence was presented which had not been presented to the liquor board hearing officer. Petitioners objected to the admission of this evidence, arguing that the superior court was limited to consideration of the evidence presented to the board. Bonanno's position was that this was a trial de novo and therefore such evidence was admissible. The respondent court allowed the evidence which was in the form of an affidavit by one doctor and the testimony of another. According to both doctors, it would be inadvisable for Bonanno to subject himself to oral deposition which might cause a severe or fatal myocardial infarction. The respondent court found that the hearing officer had acted arbitrarily in denying the motion to quash, considering Bonanno's age, his present health condition, and the fact that he was not a party to the proceeding before the liquor board. It was ordered that the board's order be modified to require that *442 written interrogatories be served upon Bonanno, to be answered by him under oath.
Initially we would point out that the proceedings below were not brought pursuant to the Administrative Review Act, A.R.S. § 12-901 et seq.[1] Therefore a trial de novo as provided in A.R.S. § 12-910 was not available. This was a special action and the only questions to be considered were: (a) whether the hearing officer had failed to exercise discretion which he had a duty to exercise; or to perform a duty required by law as to which he had no discretion; or (b) whether the hearing officer had proceeded or was threatening to proceed without or in excess of jurisdiction or legal authority, or (c) whether his determination was arbitrary and capricious or an abuse of discretion. Rule 3, Rules of Procedure for Special Actions, 17A A.R.S.
Under these circumstances, the superior court was limited to reviewing the record made before the liquor board and could not hold a trial de novo. City of Phoenix v. Superior Court in and for the County of Maricopa, 110 Ariz. 155, 515 P.2d 1175 (1973). In order to find an abuse of discretion, arbitrariness, or capriciousness, it would have had to find that under similar circumstances no reasonable hearing officer would have denied the motion to quash the subpoena. Quigley v. City Court of the City of Tucson, 132 Ariz. 35, 643 P.2d 738 (App. 1982). The administrative record does not disclose such an abuse of discretion. As we indicated above, the medical records submitted to the hearing officer showed only that Bonanno had numerous health problems for a period of years. There was nothing to indicate that an oral deposition would generate such a stressful situation that his health would be endangered.
The order of the superior court is vacated and set aside.
HATHAWAY and BIRDSALL, JJ., concur.
NOTES
[1] A.R.S. § 4-211 provides that decisions of the board shall be subject to judicial review pursuant to the act.
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11TH COURT OF APPEALS
EASTLAND, TEXAS
JUDGMENT
Mario A. Barrera, * From the 32nd District Court
of Fisher County,
Trial Court No. 3499.
Vs. No. 11-16-00332-CR * July 19, 2018
The State of Texas, * Memorandum Opinion by Willson, J.
(Panel consists of: Willson, J.,
Bailey, J., and Wright, S.C.J.,
sitting by assignment)
This court has inspected the record in this cause and concludes that there
is no error in the judgment below. Therefore, in accordance with this court’s
opinion, the judgment of the trial court is in all things affirmed.
| {
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Unable to extract the content from this file. Please try reading the original. | {
"pile_set_name": "FreeLaw"
} |
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
No. 14-050V
Filed: August 7, 2014
(Not to be published)
****************************
KELLY R. DYER, Natural Mother and *
Guardian for E.D., a minor, *
* Stipulation; Attorneys’ Fees and Costs
Petitioner, *
v. *
*
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
*
****************************
Carol Gallagher, Esq., Carol L. Gallagher, Esquire, LLC, Linwood, NJ, for petitioner.
Lara Englund, Esq., U.S. Dept. of Justice, Washington, DC for respondent.
DECISION ON ATTORNEY FEES AND COSTS1
Gowen, Special Master:
In this case under the National Vaccine Injury Compensation Program,2 I issued
a Decision on July 25, 2014, dismissing this petition. On July 31, 2014, the parties filed
a stipulation for attorneys’ fees and costs. The stipulation indicates that respondent
does not object to the amended amount of $20,715.88 that petitioner is requesting.
Additionally, pursuant to General Order #9, the stipulation notes that petitioner incurred
no personal litigation costs.
I find that this petition was brought in good faith and that there existed a
reasonable basis for the claim. Therefore, an award for fees and costs is appropriate,
pursuant to 42 U.S.C. §§ 300aa-15(b) and (e)(1). Further, the proposed amount seems
1
Because this unpublished decision contains a reasoned explanation for the action in this case, I intend
to post this decision on the United States Court of Federal Claims' website, in accordance with the E-
Government Act of 2002, Pub. L. No. 107-347, § 205, 116 Stat. 2899, 2913 (codified as amended at 44
U.S.C. § 3501 note (2006)). In accordance with Vaccine Rule 18(b), petitioner has 14 days to identify and
move to delete medical or other information, the disclosure of which would constitute an unwarranted
invasion of privacy. If, upon review, I agree that the identified material fits within this definition, I will
delete such material from public access.
2
The applicable statutory provisions defining the program are found at 42 U.S.C. § 300aa-10 et seq.
(2006).
reasonable and appropriate. Accordingly, I hereby award the total $20,715.883 in
the form of a check payable jointly to petitioner and petitioner’s counsel of
record, Carol Gallagher, Esq., for petitioner’s attorney fees and costs.
The clerk of the court shall enter judgment in accordance herewith.4
IT IS SO ORDERED.
s/Thomas L. Gowen
Thomas L. Gowen
Special Master
3
This amount is intended to cover all legal expenses incurred in this matter. This award encompasses all
charges by the attorney against a client, “advanced costs” as well as fees for legal services rendered.
Furthermore, 42 U.S.C. § 300aa-15(e)(3) prevents an attorney from charging or collecting fees (including
costs) that would be in addition to the amount awarded herein. See generally Beck v. Sec’y, HHS, 924
F.2d 1029 (Fed. Cir.1991).
4
Entry of judgment can be expedited by each party’s filing of a notice renouncing the right to seek review.
See Vaccine Rule 11(a).
| {
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