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950 A.2d 1217 (2008)
STATE
v.
MOTT.
No. 07-111.
Supreme Court of Vermont.
April 11, 2008.
Appeal disposed of without published opinion or memorandum decision. Affirmed.
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422 F.2d 128
Harold ST. CLAIR, Plaintiff-Appellee,v.LOCAL UNION NO. 515 OF the INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, Defendant-Appellant.
No. 19215.
United States Court of Appeals Sixth Circuit.
December 30, 1969.
S. Del Fuston, Chattanooga, Tenn., for defendant-appellant.
Robert A. Frazier, Chattanooga, Tenn., for plaintiff-appellee.
Before EDWARDS, McCREE, and COMBS, Circuit Judges.
McCREE, Circuit Judge.
1
Teamsters Local 515 appeals from a jury verdict for Harold St. Clair, one of its members, in an action charging unfair representation. The jury found that the union had unfairly represented plaintiff after his dismissal from a job and awarded him $5,000 as damages. In response to the written questions submitted by the District Judge, the jury also found that the union had not, as St. Clair claimed, caused or procured his dismissal in violation of Tenn. Code Ann. § 47-15-113. Plaintiff does not challenge this finding on appeal.
2
The union claims that the District Judge committed error in refusing to grant a directed verdict, in making certain evidentiary rulings, and in instructing on the measure of damages. We agree with the second and third of appellant's contentions and accordingly reverse and remand the case to the District Court for a new trial.
3
The facts, as nearly as can be determined,1 are these. St. Clair was employed by the Fuller Construction Company on a project in Scottsboro, Alabama, from August 4 until some time in September, 1966. On Monday, September 19, plaintiff did not come to work because he claimed he was sick. He attempted to notify the company, but apparently succeeded in reaching only a subordinate who did not pass his message along. Local 515's assistant business agent, Sanders, discovered that Fuller had placed another driver in St. Clair's job and immediately called St. Clair. After this conversation, Sanders telephoned one of Fuller's superintendents. Despite Sanders' arguments that St. Clair was entitled to miss work because of illness, the company's representative apparently replied that St. Clair was fired "because he didn't show up for work, he was an agitator and a troublemaker." After this conversation, Sanders telephoned the company twice and St. Clair four times in an effort to save St. Clair's job. There was no arbitration provision in the union's contract, and the only means the union could employ to obtain St. Clair's reinstatement were oral representations and, if these failed, a strike.
4
Two or three days after his dismissal, St. Clair received from the company a check and a termination slip noting that he had "quit".2 He attempted to bring the matter up again with Sanders, but the latter pleaded lack of time and referred him to Local 515's president, Hicks, who apparently did nothing. Within a few days the union had obtained another job at somewhat lower pay for St. Clair. This employment lasted for about a month, after which plaintiff drew unemployment compensation until February 16, 1967, when he became a deputy sheriff. The union claims that between October and February it referred him to other jobs, but St. Clair claims that he was not able to find work during that time.
5
* Appellant argues that the District Court should have directed a verdict in its favor on the issue of fair representation. We do not agree, because we believe that there was evidence from which a jury could have found unfair representation under applicable standards of law.
6
The phrase "fair representation" is something of a term of art, and the standards by which we are bound have not been set down explicitly in a code. However, the Supreme Court has spoken clearly enough to guide us here. See Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967). The Court there held that the duty of fair representation does not require a union to exhaust every theoretically available procedure simply on the demand of a union member. 386 U.S. at 192, 87 S.Ct. at 903; see also Acuff v. United Papermakers and Paperworkers, 404 F.2d 169 (5th Cir. 1968). As one court has said, "[t]he union is permitted to exercise its discretion in prosecuting grievances." Watson v. International Brotherhood of Teamsters, 399 F.2d 875, 880 (5th Cir. 1968). However, the ignoring or the perfunctory processing of a grievance may violate the duty of fair representation. Vaca v. Sipes, 386 U.S. at 194, 87 S.Ct. at 903. The decisive question is whether the union's conduct is "arbitrary, discriminatory, or in bad faith." 386 U.S. at 190, 87 S.Ct. at 916; Brady v. Trans World Airlines, Inc., 401 F.2d 87, 104 (3d Cir. 1968).
7
Here, there are facts from which a jury could so find. Union agents might have protested more vigorously; they might have threatened a strike, and they might even have urged the Local's members to walk off the Scottsboro project. Sanders' refusal to contact the company again after St. Clair received his termination slip might have constituted bad faith. Sanders' referral of St. Clair to Hicks and Hicks' inaction might also support such a charge, since there was a local election campaign in progress in which St. Clair was vocally opposing the incumbents, including Hicks (who subsequently lost). In considering the issue of good faith representation, the jury must of course consider the union's duty to represent all its members. It might conclude that the union was acting in good faith in refusing to strike and thereby jeopardizing many members' livelihoods over a grievance which either it or the employer in good faith considered frivolous. Although we think that the evidence of bad faith is minimal, there is enough to present a jury question.
II
8
Despite the adequacy of evidence to present a jury question on the issue of fair representation, there were several reversibly erroneous evidentiary rulings which taint the verdict.
9
(1) Hearsay. The District Court excluded as hearsay Sanders' testimony about what the company's representatives said to him in telephone conversations about St. Clair. Perhaps the Court's ruling might be defended on the theory that the testimony was offered to prove the truth of what the company representative asserted, i. e., that the company and not the union was responsible for the firing of St. Clair, although the evidence came in later anyway in response to questions by both counsel and the District Judge. But the proffered evidence was clearly relevant and admissible on the issue of good faith representation, and should have been admitted on that issue, with a proper instruction, if needed. It is unnecessary to decide whether the error was prejudicial because on retrial, the issue of responsibility for the firing will not be presented in the case, and the evidence will have to be admitted.
10
The District Court also allowed into evidence plaintiff's statement that Wiley, another Local 515 member, had told him that Sanders had told Wiley that St. Clair was a troublemaker. This was clearly hearsay and should not have been admitted.
11
(2) The Union Trial. Some time after the Local's election, St. Clair brought charges against Sanders, and the new majority of Local 515's executive board (which St. Clair had supported) removed Sanders from his position as assistant business agent. This action was reversed by a Teamsters appeal board. The District Court quite properly instructed the jury that they were not bound by the executive board's verdict, but admitted testimony by members of the executive board of statements made by Sanders during the Local proceedings. We believe that these rulings were correct, as far as they went, because the evidence at the union trial may have been relevant to the inquiry with which the Court was concerned, and to the extent that Sanders' statements were vicarious admissions of the union, they were competent. Of course, at the new trial, the District Court will again exclude reference to the union trial verdict and will instruct that the fact that charges were filed against Sanders is not evidence of unfair representation.
12
(3) St. Clair's Past Job History. The District Court excluded evidence of St. Clair's past job history. It appears that as a member of Local 515 he had held many jobs and had been fired for many reasons including driving a company truck while intoxicated, dishonesty and destroying company property, and, as a foreman, for refusing to carry out the direct order of a general superintendent. The District Judge held that the only evidence admissible was that pertaining to St. Clair's conduct on the Fuller Scottsboro project. We believe that this ruling unduly limited proper inquiry. The relevant issue here is not whether the union acted incorrectly, but whether it acted in bad faith. Vaca v. Sipes, 386 U.S. 171, 192-194, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967). In determining bad faith, the jury must look through the eyes of the union and see whether there appeared to be reasons upon which the union in good faith relied not to prosecute St. Clair's grievance to the fullest extent. Here the evidence of St. Clair's past job history, and the problems it might create in making the excuse for his absence creditable or in making him appear worthy of reinstatement, certainly tends to prove the union's claim that it acted in good faith in protesting twice to the company and, when that failed, in obtaining another job for plaintiff instead of striking and depriving a substantial number of its members of their jobs.
III
13
Although the union found other employment, albeit at slightly lower wages, for plaintiff a few days after his discharge, the jury awarded him $5,000 in damages. Presumably this award included damages not only for loss of income, but also for "humiliation and embarrassment in the eyes of his wife and children, and the loss of his home to a mortgage holder", elements which the District Court instructed the jurors they could consider. Although appellant made no objection to this instruction, we believe that giving it was plain error, and that the damages awarded cannot stand.
14
Generally in contract law consequential damages will not be awarded unless the consequences were clearly contemplated by the parties as being at the heart of the contract.3 Accordingly, the usual monetary measure of damages for wrongful discharge at common law,4 under the National Labor Relations Act,5 at arbitration,6 and under the Equal Employment Opportunity Act,7 is back pay less interim earnings.
15
Here the union is certainly liable for nothing more,8 and perhaps for less. As the jury found, the union did not procure plaintiff's discharge. It was the decision of the employer (although the District Court seems not to have decided whether the company's act was wrongful). As the Supreme Court said,
16
[D]amages attributable solely to the employer's breach of contract should not be charged to the union, but increases if any in those damages caused by the union's refusal to process the grievance should not be charged to the employer.
17
Vaca v. Sipes, 386 U.S. 171, 197-198, 87 S.Ct. 903, 920, 17 L.Ed.2d 842 (1967). The calculation of who caused which damages may present serious practical problems, but the Supreme Court has strongly implied that in cases like this, involving a discharge and an alleged failure by the union to take all available steps to remedy the employee's complaint, the increment of damages caused by the union's breach of duty is virtually de minimis. "[A]ll or almost all of Owens' [the employee's] damages would still be attributable to his allegedly wrongful discharge by Swift [the company]." Vaca v. Sipes, 386 U.S. at 198, 87 S.Ct. at 921. Furthermore, if the company did not act wrongfully in firing St. Clair, then clearly the union owes him no damages, since even if its duty had been fully discharged, St. Clair would not have retained his job.
18
If plaintiff wishes to recover damages from Fuller Construction, he may join the company as a party defendant. Vaca v. Sipes, 386 U.S. at 197, 87 S.Ct. at 903; see also Brady v. Trans World Airlines, Inc., 401 F.2d 87, 94-95 (3d Cir. 1968); Kress v. Local No. 776, International Brotherhood of Teamsters, 42 F.R.D. 643, 647 (M.D.Pa.1967) (employer an indispensable party).
19
The judgment is reversed and remanded to the District Court for proceedings not inconsistent with this opinion.
Notes:
1
There were many factual conflicts in the testimony. We are of course bound by the jury's verdicts and must accept as true that testimony which supports them best. The first of these verdicts, that the union did not cause or procure St. Clair's dismissal, poses little difficulty in this regard. But the second, that the union unfairly represented St. Clair, does, for it rests on the jury's notion of fairness as well as on its resolutions of factual conflicts in the testimony. And of course this verdict does not bind us insofar as it is conceivably the result of any errors in rulings on admissibility or in instructions to the jury
2
The wording of the termination slip is of no relevance at this stage of the controversy. It is relevant only to the plaintiff's theory that the union caused or procured his discharge. This theory apparently rested on the following interpretation of the facts: Sanders, not the company, told St. Clair he was fired; the company, as evidenced by the wording of the termination slip, thought St. Clair had quit; therefore, Sanders had never been told by the company that St. Clair was fired, but had himself made the decision, and had told the company that St. Clair had quit voluntarily
The evidence might have supported such a version, but we are foreclosed from considering it, because the jury rejected it, and the appellee does not question that rejection on appeal. Since none of the evidence which was excluded at trial, but which, we rule, must be admissible at the new trial, adds any strength to this theory, the jury's verdict on this contention cannot be disturbed.
3
See, e. g., Hadley v. Baxendale, 9 Exch. 341 (1854); 5 A. Corbin, Contracts, § 1007 (1964).
4
See Dukes v. Brotherhood of Painters, 191 Tenn. 495, 235 S.W.2d 7, 10, 26 A.L. R.2d 1223 (1950).
5
See, e. g., Miranda Fuel Co., 140 N.L. R.B. 131, enforcement denied on other grounds, 326 F.2d 172 (2d Cir. 1963).
6
See, e. g., United Steelworkers of America v. Enterprise Wheel & Car Co., 363 U.S. 593, 595, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960).
7
§ 706(g), 42 U.S.C. § 2000e-5(g) (back pay optional; must be reduced by "[i]nterim earnings or amounts earnable with reasonable diligence")
8
The issue of the length of the period over which plaintiff might be entitled to back pay less interim wages need not be decided on this appeal, and we offer no opinion on it
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173 F.Supp.2d 785 (2001)
Howard CONNOUR, Plaintiff,
v.
Larry G. MASSANARI, Acting Commissioner of Social Security, Defendant.
No. 01 C 701.
United States District Court, N.D. Illinois, Eastern Division.
November 9, 2001.
*786 *787 *788 Barry Alan Schultz, Schultz & Winick, PC, Evanston, IL, for Howard Connour, Plaintiff.
James Peter Fieweger, United States Attorney's Office, Chicago, IL, for Kenneth S. Apfel, Defendant.
MEMORANDUM OPINION AND ORDER
CASTILLO, District Judge.
Plaintiff Howard Connour seeks judicial review of the final decision of the Commissioner of Social Security ("Commissioner") denying his application for disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. §§ 416, 423. Connour claims that the Administrative Law Judge's ("ALJ") decision to deny him benefits should be reversed and set aside because it was not supported by substantial evidence. Because we find that the ALJ reasonably concluded that Connour could perform a significant number of jobs in the national economy and was, therefore, not disabled within the meaning of the Social Security Act, we affirm the ALJ's decision and deny Connour's motion for summary judgment. (R. 9-1.)
RELEVANT FACTS
Connour was fifty-two years old at the time of the ALJ's decision and had a General Equivalency Degree (GED). Connour last worked in October 1997 as a construction laborer, and prior to that he worked as a roofer.
I. Connour's Hearing Testimony
On March 15, 2000, Connour testified at a Social Security Administration Hearing ("SSA Hearing") in Urbana, Illinois before ALJ Barbara J. Welsch. At the hearing, Connour testified that he was unable to work because of neck pain and back pain in three different areas: (1) his middle back where he had a fractured vertebrae; (2) his lower back; and (3) the right sciatic nerve that goes down into his leg. Connour testified that although he underwent an angioplasty in 1997 to clear the arteries in his legs, he has never had surgery on his back. Connour further testified that he has undergone therapy for his back, with the most recent session in 1999. He stated that the medications for his back and neck pain include Vicodin, which makes him drowsy, and Darvon, which he *789 takes when he is going to be driving. Connour said that he drives a couple of days a week out of necessity. Connour further testified that he still has breathing problems and gets winded with any kind of physical exertion, but that he is not taking any medication for these problems because no doctor has ever prescribed anything. He said that he smokes two packs of cigarettes a day and that his doctor has told him to stop smoking.
Connour stated that on a typical day he wakes up at 7:00 a.m., has coffee, takes a shower, eats breakfast and talks with his wife before she goes to work. During the day, he watches television or reads. Occasionally, he visits with family or friends. His grandchildren visit with him approximately twice a week, but Connour stated that he does not babysit them. When his wife is at work, he fixes a sandwich or a can of soup for lunch, but he does no other housework. Connour said that he traveled to the local supermarket the week before the SSA Hearing to buy a book and a loaf of bread. He testified that he does not engage in outdoor activities. He owns a computer, but he rarely uses it because it bothers his back. Most recently, Connour used it to send an email to his sister approximately one month before the SSA Hearing.
The ALJ asked Connour why he left his roofing job, and he replied that he wanted to work outside of the Laborer's Union and to earn more money. Connour further testified that when he worked as a roofer, he was never a supervisor. When the ALJ inquired as to whether Connour had applied for any jobs since he stopped working as a construction laborer in 1997, he indicated that he had applied for approximately 200 different types of positions including factory, maintenance and fast food positions, but that he had not been offered any of the jobs. He stated that he informs potential employers of his back, cardiac and pulmonary problems.
When asked by his attorney to name the medications he is taking other than Vicodin and Darvon, Connour replied that Dr. Lee-Sigler also has him taking Paxil, and that his regular doctor, Dr. Bitts, prescribed Trental, Norvast and Lipitor, all of which he takes daily with an aspirin. Regarding his most recent work experience as a construction laborer, Connour stated that he typically worked ten to twelve hours a day, all except thirty minutes of which he spent on his feet. He stated that he frequently had to lift ten to ninety pounds, depending on the job he was doing. Finally, when questioned by his attorney as to why he no longer fishes or engages in house or yard work, Connour indicated that he has not done any of those things since 1997 because they cause him too much back pain.
II. Vocational Expert Nancy Wright's Testimony
The ALJ asked Vocational Expert Nancy Wright a series of questions regarding Connour's vocational profile and residual functional capacity ("RFC"). First, the ALJ posed a hypothetical question to Wright involving an individual of Connour's age, education and work experience. This individual was limited to exceptions including no jobs that required climbing or unprotected heights, repetitive bending or stooping, crawling, crouching, kneeling or over the shoulder work. The ALJ then asked Wright to explain how these restrictions would affect the individual's performance of his past relevant work. Wright replied that his ability to perform such work would be eliminated. (R. 4, Admin. R. at 50, SSA Hr'g Tr.)
When asked by the ALJ whether the individual in the hypothetical had any skills that could transfer to other jobs, *790 Wright replied that there were such jobs. (Id. at 50-51.) In the area of semi-skilled positions in the state of Illinois, Wright listed ride operator (3,565 jobs), production clerk (11,545 ) and car inspector (5,440). In the area of unskilled, lightlevel positions, Wright listed counter attendant (62,890), airline service representative (38,457), messenger (7,298), deli counter (10,485), cashier (126,860) and packer (18,704). Wright testified that none of the listed positions would require foot or leg controls or working in extreme cold or heat.
On cross-examination, Connour's attorney asked Wright whether Connour's previous positions as a construction laborer and roofer were considered semi-skilled or unskilled. Wright stated that she classified Connour's position as a construction laborer as unskilled and his roofer position as skilled. (Id. at 52-53.)
III. Medical Evidence
Connour was seen by various physicians and health care professionals at the Carle Clinic in Urbana, Illinois beginning in October 1997, when he alleged the onset of pain in his neck, middle back and lower back radiating into his right leg. On October 27, 1997, Dr. Noonan, an orthopedic physician, reported that Connour indicated that he had a two-month history of dorsal back pain due to a fall at work. The neurological exam of Connour's upper and lower extremities was normal, he had good neck movement and his straight leg raising was negative. Dr. Noonan diagnosed subacute dorsal back sprain and indicated that while he did not think surgery was necessary, he recommended a rehabilitation program before returning to work to prevent chronic pain syndrome. Dr. Noonan referred Connour to Dr. Lee-Sigler, a specialist in physical medicine and rehabilitation.
Dr. Lee-Sigler examined Connour in November 1997. Connour told Dr. Lee-Sigler that his back pain was relieved to some extent by sitting or lying flat, but was exacerbated by extension, being on his feet or walking. Upon physical examination, Dr. Lee-Sigler indicated that there was notable thoracic kyphosis but no atrophy or swelling, and he had four-plus to five out of five muscle strength in his lower limbs. Dr. Lee-Sigler diagnosed post-thoracic contusion/sprain and sacroiliac sprain, and she recommended physical therapy and medication. She noted that Connour should remain off of work for two and a half months and would need progressive conditioning prior to returning to work.
In December 1997, Connour saw Dr. Lee-Sigler and indicated that he had severe pain in the thoracic area and that his level of pain had not improved despite physical therapy. Her diagnosis was the same as in November 1997. She recommended continued physical therapy and sacroiliac joint injections. Dr. Lee-Sigler stated that Connour should remain off work for eight weeks and would need progressive conditioning prior to returning to work. Dr. Lee-Sigler referred Connour to Dr. Johnson for electrodiagnostic testing, which was performed in February 1998. The test results were essentially normal, revealing normal motor nerve studies and no needle electromyogram (EMG) abnormalities in the selected muscles tested. Magnetic resonance imaging (MRI) of the cervical spine revealed degenerative disc problems with mild disc bulging.
Dr. Lee-Sigler examined Connour in February 1998, at which time he complained of significant pain in the thoracic spine area radiating into his shoulders. Physical examination revealed that cervical, bilateral upper limb, lumbosacral and *791 bilateral lower limb ranges of motion were all within functional limits. Muscle strength was five out of five in the right and left lower limbs and right upper limb and four out of five in the left upper limb. Straight leg raising caused lower back pain on the right at seventy-five degrees. Her diagnosis was post-thoracic contusion, overlying myofascial pain with history of thoracic compression fracture, lumbar disc disease with flare and cervical disc disease. She thought, however, that the diagnosis was not significant enough to cause Connour's current symptoms. (Id. at 204, Feb. 11, 1998 Lee-Sigler Exam. Rpt.) Dr. Lee-Sigler advised continued physical therapy and recommended Dopplar studies to rule out thoracic outlet syndrome. Her March 1998 exam notes state that the Dopplar studies were essentially unremarkable. (Id. at 194, Mar. 3, 1998 Lee-Sigler Exam. Rpt.)
At the March 1998 exam, Dr. Lee-Sigler recommended additional back injections and a continuation and upgrade of Connour's physical therapy to advance him to progressive conditioning so that he could return to work. Dr. Lee-Sigler further recommended that Connour remain off of work for six more weeks. Connour's next examination by Dr. Lee-Sigler was in early April 1998, during which he reported having spasms in the left lumbar spine, pinching pain in his left neck, burning pain in the thoracic spine and tingling in his left leg. Physical examination revealed that cervical and lumbosacral ranges of motion were moderately restricted and that muscle strength was four out of five in the bilateral upper and lower limbs. Because his back pain had not responded to conservative therapy, Dr. Lee-Sigler referred Connour to a rheumatologist and discontinued therapy pending those results.
On April 24, 1998, Dr. Munoz, a rheumatologist, examined Connour. Dr. Munoz reported that there was no significant muscular weakness in any of the extremities, that deep tendon reflexes were symmetrical and that motion of hips, lumbar spine and cervical spine elicited pain. Dr. Munoz diagnosed significant degenerative disease in the cervical and lumbar spine. He also noted that Connour suffered from significant coronary heart disease and peripheral vascular disease. Dr. Lee-Sigler examined Connour in late April 1998 and reported moderately restricted range of motion of the cervical and lumbosacral muscles. Muscle strength was four-plus to five out of five in the bilateral upper and lower limbs. She noted some decreased sensation in the C8 dermatone, and that straight leg raising caused back pain at seventy-five degrees. Dr. Lee-Sigler opined that Connour was nearing maximum medical improvement and indicated that a functional capacity evaluation should be done so that more specific decisions could be made with regard to his work tolerances.
On June 16, 1998, Connour underwent a functional capacity evaluation conducted by two physical therapists at the Carle clinic. The exam lasted three hours. The therapists noted that Connour demonstrated a very decreased condition status with limited cervical and lumbar range of motion, and that he was unable to complete the required repetitions of certain activities due to subjective pain complaints. Regarding the legitimacy of Connour's efforts, the therapists noted that some discrepancies were observed, but that the evaluative findings appeared to be his current functional tolerances. The therapists concluded that based upon Connour's overall performance, he was performing at the "above-light" physical demand level, i.e. lifting ten pounds frequently and thirty pounds occasionally. Additionally, Connour demonstrated decreased tolerances to work postures including bending, reaching, *792 climbing, squatting, balancing, crawling, kneeling, walking and standing. The therapists recommended that Connour attend a back school to learn proper body mechanic techniques, restrict himself to lifting ten pounds frequently and thirty pounds occasionally, attend a daily group program for two weeks to establish a home exercise program to decrease pain, and then progress to a work-conditioning program to increase tolerance to work activities.
Dr. Lee-Sigler examined Connour ten days after the functional capacity evaluation. She indicated that he reported no change in symptoms, and concluded that he was testing at an "above-light" physical demand level. Dr. Lee-Sigler noted that she concurred with the recommendations of the functional capacity evaluation. Dr. Lee-Sigler next examined Connour in July 1998. The physical examination revealed a normal gait, muscle strength of four-plus to five out of five in the bilateral upper and lower limbs and decreased sensation in the fourth and fifth digits. She reported that Connour was functionally at maximum medical improvement. She opined that his permanent restrictions were lifting, pulling and pushing ten pounds frequently and thirty pounds occasionally, with a sit/stand option every twenty to thirty minutes. Dr. Lee-Sigler saw Connour in September 1998 for a medication adjustment and, in her examination notes, reiterated that she believed he was at maximum medical improvement. (Id. at 170, Sept. 23, 1998 Lee-Sigler Exam. Rpt.)
Connour underwent a consultative examination[1] by Dr. Patel on October 15, 1998. Dr. Patel reported that Connour's gait was normal, that he had some reduction in back, arm and leg range of motion and that he had normal reflexes and sensation. Dr. Patel diagnosed chronic back pain with a history of compression fractures of Connour's thoracic spine. Dr. Lee-Sigler again saw Connour in November 1998 for a medication adjustment. She reiterated that she believed Connour had reached maximum medical improvement and diagnosed the same permanent restrictions as in July 1998. (Id. at 169-70, Nov. 10, 1998 Lee-Sigler Exam. Rpt.)
Dr. Graham, a State SSA medical consultant, reviewed all of the reports in Connour's file and completed RFC evaluations in December 1998 and March 1999. Dr. Graham concluded that Connour could lift ten pounds frequently and twenty pounds occasionally, stand, walk or sit a total of six hours in an eight hour work day (with normal breaks) and perform unlimited pushing or pulling. Additionally, Dr. Graham noted that Connour must avoid concentrated exposure to heights and perform only occasional stooping, kneeling and crouching. Dr. Graham, however, indicated that the record did not include a treating source statement regarding Connour's physical capacities.
Dr. Lee-Sigler next examined Connour in May 1999. He complained of increased neck pain and pinching back pain and indicated that he was unable to find any truly comfortable neck position. X-rays revealed no changes from previous x-rays. The physical examination revealed slightly decreased range of motion of the cervical and lumbar spines. Muscle strength was four out of five in the bilateral upper and lower limbs and straight leg raising caused pain at thirty degrees. Dr. Lee-Sigler reduced Connour's functional status to a sedentary physical demand level, restricting lifting to no more than ten *793 pounds occasionally, with no bending or twisting past thirty degrees and a sit/ stand option every twenty to thirty minutes. She requested that a MRI and EMG be performed. In July 1999, Dr. Lee-Sigler reported that the EMG was essentially normal and that the cervical MRI was unchanged from the previous one conducted in February 1998. Dr. Lee-Sigler again examined Connour in September 1999 and diagnosed that he could lift, pull or push ten pounds on occasion, thirty pounds frequently, no bending or twisting past thirty degrees, with a sit/stand option every twenty to thirty minutes.
Connour saw Dr. Lee-Sigler next on January 19, 2000. He complained of worsening neck pain radiating to the shoulder region. She reported that muscle strength was relatively unchanged and that low-back range of motion was moderately restricted. She opined that Connour was totally disabled and unable to work outside the home, and again referred him to Dr. Johnson. (Id. at 304, Jan. 19, 2000 Lee-Sigler Exam. Rpt.) Dr. Johnson examined Connour on January 26, 2000. She reported moderate tenderness in the cervical paraspinal muscles, and that a very light touch caused a severe pain reaction. She diagnosed myofascial pain with significant muscle spasticity and indicated that she did not think prolotherapy was appropriate.
IV. The ALJ's Decision
On May 22, 2000, ALJ Barbara Welsch determined that, for the purpose of disability insurance benefits, Connour was not disabled. In reaching this conclusion, the ALJ performed the five-step analysis required by SSA regulations. 20 C.F.R. §§ 416.920, 404.1520. The ALJ found that Connour had not worked or otherwise engaged in any substantial, gainful activity at any time since the onset of his alleged disability on October 23, 1997. (R. 4, Admin. R. at 16, ALJ Decision.) Second, the ALJ stated that Connour's alleged inability to work due to breathing and heart problems was "not supported by the record." (Id. at 17.) The AJL determined, however, that Connour had documented degenerate lumbar cervical spondylosis with a history of thoracic compression fractures, and that his combination of impairments was severe. (Id.)
The ALJ concluded that "the degree of [Connour's] alleged pain and functional limitation was not credible and it was not supported by medical evidence or relevant credibility factors." (Id. at 22.) The ALJ determined that Connour had the RFC to perform exertional and non-exertional requirements of light work with some exceptions. (Id.) Based on the evidence, the ALJ determined that Connour was "limited ... to lifting no more than twenty pounds at a time with frequent lifting and carrying of objects weighing up to ten pounds ... should not perform repetitive bending or stooping ... should not perform work that requires crawling, crouching, kneeling or over shoulder work ... [and] should not climb at unprotected heights." (Id. at 20.) Based on the evidence and the vocational expert's testimony, the ALJ concluded that Connour was unable to perform his past relevant work as a construction laborer or roofer. (Id. at 21.)
On the other hand, based on the vocational expert's testimony and keeping in mind the non-exertional limitations stated above, the ALJ found that there were a significant number of jobs in the national economy which Connour could perform. (Id. at 23.) The ALJ concluded that Connour had skills transferable to the semi-skilled, light-level jobs of ride operator (3,655 jobs), production clerk (11,545) and *794 car inspector (5,440 jobs). (Id. at 21.) Additionally, the ALJ stated that even if Connour had no transferable skills, he would still have to be found not disabled. (Id.) Based on the vocational expert's testimony, the ALJ found that Connour could perform the unskilled, light-level jobs of counter attendant (62,890), airline service representative (38,457), messenger (7,298), cutter (10,845), cashier (126,860), packer (18,704) or housekeeper (41,120). (Id.) Therefore, the ALJ concluded that Connour was not disabled, as defined by the Social Security Act, at any time through the date of her decision. (Id.)
Currently before this Court is Connour's motion for summary judgment. On appeal, Connour contends that: (1) the ALJ improperly weighed the medical evidence; (2) the ALJ's credibility determination was patently wrong and based upon factual errors; (3) the ALJ failed to consider significant evidence favorable to Connour; and (4) the testimony of the vocational expert did not meet the Commissioner's step five burden of proving jobs which Connour could perform. For the following reasons, we deny Connour's motion and affirm the ALJ's decision.
LEGAL STANDARDS
The standard of review for final decisions of the Commissioner (here the ALJ) in federal benefits cases is deferential. Kendrick v. Shalala, 998 F.2d 455, 458 (7th Cir.1993). The Social Security Act establishes that the findings as to any fact are conclusive if they are supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971) (citation and quotation omitted). In other words, the ALJ's findings must be supported by more than a mere scintilla of the evidence, but they may be supported by less than the greater weight of the evidence. See id. In reviewing the ALJ's decision, we may neither substitute our own judgment for that of the ALJ nor reweigh the facts or evidence. White ex. rel. Smith v. Apfel, 167 F.3d 369, 373 (7th Cir.1999). To receive disability benefits, a claimant must be "disabled" as defined by the Social Security Act. An individual is disabled if he cannot "engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment." 42 U.S.C. § 416(i). SSA Regulations require the use of a five-step process to determine whether a claimant is disabled. See, e.g., Maggard v. Apfel, 167 F.3d 376, 378 (7th Cir.1999).
ANALYSIS
At issue in this case is: (1) whether the ALJ improperly weighed the medical evidence; (2) whether the ALJ's credibility determination was patently wrong and based upon factual errors; (3) whether the ALJ failed to consider significant evidence favorable to Connour; and (4) whether the testimony of the vocational expert met the Commissioner's step five burden of proving jobs which Connour could perform.
I. Whether the ALJ Improperly Weighed the Medical Evidence
Connour argues that the ALJ failed to give controlling weight to the medical opinion of Dr. Lee-Sigler, one of his treating physicians. Specifically, Connour contends that the ALJ should have given controlling weight to the doctor's opinion concerning Connour's need for a sit/stand option every twenty to thirty minutes while on the job. Connour also contends that controlling weight should have been given to Dr. Lee-Sigler's May 1999 opinion that changed his limitations to a sedentary *795 level of work. Further, Connour asserts that the ALJ erred in finding that Dr. Lee-Sigler's opinion was inconsistent with the functional capacity evaluation. Finally, Connour contends that even if Dr. Lee-Sigler's opinions were not entitled to controlling weight, the ALJ failed to give her opinions great weight, as required by 20 C.F.R. § 404.1527(d).
An ALJ's decision must be based on the testimony and medical evidence in the record. Rohan v. Chater, 98 F.3d 966, 970 (7th Cir.1996). The ALJ must examine and weigh all evidence, including observations by treating and examining physicians, third-party testimony, the claimant's testimony, daily activities, functional restrictions, pain medication taken and aggravating or precipitating factors, to evaluate how much the claimant's impairment affects his or her ability to work. Herron v. Shalala, 19 F.3d 329, 333 (7th Cir.1994). A treating physician's opinion will be given controlling weight if it is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with other substantial evidence in the record. Shramek v. Apfel, 226 F.3d 809, 814 (7th Cir.2000). An ALJ may reject a treating physician's opinion if it is internally inconsistent or inconsistent with other evidence. Knight v. Chater, 55 F.3d 309, 313-14 (7th Cir.1995) (citing 20 C.F.R. § 404.1527). Where treating and consulting physicians present conflicting opinions, the ALJ must decide the conflict. See, e.g., Books v. Chater, 91 F.3d 972, 979 (7th Cir.1996).
The ALJ cannot ignore an entire line of evidence. Zblewski v. Schweiker, 732 F.2d 75, 78-79 (7th Cir.1984). If she did, she would fall below the minimum level of articulation required. Id. The ALJ's decision "must be based on consideration of all the relevant evidence and the reasons for his conclusion must be stated in a manner sufficient to permit an informed review." Ray v. Bowen, 843 F.2d 998, 1002 (7th Cir.1988) (emphasis in original). Although the ALJ is not required to comment specifically on every piece of evidence presented, the SSA Regulations require the ALJ to review all medical findings and other evidence that support a medical source's statement regarding disability. Id. A statement of "disability" by a medical source, however, does not mean that the ALJ is required to find that a plaintiff is disabled. 20 C.F.R. § 416.927(e)(1). Final responsibility for a decision regarding disability rests with the Commissioner. Id. at § 416.927(e)(2).
In this case, the ALJ properly rejected the portion of Dr. Lee-Sigler's opinion that Connour needed a sit/stand option every twenty to thirty minutes while on the job. The ALJ's decision demonstrates that she found Dr. Lee-Sigler's opinion inconsistent with other evidence in the record. While the ALJ did not specifically address Dr. Lee-Sigler's recommendation for a sit/stand option, her decision enables this Court to adequately track her reasoning, and we are assured that she considered all of the important evidence in arriving at her decision to reject the sit/stand limitation. Taken together, the evidence discussed by the ALJ in her decision provides ample support for her determination that Connour's condition did not warrant a sit/stand option every twenty to thirty minutes.
The ALJ expressly noted Dr. Lee-Sigler's inclusion of a sit/stand option in the doctor's July 1998 examination report. (R. 4, Admin. R. at 19, ALJ Decision.) After discussing other medical evidence, however, including other physicians' and therapists' diagnoses, the ALJ concluded that a sit/stand limitation was not in line with such evidence and, thus, not warranted. (Id.) In fact, the ALJ discussed chronologically *796 most of Connour's examinations by both treating and non-treating physicians. For example, the ALJ noted that Dr. Lee-Sigler's July 1998 examination indicated that Connour had a normal gait, and that the strength of his upper and lower bilateral extremities was four-plus to five out of five. (Id.) The ALJ further noted that Connour underwent a consultative examination in October 1998 that revealed normal neurology and neck range of motion. (Id. at 19.) Additionally, the ALJ stated that Connour underwent repeat EMG testing in July 1999 which was within normal limits, and had a new MRI taken which revealed that there had been no change since the last MRI. (Id. at 20.) Finally, Dr. Lee-Sigler's sit/stand recommendation was inconsistent with the June 1998 functional capacity evaluation and with the December 1998 and March 1999 RFC evaluations. (Id. 18-19.)
The ALJ also did not err in refusing to give controlling weight to Dr. Lee-Sigler's May 1999 opinion in which she changed Connour's limitation from a light to a sedentary level of work.[2] The ALJ expressly stated that she did not assign controlling weight to Dr. Lee-Sigler's opinion that Connour required a ten pound lifting restriction because the ALJ concluded that the restriction was given in response to Connour's subjective complaints of pain, rather than based on objective findings, and because it contradicted the findings of the June 1998 formal functional capacity evaluation. (Id. at 19.) The ALJ further noted that Dr. Lee-Sigler released Connour from her care in November 1998 and that Connour returned in May 1999 complaining of worsening symptoms, but that x-rays and muscle strength tests showed no new change. (Id. at 19-20.) As the ALJ stated, the revised lifting requirement was inconsistent with the formal functional capacity evaluation and various other evidence cited by the ALJ throughout her chronology of Connour's examinations. For example, as noted above, the ALJ observed that Dr. Lee-Sigler's July 1998 examination revealed that Connour had a normal gait, and her May 1999 examination revealed that Connour's muscle strength was four out of five in his upper and lower extremities. (Id. at 19.) Therefore, the ALJ decided not to assign controlling weight to Dr. Lee-Sigler's revised lifting limitation because it was inconsistent with the other objective medical evidence in the record and because it was based primarily on Connour's subjective complaints of pain. See Diaz v. Chater, 55 F.3d 300, 308 (7th Cir.1995) (stating that an ALJ could consider a portion of a doctor's diagnosis which appears to be based on a claimant's own statements as less significant than the doctor's other findings) (citation omitted).
The ALJ provided an adequate explanation as to why she adopted the opinion of the State Agency doctor in the RFC evaluation over that of Dr. Lee-Sigler and, in so doing, the ALJ demonstrated that her decision in this regard was supported by substantial evidence. Connour erroneously stated that "the only medical opinion relied upon by the ALJ is that of the State Agency doctor who neither examined nor treated him." (R. 9-2, Pl.'s Mem. in Supp. of Mot. for Summ. J. at 14.) To the contrary, the ALJ considered, evaluated *797 and described various doctors' reports and notes, including Dr. Lee-Sigler's, the therapists who conducted the June 1998 formal functional capacity evaluation and the State Agency doctor who completed the RFC evaluation. (R. 4, Admin R. at 18-20, ALJ Decision.) The ALJ's decision clearly evinces that she considered Dr. Lee-Sigler's opinions. Merely because the ALJ did not adopt all of Dr. Lee-Sigler's recommendations does not lead this Court to conclude that the ALJ failed to consider the doctor's opinions properly. See Books v. Chater, 91 F.3d 972, 979 (7th Cir.1996) (finding that nothing mandates that a treating physician's opinion must be accepted over a consulting physician's opinion, provided that the merits of both opinions are duly considered).
The ALJ additionally considered Connour's testimony regarding his daily activities as evidence that indicated a capacity for work and, thus, was inconsistent with Dr. Lee-Sigler's determination that Connour's condition mandated a sedentary work level. The ALJ engaged in a chronological consideration of Connour's medical examinations, considered his testimony regarding his daily activities and then determined Connour's RFC, based on all of the evidence in the record. (R. 4, Admin. R. at 18-20, ALJ Decision.) Although the ALJ's determination coincided with that of the State Agency doctor, the ALJ noted that this RFC was more restrictive than the formal functional capacity evaluation initially adopted by Dr. Lee-Sigler, thus further indicating that the ALJ gave proper weight to Dr. Lee-Sigler's and other examining source's opinions. (Id. at 20.) Therefore, we conclude that the weight assigned to the medical evidence by the ALJ was supported by substantial evidence.
II. Whether the ALJ's Credibility Determination was Patently Wrong and Based Upon Factual Errors
Next, Connour argues that the ALJ's credibility determination was patently wrong and based upon factual errors. Specifically, Connour contends that the ALJ noted that Doppler studies were performed, but that the ALJ erroneously found that the studies were "negative," thereby tainting her entire decision. (R. 9-2, Pl.'s Mem. in Supp. of Mot. for Summ J. at 16.) Moreover, Connour claims that the ALJ failed to mention the arterial blood flow test that revealed moderately reduced blood flow to the left leg. (Id.) He also asserts that the ALJ improperly made her own independent medical determination and then erroneously based her credibility findings upon that determination. (Id. at 17.) Finally, Connour maintains that the ALJ improperly relied upon Connour's testimony regarding his limited daily activities to support a negative credibility finding.[3] (Id. at 18.)
The ALJ's determination regarding a claimant's credibility "must contain specific reasons for the finding on credibility, supported by the evidence in the case record, and must be sufficiently specific to make clear to the individual and to any subsequent reviewers the weight the adjudicator gave to the individual's statements *798 and the reasons for that weight." Zurawski v. Halter, 245 F.3d 881, 887 (7th Cir. 2001) (quoting Social Security Ruling 96-7p). It is not sufficient for the ALJ to make a single conclusory statement that the claimant's allegations of pain have been considered and/or found not credible. Id. Instead, the ALJ must "build a bridge from the evidence to [her] conclusion." Green v. Apfel, 204 F.3d 780, 781 (7th Cir.2000). The weight to be given to a particular piece of evidence, however, is within the ALJ's discretion. Diaz, 55 F.3d at 309. The ALJ is not required to discuss every piece of evidence in the record. Id. Finally, as Connour correctly indicated, the Seventh Circuit has held that, because the ALJ is in the best position to determine credibility, the ALJ's credibility findings will not be disturbed unless they are "patently wrong." Powers v. Apfel, 207 F.3d 431, 435 (7th Cir.2000).
In this case, the ALJ's decision set forth specific reasons as to why she found that Connour was less than credible with regard to his allegations of total disability and, as such, her credibility determination is neither patently wrong nor based upon factual errors. Connour contends that the ALJ erroneously found in her opinion that Connour's Doppler studies were negative, and he asserts that "this factual error taints her entire decision." (R. 9-2, Pl.'s Mem. in Supp. of Mot for Summ. J. at 16.) He cites a December 17, 1998 vascular lab report which indicated "normal resting arterial flow study bilaterally; [e]xercise results in moderate arterial flow reduction with claudication-like symptoms." (R. 4, Admin. R. at 165, Dec. 17, 1998 Lab Rpt.) Connour, however, failed to notice that the ALJ was referencing a different report when she stated that the Doppler studies were negative, as indicated by her citation, "Exhibit 7F/32." (Id. at 18, ALJ Decision.) The ALJ was citing the March 3, 1998 examination notes of Dr. Lee-Sigler in which she wrote, "Doppler studies were performed regarding the neck pain with numbness into the 5th, 1st, and 2nd digits. Their studies were essentially unremarkable." (Id. at 194, Mar. 3, 1998 Lee-Siegler Exam. Rpt.)
Furthermore, Connour argues that the ALJ failed to mention the lower extremity arterial duplex study, contained in the same vascular lab report referenced above, which established "mild common femoral artery sentosis of 50-65%." (Id. at 165, December 17, 1998 Lab Rpt.) The next sentence of that report reads, "[t]here has been no change from the study of 1/97." (Id.) As noted above, the ALJ is not required to analyze every piece of evidence in the record, and it is up to her to determine the amount of weight given to each piece of evidence. Diaz, 55 F.3d at 309. Because there had been no change in Connour's condition since his bilateral iliac angioplasty in 1997, the ALJ likely determined that there were more crucial examination reports to discuss. Indeed, the ALJ provided specific reasoning substantiated by evidence drawn from the record to support her credibility finding, such that this Court finds that she built an adequate bridge from the evidence to her conclusion. For example, the ALJ indicated that Connour had attended physical therapy, testified that his pain medications were effective, had not sought emergency room treatment, had never been hospitalized for his back problems despite the severe degree of pain he reported and had never had surgery recommended. (R. 4, Admin. R. at 20, ALJ Decision.) Moreover, Dr. Lee-Sigler indicated that Connour's pain should be controlled with nonsteroidal anti-inflammatory medication, and that she agreed with the findings of the *799 functional capacity evaluation.[4] (Id.)
Finally, Connour objects to the ALJ's use of his daily activities to support her negative credibility finding, and he contends that his activities are not inconsistent with his claimed limitations, i.e. total disability requiring a sedentary work level. We disagree. First, the ALJ considered several factors, such as medication and its effectiveness and other treatments Connour had undergone, when assessing his credibility. Second, it is reasonable to conclude that an individual who engages in the daily activities of driving, reading, light grocery shopping and visiting with his grandchildren has the capacity to engage in light-level work with the exertional and non-exertional limitations outlined by the ALJ, especially when such a conclusion is substantiated by the objective medical evidence in the record. Connour was correct to note that "courts will generally not upset credibility determinations on appeal if they find some support in the record and are not patently wrong." (Id. at 16, citing Herron, 19 F.3d at 335.) As such, we conclude that the ALJ's credibility findings are supported by substantial evidence and are not patently wrong.
III. Whether the ALJ Failed to Consider Significant Evidence Favorable to Connour
Next, Connour claims that the ALJ failed to consider significant evidence favorable to him. Specifically, Connour argues that the ALJ failed to acknowledge numerous test results and diagnoses contained in various examination reports, and he alleges that this is tantamount to ignoring significant evidence.
The ALJ should consider and discuss all credible medical evidence that is supported by clinical findings and relevant to the question at hand. Nelson v. Apfel, 131 F.3d 1228, 1237 (7th Cir.1997) (citations omitted). An ALJ may not discuss only the evidence that favors his conclusion, but rather he must articulate, at some minimum level, his analysis of the evidence to allow a reviewer to trace his path of reasoning. Diaz, 55 F.3d at 309. At the same time, the weight to be given to a particular piece of evidence is within the ALJ's discretion, and the ALJ is not required to discuss every piece of evidence in the record. Id.
The conclusion ultimately arrived at by the ALJ that Connour could not perform his past relevant work as a construction laborer or roofer but that he had the RFC to perform light work with certain exertional and non-exertional limitation reveals that the ALJ did not fail to consider evidence favorable to Connour. First, although not required to comment on every piece of medical evidence, the ALJ discussed a great deal of medical evidence in her opinion. (R. 4, Admin R. at 16-20, ALJ Decision.) For example, the ALJ noted that Connour had a "history of bilateral iliac angioplasty and three vessel bypass grafting" and "documented degenerative lumbar cervical spondylosis with a history of thoracic compression fractures which limit his ability to perform basic work activities." (Id. at 16-17.) The *800 ALJ also discussed Connour's subjective complaints of pain, such as Connour's assertions that he could only stand for an hour or two or drive for half an hour before the pain starts. (Id. at 20.) Also, simply because the ALJ did not expressly comment on a particular piece of evidence, such as the January 1999 arteriogram and individual test results of the functional capacity evaluation, does not mean that the ALJ did not consider that evidence.
Second, the ALJ is not a physician. As such, it was reasonable for her to look primarily to the diagnoses and recommendations of the various physicians and therapists who had either examined Connour or his medical file when she made her ultimate conclusion regarding Connour's RCF. (Id.) Connour himself cites these physicians and therapists who performed the tests and wrote up his examination results. (R. 9-2, Pl.'s Mem. in Supp. of Mot. for Summ. J. at 19-20.) These physicians and therapists, and not the ALJ, were in the appropriate position to determine the correct amount of weight to be given to each of the individual test results, and they acted accordingly when rendering their diagnoses and recommendations. Had the ALJ not duly credited their determinations after they examined Connour and/or his medical records, Connour likely would have contended that the ALJ made her own, independent medical determination and improperly substituted her opinion for that of the physicians and therapists. Thus, we conclude that the ALJ did not fail to consider significant evidence, and that her RFC and credibility determinations were supported by substantial evidence.
IV. Whether the Vocational Expert's Testimony Met the Step Five Burden of Proving Jobs Which Connour Could Perform
Finally, Connour contends that the testimony of the vocational expert did not meet the Commissioner's step five burden of proving that there are jobs available in significant numbers in the national economy that Connour could perform. Specifically, Connour alleges that the vocational expert failed to provide sufficient evidence concerning the skills acquired by Connour and which of these skills were transferable to the jobs that the vocational expert indicated Connour could perform.
We reject this argument for two reasons. First, step five requires the ALJ to determine if, considering age, education and work experience, Connour could perform work available in significant numbers in the national economy. 20 C.F.R. § 404.1520. Even assuming that the vocational expert did not testify concerning Connour's skills and did not adequately mention which of these skills were transferable to the semi-skilled jobs that she indicated he was able to perform, the vocational expert nevertheless identified several unskilled jobs available in significant numbers in the national economy which Connour could perform and which did not require any transferable skills. Specifically, she listed counter attendant (62,890), airline service representative (38,457), messenger (7,298), deli counter attendant (10,485), cashier (126,860), packer (18,704) and housekeeper (41,120). These unskilled positions alone constitute jobs available in significant numbers in the national economy sufficient to satisfy the Commissioner's step five burden. 20 C.F.R. § 404.1568.
Second, the SSA Regulations do not impose an articulation burden on the ALJ to expressly state how the skills acquired by a claimant transfer to the jobs listed by a vocational expert, provided that the acquired skills are articulated. Id. at § 404.1568(2). The ALJ questioned the vocational expert regarding the specific *801 skills Connour had acquired, and the vocational expert replied that she had listed them on a sheet and identified it as Exhibit 10E. (R. 4, Admin. R. at 50, SSA Hr'g Tr.) The skills listed on Exhibit 10E were "[u]nderstanding and following blueprints, sketches and drawing and other written specifications, working to precise measurements, using arithmetic to estimate material amount needed and operating and using various tools." (Id. at 134, Past Relevant Work Summ.) It was not necessary for the ALJ to articulate how these skills transferred to each of the semi-skilled jobs that the vocational expert indicated Connour could perform. Rather, the ALJ was entitled to rely on the vocational expert's testimony that Connour's skills did indeed transfer.[5] Therefore, the testimony of the vocational expert satisfied the Commissioner's step five burden, and the ALJ's determination at this step was supported by substantial evidence in the record.
CONCLUSION
For the reasons contained in this opinion, we must deny Connour's motion for summary judgment. (R. 9-1.) While the Court is generally sympathetic to Connour's medical ailments, our purpose here is not to reach a de novo determination. Instead, we must review the record to ascertain if the ALJ's determinations were supported by substantial evidence. As detailed herein, we have answered this question in the affirmative. Therefore, the Clerk of the Court is directed to enter judgment, pursuant to Federal Rule of Civil Procedure 58, in favor of Defendant and against Plaintiff.
NOTES
[1] "A consultative examination is a physical or mental examination purchased at [the SSA's] request and expense from a treating source or another medical source, including a pediatrician when appropriate." 20 C.F.R. § 404.1519.
[2] Connour also argues that the ALJ erred in finding that Dr. Lee-Sigler's opinion was inconsistent with the June 1998 formal functional capacity evaluation. (R. 9-2, Pl.'s Mem. in Supp. of Mot. for Summ. J. at 13.) We disagree. The inconsistency referenced by the ALJ was due to the disparity in recommendations between Dr. Lee-Sigler and the therapists who conducted the functional capacity evaluation, rather than an inconsistency in any of the technical medical evidence leading to those recommendations.
[3] Connour also claims that the ALJ failed to take his work history into account when assessing his credibility pursuant to Social Security Ruling 96-7p. We disagree. The ALJ questioned Connour extensively at the SSA Hearing regarding his work as a construction laborer and roofer. (R. 4, Admin. R. at 36-37, SSA Hr'g Tr.) Additionally, in her findings, the ALJ stated that Connour was "not able to perform his past relevant work as a construction laborer and roofer." (Id. at 22, ALJ Decision.) Thus, although the ALJ ultimately deemed Connour less than credible regarding his claim of total disability, the ALJ sufficiently considered Connour's work history.
[4] The ALJ also noted that Connour did not have the usual signs of severe pain, such as abnormal weight loss or muscle atrophy. Regarding this statement, Connour argues that the ALJ "improperly made her own independent medical determination, and then improperly based her credibility findings on that determination." (R. 9-2, Pl.'s Mem. in Supp. of Mot. for Summ. J. at 18.) Even assuming that the ALJ made an independent medical determination, removal of the ALJ's determination does not affect the Court's ability to track the ALJ's reasoning and to conclude that the ALJ built an adequate bridge from the evidence to her conclusion.
[5] Connour cites Key v. Sullivan, 925 F.2d 1056 (7th Cir.1991), in which the Seventh Circuit stated that when transferability of skills is at issue, the ALJ must identify work skills acquired by the claimant, and must cite in her decision specific occupations to which those acquired work skills are transferable. Id. at 1062 (finding an ALJ's decision insufficient because he failed to identify skills acquired by a plaintiff). In this case, the ALJ did not fail to identify work skills acquired by Connour because she asked the vocational expert to list those skills, and the vocational expert indicated that they were listed on Exhibit 10E. (R. 4, Admin. R. at 50, SSA Hr'g Tr.) Moreover, as noted above, she did not fail to articulate specific, semi-skilled positions to which these skills would transfer. (Id. at 21-22, ALJ Decision).
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08-5878-cv
Empresa C ubana D el Tabaco v. General Cigar et al.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMM ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUM M ARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUM M ARY ORDER IN A DOCUM ENT FILED W ITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE NOTATION
“SUM M ARY ORDER”). A PARTY CITING A SUM M ARY ORDER M UST SERVE A COPY OF IT ON ANY
PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held
at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of
New York, on the 14 th day of July, two thousand ten.
PRESENT: REENA RAGGI,
GERARD E. LYNCH,
DENNY CHIN,
Circuit Judges,
------------------------------------------------------------------
EMPRESA CUBANA DEL TABACO, doing
business as CUBATABACO,
Plaintiff-Counter-Defendant-Appellee,
v. No. 08-5878-cv
GENERAL CIGAR CO. INC., GENERAL CIGAR
HOLDINGS, INC., CULBRO CORPORATION,
Defendants-Counterclaimants-Appellants.
-------------------------------------------------------------------
APPEARING FOR APPELLANTS: ANDREW L. DEUTSCH (Joshua S. Sohn, Airina
L. Rodrigues, DLA Piper LLP (US), New York,
New York; Harry C. Marcus, Scott Greenberg,
Locke Lord Bissell & Liddell, New York, New
York, on the brief), DLA Piper LLP (US), New
York, New York.
APPEARING FOR APPELLEE: MICHAEL KRINSKY (David B. Goldstein,
Christopher J. Klatell, on the brief), Rabinowitz
Boudin Standard Krinksy & Lieberman, P.C.,
New York, New York.
Appeal from the United States District Court for the Southern District of New York
(Robert W. Sweet, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the orders and judgments entered on November 19, 2008, November 25,
2008, December 14, 2009, and January 15, 2010, are REVERSED.
Defendants General Cigar Co. Inc., General Cigar Holdings, Inc., and Culbro Corp.
(collectively, “General Cigar”) appeal from the grant of plaintiff Empresa Cubana Del
Tabaco’s (“Cubatabaco”) Rule 60(b) motion for relief from a 2004 judgment dismissing
Cubatabaco’s claim of unfair competition under New York law in connection with General
Cigar’s use of the famous COHIBA cigar mark. General Cigar further appeals from a
judgment subsequently entered in favor of Cubatabaco permanently enjoining General
Cigar’s use of the mark and providing other relief. We review a district court’s ruling on a
motion filed pursuant to Fed. R. Civ. P. 60(b)(6) for abuse of discretion. See Gey Assocs.
Gen. P’ship v. 310 Assocs. (In re 310 Assocs.), 346 F.3d 31, 34 (2d Cir. 2003). “A district
court has abused its discretion if it based its ruling on an erroneous view of the law or on a
clearly erroneous assessment of the evidence, or rendered a decision that cannot be located
within the range of permissible decisions.” Sims v. Blot, 534 F.3d 117, 132 (2d Cir. 2008)
(internal quotation marks, citations, and brackets omitted). In applying these standards we
assume the parties’ familiarity with the facts and procedural history of this case, which we
reference only as necessary to explain our decision to reverse.
1. Rule 60(b) Standards
Rule 60(b) provides for relief from judgment on any of several grounds specified in
2
five numbered subparts, see Fed. R. Civ. P. 60(b)(1)-(5), and under a sixth, catch-all
provision allowing for relief for “any other reason,” Fed. R. Civ. P. 60(b)(6). We have
described the catch-all provision of Rule 60(b)(6), relied upon by Cubatabaco and the district
court, as “a grand reservoir of equitable power to do justice in a particular case.” United
States v. Cirami, 563 F.2d 26, 32 (2d Cir. 1977) (quoting 7 Moore’s Federal Practice ¶
60.27[2] at 375 (2d ed. rev. 1975)). We have cautioned, however, that Rule 60(b) motions
are disfavored, see Pichardo v. Ashcroft, 374 F.3d 46, 55 (2d Cir. 2004), and that Rule
60(b)(6) is properly invoked only when “extraordinary circumstances” justify relief or “when
the judgment may work an extreme and undue hardship,” Nemaizer v. Baker, 793 F.2d 58,
63 (2d Cir. 1986); see also United Airlines, Inc. v. Brien, 588 F.3d 158, 176 (2d Cir. 2009).
We conclude as a matter of law that the district court exceeded its discretion in holding that
such circumstances are present here.
2. The Intervening New York Court of Appeals Decision
The district court granted Cubatabaco’s motion for relief from judgment on the ground
that ITC Ltd. v. Punchgini, Inc., 9 N.Y.3d 467, 850 N.Y.S.2d 366 (2007) (“ITC”), a New
York Court of Appeals decision issued almost three years after this court affirmed the
dismissal of Cubatabaco’s state law claims, see Empresa Cubana Del Tabaco v. Culbro
Corp., 399 F.3d 462, 469 (2d Cir. 2005), interpreted New York’s common law of unfair
competition in a manner “patently inconsistent” with the challenged judgment. Empresa
Cubana Del Tabaco v. Culbro Corp., 587 F. Supp. 2d 622, 628 (S.D.N.Y. 2008) (internal
quotation marks omitted). The Court of Appeals’s ITC decision responded to certified
questions from this court concerning, inter alia, whether, under New York law, the owner of
3
a famous foreign mark may assert rights therein sufficient to pursue a claim for unfair
competition. See ITC Ltd. v. Punchgini, Inc., 482 F.3d 135, 166-67 (2d Cir. 2007). The
Court of Appeals answered that, while New York does not recognize the famous marks
doctrine, a foreign plaintiff may prevail on a claim of unfair competition by misappropriation
by showing that (1) the defendant deliberately copied plaintiff’s mark for use in New York,
and (2) consumers of the defendant’s product primarily associate the mark with plaintiff’s
product. See ITC Ltd. v. Punchgini, Inc., 9 N.Y.3d at 480, 850 N.Y.S.2d at 374.
The district court concluded that because the Court of Appeals did not mention “any
separate and distinct requirement of ‘bad faith,’” its 2004 dismissal of Cubatabaco’s unfair
competition claim based on Cubatabaco’s failure to demonstrate General Cigar’s bad faith
in using the Cohiba mark was inconsistent with New York law. Empresa Cubana Del
Tabaco v. Culbro Corp., 587 F. Supp. 2d at 628. Thus, the district court held that the Court
of Appeals’s “intervening decision of law” constituted an extraordinary circumstance
warranting relief from judgment in the interest of justice pursuant to Rule 60(b)(6). Id. at
628-30.
3. ITC Does Not Warrant Rule 60(b)(6) Relief in This Case
For the following reasons, we conclude that the ITC decision does not warrant Rule
60(b)(6) relief. First, “as a general matter, a mere change in decisional law does not
constitute an ‘extraordinary circumstance’ for the purposes of Rule 60(b)(6).” Pichardo v.
Ashcroft, 374 F.3d at 56; see also Agostini v. Felton, 521 U.S. 203, 239 (1997) (“Intervening
developments in the law by themselves rarely constitute the extraordinary circumstances
4
required for relief under Rule 60(b)(6) . . . .”).
Second, ITC does not represent an intervening development or change in New York’s
law of unfair competition. As the district court observed, the Court of Appeals “was explicit
that its opinion merely reaffirm[ed] existing state law, making no changes to either the
well-known marks doctrine or unfair competition by misappropriation.” Empresa Cubana
Del Tabaco v. Culbro Corp., 587 F. Supp. 2d at 628. Nor did ITC purport to clarify the
elements of an unfair competition claim or to correct erroneous interpretations of New York
law by federal or lower state courts. Cf. DeWeerth v. Baldinger, 38 F.3d 1266, 1275 (2d Cir.
1994) (reversing Rule 60(b)(6) relief granted after Court of Appeals expressly corrected this
court’s previous interpretation of unsettled state law).
The district court’s conclusion that ITC was “‘beyond any question inconsistent’”
with its own dismissal of Cubatabaco’s unfair competition claim makes too much of ITC’s
silence on the question of bad faith. Empresa Cubana Del Tabaco v. Culbro Corp., 587 F.
Supp. 2d at 627 (quoting Sargent v. Columbia Forest Prods., Inc., 75 F.3d 86, 90 (2d Cir.
1996)). The certified questions did not ask the Court of Appeals to address the existence or
scope of any bad faith requirement for, or good faith defense to, an unfair competition claim.
Nor did the issue arise in the underlying case, in which the district court dismissed an Indian
corporation’s unfair competition claim for failure to establish that domestic consumers
associated the “Bukhara” restaurant mark with the plaintiff. See ITC Ltd. v. Punchgini, Inc.,
373 F. Supp. 2d 275, 289-91 (S.D.N.Y. 2005). Consequently, ITC’s silence on the subject
cannot be construed to modify or eliminate the settled proposition, repeated in cases both
5
before and after ITC, that “some element of bad faith” is “central” to the notion of unfair
competition by misappropriation under New York law. Saratoga Vichy Spring Co., Inc. v.
Lehman, 625 F.2d 1037, 1044 (2d Cir. 1980); see also, e.g., Camelot Assocs. Corp. v.
Camelot Design & Dev. LLC, 298 A.D.2d 799, 800, 750 N.Y.S.2d 155, 156 (3d Dep’t 2002)
(stating that “a cause of action in unfair competition requires the plaintiff to prove some
element of bad faith” (internal quotation marks omitted)); ESPN, Inc. v. Quiksilver, Inc., 586
F. Supp. 2d 219, 230 (S.D.N.Y. 2008) (stating that “some element of bad faith” is central to
misappropriation) (internal quotation marks omitted); Out of Box Promotions, LLC v.
Koschitzki, 55 A.D.3d 575, 578, 866 N.Y.S.2d 677, 681 (2d Dep’t 2008) (holding that
“alleged bad faith misappropriation of a commercial advantage belonging to another” stated
claim for unfair competition (internal quotation marks omitted)).
In sum, ITC did not constitute an intervening development of law, much less evidence
extraordinary circumstances, sufficient to warrant reopening the 2004 judgment pursuant to
Rule 60(b)(6).
4. Conclusion
We have considered Cubatabaco’s other arguments on appeal and conclude that they
are without merit. Accordingly, the judgments of the district court are REVERSED.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, Clerk of Court
6
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NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted November 12, 2009
Decided January 13, 2010*
Before
JOHN L. COFFEY, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 09‐1943
ABDUL M. LOVE, Appeal from the United States District
Plaintiff‐Appellant, Court for the Northern District of Illinois,
Eastern Division.
v.
06 C 1537
DAVID KIRK, et al.
Defendants‐Appellees. Joan Humphrey Lefkow,
Judge.
O R D E R
Abdul Love filed this suit under 42 U.S.C. § 1983, claiming that while he was
confined in the pretrial detention unit at the Lake County, Illinois Correctional Center,
employees of the County Sheriff’s Department violated his Fourteenth Amendment right to
due process by transferring him into the segregation unit from the general jail population
*
After examining the briefs and the record, we have concluded that oral argument is
unnecessary. Thus, the appeal is submitted on the briefs and the record. See FED. R. APP. P.
34(a)(2).
No. 09‐1943 Page 2
without a hearing. The district court ruled in favor of the sheriff’s department motion for
summary judgment. Love appeals, and we affirm.
In October 2005 Love was arrested and placed in the pretrial detention unit pending
a hearing on a cocaine charge. Shortly thereafter the sheriff’s criminal investigations unit
informed Patrick Firman, chief of corrections of the Lake County Sheriff’s Department, that
Love—while confined in the general inmate population—attempted to solicit the murder of
the police officer who arrested him in his pending criminal case. Subsequently, Love was
indicted and charged with the solicitation of murder in the cocaine case.
As a result of the attempted murder solicitation, Love was transferred in January
2006 to the administrative segregation unit (“ASU”) where he was placed in “lock‐down”
status for 23 hours per day, keeping him from interacting with the other inmates. David
Kirk, Sergeant of the Lake County Sheriff’s Department, explained in a letter that, based on
Love’s criminal conduct, he was being transferred to ASU for the safety of the staff and
other inmates as well as his own safety. The letter stated,
Mr. Love, you have been assigned to Status 3 Segregation. This is an
administrative segregation and the current charges that you face, nessitates [sic]
the need for this segregation.
Your segregation status is in the best interest of your safety and the safety and
security of the Lake County Sheriff[’]s Adult Correctional Division.
Love was ordered segregated for an indefinite period of time, but the jail’s classification
committee routinely reviewed his placement to determine whether he could be returned to
the general population. Shortly after being transferred to ASU, Love gave one of the jail’s
officers a letter containing a threat to two Lake County judges. Although Love denies
writing the letter or intending to personally threaten the judges, the letter became part of
Love’s record for the classification committee’s consideration during his confinement.
Love filed several grievances and requested a hearing as well as challenged the
conditions of his segregation. Jail officials denied Love’s request for a hearing, stating that it
is not a part of the ASU’s procedure. In response to one of Love’s grievances, Firman also
explained that while in ASU, Love’s ability to mix with other inmates would be limited:
“[d]ue to your demonstrated behavior, the serious nature of your criminal actions while in
custody, and my concerns for the safety and security of this facility.” Both Firman and Kirk
later testified at the deposition hearing that Love posed a significant security risk to the
Lake County Sheriff’s Adult Correctional Division and that ASU was the only place where
they could closely monitor his activity. Kirk added that had Love’s “alleged charges” been
No. 09‐1943 Page 3
reduced or dropped, he probably would have been released from ASU. But jail officials
received no information during 2006 which would lead them to cast any doubt about their
decision that Love posed a security risk, necessitating Love’s continued segregation until
January 2007. Thereafter, a change in the jail’s command structure took place, and he was
transferred back to the general inmate population.
Love filed this suit in March 2006, alleging that the defendants (Kirk, et. al.) violated
his Fourteenth Amendment right to due process when he was placed in segregation without
a hearing. Love argued that his segregation was punishment for his alleged solicitation
attempt, and “under the Due Process Clause, a detainee may not be punished prior to an
adjudication of guilt in accordance with due process of law.” Bell v. Wolfish, 441 U.S. 520,
535 (1979). Love claimed that the defendants were somehow constitutionally required to
provide him a disciplinary hearing before transferring him into the segregation unit.
The trial judge granted summary judgment for the defendants (jail officials), ruling
that the defendants were entitled to take the steps necessary “to maintain security and order
at the institution and make certain no weapons or illicit drugs reach detainees” or otherwise
ensure the “effective management of the detention facility.” See id. at 540. Furthermore,
Love failed to establish that his segregation required a due process hearing under Bell. In
Bell, the Supreme Court held that, unlike one convicted and sentenced, a pretrial
detainee—not yet found guilty of any crime—may not be punished for misconduct while in
custody without due process. Id. at 535‐37; see Higgs v. Carver, 286 F.3d 437, 438‐39 (7th Cir.
2002); Zarnes v. Rhodes, 64 F.3d 285, 291 (7th Cir. 1995). To establish a right to due process, a
pretrial detainee must demonstrate either 1) an “expressed intent to punish on the part of
detention facility officials” or 2) that the challenged condition or restriction lacked a
reasonable relationship to a legitimate, non‐punitive administrative purpose. Bell, 441 U.S.
at 538‐39; see Rapier v. Harris, 172 F.3d 999, 1005 (7th Cir. 1999). After reviewing the
undisputed facts in this case, the trial court concluded that Love failed to demonstrate an
express intent on the part of the defendants to punish him nor did he establish the lack of a
reasonable relationship between his segregation and a legitimate, non‐punitive purpose.
On appeal Love argues that the district court erred in granting summary judgment to
the defendants because a genuine issue of material fact existed dealing with the question of
whether his segregation was punitive and if so, necessitated a disciplinary hearing. Love
contends that the defendants’ express intent to punish him is reflected in statements by
Firman and Kirk in which they justified his segregation as being based on his solicitation
“charges” and “criminal actions” while in custody.
After reviewing the record, we are convinced that Love failed to establish that the
defendants expressly intended to punish him. When read in context, the statements of
No. 09‐1943 Page 4
Firman and Kirk justify segregating Love in order to promote the safety of those in the
facility as well as the general public. See Zarnes, 64 F.3d at 291 (defendant’s decision to
segregate detainee for “unacceptable conduct” lacked punitive intent because context of
statement showed that the conduct posed a security threat); cf. Higgs, 286 F.3d at 438‐39
(question of punitive intent was ambiguous where letter justifying segregation for
detainee’s threatening behavior did not expressly refer to security concerns). Although
Love now challenges the veracity of the defendants’ stated rationale for placing him in
segregation, he failed to point out anything in the record that demonstrates that the
defendants expressly intended to punish him. See Bell, 441 U.S. at 538; Zarnes, 64 F.3d at
291.
Absent proof of any jail officials’ express intent to punish him, Love’s only
alternative under Bell, then, depends on his ability to establish that his segregation was
either arbitrary or not reasonably related to a legitimate, non‐punitive, administrative
purpose. See Bell, 441 U.S. at 538‐39; Hart v. Sheahan, 396 F.3d 887, 892 (7th Cir. 2005); Rapier,
172 F.3d at 1005. The trial judge considered Love’s admission that Firman believed the ASU
was the only appropriate unit in the Lake County Correctional Center where he could
monitor Love’s activities to preclude any future harm and concluded that Love failed to
ascertain a purpose for his segregation beyond its legitimate function of preventing harm to
the officer he threatened, other inmates, and other institutional personnel. On appeal, Love
has again failed to properly challenge this conclusion, and he cannot adequately contest the
legitimacy of segregating an inmate attempting to solicit the murder of a police officer.
On the other hand, Love does raise two additional arguments for the first time on
appeal. He contends that the duration of the segregation imposed on him is an “atypical
and significant hardship” relative to the ordinary incidents of prison life, a standard
applicable only to convicted prisoners. See Sandin v. Conner, 515 U.S. 472 (1995); Rapier, 172
F.3d at 1004‐05. He also refers to the specific restrictions of his segregation (i.e., restricted
access to the commissary, television, outdoor recreation, and educational services) as
exceeding the purpose of the segregation to promote the safety of the facility as well as the
general public. See Kennedy v. Mendoza‐Martinez, 372 U.S. 144, 169 (1963). Neither of these
arguments were presented to the trial court when Love was represented by counsel. These
arguments are thus forfeited, and we see no need to consider them. See Witte v. Wisconsin
Dept. of Corrections, 434 F.3d 1031, 1038 (7th Cir. 2006).
AFFIRM the judgment of the district court.
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760 P.2d 1320 (1988)
306 Or. 465
MT. SEXTON PROPERTIES, Inc., an Oregon Corporation, and Rogue Vista Enterprises of Oregon, Ltd., a Limited Oregon Partnership, Appellants,
v.
DEPARTMENT OF REVENUE, State of Oregon, and Josephine County, Respondents.
OTC 2510; SC S34654.
Supreme Court of Oregon, In Bank.
Argued and Submitted June 7, 1988.
Decided August 30, 1988.
Reconsideration Denied September 29, 1988.
*1321 Donald H. Coulter, of Myrick, Coulter, Seagraves, Myrick, Adams & Davis, Grants Pass, argued the cause and filed the brief for appellants.
Ted E. Barbera, Sr. Asst. Atty. Gen., Salem, argued the cause for respondent Department of Revenue. With him on the brief was Dave Frohnmayer, Atty. Gen., Salem.
James H. Boldt, Josephine County Legal Counsel, Grants Pass, argued the cause and filed a brief for respondent Josephine County.
JONES, Justice.
This case presents the question whether plaintiff taxpayers must receive specific notice of the judicial review of the Department of Revenue's determination of forest land values before those values can be used by county assessors to determine the property tax assessment for plaintiffs' land. Plaintiffs claim that the statutory scheme of notice and the notice of judicial review of the Department's valuations provided through publication were inadequate, so that an application of the Department's property values to plaintiffs' land is a violation *1322 of plaintiffs' due process[1] rights when that application comes after judicial review without personal notice to the plaintiffs.
Plaintiffs filed an action seeking declaratory judgment in the Oregon Tax Court, claiming that ORS 321.352(5) was unconstitutional on several grounds. The Tax Court denied plaintiffs' request for declaratory relief. 10 OTR 467 (1987). Plaintiffs appealed portions of the Tax Court decision to this court. We affirm the decision of the Tax Court.
FACTS
Plaintiffs own several parcels of forest land in Josephine County. Prior to 1977, plaintiffs, or their predecessors in ownership, had received notices of and had paid property taxes on their land. At that time, plaintiffs' land and timber were taxed on an ad valorem basis, as was all other similar forest land in western Oregon. Former ORS 321.622 (repealed by Or. Laws 1977, ch. 892, § 51).
Raising the Issue
The following events combined to raise the issue in the present case:
1. Early in 1977, the Department increased the valuation of forest land in western Oregon. These values were used by local assessors to determine the assessed value of forest land.
2. Plaintiffs, on April 28, 1977, and many other forest landowners throughout western Oregon at similar times, received notices of land valuation increases leading to significant assessment increases.[2]
3. Plaintiffs did not appeal any of these increases. Plaintiffs paid the taxes ultimately assessed against their property.
4. Many other taxpayers appealed the forest land valuations established by the Department.
5. Responding to widespread concern, the Oregon legislature established a special process for appealing the Department's valuations. Pursuant to this statutory appeal process, the other taxpayers' appeals of the Department's valuations were consolidated and given expeditious consideration at all levels.
6. Notices of these consolidated special appeals were published in newspapers of general circulation in each county in western Oregon where the Department's valuations were being appealed. This included Josephine County, the locus of plaintiffs' property.[3]
7. During the prosecution of these special statutory appeals, the original valuation *1323 change was suspended and, therefore, the valuation of plaintiffs' land was not changed. For the tax years that passed during the special appeals, plaintiffs, or their designated agents, received annual notices of valuation and assessment. The taxes were promptly paid without appeal.
8. The appeal of the Department's valuation changes for all forest land in western Oregon was resolved by this court's decision in Publishers Paper v. Department of Revenue, 292 Or. 836, 644 P.2d 1089 (1982), leading to a reduction in the Department's original valuations, but allowing some increase above the valuation applied to plaintiffs' land during the appeal of the Department's action.
9. The Josephine County Assessor, using the values determined by the Department and modified by this court in Publishers Paper, sent plaintiffs a notice of recomputed tax, including amounts owed for the tax years 1977-81.
10. After numerous delays, plaintiffs sought a declaratory judgment from the Tax Court that applying the recomputed tax would violate plaintiffs' due process rights.
The question before the court is made complex by a mass of intertwined statutes and procedures.[4] Plaintiffs' basic claim is that the increased valuations cannot be applied to their property for previous tax years because they were not given adequate notice of an opportunity to join litigation concerning these valuation increases. Plaintiffs assert that inadequate notice would prevent the application of the valuation increases for previous years, because application with inadequate notice would violate plaintiffs' due process rights.
Legislative Background
The controversy in this case concerns the second of two bills the legislature adopted in 1977 to deal with the concerns generated by the Department's increase in 1977 valuations. The first bill, SB 1077 (Or. Laws *1324 1977, ch. 753), created a special appeal process for those who sought to challenge the Department's valuations of forest land. The second bill, HB 3274 (Or. Laws 1977, ch. 892, codified at ORS 321.257 to 321.372), repealed the first version, but adopted most of the special appeal provisions. It is this process of special appeal that is the subject of controversy in the present case.
The 1977 valuation increases led to a great number of appeals being filed. The prospect of so many appeals, and the certainly even greater number of dissatisfied taxpayers, led the legislature to conclude that the ordinary method of appealing assessments would not be adequate to ensure a rapid and comprehensive review of the Department's actions. The legislature therefore supplemented the regular appeal process by providing for a special appeal of the Department's determination of values. It is important to note that the special appeal process did not concern the assessment of individual parcels of forest land or alter the existing method of individual appeals of tax assessments. The special appeals were designed only to test the validity of the Department's land valuation for each type of forest land classification.
Because this case concerns the process of land valuation, we begin with a brief description of the process before and after the changes wrought by the 1977 legislation. Prior to 1978, ORS 321.622(1) directed that the Department should "appraise taxable timber and forest land and determine immediate harvest values in each of the counties west of the summit of the Cascade Mountains." ORS 321.622(2) directed that the Department make available to assessors the results of its appraisals, "which results shall include the immediate harvest value of the appraised timber and the true cash value of the forest land." Forest land was to be appraised at true cash value, as "determined under ORS 308.205."[5] ORS 321.617(3).
ORS 321.617(1) and (2) directed that the appraised value of nonexempt timber would be 30 percent of the immediate harvest value, which was to be determined
"from sales of public and private timber to be harvested within three years under the terms of the sale, from sales of private timber of a quantity that reasonably can be harvested within a three-year period, or, where sales are lacking, by valuation methods designed to arrive at a comparable value. * * *" ORS 321.605(6).
ORS 309.100 and ORS 306.515 to 306.580 provided for appeals of assessments, first to the county board of equalization and then to the Department, the Tax Court and, if necessary, to the Supreme Court, ORS 305.445.
Under this process there was a clear division of responsibility between the Department and the assessors. The Department was directed to determine the property values of forest land in western Oregon, based on certain general evidence. The Department was then to provide this information to county assessors. Using the Department's valuations of forest land, the county assessor then would assess the property and notify the taxpayer. The taxpayer's rights to appeal necessarily would have included an appeal of the Department's valuations as applied to the taxpayer's land. This individual appeal also could have included a challenge to the Department's methods in determining land values if the taxpayer could show an error which affected the individual assessment.
The New Appeal Process
The 1977 legislature changed the process of appeal and the substance of forest land taxation. The legislature's initial response to the change in land valuations was to add *1325 the special appeal provision which is the subject of this case. This special appeal was originally added, without other changes, to the then existing ad valorem taxation system by Oregon Laws 1977, chapter 753.
The size of the valuation changes made by the Department in 1977 and the number of taxpayers affected caused concern that the ordinary appeal process would not be adequate. In response to this concern, legislation was introduced which would provide an expedited appeal. The bill was referred to the Senate Revenue and School Finance Committee. There was testimony that the normal appeal process would result in great delay and cost for both the taxpayers and the affected counties, and would lead to inconsistent results because not all taxpayers would appeal. The committee amended the bill to provide notice to all taxpayers of the special appeal. The approved bill provided that the effects of any increase in valuation would be postponed pending an appeal of the valuation, that the results of the special appeal would then become binding on all taxpayers, and that notice would be provided to ensure that all valuation changes possible could be considered in a consolidated action. See Minutes, Senate Revenue and School Finance Committee, April 27-28, and May 20, 1977.
This original version of the special appeal process was repealed effective January 1, 1978, by Oregon Laws 1977, chapter 892, section 52. It was replaced by a nearly identical provision in Oregon Laws, chapter 892, section 24, which was intended to have the same effect. See Minutes, House Revenue and School Finance Committee, June 16, 1977.
Oregon Laws 1977, chapter 892, in addition to repealing and replacing the special appeal process of Oregon Laws 1977, chapter 753, altered the type of taxation levied on forest land and timber in western Oregon. While it did this, and while it repealed all the above-cited portions of ORS chapter 321 setting forth the process of determining forest land values, the new law replaced these repealed statutes with a similar process for determining somewhat different substantive matters. ORS 321.352(1) provides that
"for the assessment year 1978 and 1979, forest land in western Oregon shall be assessed at true cash value for forest use on the basis of January 1, 1977, assessed values, established pursuant to ORS 321.622, (1975 Replacement Part), adjusted by the percentage change in the average stumpage value of young growth * * * in the market area in which the forest land is located. * * * For each assessment year after 1980, the value of forest land shall be the previous year's value as adjusted by the moving percentage change calculated under subsection (2) of this section."
Forest land valuation was now based on true cash value and the increased value of growing timber. Timber values were no longer to be taxed on an ad valorem basis. Instead, timber was to be taxed when harvested. ORS 321.272(1). The severance tax was to be computed on the stumpage value of timber harvested. The stumpage value was to be based on the purchase value of timber over three years within the timber value zones designated by the Department. ORS 321.282(1).
ORS 321.352(4) provides that the Department should determine and certify to the county assessors the true cash value of forest land, and that the assessors should use these values in the "preparation of the assessment and tax rolls of the county." ORS 321.352(5) provides for a special appeal of the Department's certification of the true cash value of forest land:
"At any time after the certification of values pursuant to subsection (1) of this section, but not later than March 20, five or more taxpayers owning in the aggregate not less than five percent of the total forest land subject to ad valorem taxation in a single land market area certified by the department may appeal any or all the base land class values in *1326 that area directly to the director of the department by filing a joint petition with the director in the manner provided for appeals from orders of the county boards of equalization. Notice of the appeal shall be made in each county having values affected by the appeal, either by personal service by certified mail on each taxpayer affected, or by publication made once a week for two consecutive weeks in a newspaper of general circulation in the county. The notice shall designate the values appealed, and include a statement of the provisions of subsection (6) of this section."
During the appeal, the disputed land class values were to be replaced by the higher of either the value asserted by the representative group or the value used in the prior tax year. ORS 321.352(7). The determination of the appeal by the Tax Court, or by the Supreme Court, was to "be binding upon the department and upon each assessor and taxpayer affected by such determination of value." ORS 321.352(6). Plaintiffs challenge the application of the determinations of the proper land values because, they argue, they were not given adequate notice, even though defendants complied with the minimum notice of ORS 321.352(5).
PLAINTIFFS' COMPLAINT
Plaintiffs have assigned nine errors to the decision of the Tax Court. Five of these errors claim a violation of plaintiffs' due process rights in some aspect of the statutory process of consolidation and notice of the special appeal. Plaintiffs also claim that the published notice provided did not comply with the statutory requirements, that the consolidation of appeals in 1977 was premature, and that the Tax Court erred in dismissing Josephine County as a party.[6]
Standing
Before turning to the question of notice, however, plaintiffs and defendants have raised the preliminary question whether plaintiffs have standing to challenge the provisions of ORS 321.352. Defendants argue that plaintiffs can show no injury as a result of the application of the statute. By the terms of the statute, the Department is to develop and certify land values to the county assessors. If these values are appealed, the assessors are to use a lesser amount until the proper values are established after a review of the Department's valuations by the Tax Court and the Supreme Court. Defendants correctly point out that in this case the result of the special appeal was a significant reduction in the valuation of plaintiffs' land, and thus a reduction in the amount that plaintiffs would otherwise have owed for the tax years 1977-81.
The fact that plaintiffs benefited from the appeal by others does not, however, mean that plaintiffs might not have standing to object to a judicial determination of their individual rights without sufficient notice. Plaintiffs' ultimate objection is to the provisions in ORS 321.352(6) and 321.377(5) that the final determination of the courts "shall be binding upon the Department and upon each assessor and taxpayer affected by such determination of value." If such a provision violates plaintiffs' due process rights to notice, then plaintiffs have standing to test the application of the statute.
In declaratory actions, as in other actions, a justiciable controversy is one where the "parties hav[e] existing and genuine rights or interests [at stake in a] * * * controversy of a nature as to lend itself to final judgment in law or equity on rights, *1327 status or other legal relationships of one or more of [the] real parties in interest." State Farm Fire & Cas. v. Reuter, 294 Or. 446, 449, 657 P.2d 1231 (1983). Plaintiffs have raised a justiciable question concerning whether the recomputed taxes constitutionally can be applied to their land; therefore, they have standing to test their rights in court. Because of our decision in this matter, we need not examine the question of the outcome if plaintiffs prevailed in their claim that the recomputed tax should not have been applied to their land.
Preserving the 1977 Appeals
This question of standing arose out of the Tax Court's language disposing of one of plaintiffs' claims. The effective date of most of Oregon Laws 1977, chapter 892, was January 1, 1978. However, section 53, codified at former ORS 321.377,[7] contained an emergency provision stating that that section would go into effect upon passage. Section 53 was designed to preserve existing appeals challenging the Department's 1977 valuations. It provided that the appeals already filed with the county boards of equalization should be passed on to the Department, where they were to be given expedited consideration. As with the special appeals under ORS 321.352, the assessors of counties where there were such consolidated appeals under section 53 were directed to delay implementation of the full increased valuation for all taxpayers until the consolidated appeals were settled, at which time the Department's values, as modified on review, were to be used in recomputing all taxpayers' obligations.
Plaintiffs' challenge to the assessment of a recomputed tax for the year 1977 rests not only on a due process challenge to the effects of this legislation, but also on the argument that the appeals mentioned in this legislation were prematurely consolidated. Plaintiffs' claim of prematurity rests on an argument that the emergency clause of section 53 was invalid. As did the Tax Court, we conclude that, while the emergency clause was improperly attached, removing the effect of the emergency clause did not make the consolidation of appeals improper.
*1328 Plaintiffs contend that the emergency clause of section 53 was invalid because the section was a measure regulating taxation. In this regard plaintiffs are correct. Plaintiffs also contend that because of the invalid emergency clause, this section could not go into effect until January 1, 1978. In this plaintiffs are incorrect.
Section 53 could not go into effect upon passage, despite the emergency provisions, because section 53 was an act regulating taxation and providing for temporary exemptions during an appeal. Article IX, section 1a, of the Oregon Constitution provides that the legislature cannot declare an emergency "in any act regulating taxation or exemption." Section 53 can be considered separately from the other sections of Oregon Laws 1977, chapter 892, for the purpose of determining its constitutionality under Article IX, section 1a, Bernstein Bros. v. Dept. of Rev., 294 Or. 614, 661 P.2d 537 (1983), but this does not make section 53 any less an act regulating taxation.
Section 53 did not create new methods of taxation or new taxes, but it did regulate taxation by specifying the duties of the Department and of assessors with regard to taxation and altered the timing of the imposition of taxes by providing special methods for taxation during certain appeals. Article IX, section 1a, was adopted to preserve the right of a referendum on any matter concerning taxation. Multnomah County v. Mittleman, 275 Or. 545, 550, 552 P.2d 242 (1976). This court has held that a statute which alters the duties and powers of tax assessors cannot become law under an emergency provision. State ex rel. Smith v. Kozer, 121 Or. 459, 255 P. 900 (1927).
Striking the emergency clause means that the effective date of section 53 was October 3, 1977, not, as plaintiffs contend, January 1, 1978. The provision setting the effective date of January 1, 1978, for the rest of the act specifically excepted section 53. Because the emergency clause was made ineffective, section 53 went into effect 90 days after the end of the session.
Plaintiffs have made no showing that consolidation at any time violated any of plaintiffs' rights. The effect of consolidation was to expedite the appeals already filed and to delay implementation of the Department's full increased valuations until these valuations had been finally determined pursuant to ORS 321.377(5) and (6). Plaintiffs' complaint concerning the 1977 appeals is not that they were consolidated, but that the results of the consolidation were applied to plaintiffs in the notice of recomputed tax. The expeditious handling of these appeals did not infringe any of plaintiffs' rights. The statutes in question adequately preserved the 1977 appeals filed. The effect of the statute was to make the individual appeals into a consolidated challenge to the Department's valuations. Plaintiffs' claim concerning the 1977 appeals, aside from the unique question of the effect of the emergency clause, is otherwise the same as the issue for subsequent tax years: Is it constitutionally proper to apply a judicial decision regarding the propriety of the Department's forest land valuation to plaintiffs when that judicial decision was prosecuted by others without direct personal notice to plaintiffs?
Adequate Notice
We now turn to the merits of plaintiffs' due process claim. The stipulated facts show that the first notice of any additional property tax for the tax years 1977-81 was the assessor's notice of recomputed tax that plaintiffs received on December 16, 1982. Plaintiffs claim that, as persons whose property rights were being determined by litigation, they had a constitutional right to personal notice of the litigation before it was initiated. Absent that notice, plaintiffs claim that the judicial determination of rights constitutionally cannot be applied to them.
Plaintiffs' argument fails because they have mischaracterized what was at stake in *1329 the litigation, and thus have mischaracterized the degree of notice they were due. In their appeal from the decision of the Tax Court, plaintiffs argue that they could not be assessed the recomputed tax because the notice provisions of ORS 321.352 were inadequate to satisfy the due process requirements of the United States Constitution as set forth in Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950), and subsequent cases.
The implied right of notice in the due process clause of the Fourteenth Amendment, as with other aspects of due process, varies with the type of proceeding and the type of interest involved. Greene v. Lindsey, 456 U.S. 444, 450, 102 S.Ct. 1874, 72 L.Ed.2d 249 (1982). The cases on which plaintiffs rely, beginning with Mullane and extending to Mennonite Board of Missions v. Adams, 462 U.S. 791, 103 S.Ct. 2706, 77 L.Ed.2d 180 (1983), concern the determination of the rights of specific individuals through litigation. The dispute in the present case arises not out of the determination of individual rights through litigation, but instead arises as a challenge to an administrative rulemaking proceeding.
ORS 321.352 provides for administrative determination of the value of forest land with a special added opportunity of appeal after the value is promulgated. ORS 321.352(1) states that the Department shall use the January 1, 1977, land values, "established pursuant to ORS 321.622," with certain adjustments. Former ORS 321.622[8] required that the Department set assessed values of forest land in accordance with other provisions, including ORS 308.205 (1977), which required that "[t]rue cash value in all cases shall be determined by methods and procedures in accordance with rules and regulations promulgated by the Department of Revenue."
The legislature established the procedures whereby the Department was to determine the land values and forward these to the county assessors. It is only after the assessor receives such notice from the Department and uses it to fix each taxpayer's obligation that plaintiffs' individual rights are at stake. At that point, where plaintiffs as individuals have their rights finally established, the due process notice requirements increase, until, if litigation over plaintiffs' individual rights occurs, plaintiffs would be entitled to the fullest due process notice. Mullane v. Central Hanover Bank & Trust Co., supra, 339 U.S. at 312-13, 70 S.Ct. at 656-57. For example, now that the individual assessments of plaintiffs' property have been determined, that amount could not be altered without notice to plaintiffs and an opportunity for plaintiffs to appeal the propriety of the assessment. As a part of that challenge, plaintiffs can test the adequacy of their notice concerning such preliminary matters as the rulemaking determination of land class values.
When such challenges are made, the court wherein the challenge is raised must determine if plaintiffs received adequate notice to satisfy the due process requirements of the Fourteenth Amendment. In this case plaintiffs were provided notice through the rulemaking procedures of the Department that forest land values were being determined. ORS 321.352(5) gave plaintiffs a special opportunity to appeal that determination. Had they done so, they would have been eligible to join with other appellants in the special appeal process established by ORS 321.352. This appeal would not, however, have determined plaintiffs' rights in a final sense. That final determination only comes when the assessor has calculated the amount owed by each taxpayer, taking into account all the individual variables that make each tax lot unique.
The publication notice and the statutory scheme gave plaintiffs notice of their *1330 opportunity to be heard. Statutes give constructive notice of the effects set forth in the statutes. School Dist. No. 12 v. Wasco County, 270 Or. 622, 632, 529 P.2d 386 (1974). The statutory provisions for additional notice through publication and the option of individual notice were not constitutionally required. If there had been a failure to provide the statutorily required minimum, the subsequent assessments would have been invalid for failure to abide by the statutory requirements.
Meeting the Statutory Requirements
In the present case, the notice provided satisfied the statutory requirements. Plaintiffs suggest that the notice was inadequate because of the requirement in ORS 321.352(5) that "[t]he notice shall designate the values appealed," which they read as a requirement that the notice should have specified and listed the values established by the Department. In this plaintiffs mistake the purpose of the notice. The first version of the special appeal process, SB 1077, required that the Department publish a list of the land class values and that there be a notice of the appeal setting forth the land class values appealed. The final version of the special appeal legislation, codified at ORS 321.352, contains only the requirement of the notice of appeal. From this change, plaintiffs assume the legislature intended that the notice of special appeal should contain the same details originally required for the Department's notice of valuation.
The legislative history, however, does not support this assumption. There is no indication that the legislature ever considered the notice of the Department's valuation to be interchangeable with the notice of a special appeal. The special appeal process was established to expedite one part of the normal appeal process. Individual appeals can be based on several questions which might arise after an individual assessment is made. Such an appeal could raise the validity of the Department's valuation, as applied by the assessment, but the resolution of such a question by an individual appeal would not thereby correct the valuation errors for other taxpayers.
The special appeal process allows general questions concerning the rulemaking process which established land class values for all taxpayers to be settled as a whole rather than on an ad hoc basis. Within this context, the notice requirement of the special appeal process was designed to enhance the "class action" attributes of the appeal. While the special appeal is not a class action, and was not intended to be a class action, the legislature did intend that it be similar to a class action in that the participants and the issues raised were representative and inclusive. Thus, the notice requirement was designed to inform the public if any class of values was not being appealed. The notice published during the appeal met those requirements by informing the public that all classes of values were being appealed.
The statutory requirements for notice of the special appeal were met. At that point in the process, plaintiffs had no right to greater notice. "The different notice requirements * * * can be explained by the difference in the overall statutory scheme of notification provided throughout the tax assessment process." Grant County v. Guyer, 296 Or. 14, 24, 672 P.2d 702 (1983).
CONCLUSION
Due process does not require that every potentially affected party be notified prior to the initiation of procedures established by a legislative scheme, even if the eventual outcome is a property tax assessment. Due process is satisfied if the property owner is given an opportunity to be heard prior to the "imposition of the assessment as a charge on the land." Brown v. City of Salem, 251 Or. 150, 155, 444 P.2d 936 (1968) (quoting Utley v. St Petersburg, 292 U.S. 106, 109, 54 S.Ct. 593, 78 L.Ed. 1155 (1934)).
Plaintiffs' failure to join in this special appeal did not deprive them of any individual *1331 rights. The land class values set by the Department had not yet been used by the assessors to establish finally the assessed values of plaintiffs' property. The initial litigation over the Department's action came prior to any effect on plaintiffs' property rights. The statutes establishing the special litigation process specifically required that there would be no effect on plaintiffs' property until after review, at which time the values would be applied through assessment.
Plaintiffs had no due process right to personal notice of this litigation. The fact that the outcome of the litigation affected plaintiffs' rights does not itself give plaintiffs an absolute right to personal notice. The effect stemmed from the actions of the Department in setting the land class values. That this departmental rulemaking decision was reviewed by the courts does not constitutionally increase the notice requirements.
Plaintiffs received notice of the assessment of the recomputed taxes on their property, and of their right to appeal that recomputation. During such an appeal, plaintiffs could have raised questions concerning the accuracy of the classification of their land, the accuracy of the assessment's calculations, and other matters. Plaintiffs raised only the adequacy of the notice of the litigation concerning the department's determination of land class values. The notice requirements of ORS 321.352 were constitutionally adequate for the rulemaking procedures that they accompanied.
The decision of the Tax Court is affirmed.
NOTES
[1] Plaintiffs also alleged a violation of Article I, sections 10, 20 and 32, of the Oregon Constitution by mentioning these provisions in their assignments of error. In the course of their argument, however, plaintiffs make it clear that they are relying entirely on the federal constitutional analysis.
[2] This notice of value change contained a standard notice of a taxpayer's right to appeal any such increase in valuation. The notice informed plaintiffs that:
"[i]f your estimate of the market value of the property disagrees with the market value shown, you should come to the County Assessor's Office as soon as possible (not later than May 1) to discuss the valuation. Further appeal may be made to the County Board of Equalization by filing with the County Clerk a petition for a hearing not later than the 3rd Monday in May."
[3] The notice was published each year during the appeal. Each year's notice was the same, except that the relevant years were inserted. The following notice was published in 1980:
"On March 18, 1980, pursuant to ORS 321.352, Boise Cascade Corporation, Longview Fibre, Weyerhaeuser Company, Medford Resources Corporation and Rough and Ready Timber Company, owning in the aggregate more than five per cent of the total forest land acreage subject to ad valorem taxation in the market area comprised of Jackson and Josephine counties, filed a representative appeal with the Department of Revenue contesting the values set by the Department in all zones and all site classes with respect to the January 1, 1980 forest land values for ad valorem taxation purposes in those counties. The 1980 forest land values are composed of the 1978 forest land value certified to each county assessor in 1978, plus a stumpage adjustment as required by ORS 321.352. The 1980 adjustments have been certified by the Department to each county assessor. The appeal contests the basic 1978 forest land value but not the stumpage adjustment thereto; both are on file for public inspection in the office of each county assessor.
"The Department must issue its order on the appeal not later than May 17, 1980. If no order is issued the relief requested in the appeal is deemed to have been denied. If an appeal from that order is taken to the Oregon Tax Court, the following statutory provisions will apply:
`If the tax court increases or reduces any of the values under appeal, the decree of the court shall apply to the valuation of all forest land in the designated market area for that year. An appeal may be taken to the Oregon Supreme Court from the decree of the tax court. Unless changed upon appeal to the Supreme Court, the tax court determination shall be binding upon the department and upon each assessor and taxpayer affected by such determination of value.' ORS 321.352(6).
"This statutory provision would apply to fix the 1980 valuation of all forest land in Jackson and Josephine counties and not just the lands of the above-named taxpayers."
[4] We summarize these statutes and proceedings to assist the reader in tracing the sinuous history of this complex matter:
Tax Year 1976 Default date for land values
in the event of an appeal of
1977 values
April 28, 1977 Plaintiffs receive notice of
value increases
April-May 1977 Appeals of value increases
filed by other taxpayers
July 26, 1977 SB 1077 (Or. Laws 1977, ch.
753) approved by Governor
July 28, 1977 HB 3274 (Or. Laws 1977,
ch. 892) approved by
Governor
August 1977 Existing appeals of department's
valuations forwarded
to department;
expedited consideration
of appeals begun
October 3, 1977 Effective date of SB 1077
(first law establishing
special appeal process)
and ORS 321.377 (providing
for expeditious
treatment of appeals of
department's 1977 land
valuations and requiring
suspension of 1977 increases)
January 1, 1978 Effective date of ORS 321.352
(present special appeal
process, requiring
use of lower values (1976
values) during appeal);
effective date of repeal
of SB 1077 (Or. Laws
1977, ch. 753)
April 20, 1982 Date of opinion in Publishers
Paper v. Dept. of Revenue,
292 Or. 836, 644
P.2d 1089 (1982)
November 19, 1982 Plaintiffs receive notice of
recomputed tax from Josephine
County Assessor
[5] ORS 308.205 (1975) provided:
"True cash value of all property, real and personal, means market value as of the assessment date. True cash value in all cases shall be determined by methods and procedures in accordance with rules and regulations promulgated by the Department of Revenue. With respect to property which has no immediate market value, its true cash value shall be the amount of money that would justly compensate the owner for loss of the property."
[6] Because of our resolution of this case, we need not decide the question whether Josephine County would be a proper party in an action where a refund of property taxes was ordered. We note that Josephine County argued that it need not be named as a party because: "Josephine County taxing authorities are subject to the supervision of the Department of Revenue regarding administration of the tax laws, and particularly regarding those matters raised by plaintiffs in the complaint," which, because ORS 305.120 empowers the department to "see that revenue officers comply with the tax and revenue laws," would allow the department to order Josephine County to make any necessary refund.
[7] Former ORS 321.377 (repealed by Or. Laws 1985, ch. 759, § 40) provided, in relevant part:
"(1) Notwithstanding ORS 308.205, for the assessment year 1977, forest land in western Oregon shall be assessed at true cash value for forest use on the basis of January 1, 1977, assessed values, established pursuant to ORS 321.622 (1975 Replacement Part).
"* * *
"(3) All orders of county boards of equalization changing the base land class values of forest lands from the values determined by the department and made available to county assessors under ORS 321.622 (1975 Replacement Part) as of January 1, 1977, are null and void. `Base land class' means a category of land quality used by the department in its determination of forest land values as of January 1, 1977. Within 10 days after July 28, 1977, the clerk of each county board of equalization to which any appeal has been taken requesting a change of base land class values shall file with the department a copy of the petition filed with the board and a copy of the file of the board with respect to such petition, including a copy of any minutes or order of the board. The petition to the board with respect to base land class values shall be deemed filed with the department upon such filing by the clerk of the board. Unless the right to a hearing is waived by the petitioner and the department, after giving notice of a time and place for hearing the petition, the department shall hear the petition not earlier than 15 days and not later than 45 days from the filing by the clerk of the board with the department. The order of the director shall be issued not later than 60 days following the filing with the department, and if not issued within that time, the relief requested in the petition as to base land class values shall be deemed to have been denied. All issues other than the issue of base land class value which are or were raised before boards of equalization shall be determined by such boards and appealed as otherwise provided by law.
"* * *
"(5) If the tax court increases or reduces any of the base land class values under appeal, the decree of the tax court or if changed upon appeal, the decision of the Supreme Court, shall apply to the valuation of all forest land of the same base land class in the designated market area for the year 1977. An appeal may be taken to the Oregon Supreme Court from the decree of the tax court. The final determination of the tax court or the Supreme Court on appeal shall be binding upon the department and upon each assessor and taxpayer affected by such determination of value."
[8] Former ORS 321.622 was repealed by Oregon Laws 1977, chapter 892, section 51. The fact that Oregon Laws 1977, chapter 892, was also the source of ORS 321.352 serves as a clear indication that the legislature did not intend to alter the rulemaking characteristics of the department's forest land valuation process.
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440 F.3d 940
Marva Jean SAUNDERS, et al., Plaintiffs-Appellants,v.FARMERS INSURANCE EXCHANGE, et al., Defendants-Appellees.Marva Jean Saunders, et al., Plaintiffs-Appellants,v.American Family Mutual Insurance Company, Defendant-Appellee.Coleman McClain, et al., Plaintiffs-Appellants,v.Shelter General Insurance Company, et al., Defendants-Appellees.
No. 05-2225.
No. 05-2228.
No. 05-2231.
United States Court of Appeals, Eighth Circuit.
Submitted: September 16, 2005.
Filed: March 8, 2006.
Michael D. Lieder, Latif Doman and Eden B. Gaines, Washington DC., Sylvester James, Jr., Kansas City, MO, for appellants.
R. Lawrence Ward and Mark A. Olthoff, Kansas City, MO., Cynthia T. Andreason, Washington DC., for Farmers Insurance Exchange, Fire Insurance Exchange, and Mid-Century Insurance Company.
John L. Oberdorfer, Jamie S. Gardner, and Jeanne Liedtka, Washington DC, David T.M. Powell and Alok Ahuja, Kansas City, MO, for American Family Mutual Insurance Company.
Jack L. Whitacre and Michael C. Leitch, Kansas City, MO, Shelter General Insurance Company and Shelter Mutual Insurance Company.
Before LOKEN, Chief Judge, FAGG and BYE, Circuit Judges.
LOKEN, Chief Judge.
1
In 1996, numerous plaintiffs sued twenty-five insurers under the Fair Housing Act, 42 U.S.C. §§ 3601 et seq., and the Civil Rights Acts of 1866 and 1870, 42 U.S.C. §§ 1981 and 1982, seeking class action relief for defendants' allegedly discriminatory policies that deny homeowners insurance to the residents of minority neighborhoods in Missouri. The district court denied class certification and dismissed the complaint without prejudice, concluding that plaintiffs lack standing to bring claims against defendants against whom they have alleged no direct injury. We affirmed. Canady v. Allstate Ins. Co., 1997 WL 33384270 (W.D.Mo.1997), aff'd, 162 F.3d 1163 (8th Cir.1998) (table) (Canady).
2
Plaintiffs then filed ten new actions, each asserting the same claims against a single Canady defendant. Warned by the district court that they "cannot establish a `direct injury' without showing a `direct contact' between the plaintiffs and the defendant," plaintiffs filed Revised Second Amended Complaints, each challenging a single defendant's alleged unlawful practices with respect to the marketing and underwriting of homeowners insurance in a single, contiguous black community in Kansas City. In McClain v. American Econ. Ins. Co., 424 F.3d 728 (8th Cir.2005) (McClain), we affirmed the dismissal of the complaints against three insurers for lack of standing. We now consider three separate appeals challenging the dismissal of complaints against three other insurers—Farmers Insurance Exchange (Farmers), American Family Mutual Insurance Company (American Family), and Shelter General Insurance Company (Shelter). These appeals raise an issue not raised in McClain—whether the district court properly applied the filed rate doctrine in dismissing claims that defendants' pricing policies and practices reflect unlawful race discrimination. We reverse the dismissal of the pricing claims and otherwise affirm.
3
I. The Insurance Coverage Claims.
4
Like the appellants in McClain, plaintiffs asserted claims alleging that Farmers, American Family, and Shelter use unlawfully discriminatory underwriting criteria that render minority residents in the Community ineligible for homeowners insurance. As in McClain, the district court dismissed these claims for lack of standing under Rule 12(b)(1) of the Federal Rules of Civil Procedure. See generally Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992); Steger v. Franco, Inc., 228 F.3d 889 (8th Cir.2000). The court concluded that no plaintiff has shown a direct contact with a defendant establishing injury "fairly traceable" to the challenged underwriting criteria. The court rejected plaintiffs' alternative theory that they have standing without proof of direct contacts because their knowledge of the defendants' underwriting practices deterred them from making futile applications for insurance.
5
On appeal, plaintiffs argue that the district court did not give them adequate notice that it would make fact-based rulings under Rule 12(b)(1) and did not allow adequate discovery to develop evidence of direct contacts. We reject this contention for the reasons stated in McClain, 424 F.3d at 732. Plaintiffs further argue that it is sufficient proof of direct contact that a plaintiff applied for homeowners insurance and was rejected, without regard to the reason for the rejection or whether the plaintiff was made aware of that reason. The district court rejected this contention, and we agree. A direct injury must "result[] from the challenged conduct," McClain, 424 F.3d at 731; that is, it must be "fairly traceable to the challenged action of the defendant." Lujan, 504 U.S. at 560, 112 S.Ct. 2130 (quotation omitted). Therefore, to make a sufficient showing of direct injury, a plaintiff must show that he or she applied for homeowners insurance and was rejected for a reason related to the challenged underwriting criteria. Plaintiffs failed to make that showing. Finally, plaintiffs press on appeal their alternative deterrence theory. We reject this contention for the reasons stated in McClain, 424 F.3d at 733-34.
6
As in McClain, the district court applied the correct legal standard, carefully reviewed the lengthy discovery record, and resolved fact disputes relating to these jurisdictional issues, as Rule 12(b)(1) permits. Plaintiffs fail to demonstrate that the court's findings regarding the absence of direct injury were clearly erroneous.
7
II. The Price Discrimination Claims.
8
Plaintiffs further allege that each defendant violated the Fair Housing Act and the Civil Rights Acts by "charg[ing] higher premium rates for the same type of homeowner's coverage to homeowners in the Community . . . than it has charged homeowners in white communities." The district court dismissed these price discrimination claims. Applying what has come to be known as the filed rate doctrine, the court held that, because homeowners insurers doing business in Missouri may only charge premium rates filed with the Missouri Department of Insurance, a rate-payer suffers no injury from being charged the filed rate. Therefore, the court reasoned, plaintiffs lack standing to claim that a different rate should have been charged. See Keogh v. Chicago & N.W. Ry., 260 U.S. 156, 161-65, 43 S.Ct. 47, 67 L.Ed. 183 (1922). On appeal, plaintiffs concede that Missouri law requires insurers to charge their filed rates. But plaintiffs argue that the filed rate doctrine may not be applied to bar damage claims under federal civil rights statutes based upon the State's economic regulation of insurance rates. On this record, we agree with plaintiffs.
9
At its core, the filed rate doctrine has two components. It prohibits a regulated entity from discriminating between customers by charging a rate for its services other than the rate filed with the regulatory agency, and it preserves the authority and expertise of the rate-regulating agency by barring a court from enforcing the statute in a way that substitutes the court's judgment as to the reasonableness of a regulated rate. See AT & T v. Central Office Tel., Inc., 524 U.S. 214, 221-23, 118 S.Ct. 1956, 141 L.Ed.2d 222 (1998); Arkansas La. Gas Co. v. Hall, 453 U.S. 571, 577-78, 101 S.Ct. 2925, 69 L.Ed.2d 856 (1981); Montana-Dakota Util. Co. v. Northwestern Pub. Serv. Co., 341 U.S. 246, 250-52, 71 S.Ct. 692, 95 L.Ed. 912 (1951).
10
In Keogh, the Supreme Court faced a somewhat different question, namely, whether a regulated entity's customers may recover treble damages under the federal antitrust laws because the rates, though approved by a federal rate-regulating agency, were the product of an illegal price fixing conspiracy. The Court noted that the regulatory agency's approval established the lawfulness of the filed rates. Therefore, the Court concluded, the antitrust plaintiff could not recover damages because it had not been injured in its business or property within the meaning of the Sherman Act. 260 U.S. at 162-63, 43 S.Ct. 47. This is not an antitrust immunity, the Court later explained:
11
The alleged collective activities of the defendants . . . were subject to scrutiny under the antitrust laws by the Government and to possible criminal sanctions or equitable relief. Keogh simply held that an award of treble damages is not an available remedy for a private shipper claiming that the rate submitted to, and approved by, the ICC was the product of an antitrust violation.
12
Square D Co. v. Niagara Frontier Tariff Bureau, Inc., 476 U.S. 409, 422, 106 S.Ct. 1922, 90 L.Ed.2d 413 (1986). Having narrowly defined the scope of Keogh in this fashion, the Court in Square D declined to overrule this long-standing precedent.1
13
In these cases, the district court applied the no-injury principle of Keogh to dismiss federal race discrimination claims because those claims challenge insurance premiums rates filed with a state regulatory agency. This ruling goes beyond the core of the filed rate doctrine, which simply allocates between a regulatory agency and the courts the authority to approve and enforce rates filed with the agency. Here, as in Keogh and Square D, the question is whether the agency's rate-regulating authority trumps the court's authority to enforce a different statute. Plaintiffs correctly argue that the Supreme Court in Keogh and Square D harmonized two federal statutes with competing purposes, the Sherman Act and the Interstate Commerce Act, whereas here the Supremacy Clause tips any legislative competition in favor of the federal anti-discrimination statutes. Cf. City of Kirkwood v. Union Elec. Co., 671 F.2d 1173, 1178-79 n. 14 (8th Cir.1982). Therefore, a decision that these federal claims are barred by the State's regulation of the defendants must be grounded in the language, remedies, and purposes of the federal statutes at issue.
14
Without question, this court and others have applied this aspect of the filed rate doctrine to bar federal RICO and antitrust claims seeking relief against utility rates filed with state regulatory agencies. H.J. Inc. v. Northwestern Bell Tel. Co., 954 F.2d 485 (8th Cir.), cert. denied, 504 U.S. 957, 112 S.Ct. 2306, 119 L.Ed.2d 228 (1992); see Texas Commercial Energy v. TXU Energy, Inc., 413 F.3d 503 (5th Cir.2005); Wegoland Ltd. v. NYNEX Corp., 27 F.3d 17 (2d Cir.1994); Taffet v. Southern Co., 967 F.2d 1483 (11th Cir.) (en banc), cert. denied, 506 U.S. 1021, 113 S.Ct. 657, 121 L.Ed.2d 583 (1992). But RICO and the Sherman Act require a plaintiff to prove injury to "his business or property." 18 U.S.C. § 1964(c). Thus, the no-injury principle of Keogh applies to deprive a RICO or antitrust plaintiff of standing under federal law to challenge a filed rate that must be charged under state law. But standing to sue under federal anti-discrimination statutes such as the Fair Housing Act is far broader. See Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205, 93 S.Ct. 364, 34 L.Ed.2d 415 (1972). If a defendant's pricing policies or practices were the product of unlawful race discrimination, plaintiffs who purchased homeowners insurance at the discriminatory rates have standing to seek relief under these federal statutes even if the defendant was required by state law to charge its filed rates. Thus, as to this limited group of plaintiffs, the no-injury principle of Keogh and H.J. Inc. will not support an affirmance.
15
On appeal, beyond supporting the district court's flawed application of the Keogh no-injury principle, defendants simply argue at great length that federal courts should not interfere with the state regulatory regime by adjudicating claims that particular rates are the product of race discrimination. No doubt a ruling that rates are unlawfully discriminatory under federal law will have some impact on the state regulatory regime. But whether our jurisdiction to enforce the federal statutes should be set aside (or "reverse preempted") on this ground is a question for Congress, so the answer must be found in federal statutes. On this aspect of the inquiry, defendants and the district court are silent.
16
Congress addressed the extent to which enforcement of federal statutes may be permitted to impact state regulation of insurance in the McCarran-Ferguson Act, 15 U.S.C. §§ 1011-1015, enacted in response to the Supreme Court's ruling in United States v. South-Eastern Underwriters Ass'n, 322 U.S. 533, 64 S.Ct. 1162, 88 L.Ed. 1440 (1944), that insurance is interstate commerce under the Commerce Clause. Intending to leave the regulation of insurance primarily to the States, Congress provided, with exceptions not relevant here, that no federal statute "shall be construed to invalidate, impair, or supersede any law enacted by any State for the purpose of regulating the business of insurance. . . unless such [federal] Act specifically relates to the business of insurance." 15 U.S.C. § 1012(b). The Fair Housing Act, § 1981, and § 1982 do not specifically relate to the business of insurance, nor do they "invalidate" or "supersede" the Missouri laws regulating insurance. Thus, the question under the McCarran-Ferguson Act is whether enforcement of these federal statutes in the manner urged by plaintiffs would "impair" the State's regulation of insurance. State regulation is impaired only if the federal law "directly conflict[s] with state regulation," or if its application would "frustrate any declared state policy or interfere with a State's administrative regime." Humana Inc., v. Forsyth, 525 U.S. 299, 310, 119 S.Ct. 710, 142 L.Ed.2d 753 (1999).
17
Whether the adjudication of plaintiffs' pricing claims would impair Missouri's regime of insurance rate regulation under Humana is a fact-intensive issue that defendants did not raise in the district court or on appeal. The requisite level of interference is certainly more than possible. In holding that the filed rate doctrine barred RICO claims against a state-regulated electric utility, for example, Judge Tjoflat for the Eleventh Circuit summarized specific adverse impacts on the affected state regulatory regimes that might well constitute impairment for McCarran-Ferguson Act purposes. Taffet, 967 F.2d at 1491-92. Similarly, Judge Easterbrook in NAACP v. American Family Mut. Ins. Co., 978 F.2d 287, 290-91 (7th Cir.1992), cert. denied, 508 U.S. 907, 113 S.Ct. 2335, 124 L.Ed.2d 247 (1993), and Judge Jones dissenting in Dehoyos v. Allstate Corp., 345 F.3d 290, 300-02 (5th Cir.2003), cert. denied, 541 U.S. 1010, 124 S.Ct. 2074, 158 L.Ed.2d 621 (2004), gave powerful reasons why the relief requested in a disparate impact pricing claim under the Fair Housing Act could impair comprehensive state regulation of insurance rates. But a specific showing is needed. "The presence of a general regulatory scheme does not show that any particular state law would be invalidated, impaired or superseded by the application of the Fair Housing Act and the Civil Rights Acts." Mackey v. Nationwide Ins., 724 F.2d 419, 421 (4th Cir.1984).
18
Here, the record on appeal does not sufficiently delineate either the nature of plaintiffs' price discrimination claims, the specific relief they seek, or the extent of Missouri's insurance rate regulation to decide the McCarran-Ferguson Act impairment issue. We know defendants divide the State of Missouri into geographic rating territories and file different rating schedules for each territory, several of which are within Kansas City. We know that the Missouri administrative regime protects insureds from discriminatory pricing, see Mo.Rev.Stat. § 379.318.4, and that the agency may enforce compliance with this mandate in response to complaints by insureds, see Mo.Rev.Stat. §§ 379.348, 379.361. But we do not know whether insureds may bring an action in state court to challenge an insurance rate as discriminatory or unreasonable, nor do we know whether the Missouri statutes permit judicial review of the agency's determination of these issues.2 Humana teaches that the mere fact of overlapping complementary remedies under federal and state law does not constitute impairment for McCarran-Ferguson Act purposes. 525 U.S. at 313-14, 119 S.Ct. 710; see Nationwide Mut. Ins. Co. v. Cisneros, 52 F.3d 1351, 1363 (6th Cir.1995), cert. denied, 516 U.S. 1140, 116 S.Ct. 973, 133 L.Ed.2d 893 (1996).
19
The Supreme Court has repeatedly emphasized "that federal courts have a strict duty to exercise the jurisdiction that is conferred upon them by Congress." Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 716, 116 S.Ct. 1712, 135 L.Ed.2d 1 (1996). Here, rather than develop a record adequate to apply the federal statute that specifically addresses the problem, the McCarran-Ferguson Act, defendants brought Rule 12(b)(1) motions alleging that the filed rate doctrine deprives insureds of standing to assert race discrimination pricing claims under the Fair Housing Act and the Civil Rights Acts. The district court erred in invoking the judicially created filed rate doctrine to restrict Congress's broad grant of standing to seek judicial redress for race discrimination. That is the primary question before us regarding the pricing claims and the only question we decide.3
20
III. Conclusion.
21
The following portions of the district court's final judgments are reversed and remanded for further proceedings not inconsistent with this opinion: in the Farmers action, the judgment dismissing the price discrimination claims of plaintiffs Kerry Butler and Kim Nickerson; in the American Family action, the judgment dismissing the price discrimination claims of plaintiffs Marva Saunders, Cynthia Canady, and Kerry Butler; in the Shelter action, the judgment dismissing the price discrimination claim of plaintiff Kerry Butler. In all other respects, the judgments are affirmed.
Notes:
1
The Court's reference to injunctive relief inSquare D was based upon Georgia v. Pennsylvania Rail Co., 324 U.S. 439, 65 S.Ct. 716, 89 L.Ed. 1051 (1945), which limited Keogh by holding that Georgia could obtain injunctive relief under the antitrust laws against the railroads' collective rate-making procedures, but not damages. Here, without discussion, the district court dismissed plaintiffs' claims for injunctive relief under the civil rights acts, as well as their claims for damages. On appeal, defendants totally fail to support this seemingly unjustified expansion of the filed rate doctrine.
2
A number of state courts apply the filed rate doctrine to bar suits challenging allegedly discriminatory insurance rates under state lawSee Schermer v. State Farm Fire & Cas. Co., 702 N.W.2d 898, 907 (Minn.App.2005), and cases cited. Though relevant to the impairment question, the parties cite no Missouri cases addressing this issue, and based on our review the Missouri insurance statutes appear to be silent.
3
Our conclusion that the pricing claims must be remanded makes it unnecessary to address plaintiffs' contention that the district court erred in striking a declaration by the former Director of the Missouri Department of Insurance submitted to show that the state regulators do not meaningfully review defendants' filed rates
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Docket No. 91417–Agenda 15–January 2002.
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.
DAVID BELCHER, Appellant.
Opinion filed April 4, 2002.
JUSTICE FREEMAN delivered the opinion of the court:
In the circuit court of Champaign County, defendant, David Belcher, pled guilty to one count of first degree murder (720 ILCS 5/9–1(a)(2) (West 1996)) in exchange for the dismissal of other charges and received a sentence of 60 years’ imprisonment. The trial court denied defendant’s motion to reconsider sentence. On appeal, the appellate court declined to vacate defendant’s guilty plea and sentence or allow him leave to file a motion to withdraw his guilty plea in the trial court. However, the appellate court found that the certificate defense counsel filed with the motion to reconsider sentence did not meet the requirements of Supreme Court Rule 604(d). The appellate court therefore remanded the matter so that defense counsel could comply with Rule 604(d) and file a new motion to reconsider sentence.
People v. Belcher
, No. 4–96–0959 (1998) (unpublished order under Supreme Court Rule 23).
On remand, the trial court denied defendant’s motion to reconsider sentence. Defendant appealed and the appellate court affirmed its previous order denying defendant leave to file a motion to withdraw his guilty plea. No. 4–99–0755. We granted defendant’s petition for leave to appeal (177 Ill. 2d R. 315(a)), and for the reasons that follow we reverse and remand.
BACKGROUND
In 1996, defendant was charged with seven counts of first degree murder and two counts of residential burglary in connection with the murder of Nathan Ehler on February 28, 1996. Prior to trial, defendant moved for the appointment of a psychiatrist. The court ordered Dr. Lawrence Jeckel to examine defendant as to his sanity at the time of the alleged offense and his fitness to stand trial.
Dr. Jeckel found defendant fit to stand trial. He also found, pursuant to section 6–2(a) of the Criminal Code, that defendant was sane at the time of the offense. 720 ILCS 5/6–2(a) (West 1996).
(footnote: 1) Specifically, Dr. Jeckel stated in his report, and in testimony later given at defendant’s sentencing hearing, that defendant “appreciated the criminality of his conduct at the time of the alleged crime.” Based on this evaluation, defendant stipulated to being fit to stand trial. He also pled guilty to one count of first degree murder (720 ILCS 5/9–1(a)(2) (West 1996)) in exchange for the dismissal of all other charges, pursuant to a plea agreement with the State. There was no agreement as to sentencing, and in fact, the State gave notice that it was seeking the death penalty. The trial court fully admonished defendant in accordance with Supreme Court Rule 402 (see 134 Ill. 2d R. 402). The court determined that there was a factual basis for the plea, noted the plea agreement, and found defendant’s plea voluntary and knowing. For these reasons the trial court accepted defendant’s plea of guilty.
Defendant’s sentencing hearing was held approximately 29 days after his plea was accepted by the trial court. At the hearing, Dr. Jeckel testified that he would have found defendant insane at the time of the alleged offense under the prior version of the insanity statute. 720 ILCS 5/6–2(a) (West 1994). This was due to the fact that defendant was unable to “conform his conduct to the requirements of law.” As noted above, at the close of the hearing the trial court sentenced defendant to 60 years of imprisonment.
On appeal, the appellate court found that the certificate defense counsel filed with the motion to reconsider sentence did not meet the requirements of Supreme Court Rule 604(d).
The appellate court noted that the certificate requirements of Rule 604(d) must be strictly complied with, and that the remedy for noncompliance is a remand to the trial court for the filing of a new motion to withdraw the guilty plea or reconsider the sentence, and a new hearing on the motion. The appellate court observed that defense counsel could not have reviewed the transcript of the sentencing hearing since the hearing on the motion to reconsider was combined with the sentencing hearing. Further, the appellate court observed that it appeared from the record that counsel did not communicate with defendant to ascertain his contentions of error in the sentence or entry of the guilty plea.
During the pendency of this direct appeal, defendant alerted the appellate court to the fact that Public Act 89–404 was unconstitutional, citing this court’s decision in
Johnson v. Edgar
, 176 Ill. 2d 499 (1997). The appellate court was also aware of its holding in
People v. Pitts
, 295 Ill. App. 3d 182 (1998), that Public Act 89–404 was enacted in violation of the single subject rule and that the new version of the insanity statute could not stand. Defendant requested that the appellate court vacate his guilty plea and sentence or, in the alternative, grant him leave to file a motion to withdraw his guilty plea in the trial court. The appellate court declined this opportunity to grant either of defendant’s requests.
Defendant’s appeal proceeded as noted at the outset of this opinion. Additional facts will be set forth as needed in the analysis portion of our discussion.
ANALYSIS
Defendant contends that the appellate court erred in denying his request to vacate his guilty plea. The State responds that defendant cannot challenge the validity of his guilty plea because he did not properly move to vacate his plea in the trial court prior to raising this issue on appeal. Defendant rejoins that he asked for leave to vacate his plea at the first available opportunity. The State is correct in its assertion that defendant did not file a motion to withdraw his guilty plea within the allotted time of Rule 604(d) and, in the usual circumstances, such a failing would leave a defendant without remedy. But this is not the usual case. While it is true this court does not approve of any failure to comply strictly with the explicitly stated requirements of Rule 604(d) (
People v. Wilk
, 124 Ill. 2d 93, 103 (1988)), the unusual and fact-specific circumstances found in this case lead us to believe that the ends of justice will be better served by permitting defendant leave to file a motion to withdraw his guilty plea in the trial court.
As noted above, Dr. Jeckel found defendant sane at the time of the offense, pursuant to the insanity provisions enacted as part of Public Act 89–404. It is important to understand that these provisions made it more difficult for a defendant to assert the affirmative defense of insanity than the former version of the law with its broader definition of insanity. See
People v. Ramsey
, 192 Ill. 2d 154, 156 (2000) (noting the differences between the two versions of the insanity statute and explaining that the provisions of Public Act 89–404 narrowed the definition of insanity). “The amended version of the law was significant because it altered the definition of insanity.”
Ramsey
, 192 Ill. 2d at 156. “Under the amendment, a defendant could no longer raise an insanity defense based on his inability ‘to conform his conduct to the requirements of law.’ ”
Ramsey
, 192 Ill. 2d at 156, quoting 720 ILCS 5/6–2(a) (West 1994). Since the time of defendant’s guilty plea, the courts of this state have repeatedly held that Public Act 89–404 is unconstitutional because it was enacted in contravention of the single subject rule.
People v. Reedy
, 186 Ill. 2d 1 (1999);
People v. Pitts
, 295 Ill. App. 3d 182 (1998).
The representation made by Dr. Jeckel to the court and to defendant foreclosed the availability of the affirmative defense of insanity by defendant. In light of these circumstances, defendant pled guilty to the murder. Defendant argues that Dr. Jeckel’s conclusion led him to forgo the opportunity this affirmative defense offers. We now know that the insanity provisions used at trial were enacted in contravention of the single subject rule. Had this fact been known to defendant at that time, his decision to forgo the affirmative defense and to enter a guilty plea might have been different. In fact, Dr. Jeckel testified that under the former version of the insanity statute, his opinion of defendant’s sanity at the time of the offense would change. He would conclude that defendant was insane at the time of the murder because defendant was unable to conform his conduct to the requirements of law.
We emphasize that Dr. Jeckel was a court-appointed psychiatrist who opined that defendant was sane at the time of the murder. The trial court relied upon that representation in accepting defendant’s guilty plea. In light of the case law noted above, it now appears that the court’s expert, the court and defendant may have been operating under a misapprehension of law. Lastly, we note that defendant asked the appellate court to vacate his guilty plea at the earliest opportunity and did not wait until the eleventh hour to raise the issue.
These unusual circumstances lead us to believe that defendant should be given an opportunity to file a motion to vacate his guilty plea. The basis for vacatur of the guilty plea, misapprehension of the law, is well recognized in our jurisprudence.
People v. Morreale
, 412 Ill. 528 (1952).
CONCLUSION
For the aforementioned reasons, the judgments of the circuit and appellate courts are reversed and the cause is remanded to the trial court.
Judgments reversed;
cause remanded.
FOOTNOTES
1: The version of the insanity statute in effect at the time of defendant’s trial provided:
“(a) A person is not criminally responsible for conduct if at the time of such conduct, as a result of mental disease or mental defect, he lacks substantial capacity to appreciate the criminality of his conduct.” 720 ILCS 5/6–2(a) (West 1996).
The prior version of the insanity statute provided:
“(a) A person is not criminally responsible for conduct if at the time of such conduct, as a result of mental disease or mental defect, he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law.” 720 ILCS 5/6–2(a) (West 1994).
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438 F.Supp.2d 676 (2006)
Rowena Harris OLIVER
v.
Steve PRATOR, et al.
Civil Action No. 04-1403.
United States District Court, W.D. Louisiana, Shreveport Division.
July 17, 2006.
*677 Billy R. Casey, Attorney, Shreveport, LA, for Plaintiff.
Edwin H. Byrd, III, Pettiette Armand et al, Shreveport, LA, for Defendant.
MEMORANDUM RULING
HICKS, District Judge.
Before the Court is a Motion for Summary Judgment filed by the Defendant, Caddo Parish Sheriff Steve Prator. [Doc. No. 11]. Plaintiff Rowena Harris Oliver, individually and on behalf of the unopened succession of her son, Le'Tim D. Harris, filed the instant suit against Sheriff Prator asserting claims pursuant to 42 U.S.C. Sections 1983 & 1985 and Louisiana state tort law. Sheriff Prator's motion seeks to have all of Plaintiff's claims dismissed. For the reasons which follow, the motion is GRANTED IN PART and DENIED IN PART.
FACTUAL BACKGROUND
Oliver alleges that on June 11, 2003, a vehicle carrying her son as a guest passenger was stopped without probable cause by Caddo Parish Sheriff's deputies McLamb and Lewis. [Rec. Doc. 1-3, ¶ 4]. Oliver contends that the deputies subsequently chased Harris, who eventually stopped and sat beside a tree exhausted and tired from running. [Id., ¶ 5]. Oliver alleges that the deputies then handcuffed Harris and "for no apparent reason through (sic) cold water in his face" which she contends caused Harris to go into sudden cardiac arrest and die. [Id.] Oliver's suit seeks to recover damages against Sheriff Prator under Section 1983 and state tort law.
LAW AND ANALYSIS
I. Summary Judgment Standard.
Summary judgment should be granted if the record, taken as a whole, "together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R.Civ.P. 56(c); New York Life Ins. Co. v. Travelers Ins. Co., 92 F.3d 336, 338 (5th Cir.1996). The Supreme Court has interpreted the plain language of Rule 56(c) to mandate "the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986); see also, Gunaca v. Texas, 65 F.3d 467, 469 (5th Cir.1995). A party moving for summary judgment "must `demonstrate the absence of a genuine issue of material fact,' but need not negate the elements of the nonmovant's case." Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (quoting Celotex, 477 U.S. at 323-25, 106 S.Ct. at 2552). If the moving party "fails to meet this initial burden, *678 the motion must be denied, regardless of the nonmovant's response." Little, 37 F.3d at 1075.
If the moving party meets this burden, Rule 56(c) requires the nonmovant to go beyond the pleadings and show by affidavits, depositions, answers to interrogatories, admissions on file, or other admissible evidence that specific facts exist over which there is a genuine issue for trial. Wallace v. Texas Tech Univ., 80 F.3d 1042, 1046-47 (5th Cir.1996). The nonmovant's burden may not be satisfied by conclusory allegations, unsubstantiated assertions, metaphysical doubt as to the facts, or a scintilla of evidence. Little, 37 F.3d at 1075; Wallace, 80 F.3d at 1047. Factual controversies are to be resolved in favor of the nonmovant, "but only when there is an actual controversy, that is, when both parties have submitted evidence of contradictory facts." Wallace, 80 F.3d at 1048 (quoting Little, 37 F.3d at 1075); see also, S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 494 (5th Cir.1996). The Court will not, "in the absence of any proof, assume that the nonmoving party could or would prove the necessary facts." McCallum Highlands v. Washington Capital Dus, Inc., 66 F.3d 89, 92 (5th Cir.1995), as revised on denial of rehearing, 70 F.3d 26 (5th Cir.1995). Unless there is sufficient evidence for a jury to return a verdict in the nonmovant's favor, there is no genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-51, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). When the nonmovant has the burden of proof at trial, he "must come forward with evidence which would be sufficient to enable it to survive a motion for directed verdict at trial." Stults v. Conoco, Inc., 76 F.3d 651, 656 (5th Cir.1996). If the nonmovant can not meet this burden, then "the motion for summary judgment must be granted." Id., Little, 37 F.3d at 1076.
In order to determine whether or not summary judgment should be granted, an examination of the substantive law is essential. Substantive law will identify which facts are material in that "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. at 248, 106 S.Ct. at 2510.
II. Plaintiffs Section 1983 Claim.
Section 1983 authorizes suits for damages against any person who acts under color of state law to deprive another person of his constitutional rights. In a suit against a government official in his individual capacity, the complainant must allege specific conduct giving rise to a constitutional violation. Stringer v. Alben, 89 Fed.Appx. 449, 452 (5th Cir.2004)(citing Oliver v. Scott, 276 F.3d 736, 741 (5th Cir.2002)). A claim against a government official in his official capacity is a claim against the county because a county or municipality may be liable under § 1983 if an official policy or custom caused the deprivation of a constitutional right. Stringer, 89 Fed.Appx. at 452 (citing Bennett v. Pippin, 74 F.3d 578, 584 (5th Cir. 1996); Monell v. Department of Social Servs. of City of New York, 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978)).
In the instant matter, Oliver does not allege that Sheriff Prator was personally involved in the traffic stop of her son. Accordingly, in order to hold Sheriff Prator liable for her claims, she must show an official policy or custom caused the deprivation of a constitutional right. Oliver is required to show that Sheriff Prator "implement[ed] a policy so deficient that the policy itself is a repudiation of constitutional rights and is the moving force of the constitutional violation." Cooper v. Thomas, *679 101 Fed.Appx. 983, 984 (5th Cir.2004)(quoting Thompkins v. Belt, 828 F.2d 298, 304 (5th Cir.1987)).
Oliver has failed to allege that any official policy or custom of the Sheriff caused the alleged deprivation of her son's rights. To the contrary she contends that the deputies were working "in the course and scope of their employment" and that Sheriff Prator is therefore liable under the theory of "respondent and superior (sic)." [Doc. No. 13.2 at p. 3]. However, the Sheriff cannot be held liable pursuant to Section 1983 on a respondeat superior theory. Monell v. New York City Dept. of Social Services, 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611, 638 (1978). Accordingly, summary judgment is appropriate as a matter of fact and law, dismissing Plaintiff's claims pursuant to Section 1983 with prejudice.
III. Plaintiff's Section 1985 Claim.
Section 1985(3) prohibits a conspiracy "for the purpose of depriving either directly or indirectly, any person or class of persons of the equal protection of the laws or of equal privileges and immunities under the laws." 42 U.S.C. § 1985. To prevail on a § 1985(3) claim, one must prove "`(1) a conspiracy; (2) for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges or immunities of the laws; (3) an act in furtherance of the conspiracy; (4) whereby a person is either injured in his person or property or deprived of any right or privilege of a citizen of the United States.'" Vakilian v. Shaw, 335 F.3d 509, 518 (6th Cir.2003) (quoting United Bhd. of Carpenters & Joiners v. Scott, 463 U.S. 825, 828-29, 103 S.Ct. 3352, 77 L.Ed.2d 1049 (1983)). Moreover, the Supreme Court has stated that "[t]he language requiring intent to deprive of equal protection, or equal privileges and immunities, means there must be some racial or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators' actions." Griffin v. Breckenridge, 403 U.S. 88, 102, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971). Since Oliver has failed to allege or submit any evidence of a conspiracy based on discriminatory animus, the Court finds that summary judgment is appropriate as a matter of fact and law dismissing her Section 1985 claims with prejudice.
IV. Pendent State Law Claims.
A district court may, and the general rule is that it should, decline to exercise supplemental jurisdiction over pendent state law claims if it has dismissed all claims over which it has original jurisdiction. See 28 U.S.C. § 1367(c)(3); Engstrom v. First Nat'l Bank of Eagle Lake, 47 F.3d 1459, 1465 (5th Cir.), cert. denied, 516 U.S. 818, 116 S.Ct. 75, 133 L.Ed.2d 35 (1995)(district court did not abuse discretion by remanding remaining state claims). The Court finds that the appropriate disposition of any remaining state law claims is, therefore, to dismiss them without prejudice. Accordingly, the motion for summary judgment as to those claims is denied.
V. Conclusion.
Plaintiff has failed to allege (much less submit competent summary judgment evidence to show) that an official policy or custom caused the alleged deprivation of her son's constitutional rights. Further, Plaintiff has failed to allege (much less submit competent summary judgment evidence to show) a conspiracy based on discriminatory animus. There are no genuine issues of fact, and summary judgment is appropriate dismissing Plaintiff's Section 1983 and 1985 claims.
Therefore:
*680 IT IS ORDERED that the motion for summary judgment [Doc. No. 11] filed by the Defendant, Caddo Parish Sheriff Steve Prator, is hereby GRANTED to the extent that it seeks a dismissal of the claims brought by Plaintiff Rowena Harris Oliver, individually and on behalf of the unopened succession of her son, Le'Tim D. Harris, under 42 U.S.C. Sections 1983 and 1985. Accordingly, those claims are DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that the Sheriff's motion for summary judgment is hereby DENIED to the extent that it seeks dismissal of Oliver's state law claims. As this Court declines to exercise, supplemental jurisdiction over the remaining state law claims, those claims are DISMISSED WITHOUT PREJUDICE.
IT IS FURTHER ORDERED that the Clerk of Court close the case.
THUS DONE AND SIGNED this 17th day of July, 2006.
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925 N.E.2d 4 (2010)
WALKER
v.
STATE.
No. 02A03-0909-CR-439.
Court of Appeals of Indiana.
April 13, 2010.
ROBB, J.
Disposition of Case by Unpublished Memorandum Decision Affirmed, Reversed and Remanded.
FRIEDLANDER, J., concurs.
KIRSCH, J., concurs.
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207 A.2d 286 (1965)
99 R.I. 289
INDUSTRIAL NATIONAL BANK OF RHODE ISLAND et al., Ex'rs.
v.
RHODE ISLAND HOSPITAL et al.
Eq. No. 3178.
Supreme Court of Rhode Island.
February 19, 1965.
Hinckley, Allen, Salisbury & Parsons, Matthew W. Goring, Ronald C. Green, Jr., Peter C. Alegi, Providence, for complainants.
Edwards & Angell, Charles G. Edwards, Providence, for respondent Rhode Island Hospital.
*287 Tillinghast, Collins & Tanner, William M. Sloan, Providence, for respondent The Providence Lying-In Hospital.
Paul B. McMahon, Pawtucket, for respondent St. Joseph's Hospital.
Harold S. Moskol, Sp. Asst. to Atty. Gen., for J. Joseph Nugent, as Atty. Gen.
JOSLIN, Justice.
This is a bill in equity for the construction of and instructions in relation to the will and an inter vivos trust of Herbert G. Townsend, late of the city of Warwick, hereinafter referred to as the decedent. The complainants are Industrial National Bank of Rhode Island as it is a coexecutor and cotrustee under that will and the sole trustee under that trust, and Marie Ann Townsend, the decedent's widow, both as a coexecutor and cotrustee under that will and individually, having joined in the suit in the last-named capacity after arguments in and pursuant to permission granted by this court. The coexecutors and cotrustees under the will and the sole trustee under the inter vivos trust are hereinafter collectively referred to as the fiduciary complainants.
The respondents are Rhode Island Hospital. The Providence Lying-In Hospital, and St. Joseph's Hospital, all located in the city of Providence and all corporations organized and operated exclusively for charitable or scientific purposes. They are hereinafter collectively referred to as the respondent hospitals. The attorney general is also a party respondent. Each of the respondents answered the bill and concurred in the requests for construction and instructions. After the cause was heard in the superior court and was ready for hearing on the final decree that court, pursuant to G.L. 1956, § 9-24-28, certified the cause to this court for our determination.
On January 2, 1929 decedent created an inter vivos trust of which complainant Industrial National Bank is now acting as trustee. That trust was several times amended. Other than for a reservation of income to the decedent during his lifetime, the material dispositive provisions of that instrument and of the residuary estate under the will, which was left in trust, are substantially the same. The net earned income is directed to be paid to or applied for the benefit of decedent's wife, if she survives him, and upon her death or upon his death if she predeceases him, it is provided that 5 per cent of that income shall each year be added to the principal which is to be maintained perpetually in trust and that the balance shall be paid annually in equal shares to the respondent hospitals and their respective successors. if any for the support of their charitable work. Under each instrument, the fund to be held in perpetual trust is designated as the Townsend Fund and hereinafter reference to those funds collectively shall be by that designation.
Death came to the decedent on July 25, 1960 and his wife survived him. In due course, after the will was probated, the executors filed a United States tax return for the estate and paid an estate tax of about $106,000. In that return almost $1,000,000 was deducted from the gross estate on the ground that the remainder interests of the respondent hospitals were charitable and not subject to diversion for noncharitable purposes. That deduction was, for reasons to which we will hereinafter refer, disallowed and after payment of an assessed deficiency of approximately $350,000 including interest, the executors' claim for a refund was denied.
Whether the executors are entitled to a refund of the deficiency is determinable only in a suit by them against the United States of America in the federal courts and their right to recover will, at least in part, depend upon the construction given to clauses eighth, ninth and tenth of the will and paragraphs 4, 9(b) and 10 of the inter vivos trust. The reason that the fiduciary complainants bring this bill is to determine whether they are justified in bringing such a suit.
*288 The threshold question is whether the cause is properly before us. It arises because all the beneficiaries under the will the respondent hospitals and the complainant wife in her individual capacity as well as the fiduciary complainants suggest substantially the same construction and instructions. Notwithstanding that posture, all the parties before us, respondents and complainants alike, contend either that this is in the nature of an adversary proceeding, the adversary being the commissioner of internal revenue or, in the alternative, that our jurisdiction should be exercised because the issues are of sufficient importance to the administration of the estate and trust as to justify our consideration.
Consistent with their position that the commissioner was their adversary, but recognizing that he was not amenable to process in this cause, the complainant executors, patterning their procedure upon that which the parties advise us was followed in Channing v. Hassett, 200 F.2d 514, notified the acting chief counsel of the internal revenue service of the commencement of this proceeding, sent him a copy of the bill of complaint and invited him to seek participation as amicus curiae in the proceedings both before this court and the superior court. Their invitation was declined on the ground that the suit was not "by or against the United States or against the Commissioner of Internal Revenue * * *." That the interests of the commissioner are antithetical to those of the parties before us is clear for if the construction of the instruments urged at length both in briefs and in oral arguments is correct, it may well lend force to the contentions the executors will make before a federal court in a suit for a refund.
Whatever may be the merits of these and other arguments advanced to sustain the contention that this is in effect an adversary proceeding need not, however, be determined because in our opinion the issues warrant consideration even if the proceeding is nonadversary. There is precedent for our action. Industrial Trust Co. v. President and Fellows of Harvard College, 69 R.I. 317; Duke v. Allen, 48 R.I. 127; Petition of Bailey, 13 R.I. 543. In those cases, which were in postures similar to that of the instant cause, either construction or instructions or both were sought. While jurisdiction was exercised no criteria were suggested as to when propriety permits action notwithstanding that both the complainants and the respondents contended for identical construction. We similarly refrain. We decide only that in the circumstances of this proceeding it is appropriate that we act.
Among the circumstances which influence us are the following. In any suit in the federal court for a refund the ultimate decision may hinge on whether the sums set aside in the Townsend Fund are ascertainable. That issue is not one of federal tax law, but of how the instruments are construed, and if now resolved by us may be given binding force by the federal courts. Blair v. Commissioner of Internal Revenue, 300 U.S. 5; Freuler v. Helvering, 291 U.S. 35; Plunkett v. Commissioner of Internal Revenue, 118 F.2d 644. See also Cahn. Local Law in Federal Taxation, 52 Yale L.J. 799. 819. Not to construe the instruments in those circumstances and when the parties have not resorted to the formalistic approach of creating a cause where there are adversary parties in the customary sense, as well they could have seems inappropriate.
We are not deterred by the possibility that the federal court may find this suit collusive "in the sense that all the parties joined in a submission of the issues and sought a decision which would adversely affect the Government's right" to an increased estate tax. Freuler v. Helvering, supra, at page 45. We feel, rather, that the federal court may find that "A decision on pertinent state law is to be welcomed at any time." Commerce *289 Oil Refining Corp. v. Miner, 303 F.2d 125. 128.
We turn now to paragraph 4 of the inter vivos trust and clause eighth of the will.
Paragraph 4 of the inter vivos trust provides:
"Said trustee shall also have power and authority, according to its judgment of what is right and proper under the circumstances, (without being bound by any court decision as to any other trust instrument), to treat any or all dividends, whether in cash or in stock and whether ordinary or extraordinary, and any or all rights to subscribe for new stock, and any or all money or other things of value received by said trustee by virtue of its legal ownership of said trust fund, as income or principal, and to charge and apportion expenses and also losses, if any, to income or principal and to bind all beneficiaries hereunder in so doing." (italics ours)
Clause eighth of the decedent's will is substantially the same and reads as follows:
"Said trustees shall also have power and authority, according to their judgment of what is right and proper under the circumstances, (without being bound by any court decision as to any other trust instrument), to charge any or all premiums on investments against principal or income and to credit any or all discounts on investments to principal or income and to treat any or all dividends, whether in cash or in stock and whether ordinary or extraordinary, and any or all rights to subscribe for new stock, and any or all money or other things of value received by said trustees by virtue of their legal ownership of said trust fund, as income or principal and to charge and apportion expenses and also losses, if any, to income or principal, and to bind all beneficiaries hereunder in so doing." (italics ours.)
While complainants in their bill present no precise question of the extent of their power to allocate a particular receipt or apportion a specific expense or loss, they ask us to determine whether the discretionary power to do so permits an exercise thereof unfettered by any standards or the possibility of judicial review. Their questions are put generally because the district director of internal revenue premised his denial of the executors' claim for a refund on the ground that the value of the charitable remainders "is not presently ascertainable" and among the reasons for that conclusion advanced the following:
"* * * the trustees are empowered to treat any and all dividends, whether in cash or stock, whether ordinary or extra-ordinary, and any or all money or things of value received by said trustees by virtue of legal ownership of the trust fund as income or principal, and to charge and apportion expenses and losses, if any, to income or principal, wherefor the value of the benefits to be received by charity cannot be mathematically computed or ascertained."
The first question then is the extent of the fiduciary complainants' power to allocate income and apportion expenses and losses. Discretionary clauses such as those in issue are of comparatively recent origin. They are designed to give flexibility to the administration of trusts, to eliminate litigation where the law is unsettled, and to authorize the designated trustee to favor within the limitations of the instrument either the life tenant or the remainderman. Note, 50 Yale L.J. 1467.
Frequently the scope of a discretionary power is extended by the use of such adjectives as "absolute," "unconditional," "complete," or "full," or by a clause which confers upon the trustee power "to determine whether money or propurty received by him is principal or income, without being answerable to any person for the manner in which he shall exercise that discretion" *290 or "to decide finally any question that may arise as to what constitutes income and what principal."
Even though if literally interpreted powers couched in such broad and absolute terms may appear to impose no limitation upon the action of a fiduciary and to leave a court powerless to intervene or to substitute its judgment for that of the fiduciary, they have not generally been so construed. Bogert, Trusts & Trustees (2d ed.) § 560. p. 118 et seq., § 816. p. 292 et seq.; 2 Scott, Trusts (2d ed.) § 187, p. 1374; Loring, A Trustee's Handbook (5th ed.) § 34, p. 106. Instead, unless the authority granted is so broad as to be void because repugnant to the benefits conferred on the beneficiaries and contrary to public policy. In re Wynn, 1 Ch. (1952) 271. 1 Restatement of Trusts 2d, § 187, subsec. 14k, p. 409, the courts looking at the terms of trust as a whole and, where required, at the circumstances surrounding its execution, have generally found that the power if limitless would destroy the purpose of the trust and frustrate the settlor's plan of disposition. They have in such circumstances confined its exercise by fixed standards.
In some instances this has been achieved by restricting the exercise of the authority to allocate income or charge expenses and losses to situations where there is an honest doubt as to what is proper, or where the law is unsettled, or when a reasonable doubt exists as to what action may be taken; in others by interfering with the employment of the power when it has been used arbitrarily, or dishonestly, or fraudulently, or in bad faith. The authorities are not always clear as to which rule is being followed. Often reference is made to both. Commissioner of Internal Revenue v. O'Keeffe, 118 F.2d 639; American Security & Trust Co. v. Frost, 117 F.2d 283; Dumaine v. Dumaine, 301 Mass. 214; Wallace v. Julier, 147 Fla. 420.
1 Restatement of Trusts 2d, § 187, subsec. 13j, p. 408, states:
"The extent of the discretion conferred upon the trustee depends primarily upon the manifestation of intention of the settlor. The language of the settlor is construed so as to effectuate the purposes of the trust. The mere fact that the trustee is given discretion does not authorize him to act beyond the bounds of a reasonable judgment. The settlor may, however, manifest an intention that the trustee's judgment need not be exercised reasonably, even where there is a standard by which the reasonableness of the trustee's conduct can be judged. This may be indicated by a provision in the trust instrument that the trustee shall have `absolute' or `unlimited' or `uncontrolled' discretion. These words are not interpreted literally but are ordinarily construed as merely dispensing with the standard of reasonableness. In such a case the mere fact that the trustee has acted beyond the bounds of a reasonable judgment is not a sufficient ground for interposition by the court, so long as the trustee acts in a state of mind in which it was contemplated by the settlor that he would act. But the court will interfere if the trustee acts in a state of mind not contemplated by the settlor. Thus, the trustee will not be permitted to act dishonestly, or from some motive other than the accomplishment of the purposes of the trust, or ordinarily to act arbitrarily without an exercise of his judgment."
While this court has not passed on the extent of a discretionary power to allocate or apportion, we have had before us questions concerning what limitations if any, should be imposed on fiduciaries in their exercise of broad grants of authority to act in other respects. Our decisions in those cases are consistent with the prevailing views. Thus, we held in Angell v. Angell, *291 28 R.I. 592, that a trustee's absolute discretion to distribute principal must be "reasonably exercised" and is subject "to the control of the proper court"; in Viall v. Rhode Island Hospital Trust Co., 45 R.I. 432, that a power to apply principal as the trustee shall deem necessary is reviewable to determine whether the exercise of the discretion is "reasonable or unreasonable, as it does in the case of the exercise of discretion by an inferior tribunal"; and in Lees v. Howarth, 85 R.I. 321, that an authority to advance funds to the life tenant from principal in the "sole and uncontrolled judgment" of the trustee and when exercised by him "absolute, conclusive and binding on all parties concerned" is subject to the "good faith" test.
In those cases, in order to determine the extent of the power, we followed our settled rule and attempted to ascertain the intention of the testator or settlor where possible from the language of the instrument as a whole, and in discovering that intent we gave the words their primary, ordinary and common meaning, unless it plainly appeared they were used in another sense. This is what we are required to do with the instruments now before us.
If in following that procedure we determine that the power given to the fiduciary complainants if literally interpreted is in conflict with the decedent's dispositive intention and is destructive of the purposes for which he created the Townsend Fund, then under the authorities we must conclude that in the exercise of that power the fiduciary complainants are subject to the limiting standards to which we have already alluded.
An examination of the dispositive provisions of the will and the inter vivos trust clearly evidences decedent's estate plan. His primary concern was for the welfare of his surviving widow and he provided that during her lifetime the entire net income from the Townsend Fund should be paid to her or applied for her benefit. Only upon her death did he provide for distribution to the respondent hospitals and as to them his intention was that they should receive some but not all of the income. In that manner he attempted to insure that the Townsend Fund would grow. This purpose he achieved not by vesting the trustees with a discretion as to what proportion of income should be distributed and what accumulated, but by fixing that ratio with certainty at 95 per cent for distribution and 5 per cent for accumulation. His dispositive plan, as we have outlined it is dominant and the extent of the discretion vested in the trustees to allocate receipts and charge expenses and losses when construed in its light cannot be allowed to thwart it.
The phraseology used by the decedent in creating the powers compels a similar conclusion. While the discretionary power is broad, it is measurable in his words by what "according to their [trustees] judgment * * * is right and proper * * *." A common synonym for the word "proper" is "correct." Cook v. Dunbar, 66 R.I. 266, 277. The word "right" has a similar meaning. It is defined in Black. Law Dictionary (4th ed. 1951), p. 1486, as "* * * consonance with the rules of law or the principles of morals." In providing that the exercise of the judgment of his trustees should be limited by what was "right and proper" it seems clear that the decedent did not intend that in all events their discretion should be unlimited.
The further provision that in arriving at their judgment the trustees should not be "bound by any court decision as to any other trust instrument" must be considered in the light of the decedent's dispositive intention which we have found to be dominant and the meaning we have given to the words "right" and "proper." So construed, that provision does not yield to the assumption of an intention that the trustees in the exercise of their judgment should be free to act in total disregard of recognized standards.
*292 In our opinion the instruments do not evidence an intention that the power to allocate and apportion is absolute and uncontrolled, but instead when considered in the light of decedent's paramount purpose as disclosed in the instruments, evinces a purpose that it be exercised in accordance with recognized standards.
In so construing the power to allocate and apportion we are not unmindful that the decedent in amending his inter vivos trust rescinded a power of principal invasion for the benefit of his wife and relinquished a power of revocation intending at least in part thereby, and in his language, to harden the remainder interests of the respondent hospitals.
No extended discussion is required of the provisions of paragraph 10 of the inter vivos trust or clause tenth of his will. The former provides that:
"All the foregoing powers and all discretions conferred upon said trustee may be exercised from time to time in the uncontrolled discretion of its committee or any of its officers having the general oversight of trust properties." (italics ours)
Clause tenth of the will is identical excepting only that between the italicized words "said" and "trustee" appear the words "Industrial National Bank of Providence as."
What we have already said as to limitations on the exercise of broad powers applies equally to these grants of an "uncontrolled discretion." Moreover, it is abundantly clear that the decedent's intention here was limited to cloaking the "committee" or "officers" of the corporate trustee having "the general oversight of trust properties" with a discretion uncontrolled by any other body or group in the administrative organization of the corporate fiduciary. If this were not so, we would be unable to find any reasonable explanation for the decedent's use of the language "Industrial National Bank of Providence as" in his will and not in his inter vivos trust.
A further ground upon which the district director denied the executors' claim for a refund was that:
"By virtue of the Ninth clause of testator's will and paragraph 9(b) of the trust instrument, the trustee is empowered to merge with any other trust of the same name and identical charitable purposes to be created under the will of testator's surviving wife and to exercise all the powers vested in such trustee by such will of the surviving wife; it is impossible to ascertain the scope and extent of powers to be set forth in the future by such will, being ambulatory; it is considered possible that such will may provide for a larger or smaller accumulation portion than the five per cent portion provided by decedent, or that such will may permit transactions prohibited by Code Section 681 (b) (2) and Code Section 2055 (e)." (italics ours)
The power to merge is contained both in paragraph 9 (b) of the decedent's inter vivos trust and in clause ninth of his will.
In paragraph 9 (b) the trustee is empowered:
"from and after the death of the survivor of my wife and me, to merge said trust fund with any other trust fund of the same name and with the same charitable purposes, which has been created by my will or by my wife's will or by her irrevocable inter vivos trust, and to deal with the funds thus merged as one combined trust fund, and to hold any securities or other property belonging to said combined trust fund, either in its name as trustee hereunder, or in its name as trustee under any of said other trust instruments, and to exercise with regard to said securities or other property all the powers vested in it under any of said instruments." (italics ours)
In clause ninth of his will the decedent conferred an identical authority to merge *293 with any trust fund "which has been created by my irrevocable inter vivos trust or by my wife's will or by her irrevocable inter vivos trust * * *." (italics ours)
The parties argue that these provisions are administrative in nature and do not authorize the fiduciary complainants to alter the purposes for which the Townsend Fund was created or to defeat the decedent's paramount intention. We agree with their contentions.
Our consideration is confined to the provisions authorizing a merger with any other trust fund which has been created either under the will of decedent's wife or by her irrevocable inter vivos trust. The words "has been created" are not without significance. They refer to funds under extrinsic documents in existence at the time the decedent executed his will and inter vivos trust. Although the wife's will was ambulatory, the instruments do not permit merger with a fund under a subsequent will or under her will as it might be amended by a subsequent codicil, but only with any fund which might arise under her will in the form in which it was at the time the decedent executed the instruments we construe.
Our decision in Nightingale v. Phillips, 29 R.I. 175 is of assistance. There Susan E. Nightingale executed a document with the same formalities as required for a will. In pertinent portions its terms were: "I now wish my property to go in the same way as Harriet has now arranged for hers to go. I give to her, should she survive me, in the same way as she gives to me in her last will." Susan predeceased Harriet, who was her sister, and upon her death that document together with the instrument annexed which was identified as a counterpart of the preexisting will of Harriet was admitted to probate as her will. In passing on the question of whether there was jurisdiction to admit those papers as Susan's will the court relying on the doctrine of incorporation by reference stated at page 190, 72 A. at page 226, "No doubt exists in our minds as to the existence and identity of the instruments so incorporated by apt words of reference in the paper executed by Susan E. Nightingale as her will." Likewise, in the instant case there is none in our minds that the power to merge was intended to be confined to any fund created under an irrevocable inter vivos trust or will of his wife in existence at the time of the execution of the decedent's will and inter vivos trust. The words "has been created" do not permit a contrary construction.
Force is lent to this conclusion when we examine the merger provision of the decedent's inter vivos trust as it stood prior to the final amendment of October 6, 1955. It then empowered the trustee to merge the trust estate "with the trust fund of the same name under the deed of trust made by my said wife * * * dated June 29, 1936, as modified by any later instrument or instruments of modification made by her * * or with any similar trust fund that may be provided for * * * by the last will and testament of my said wife * * *." There the authority was to merge with the fund under his wife's trust or will without reference to when executed or as they might in the future be modified; here the decedent's language "has been created" clearly evidences an intention that the fund with which merger is authorized must owe its origin to a trust or will of his wife's in existence at the time he spoke.
In short, the crucial time for purposes of these provisions was when the decedent executed his will and the final amendment to his inter vivos trust. Subject to the conditions precedent of identity as to name and charitable purposes and insofar as here material, the fiduciary complainants are authorized for adminsitrative purposes to merge the Townsend Fund with any other trust fund in existence at that time under his wife's irrevocable inter vivos trust or which might at any time thereafter come into being by reason of a will which she had executed prior thereto. It would serve no useful purpose to hypothesize possible dispositions under any such instruments. If *294 the funds were or may be created by virtue of instruments in existence at the crucial time and complainants in their bill allege not only that they were, but also that they provided for like trusts, beneficiaries and dispositions as under the Townsend Fund their content is ascertainable; as to funds created by instruments not in existence at the crucial time, there is no power of merger.
Finally we consider the complainants' request that they be instructed as to whether they should institute suit against the United States of America for a refund. This is a request which they should address to counsel who will perhaps now as a result of this decision be in a better position than heretofore as to the advice to be given.
On March 3, 1965, the parties may present to this court for approval a form of decree in accordance with this opinion to be entered in the superior court.
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941 F.Supp. 479 (1996)
Ross S. KRAEMER, Plaintiff,
v.
FRANKLIN AND MARSHALL COLLEGE, Defendant.
Civil Action No. 95-0020.
United States District Court, E.D. Pennsylvania.
July 9, 1996.
*480 Carol A. Mager and Joel C. Schochet, Mager, Liebengerg & White, Philadelphia, PA, for Plaintiff.
Christopher W. Mattson and Jennifer Craighead, Barley, Snyder, Senft & Cohen, Lancaster, PA, for Defendant.
MEMORANDUM AND ORDER
HUYETT, District Judge.
On November 21, 1995, a jury found defendant Franklin & Marshall College ("F & M") liable for age discrimination in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621-634 (1996) ("ADEA") after a six day trial and nine hours of deliberation. In answering the Jury Interrogatories submitted to them by the court, the jury calculated an award of $73,456.00 for back pay and $60,000.00 for front pay in the event that the court found instatement not feasible. The court must now determine whether to award plaintiff Ross S. Kraemer "(Kraemer") instatement or front pay as compensation for future damages.
For the reasons stated in the accompanying Memorandum, the court finds that instatement of Kraemer to the tenure track position in the Department of Religious Studies at F & M is not feasible. Therefore, the civil judgment order entered in this action on November 28, 1995 will be amended to include an award of $60,000.00 for future damages.
In addition, Kraemer has moved to amend the judgment to include liquidated damages *481 and for prejudgment interest on the award of back pay. For the reasons stated in the accompanying Memorandum, Kraemer's motion to amend the judgment to include liquidated damages is denied and Kraemer's motion for prejudgment interest on the award of back pay is granted.
I. BACKGROUND
In September 1993, F & M advertised for a tenure track position in Biblical Studies in the Department of Religious Studies beginning in the Fall 1994. At the time of the search, the Department of Religious Studies was comprised of three tenured or tenure track faculty members, Joel Martin, Annette Aronowicz and Thomas Hopkins, who was chairman of the department. F & M received approximately 200 applications for the tenure track position in Biblical Studies, including the applications of Stephen Cooper (age 37) and Kraemer (age 47).
Professors Martin, Aronowicz, and Hopkins each reviewed the applications and eventually selected his or her top four candidates to be interviewed on campus. The three professors discussed their choices and unanimously agreed on a list of four candidates: Stephen Cooper, Ted Pulcini, Amy Wordelman and Ross Kraemer. After further interviews, Cooper and Kraemer were the two semi-finalists. It was undisputed that both Cooper and Kraemer were qualified for the position. The members of the Department voted two to one to select Stephen Cooper for the position, rather than Kraemer, with Professors Martin and Aronowicz voting for Cooper and Professor Hopkins voting for Kraemer. In accordance with the F & M's requirements, Professor Hopkins informed Dean Susanne Woods of the vote. Dean Woods ordered an affirmative action review because a younger, less experienced man had been chosen over an older, more experienced woman. Dean Woods also conducted an investigation of her own by speaking with all three faculty members of the Department of Religious Studies. Ultimately, Dean Woods concluded that the department had legitimate, nondiscriminatory reasons for selecting Cooper rather than Kraemer and she offered the tenure track position in Biblical Studies to Cooper.
Upon learning that the tenure track position was offered to Cooper, Professor Hopkins sent a letter of resignation as chairman of the Department of Religious Studies citing objections to the process by which Cooper was selected and inappropriate considerations of age and sex by Professors Martin and Aronowicz. Professor Hopkins stated that Professor Martin selected Cooper because he did not "want to be the youngest person in the department" and Professor Aronowicz selected Cooper because she disagreed with Kraemer's feminist-based methodology of religious history.
Kraemer filed this action against F & M alleging age discrimination in violation of the ADEA, sex discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e), as amended, and age and sex discrimination in violation of the Pennsylvania Human Relations Act, 43 Pa.C.S.A. § 951-963 (1996).
II. DISCUSSION
A. INSTATEMENT OR FRONT PAY
Although reinstatement/instatement ("instatement") is the preferred remedy to avoid future lost earnings, the United States Court of Appeals for the Third Circuit has recognized that instatement may not be feasible in all cases. See Squires v. Bonser, 54 F.3d 168, 173 & n. 8 (3d Cir.1995); Maxfield v. Sinclair Int'l, 766 F.2d 788, 796 (3d Cir.1985), cert. denied, 474 U.S. 1057, 106 S.Ct. 796, 88 L.Ed.2d 773 (1986); Ellis v. Ringgold Sch. Dist., 832 F.2d 27, 30 (3d Cir.1987), appeal after remand, 877 F.2d 54 (3d Cir.1989), cert. denied, 494 U.S. 1005, 110 S.Ct. 1298, 108 L.Ed.2d 475 (1990). Instatement is not feasible if the relationship between the parties has been so damaged by animosity as to make instatement impractical or if there is no position available in which to instate the plaintiff at the time of the judgment. See Starceski v. Westinghouse Elec. Corp., 54 F.3d 1089, 1103 (3d Cir.1995); Maxfield, 766 F.2d at 796.[1] The exact position which the successful plaintiff was unlawfully denied or removed from need not be *482 available for instatement to be feasible, but a substantially comparable position must be available for the court to order instatement. See Sinclair v. Insurance Co. of North America, 609 F.Supp. 397, 400 (E.D.Pa.1984) (court awarded reinstatement to successful ADEA plaintiff where defendant agreed to reinstate plaintiff in the event of an adverse verdict to a comparable position for which plaintiff is qualified and plaintiff stated he would accept reinstatement to comparable position), aff'd, 782 F.2d 1029 (3d Cir.1986). If instatement is not feasible, the court should award the alternative remedy of front pay. Berndt v. Kaiser Aluminum & Chem. Sales, Inc., 604 F.Supp. 962, 966 (E.D.Pa. 1985). In determining whether to grant instatement, the court should take into consideration the ADEA's purpose to make victims of discrimination whole by restoring them to the economic position they would have occupied but for the unlawful conduct of their employer. See Starceski, 54 F.3d at 1103; Maxfield, 766 F.2d at 796. The decision to grant reinstatement or its alternative, front pay, is within the discretion of the district court. See Maxfield, 766 F.2d at 796 ("Since reinstatement is an equitable remedy it is the district court that should decide whether reinstatement is feasible.").
Kraemer argues that instatement is the proper remedy in this case and that there are several ways F & M can instate her. First, Kraemer argues that she can fill the tenure-track position vacated by Professor Hopkins when he retires at the end of the 1995-1996 academic year and F & M can either use visiting professors or add an additional tenure-track position in the Department of Religious Studies if it desires to continue to offer courses in Asian Studies and Asian religions, which she is admittedly not qualified to teach. Second, Kraemer argues that F & M can choose not to renew Cooper's one year contract which expires on June 30, 1996 and replace him by instating her. Kraemer states that even if replacing Cooper with herself were characterized as "bumping" an incumbent to instate the victim of discrimination, such action has been held to be an appropriate remedy. According to Kraemer, the court need only order that she be instated to a tenure-track position in the Department of Religious Studies and allow F & M to determine which option it will utilize.
F & M contends that instatement is not appropriate because there is no position available in which to instate Kraemer at F & M. In support of this contention, F & M argues, first, that it should not be required to "bump" or fire Cooper, an innocent third party, to instate Kraemer. Second, F & M argues that it should not be required to create a fifth tenure track position in the Department of Religious Studies which it would be required to do by instating Kraemer and continuing to offer courses on Asian Studies and Asian religions. Lastly, F & M acknowledges that Professor Hopkins is retiring at the end of the 1995-1996 academic year thereby making a tenure track position available in the Department of Religious Studies. However, F & M argues that since Professor Hopkins taught courses on Asian Studies and Asian religions, his position is not comparable to the Biblical Studies position sought by Kraemer. Thus, F & M argues that instatement is not feasible and that the alternative remedy of front pay is appropriate.
1. Bumping Cooper To Instate Kraemer Is Not Appropriate
F & M should not be required to bump Cooper, an innocent third party, to instate Kraemer. Although the Third Circuit has not specifically addressed the issue of "bumping" innocent employees to reinstate or instate the successful plaintiff in discrimination cases, the courts in this circuit have followed the principle that reinstatement is not feasible if the exact position or no comparable position is available. See Starceski, 54 F.3d at 1103 (affirming district court's denial of plaintiff's motion for reinstatement reasoning that reinstatement was not feasible due to the lack of available positions and given the animosity between the parties); Zampino v. Supermarkets Gen. Corp., 821 F.Supp. 1067 (E.D.Pa.1993) (recognizing that although reinstatement was the preferred remedy in discrimination cases, reinstatement is not feasible where there are no comparable positions available). Neither the Starceski court nor the Zampino court required the *483 defendant to bump an innocent employee to reinstate the plaintiff.
Other circuit courts agree that instatement is not an appropriate remedy if it requires bumping or displacing an innocent employee in favor of the plaintiff who would have held the job but for illegal discrimination. See Spagnuolo v. Whirlpool Corp., 717 F.2d 114, 119-122 (4th Cir.1983) (although district court initially entered a judgment in accordance with the "rightful place" theory whereby the employee who suffered past discrimination will be given full seniority rights and permitted to obtain the next available vacancy by means of that seniority, district court erred in amending that judgment to require the defendant corporation to bump the innocent incumbent who held the position originally in dispute so that plaintiff could be reinstated);[2]Ray v. Iuka Special Mun. Separate Sch. Dist., 51 F.3d 1246, 1254 (5th Cir.1995) (district court did not abuse its discretion in denying reinstatement where there were no existing vacancies in school district and where reinstating plaintiff would require displacement of an existing employee); Deloach v. Delchamps, Inc., 897 F.2d 815, 822-23 (5th Cir.1990) (applying ADEA precedent to interpret the Louisiana Age Discrimination in Employment Act, court upheld district court's order that reinstatement was not feasible because plaintiff had been replaced and reinstatement would disrupt the employment of others); Shore v. Federal Express Corp., 777 F.2d 1155, 1157-59 (6th Cir. 1985) (affirming district court's order that reinstatement of successful Title VII plaintiff was not feasible because reinstatement of plaintiff would displace the person who had held the position since plaintiff's termination and there were no comparable positions available); EEOC v. Century Broadcasting Corp., 957 F.2d 1446, 1463 (7th Cir.1992) (denial of reinstatement of radio announcers terminated in violation of ADEA was properly based upon one strong and solid reason; there were a limited number of announcing positions at the radio station and each position was filled at the time and granting reinstatement to even one announcer would have required defendant to displace a currently employed announcer); Graefenhain v. Pabst Brewing Co., 870 F.2d 1198, 1208-09 (7th Cir.1989) (in ADEA case, reinstatement is properly denied and front pay awarded where the employee's position exists but is not available because someone else currently occupies the employee's former position).
Generally, the courts which ordered or upheld reinstatement despite the fact that reinstatement would result in bumping an innocent employee determined that a balance of the equities warranted such action. See Walters v. City of Atlanta, 803 F.2d 1135, 1149 (11th Cir.1986) ("`Bumping' is an extraordinary remedy to be used sparingly and only when a careful balancing of the equities indicates that absent `bumping,' plaintiff's relief will be unjustly inadequate."); Lander v. Lujan, 888 F.2d 153, 155 (D.C.Cir.1989) (only after carefully balancing the equities did the district court determine that absent bumping the plaintiff's relief would be unjustly inadequate).
In balancing the equities, one often cited justification for ordering or upholding bumping an innocent employee is that the employer was on notice of past discrimination against a plaintiff or that a plaintiff had a substantial claim to a vacant position, but nevertheless filled the position, or that the employer exhibited other bad faith behavior. See Brewer v. Muscle Shoals Bd. of Educ., 790 F.2d 1515, 1522-23 (11th Cir.1986) (approving bumping remedy after school board breached predetermination settlement agreement requiring it to appoint black applicant to the next available administrative position for which he was qualified by transferring other administrative personnel to the next available positions in lieu of appointing the applicant); Reeves v. Claiborne County Bd. of Educ., 828 F.2d 1096, 1101-02 (5th Cir. 1987) (where district court denied reinstatement because defendant had hired a successor to plaintiff's position who would be bumped, appellate court reversed noting that *484 successor to plaintiff's position was hired just two months before trial and that "if the existence of a replacement constituted a complete defense against reinstatement, then reinstatement could be effectively blocked in every case merely by hiring an innocent third party after the retaliatory purpose was achieved."). Another factor considered in balancing the equities is an employer's willful, intentional or repeated discrimination. See Lander, 888 F.2d at 155-58 (district court may order bumping of innocent incumbent as a remedy for Title VII violations against plaintiff/federal employee who was demoted from top administrative position in retaliation for circulating memorandum criticizing Department of Interior's affirmative action plan; Department created new top administrative position and subordinate administrative position and hired incumbent to top position and plaintiff to subordinate position for express purpose of ousting plaintiff from top administrative position). Another factor courts weigh in balancing the equities is the ability to minimize the harm to the bumped employee. See Brewer, 790 F.2d at 1523 (bumped employee can be returned to the position held before she was transferred into position in which plaintiff is reinstated); Lander, 888 F.2d at 157 (displaced incumbent presumably can be reassigned within civil service system).
None of the aforementioned common justifications for ordering reinstatement or instatement despite the fact that it results in displacement of an existing employee apply in this case. F & M has neither exhibited bad faith behavior such as defying settlement agreements or prior court orders regarding Kraemer's employment at F & M, nor has F & M been found to have repeatedly, willfully or maliciously discriminated against Kraemer on the basis of age. See Jury Interrogatories, ¶¶ 6, 8 (jury answered "no" to the questions whether F & M's actions in discriminating against Kraemer were done with malice or reckless indifference to her right to be free from intentional discrimination in employment, and whether F & M acted willfully in discriminating against Kraemer on the basis of age). In addition, due to the nature of F & M's organization, the harm to Cooper if he is bumped cannot be minimized. Cooper cannot be moved to another comparable position within F & M because F & M does not need more than one faculty member to teach courses in Biblical Studies. In addition, Cooper is an innocent incumbent as he was awarded the tenure-track position of professor of Biblical Studies sought by Kraemer without any prior knowledge of the discriminatory actions of F & M. Moreover, Cooper accepted the tenure track position with the expectation of successive appointments until his attainment of tenure barring unsatisfactory performance. Like all professors at F & M, Cooper received a one-year contract upon his appointment. In accordance with established F & M policy, Cooper's one-year contract must be renewed annually unless he performs unsatisfactorily. See Trial Testimony of Susanne Woods; Trial Testimony of Richard Kneedler; Testimony of Thomas Hopkins. The continued reappointment of a tenure track professor barring unsatisfactory performance is implicit in the Faculty Handbook, the Professional Standards Committee Handbook, and the Policy Manual and is evidenced by the due process procedures which must be followed if a tenure track professor is denied reappointment. See The Faculty Handbook, Plaintiff Exhibit 10, at pp. 4-7, 53-54; Professional Standards Committee Handbook, Plaintiff's Exhibit 11, at p. 6-9; Policy Manual, Plaintiff Exhibit 12, at p. 6-9. No evidence was introduced to suggest that Cooper is performing unsatisfactorily.
The court recognizes the uniqueness of this employment opportunity to both Cooper and Kraemer. In balancing the equities in this case, however, the court must not forget the effect the court order will have on Cooper, the potentially bumped innocent employee, and that the court order may achieve justice for Kraemer but work a substantial injustice for Cooper. The court concludes, therefore, that a balance of the equities in this case weighs against displacing Cooper, an innocent third party, to instate Kraemer.
2. The Tenure Track Position Vacated By Professor Hopkins Is Not Comparable To The Tenure Track Position Sought By Kraemer
It is not feasible to instate Kraemer to the tenure-track position vacated by Professor *485 Hopkins because that position is not comparable to the Biblical Studies position originally sought by Kraemer. Professor Hopkins, who is retiring at the end of the 1995-1996 academic year, was the principal instructor of the interdisciplinary program of Asian Studies and also taught courses on Asian religions in the Department of Religious Studies. F & M has advertised for someone with expertise in Asian religions to replace Professor Hopkins. As evidenced by Kraemer's curriculum vitae and by Kraemer's own testimony, Kraemer is not qualified to teach courses on Asian religions or Asian Studies. Thus, Kraemer would have to be retrained to teach these courses. Clearly, this is not a realistic option. Moreover, the fact that Kraemer would have to be retrained to fill Professor Hopkins' former position strongly supports the argument that no comparable position is available in which to instate Kraemer. See Zampino, 821 F.Supp. at 1071 (the fact that plaintiff would have to be retrained to gain the expertise necessary to hold the position defendant is offering lends strong support to the argument that the two positions are not "essentially the same" as contended by defendant). It cannot be reasonably argued that the tenure track position in Biblical Studies which was sought by Kraemer and the tenure track position vacated by Professor Hopkins are comparable. Thus, although Professor Hopkins' retirement will create a vacant tenure track position in the Department of Religious Studies, it is not feasible to instate Kraemer to this position.
3. Instating Kraemer Would Improperly Force F & M Either To Create A Fifth Tenure Track Position Or Cease Offering Courses In Asian Studies Or Asian Religions
If Kraemer were instated to the tenure track position vacated by Professor Hopkins, F & M would be forced either to hire a fifth tenure track professor to teach courses on Asian religions and Asian Studies, or stop offering these courses. Forcing F & M to make either choice is unwarranted. The mere fact that F & M would have to create an additional tenure track position in the Department of Religious Studies to teach Asian religions and Asian Studies if it were required to instate Kraemer to Professor Hopkins' former tenure track position is ample evidence that no position is, in fact, available in which to instate Kraemer. Caselaw does not support requiring F & M to create a position to instate Kraemer when the alternative remedy of front pay is available. See Maxfield, 766 F.2d at 796 (instatement is not feasible when there is no position available at the time of the judgment in which to instate the plaintiff); Starceski, 54 F.3d at 1103 (reinstatement is not a viable option due to the lack of available positions).
Moreover, the evidence demonstrates that F & M does not need a fifth tenure track professor in the Department of Religious Studies. Richard Kneedler, the President of F & M, testified that the fiscal and programmatic needs of F & M do not warrant the creation of a fifth tenure track position in the Department of Religious Studies. See Trial Testimony of Richard Kneedler. In fact, Kneedler testified that he was opposed to creating a fourth tenure track position in the Department of Religious Studies because of the low student enrollment in religious studies courses and the need to create tenure track positions in other departments, but Dean Susanne Woods argued that a fourth tenure track position in the Department of Religious Studies was needed so that western Christian traditions and Christian bible courses could be taught. See Trial Testimony of Richard Kneedler; Trial Testimony of Susanne Woods.
Nor does the fact that F & M could decide to cease offering courses in Asian Studies or Asian religions, rather than create a fifth tenure track position, support instatement. Compelling F & M to make this choice would constitute an unwarranted intrusion by the judiciary into F & M's freedom to decide what courses it will offer or what programs deserve staffing. The intrusion would be magnified in this case because, in approving the new Biblical Studies position, which occurred before F & M discriminated against Kraemer, F & M specifically expressed a desire to maintain course offerings in Asian Studies. On March 12, 1993, the Educational Policy Committee ("EPC") of F & M approved *486 the creation of a fourth tenure track position in the Department of Religious Studies. The EPC approval provided "[t]his tenure track position will be in Biblical Studies, at the department's request. The department will contribute at least five courses over two years to American Studies; will affirm its continuing commitment to participate regularly in Asian Studies; and will, it is hoped, participate regularly in Women's Studies." Summary of EPC Recommendations for New Positions, March 12, 1993, Plaintiff's Exhibit 8; Uncontested Fact No. 7. Kraemer argues that visiting professors could be hired to teach courses on Asian Studies or Asian religions. Despite F & M's wrongdoing, and the court's desire and obligation to make Kraemer whole, the court refuses to interfere with F & M's academic policies and decisions regarding which courses are taught and by whom.
Even if F & M were forced to create a fifth tenure track position or hire visiting professors to teach courses in Asian religions and Asian Studies so that Kraemer could be instated without having to bump Cooper, a situation would be created whereby Kraemer and Cooper are qualified to teach the same courses to a limited number of students. It is not practical for F & M to offer additional courses in Biblical Studies given the low enrollment in religion courses. Consequently, neither Kraemer nor Cooper would be able to maintain a regular full-time teaching load each year which is required to attain tenure. See The Faculty Handbook, at p. 6.
In sum, although instatement is the preferred remedy, instatement is not feasible in this case. The alternative remedy of front pay will be awarded. Kraemer has not objected to the jury's calculation of front pay. In fact, Kraemer refuted F & M's contention that she waived her right to instatement because she did not object to the court's front pay instruction to the jury by stating that "it was clearly understood that the jury's front pay determination would be entered only if instatement were not awarded." See Plaintiff's Response to Defendant's Brief in Support of its Findings of Fact and Conclusions of Law, at p. 2. In addition, the jury's verdict regarding front pay should not be disturbed unless the record is critically devoid of the minimal amount of evidence upon which the jury could have reached the verdict. Feldman v. Philadelphia Housing Auth., 43 F.3d 823, 832-33 (3d Cir.1994). In response to F & M's motion in limine to limit front pay damages to a reasonable period of time not to exceed three years, and Kraemer's response, the court ordered that Kraemer may present evidence to show that she is entitled to front pay through her expected date of retirement. Order dated November 8, 1995. Presumably, all of this evidence was presented. The record adequately supports the jury award, and therefore, Kraemer will be awarded $60,000.00 in front pay.
B. AMENDMENT OF JUDGMENT TO INCLUDE LIQUIDATED DAMAGES
Although the jury found that F & M discriminated against Kraemer on the basis of age, the jury did not find that the discrimination was willful. See Jury Interrogatories, ¶ 8. In post trial motions, Kraemer moves pursuant to Rule 59(e) of the Federal Rules of Civil Procedure to amend the judgment to award her liquidated damages under the ADEA.
According to Kraemer, the United States Supreme Court has made clear that every violation of the ADEA is willful except those limited situations in which the defendant made an age-based decision but believed in good faith that such a decision was not prohibited by the statute. Kraemer argues that the instant case does not fit into this limited exception, and therefore, the age discrimination found by the jury necessarily must have been willful.
If discrimination is willful within the meaning of Section 7(b) of the ADEA, 29 U.S.C. § 626(b), the plaintiff is entitled to liquidated damages. In Hazen Paper Co. v. Biggins, 507 U.S. 604, 113 S.Ct. 1701, 123 L.Ed.2d 338 (1993), the United States Supreme Court reaffirmed its definition of "willful" as enunciated in Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 126, 105 S.Ct. 613, 624, 83 L.Ed.2d 523 (1985) and McLaughlin v. Richland Shoe Co., 486 U.S. 128, 133, 108 S.Ct. 1677, 1681, 100 L.Ed.2d 115 (1988). The Hazen Paper Court held that a violation of *487 the ADEA is willful if the employer either "knew or showed reckless disregard for the matter of whether its conduct was prohibited by the ADEA." Hazen Paper Co., 507 U.S. at 614, 113 S.Ct. at 1708 (citing Trans World Airlines, Inc., 469 U.S. at 126, 105 S.Ct. at 624; McLaughlin, 486 U.S. at 133, 108 S.Ct. at 1681). The Hazen Paper Court also reaffirmed its conclusion that by enacting the ADEA, Congress intended to create a "two-tiered liability scheme" under which some but not all ADEA violations would give rise to liquidated damages. See Hazen Paper Co., 507 U.S. at 613-15, 113 S.Ct. at 1708. Thus, the Court rejected a broader definition of willful providing for liquidated damages whenever the employer knew that the ADEA was "in the picture" because it would practically obliterate any distinction between willful and nonwillful violations. Id. The Court stated that "[i]t is not true that an employer who knowingly relies on age in reaching its decision invariably commits a knowing or reckless violation of the ADEA." Id. at 616, 113 S.Ct. at 1709. The Court further stated that "[i]f an employer incorrectly but in good faith and nonrecklessly believes that the statute permits a particular age-based decision, then liquidated damages should not be imposed." Id.
Based on a review of the record, a jury acting reasonably could find that F & M did not act willfully or recklessly in discriminating against Kraemer because of her age. Accordingly, the jury's finding that F & M did not act willfully in discriminating against Kraemer on the basis of age is affirmed, and Kraemer's motion to amend the judgment to award her liquidated damages is denied.
C. PREJUDGMENT INTEREST ON AWARD OF BACK PAY
Kraemer moves for prejudgment interest on the award of back pay. The jury awarded Kraemer $73,456.00 in back pay. Kraemer calculates prejudgment interest using the Internal Revenue Service overpayment rates set forth at 26 U.S.C. § 6621 for each quarter from July 1, 1994 (the beginning of the 1994-1995 academic year) to November 28, 1995 (the date the judgment was entered). Kraemer requests that interest be compounded quarterly. In response to Kraemer motion for prejudgment interest, F & M stated that it would defer to the court's discretion as to whether prejudgment interest is appropriate and whether the interest rates posed by Kraemer are correct. F & M only objects to Kraemer's request that interest compound quarterly. F & M contends that interest should be compounded annually rather than quarterly.
The decision to award prejudgment interest and the amount of interest awarded are with the trial court's discretion. See Berndt v. Kaiser Aluminum & Chem. Sales, Inc., 629 F.Supp. 768, 770 (E.D.Pa.1985), aff'd, 789 F.2d 253 (3d Cir.1986). Because prejudgment interest reimburses the claimant for the loss of the use of his or her investment or funds from the time of the loss until judgment, the court concludes that an award of prejudgment interest is proper. Thus, the court awards Kraemer prejudgment interest using the statutory rates for overpayments set forth in 26 U.S.C. § 6621 that prevailed between July 1, 1994 and November 28, 1995. The interest will be compounded quarterly. See Taylor v. Central Pennsylvania Drug and Alcohol Servs. Corp., 890 F.Supp. 360, 368-70 (M.D.Pa. 1995); EEOC v. Reads, Inc., 759 F.Supp. 1150, 1162, n. 20 (E.D.Pa.1991) (awarding prejudgment interest on back pay in Title VII case using IRS rates and compounded quarterly).
III. CONCLUSION
For the foregoing reasons, the civil judgment order entered in this action on November 28, 1995 is amended to include an award of $60,000.00 in front pay. Kraemer's motion for prejudgment interest on the award of back pay is GRANTED and the civil judgment order entered in this action on November 28, 1995 is amended to include an award of $4,467.37 in prejudgment interest. In addition, Kraemer's motion to amend the civil judgment order to include liquidated damages is DENIED.
*488
CALCULATION OF PREJUDGMENT INTEREST
ON KRAEMER'S BACK PAY AWARD
QUARTER BACK PAY IRS RATE INTEREST TOTAL
7/1/94 to 9/30/94 $16,403.00 ___ ___ $16,403.00
10/1/94 to 12/31/94 $16,403.00 8% $ 328.06 $33,134.06
1/1/95 to 3/31/95 $16,403.00 8% $ 662.68 $50,199.74
4/1/95 to 6/30/95 $16,403.00 9% $1129.49 $67,732.24
7/1/95 to 9/30/95 $ 5,350.00 8% $1354.64 $74,436.88
10/1/95 to 11/28/95 $ 2,503.00 8% $ 992.49 $77,932.37
_________
TOTAL $4,467.37
NOTES
[1] F & M does not contend that hostility between the parties precludes instatement of Kraemer.
[2] The Spagnuolo court nevertheless held that the district court could order the removal of a "new" incumbent employee from a position that became available after the original court order so that the plaintiff could be instated in the position he should have been given. The Spagnuolo court reasoned that the employee who is promoted or hired after the judicial pronouncement of discrimination is presumed not to be an innocent employee.
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Order entered October 15, 2018
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-18-01189-CV
No. 05-18-01190-CV
IN RE RUDY LOPEZ, Relator
Original Proceeding from the 265th Judicial District Court
Dallas County, Texas
Trial Court Cause Nos. F91-44984-R and F93-39883-R
ORDER
Before Justices Lang-Miers, Fillmore, and Stoddart
Based on the Court’s opinion of this date, we DISMISS relator’s petition for writ of
mandamus for want of jurisdiction.
/s/ ELIZABETH LANG-MIERS
JUSTICE
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454 F.Supp. 534 (1978)
Bibian J. RENDON, Plaintiff,
v.
The UTAH STATE DEPARTMENT OF EMPLOYMENT SECURITY JOB SERVICE, Kurt Harding, Edgar Denny, Ralph Kroescher, Lorna Davis, Lonnie Ayers, Ralph Sandoval, Joann Campbell, Howard Vogeler and Michael Williamson, Defendants.
No. C-77-0024.
United States District Court, D. Utah, C. D.
April 7, 1978.
*535 Jose I. Ferran, Jr., Salt Lake City, Utah, for plaintiff.
Robert B. Hansen, Atty. Gen., Salt Lake City, Utah, for defendant Utah State Dept. of Employment Security Job Service.
Kay M. Lewis, Salt Lake City, Utah, for defendants.
ALDON J. ANDERSON, Chief Judge.
The issue presently before the court is whether Title VI of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000d to 2000d-4, provides plaintiff with a private cause of action for general and punitive damages in the present employment discrimination action. On July 12, 1977, the court entered an order dealing with the motions filed up to that time pertaining to the six causes of action contained in plaintiff's complaint. The second cause of action is the only relevant cause of action for the present purposes since it is this cause which sets forth a claim pursuant to Title VI. In the order of July 12, the court granted defendants' motion for a more definite statement as to the second cause of action. On December 15, 1977, plaintiff filed his "Revised Amended Complaint" which clarifies the second cause of action based upon Title VI.
Plaintiff is a male citizen of the State of Utah and is of Spanish-American origin and ancestry. Plaintiff is now and has been since October 15, 1968, employed by the Utah State Department of Employment Security Job Service. Essentially, it is alleged that during this period of time plaintiff has been denied promotions on a number of occasions on the basis of his national origin and ancestry while persons with lesser qualifications and work experience have been granted promotions. Plaintiff also alleges that the defendant employer is a State agency presently receiving or participating in funds made available by the federal government, and that the alleged discriminatory acts have deprived plaintiff of benefits including, but not limited to, salary increases, retirement and other benefits associated with advancement within the defendant agency. In consequence of the alleged violation of Title VI, plaintiff prays for judgment against defendants in the amount of "at least" $250,000 for mental distress plaintiff has suffered as a result of the alleged discriminatory acts, for punitive damages against defendants in the amount of $250,000, and for such further and additional relief as this court may deem just and proper.
On December 15, 1977, defendants renewed their motion to dismiss plaintiff's second cause of action. The ground for the motion to dismiss is that, according to defendants, there is no private cause of action that provides the relief sought by plaintiff. Having fully and carefully considered the matters presented by defendants' motion to dismiss, the court is prepared to enter its ruling.
None of the case authority cited by the parties goes directly to the precise issue at hand. The cases that are set forth typically involve an action initiated by a private party or parties in which some form of injunctive or declaratory relief is sought in an effort to enforce compliance with Title VI. See, e.g., Green Street Assoc. v. Daley, 373 F.2d 1 (7th Cir. 1967); Hardy v. Leonard, 377 F.Supp. 831 (N.D.Cal.1974). The issues usually treated in these cases are issues that might appropriately be characterized *536 as standing issues. See, e.g., Schlafly v. Volpe, 495 F.2d 273 (7th Cir. 1974); Hardy v. Leonard, supra. And, it is clear from the many cases involving such issues, that in proper instances private parties can indeed maintain an action under Title VI in a role that could loosely but accurately be described as that of private attorneys general. Lau v. Nichols, 414 U.S. 563, 94 S.Ct. 786, 39 L.Ed.2d 1 (1974); Serna v. Portales Municipal Schools, 499 F.2d 1147 (10th Cir. 1974).[1] The nature of such an action, however, differs markedly from the instant action. Here plaintiff is not attempting to directly enforce compliance with Title VI, nor is he seeking declaratory or injunctive relief. Rather, plaintiff is seeking compensation in the form of general and punitive damages for alleged injury through mental distress, which is tortious in nature.
Through its own research, the court has found only one case in which the issue of the availability of damages under Title VI was raised and resolved.[2] In Gilliam v. City of Omaha, 388 F.Supp. 842 (D.Neb.1975), a black woman contended that her civil rights had been violated and sought redress under Title VI. Before the merits of the case were discussed, the court made the following statement regarding its jurisdiction over the matter:
. . . the Court is faced with the initial question of whether or not it has subject-matter jurisdiction over an action seeking monetary damages for alleged employment discrimination under Title VI. This Court is not aware of any other suit arising under Title VI which has sought the recovery of monetary damages from the persons, organizations, or agencies administering federal financial assistance. However, it has been held that 42 U.S.C.A. § 2000d is merely a codification of the requirements of the equal protection clause of the Fourteenth Amendment of the United States Constitution and that essentially the same showing is required to establish a violation of Title VI as is required to establish a violation of the fourteenth amendment. [Citations omitted.] Of course, a citizen who has been denied the equal protection of the law by agents of the state can maintain an action for damages under 42 U.S.C.A. § 1981 et seq. [Citations omitted.] Consequently, the Court finds that it has subject-matter jurisdiction over this action.
388 F.Supp. at 847. This court concludes, however, that it can subscribe neither to the reasoning undertaken nor the result reached by the Nebraska court.
The legislative history of Title VI and the rules of statutory construction set forth in defendants' brief of June 30, 1977, compel the conclusion that a private cause of action under Title VI of the kind presently before the court is not cognizable. Plaintiff has available to him causes of action under several federal civil rights provisions which he has plead and which are capable of serving as a basis of some form of relief to plaintiff. These provisions adequately and more appropriately provide a basis for the relief sought by plaintiff. The clear concern and aim of Title VI is the prohibition of various forms of discrimination in federally funded programs in the manner specifically provided by the statute and to the limited extent recognized by judicial decision. It is not the purpose of Title VI to duplicate the means of relief already available and to provide a means of compensation for every conceivable injury or adverse reaction that arguably is in consequence *537 of a violation of the provision.[3] Accordingly,
IT IS HEREBY ORDERED that defendants' motion to dismiss plaintiff's second cause of action based upon Title VI of the Civil Rights Act of 1964 is granted.
NOTES
[1] The court notes that the 1976 amendment to 42 U.S.C. § 1988 provides for the allowance of attorneys' fees to "the prevailing party, other than the United States," in a civil action brought to enforce, or charging a violation of, a provision of Title VI of the Civil Rights Act of 1964. This evidences an intent on the part of Congress that certain private actions under Title VI are permissible.
[2] At least two other cases have indirectly recognized or discussed the issue of the availability of damages under Title VI, but have not dealt with the issue directly. See Chambers v. Omaha Public School District, 536 F.2d 222 (8th Cir. 1976) at note 2; Flanagan v. President & Directors of Georgetown College, 417 F.Supp. 377 (D.D.C.1976).
[3] It should also be noted that the present action may be distinguishable from Gilliam in the type of damages prayed for in the actions. It appears that the plaintiff in Gilliam was seeking the difference between the salary she received and the salary she should have received in the absence of the alleged discrimination, and such other closely related damages. The allowance of such damages under Title VI would be much more understandable and palatable than permitting the general and punitive damages sought in the instant action in consequence of the alleged mental distress of plaintiff. Moreover, the Eighth Circuit, which includes the District of Nebraska, has expressly stated that: "The issue of whether a monetary judgment can be obtained under Title VI has not been definitively resolved." Chambers v. Omaha Public School District, 536 F.2d 222 (8th Cir. 1976) at note 2.
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272 Cal.App.2d 255 (1969)
JOSEPH A. HERNANDEZ et al., Plaintiffs and Appellants,
v.
STATE FARM INSURANCE COMPANY, Defendant and Respondent.
Civ. No. 32757.
California Court of Appeals. Second Dist., Div. Five.
Apr. 23, 1969.
Sanz & Gelber for Plaintiffs and Appellants.
Spray, Gould & Bowers and Eugene R. Grace for Defendant and Respondent.
KAUS, P. J.
This is a purported appeal from an order confirming an arbitration award and denying a petition to vacate the award. We construe the appeal as being from the judgment entered pursuant to the award. (Code Civ. Proc., 1294.)
The first time either side to this dispute sought the aid of the superior court was after the arbitration had been completed and the arbitrators had found that petitioners Joseph A. and Beatrice Hernandez were not entitled to reimbursement *256 under the uninsured motorist provision of their policy issued by respondent State Farm Insurance Company ("State Farm"). [fn. 1]
There apparently is no doubt concerning the basic facts which give rise to petitioners' claim. An automobile, the driver of which was never identified, suddenly swerved in front of a vehicle driven by one Booth. This maneuver caused Booth to lose control of his car and bounce into a freeway divider fence, where petitioners' car collided with the Booth vehicle.
Booth was an uninsured motorist. Unfortunately, from petitioners' point of view, the arbitrators found that the only negligent party was the unidentified driver whose car never came in contact with either Booth's or petitioners' automobile. Applying the provision of section 11580.2 of the Insurance Code which excludes from the definition of "uninsured motor vehicle" a car whose owner or operator is unknown, unless there has been "physical contact of such automobile with the insured or with an automobile which the insured is occupying" (Ins. Code, 11580.2, subd. (b) (1)), [fn. 2] the arbitrators found that there was no coverage.
Petitioners then filed their petition for an order vacating the award. As already noted, this was the first pleading which brought this matter to the attention of the court. The petition was denied, the award was confirmed, findings and conclusions (Code Civ. Proc., 1291) were waived and a judgment was entered. (Code Civ. Proc., 1287.4.)
[1] On appeal petitioners contend that for various reasons the contact requirement was not applicable to them. [fn. 3]
Whether or not the purely legal question which petitioners now raise was arbitrable, is a matter of some doubt. While *257 Esparza v. State Farm Mut. Auto. Ins. Co., 257 Cal.App.2d 496 [65 Cal.Rptr. 245], so holds, the arbitration clause in the policy that was involved in Esparza was broader than is required by section 11580.2. [fn. 4] On the other hand in American Ins. Co. v. Gernand, 262 Cal.App.2d 300, 304-305 [68 Cal.Rptr. 810] the arbitration clause was of the "narrow" variety, yet a factual issue involving the "contact" problem was held to be subject to arbitration. [fn. 5]
Whether or not petitioners could have been compelled to submit the question which they now raise to arbitration, it is plain that they submitted it. There is nothing in the record to indicate that they did so under protest. (Cf. Farmers Ins. Exchange v. Ruiz, 250 Cal.App.2d 741, 747 [59 Cal.Rptr. 13].) Any right that they may have had to have their present legal contention resolved by the superior court was therefore waived. (Fidelity & Cas. Co. v. Dennis, 229 Cal.App.2d 541, 543-544 [40 Cal.Rptr. 418].) Even if the arbitrator's decision on the legal issue here involved was wrong--which we do not decide--petitioners are bound by it. (Durand v. Wilshire Ins. Co., 270 Cal.App.2d 58, 60-61 [75 Cal.Rptr. 415] and authories cited therein.)
The judgment is affirmed.
Stephens, J., and Aiso, J., concurred.
NOTES
[fn. 1] 1. The precise name of respondent is in doubt. In its own pleading it calls itself "State Farm Mutual Automobile Insurance Company." In petitioners' petition it was referred to simply as State Farm Insurance Company.
[fn. 2] 2. A provision in State Farm's policy was to the same effect.
[fn. 3] 3. Although we have no occasion to consider the merits of petitioners' position, it should be noted that the leading case interpreting section 11580.2, subdivision (b)(1) of the Insurance Code, Inter-Insurance Exchange v. Lopez, 238 Cal.App.2d 441 [47 Cal.Rptr. 834], by dictum, intimates strongly that petitioners are incorrect: "... For example, if Car X had swerved in front of Car B causing it to lose control and strike Car C, then the act of Car X would have been the proximate cause of the accident without having touched either Car B or Car C. If the physical contact requirement of the statute could be satisfied by merely showing that the hit-and-run vehicle was the proximate cause of the accident, then this provision would be largely written out of the statute. ..." (238 Cal.App.2d at p. 444.)petitioners argue that the only purpose of the contact requirement was the elimination of fictitious claims and that their claim is obviously not fictitious, the arbitrators having found that the automobile driven by the unidentified motorist really was the cause of their collision with Booth. This obviously proves too much. The Legislature must have meant more than just to eliminate fictitious claims which arbitrators do not believe to be true.
[fn. 4] 4. The distinction between broad and narrow arbitration clauses was adverted to in Fisher v. State Farm Mut. Auto. Ins. Co., 243 Cal.App.2d 749, 752 [52 Cal.Rptr. 721] fn. 2.
[fn. 5] 5. The problem is that section 11580.2 of the Insurance code provides for arbitration of just two issues: 1. whether the insured is legally entitled to recover damages; and 2. the amount thereof. (Ins. Code, 11580.2, subd. (e).) Thus, unless the right to a judicial determination is waived by proceeding to arbitration, the following issues between insurer and insured have been held not to be arbitrable:pacific Auto. Ins. Co. v. Lang, 265 Cal.App.2d 837, 842 [71 Cal.Rptr. 637] [factual question of contract]; Campbell v. Farmers Ins. Exchange, 260 Cal.App.2d 105 [67 Cal.Rptr. 175] [policy limits]; Farmers Ins. Exchange v. Ruiz, 250 Cal.App.2d 741, 745-746 [59 Cal.Rptr. 13] [question whether injured person additional assured]; Commercial Ins. Co. v. Copeland, 248 Cal.App.2d 561, 564-565 [56 Cal.Rptr. 794] [legal effect of release]. Cf. Allstate Ins. Co. v. Orlando, 262 Cal.App.2d 858, 866-867 [69 Cal.Rptr. 702]; Pacific Indem. Co. v. Superior Court, 246 Cal.App.2d 63, 66-68 [54 Cal.Rptr. 470]; and Aetna Cas. & Surety Co. v. Superior Court, 233 Cal.App.2d 333, 339-340 [43 Cal.Rptr. 476], all holding that the timeliness of a demand for arbitration under section 11580.2, subdivision (h) is not arbitrable.
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Case: 13-41279 Document: 00512708927 Page: 1 Date Filed: 07/23/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 13-41279
Fifth Circuit
FILED
Summary Calendar July 23, 2014
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff-Appellee
v.
DIETRICK LEWIS JOHNSON,
Defendant-Appellant
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:12-CR-80
Before REAVLEY, JONES, and PRADO, Circuit Judges.
PER CURIAM: *
The attorney appointed to represent Dietrick Lewis Johnson 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). Johnson has filed a response. To the extent Johnson complains of
his counsels’ performance, the record is not sufficiently developed to allow us
to make a fair evaluation of any claim of ineffective assistance of counsel; we
* 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: 13-41279 Document: 00512708927 Page: 2 Date Filed: 07/23/2014
No. 13-41279
therefore decline to consider such a claim, without prejudice to collateral
review. See United States v. Isgar, 739 F.3d 829, 841 (5th Cir. 2014).
We have reviewed counsel’s brief and the relevant portions of the record
reflected therein, as well as Johnson’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, counsel is
excused from further responsibilities herein, and the APPEAL IS DISMISSED.
See 5TH CIR. R. 42.2.
2
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682 N.E.2d 68 (1997)
289 Ill. App.3d 75
224 Ill.Dec. 507
Mary DOYLE, Leni Serra, Susan Valderrama and Valerie Zorek, Plaintiffs-Appellants,
v.
HOLY CROSS HOSPITAL, an Illinois not-for-profit corporation, Defendant-Appellee.
No. 1-95-3243.
Appellate Court of Illinois, First District, 3rd Division.
March 26, 1997.
Rehearing Denied July 24, 1997.
*69 George C. Pontikes and Sheni Hajat, of George C. Pontikes & Associates, Chicago, for Appellants.
Dorothy V. Ward, Norma W. Zeitler and D. Scott Watson, of Keck, Makin & Cate, Chicago, for Appellee.
Justice CAHILL delivered the opinion of the court:
Plaintiffs appeal a trial court dismissal of their complaint under section 2-619(9) of the Code of Civil Procedure. 735 ILCS 5/2-619(9) (West 1994). They allege defendant terminated their employment in violation of the terms of defendant's employee handbook. The trial court relied on the second district decision in Condon v. American Telephone & Telegraph Co., 210 Ill.App.3d 701, 155 Ill. Dec. 337, 569 N.E.2d 518 (1991), which held that an employer could unilaterally modify an existing contract to claim a contract no longer exists. We reverse.
Plaintiffs are nurses and former employees of Holy Cross Hospital. Mary Doyle and Leni Serra were hired in 1960 and 1968, respectively. Susan Valderrama and Valerie Zorek were hired in 1972. In 1971 Doyle and Serra received employee handbooks which set out certain policies of the hospital. These policies were in effect when the handbooks were given to Valderrama and Zorek in 1972. Plaintiffs' complaint relies upon policy number 7-G titled "Economic Separation," which reads in part:
"Holy Cross Hospital is committed to providing a working environment where employees feel secure in their job. We understand that job security is important to an employee and to that employee's family. There are instances, though, that for economic or other reasons it becomes apparent that the permanent elimination of departments, job classifications and/or jobs must be made, and there is no reasonable expectation that employees affected could be placed in other positions in the hospital or be recalled for work in one year or less. To ensure that the economic separation is handled in an objective, structured and consistent way, the following policies will be followed in determining which employees will be affected.
1. Job Classification
2. Length of Continuous Hospital Service
3. Ability and Fitness to Perform the Required Work
* * * * * *
Because of the special needs of our patients, the following factors will be used in an economic separation affecting R.N.'s:
1. Nursing Areas of Expertise
2. Length of Service Within Each Area of Expertise
3. Ability and Fitness to Perform the Required Work
* * * * * *
Employees affected by an economic separation will be placed on a priority rehire list and will be contacted by the Human Resources Department if a position becomes available for which the separated employees may be eligible through experience, training, education and/or other qualifications. Priority rehire consideration shall be for a period of one year."
In 1983 Holy Cross added policy 5-I. That policy, titled "Employment Relationship," reads:
"The Personnel Policies and other various Hospital employee and applicant communications are subject to change from time to time and are not intended to constitute nor do they constitute an implied or express contract or guarantee of employment for any period of time. The employment relationship between the Hospital and any employee may be terminated at any time by the Hospital or the employee with or without notice."
In November 1991 Holy Cross terminated the plaintiffs. Plaintiffs filed a complaint for wrongful discharge, alleging breach of contract and promissory estoppel. They allege in their complaint that Holy Cross violated policy 7-G because: a) "there was in fact no *70 permanent elimination of any departments, job classifications or jobs; b) there were other positions available on November 1, 1991, which plaintiffs could fill, but Holy Cross failed and refused to employ them in these positions; c) other employees with less continuous hospital service were retained; and d) more than one year has passed since plaintiffs were terminated, and subsequent to November 1, 1991, Holy Cross has had positions for which they were eligible through experience, training, education and qualifications, but Holy Cross has failed and refused to offer them any such positions."
Holy Cross filed a motion to dismiss the complaint under section 2-619(9) of the Code of Civil Procedure. 735 ILCS 5/2-619(9) (West 1994). Holy Cross argued that plaintiffs were at will employees and that economic separation policy 7-G no longer constituted an enforceable contractual right because the hospital amended its handbook.
The trial court followed the decision in Condon v. American Telephone & Telegraph Co., 210 Ill.App.3d 701, 155 Ill.Dec. 337, 569 N.E.2d 518 (1991), and granted defendant's motion to dismiss.
The plaintiff in Condon argued that his employer breached an employment contract when it demoted him without following the procedures set out in personnel and management training manuals. After the plaintiff was hired, the employer inserted disclaimers in the manuals. The plaintiff argued that the disclaimers were invalid because they were not contained in the original manuals he received when hired. The second district court rejected the plaintiff's argument and held "an employer may unilaterally alter existing policies to disclaim those policies in order to prevent contractual obligations from arising under Duldulao." Condon, 210 Ill.App.3d at 705, 155 Ill.Dec. 337, 569 N.E.2d 518. The Condon court reasoned that, because the plaintiff continued to work after the disclaimers were inserted in the handbook, he was bound by them. Explicit in the court's holding is that the plaintiff's continued performance constituted consideration for the contract modification. The court reached this conclusion based upon a reading of Duldulao in which it found implicit support. The Condon court wrote:
"The implied contract which arises under the Duldulao doctrine is unilateral in nature. In setting out its test for contract formation, the Duldulao court states in part three of the test that the employee accepts the offer by working or continuing to work. [Citation.] The only way an employee could accept an offer by continuing to work is if the employee was already employed and the employer altered an existing policy. Implicit in this requirement is that the employer may unilaterally change its own policies." Condon, 210 Ill. App.3d at 708,155 Ill.Dec. 337, 569 N.E.2d 518.
We respectfully disagree with this analysis of Duldulao. In that case, our supreme court applied traditional requirements for contract formation to determine whether an employee handbook creates an enforceable contractoffer, acceptance, and consideration. Duldulao v. St. Mary of Nazareth Hospital Center, 115 Ill.2d 482,106 Ill.Dec. 8, 505 N.E.2d 314 (1987). The court held "an employee handbook or other policy statement creates enforceable contractual rights if the traditional requirements for contract formation are present." Duldulao, 115 Ill.2d at 490, 106 Ill.Dec. 8, 505 N.E.2d 314. Three requirements must be met for an employee handbook or policy statement to form a contract. First, the language of the policy statement must contain a promise clear enough that an employee would reasonably believe an offer has been made. Second, the statement must be disseminated to the employee in such a manner that the employee is aware of its contents and reasonably believes it to be an offer. Third, the employee must accept the offer by: "commencing or continuing to work after learning of the policy statement." (Emphasis added.) The Duldulao court then held: "When these conditions are present, then the employee's continued work constitutes consideration for the promises contained in the statement, and under traditional principles a valid contract is formed." Duldulao, 115 Ill.2d at 490,106 Ill.Dec. 8, 505 N.E.2d 314.
*71 The Condon court read the emphasized language above to implicitly include a subsequent disclaimer of the policy statement, followed by the employee remaining on the job. There was no reason for the supreme court in Duldulao to so infer or hold. The issue of a subsequent disclaimer was not an issue in the case.
We turn now to whether the language of the employee handbook in this case contains a promise which is sufficiently clear and definite to constitute a contractual offer. It is a question of law. Harrell v. Montgomery Ward & Co., 189 Ill.App.3d 516, 521, 136 Ill.Dec. 849, 545 N.E.2d 373 (1989).
We find that policy 7-G of the employee handbook set out above, as a matter of law, meets the test in Duldulao for contract formation. Policy 7-G can be understood to convey a clear offer by Holy Cross to relinquish the right to terminate at will. The requirements for contract formation were met for plaintiffs Doyle and Serra in 1971 and plaintiffs Valderrama and Zorek in 1972. Under Duldulao their work constituted their acceptance and the consideration to form the contracts. The defendant does not dispute this.
The issue before us is whether the disclaimer, added in 1983, which stated that Holy Cross could terminate "any employee * * * at any time," is a legally binding change which altered plaintiffs' employment status and returned them to the status of employees at will. Plaintiffs argue that defendant's unilateral modification of the contract is unenforceable because the requisite consideration is lacking. Defendant, citing Condon, argues that plaintiffs' continued work after the unilateral modification of the contract in 1983 constitutes the consideration to make the disclaimer binding.
When an employment agreement is terminable at will, it may be modified by the employer as a condition of its continuance. Ohlemeier v. Community Consolidated School District, 151 Ill.App.3d 710, 717, 104 Ill.Dec. 652, 502 N.E.2d 1312 (1987). This principle is the foundation of the reasoning in Duldulao that an employee's continuation of work constitutes consideration for the employer's offer to modify the employment contract. But, in this case, plaintiffs' employment contracts were not terminable at will. When they were given their handbooks, the hospital gave up the right to terminate plaintiffs at will and promised to follow handbook policy in job termination. That promise became a contractual obligation as we read Duldulao.
The 1983 disclaimer, which stated that Holy Cross employees were once again terminable at will, was an attempt to modify an existing contract between Holy Cross and plaintiffs. Traditional contract principles allow parties to modify their contract, if there is consideration to support the modification. De Fontaine v. Passalino, 222 Ill.App.3d 1018,165 Ill.Dec. 499, 584 N.E.2d 933 (1991). Consideration consists of some right, interest, profit or benefit accruing to one party, or some forbearance, detriment, loss or responsibility given, suffered or undertaken by the other. Russell v. Jim Russell Supply, Inc., 200 Ill.App.3d 855, 146 Ill.Dec. 152, 558 N.E.2d 115 (1990). If parties to a contract agree to a modification, consideration is usually found to exist where the obligations of both parties are varied. A modification solely for the benefit of one of the parties is unenforceable. See De Fontaine, 222 Ill. App.3d 1018, 165 Ill.Dec. 499, 584 N.E.2d 933.
We do not reach the conclusion of the court in Condon. The court never explains how it is possible, under traditional contract principles, for an employee to revert to at will status through the unilateral act of the employer. We are not the first court to question Condon's reasoning. See Robinson v. McKinley Community Services, Inc., 19 F.3d 359 (7th Cir.1994). The court in Robinson stated:
"The Condon court relied on Duldulao. But Duldulao did not alter basic rules of contract modification. Duldulao merely held that if an employer embodies a clear and definite promise in its employee handbook, then an offer has been made. Condon also relied on Bartinikas v. Clarklift of Chicago North, Inc., 508 F.Supp. 959 (N.D.Ill. 1981). However, Bartinikas recognized *72 that in Illinois, `an employer acting ex parte, without the consent of the employee, cannot modify the terms of the employment contract.' Bartinikas, 508 F.Supp. at 961." Robinson, 19 F.3d at 364.
We will not infer, as suggested in Condon, acceptance and consideration because the plaintiffs continued to work. Plaintiffs were not then employees at will. If, as Holy Cross argues, plaintiffs' continued work amounts to acceptance and consideration for the "loss" of their right under the Economic Separation policy, then the only way plaintiffs could preserve and enforce their contractual rights would have been to quit working after Holy Cross unilaterally issued the disclaimer. This would make the promise by Holy Cross not to terminate, except under the terms of the Economic Separation policy, illusory. The illusion (and the irony) is apparent: to preserve their right under the Economic Separation policy the plaintiffs would be forced to quit.
We believe this analysis avoids an illogical result: by continuing to work, plaintiffs continued to perform their duties and assert their rights under the existing contract, which promised that Holy Cross would follow specific procedures for job termination. Plaintiffs received no benefit and Holy Cross suffered no detriment when Holy Cross modified the employee contract to attempt to make plaintiffs terminable at will. There was no bargained for exchange to support plaintiffs' purported relinquishment of the protections they were entitled to under the existing contract. The modification by Holy Cross was solely for the benefit of Holy Cross and is unenforceable as to plaintiffs.
Reversed and remanded.
THEIS and SHEILA M. O'BRIEN, JJ., concur.
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548 U.S. 902 (2006)
KSR INTERNATIONAL CO.
v.
TELEFLEX INC. ET AL.
No. 04-1350.
Supreme Court of United States.
June 26, 2006.
Motions of Progress & Freedom Foundation, Twenty-Four Intellectual Property Law Professors, and Cisco Systems Inc. et al. for leave to file briefs as amici curiae granted. Certiorari granted.
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FILED
United States Court of Appeals
Tenth Circuit
August 4, 2008
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
JOE FLOYD FULLER, SR.,
Plaintiff - Appellant,
v. No. 08-3077
(D. Ct. No. 08-CV-03065-SAC)
BILLY WILCOX, Sergeant Deputy, (D. Kan.)
Johnson County Detention Center;
VALERIE (LNU), Nurse, Johnson County
Detention Center; CORRECT CARE
SOLUTIONS,
Defendants - Appellees.
ORDER AND JUDGMENT*
Before TACHA, KELLY, and McCONNELL, Circuit Judges.
Joe Floyd Fuller, a prisoner appearing pro se, appeals the district court’s order
denying his motion for leave to proceed in forma pauperis (IFP) in his civil rights action
in the district court. The district court also denied Mr. Fuller leave to proceed IFP on
appeal. Exercising jurisdiction pursuant to 28 U.S.C. § 1291,1 we grant Mr. Fuller leave
to proceed IFP on appeal, vacate the district court’s order denying him leave to proceed
*
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.
1
An order denying a motion for leave to proceed IFP is a final, appealable order.
Roberts v. United States Dist. Ct., 339 U.S. 844, 845 (1950) (per curiam).
IFP in that court, and remand for further proceedings.
I. Background
In a previous order, this Court found that Mr. Fuller had filed in federal court at
least three prisoner actions or appeals that were determined to be frivolous or malicious or
failed to state a claim upon which relief may be granted. Fuller v. Wilcox, No. 08-3077,
Mar. 24, 2008. Mr. Fuller does not challenge his status as a prisoner who has filed at
least three such actions or appeals. Consequently, under 28 U.S.C. § 1915(g), Mr. Fuller
may not proceed IFP on appeal—or in the district court—unless he is “under imminent
danger of serious physical injury.” We therefore ordered Mr. Fuller to show cause why
this appeal should not be dismissed for failure to prepay the entire appellate filing fee as
required by § 1915(g).
II. Discussion
To determine whether Mr. Fuller is “under imminent danger of serious physical
injury,” we look to the allegations in his complaint. See Ibrahim v. Dist. of Columbia,
463 F.3d 3, 6 (D.C. Cir. 2006). In addition, we liberally construe his complaint,
accepting the allegations as true. See Martinez v. Garden, 430 F.3d 1302, 1304 (10th Cir.
2005) (noting that we construe “a pro se complaint liberally” and “must accept the
allegations of the complaint as true” (quotation omitted)). In order to meet the “imminent
danger” requirement, “the harm must be imminent or occurring at the time the complaint
is filed.” Ciarpaglini v. Saini, 352 F.3d 328, 330 (7th Cir. 2003). In other words,
allegations of past injury or harm are insufficient, see id., as are vague and conclusory
-2-
assertions of harm, see White v. Colorado, 157 F.3d 1226, 1231 (10th Cir. 1998). To fall
within the exception, Mr. Fuller’s complaint must therefore contain “specific fact
allegations of ongoing serious physical injury, or of a pattern of misconduct evidencing
the likelihood of imminent serious physical injury.” Martin v. Shelton, 319 F.3d 1048,
1050 (8th Cir. 2003) (emphasis added).
The district court denied Mr. Fuller leave to proceed IFP because it determined
that Mr. Fuller failed to allege a serious physical injury occurring at the time he filed the
complaint. But although most of Mr. Fuller’s allegations concern past injuries, he also
alleges that he is unable to walk without a wheelchair and prison officials have refused to
provide him with one. He claims that, without a wheelchair, he is forced to crawl and is
unable to walk to the shower or lift himself from the cell floor to his bed. If Mr. Fuller
does indeed require a wheelchair, the failure to provide him with one could result in a
number of serious physical injuries. We therefore conclude that Mr. Fuller’s allegations,
assuming they are true, satisfy the imminent danger exception.
In concluding that the exception applies, we express no opinion concerning the
merits of Mr. Fuller’s claim. See Ciarpaglini, 352 F.3d at 331 (noting that “§ 1915(g) is
not a vehicle for determining the merits of a claim”). On remand, the district court should
dismiss the complaint as part of the screening process if it determines that the complaint
is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks
monetary relief from an immune defendant. See 28 U.S.C. §§ 1915(e)(2)(B), 1915A.
Provided the complaint satisfies the threshold requirements, the court should
-3-
provisionally grant IFP status and proceed with service of process. If the defendants
challenge the factual allegations supporting the imminent danger exception, the district
court must then determine whether these allegations are credible. See Fuller v. Myers,
123 Fed. App’x 365, at *2 (10th Cir. 2005) (unpublished opinion) (citing Gibbs v.
Roman, 116 F.3d 83, 86–87 (3d Cir. 1997), overruled on other grounds by Abdul-Akbar
v. McKelvie, 239 F.3d 307 (3d Cir. 2001) (en banc)).
III. Conclusion
Because Mr. Fuller’s complaint facially satisfies the imminent danger requirement,
we VACATE the district court’s denial of his motion for leave to proceed IFP and
REMAND for further proceedings. We also GRANT Mr. Fuller leave to proceed IFP in
this appeal and remind him of his obligation under § 1915(b) to make payments until the
appellate filing fee is paid in full. In addition, we DENY Mr. Fuller’s motion to
supplement his opening brief.
ENTERED FOR THE COURT,
Deanell Reece Tacha
Circuit Judge
-4-
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848 F.Supp. 278 (1994)
LOWEL-LIGHT MANUFACTURING, INC., Plaintiff,
v.
FEDERAL DEPOSIT INSURANCE CORP., as Receiver for Bank of New England in Liquidation, Defendant.
Civ. A. No. 91-10375-WGY.
United States District Court, D. Massachusetts.
March 11, 1994.
*279 John J. Regan, Hale & Dorr, Boston, MA, for plaintiff.
Paul R. Gupta, Nutter, McClennen & Fish, Thomas J. Morrissey, Sherin & Lodgen, Boston, MA, for defendant.
MEMORANDUM AND ORDER
YOUNG, District Judge.
The plaintiff, Lowel-Light Manufacturing, Inc. ("Lowel-Light"), originally brought this action in the Barnstable Superior Court against the Bank of Cape Cod, alleging negligence, breach of fiduciary duty, and violation of Mass.Gen.L. ch. 93A, § 11 in connection with the disbursement of funds from an escrow account held by the bank. Lowel-Light Manufacturing, Inc. v. Bank of Cape Cod, Barnstable Civil Action No. 87-828 (Mass.Superior Ct., filed Sept. 24, 1987). During the pendency of the Superior Court action the original defendant, Bank of Cape Cod (the "Bank"), was acquired by Bank of New England. On February 4, 1991, the present defendant, Federal Deposit Insurance Corporation ("FDIC"), as receiver for Bank of New England in liquidation, removed this action to the United States District Court and substituted itself for the Bank as the proper defendant.
Lowel-Light moves for summary judgment (Docket No. 2, filed July 19, 1991). See also plaintiff's statement of undisputed material facts (Docket No. 3, filed July 19, 1991), plaintiff's memorandum in support of its motion and plaintiff's appendix in support of both its motion and memorandum (Docket No. 4, filed July 19, 1991). The FDIC then filed a cross motion for summary judgment (Docket No. 7, filed August 30, 1991). See also defendant's statement of genuinely disputed *280 material facts (Docket No. 8, filed August 30, 1991), plaintiff's reply memorandum in support of its motion for summary judgment and in opposition to defendant's cross motion for summary judgment (Docket No. 12, filed September 18, 1991), and defendant's supplemental memorandum (Docket No. 14, filed September 18, 1991).
UNDISPUTED FACTS
Upon this record, the following facts appear undisputed. Lowel-Light is a New York corporation engaged in the business of manufacturing lighting equipment. On or about March 29, 1985, Lowel-Light brought suit against a Massachusetts corporation, Super Hoof, Inc. ("Super Hoof") in Barnstable Superior Court to recover monies owed Lowel-Light for lighting equipment sold to Super Hoof. On June 25, 1985, after Super Hoof failed to answer the complaint, Lowel-Light obtained a default judgment against Super Hoof in the amount of $29,125.34. (Complaint ¶ 4; Appendix, Tab 1).
In January, 1985, three of Super Hoof's shareholders and directors brought an action in the Barnstable Superior Court against Super Hoof and one David Sigler, the former President and CEO of Super Hoof, seeking damages and injunctive relief for the misappropriation of Super Hoof assets (the "shareholders action"). (See Docket No. 12, Exhibit A). On or about February 1, 1985, the Barnstable Superior Court ordered the defendants in the shareholders' action to place $100,000 in an interest bearing account at Merchant's Bank, the predecessor to the Bank of Cape Cod. The order provided that the sum would be
payable to the plaintiffs upon presentation of a judgment in their favor; said payment to be made only in the amount of the judgment and the balance returnable to the defendants or by further stipulation of the parties hereto.
(Appendix, Exhibit C).
To comply with the Superior Court's order, attorneys for the parties in the shareholders action opened an escrow account at the Bank in February, 1985. On February 11, 1985, $100,000 was deposited by wire into the account. (Deposition of James Anthony, Vol. I at 14, and Appendix, Tab 2). The funds deposited were assets of Super Hoof obtained in the ordinary course of business. (Affidavit of Thomas A. Butler, Esq., filed September 18, 1991).[1] The signature card accompanying the account described "Michael J. Princi and Robert G. Clerk, Escrow for Shakalis v. Super Hoof, Inc." The reverse of the card listed the employer or business of the depositor as "lawyer." (Appendix, Tab 2).
On October 7, 1985, Lowel-Light, as a judgment creditor, obtained a writ of execution from the Clerk's office of the Barnstable Superior Court and levied "upon the right, title and interest the said Judgment Debtor Super Hoof, Inc., has to any account at the Bank of Cape Cod." (Appendix, Exhibits D, E; Anthony Dep., Appendix, Tab 5 at 1).
James Anthony, the Senior Vice President for the Bank, received the Sheriff's levy and forwarded it to the Bookkeeping Department. The Bookkeeping Department informed Mr. Anthony that there were no accounts in the name of Super Hoof. Mr. Anthony then referred the levy to the Bank's attorney, Mr. Farrell. (Anthony Dep., Appendix, Tab 5 at 50-51).
On December 10, 1985, the Bank honored a certified check drawn on the account in the amount of $100,813, signed by both Robert Clark and Michael J. Princi, which closed the Escrow Account. (Anthony Dep., Appendix, Tab 4 at 14, Tab 6 at 53).
No monies were paid by the Bank from the Escrow Account to Lowel-Light in satisfaction of its default judgment and execution.
ANALYSIS
Summary judgment, of course, is appropriate if the Court finds that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). Lowel-Light *281 asserts that there are no genuine issues of material fact in dispute and that summary judgment should be entered in its favor on its claims for negligence, breach of fiduciary duty, and violation of Mass.Gen.L. ch. 93A.
Upon the self-same record, the FDIC moves for summary judgment in its favor upon all three claims. While the standard for action upon cross motions for summary judgment is identical to that for an individual motion, the Court must handle each of the cross motions as if they were two distinct, independent motions. Arnold Pontiac-GMC v. General Motors, 700 F.Supp. 838, 840 (W.D.Pa.1988). Thus, in evaluating each motion, the Court must consider the facts and inferences in the light most favorable to the nonmoving party. Continental Grain Co. v. Puerto Rico Maritime Shipping Auth., 972 F.2d 426, 431 (1st Cir.1992).
In order to succeed on its negligence claim, Lowel-Light must show (1) the Bank owed a legal duty of care to Lowel-Light; (2) the Bank breached that duty; (3) proximate or legal cause; and (4) actual damage or injury. See W. Prosser and W. Keeton, The Law of Torts § 30 (5th ed. 1985).
First, Lowel-Light must establish that the Bank owed Lowel-Light a duty of care. Schmid v. National Bank of Greece, S.A., 622 F.Supp. 704, 712 (D.Mass.1985), aff'd, 802 F.2d 439 (1st Cir.1986) (citing Brown v. Kendall, 60 Mass. 292 [1850]). Lowel-Light asserts that the Bank owed it two legal duties: (1) a duty reasonably to respond to the writ of execution served upon the Bank, and (2) a duty to act pursuant to the Court Order governing the disbursement of funds in the Escrow Account. Lowel-Light argues that the writ of execution served upon the Bank effected a valid lien on the Escrow Account and imposed a duty on the Bank to avoid disbursing funds from the Escrow Account either in violation of the lien or in violation of the Court Order mandating the creation of the Escrow Account.
The FDIC contends that the writ used by Lowel-Light was ineffective because it failed to file a bond. The FDIC has proffered no evidence to support a finding that Lowel-Light would not have filed a bond had the Bank identified the Escrow Account. Similarly unpersuasive is the contention of the FDIC that the Escrow Account cannot be attached because Princi and Clark are not parties to the suit in which the default judgment issued. The account, although under the names of Princi and Clark, was one "for the account of" Super Hoof, a party.
The FDIC also argues that a Massachusetts banking statute shields the Bank and thus the FDIC from liability in this situation. The statute states in relevant part:
No bank, ... shall be required to recognize an adverse claim to a deposit standing on ... its books ... for the account of any person, except by virtue of the service upon ... it of appropriate process issued by a court of competent jurisdiction in a suit or action to which such person ... has been made a party, unless the adverse claimant gives bond satisfactory to the depository and the adverse claimant to hold harmless and indemnify it from any liability, loss, damage, costs and expenses whatsoever on account of such adverse claim....
Mass.Gen.L. ch. 167D, § 31 (emphasis added). The FDIC asserts that Lowel-Light did not serve the Bank with appropriate process because the writ described the account to be levied upon as one in the name of Super Hoof, not Princi and Clark. (Docket No. 7 at 6).
The wording of the writ, however, did not render the process inappropriate. The writ made an all-encompassing reference to the "right, title and interest" which Super Hoof had to any accounts at the Bank and this was sufficient to identify the Escrow Account. As will be seen, however, the "appropriate process" under Mass.Gen.L. ch. 167D, § 31 should have been trustee process, not a writ of execution.
In general, a levy on the property of a judgment debtor gives the execution creditor a lien on the property. 33 C.J.S. Executions § 123 (1942). The FDIC argues that Lowel-Light could not create a valid lien on the account because the funds were in *282 custodia legis, i.e. in the custody of the court and, as such, unable to be reached by creditors. (Docket No. 7 at 10).
Lowel-Light counters by arguing that an exception to the rule of in custodia legis entitles them to attach the property. That exception entitles an officer holding property for the court to make successive attachments upon the property for the benefit of different creditors of the same judgment debtor. See Adamian v. Hassanoff, 189 Mass. 194, 196, 75 N.E. 126 (1905). Adamian involved a bill to reach and apply, but arguably another method of attachment could be used as well.
This Court need not resolve the question of whether Lowel-Light successfully attached funds in custodia legis. Although the funds were deposited pursuant to a Court Order, the funds were not held in the custody of the Court. The funds were in the custody of the Bank, Princi, and Clark. The Court is not custodian of funds deposited at its direction. The facts of this case are not analogous to Adamian, which involved property (oriental rugs, not bank accounts) actually impounded by the office of the clerk of court. As such, determination of the legal issues arising when property is in custodia legis is not necessary to the resolution of this dispute. Massachusetts law recognizes that the levy creates a lien on "All property which by common law is liable to be taken on execution, [and] may be taken and sold thereon...." Mass.Gen.L. ch. 235, § 31. Since Mass.Gen.L. ch. 235, § 34 exempts deposits in a banking institution up to $125, Lowel-Light argues that deposits above $125 are implicitly subject to execution.
More is required, however, under the First Circuit's view of Massachusetts law. In Gabovitch v. Lundy, 584 F.2d 559 (1st Cir.1978), appellant obtained a money judgment against the appellee and obtained a writ of execution from the Clerk of the District Court certifying a levy on the bank account of appellee. The First Circuit held the writ of execution ineffective against the bank. The court reasoned:
Under Massachusetts law, attachment of bank accounts takes place by trustee process. Mass.Gen.Laws Ann. ch. 246. Attachment on trustee process requires court approval. Mass.Rules Civ.Proc. [sic][2] 4.2(c).... [A] writ issued solely on the authority of a court clerk has no effect on a bank account under Massachusetts law....
Id. at 561.
Lowel-Light's writ of execution was issued by an assistant clerk in the Barnstable Superior Court. (Appendix, Exhibit D). The writ was directed at funds held in a bank account at Cape Cod Bank. Following the reasoning of Gabovitch, Lowel-Light's writ created no lien on the Escrow Account.
Lowel-Light argues that the funds in this case were not required to be attached by trustee process and, therefore, the ruling in Gabovitch is not controlling. (See Docket No. 12, ¶ 18). Funds are not attachable by trustee process where the funds are in the hands of a public officer who is accountable to the defendant only as an officer. Mass. Gen.L. ch. 246, § 32. Lowel-Light argues that the attorneys for the parties in the shareholders action held the funds for Super Hoof as public officers since the Escrow Account was created pursuant to Court Order and therefore such funds are not attachable by trustee process but may be taken upon execution.
This argument is unpersuasive. The public officer exception to this statute applies to actual public officers, not to the lawyers of the parties. See Traveler's Ins. Co. v. Maguire, 218 Mass. 360, 362, 105 N.E. 1023 (1914) (commissioner appointed by Probate Court); Burnham v. Beal, 96 Mass. (1 Allen) 217, 218 (1867) (trial justice); Chealy v. Brewer, 7 Mass. 259, 259 (1811) (county treasurer). The public officer exception to the trustee process statute being inapplicable, the writ of execution issued by the Barnstable Superior Court was ineffective to attach the funds.
*283 Since the writ of execution imposed no legal duty on the Bank, Lowel-Light is left with the assertion that "the Court Order establishing the Escrow Account created a significant legal duty on the part of the Bank to act in strict compliance with the terms of that Order." (Docket No. 4 at 10). Lowel-Light has proffered insufficient evidence to support a finding that this Court Order created a legal duty of care on the part of the Bank.
The Court Order was directed at the defendants in the Shareholder Litigation (i.e. Sigler and Super Hoof), not the Bank. The Bank was not a party to that suit. There is no evidence that the Bank even knew of the Court Order. Lowel-Light asserts in its statement of undisputed material facts that the Senior Vice President of the Bank who received the levy did not know that the levy referred to an account set up pursuant to a Court Order. (Docket No. 3, ¶ 21).
What is more, while a Bank is, of course, under a legal duty to act in compliance with the terms of an escrow agreement to which it is a party, see Schmid, 622 F.Supp. at 710 (a depository must act in strict compliance with the terms of an escrow agreement), here Lowel-Light itself asserts in its statement of undisputed material facts that there was no bank escrow agreement for the account in question, nor did the Bank require one. (Docket No. 3, ¶¶ 12 and 13). Therefore, the Bank owed no duty to Lowel-Light which could be breached. Similarly, in the absence of any evidence to show that the Bank voluntarily assumed the role of escrow agent, it appears that the true escrow agents were Princi and Clark and that the Bank was merely the depository where the funds were held. See 28 Am.Jur.2d, Escrow § 16 (1966).
Finally, Lowel-Light argues that "a levy on the property of a judgment debtor ordinarily ... gives the execution creditor a lien thereon which is a vested right." 33 C.J.S. Executions § 123 (1942) (emphasis added). Although Super Hoof was the source of the funds which were deposited in the Escrow Account, those funds were not the "property" of Super Hoof once deposited in the Escrow Account. The Escrow Account was not in the name of Super Hoof, but in the name of Princi and Clark. The funds were being held pursuant to Court Order for the benefit of the plaintiffs in the Shareholder Litigation. Super Hoof was unable to use those funds for any purpose prior to the resolution of the Shareholder Litigation. Thus, the funds in the Escrow Account were not "property" of Super Hoof subject to attachment.
Despite all its efforts, Lowel-Light has been unable to establish any legal duty owed by the Bank to it.
Accordingly, both Lowel-Light's negligence claim and its claim for breach of fiduciary duty which likewise necessarily founders in the absence of any duty owed by the Bank to it fail.
Further analysis, however, is required with respect to the Chapter 93A claim since that claim need only arise within the penumbra of a recognized common law duty. Dahlborg v. Middleborough Trust Co., 16 Mass.App.Ct. 481, 486, 452 N.E.2d 281 (1983). Here, however, since the Bank had no duty to act upon a writ of execution which was ineffective to attach the Escrow funds, the Bank has not engaged in any unfair act or practice by not disclosing the existence of Super Hoof's interest in the Escrow Account.
CONCLUSION
Since there are no genuine issues of material fact in dispute, Lowel-Light's motion for summary judgment fails and summary judgment must, and hereby does, enter for the FDIC on all counts.
NOTES
[1] This Court denies the FDIC's motion to strike the Butler affidavit, Docket No. 15, filed September 23, 1991.
[2] The Massachusetts Rules of Civil Procedure are properly cited as "Mass.R.Civ.P." See Mass. R.Civ.P. 85.
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364 N.W.2d 860 (1985)
STATE of Minnesota, ex rel. Pamela J. PULA, Appellant,
v.
Mark BEEHLER, Respondent.
No. C6-84-1484.
Court of Appeals of Minnesota.
March 26, 1985.
Review Denied June 4, 1985.
*861 Alan R. Felix, Asst. Co. Atty., Bemidji, for appellant.
James W. Haskell, Bemidji, for respondent.
Heard, considered and decided by POPOVICH, C.J., and NIERENGARTEN and RANDALL, JJ.
OPINION
NIERENGARTEN, Judge.
The State of Minnesota commenced a paternity action against respondent Mark Beehler alleging that Beehler was the father of Pamela Pula's child. A jury returned a special verdict for Beehler. The trial court denied Pula's motion for judgment notwithstanding the verdict and, alternatively, for a new trial. We affirm.
FACTS
On July 23, 1981, appellant Pamela Pula, then age 17, and respondent Mark Beehler then 15 years old, engaged in their sole act of sexual intercourse. No birth control devices were used. According to Pula, her last menstrual period was July 11. On April 19, 1982, Pula gave birth to Matthew. There was testimony by Mark's mother that the parties have the same great, great grandmother to which there was no objection or cross-examination.
ISSUES
1. Was the evidence so overwhelmingly in favor of Pula so as to warrant the granting of a judgment notwithstanding the verdict?
2. Was the evidence of a common great, great grandmother surprise evidence which would warrant the granting of a new trial?
3. Was the medical evidence produced by Pula after the trial, material evidence, newly discovered, that would warrant the granting of a new trial?
4. Did the trial court commit prejudicial error in allowing Beehler's counsel to question Pula about her sexual affairs during a time period broader than the critical period of conception?
5. Was it improper, prejudicial error for Beehler's counsel to question and make comment about Pula's general reputation for chastity?
*862 6. Was the special verdict so contrary to the greater weight of the evidence so as to warrant the granting of a new trial?
ANALYSIS
I
Pula argues the trial court erred in denying her motion for a judgment notwithstanding the verdict. An order denying a motion for judgment notwithstanding the verdict is a non-appealable order.
II
Pula contends the trial court should have granted a new trial because evidence of a common blood relationship between the parties (a great, great grandmother) was surprising and, therefore, requires a new trial.
While it is true a new trial may be granted for "[a]ccident or surprise which could not have been prevented by ordinary prudence." Minn.R.Civ.P. 59.01(3), Pula made no motion for a continuance and made no claim of surprise at trial. "Having failed to object properly at trial, plaintiffs may not enlarge their objection for the first time upon a motion for a new trial, or upon appeal, and thus have waived any claim of error." Poppler v. O'Connor, 306 Minn. 539, 541 n. 1, 235 N.W.2d 617, 619 n. 1 (1975) (citations omitted).
III
Pula next argues the trial court should have granted a new trial because of newly discovered evidence regarding the impact of a common ancestor on the reliability of Beehler's blood test results. This evidence was in the form of medical literature and a War Memorial Blood Bank opinion allegedly refuting any claim that the existence of a common great, great grandmother casts doubt on the validity and reliability of Mark's blood test results. At the time the evidence regarding the common ancestor was introduced, counsel for Pula made no objection nor did he move for a continuance in order to refute the evidence.
A new trial may be granted on the basis of "[m]aterial evidence, newly discovered, which with reasonable diligence could not have been found and produced at the trial." Minn.R.Civ.P. 59.01(4); see Maras v. Stilinovich, 268 N.W.2d 541, 545 (Minn.1978). Granting a new trial on this ground is largely addressed to the discretion of the trial court. Hertz v. Hertz, 304 Minn. 144, 146, 229 N.W.2d 42, 44 (1975). "Also, the evidence must be such as will likely affect the outcome of the case." Swanson v. Williams, 303 Minn. 433, 436, 228 N.W.2d 860, 862 (1975).
Pula has not met her burden of showing that the evidence could not have been found and produced at trial. Moreover, it has not been shown that this evidence would have a material affect on the outcome of the case. Notwithstanding the evidence of a common ancestor, the jury's verdict is supported by substantial evidence.
IV
Next Pula argues it was prejudicial error to allow Beehler's counsel to inquire into Pula's sexual affairs during a period of three months before and after July 23, 1981.
Pula testified she had no sexual relationships within that 6 month period. Mark testified she had told him she had intercourse with another person a short time prior to the act of intercourse with him. Prejudice hasn't been shown. A three month period before and after the alleged sexual act is not too remote. Compare County of Ramsey v. S.M.F., 298 N.W.2d 40, 42 (Minn.1980) (interrogatories asking for information regarding sexual activity over a 5-year period were too broad).
V
Pula argues it was prejudicial for Beehler's counsel to question and comment about Pula's general reputation for chastity. Counsel for Pula never objected to this line of questioning and, therefore, effectively waived any right to raise this issue on appeal.
*863 Ordinarily, expression of satisfaction with the charge by counsel and failure to call the court's attention to errors before the jury retires would suggest that errors complained of were not deemed to be prejudicial by counsel at the time.
Jurgensen v. Schirmer Transportation Co., 242 Minn. 157, 166, 64 N.W.2d 530, 536 (1954) (quoting Eilola v. Oliver Iron Mining Co., 201 Minn. 77, 80, 275 N.W. 408, 409 (1937)).
VI
Lastly, Pula argues that the trial court should have granted a new trial because the verdict was not justified by the evidence. Minn.R.Civ.P. 59.01(7). The test for granting a new trial is as follows:
A new trial should not be granted unless the verdict is so contrary to the preponderance of the evidence as to imply that the jury failed to consider all the evidence or acted under some mistake or from some improper motive, bias, feeling or caprice, instead of honestly and dispassionately exercising its judgment.
LaValle v. Aqualand Pool Co., 257 N.W.2d 324, 328 (Minn.1977).
Mark's testimony of Pula's admission of their sexual conduct and of her sexual intercourse not long before July 23, 1981, if considered to be credible, is sufficient to support the jury's verdict. As Justice Mitchell once stated:
[I]f [the mother] had exposed herself to the embraces of other men at or about the time she became pregnant, she had placed it out of her power, or that of the jury, to say who was the father of the child.
State v. Allrick, 61 Minn. 415, 418, 63 N.W. 1085, 1086 (1895).
The blood test only established that Beehler could have been the father, not that he was, in fact, the father. This type of test is only one factor to be considered and weighed by the jury. The results of the test were submitted in written form, and there was no expert testimony regarding its accuracy or even whether proper procedures were followed in the administration of the test.
Moreover, medical evidence introduced at trial showed that conception occurred more than two weeks before the one act of intercourse between the parties. An obstetric sonogram performed on January 22, 1982, showed a gestation period of approximately 28.5 weeks. This results in a date of conception of approximately July 6, 1981. Pula's medical records show that she was examined on April 16, 1982, three days before birth. At that time, the doctor estimated the pregnancy to be at 41 weeks. This sets the date of conception at approximately July 3, 1981, some twenty days before the date on which the parties had intercourse.
DECISION
Affirmed.
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112 Ga. App. 408 (1965)
145 S.E.2d 732
BENEFIELD
v.
MALONE; and vice versa.
41517, 41518.
Court of Appeals of Georgia.
Argued September 10, 1965.
Decided September 30, 1965.
*409 Ware, Sterne & Griffin, Richard H. Johnston, for plaintiff in error.
Gambrell, Harlan, Russell & Moye, Sidney F. Wheeler, contra.
EBERHARDT, Judge.
1. The proof of loss filed by the plaintiff contained the following: "The insured hereby assigns and transfers to the company any claim or cause of action which the insured now has or may hereafter have to recover against any person or persons for damage resulting from said occurrence and loss above described. . ." As stated by the court when the case was last before it: "Without doubt the language of these paragraphs, if the `proof of loss' containing them had been accepted by the insurer, would have effectuated an assignment of the cause of action." Benefield v. Malone, 110 Ga. App. 607, 613 (139 SE2d 500).
Thus the issue before us is whether the sending of a draft by an agent of the insurer to the insured in the exact amount claimed by the insured in the proof of loss constituted an acceptance on the part of the insurer effectuating an assignment of the cause of action which was outstanding and in effect on the date this case was filed.
The issuance of the draft by the insurer, which was received and used for plaintiff's benefit did constitute an acceptance of the assignment. "An offer may contemplate acceptance by the doing of a proposed act, and in such case, if the act be performed while the offer is in life, a binding contract is effectuated, and the person making the offer must abide by its terms." Hollingsworth v. Peoples Bank, 179 Ga. 704, 710 (177 SE 743); Watson v. Atlanta Joint Stock Land Bank, 56 Ga. App. 10, 11 (192 SE 72). "Such acceptance or assent may be given by a duly authorized agent of the assignee, and may be shown by actions or conduct on the part of the assignee." 6 CJS 1124, Assignments, § 73. The presentment of a check for payment constitutes acceptance of an offer. Thompson v. Hecht, 110 Ga. App. 505, 507 (139 SE2d 126).
*410 2. Did the affidavits of Mrs. Benefield and the insurer's vice-president, together with the loan receipt by which the assignment of the cause of action was canceled, all subsequent to the filing of her suit, show the existence of a genuine issue of fact? We think not.
Neither the trial court nor this court is concerned with the credibility of the affidavits only with the matter of whether they show a genuine issue of fact to exist. General Gas Corp. v. Carn, 103 Ga. App. 542 (120 SE2d 156); Bagley v. Firestone Tire &c. Co., 104 Ga. App. 736 (123 SE2d 179); Dempsey v. Langton, 266 Mich. 450 (253 NW 210); Harris v. Fawcett Publications, Inc. (DC, NY) 176 FSupp. 390.
Whether there was an intention of the parties that the cause of action be assigned must be determined from the terms of the contract and the circumstances surrounding its execution. The contract containing the assignment (the proof of loss) is definite, plain and certain. It was in that form when the insurer accepted it and paid the sum claimed, thus completely executing the contract. It therefore evidences a clear intention to assign. Recognizing that there had been an assignment, the parties sought, for a consideration of $1.00, to cancel it after the suit was filed. Now they seek by affidavits, asserting no more than conclusions as to what their intentions were or were not, to take the position that there was never an assignment of the cause of action.
There is certainly no ambiguity in the language used in the proof of loss which Mrs. Benefield submitted to the insurance company, which the company accepted and under which it paid her claim. It is "well settled that no construction is required or even permissible when the language employed by the parties in their contract is plain, unambiguous, and capable of only one reasonable interpretation. In such an instance, the language used must be afforded its literal meaning and plain ordinary words given their usual significance, and this rule applies equally as well to insurance contracts as to any other contract." Wolverine Ins. Co. v. Jack Jordan, Inc., 213 Ga. 299, 302 (99 SE2d 95), and cases cited. "The terms of the agreement between the parties being unambiguous, the court did not commit error in excluding testimony of the secretary and treasurer *411 of the defendant as to what was his intention when signing the agreement with respect to a matter referred to therein." Blakely Oil &c. Co. v. Proctor & Gamble Co., 134 Ga. 139 (67 SE 389). And see Rowland v. Sumner, 201 Ga. 317 (2) (39 SE2d 655). Thus the assertions in these affidavits that there was no intention to assign the cause of action, being at complete variance with the plain, unambiguous language of the contract, would not be admissible on a trial of the case. Affidavits in support of or in opposition to motions for summary judgment must "set forth such facts as would be admissible in evidence" on the trial of the case. Code Ann. § 110-1205. Since these are mere conclusions and would not be admissible they can and do raise no issue of fact. Varnadoe v. State Farm &c. Ins. Co., 112 Ga. App. 366. And see Planters Rural Telephone Co-op v. Chance, 108 Ga. App. 146 (132 SE2d 90); Studstill v. Aetna Cas. &c. Co., 101 Ga. App. 766 (115 SE2d 374).
The only issue before the court being that of whether there was an assignment of plaintiff's cause of action outstanding at the time her suit was filed, the court correctly concluded that there was, and the granting of the summary judgment was proper.
Mrs. Malone has submitted no argument or brief of authorities in support of her cross bill of exceptions and it is deemed abandoned.
Judgment affirmed on the main bill of exceptions; cross-bill dismissed. Nichols, P. J., and Pannell, J., concur.
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746 F.Supp.2d 325 (2010)
POWERCOMM, LLC, Plaintiff
v.
HOLYOKE GAS & ELECTRIC DEPT., et al., Defendants.
C.A. No. 09-cv-30109-MAP.
United States District Court, D. Massachusetts.
October 19, 2010.
*327 Geoffrey M. Bohn, Robert A. Battey, Bohn & Kouretas, PLC, Arlington, VA, Steven S. Albro, Jr., Attorney at Law, Warwick, RI, for Plaintiff.
John J. Ferriter, Ferriter & Ferriter LLC, Holyoke, MA, for Defendants.
MEMORANDUM AND ORDER REGARDING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT, DEFENDANTS' MOTION TO STRIKE EXPERT REPORT, PLAINTIFF'S MOTION TO COMPEL, PLAINTIFF'S MOTION TO STRIKE DEFENSE EXPERTS' REPORTS AND TESTIMONY, AND PLAINTIFF'S MOTION TO FILE SUPPLEMENTAL EXPERT REPORTS (Dkt. Nos. 27, 28, 38, 40, 45)
PONSOR, District Judge.
I. INTRODUCTION
Plaintiff filed this eight-count complaint against Defendants, who include Holyoke *328 Gas & Electric Department ("HG & E") and five employees of HG & E: James M. Lavelle, General Manager; Brian C. Beauregard, Superintendent of Electric Division; Jeffrey Brouillard, Electric Distribution Engineer; Michael Costello, General Foreman; and Charles L. Martel, Facilities and Environmental Health and Safety Coordinator. The complaint alleges violation of 42 U.S.C. § 1981 (Counts I-III), violation of 42 U.S.C. § 1983 (Counts IV and V), violation of Mass. Gen. Laws ch. 12, § 11I (Count VI), violation of 42 U.S.C. § 1985(3) (Count VII), and violation of Mass. Gen. Laws ch. 93A (Count VIII).[1] Defendants now seek summary judgment on all counts.
II. FACTUAL BACKGROUND
Under the familiar summary judgment standard, the facts are recited in the light most favorable to the non-moving party, with all reasonable inferences drawn in that party's favor. Klaucke v. Daly, 595 F.3d 20, 24 (1st Cir.2010).
A. The Parties.
Plaintiff is a Virginia-based, family-owned electrical business that has been doing work in Holyoke since 1997. Plaintiff is not certified as a minority business, and over fifty percent of its employees are Caucasian. (Kwasnik Dep., Ex. 7, 197:19-20.) Plaintiff is owned by Olga Bruce[2] ("Bruce") and her son David Kwasnik ("Kwasnik"). Bruce, who is of Puerto Rican descent, lived in Holyoke from 1952 to 2002, when she moved to Virginia. Bruce was an HG & E commissioner for a number of years, including 1990 when her photograph appeared in HG & E's annual report.[3] (Ex. A.) Kwasnik lived in Holyoke until 2000 when he moved to Virginia. Kwasnik and his twin brother Alan, who works for HG & E, are Hispanic Americans.
HG & E is a municipally owned utility. Three commissioners, appointed by the Mayor of Holyoke, select which contracts the utility awards. Pursuant to Mass. Gen. Laws ch. 30, § 39M, HG & E must award a contract to the "lowest responsible and eligible bidder."
B. The Parties' Contract History.
Plaintiff first worked with HG & E in 1997 for a short time. In the early 2000s, in response to a request for bids, Bruce sent a letter to HG & E in which she referred to Plaintiff as "one of the only minority-women held" utility companies in America. (Ex. D.) In 2002, Plaintiff was awarded the first of what would be four annual electrical line contracts from HG & E. For the next five years, HG & E either awarded Plaintiff the annual electrical line contract or extended the contract into the following year without a formal bidding process, with the result that Plaintiff and HG & E worked together continuously from 2002 until August, 2007.
During this time, in 2003, at the request of Bruce, Alan Kwasnik provided Defendant Beauregard with a brochure that hailed Plaintiff as a minority-woman-owned business whose president was Olga *329 Perez. (Ex. B; Bruce Dep., Ex. 6, 12:24-14:11.) In 2004, Kwasnik created a website and sought input from Defendants Beauregard, Costello, and Brouillard. The website identified Bruce and Kwasnik as Plaintiff's owners. (Kwasnik Dep., Ex. 3, 23:6-16.)
C. Personnel Issues and Alleged Racial Animus.
In 2004, issues arose between Plaintiff and HG & E regarding the productivity and qualifications of certain laborers, including Kwasnik's Hispanic uncles, Gerardo (Jerry) Perez and Altagege Perez, and the accuracy of Plaintiff's Daily Reports, which were submitted for billing purposes. At some point in 2004, Kwasnik and Costello had a "heated conversation" in which Costello complained about the productivity of four laborers, two of whom were Caucasian and two of whom were Jerry and Altagege Perez. (Kwasnik Dep., Ex. 7, 31:1-33:1.) Kwasnik stated that when he questioned whether Costello's animosity toward his uncles was based on their race, Costello answered, "It is what it is." (Kwasnik Dep., Ex. 7, 34:5.)
Memoranda from Beauregard to Plaintiff during this time, as well as internal HG & E memoranda, demonstrate Beauregard's specific concerns that Plaintiff was overcharging for the work of unlicensed laborers and documenting certain laborers as working when, in fact, they were not actually on site. (Ex. 31, 32.) In an October 13, 2004, e-mail, Costello informed Beauregard that Jerry Perez's productivity had improved and that he was "functioning adequately as a Laborer." (Ex. 33.) Nevertheless, on November 1, 2004, Beauregard sent a memo to Kwasnik with a list of concerns, primarily "the high number of laborers and/or non-qualified linemen" working on the project, and requesting copies of all certificates and licenses for the workers on Plaintiff's crew. (Ex. 34.)
Altagege Perez has submitted a declaration stating, without specifics, that he heard both Costello and Brouillard make disparaging comments about Puerto Ricans when he worked for Plaintiff at HG & E job sites from 2004 through 2007. (Perez Decl., Ex. BL.) According to Michael Sharp, a former foreman for Plaintiff, in early 2007 Costello referred to Kwasnik as a "Puerto Rican gangbanger" and told Sharp to warn Kwasnik that he did not want to see him at any HG & E job sites and that "if he did see Mr. Kwasnik he would make it more difficult for Power-Comm to provide services and may even terminate PowerComm's contract with HG & E." (Sharp Decl., Ex. BK, ¶¶ 10-11.) Sharp stated that after hearing this, Kwasnik went to the job sites with less frequency. (Id. at ¶ 13.)[4]
D. 2007 Accident.
On June 21, 2007a period covered by the 2006 contract, which ran from August 27, 2006, through August 25, 2007an employee of Plaintiff was electrocuted while working at an HG & E site and suffered severe non-fatal burns. (Ex. 22.) On the day of the accident, Plaintiff had two employees working for HG & E, the lineman who was injured and his supervisor. (Kwasnik Dep., Ex. 7, 115:18-24.) As per standard procedure, HG & E instituted a work stoppage, or "stand-down," and locked HG & E's trailer that Plaintiff had been using as an office. (Id. at 95:12-15.) Defendants informed Plaintiff that it could do no work while the stand-down was in effect. (Martel Dep., Ex. 13, 91:8-12; 119:11-14; Lavelle Dep., Ex. 8, 32:14-18.)
*330 In the period following the electrocution, the Occupational Safety and Health Administration ("OSHA") commenced an investigation, which is standard procedure, and Defendants hired Proteus Engineering to conduct an independent investigation. This was the first time that HG & E had hired a private investigator following an accident. (Martel Dep., Ex. 13, 93:4-16.)
OSHA issued its report and citation on July 11, 2007, which included a fine to Plaintiff of $1500.00, and Proteus Engineering issued its report on September 24, 2007. In mid-September, Plaintiff for the first time requested and was granted access to its equipment and trailer. (Kwasnik Dep., Ex. 7: 95:22-96:2.) Although Plaintiff did not receive any communication from HG & E that the 2006 contract ended, the contract expired on August 25, 2007, by its terms. (Id. at 112:18-22.) The stand-down ended on this date as well. (Lavelle Dep., Ex. 8, 37:1-24.)
E. 2007 Contract.
On August 17, 2007, HG & E invited fourteen potential bidders, including Plaintiff, to submit bids for the 2007 electrical line contract for the period of September 2, 2007, through August 30, 2008 ("2007 contract"). Once the bids were in, HG & E Purchasing Coordinator Yocelyn Delgado[5] vetted them to ensure that the bidding contractors were qualified. (Lavelle Dep., Ex. 8, 18:13-19:1.) Delgado may seek input from relevant departments at HG & E in making this determination but does not recall whether she did so regarding the 2007 contract. (Id. at 20:1-3; Delgado Dep., Ex. BY, 107:7-18.) For the 2007 contract, Delgado determined that the bid from Mike Williams d/b/a Williams Construction ("Willco") was nineteen percent lower than the next lowest bid, that from Plaintiff.[6] (Ex. 42.) On August 21, 2007, Delgado sent a memorandum to Lavelle recommending that the primary contract be awarded to Willco as "the lowest responsible and eligible bidder on all labor rates," with the secondary contract to Plaintiff.[7] (Ex. 41.) The HG & E Commission accepted the recommendation on August 29, 2007. (Id.)
Massachusetts' competitive bidding statute mandates that within ten days of notification of a contract award, a contractor obtain a bond to secure payment for labor, materials, and other charges pursuant to Mass. Gen. Laws ch. 149, § 29. Mass. Gen. Laws ch. 30, § 39M(c). Willco was unable to provide the requisite bond but offered in its place an irrevocable letter of credit. The record does not specify on what date Willco made this offer. However, on October 30, 2007, two months after the Commission had accepted the recommendation to award the contract to Willco, Delgado called Patrick Flaherty in the Bid Protest Unit of the Attorney General's office to inquire whether such a letter satisfied the statute. (Delgado Dep., Ex. BY, 42:23-24.) Flaherty informed Delgado that the letter would suffice. (Id.) Delgado's conversation with Flaherty was limited solely to the issue of the letter of credit *331 and did not concern the ten-day limitation period of the statute.
On November 9, 2007, Delgado sent a letter to Flaherty to confirm their conversation and to inform him that she would be relying on his advice in accepting the irrevocable letter of credit. (Ex. 51.) Upon receiving this letter, Flaherty called Delgado and informed her that, on further review, his initial advice was incorrect and that a letter of credit would not satisfy the statute's bond requirement. (Delgado Dep., Ex. BY, 160:5-8.)
In the meantime, Plaintiff was offered and refused the award of the secondary contract. The earliest documentation of this refusal is October 31, 2007, in a letter from Delgado to Plaintiff's attorney, which references several earlier telephone conversations in which Plaintiff's counsel indicated that Plaintiff would not sign the secondary contract.[8] (Ex. 49.)
On December 31, 2007, Delgado sent a memorandum to James Lavelle, informing him that Willco was unable to provide the required bond and recommending that HG & E rebid the project. The Commissioners accepted this recommendation on January 9, 2008. On February 19, 2008, HG & E opened the bidding for what would become the 2008 contract. (Ex. 56). On this same date, Plaintiff's attorney sent a letter to Lavelle to inform him that Plaintiff was declining to bid because it was filing suit against HG & E for discrimination and breach of contract. (Ex. 57.) Plaintiff never approached the Commission or contacted the Attorney General to protest the bidding process. (Dkt. 30, ¶ 46.)
III. DISCUSSION
A. Legal Standard
Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R.Civ.P. 56. The moving party bears the initial burden of demonstrating the absence of genuine issues of material fact. The burden then shifts to the opposing party who must demonstrate that a reasonable jury could return a verdict in its favor based on the evidence. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
B. Violation of 42 U.S.C. § 1981 (Counts I-III).
Plaintiff alleges that Defendants violated 42 U.S.C. § 1981 by prematurely terminating the 2006 contract, failing to accept Plaintiff's bid on the 2007 contract, and creating a hostile work environment, all on the basis of racial animus.[9]
*332 Section 1981 prohibits racial discrimination between contracting parties. To state a claim under § 1981, "a plaintiff must show (1) that he is a member of a racial minority, (2) that the defendant discriminated against him on the basis of his race, and (3) that the discrimination implicated one or more of the activities enumerated in the statute." Garrett v. Tandy Corp., 295 F.3d 94, 98 (1st Cir.2002). Those activities include "the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship." 42 U.S.C. § 1981(b). Defendants do not dispute that Bruce and Kwasnik are Hispanic or that the conduct in question falls within the activities protected by the statute. The dispute concerns only whether the evidence, viewed in Plaintiff's favor, would support a jury's conclusion that Defendants discriminated against Plaintiff on the basis of Bruce and Kwasnik's race.[10]
1. Termination of 2006 Contract.
Plaintiff alleges that Defendants' conduct following the 2007 accident was rooted in racial animus. Specifically, Plaintiff contends that the institution of the unusually long stand-down and the retention of the private investigator were adverse employment actions because they resulted in premature termination of the 2006 contract.[11] Although Plaintiff has identified no direct evidence of race-based discrimination, by pointing to indirect evidence, Plaintiff has established a prima facie case of discrimination. Straughn v. Delta Air Lines, Inc., 250 F.3d 23, 33 (1st Cir.2001) (where plaintiff provides no direct evidence of discrimination, prima facie case requires a plaintiff to show membership in a protected class; adverse employment action; qualification for the employment held, and the fact that the position remained open or was filled by a person with similar qualifications). See Douglas v. J.C. Penney Co., 474 F.3d 10, 14 (1st Cir.2007) ("[T]he burden for establishing a prima facie case is not onerous"). Defendants now must provide "`a legitimate, non-discriminatory reason for its adverse employment action.'" Douglas, 474 F.3d at 14 (quoting McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)).
It is undisputed that the general purpose of a stand-down is to provide a contractor time to institute measures to prevent the occurrence of a similar accident. (Martel Dep., Ex. 13, 114: 5-8; 94: 22-24.) Stand-downs can last for various *333 lengths of time. For example, when an accident occurred while a corporation named Asplundh was under contract with HG & E for tree work, Asplundh instituted its own stand-down and investigation, which lasted for two months. (Lavelle Dep., Ex. 8, 37:1-12; Beauregard Dep., Ex. 11, 203:19-22.)
As to the length of Plaintiff's standdown, Defendants have explained, and Plaintiff has offered no evidence to the contrary, that Proteus Engineering did not submit its investigative report with suggestions for preventive measures until after the 2006 contract expired. (Beauregard Dep., Ex. 11, 167: 18-22.) Moreover, Defendants assert that on the date of the accident, Plaintiff was in the process of concluding its work, and no further work was scheduled under the contract. (Beauregard Dep., Ex. 11, 202:21-203:3.) Again, Plaintiff has offered no evidence to the contrary.
As to the hiring of the private investigator, Defendants admit that they had not independently investigated other accidents. However, Beauregard stated that he hired an independent investigator because HG & E has "similarly situated personnel" who do similar work. (Beauregard Dep., Ex. 11, 204:16-205:3.) Because the 2007 accident was directly related to work that Defendants did themselves, namely working on electrical lines, Defendants had a particular interest in conducting their own investigation to prevent further such accidents. Defendants note that the other stand-downs cited by Plaintiff occurred after accidents involving independent contractors doing demolition or tree work, which is work that Defendants never do themselves. Accordingly, Defendants had no need to investigate how to prevent such accidents. (Id.)
"Pretext may be established `by showing weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons.'" Straughn, 250 F.3d at 41 (quoting Santiago-Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46, 56 (1st Cir.2000)). Plaintiff has not offered an iota of supporting evidence to support its allegation that Defendants' post-accident conduct was racially motivated. Under these circumstances, no reasonable jury could find that the 2006 contract was terminated early, that its termination was due to racial animus, or that Defendants discriminated against Plaintiff in any way.
2. Failure to award 2007 contract to Plaintiff.
As noted, Plaintiff also alleges that Defendants' failure to award Plaintiff the 2007 electrical line contract was a discriminatory act. Specifically, Plaintiff argues that Defendants allowed Willco extra time to provide the requisite bond because of their racial animus toward Plaintiff. Defendants state that their fiduciary duty to their ratepayers required them to give additional time to Willco to provide the bond because of the discrepancy between Willco's bid and Plaintiff's bid, a very significant savings of nineteen percent. (Beauregard Dep., Ex. BT, 173:3-10.)
Plaintiff's argument fails on many levels. As a threshold matter, while there is no question that "compliance with the competitive bidding statute" includes payment of a bid deposit, J. D'Amico, Inc. v. Worcester, 19 Mass.App.Ct. 112, 472 N.E.2d 665, 667 (1984), Plaintiff has identified no case law, nor has this court found any, that suggests that an extension of the ten-day payment period prescribed by Mass. Gen. Laws ch. 30, § 39M(c), is impermissible.[12]
*334 Moreover, as to establishing a prima facie case of discrimination, Plaintiff has identified no "`adverse employment action.'" Straughn, 250 F.3d at 33. HG & E retracted Willco's contract offer once it was clear that he was unable to provide the bond. By this point, Plaintiff had refused HG & E's offer of the secondary contract and had withdrawn its bid. Thus, the action that adversely impacted Plaintiff was Plaintiff's own removal of itself from the bidding process.
Finally, even if HG & E's extension of time was improper, the only race-based evidence that Plaintiff offers concerning the 2007 contract is that Plaintiff is a minority-owned company and Willco's owner is Caucasian. The record is entirely devoid of evidence that HG & E's conduct was intentionally discriminatory. See Goodman v. Bowdoin College, 380 F.3d 33, 43 (1st Cir.2004) (plaintiff must show that defendant discriminated on the basis of race, the discrimination was intentional, and the discrimination was a substantial factor in the defendant's actions).
3. Hostile Work Environment.
Plaintiff's claim that it was subjected to a hostile work environment fails because, even assuming the veracity of all of Plaintiff's allegations of race-based conduct, the harassment was insufficiently "severe and pervasive" to rise to an actionable level. Douglas, 474 F.3d at 15.[13]
While there is no required number of incidents for a successful hostile work environment claim, "a plaintiff must show `more than a few isolated incidents of racial enmity.'" Danco, Inc. v. Wal-Mart Stores, Inc., 178 F.3d 8, 16 (1st Cir.1999) (quoting Snell v. Suffolk County, 782 F.2d 1094, 1103 (2d Cir.1986)). Here, Plaintiff has identified a handful of mainly non-specific comments made by Costello or Brouillard between 2004 and 2007.[14] Bruce, who was never on site at HG & E, never heard any comments directly,[15] and Kwasnik's list of disparaging remarks includes only two that were made in his presence, neither of which was directed at him.[16] Altagege Perez is the primary reporter *335 of the disparaging comments, yet Plaintiff has not alleged that the comments interfered with his work performance or that he found the workplace to be intimidating or hostile. See Danco, Inc., 178 F.3d at 16 (Plaintiff must show "that the conduct had the purpose or effect of interfering with the plaintiff's work performance or created an intimidating, hostile or offensive working environment.").
In fact, Plaintiff has alleged that only one comment interfered with the work performance of an employee, namely that the comment reported to Kwasnik by Michael Sharp that Costello disliked Puerto Ricans caused Kwasnik to stay away from work sites. Kwasnik stated that he and Plaintiff were both adversely impacted because they each could have benefitted financially if he had been on-site employed as a lineman. (Kwasnik Decl., Ex. BN, ¶ 17.) Without minimizing the offensiveness of Costello's alleged isolated comment, standing alone it "does not provide a sufficient basis from which a reasonable fact finder could conclude that [Plaintiff] was subjected to a hostile work environment." Pomales v. Celulares Telefonica, Inc., 447 F.3d 79, 83 (1st Cir.2006). This is particularly true given that Kwasnik never heard the disparaging statement himself and that he testified that also during this time he used to "chit-chat" and have "friendly conversations" with Beauregard, Costello, and Brouillard. (Kwasnik Dep., Ex. 7, 25:20-26:8.)
For the foregoing reasons, the court will allow Defendants' Motion for Summary Judgment as to Plaintiff's claim of violation of 42 U.S.C. § 1981 (Counts I-III).
C. Violation of 42 U.S.C. § 1983 (Counts IV and V).
Plaintiff's claims of equal protection and due process violations under 42 U.S.C. § 1983 fail because they implicate no final policymakers. "`Section 1983 supplies a private right of action against a person who, under color of state law, deprives another of rights secured by the Constitution or by federal law.'" Redondo-Borges v. United States HUD, 421 F.3d 1, 9 (1st Cir.2005) (quoting Evans v. Avery, 100 F.3d 1033, 1036 (1st Cir.1996)). HG & E is a municipal department of the City of Holyoke.[17] Section 1983 liability can attach to a municipality when "a deliberate choice to follow a course of action is made from among various alternatives by the official or officials responsible for establishing final policy with respect to the subject matter in question." Wilson v. City of Boston, 421 F.3d 45, 59 (1st Cir.2005).
Plaintiff's sole allegation concerns Lavelle, whom Plaintiff argues "was the final policy maker for HG & E in recommending electrical line contractors" and, in this capacity, established a policy "to prevent HG & E from contracting with minority contractors." (Dkt. 35, Pl. Opp'n. to Defs'. Motion for Summ. J., 9.) Lavelle, however, was not in a position to establish final policy because his recommendations could not become final without approval from the commissioners of HG & E, the final decision makers.[18] (See, e.g., Ex. 41, *336 Bid Recommendation dated August 21, 2007, from Delgado to Lavelle, stamped as approved by the Commission on August 29; Ex. 50, Memorandum from Delgado to Lavelle, stating "On August 28, 2007, the Commission voted the award of a Secondary Contract to PowerComm, LLC. . . . PowerComm, LLC. has declined to sign the Secondary contract with the Department, therefore, it is recommended that the Commission withdraw the award.")[19]
Accordingly, as Plaintiff has neither alleged nor provided any evidence that the commissioners violated Plaintiff's equal protection and due process rights under 42 U.S.C. § 1983, this court will allow Defendants' Motion for Summary Judgment as to Counts IV and V.
D. Violation of Mass. Gen. Laws ch. 12, § 11I (Count VI).
The bases for Plaintiff's claim of violation of the Massachusetts Civil Rights Act ("MCRA")[20] are Costello's alleged threat that he might terminate Plaintiff's contract if Kwasnik came to the job site and Defendants' alleged threat to breach the contract if Plaintiff did not leave its equipment on HG & E's property.[21] Assuming without deciding that a threat to breach a contract if adequately supported in the record might form the basis of a cause of action under the MCRA, see Carvalho v. Town of Westport, 140 F.Supp.2d 95, 100 (D.Mass.2001), Plaintiff's claim fails to offer support that any such threats existed.
While it is true that conduct need not involve potential physical harm to violate the MCRA, Buster v. George W. Moore, Inc., 438 Mass. 635, 783 N.E.2d 399, 410 (2003), it nevertheless must be objectively threatening or coercive. Sarvis v. Boston Safe Deposit & Trust Co., 47 Mass.App.Ct. 86, 711 N.E.2d 911, 918 (1999) (quotations omitted) ("Evidence of threats, intimidation, or coercion is to be measured by an objective standard, not the state of mind of the person threatened."). Costello's supposed threat was passed on via a third party, and Costello himself was, as Plaintiff knew, without authority to terminate a contract.[22] Plaintiff elected not to go to the work site without ever verifying the substance of the supposed threat or even bringing it to the attention of Costello's supervisor.[23] Kwasnik's *337 allegation that he could have made more money had he gone to the site "falls outside the scope of what [is] recognize[d] as `threats, intimidation or coercion' required to state a claim under the Act." Willitts v. Roman Catholic Archbishop, 411 Mass. 202, 581 N.E.2d 475, 480 (1991). As to the alleged threat concerning Plaintiff's equipment, Kwasnik described the incident as follows: "I get an email from Jeff stating all work will cease unless [the digger is] here the following Monday. . . . He said that the only work that is scheduled for that particular time is for the digger derrick." (Kwasnik Dep., Ex. 7, 59:1-7.) Quite simply, this is not a threat.
A reasonable jury could not find that any of the alleged conduct constituted an actionable threat. Therefore, Defendants' Motion for Summary Judgment as to Plaintiff's claim of violation of the MCRA (Count VI) will be allowed.
E. Violation of 42 U.S.C. § 1985(3) (Count VII).
Plaintiff alleges that Defendants conspired to deprive them of their civil rights in violation of 42 U.S.C. § 1985(3). "With near unanimity, the courts have rejected complaints containing mere conclusory allegations of deprivations of constitutional rights protected under § 1985(3)." Robinson v. McCorkle, 462 F.2d 111, 113 (1st Cir.1972). A conclusory allegation is precisely what Plaintiff has provided. Although Plaintiff's opposition to the summary judgment motion includes a lengthy explication of the law, Plaintiff has failed to point to any evidence in the record, nor could this court find any, to demonstrate that the named Defendants conspired or acted in furtherance of any conspiracy. See Aulson v. Blanchard, 83 F.3d 1, 3-4 (1st Cir.1996) (citing Griffin v. Breckenridge, 403 U.S. 88, 102-03, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971)) (Plaintiff alleging conspiracy to interfere with civil rights under 42 U.S.C. § 1985(3) "must allege the existence of (1) a conspiracy, (2) a conspiratorial purpose to deprive a person . . . of the equal protection of the laws., (3) an overt act in furtherance of the conspiracy, and (4) either (a) an injury to person or property, or (b) a deprivation of a constitutionally protected right or privilege.").
Even if Plaintiff is correct in contending that a civil conspiracy claim in Massachusetts requires no evidence of agreement, see Taylor v. Am. Chemistry Council, 576 F.3d 16, 34-35 (1st Cir.2009) (identifying "concert of action" and "substantial assistance" as accepted theories of tort liability in Massachusetts), Plaintiff has advanced no argument under either theory and has pointed to no facts to support the claim. Moreover, the record lacks any evidence that Defendants acted with the requisite intention of violating Plaintiff's civil rights. See Powell v. Alexander, 391 F.3d 1, 15 (1st Cir.2004) (distinguishing between an intent to act and an intent to "effect a civil rights violation" in the context of punitive damages).
Defendants' Motion for Summary Judgment as to Plaintiff's claim of violation of 42 U.S.C. § 1985(3) (Count VII) will be allowed.
F. Violation of Mass. Gen. Laws ch. 93A (Count VIII).
Plaintiff's Mass. Gen. Laws ch. 93A, § 9 claim ("93A") is based on the alleged premature termination of the 2006 contract and Defendants' failure to award the 2007 contract to Plaintiff. Having determined that Defendants' conduct was not improper in regard to these two contracts, *338 the court will allow Defendants' Motion for Summary Judgment as to Plaintiff's 93A claim.
G. Non-Dispositive Motions
Given the court's determination that Defendants' Motion for Summary Judgment will be allowed on all counts, the remaining motions (Dkt. Nos. 27, 38, 40, & 45) will be denied as moot.
IV. CONCLUSION
For the foregoing reasons, Defendant's Motion for Summary Judgment (Dkt. No. 28) is hereby ALLOWED.[24] Defendants' Motion to Strike Expert Report (Dkt. 27), Plaintiff's Motion to Compel (Dkt. 38), Plaintiff's Motion to Strike Defense Experts' Reports and Testimony (Dkt. 40), and Plaintiff's Motion to File Supplemental Expert Reports (Dkt. 45) are hereby DENIED as moot. The clerk is ordered to enter judgment for Defendants. This case may now be closed.
It is So Ordered.
NOTES
[1] On November 20, 2008, the Massachusetts Commission Against Discrimination ("MCAD") affirmed its dismissal of Plaintiff's identical complaint for lack of probable cause.
[2] Bruce has been known throughout her career by several last names: Bruce, Perez, Bruce-Perez, and Kwasnik.
[3] It is unclear from the record when exactly Bruce served as a commissioner. Bruce stated that she was commissioner from 1980 until 1988. (Bruce Dep., Ex. 6, 6:4-7.) However, her photograph is in the 1990 brochure.
[4] During oral argument, Plaintiff's counsel proffered that in 2004, Defendant expelled all its Hispanic workers. The record does not support this claim.
[5] Yocelyn Delgado changed her name from Yocelyn Figueroa at some point during this litigation. She is referred to by both names in the record but only by Delgado in this memorandum.
[6] Because Willco's bid is not included in its entirety in the record, the court has relied on Defendants' internal memoranda comparing the bids for the 2007 contract as well as on David Kwasnik's testimony that Plaintiff's bid was the second lowest. (Kwasnik Dep., Ex. 3, 126:21-24.)
[7] If the primary contract holder is unable to perform, the contract is automatically awarded to the secondary contract holder without requiring a solicitation of new bids.
[8] Further evidence of discussions regarding the award to Plaintiff of a secondary contract is an October 19, 2007, telephone message, the transcription of which is in the record. In this message, Beauregard encouraged Kwasnik not to seek return of Plaintiff's bid deposit because, without it, by statute, HG & E could not award Plaintiff the secondary contract. Beauregard stated:
we had a secondary contract that we are actually hoping that you are going to sign, and we were probably going to be using the secondary over for projects that we're going to start in about April. . . . In addition to because we don't see Williams stacking upand the other thing is if Williams for whatever reason doesn't meet performance or whatever you know, the primary contract would fall to you.
(Ex. 47.)
The message goes on to inform David about extensive projects in the near future on which HG & E hopes Plaintiff will bid and ends, "If there's any questions give me a call. Thanks Buddy." (Id.)
[9] Defendants' assertion that Plaintiff cannot bring a § 1981 claim because independent contractors are not employees is without merit. See Danco, Inc. v. Wal-Mart Stores, Inc., 178 F.3d 8, 14 (1st Cir.1999) ("Section 1981 does not limit itself, or even refer, to employment contracts but embraces all contracts and therefore includes contracts by which a corporate independent contractor . . . provides service to another corporation.").
[10] Although Defendants contend that they were unaware of Bruce and Kwasnik's race or that Plaintiff is a minority-owned business, the record contains sufficient, albeit thin, evidence in the form of Plaintiff's brochure and website for a reasonable jury to find that Defendants had such knowledge.
[11] To the extent that Plaintiff alleges that Defendants breached the 2006 contract, the allegation rests on the following contract provision: "The work performed under this contract will be for the annual period between August 27, 2006, and August 25, 2007 with an option for an additional one (1) year." (Ex. J.) Plaintiff contends that Defendants breached the contract because they did not allow Plaintiff to exercise that option, yet the record contains no evidence that Plaintiff attempted to exercise the option and was rebuffed. See also Mass. Gen. Laws ch. 30B, § 12(c)(5) (2010) (Where a governmental contract includes an option to renew, the "governmental body shall retain sole discretion in exercising the option, and no exercise of an option shall be subject to agreement or acceptance by the contractor.").
[12] Delgado, who handles the bidding process for HG & E and who oversaw all of the contracts between Plaintiff and HG & E, testified that "the AG and AG's office have verbally stated that if it's in the City's best interest upon mutual agreement the contractor can have more time than what the statute says as long as it's mutually agreed upon." (Delgado Dep., Ex. BY, 45:21-46:2.) This agreement, Delgado stated, need not be formally memorialized. (Id. at 46:12-14.)
[13] To succeed on a claim of hostile work environment, a plaintiff must prove:
(1) that he is a member of a protected class; (2) that [he] was subjected to unwelcome sexual [or racial] harassment; (3) that the harassment was based upon sex [or race]; (4) that the harassment was sufficiently severe or pervasive to alter the conditions of plaintiff's employment and create an abusive work environment; (5) that sexually [or racially] objectionable conduct was both objectively and subjectively offensive, such that a reasonable person would find it hostile or abusive and the victim in fact did perceive it to be so; and (6) that some basis for employer liability has been established.
Douglas v. J.C. Penney Co., 474 F.3d 10, 15 (1st Cir.2007) (quoting O'Rourke v. City of Providence, 235 F.3d 713, 728 (1st Cir.2001)).
[14] Of the eighteen incidents listed by Plaintiff, ten are duplicates, leaving eight isolated incidents.
[15] Bruce testified that in either 2004 or 2007, her brother, Altagege Perez, overheard Costello on the phone one day making disparaging comments about Puerto Ricans. (Bruce Dep., Ex. 6, 18:15-29-16.)
[16] Kwasnik referenced disparaging comments that Costello made about Puerto Ricans but stated specifically that the remarks were "not involving PowerComm." (Kwasnik Dep., Ex. 7, 157:12-15.)
[17] Although possibly a viable argument, Defendants do not suggest that HG & E was not acting under color of state law. See Jackson v. Metropolitan Edison Co., 419 U.S. 345, 350, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974)(plaintiff must demonstrate "a sufficiently close nexus between the State and the challenged action of the regulated entity so that the action of the latter may be fairly treated as that of the State itself").
[18] Notably, Kwasnik's statements at his deposition clearly implied that he knew that Lavelle did not make the final decisions. He testified, "I really thought the commission was going to award me that primary contract. When I found that they didn't, I was taken aback to say the least." (Kwasnik Dep. Ex. 7, 169:15-170:4.)
[19] Moreover, of course, for the reasons stated in the analysis of the § 1981 claim, even if Lavelle were a final decision maker, the record is insufficient to support a claim of violation of any constitutional right.
[20] "Any person whose exercise or enjoyment of rights secured by the constitution or laws of the United States, or of rights secured by the constitution or laws of the commonwealth, has been interfered with, or attempted to be interfered with . . . may institute and prosecute in his own name and on his own behalf a civil action of injunctive and other appropriate equitable relief." Mass. Gen. Laws ch. 12, § 11I.
[21] Contrary to Defendants' argument, Plaintiff correctly observes that this court's holding in Lecrenski Bros. v. Johnson, 312 F.Supp.2d 117, 122-23 (D.Mass.2004) (notice pleading sufficient in MCRA claim), relieves it of any heightened burden in pleading.
[22] Plaintiff has offered no evidence to contradict Defendants' assertion that Costello lacks decision-making power regarding contract awards. (See Beauregard Dep., Ex. BT, 24:15-24; Costello Dep., Ex. 14, 132:11-15 ("[D]o you have any recollection of ordering PowerComm workers off HG & E property? A: No. I do not have that authority.").)
[23] Kwasnik states that he never reported any racial comments to Beauregard because he believed that Beauregard also held racial animus. (Kwasnik Dep., Ex. BP, 264:3-17.)
[24] It is worth noting that in 2003 Plaintiff brought nearly identical suits against two different defendants. PowerComm Construction, Inc. v. Boston Edison Company, No. 00-10513-JLT (D. Mass. filed March 31, 2003), and PowerComm Construction, Inc. v. RCN-BecoCom, No. 00-11869-JLT (D. Mass. filed March 31, 2003). The court allowed summary judgment on all counts, holding that the record included no facts to support Plaintiff's contention that the defendants knew they were Puerto Rican. The record included, primarily, evidence that the defendants had been given Plaintiff's marketing brochure.
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401 P.2d 995 (1965)
Robert G. COGGINS, Petitioner,
v.
Hon. Joe D. SHUMATE, District Judge, Garvin County, Oklahoma, Respondents.
No. A-13680.
Court of Criminal Appeals of Oklahoma.
May 12, 1965.
Walter D. Hart, Pauls Valley, for petitioner.
Max H. Scarce, Asst. County Atty., for respondent.
*996 NIX, Judge:
This is an original proceedings filed by the petitioner, Robert G. Coggins, for a Writ of Mandamus directed at the Honorable Joe D. Shumate, Judge of the District Court of Garvin County, Oklahoma, to dismiss cause No. 3256 pending against him. He alleges that his Constitutional guarantee of a `speedy trial' has been violated, and he is therefore entitled to release.
Petitioner was arrested on February 27, 1965, and a complaint charging him with Burglary Second Degree was filed on March 5, 1965. Preliminary hearing was held on the same day at which time Bond was set, and demand for a speedy trial was made. Petitioner was bound over to District Court, and information was filed therein on March 11, 1965, at which time he was arraigned. On March 15, 1965, defendant again demanded a speedy trial; withdrew his plea of not guilty; and presented to the District Court a Motion to Quash and Suppress Evidence. The trial court took the Motion under advisement until March 24, 1965. (A jury docket began on March 15, and was dismissed on March 24 because there were no more cases to be tried.) On that day, the trial court overruled the Motion, and petitioner re-entered his plea of Not Guilty; Bond was re-set; and petitioner again demanded a speedy trial. The County Attorney asked for a continuance, as they were not ready to go to trial immediately, stating that all of the evidence had not been accumulated. This was granted by the trial court.
On April 8, 1965, petitioner filed Motion to Dismiss in said District Court because he had been denied a speedy trial. Said Motion was overruled, from which he has filed his petition in this Court seeking relief.
Title 22, O.S.A., § 812, reads:
"If a defendant, prosecuted for a public offense, whose trial has not been postponed upon his application, is not brought to trial at the next term of court in which the indictment or information is triable after it is filed, the court must order the prosecution to be dismissed, unless good cause to the contrary be shown." (Art. 2, § 20).
This constitutional guarantee of a `speedy trial' is intended to prevent the oppression of a citizen by delaying criminal prosecution for an indefinite time and to prevent delays in administration of justice by requiring judicial tribunals to proceed with reasonable dispatch in trial of criminal prosecutions.
Generally speaking, a `speedy trial' is one conducted according to prevailing rules, regulations, and proceedings of law free from arbitrary, vexatious and oppressive delays. The right does not require a trial immediately upon arrest, or the filing of an indictment or information; but requires that the trial be had as soon as reasonably possible, within the statutory requirements, without depriving the prosecution of a reasonable time to prepare for trial.
In the instant case, less than a month had passed from the time of arrest until the *997 trial court overruled the Motion to Quash filed by the petitioner.
Inasmuch as the petitioner had withdrawn his plea of not guilty on March 15, and did not re-enter same until March 24, the cause could not have been heard on the March jury session as he was not formally arraigned until he re-entered his plea.
However, this is not the main issue, as our Statutes clearly define the terms of court in each court in the State. Title 20, O.S.A., § 95, reads:
"Two regular terms of the District Court shall be held each year in each county of this state. The time of commencing or convening these two regular terms in each county shall be on the first Monday in January and the first Monday in July in each year. Each regular term shall commence and convene by operation of law at the time herein fixed without any act, order, or formal opening by the judge or other official thereof, and shall continue and be open at all times until and including the day preceding the next regular term, on which day it shall expire and adjourn sine die by operation of law."
Petitioner was charged in the January, 1965 term of court, which has not as yet expired. The `next term of court' would be starting in July, 1965; and ending the first Monday in January, 1966.
Therefore, until this `next term of court' had passed, petitioner would not be entitled to discharge under Title 22, § 812, supra. (Or until after the first Monday in January, 1966).
This Court held in a very early case, State ex rel. Eubanks v. Cole, 4 Okl.Cr. 25, 109 P. 736:
"The `next term of court,' within the meaning of section 7047, Snyder's St., refers to and means the next regular term of the court, as distinguished from a special term held for a special purpose."
And, in Stroud v. State, 57 Okl.Cr. 273, 47 P.2d 883:
"Under the statute the next term of court means the next regular term and not special terms held for special cases."
Under the rulings of this Court, and the Statutes cited, it is the opinion of this Court that petitioner's application is not timely filed, and therefore, the Writ of Mandamus is hereby denied.
BUSSEY, P.J., and BRETT, J., concur.
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22 F.3d 113
Fed. Sec. L. Rep. P 98,183, 28 Fed.R.Serv.3d 1050
PACIFIC DUNLOP HOLDINGS, INCORPORATED, a Delawarecorporation, Plaintiff,v.Robert F. BAROSH, Francis X. Beaudette, Stanley N. Gaines,et al., Defendants-Third PartyPlaintiffs-Counterdefendants-Appellees,v.PACIFIC DUNLOP GNB CORPORATION, a Delaware corporation, andGNB Incorporated, a Delaware corporation, ThirdParty Defendants-Counterplaintiffs,Appeal of GARDNER, CARTON & DOUGLAS, attorneys for PlaintiffPacific Dunlop Holdings, Incorporated.
Nos. 93-2200, 93-2551.
United States Court of Appeals,Seventh Circuit.
Argued Jan. 3, 1994.Decided March 4, 1994.*Opinion April 25, 1994.Opinion April 25, 1994.
1
Peter J. Meyer, Gordon B. Nash, Jr. (argued), Michael J. Koenigsknecht, Daniel J. Sheridan, Deena S. Newlander, Gardner, Carton & Douglas, Chicago, IL, for Pacific Dunlop Holdings, Inc., Pacific Dunlop GNB Corp., GNB, Inc. in No. 93-2200.
2
Peter J. Meyer, Gordon B. Nash, Jr. (argued), Michael J. Koenigsknecht, Daniel J. Sheridan, Deena S. Newlander, David J. Gilmartin, Thomas More Schippers, Gardner, Carton & Douglas, Chicago, IL, for Pacific Dunlop Holdings, Inc., Pacific Dunlop GNB Corp., GNB, Inc. in No. 93-2551.
3
Laurence H. Lenz, Jr., Donald E. Egan (argued), Andrew M. Varga, Paul A. Haskins, Katten, Muchin & Zavis, Chicago, IL, for defendants-appellees.
4
Before POSNER, Chief Judge, ROVNER, Circuit Judge, and MIHM, District Judge**.
5
MIHM, District Judge.
6
This is an appeal from the district court's award of $138,015.11 in legal fees and costs to Appellees under Federal Rule of Civil Procedure 11 and 28 U.S.C. Sec. 1927. For the reasons stated below, we reverse.
I. FACTUAL BACKGROUND
7
In May 1984, the General Services Administration ("GSA") awarded GNB Batteries ("GNB") a three-year contract to supply batteries and related parts to GSA. In early 1987, GSA conducted an audit of the 1984 contract and found that GNB had failed to fully disclose to GSA the discounts GNB had offered to its commercial customers and had failed to grant GSA the equivalent discounts as required by their contract. The audit stated that GSA would conduct a further review of the 1984 contract. GNB received a copy of the GSA audit in July 1987.
8
In October 1987, Appellant Pacific Dunlop Holdings Inc. ("PDHI"), the Appellees (the "Management Shareholders"), and the other stockholders of GNB entered into a Stock Purchase Agreement and related documents in which PDHI bought stock in GNB. At the time of the transaction the Management Shareholders were the principal operating personnel of GNB Holdings, Inc., which owned GNB. In this stock transaction, PDHI was represented by the law firm of Gardner, Carton & Douglas ("Gardner, Carton").
9
Until September 1988, Defendant Arthur Richards ("Richards") was the chief operating officer of GNB's Industrial Battery Division. In January 1990, Richards learned through contacts at GNB that a federal grand jury was investigating the GSA audit. At that time, Richards no longer worked for GNB. Richards then contacted GNB's general counsel, Augustus Hipp, who confirmed the federal investigation. Hipp told Richards that Gardner, Carton was representing GNB in the investigation. Thereafter, Richards had some telephone conversations with Gardner, Carton attorneys about the status of the grand jury proceedings.
10
On January 2, 1991, PDHI, represented by Gardner, Carton, filed a lawsuit against the Management Shareholders alleging that the Management Shareholders had violated Section 10(b) of the Securities Exchange Act of 1934 and SEC Rule 10b-5, had committed fraud, and had breached representations and warranties in connection with the sale of their stock in GNB Holdings, Inc. PDHI claimed that the Management Shareholders had failed to disclose material facts, including the GSA audit of a battery supply contract and various environmental problems at GNB's facilities.
11
On May 15, 1991, the district court dismissed PDHI's fraud claims concerning the alleged environmental nondisclosures and PDHI's claim for declaratory relief. On June 28, 1991, PDHI filed an amended complaint. While Katten Muchin & Zavis, the Management Shareholders' counsel, was preparing the Management Shareholders' response to the amended complaint, it learned that Richards had spoken with Gardner, Carton during Gardner, Carton's representation of GNB in the grand jury investigation. Richards claimed that he was led to believe that Gardner, Carton was representing him because of his status as a former GNB employee. Richards also claimed that he had disclosed confidential information to Gardner, Carton regarding what he knew about the GSA audit after Gardner, Carton attorneys had assured him that no conflict of interest existed.
12
Based on Richards's claims regarding conversations with Gardner, Carton attorneys, the Management Shareholders filed a Motion to Disqualify Gardner, Carton on December 17, 1991. In their Motion to Disqualify, the Management Shareholders asserted that Gardner, Carton attorneys would likely be called as witnesses in the trial of the case; that Gardner, Carton had a conflict of interest with PDHI because it had negligently or recklessly failed to uncover the Management Shareholders' alleged fraud prior to the sale; and that Gardner, Carton had previously entered into an implied attorney-client relationship with Richards regarding the GSA contract. In support of these arguments, the Management Shareholders submitted the affidavits of Richards and two other persons involved in the stock transaction.
13
Upon receiving the Management Shareholders' Motion to Disqualify, PDHI served notices of deposition on Richards and other persons whose affidavits the Management Shareholders had filed with their Motion. Gardner, Carton also filed a motion for expedited discovery. The Motion to Expedite Discovery stated:
14
[PDHI seeks to] resolve defendants' Motion to Disqualify as soon as possible and ... to proceed with the depositions as soon as possible. Therefore, it requests that the court order discovery to be conducted on an expedited basis.
15
The district court granted PDHI's Motion to Expedite Discovery. By January 31, 1992, PDHI had completed discovery.
16
On February 4, 1992 at a status hearing, PDHI informed the district court that, based on the depositions taken of the Management Shareholders' affiants, including Richards, PDHI believed that the Management Shareholders' Motion to Disqualify failed as a matter of law. PDHI supposedly believed that Richards' affidavit and deposition testimony demonstrated that Richards had never provided confidential information to Gardner, Carton and had never sought legal advice from Gardner, Carton and therefore, as a matter of law, no attorney-client relationship existed. At this status hearing, PDHI notified the district court that it planned to file a brief arguing that the Motion to Disqualify should be denied "as a matter of law, so hopefully no further discovery will be necessary."
17
On February 7, 1992, a Katten Muchin & Zavis partner representing the Management Shareholders wrote to the lead Gardner, Carton attorney and stated that the Management Shareholders would oppose any effort by Gardner, Carton to reopen the proceedings after the district court ruled on its Motion to Disqualify.
18
On February 13, 1992, Gardner, Carton filed its opposition to the Management Shareholders' Motion to Disqualify. PDHI argued that Richards's own testimony established that an implied attorney-client relationship did not exist as a matter of law. Gardner, Carton did not submit any affidavits in opposition to the Motion to Disqualify. In its Memorandum in Opposition, PDHI stated that "[i]n the event the Court determines that it is unable to decide this motion as a matter of law, PDHI would request leave to file affidavits and other materials in opposition to the Motion to Disqualify."
19
At a status hearing on February 18, 1992, PDHI again informed the district court that PDHI was responding to the Motion to Disqualify as a matter of law. PDHI's counsel stated:
20
As we indicated last time we were before the Court, we think this could be deposed [sic] of as a matter of law. We have not submitted any factual information to the Court. We have simply taken the affidavits and the testimony of the three affiants and on that basis believe that this motion fails and that there is no discovery that is necessary or even relevant to this issue at this point in time.
21
On March 13, 1992, the Management Shareholders filed a Reply Memorandum. In a footnote of their Reply Memorandum, the Management Shareholders restated their opposition to PDHI's plan to oppose the Motion to Disqualify initially as a matter of law.
22
On March 18, 1992, PDHI filed a surreply in opposition to the Motion to Disqualify. PDHI responded to the Management Shareholders' argument that it was improper for Gardner, Carton to ask leave to file affidavits in the event the district court was unable to decide the Motion to Disqualify as a matter of law. PDHI's Surreply Memorandum stated in part:
23
On two occasions during status hearings before this Court, PDHI's counsel advised the Court that it intended to respond to the Motion to Disqualify on the basis that the evidence submitted by defendants in support of their motion was insufficient as a matter of law to warrant disqualification. On both occasions, defendants' attorneys did not object. PDHI further stated in its Memorandum in Opposition that it would request leave to file its own affidavits and evidence if the Court decides that the Motion cannot be resolved on the basis of defendants' evidence alone. PDHI so advised the Court after taking the depositions of Richards and Beaudette in the good faith belief that further discovery and multiple depositions at GCD, GNB and PDHI could be avoided as defendants had not met the appropriate legal standard.
24
On March 27, 1992, the Management Shareholders filed a Sur-surreply Memorandum. In their Sur-surreply, the Management Shareholders again objected to any attempt by PDHI to supplement the factual record after the district court ruled on PDHI's legal arguments.
25
On July 8, 1992, from the bench, the district court presented counsel for both parties with a statement of facts excerpted from its draft opinion on the Management Shareholders' Motion to Disqualify. The district court noted that PDHI's February 13, 1992 Memorandum in Opposition requested "leave to file affidavits and other material." The court then asked PDHI's counsel if there was "anything else?" PDHI's counsel again informed the court that PDHI believed the Management Shareholders' Motion to Disqualify was insufficient as a matter of law. Counsel advised the district court that if the court could not rule that the Motion was insufficient as a matter of law, PDHI would submit affidavits of Gardner, Carton attorneys. The district court then asked PDHI's counsel if affidavits of Gardner, Carton attorneys would indicate that Gardner, Carton informed Richards that it would not represent him during the grand jury proceedings. PDHI's counsel responded: "The evidence, if we are required to submit any, will absolutely, unequivocally contradict [Richards's] affidavit, which is already substantially undercut by the testimony in his deposition."
26
On July 10, 1992, the district court issued an opinion rejecting PDHI's contention that the Motion to Disqualify could be decided as a matter of law. The opinion stated:
27
[The court was] willing to provide [PDHI] and its attorneys with an opportunity to submit affidavits that respond to the affidavits submitted by the [Management Shareholders] ... If [PDHI] chooses to submit affidavits, the Court will review them and decide whether its decision to disqualify Gardner should be reconsidered.
28
The district court stated that it would suspend entry of the opinion "at least until ... July 14, 1992 ... [when PDHI] will inform the Court how it intends to proceed in this matter."
29
At a status hearing on July 14, 1992, PDHI informed the district court that it had served the affidavits of Gardner, Carton attorneys and others on the Management Shareholders. The Management Shareholders objected to the filing of the affidavits. The Management Shareholders argued that PDHI was aware of the information contained in the affidavits when the Motion to Disqualify was filed and that PDHI caused delay by not submitting the affidavits earlier. The Management Shareholders' counsel also stated:
30
That in the event that we have to take--depose these individuals and that Your Honor's ruling is not overturned, that we would be entitled to our costs and attorney's fees in pursuing discovery that we now have to take, including supplemental briefing.
The district court responded:
31
My view on the matter is this: the procedure I have allowed here is unusual, although it was something that was specifically requested by the plaintiff in their briefs. I thought--and perhaps the error was mine--that the matter could be resolved without considering these additional matters.
32
The district court added that the Management Shareholders "may" be entitled to recover the costs of discovery, even if the Motion to Disqualify was denied.
33
On January 11 and 12, 1993, the district court held an evidentiary hearing on the Motion to Disqualify. On January 29, 1993, the district court issued an opinion denying the Management Shareholders' Motion to Disqualify. In its opinion, the district court also found:
34
[Gardner, Carton's] tactical decision to defend against this [Disqualification M]otion initially on a demurrer basis caused considerable delay and expense to the Management Shareholders. It is therefore appropriate that Gardner Carton pay some of the legal fees and costs [the Management Shareholders] have incurred in connection with this [Disqualification M]otion since the issuance of the Court's July 10, 1991 [sic] opinion.
35
On February 26, 1993, the Management Shareholders filed a Bill of Fees and Costs incurred in connection with the Motion to Disqualify after the issuance of the district court's original July 10, 1992 opinion. The Management Shareholders requested $138,015.11 in fees and costs. On March 9, 1993, PDHI and Gardner, Carton responded with a memorandum opposing the bill of fees and costs.
36
On April 15, 1993, the district court issued a minute order awarding the Management Shareholders $138,015.11 in fees and costs. The minute order stated in part:
37
There was a two stage discovery process and a two state [sic] decision process and unnecessary delay, none of which would have occurred absent plaintiff's decision to proceed as it did. It is reasonable to require payment of attendant fees and costs as a condition of the plaintiff's ability to escape from the consequences of a losing tactical choice.
38
On May 21, 1993, the Management Shareholders filed a Motion for Clarification regarding the April 15, 1993, opinion and asked the district court to specify which attorney was to pay the sanction. On May 26, 1993, the district court clarified its April 15 opinion and stated that the sanction was against the law firm of Gardner, Carton under Federal Rule of Civil Procedure 11 and 28 U.S.C. Sec. 1927.
II. ANALYSIS
39
We hold that under the circumstances of this case, the district court's imposition of sanctions against the law firm of Gardner, Carton under Rule 11 and 28 U.S.C. Sec. 1927 was unwarranted.
A. Rule 11
40
We review a district court's decision to impose Rule 11 sanctions under an abuse of discretion standard. Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405, 110 S.Ct. 2447, 2461, 110 L.Ed.2d 359 (1990). However,
41
[r]eview under the abuse of discretion standard does not mean no appellate review. Rule 11 sanctions have significant impact beyond the merits of the individual case. Concerns for the effect on both an attorney's reputation and for the vigor and creativity of advocacy by other members of the bar necessarily require that we exercise less than total deference to the district court in its decision to impose Rule 11 sanctions. Mars Steel Corp. v. Continental Bank N.A., 880 F.2d 928, 936 (7th Cir.1989) (en banc) (quoting In re Ronco, Inc., 838 F.2d 212, 217-18 (7th Cir.1988))
42
We review the record to determine whether the award of sanctions is supported by the articulated reasons of the district court. In re Ronco, Inc., 838 F.2d at 218.
43
Under Rule 11, attorneys must sign pleadings, motions, or other papers. The attorney's signature certifies that the documents are well grounded in fact and in law or present a good faith argument for the extension, modification or reversal of existing law. The attorney's signature also warrants that the document is not presented for an improper purpose, such as to harass or cause unnecessary delay or needless increase in the cost of litigation. Fed.R.Civ.P. 11.
44
The district court did not find that any of Gardner, Carton's1 pleadings, motions, or other papers filed with the district court were not reasonably based in law or fact. Instead, the district court stated that "Gardner's tactical decision to defend against this motion initially on a demurrer basis has caused considerable delay and expense to the Management Shareholders." District Court Memorandum Opinion and Order of January 29, 1993, p. 10. The district court's decision to award sanctions against Gardner, Carton was based on its finding that Gardner, Carton's bifurcated procedure of defending against the Motion to Disqualify was done for the purpose of unnecessarily delaying the litigation. We disagree.
45
We determine whether a party's conduct was imposed for an improper purpose by an objective standard. Deere & Company v. Deutsche Lufthansa Aktiengesellschaft, 855 F.2d 385, 393 (7th Cir.1988); FDIC v. Tekfen Construction & Installation Co., 847 F.2d 440, 442 (7th Cir.1988) (The inquiry is one of "objective reasonableness under all the circumstances of the case."). We believe that it was objectively reasonable for Gardner, Carton to initially defend the Motion to Disqualify as a matter of law. In initially challenging the Motion to Disqualify as a matter of law, Gardner, Carton did not violate a Federal Rule of Civil Procedure, local rule, or court order. Gardner, Carton did not ignore warnings of the district court. Compare Deere & Co. v. Deutsche Lufthansa, 855 F.2d 385 (7th Cir.1988) (Rule 11 sanctions imposed when counsel ignored district court's warnings and needlessly multiplied proceedings). In fact, the district court implicitly allowed Gardner, Carton's procedure. In discussing Gardner, Carton's conduct after the fact, the district court stated:
46
The procedure I have allowed here is unusual, although it was something specifically requested by the plaintiff in their briefs. I thought--and perhaps the error was mine--that the matter could be resolved without considering these additional matters.
47
When a district judge admits that he/she may have made an error in allowing a certain procedure, attorneys should not suffer the consequences.
48
On four separate occasions before the district court awarded sanctions, Gardner, Carton expressly notified the court of its plan to initially defend against the Motion to Disqualify as a matter of law. See transcript of February 4, 1992 status hearing (pp. 2-3), PDHI's Memorandum in Opposition filed on February 13, 1992 (p. 3), transcript of February 18, 1992 status hearing (pp. 3-4), PDHI's Surreply Memorandum filed on March 18, 1992 (pp. 1-2). Rule 11 does not require courts to warn attorneys that their conduct may be sanctionable prior to imposing sanctions. However, once an attorney expressly informs the court of a proposed course of conduct which does not violate a rule of procedure, local rule, court order, or case law, and the district court does not indicate any disapproval, then it is objectively reasonable for the attorney to proceed in the manner made known to the court.
49
The district court's minute entry granting sanctions stated that it was reasonable to require Gardner, Carton to pay the Management Shareholders' fees and costs "as a condition of the plaintiff's ability to escape from the consequences of a losing tactical choice." However, the focus of Rule 11 is on conduct--not result. Mars Steel Corporation v. Continental Bank N.A., 880 F.2d 928, 933 (7th Cir.1989). Gardner, Carton should not be sanctioned because it did not prevail on its legal challenge to the Motion to Disqualify. Gardner, Carton initially responded to the Motion as a matter of law to avoid further discovery and expense. If Gardner, Carton had prevailed on its initial challenge to the Motion, numerous affidavits and depositions would not have been needed and the cost of litigation would have been reduced. Gardner, Carton should not be penalized for a course of conduct that, if successful, could have led to substantial savings of time and expense.
50
Finally, although deterrence is a "central goal" of Rule 11, sanctions were not necessary to deter similar attorney conduct in the future. Milwaukee Concrete Studios v. Fjeld Mfg. Co., 8 F.3d 441, 451 (7th Cir.1993). If a district court does not approve of a procedure made known to the court in advance, then it should say so at the time.
B. 28 U.S.C. Sec. 1927
51
Under section 1927 an attorney "who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys' fees incurred because of such conduct." 28 U.S.C. Sec. 1927. We review an award of fees under section 1927 under an abuse of discretion standard. Walter v. Fiorenzo, 840 F.2d 427, 433 (7th Cir.1988).
52
[A court may impose sanctions under section 1927 against an attorney where that attorney has] acted in an objectively unreasonable manner by engaging in a "serious and studied disregard for the orderly process of justice" ... or where a "claim [is] without a plausible legal or factual basis and lacking in justification." Id. (citations and emphasis omitted).
53
We find that section 1927 sanctions were unwarranted.
54
Gardner, Carton's conduct clearly did not rise to the level of a "serious and studied disregard for the orderly process of justice." Gardner, Carton did not disregard a rule of procedure, local rule, or court order. Gardner, Carton followed a procedure that could have saved time and expense in dealing with the Motion to Disqualify.
55
Section 1927 sanctions should only be awarded when an attorney "unreasonably and vexatiously" multiplies the proceedings. 28 U.S.C. Sec. 1927; Ross v. City of Waukegan, 5 F.3d 1084, 1089 n. 6 (7th Cir.1993); Kotsilieris v. Chalmers, 966 F.2d 1181, 1184 (7th Cir.1992). We have already concluded in our Rule 11 analysis that Gardner, Carton's course of conduct was not unreasonable. "Vexatious" conduct involves either subjective or objective bad faith. Kotsilieris, 966 F.2d at 1184. The district court did not find that Gardner, Carton acted with subjective bad faith, and we do not believe their conduct evidences a subjective bad faith attempt to delay proceedings. In addition, "we have held that the bad faith standard has an objective component, and extremely negligent conduct, like reckless and indifferent conduct, satisfies this standard." Id. at 1185. Although Gardner, Carton's procedure ultimately caused some delay, its actions do not rise to the level of reckless or extremely negligent conduct. Given the district court's implicit approval of Gardner, Carton's procedure, it is even questionable whether Gardner, Carton's conduct constitutes ordinary negligence.
56
Finally, 28 U.S.C. Sec. 1927 provides that an attorney who unreasonably and vexatiously multiplies the proceedings may be required to personally pay the excess costs, expenses, and attorneys' fees incurred because of such conduct. (Emphasis added). The legislative history of the 1980 amendment to section 1927 states that when an attorney violates Sec. 1927 and causes the other parties to incur "expenses and fees that otherwise would not have [been] incurred...," then he/she should personally satisfy the excess costs attributable to such conduct. (Emphasis added). The district court required Gardner, Carton to pay all of the costs and fees that the Management Shareholders incurred in connection with their Motion to Disqualify after the district court's July 10, 1992 opinion. We will not speculate as to what portion of the sanctions amount would have been spent even if Gardner, Carton had initially responded to the Motion to Disqualify with factual evidence, but it is highly unlikely that much of the sanctions awarded represent "excess" costs.
III. CONCLUSION
57
For the above reasons, we reverse the district court's order awarding sanctions under Federal Rule of Civil Procedure 11 and 28 U.S.C. Sec. 1927.
58
REVERSED.
*
This appeal was originally decided by an unpublished order on March 4, 1994. See Circuit Rule 53. The Court has subsequently decided to issue the decision as an opinion
**
The Honorable Michael M. Mihm, Chief District Judge from the Central District of Illinois, is sitting by designation
1
Although not relevant to our decision, at the time of the district court's decision, Rule 11 sanctions were not appropriately awarded against the law firm of Gardner, Carton. Pavelic & LeFlore v. Marvel Entertainment Group, 493 U.S. 120, 122-28, 110 S.Ct. 456, 458-60, 107 L.Ed.2d 438 (1989). However, under amended Rule 11(c) which became effective December 1, 1993, a court may impose sanctions upon a law firm
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124 F.3d 203
NOTICE: Seventh Circuit Rule 53(b)(2) states unpublished orders shall not be cited or used as precedent except to support a claim of res judicata, collateral estoppel or law of the case in any federal court within the circuit.Russell E. BOYD, Petitioner-Appellant,v.Al C. PARKE,1 Respondent-Appellee.
No. 96-1247.
United States Court of Appeals, Seventh Circuit.
Submitted June 23, 1997*Decided June 24, 1997.
Appeal from the United States District Court for the Northern District of Indiana, South Bend Division, No. 95-CV-209; Allen Sharp, Judge.
Before POSNER, Chief Judge, CUMMINGS and BAUER, Circuit Judges.
ORDER
1
Russell E. Boyd, an inmate at the Indiana State Prison, appeals the district court's order dismissing his pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254. In January 1994, a routine contraband search was conducted of Boyd's cell, which resulted in correctional officials locating a cloth knee brace that contained two metal pieces (braces) inside of it. One of the metal braces had a pattern cut into it and had also been sharpened so that it could be made into a weapon. At a disciplinary hearing, the Conduct Adjustment Board (CAB) found Boyd had violated Code B-218 of the Indiana Department of Correction Adult Disciplinary Policy Procedures (ADPP), possession of plans regarding a dangerous weapon, and sanctioned him with one year in disciplinary segregation. In the district court Boyd alleged the violation of his right to due process because he did not receive adequate notice of the violation. The district court held that the case was moot because Boyd had already served and been released from the one year of disciplinary segregation at the time he filed the habeas petition, and alternatively, that Boyd received all the constitutional protection he was entitled to receive. Boyd now appeals the district court's dismissal and we modify the judgment and affirm as modified.
2
The district court's conclusion that this case is moot because Boyd had fully served his one year in disciplinary segregation is incorrect. Boyd's petition for a writ of habeas corpus is not moot because collateral consequences from a disciplinary sanction are presumed and the burden of rebutting the presumption is on the Respondent. Sibron v. New York, 392 U.S. 40, 50-58 (1968); Bryan v. Duckworth, 88 F.3d 431, 433 (7th Cir.1996); D.S.A. v. Circuit Court Branch 1, 942 F.2d 1143, 1146 n. 3 (7th Cir.1991).
3
However, we must sua sponte raise the issue of whether the district court had jurisdiction over this case. Commercial Nat'l Bank of Chicago v. Demos, 18 F.3d 485, 487 (7th Cir.1994) ("That the parties have not contested, nor the district court considered jurisdiction does not impede our inquiry.... [W]e must consider the issue sua sponte when it appears from the record that jurisdiction is lacking."). The district court lacked jurisdiction because Boyd did not satisfy the "in custody" requirement of § 2254(a)2 since he had been released from disciplinary segregation at the time he filed his petition. D.S.A., 942 F.2d at 1146 n. 3; Carafas v. LaVallee, 391 U.S. 234, 238 (1968); Eusch v. Lee, 690 F.Supp. 773, 774 (E.D.Wis.1988) (stating that jurisdiction never properly attached in district court because the applicant was not in custody when the habeas petition was filed); compare Bryan, 88 F.3d at 432 (stating that Bryan brought his habeas action after exhausting his prison administrative remedies and while still confined in segregation ). Once a "sentence imposed for a conviction has completely expired, the collateral consequences of that conviction are not themselves sufficient to render an individual 'in custody' for the purposes of a habeas attack upon it." Maleng v. Cook, 490 U.S. 488, 492 (1989). Although these cases deal with "convictions" rather than disciplinary segregation they are sufficiently analogous. Therefore, we need not explore whether Boyd had a protected liberty interest under Sandin v. Conner, 115 S.Ct. 2293 (1995), and if so, whether he was afforded the minimum due process protection required under Wolff v. McDonnell, 418 U.S. 539, 563-72 (1974).
4
Accordingly, we MODIFY the judgment of the district court to dismiss the action for lack of jurisdiction, 28 U.S.C. § 2106, and AFFIRM the judgment as modified.
1
Boyd also named the Attorney General of Indiana as one of the respondents. This is improper, and we have dismissed him as a party. Hogan v. Hanks, 97 F.3d 189, 190 (7th Cir.1996), cert. denied, 117 S.Ct. 1439 (1997); Cruz v. Warden of Dwight Correctional Center, 907 F.2d 665, 665 n. 1 (7th Cir.1990); Rules 2(a) and (b) of the Rules Governing Section 2254 Cases in the United States District Courts
*
After an examination of the briefs and the record, we have concluded that oral argument is unnecessary, and the appeal is submitted on the briefs and the record. See Fed.R.App. P. 34(a); Cir.R. 34(f)
2
The "in custody" requirement from § 2254(a) has not been changed by the recent amendment to the habeas corpus statute enacted under the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No 104-132, 100 Stat. 1214. Therefore, this decision is not affected by the amendment
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668 S.W.2d 60 (1984)
11 Ark.App. 188
Cecil RAGSDELL and Betty Jo Ragsdell, Appellants,
v.
GAZAWAY LUMBER COMPANY, INC., and Security Bank of Paragould, Appellees.
No. CA 83-241.
Court of Appeals of Arkansas, Division II.
May 2, 1984.
R. James Lyons, Jonesboro, for appellants.
Branch and Thompson by Robert F. Thompson, Paragould, for appellees.
CLONINGER, Judge.
In this case, appellee, Gazaway Lumber Company, Inc., was granted a materialman's lien against the home of appellants, Cecil and Betty Jo Ragsdell, for an indebtedness of $7,087.44. In the same decree, appellee, Security Bank of Paragould, was granted an in rem judgment in the amount of $107,930.58 and a decree of foreclosure of its mortgage against appellants' home and other property The indebtedness owed to Security Bank of Paragould was declared *61 a first lien against the property, and Gazaway Lumber Company's lien was subject only to that of Security Bank of Paragould.
For reversal, appellants contend that there was no compliance with the requirements for a materialman's lien, and that Security Bank of Paragould's mortgage was defective. We affirm the decision of the chancellor in part and reverse in part.
We agree with the contention of appellants that the requirements for perfecting a materialman's lien were not complied with. Ark.Stat.Ann. § 51-601 (Repl. 1971) is in derogation of the common law and must be strictly construed since it provides an extraordinary remedy that is not available to every merchant. Valley Metal Works v. A.O. Smith-Inland, 264 Ark. 341, 572 S.W.2d 138 (1978).
The manager of Gazaway Lumber Company testified that he had no idea whether the materials Gazaway furnished were delivered to appellants' home. Appellant Cecil Ragsdell testified that he did not know whether any of the materials purchased from Gazaway by the absconding contractor were put into his house. The burden is on the materialman to show that the materials for which he claims a lien were used in the improvements on which the lien is sought. Eudora Lumber Co. v. Neal & Jones, 263 Ark. 40, 562 S.W.2d 294 (1978). Appellee Gazaway Lumber Company failed to offer any proof that the materials it furnished were incorporated into appellants' property, and it was clearly erroneous for the trial court to find that Gazaway had complied with the requirements for a materialman's lien. We reverse that part of the decree which holds that Gazaway Lumber Company was entitled to a materialman's lien against appellants' property. Our ruling on this issue does not foreclose any right of action which Gazaway may have against appellants for debt.
Appellants urge that Gazaway was not in compliance for a number of other reasons, but it is unnecessary to consider those contentions.
The chancellor was correct in finding that the mortgage executed by appellants to appellee, Security Bank of Paragould, was valid and that appellants had effectively waived their homestead interest in the property.
Appellants failed to abstract the mortgage instrument, but we have examined the instrument furnished by Security Bank of Paragould. The mortgage was duly executed by both Cecil Ragsdell and Betty Jo Ragsdell as grantors and both signed in all the required spaces. There is a total lack of evidence to indicate that either appellant was unaware of the consequences of the execution of the mortgage. The issue of whether appellants effectively waived their homestead rights is settled by the decision of the Arkansas Supreme Court in the case of May field v. Sehon, 205 Ark. 1142, 172 S.W.2d 914 (1943). In Mayfield, the wife's name did not appear as a grantor in the granting clause of the deed of trust. Her name was mentioned at the end of the deed and she did sign the document. However, the word homestead was not used in any place in the deed of trust. The court held that it was not essential that a wife's name appear in the granting clause nor was it essential that the word homestead be used in the deed of trust in order for one to waive his homestead exemption.
In the instant case, both the husband and wife signed as grantors, and each conveyed his title. The consideration for the conveyance was the money borrowed from the bank by appellants, and the purpose of the mortgage was to convey the whole title to the land as security for the repayment of the loan. Mayfield v. Sehon, supra.
That part of the chancellor's decree which found that Gazaway Lumber Company was entitled to a materialman's lien is reversed, and that part of the decree finding that the mortgage held by Security Bank of Paragould was valid is affirmed.
GLAZE and MAYFIELD, JJ., agree.
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May 5 2015
DA 14-0197
Case Number: DA 14-0197
IN THE SUPREME COURT OF THE STATE OF MONTANA
2015 MT 124N
JORY RUSSELL STRIZICH,
Petitioner and Appellant,
v.
STATE OF MONTANA,
Respondent and Appellee.
APPEAL FROM: District Court of the Eighth Judicial District,
In and For the County of Cascade, Cause No. ADV-13-840
Honorable Gregory G. Pinski, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Jory Russell Strizich (Self-Represented), Deer Lodge, Montana
For Appellee:
Timothy C. Fox, Montana Attorney General, C. Mark Fowler, Assistant
Attorney General, Helena, Montana
John Parker, Cascade County Attorney, Amanda Lofink, Deputy County
Attorney, Great Falls, Montana
Submitted on Briefs: April 1, 2015
Decided: May 5, 2015
Filed:
__________________________________________
Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating
Rules, this case is decided by unpublished opinion and shall not be cited and does not
serve as precedent. Its case title, cause number, and disposition shall be included in this
Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana
Reports.
¶2 The issue on appeal is whether the District Court erred when it denied Jory
Strizich’s Petition for Post Conviction Relief.
¶3 In October 2011, Jory Strizich (“Strizich”) was arrested and charged with six
misdemeanors and one count of felony theft. In April 2012, Strizich and the Cascade
County Attorney reached a plea agreement, in which Strizich agreed to plead nolo
contendere to the felony theft charge in return for the dismissal of the remaining charges.
The agreement also recommended payment of restitution to any victims. The parties
agreed to a recommendation of a three-year deferred imposition of sentence. Strizich
signed a written “Acknowledgment and Waiver of Rights” form.
¶4 The District Court conducted a change of plea hearing on April 3, 2012. District
Court Judge McKittrick inquired into Strizich’s education and literacy levels, his
voluntariness in entering the plea, and his understanding of the charges and penalties.
Great Falls Police Officer Keith Hedges testified at the hearing, providing details of the
evidence the State would present if the case proceeded to trial.
2
¶5 After Officer Hedges’ testimony, Judge McKittrick again questioned Strizich.
Judge McKittrick asked Strizich whether after hearing Officer Hedges’ testimony, he
believed there was a substantial likelihood that a jury would convict him of felony theft.
Strizich initially stated “no” and mentioned his incarceration, to which Judge McKittrick
responded that he would not accept the plea. Judge McKittrick explained to Strizich that
his incarceration had no weight on the judge’s decision to accept or deny the plea. Judge
McKittrick then asked again, whether Strizich believed there was a substantial likelihood
that he would be found guilty if the evidence was presented to a jury. Strizich stated,
“[y]es your Honor,” and agreed that it was in his best interest to plead nolo contendere.
He reiterated that his plea was made voluntarily and that he understood what the Judge
was asking him. Judge McKittrick accepted Strizich’s plea of nolo contendere to the
felony theft charge.
¶6 On May 24, 2012, the District Court held a sentencing hearing, deferred the
sentence for three years, and imposed $330.49 in restitution. In January 2013, Strizich
filed a motion to withdraw his plea, asserting it had not been entered voluntarily. The
District Court denied the motion, concluding that the plea was made knowingly and
voluntarily, and no good cause existed to support his motion to withdraw. Subsequently,
Strizich filed a petition in District Court seeking postconviction relief, in which he raised
numerous claims of ineffective assistance of counsel. The District Court rejected all
claims and dismissed the petition without a response from the State or an evidentiary
hearing.
3
¶7 “We review a district court’s denial of a petition for postconviction relief to
determine whether the court’s findings of fact are clearly erroneous and whether its
conclusions of law are correct.” Beach v. State, 2009 MT 398, ¶ 14, 353 Mont. 411, 220
P.3d 667 (citations omitted). This Court reviews “discretionary rulings in postconviction
relief proceedings, including rulings related to whether to hold an evidentiary hearing, for
an abuse of discretion.” Beach, ¶ 14 (citations omitted).
¶8 A petitioner seeking to reverse a court’s denial of a petition for postconviction
relief based on ineffective assistance of counsel bears a heavy burden. Bomar v. State,
2012 MT 163, ¶ 5, 365 Mont. 474, 285 P.3d 396 (citations omitted). The petitioner must
prove by a preponderance of the evidence that he is entitled to relief. Herman v. State,
2006 MT 7, ¶ 44, 330 Mont. 267, 127 P.3d 422. The petition for postconviction relief
must “identify all facts supporting the grounds for relief set forth in the petition and have
attached affidavits, records, or other evidence establishing the existence of those facts.”
Section 46-21-104(1)(c), MCA; State v. Finley, 2002 MT 288, ¶ 8, 312 Mont. 493, 59
P.3d 1132. Unsupported allegations are insufficient to entitle a petitioner to a hearing.
Finley, ¶ 9. A district court “may dismiss a petition for postconviction relief without
holding an evidentiary hearing if the procedural threshold set forth in § 46-21-104(1)(c),
MCA, is not satisfied.” Herman, ¶ 15.
¶9 To prevail on a claim of ineffective assistance of counsel, the defendant must
establish: “(1) that counsel’s performance was deficient, and (2) that counsel’s deficient
performance prejudiced the defense.” Whitlow v. State, 2008 MT 140, ¶ 10, 343 Mont.
90, 183 P.3d 861 (citations omitted.) Both elements must be met to succeed on a claim of
4
ineffective assistance of counsel. Whitlow, ¶ 11. The law presumes that “trial counsel’s
performance was based on sound trial strategy and falls within the broad range of
reasonable professional conduct.” Bomar, ¶ 7 (citations omitted).
¶10 A defendant who is unwilling to admit to any element of an offense may enter a
plea of nolo contendere if the defendant considers the plea in his best interest and the
court finds there is a factual basis for the plea. Section 46-12-212(2), MCA. A trial court
must determine there is “strong evidence of guilt” before accepting the plea. Commission
Comments to § 46-12-212, MCA; State v. Frazier, 2007 MT 40, ¶ 21, 336 Mont. 81, 153
P.3d 18.
a. Strong Evidence of Guilt
¶11 On appeal, Strizich challenges the District Court’s conclusion that there was no
evidence of deficient performance of defense counsel concerning the “strong evidence of
guilt” standard. Strizich asserts that Officer Hedges’ testimony proved “nothing more
than probable cause” and his attorney failed to cross-examine or call rebuttable witnesses,
whom he argues would have called into question the strength of the evidence establishing
his guilt. Additionally, Strizich faults the District Court for relying on his statements
made at the change of plea hearing, which he argues were made under “psychological
pressure” and a strong desire to be released from jail.
¶12 The District Court did not err when it concluded there was no evidence of
deficient performance by defense counsel. The evidence shows that the District Court
applied the stricter standard and that Officer Hedges’ testimony and Strizich’s statements
provided a sufficient factual basis for Strizich’s guilt.
5
¶13 At the hearing, Strizich demonstrated that he understood the nature of the charge,
the maximum penalty provided by law, and the difference between a deferred imposition
and a suspended sentence. Additionally, Strizich signed the written plea agreement, as
well as the acknowledgement and waiver of rights. The record shows that the District
Court questioned Strizich to ensure that he was voluntarily entering the plea and that he
agreed it was in his best interest to enter the plea of nolo contendere.
b. Misrepresentation by Trial Counsel
¶14 Strizich argues that his trial counsel misrepresented to him the restitution amounts
in his plea agreement, thus rendering his plea unknowing and involuntary. Specifically,
Strizich takes issue with the $45.16 of restitution imposed for the dismissed misdemeanor
theft charge. The District Court did not err when it concluded that there was no evidence
of misrepresentation or deficient performance by his attorney. The record clearly shows
that counsel objected to the restitution amount at sentencing. Moreover, the written plea
agreement, signed by Strizich, states, “The County Attorney will recommend restitution
to any victim.” (emphasis added).
c. Failure to Hold an Evidentiary Hearing or Order the State to File a Response
¶15 Strizich argues that the District Court erred when it failed to require the State to
file a responsive pleading or hold a hearing. The District Court did not abuse its
discretion. A district court is required to give notice of the petition to the county attorney
and order a responsive pleading, “[u]nless the petition and the files and records of the
case conclusively show that the petitioner is not entitled to relief.” Section
46-21-201(1)(a), MCA.
6
¶16 Here, the District Court concluded that a response and an evidentiary hearing were
not required. Strizich’s petition does not meet the threshold requirements of § 46-21-104,
MCA, and does not prove by a preponderance of the evidence that he is entitled to relief.
The petition did not set forth any facts supporting the grounds for relief requested. Kelly
v. State, 2013 MT 21, ¶ 11, 368 Mont. 309, 300 P.3d 120. The record supports the
District Court’s finding that the plea colloquy was adequate and strong evidence of guilt
was introduced at the change of plea hearing.
¶17 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of
our Internal Operating Rules, which provides for unpublished opinions. In the opinion of
the Court, the case presents a question controlled by settled law or by the clear
application of applicable standards of review.
¶18 Affirmed.
/S/ MIKE McGRATH
We Concur:
/S/ JAMES JEREMIAH SHEA
/S/ PATRICIA COTTER
/S/ BETH BAKER
/S/ JIM RICE
7
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[Cite as State v. Hartman, 2012-Ohio-874.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
VAN WERT COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 15-10-11
v.
ROBERT J. HARTMAN, OPINION
DEFENDANT-APPELLANT.
Appeal from Van Wert County Common Pleas Court
Trial Court No. CR-09-12-186
Judgment Reversed and Cause Remanded
Date of Decision: March 5, 2012
APPEARANCES:
Todd D. Wolfrum for Appellant
Peter R. Seibel for Appellee
Case No. 15-10-11
ROGERS, J.
{¶1} Defendant-Appellant, Robert Hartman (“Hartman”), appeals the
judgment of the Court of Common Pleas of Van Wert County, convicting him of
five counts of retaliation and sentencing him to twenty years in prison and to
community control. Finding that the sentence was contrary to law, we reverse the
judgment of the trial court.
{¶2} On December 17, 2009, the Van Wert County Grand Jury indicted
Hartman on six counts of retaliation in violation of R.C. 2921.05(A), felonies of
the third degree. At his arraignment, Hartman pled not guilty to the charges
contained in the indictment and a jury trial was scheduled. On August 23, 2010, a
change of plea and sentencing hearing was held. Hartman entered a guilty plea to
five counts of retaliation as contained in the indictment; the sixth count was
dismissed. The judgment entry of plea and sentence was filed September 7, 2010,
which read in pertinent part:
It is therefore [o]rdered that the Defendant is hereby sentenced
as follows:
Count I: Four years incarceration
Count II: Four years incarceration
Count III: Four years incarceration
Count IV: Four years incarceration
Count V: Four years incarceration
The sentence of four years as to Count I is imposed in the
custody of the Ohio Department of Rehabilitation and
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Case No. 15-10-11
Correction; the sentences for Counts II, III, IV, and V totaling
sixteen years are hereby [r]eserved. All sentences are to be
served consecutively for an aggregate term of incarceration of
twenty years with sixteen years being reserved.
As to the reserved sentence the Defendant did execute the
Community Control Agreement and Order and was advised
[that] a condition of his [c]ommunity control is that while he is
incarcerated * * * he shall not commit any criminal offenses and
shall have no tickets, write-ups, excluding minor infractions. * *
* The Defendant was advised that if he violated the [c]ommunity
[c]ontrol he could be returned, his community control revoked,
and the reserved sixteen years added to his current sentence.
Docket No. 23.
{¶3} It is from this judgment Hartman appeals, asserting the following as
error for our review.
Assignment of Error No. I
IN VIOLATION OF THE OHIO FELONY SENTENCING
GUIDELINES, THE COURT HEREIN SENTENCED
DEFENDANT TO BOTH PRISON AND COMMUNITY
CONTROL.
{¶4} In his sole assignment of error, Hartman argues that the Ohio felony
sentencing guidelines do not permit a trial court to impose both a prison term and
community control, citing State v. Gardner, 3d Dist. No. 14-99-24 (Dec. 1, 1999).
We agree.
{¶5} An appellate court must conduct a meaningful review of the trial
court’s sentencing decision. State v. Daughenbaugh, 3d Dist. No. 16-07-07, 2007-
Ohio-5774, ¶ 8, citing State v. Carter, 11th Dist. No. 2003-P-0007, 2004-Ohio-
-3-
Case No. 15-10-11
1181. A meaningful review means “that an appellate court hearing an appeal of a
felony sentence may modify or vacate the sentence and remand the matter to the
trial court for re-sentencing if the court clearly and convincingly finds that the
record does not support the sentence or that the sentence is otherwise contrary to
law.” Daughenbaugh at ¶ 8, citing Carter at ¶ 44; R.C. 2953.08(G).
{¶6} In 1996, new sentencing statutes contained in Am.Sub.S.B. No. 2
(“S.B. 2”) took effect, which inter alia, prohibit a trial court from imposing both a
prison sentence and community control sanctions on the same offense. State v.
Vlad, 153 Ohio App.3d 74, 78, 2003-Ohio-2930 (7th Dist.); State v. Hoy, 3d Dist.
Nos. 14-04-13, 14-04-14, 2005-Ohio-1093, ¶ 18. As we have explained:
[p]rior to S.B. 2, it was a regular practice in felony sentencing to
impose a prison sentence and then suspend the sentence and
grant probation with specific terms and conditions. That option
was removed by the felony sentencing statutes adopted as part of
S.B. 2. Hoy.
{¶7} This district has determined that “there is no provision in the
sentencing statute which permits a court to suspend a prison term or make
community control a condition of a suspended prison term.” State v. Riley, 3d
Dist. No. 14-98-38 (Nov. 12, 1998). Rather, current felony sentencing statutes,
contained primarily in R.C. 2929.11 to 2929.19, require trial courts to impose
either a prison term or community control sanctions on each count. State v.
Williams, 3d Dist. No. 5-10-02, 2011-Ohio-995, ¶ 17, citing Hoy. Pursuant to
-4-
Case No. 15-10-11
R.C. 2929.19(B), community control sanctions and prison terms are mutually
exclusive and cannot be imposed at the same time on the same count of
conviction. State v. Randolph, 12th Dist. No. CA2003-10-262, 2004-Ohio-3350, ¶
9. Because community control sanctions are directly imposed and do not follow
as a consequence of a suspended prison sentence, trial courts must decide which
sentence is most appropriate and impose whichever option is deemed to be
necessary. Vlad at ¶ 16.
{¶8} In the case sub judice, the trial court explicitly sentenced Hartman to
four years’ incarceration on each of the five counts of retaliation, to be served
consecutively for a total of twenty years’ incarceration. Docket No. 23. It then
“reserved” sixteen years’ incarceration on counts II through V and imposed
community control sanctions for an undisclosed period. Id. While the trial court’s
intention may have been to impose community control on counts II through V, its
procedure was flawed. It is clear that Hartman’s sentence does not comport with
the felony sentencing statutes in place since 1996, or with this Court’s
jurisprudence, as the trial court imposed both prison terms and community control
on each of counts II through V. Hartman’s sentence on those counts is therefore
clearly and convincingly contrary to law.
{¶9} Accordingly, we sustain Appellant’s assignment of error. Although
we find nothing to prevent a trial court from imposing a prison sentence on one
-5-
Case No. 15-10-11
count and community control on another, we find it necessary to reverse the entire
sentence in order that the trial court may clarify its intentions.
{¶10} Having found error prejudicial to Appellant herein, in the particular
assigned and argued, we reverse and remand to the trial court for proceedings
consistent with this opinion.
Judgment Reversed and
Cause Remanded
WILLAMOWSKI, J., concurs.
SHAW, P.J., concurs in Judgment Only.
/jlr
-6-
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65 Cal.App.2d 510 (1944)
RILEY M. HORN, Plaintiff and Appellant,
v.
OSCAR H. KLATT, Respondent; LUELLA E. HORN, Cross-Defendant and Appellant.
Civ. No. 12594.
California Court of Appeals. First Dist., Div. One.
Aug. 22, 1944.
Fabius T. Finch and Paul F. Fratessa for Appellants.
Fitzgerald, Abbott & Beardsley for Respondent.
WARD, J.
The complaint herein sets forth a cause of action for conversion and requests an accounting. It alleges that plaintiff gave defendant his promissory note for $20,000 secured by a pledge of 20,000 shares of American Toll Bridge Company stock endorsed in blank. Defendant filed a cross-complaint asking for a deficiency judgment and alleged that the sum of $10,882.67 was owing and unpaid on the indebtedness after application thereto of the amount received from the sale of the pledged stock. *512
The case was tried before Hon. Warren V. Tryon, Judge of the Superior Court of Del Norte County, assigned pro tem. to Alameda County, who rendered a judgment for defendant and cross-complainant for the full amount prayed for. Plaintiff moved for a new trial. Prior to the date of hearing of the motion Judge Tryon died, and the hearing was assigned to Hon. Frank M. Ogden, Judge of the Superior Court of Alameda County, who granted the motion on the issue as to the amount defendant should recover on his cross-complaint but denied the motion as to the issues made by the complaint and defendant's answer thereto. Upon a retrial of that issue, the amount was reduced to $7,109.95. This sum was reached by taking the amount of the original note plus interest, less an amount paid by plaintiff on the principal, and from the figure so arrived at deducting the value of such shares of the 20,000 pledged as the court found defendant did not have in his possession for a short period during the existence of the pledge.
Defendant and cross-complainant did not appeal from the reduced judgment. Plaintiff has appealed from both the judgment originally rendered and the subsequent one. It was stipulated that the transcript of the evidence of the original trial, together with that of the retrial on the designated issue, should be used on this appeal.
Plaintiff was a rancher, also a stockholder in several corporations, and a director of a bank in Oregon. It appears that the Oregon bank became involved in financial difficulties; and, primarily in an effort to help save it, plaintiff, with the assistance of defendant Klatt, in April, 1927, sought a loan of $25,000 from various sources, to be secured by collateral, but without success. To this end 20,000 shares of stock, endorsed in blank, of the American Toll Bridge Company belonging to plaintiff were left in the office of that company, of which Klatt was president and both plaintiff and defendant were directors. In June, after several conversations, plaintiff succeeded in persuading defendant to loan him the sum of $20,000 secured by certificate No. 1483 for 20,000 shares of the bridge company stock. Shortly thereafter this certificate was broken up into four certificates of 5,000 shares each and the stock evidenced thereby sold from time to time. A pledge agreement entered into between the parties was in the form generally used by brokers. Plaintiff paid $5,000 on *513 account of the indebtedness, and in November, 1930, executed a renewal of the note, to include interest, in the sum of $18,204.17. In 1935 a renewal note and pledge were executed in favor of a family corporation of defendant. It appears that had plaintiff at any time during this period paid his indebtedness in full, defendant could have purchased 20,000 shares of the pledged stock, or any portion thereof, at a figure that would have netted him a substantial profit.
In July, 1936, a demand for payment of the note was made and notice given that the pledged stock would be sold. The stock was sold to defendant for the sum of $14,000, leaving an amount due on the indebtedness of $10,882.67. It is not contended that the sale of the stock alone constituted a conversion but rather that the conversion occurred in 1927 in the transfer of certificate No. 1483 into four certificates, and their subsequent sale. It is plaintiff's theory that in this first transfer began a chain of acts which culminated in a conversion, and that the date of the first transfer is selected as the date of conversion as a matter of convenience in presenting his cause.
Briefly, it is plaintiff's contention that defendant did not at all times from the date of the original promissory note and pledge in 1927 to the date of the sale of the securities in 1936 have on hand 20,000 shares of bridge company stock constituting the pledge, and that the sale of the stock in whatever size blocks was fraudulent and without plaintiff's knowledge or consent.
[1a] The testimony of defendant Klatt, and of witness Whitmore, the secretary of the bridge company, plus the forty-two exhibits, substantially sustain the findings of the court which follow the facts rather minutely and will therefore receive approval notwithstanding that plaintiff refers to certain evidence from which a contrary inference may be drawn. (Estate of Bristol, 23 Cal.2d 221 [143 P.2d 689].) Both of the trial judges found that at all times except for a short period in 1928 defendant did have 20,000 shares of the American Toll Bridge Company stock of the same kind and character which could have been delivered to plaintiff at any time upon the payment of his indebtedness. The court specifically found that "At no time did the defendant agree to hold the said stock or not to sell the same except on foreclosure *514 of pledge, or not to trade with it, or to do anything that he, the defendant could do to assist plaintiff in preserving said stock. Plaintiff did not, during any of said time, or up until July 27th, 1936, have or repose in the defendant the utmost confidence or trust or confidence or trust. ... The defendant did not, either fraudulently, or without plaintiff's knowledge or consent, on or about June 2nd, 1927, or at any other time, cause the 20,000 shares of plaintiff's said stock, or any part thereof, to be transferred ... On none of the occasions referred to in paragraph VI of plaintiff's second amended complaint did the defendant sell any shares of plaintiff's stock save only 2,625 shares thereof were sold by defendant unknowingly from the 5th to the 12th of September, 1928, for which defendant received an aggregate of $3,675. Sales of shares of the defendant's stock were, on some occasions, and at or about the times specified in said paragraph VI, fulfilled by the delivery of certificates derived from plaintiff's original certificate number 1483 but that said certificates were delivered in confirmation of said sales without the knowledge or intent of the defendant. ..."
"Defendant did not fraudulently, or otherwise, or at all, on or about November 6th, 1930, or at any other time, state to plaintiff that nothing had been paid to, or received by, the defendant on account of said loan, or otherwise, except the sum of $5,000.00. ... The defendant did not, on or about February 7th, 1935, or at any other time, or at all, fraudulently, or otherwise, tell plaintiff that nothing had been received by defendant on account of said loan except said sum of $5,000.00, or that the entire, or any, balance of said amount of principal or of interest was unpaid. ... Klatt did not violate any promise to plaintiff. No actions, or friendship, or pretended friendship on Klatt's part, lulled plaintiff into any sense of security or into any belief that plaintiff's original stock certificate was in the hands of Klatt or that Klatt held and retained the said certificate under said pledge but that, on the contrary, in the early part of the year 1928, the defendant informed plaintiff that said original certificate had been transferred and that plaintiff was no longer a stockholder of record in American Toll Bridge Company. ... It is not a fact that plaintiff for the first time knew, on or about August 15th, 1936, or August 21st, 1936, that defendant had caused said stock to be transferred out of the name of the plaintiff, *515 but, on the contrary, plaintiff had notice and knowledge of these matters in the early part of the year 1928."
"The relation existing between parties to a transaction where collateral is placed in the hands of the pledgee as security for the payment of a debt with power of sale in case of default is in the nature of a trust relation. The responsibility of the pledgee to the pledgor is similar to that of a trustee; he holds the stock for specific purposes,--namely, to return it to the pledgor should the indebtedness it is given to secure be paid, or if under a power of sale it is disposed of, to pay over to the pledgor any surplus which may remain. ..." (Hudgens v. Chamberlain, 161 Cal. 710, 715 [120 P. 422].) In Hall v. Cayot, 141 Cal. 13, 16-17 [74 P. 299], the court held: "The action of the trial court in adjudging that plaintiff has no lien upon the certificate of stock, or upon the shares of stock represented thereby, to secure the note on which the second claim is founded, and in refusing her an order for the sale thereof, was undoubtedly based upon the fact that there was no written transfer of the stock on the part of deceased, and no transfer in the manner provided by section 324 of the Civil Code. That section provides that shares of stock are personal property, 'and may be transferred by indorsement by the signature of the proprietor, his agent, attorney, or legal representative, and the delivery of the certificate; but such transfer is not valid, except as to the parties thereto, until the same is so entered upon the books of the corporation as to show the names of the parties by whom and to whom transferred,' etc. In this case there was no delivery of the possession of the stock other than such as was accomplished by the mere delivery of the certificate, with the indorsement of the secretary of the corporation as to the purpose thereof."
"It is well settled in this state by decisions construing this statutory provision that the entry upon the books of the corporation is not essential to the validity of the transfer, except as to purchasers and transferees 'in good faith, for value and without notice.'" [2] The written transfer is in lieu of delivery of corporeal property. The pledge of the certificate vests in the pledgee an equitable title in the shares designated. (Hall v. Cayot, supra.) [3] In the event of sale of the pledged property, if the sale is fair and bona fide, *516 the pledgee may purchase. (Hudgens v. Chamberlain, supra.) It has been held that the legal title remains in the pledgor "notwithstanding an apparent transfer of legal title to the pledgee." (Tracy v. Stock Assurance Bureau, 132 Cal.App. 573, 579 [23 P.2d 41].) [4] The pledgor's right of title, however, is merely to receive it back from the pledgee upon payment or cancellation of the debt.
[5] If pledged property is converted the pledgor need not accept other property therefor, but this rule does not apply to corporate stock. (Bell v. Bank of California, 153 Cal. 234 [94 P. 889].) To render a pledgee liable for conversion it must be shown that the pledgee is unable to return the original property or, as in this case, property of the specific kind.
[1b] Plaintiff contends that the evidence on the part of defendant is flimsy and unsubstantial and that at no time after September, 1928, did defendant have in his possession or control 20,000 shares of stock to redeliver to plaintiff, and that in fact defendant did not own or control any shares of stock of the kind and character placed with defendant as a pledge. Plaintiff contends the evidence shows that for a large part of the time defendant did not have in his possession any of the toll bridge stock. This contention is based upon the theory that Klatt's stock, having been frozen by an attachment, could not have been used in a return of the stock "if Horn had paid his loan." Klatt's answer in part is that he did not keep all of his holdings of such stock in his own name. He testified that he had the stock under his control at all times except for the short period mentioned, and that during such period he had an option (which he exercised in December, 1928) to purchase 12,000 shares. The weight of the evidence is not a matter in which the appellate court is concerned.
The conversion of the stock in the sense that there was a short period wherein defendant did not have available 20,000 shares of the stock may be admitted in view of defendant's failure to appeal from the judgment as modified by Judge Ogden.
[6a] In a word, the real question in this case may be stated as follows: Does the conversion of a part of pledged securities ipso facto create a conversion of the entire pledge? [7] A suit for conversion of a pledge is basically an equitable *517 proceeding designed to award to the pledgor and to the pledgee all that is fair and just. [8] In cases wherein the pledgor elects to demand damages instead of a return of the pledged property, the motive of the pledgee may be taken into consideration in assessing damages. (26 R.C.L., p. 1154, par. 70.) [9] When an action is one for the return of property and it develops that part of the property has in fact been converted, the pledgor is entitled to the return of the pledged property held intact and damages for that converted. [10] The exercise by the pledgee of unwarranted dominion over the property, or disposition of the whole or part thereof inconsistent with and subversive of the pledgor's legal rights, is a conversion. (Gruber v. Pacific States Sav. & Loan Co., 13 Cal.2d 144 [88 P.2d 137].)
In Poggi v. Scott, 167 Cal. 372, 375 [139 P. 815, 51 L.R.A.N.S. 925], the court said: "The foundation for the action of conversion rests neither in the knowledge nor the intent of the defendant. It rests upon the unwarranted interference by defendant with the dominion over the property of the plaintiff from which injury to the latter results. Therefore, neither good nor bad faith, neither care nor negligence, neither knowledge nor ignorance, are of the gist of the action. 'The plaintiff's right of redress no longer depends upon his showing, in any way, that the defendant did the act in question from wrongful motives, or generally speaking, even intentionally; and hence the want of such motives, or of intention, is no defense. Nor, indeed, is negligence any necessary part of the case. Here, then, is a class of cases in which the tort consists in the breach of what may be called an absolute duty; the act itself (in some cases it must have caused damage) is unlawful and redressible as a tort.' (1 Bigelow on Torts, p. 6.)" (See, also, Byer v. Canadian Bank of Commerce, 8 Cal.2d 297 [65 P.2d 67]; Aronson v. Bank of America etc. Assn., 9 Cal.2d 640 [72 P.2D 548]; Coy v. E. F. Hutton & Co., 44 Cal.App.2d 386 [112 P.2d 639].)
[6b] In determining the main question in this case, namely, is a conversion of part a conversion of the whole, the facts of each case must be considered. If the conversion of a part has damaged the pledgor so that the whole may not be used with the same degree of efficiency or dominion as previously and such change is due to the acts of the pledgee then the pledgor should be compensated for the detriment suffered. *518
We find certain decisions holding that a conversion of part is a conversion of the whole. In Corotinsky v. Cooper, 26 Misc. 138 [55 N.Y.S. 970], an action for the conversion of a buttonhole machine rented by plaintiff to defendant, certain parts of the machine were removed. The court held: "It is well settled that such an act constitutes a conversion of the whole property." Without further discussion Bowen v. Fenner, 40 Barb. 383, is cited. In the latter case plaintiff owned a threshing machine, which was on wheels owned by the defendant's son-in-law. The son-in-law had given plaintiff permission to use the wheels. On the pretence of hiring plaintiff to do threshing for him, defendant induced plaintiff to bring the machine on the borrowed wheels to defendant's farm. Defendant then claimed, mistakenly, that plaintiff was without right to use the wheels; that he could remove the machine, but not the wheels. It was held that plaintiff was entitled to recover for conversion of machine and wheels. His rightful possession of the wheels was sufficient to maintain trover against one with no right in them. The wrongful detention of the wheels was a detention also of the machine, since it compelled plaintiff to leave it at defendant's premises until he could get other wheels. In that case under all the circumstances plaintiff was not required to have that burden cast on him.
In Nalley v. Thomason, 28 Ga.App. 787 [113 S.E. 65], there is no opinion but a headnote which reads: "Where there is an unauthorized removal and appropriation to one's own use of any of the substantial and essential parts of an entire chattel, such conversion will, if the chattel be a complicated mechanism constructed to perform certain work, amount to a conversion of the whole, if the removal of such parts so impairs the chattel as to destroy its character as a whole and defeat its intended use."
In 41 American Jurisprudence, page 624, section 58, the following appears: "The obligation of the pledgee being to return all of the pledged property, a conversion of part may, at the election of the pledgor, be treated as a conversion of all, for he is entitled to the return of the very thing pledged, and is not obliged to accept a part of it only." The footnote cites Glidden v. Mechanics' Nat. Bank, 53 Ohio St. 588 [42 N.E. 995, 43 L.R.A. 737]. The facts in that case showed that there was a balance due plaintiff Glidden on a promissory note secured by a pledge of collateral in lieu of an endorser. The collateral *519 consisted of certain warrants on a storage company with the privilege of selling the security (972 tons of iron), applying the proceeds on the indebtedness and holding the pledgor for any deficiency. In one of the sales "the property pledged passed beyond the control of the bank" and it was no longer able to perform its contract by returning the iron to Glidden. The sale in question was unauthorized. The court held: "The obligation of the pledgee being to return all of the property pledged, a conversion of part may, at the election of the pledgor, be treated as a conversion of all."
"Conversion of a part amounts to conversion of the whole of a chattel when the circumstances evince a purpose to control or dispose of the whole of it, or whenever the remaining part is thereby impaired in value or utility." (65 C.J., p. 31, 39.) At page 135, section 250 (65 C.J.), the following appears: "If the conversion of part of an article destroys the value of the entire article, so that the part not converted is worthless to plaintiff, the conversion is regarded as a conversion of the whole so that the ordinary measure of damages is the value of the whole article with interest; but if the part not converted remains of some value, after the conversion, the damages are limited to the extent that the property was deprived of its value to plaintiff." In support of this proposition is cited Walker v. Johnson, 28 Minn. 147 [9 N.W. 632], the facts of which are as follows: An employee of defendant, engaged in hauling a load of supplies to defendant's logging camp, took a part of plaintiff's wagon when defendant's wagon, which he was using, broke down. The court said: "There was some evidence that by the removal of the part of the wagon the remainder was rendered valueless. As to this, the court instructed the jury in effect that if taking the part rendered the wagon valueless for the use for which it was intended, the plaintiffs are entitled to recover the value of the wagon at the time of the conversion. This rule is not strictly accurate. If taking a part wholly destroyed the value of the wagon, so that the part not taken was of no value whatever for any purpose, the taking was equivalent to a conversion of the whole; and, in that case, the value of the whole, with interest from the time of the conversion, would ordinarily be the proper measure of damages. But if the part not taken was of any value after the severance, though of no value for the use for which it was intended, to-wit, as a wagon, the owner was not deprived of the entire value. His *520 damages should be to the extent only of the actual injury; that is, to the value so far as he was deprived of it. This could be shown by proof of what it would cost to replace the part taken, or by proof of value of the wagon entire, and of the remainder in the place and situation in which it was left."
In Herring v. Blue Mound Mining Co., 124 Kan. 171 [257 P. 955], plaintiffs owned a compressor for milling lead and zinc ore. It was on premises which they had leased and was not erected. Defendant had a mill a few miles away, which needed repairs. Defendant obtained from plaintiffs' watchman certain parts of plaintiffs' machine. The watchman had no authority to deliver them to defendant. The parts were used by defendant and later returned. The court refused to allow damages for a conversion of the whole compressor and the judgment was affirmed. The court said (p. 956 [257 P.]): "There is nothing in the record evincing a purpose on the part of defendant to control or dispose of the whole of the compressor. Indeed, appellants do not so contend; but they do contend that the remaining part was 'thereby impaired in value or utility.' ... If one without authority to do so were to take a spark plug, worth $1 or less, from an automobile, worth $1,000 or more, he might thereby impair its value or utility, but in a civil action against him by the owner, for damages for conversion, it could hardly be said that the measure of recovery would be the full value of the automobile. This illustration, as to its details, exaggerates appellant's claim, but in principle is identical with it. Just how much of a machine must be taken without authority should be held to be the taking of the whole must depend upon the facts and circumstances of the particular case. The measure of damages is compensation for the injury sustained. ... Usually it is the value of the property converted at the time and place of the conversion. ..., and for additional injury, if any, resulting from the conversion. ..."
New York Central R. Co. v. Buckley Rubber Co., 99 Ind.App. 191 [187 N.E. 353], involved an action for damages for the conversion of a calender, a machine for processing rubber. A portion of the calender was converted, upon which the plaintiff claimed a conversion of the whole. The court there held (p. 354 [187 N.E.]): "In cases like this, where separate parts of a machine, engine, vehicle, or like property, must be assembled in order to make a completed whole that is capable of being used in accomplishing the purpose for *521 which it was designed and manufactured, and there is a taking and conversion of one or more of the parts only, the value of the parts at the time and place of conversion, together with such consequential damages as followed the act, would be the limit of the amount recoverable." (Italics added.) (See, also, Rubin v. Huhn, 229 Mass. 126 [118 N.E. 290, 4 A.L.R. 1190].)
The decisions in cases involving machines, where it has been held in effect as a matter of law that a conversion of part is a conversion of the whole, seem to be based upon the theory that the removal of a part or parts rendered the machine unfit for its intended use. The better reasoned cases proclaim the question to be one of fact to be determined by the trier of the facts.
Likewise, in the instance of the pledge of a herd of live stock, reduced and perhaps depleted, the pledge, in the event of conversion, would be permitted to pay in kind or to pay in damages for a deficiency in quantity or quality. That a conversion in grain cases is only to the extent of the minus part in storage, see Carson State Bank v. Grant Grain Co., 50 N.D. 558 [197 N.W. 146]; Kvame v. Farmers' Co-Operative Elevator Co., 66 N.D. 54 [262 N.W. 242]; Central State Bank v. McFarlin, 257 F. 535 [168 C.C.A. 519]. There is no doubt that grain, etc., may be listed as a fungible.
In Restatement of the Law, Restitution, page 271, section 66, it is said: "Likewise, where the subject matter consists of chattels or choses in action which are identical in kind and quality with other chattels or choses in action, restitution may be made by giving other things of the same kind and quality. Such things are fungibles. It is not within the scope of the Restatement of this Subject to state what are fungibles, but the common illustrations are grain of a recognized kind and quality, shares in a corporation, and bonds issued by a corporation. In such cases a person having a duty of restoration can rightfully substitute other similar grain, certificates of shares or bonds." (Italics added.) That corporate stock may be considered a fungible, see Richert v. Bennett, 283 Ill.App. 479; Caswell v. Putnam (N.Y. Ct. of Appeal), 120 N.Y. 153 [24 N.E. 287]; McBride v. Chisholm, 144 Misc. 447 [258 N.Y.S. 821]; Sexton v. American Trust Co., 45 F.2d 372; Dobbs v. Perlman (Ga. Ct. of Appeal), 59 Ga.App. 770 [2 S.E.2d 109.].) *522
In support of appellants' position, Henning v. Akin, 91 Cal.App.246 [266 P. 981], is called to our attention. In that case the conversion was of the whole, and the pledgee had no shares of stock of the same kind. In the Henning case, the court said (p. 251): "It is well established as a general proposition that a pledgee must return upon the payment of the debt the identical property pledged as collateral security. (Hudgens v. Chamberlain, 161 Cal. 710, 715 [120 P. 422]; Atkins v. Gamble, 42 Cal. 86 [10 Am.Rep. 282].) There is, however, an exception to this general rule where shares of stock of a corporation have been pledged as collateral and certain conditions exist; and, also, in cases where certain commodities are delivered in pledge, such as wheat, which in the handling becomes so mixed with other commodities of similar character that it may become impossible to return the identical commodity which was originally pledged."
"It has been said that there is no apparent reason why the entire debt should be satisfied as a penalty for the conversion of pledged property which has an ascertainable market value." (41 Am.Jur., p. 625, 59.) As a matter of law a conversion of part is not a conversion of the whole, but is, rather, a question to be determined by the facts of each case.
In view of the findings that defendant at all times except for several months during the approximate ten-year period had in his possession or under his control a sufficient number of shares of stock of the same kind and character, and that the acts of the pledgee were not performed fraudulently; that the pledgor after payment of $5,000 on account at no time offered to pay the balance of the note or demand the return of the pledge or its cancellation, and signed renewal notes though, as the court in effect found, he knew that the originally pledged shares had been transferred, we are unable to say, as a matter of law, that such conclusion is incorrect.
It appears that the appellant herein, either as plaintiff on the allegations of the complaint, or as cross-defendant on the answer to the cross-complaint, received by the judgment rendered by Judge Ogden all that he could legally or equitably obtain. The respondent did not appeal from that judgment as reduced and is bound thereby. In view of the conclusions reached, it is not necessary to consider the statute of limitations and other points raised by respondent. The briefs of appellants are mainly an attack upon the findings. When *523 analyzed, the objections are directed to the weight of the evidence.
Plaintiff appealed from the judgments rendered by Judge Tryon and Judge Ogden. It was stipulated that the transcript of evidence in the original trial, together with the transcript of the retrial on the designated issue should be used on this appeal.
The judgment rendered by Judge Tryon on the 27th day of June, 1941, with the exception of that part thereof for the recovery of money, is affirmed. The judgment rendered by Judge Ogden on the 16th day of August, 1943, on the sole and special issue, to wit, the amount due cross-complainant on the promissory note of the cross-defendant, is affirmed.
Peters, P. J., and Dooling, J. pro tem., concurred.
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(2008)
UNITED STATES of America, Appellant,
v.
Soneet R. KAPILA, Appellee.
No. 08-60723-CIV.
United States District Court, S.D. Florida, Miami Division.
August 18, 2008.
ORDER
CECILIA M. ALTONAGA, District Judge.
Appellant, the United States of America, appeals an Order Granting Plaintiff's Motion for Summary Judgment and Denying Defendant's Cross Motion for Summary Judgment (the "Order") entered by the United States Bankruptcy Court for the Southern District of Florida (the "bankruptcy court"). See In re Taylor, 386 B.R. 361 (Bankr.S.D.Fla.2008). In its Order, the bankruptcy court granted summary judgment in favor of Appellee, Soneet R. Kapila ("Kapila"), Trustee for the Debtor, Daniel Taylor ("Taylor"), in the underlying bankruptcy proceeding, and denied summary judgment in favor of Appellant, the United States. The Court has carefully considered the briefs submitted by the parties, applicable law, and the pertinent portions of the record.
I. BACKGROUND[1]
Taylor purchased a sign manufacturing franchise called Sign-A-Rama in 2000 through Lula Corporation ("Lula"), an S-Corporation of which he was the sole shareholder. See Taylor, 386 B.R. at 363. In 2004, Taylor acquired a second Sign-A-Rama franchise which he operated through Dundee .Corporation ("Dundee"), also an S-Corporation of which he was sole owner. Id. Shortly after purchasing the second franchise, Taylor's consolidated business operations began to fail. Id. He shut down operations of Dundee in September 2005. Id.
As a result of these business losses, Taylor incurred a net operating loss ("NOL") of $58, 612 for the tax year 2005. Id. Pursuant to 26 U.S.C. § 172(c), a taxpayer generates a NOL during a tax year if his or her deductible business expenses exceed net income. Under the Internal Revenue Code ("IRC"), when this situation occurs the taxpayer may elect either to apply the loss to the two preceding tax years to offset past tax liability and possibly receive a tax refund (see 26 U.S.C. § 172(b)(1)), or to waive this option and "carry forward" the entire NOL to offset future tax liabilities (see id. at § 172(b)(3)). Once this election is made, it is deemed to be "irrevocable." Id.
On July 24, 2006, Taylor filed his tax return for the 2005 tax year. See Taylor, 386 B.R. at 363. The bankruptcy court accepted Kapila's assertion that had Taylor not waived the NOL carry-back, he would have been entitled to apply it to the 2003 tax year for a refund of $11, 201. Instead, Taylor elected to carry forward the entire NOL to use in future tax years on the advice of his accountant. Taylor's accountant advised him to make that election because Taylor had informed him that he expected to sell his businesses in the near future for between $100,000 and $150,000.
On July 16, 2006, Taylor entered into an agreement (the "Sales Agreement") for the sale of Lula's assets for $285,000. See id. at 364. The Sales Agreement contained a number of contingencies including the absence of any outstanding judgment against Lula, and a due diligence period during which the buyer could back out of the sale and be refunded his deposit if he was "unsatisfied with the business." Id. A $3,930 judgment had been entered against Lula in Florida state court on February 7, 2006, which remains unsatisfied. See id. at 365. The Sales Agreement was supposed to close on July 26, 2006, the same day Taylor signed his 2005 tax return. See id. at 364. However, the buyer backed out of the sale and it was never consummated. See id. On January 22, 2007, Taylor filed a voluntary petition for bankruptcy under Chapter 7 of the Bankruptcy Code. Kapila was subsequently appointed Trustee of Taylor's estate.
As a result of Taylor's NOL waiver election, Kapila was unable to amend Taylor's 2005 tax return to claim a refund for the estate, a refund which Taylor would have been entitled to absent the waiver election. Kapila, therefore, commenced an adversary proceeding against the United States on August 31, 2007 seeking to avoid Taylor's NOL carry-back waiver as a fraudulent transfer pursuant to 11 U.S.C. § 548(a) ("Section 548"). He subsequently filed a motion for summary judgment before the bankruptcy court on December 20, 2007. The United States, in turn, cross-moved for summary judgment in its favor on January 9, 2008.
In its Order granting summary judgment in favor of Kapila, the bankruptcy court observed that "although [Taylor] may subjectively have believed that there was a reasonable prospect of selling Lula's assets ... at the time he executed the waiver of the NOL carryback on July 24, 2006, the failure of each of [the contingencies set forth in the Sales Agreement] meant that there was ... no reasonable objective prospect that the sale ... would close." Taylor, 386 B.R. at 365. Thus, Taylor "was insolvent at the time of his election to waive the NOL carryback." Id. In light of these findings, the bankruptcy court granted summary judgment in favor of Kapila and avoided Taylor's NOL carryback waiver as a fraudulent transfer.
The court premised this holding on a series of legal conclusions. First, "as a matter of law the pre-transfer NOL carryback tax attribute is ah interest in property held by the Debtor." Id. at 369. Second, "Debtor's waiver operated as a matter of law as a transfer of property to the United States." Id. Third, the Court acknowledged "[t]he sound tax policy for irrevocability under the Tax Code" but concluded that policy was "not offended or harmed by the avoidance of the NOL carryback waiver under bankruptcy law," and thus Kapila was entitled to recover Taylor's transfer of his NOL carry-back under Section 548. Id. at 372.
The United States filed its Notice of Appeal on May 15, 2008. The sole issue presented is purely one of law: whether an insolvent taxpayer's irrevocable election of a waiver of NOL within a year of filing a bankruptcy petition is avoidable as a fraudulent transfer under 11 U.S.C. § 548. The United States asserts the bankruptcy court's determination that a NOL carry-back waiver is avoidable by a trustee is incorrect as a matter of law. In support of this assertion, it raises three specific reasons the bankruptcy court's conclusion is in error: (1) a taxpayer's net operating loss is not a property right; (2) waiving a NOL carry-back does not constitute a transfer to the United States; and (3) a trustee cannot use Section 548 to avoid Taylor's NOL carry-back waiver because the IRC mandates this tax election is irrevocable. The undersigned considers each of these arguments in turn.
II. ANALYSIS
A. Standard of Review
District courts have appellate jurisdiction over the judgments, orders, and decrees of bankruptcy courts. 28 U.S.C. § 158(a). A district court reviews a bankruptcy court's conclusions of law de novo. In re Citation Corp., 493 F.3d 1313, 1317 (11th Cir.2007). Moreover, the power of a trustee to avoid fraudulent transfers under Section 548 presents a question of law that must be reviewed de novo. See In re Cannon, 277 F.3d 838, 849 (6th Cir.2002).
B. Whether Taylor's NOL Carry-Back Waiver is Avoidable as a Fraudulent Transfer under Section 548
Section 548(a)(1)(B) of the Bankruptcy Code permits a trustee to "avoid" pre-petition transfers of property by a debtor where the trustee can "show that (i) there was a transfer of an interest of the Debtor in property, (ii) the transfer occurred within two years preceding the Petition Date, (iii) the Debtor received less than reasonably equivalent value in exchange for the transfer, and (iv) the Debtor was either insolvent on the date of the transfer or became insolvent as a result of the transfer." In re Clarkston, 387 B.R. 882, 888 (Bankr.S.D.Fla.2008) (citing 11 U.S.C. § 548(a)(1)(B)) (additional citations omitted). For purposes of this appeal, the United States does not dispute that Taylor was insolvent at the time he made the NOL carry-back waiver, nor that the waiver occurred within two years of his bankruptcy petition. Instead, the United States contends that the waiver fails because it is neither a property interest, nor does it constitute a transfer to the United States.
1. Whether a NOL Carry-Back Waiver is a Property Right under Bankruptcy Law
"Section 541(a)(1) [of the Bankruptcy Code] defines property of the bankruptcy estate as `all legal or equitable interests of the debtor in property as of the commencement of the case.'" In re Bracewell, 454 F.3d 1234, 1237 (11th Cir.2006) (quoting 11 U.S.C. § 541(a)(1)). In Segal v. Rochelle, 382 U.S. 375, 379, 86 S.Ct. 511, 15 L.Ed.2d 428 (1966), a pre-Bankruptcy Code decision, the Supreme Court held that, since the purpose of bankruptcy law was "to secure for creditors everything of value the bankrupt may possess in alienable or leviable form when he files his petition," a debtor's interest in a tax refund was property of the estate, even though the NOL was sustained for the year in which the debtor filed his bankruptcy petition. The United States contends that the bankruptcy court was in error to rely upon Segal in support of its conclusion that Taylor's NOL carry-back waiver was an interest in property subject to Kapila's avoidance powers.
As an initial matter, a number of federal appellate courts have recognized that Segal's broad conception of "property" remains good law after the enactment of the Bankruptcy Code. See, e.g., In re Fruehauf Trailer Corp., 444 F.3d 203, 211 (3rd Cir. 2006) (holding that right of employer under ERISA to recoup future surpluses in pension plan was a transferable property interest subject to a trustee's avoidance powers); In re Feiler, 218 F.3d 948, 955-56 (9th Cir.2000) (stating that Congress explicitly adopted Segal's holding into the Bankruptcy Code and concluding that NOL carry-back waiver was avoidable by bankruptcy trustee); In re Bakersfield Westar, Inc., 226 B.R. 227, 233-34 (9th Cir.BAP1998) (holding that trustee was entitled to avoid debtor's "irrevocable" election to be treated as subchapter S corporation); In re Barowsky, 946 F.2d 1516, 1518-19 (10th Cir.1991) (relying upon Segal in holding that portion of tax refund attributable to pre-petition portion of a taxable year was property of the bankruptcy estate); In re Prudential Lines, Inc., 928 F.2d 565, 572 (2nd Cir.1991) (concluding that NOL carryforward was property of bankruptcy estate). Moreover, as the Second Circuit observed, "[t]he legislative history of § 541 demonstrates that Congress agreed with the result reached by the Segal Court[:]"
[T]he estate is comprised of all legal or equitable interest of the debtor in property, wherever located, as of the commencement of the case. The scope of this paragraph is broad. It includes all kinds of property, including tangible or intangible property, causes of action ... and all other forms of property currently specified in [the predecessor statute to § 541].... The result of Segal v. Rochelle, 382 U.S. 375 [86 S.Ct. 511, 15 L.Ed.2d 428] (1966), is followed, and the right to a refund is property of the estate.
Prudential, 928 F.2d at 571 (quoting H.R.Rep. No. 95-595, 367 (1978)).
The United States acknowledges that the only two federal appellate courts to have considered the same issue raised here have concluded that a NOL carry-back waiver is an interest in property avoidable by a bankruptcy trustee. See In re Feiler, 218 F.3d at 955-56; In re Russell, 927 F.2d 413, 416-17 (8th Cir.1991). It contends, however, that these cases were wrongly decided for reasons it now explains on appeal.
In support of its position that NOL carry-back waivers are not property under the Bankruptcy Code, the United States relies on the operative language of 26 U.S.C. § 1398(g) ("Section 1398(g)") which details the tax attributes of a debtor to which a bankruptcy estate will succeed. In relevant part, Section 1398(g)(1) provides that the bankruptcy estate "shall succeed to and take into account the following items (determined as of the first day of the debtor's taxable year in which the case commences) of the debtor ... (1) Net operating loss carryovers.The net operating loss carryovers determined under section 172." The United States contends the enactment of Section 1398(g) indicates Congress did not consider NOLs to be property that automatically passes to a bankruptcy estate under Section 541 of the Bankruptcy Code. Thus, it submits that Section 1398(g) only permits the bankruptcy estate to succeed to NOLs as they existed at the time of the bankruptcy since Congress made no provision to permit a bankruptcy trustee to modify or reverse a debtor's prior NOL elections.
In addressing the identical argument in Feiler, the Ninth Circuit noted:
What a trustee "succeeds to" under I.R.C. § 1398 is not the same as what he may avoid under B.C. § 548; what property is part of the bankruptcy estate and what property may be recovered with a trustee's avoidance powers are two separate questions. I.R.C. § 1398 merely allocates the NOLs as bankruptcy estate property. Whether the election to carry forward the NOLs is a fraudulent transfer is another question, and depends on B.C. § 548.
218 F.3d at 953.
Although the Feiler and Russell decisions are not binding, their reasoning is nevertheless persuasive. The recognition of a NOL carry-back waiver as an interest in property which is avoidable by a bankruptcy trustee is consistent with Congress' clear intent that "property" and "an interest in property" be broadly defined under the Bankruptcy Code. The undersigned is not persuaded by the United States' argument that Section 1398(g) alters this analysis. Even if the Court were to accept the United States' position that a bankruptcy trustee only succeeds to NOLs as they existed at the time of the bankruptcy petition, that would not resolve the question of whether Taylor's NOL carry-back waiver is avoidable by Kapila as recognized by Feiler.
The practical effect of Taylor's election to waive his NOL carry-back was to relinquish his interest in a present tax refund of $11,201 in favor of a speculative future refund. In light of Taylor's insolvency at the time of his election, and the likelihood that the value of the present refund he waived would far outstrip the value of any potential future refund, the bankruptcy court correctly concluded that all of the elements of a fraudulent transfer were satisfied. See Taylor, 386 B.R. at 370-71. It is the transfer of Taylor's present right to a refund for less than equivalent value that Kapila is entitled to avoid under Section 548. A NOL is an accounting device used to determine a taxpayer's entitlement to a tax refund. The manner in which a NOL is deemed to become property of the bankruptcy estate is inapposite to the issue of whether a debtor has transferred his present interest in a tax refund for less than equivalent value so as to put that property beyond the reach of his creditors. Accordingly, the bankruptcy court was correct in concluding that a NOL waiver is a property interest subject to a bankruptcy trustee's avoidance powers.
2. Whether Taylor's Waiver of the NOL Carry-Back was a Transfer to the United States
The United States also argues that even if a NOL carry-back waiver is deemed to be a property interest, all of the elements of a fraudulent transfer were not satisfied because there was no actual transfer of that interest. In support of this position, it relies upon Section 548(d)(1), which provides:
For the purposes of this section, a transfer is made when such transfer is so perfected that a bona fide purchaser from the debtor against whom applicable law permits such transfer to be perfected cannot acquire an interest in the property transferred that is superior to the interest in such property of the transferee, but if such transfer is not so perfected before the commencement of the case, such transfer is made immediately before the date of the filing of the petition.
11 U.S.C. § 548(d)(1).
The United States contends that based on this description, a transfer requires the existence of a "transferee." It submits that Taylor's NOL carry-back waiver did not transfer anything of value to the United States, and thus the waiver does not constitute a transfer of property subject to a trustee's avoidance powers under Section 548.
The Bankruptcy Code defines "transfer" as "each mode, direct or indirect, absolute or conditional, voluntary or involuntary, of disposing of or parting with... property; or ... an interest in property." 11 U.S.C. § 101(54)(D)(i-ii). Contrary to the United States' assertions, the term is to be broadly construed. In re Shingledecker, 242 B.R. 80, 82 (Bankr. S.D.Fla.1999) ("[T]he term `transfer' under § 727(a)(2) and § 101(54) is to be broadly construed."); accord In re Bajgar, 104 F.3d 495, 498 (1st Cir.1997) ("[T]he legislative history of Section 101(54), which defines `transfer,' explains that `[t]he definition of transfer is as broad as possible.'") (quoting S.Rep. No. 989, 95th Cong. 27 (1978)); In re Dereve, 381 B.R. 309, 326 (Bankr.N.D.Fla.2007).
Although the United States contends that characterizing Taylor's election of the NOL waiver as a "transfer" risks stretching this definition "beyond recognition" (Appellant's Brief [D.E. 4] at 10), it is the United States' reading of the term that risks departing farthest from Congress' intent. The United States argues it did not receive anything of value as a result of Taylor's NOL carry-back waiver since the waiver "does not forever rid the taxpayer of the benefits of an NOL." (Id. at 11). This assertion, however, ignores the practical effect of the NOL waiver.
As previously discussed, by electing to carry-forward his NOL, Taylor waived his right to a present tax refund of $11, 201 in favor of a future tax attribute. Had Taylor failed to make an affirmative election, the United States would have been required to pay him a tax refund. Thus, Taylor's NOL waiver absolved the United States of its obligation to pay a refund it would otherwise have been required to make. See In re Feiler, 218 F.3d at 956 (Debtors "traded [their] right to a refund to the IRS in exchange for the right to carry the NOLs forward, and as a result, the IRS was no longer required to pay the $287,493 refund. Rather than require that the IRS actually pay itself the amount of the tax refund to be considered a `transferee' of the benefit, it is enough that the IRS traded one obligation for another...."). As Taylor was insolvent at the time of the election, the effect of his NOL carry-back waiver was to constructively place that refund amount in the possession of the United States and out of the reach of Taylor's creditors. The United States' contention that it did not physically receive a transfer of cash amounts to little more than semantics. The undersigned therefore concludes Taylor's waiver of a present tax refund falls within the indisputably broad definition of "transfer" under the Bankruptcy Code.
3. Whether Section 548 Permits a Trustee to Avoid an Irrevocable Tax Election by a Debtor
Finally, the United States argues that regardless of whether Taylor's NOL carry-back waiver is an interest in property which he transferred to the United States, it is not subject to Kapila's avoidance powers because Taylor's election of the waiver is "irrevocable" under 26 U.S.C. § 172(b)(3). The United States' argument ignores the fact that Kapila is not seeking to "revoke" Taylor's NOL carry-back waiver but rather to avoid it as a fraudulent transfer under Section 548. This is a critical distinction. A trustee's avoidance powers under Section 548 are frequently used to undo transactions that are "irrevocable" as to the debtor. Russell, 927 F.2d at 416 (A bankruptcy trustee's avoidance powers "`are exclusively geared toward protecting the rights of creditors via protection of the bankruptcy estate,' and are so broad that they even enable trustees to avoid transfers considered `irrevocable' under state law.") (internal citations omitted).
The undersigned is in agreement with the bankruptcy court that the United States' focus on the fact that the NOL carry-back waiver is irrevocable as to Taylor is misplaced since "the bankruptcy trustee is not constrained by only being able to act as the debtor could...." Feiler, 218 F.3d at 952. Indeed, "had Congress only intended that a trustee be able to avoid transactions that were otherwise revocable by the debtor, there would be no reason to grant the trustee extraordinary B.C. § 548 avoidance powers at all." Id.
As the bankruptcy court observed, preventing Kapila from avoiding Taylor's NOL carry-back waiver would essentially permit Taylor to protect a future tax attribute from his creditors and thereby commit "money laundering through the kind auspices of the United States." Taylor, 386 B.R. at 370. "The purpose underlying the irrevocability of a § 172(b)(3)(C) election is to prevent a taxpayer from manipulating the Tax Code once the taxpayer discovers that a mistake has been made." Russell, 927 F.2d at 416. No such interest is implicated here by Kapila's attempt to avoid Taylor's NOL carry-back waiver. The undersigned is therefore in agreement with the bankruptcy court that the "irrevocable" nature of the waiver under the IRC does not impact Kapila's ability to avoid the election under Section 548.
Moreover, permitting a trustee to avoid a NOL waiver is the most logical manner to reconcile Section 172 of the IRC with the avoidance powers set forth in Section 548. The ultimate damage to the administration of the nation's tax policies that results from permitting a bankruptcy trustee to avoid a debtor's NOL waiver election is relatively minimal since "absent an election by the taxpayer, the normal practice is for the IRS to carry NOLs back to previous taxable years to be applied against previous tax bills, normally resulting in a tax refund." Feiler, 218 F.3d at 955. In contrast, Section 548 "would be completely eviscerated by exempting a [NOL carry-back waiver] from [a trustee's] avoidance powers" particularly since the United States' interpretation of I.R.C. § 1398(g) would also preclude a trustee's avoidance of "transfers made with the `actual intent to hinder, delay, or defraud' the debtor's creditors." Id.
The undersigned is also unpersuaded by the United States' reliance on Midlantic Nat'l Bank v. New Jersey Dep't of Envtl. Prot., 474 U.S. 494, 106 S.Ct. 755, 88 L.Ed.2d 859 (1986). In Midlantic, the Supreme Court observed that "[i]f Congress wishes to grant the trustee an extraordinary exemption from nonbankruptcy law, `the intention would be clearly expressed, not left to be collected or inferred from disputable considerations of convenience in administering the estate of the bankrupt.'" Id. at 501, 106 S.Ct. 755 (quoting Swarts v. Hammer, 194 U.S. 441, 444, 24 S.Ct. 695, 48 L.Ed. 1060 (1904)). The United States cites this language for the proposition that Congress' failure to explicitly exempt bankruptcy trustees from Section 172(b)(3) demonstrates they, too, are subject to the irrevocability of the NOL waiver.
Contrary to the United States' assertions, the avoidance powers of Section 548 are an explicit expression of Congress' intent that a trustee be given an extraordinary exemption to undo transactions that may be otherwise irreversible under state or federal law. See Feiler, 218 F.3d at 954 ("Congress has granted the bankruptcy trustee an `extraordinary exemption' to non-bankruptcy law by conferring B.C. § 548 avoidance powers to allow the trustee to avoid any number of transactions that would otherwise be final and irrevocable by the debtor under non-bankruptcy law.") (emphasis in original). This power, however, is not unlimited. In creating the Section 548 avoidance powers, Congress has explicitly stated that a trustee may void otherwise valid transactions only where the specified elements of constructive or actual fraud are present. Moreover, as discussed, to exempt NOL carry-back waivers from these avoidance powers would run counter to the underlying rationale for Congress' creation of this power. Accordingly, the undersigned concludes the bankruptcy court's decision was not in error.
III. CONCLUSION
For all of the foregoing reasons, it is
ORDERED AND ADJUDGED that the United States Bankruptcy Court for the Southern District of Florida's Order Granting Plaintiffs Motion for Summary Judgment and Denying Defendant's Cross Motion for Summary Judgment is AFFIRMED. The Clerk of the Court is instructed to CLOSE this case.
NOTES
[1] The United States does not dispute the factual findings by the bankruptcy court for purposes of this appeal. The undersigned briefly recounts those findings as they relate to the legal issue presented.
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133 Cal.App.2d 463 (1955)
FRANK BORGHI, JR. et al., Petitioners,
v.
BOARD OF SUPERVISORS OF ALAMEDA COUNTY et al., Respondents.
Civ. No. 16691.
California Court of Appeals. First Dist., Div. One.
June 8, 1955.
LeRoy A. Broun, in pro. per., for Petitioners.
J. F. Coakley, District Attorney, R. Robert Hunter, Chief Assistant District Attorney, Richard H. Klippert and Bernard M. King, Deputy District Attorneys, John W. Scanlon, City Attorney (Hayward), and Robert P. Berkman, Assistant City Attorney, for Respondents.
BRAY, J.
The question here is the priority between an annexation proceeding and an incorporation proceeding covering portions of the same territory. It is raised by a petition for writ of mandate in which "the Executive Committee of the Steering Committee for the incorporation of Union City" as a city of the sixth class, seeks an order compelling the Board of Supervisors of Alameda County to proceed on the petition filed with it for the incorporation of said Union City. The city of Hayward and its governing body, which were proceeding with the annexation of certain areas included within the incorporation proceeding, are joined as respondents. All respondents demurred on the ground that the petition for the writ of mandate shows that the incorporation has priority in law, that is, that the exclusive jurisdiction to deal with the territory was acquired by the board of supervisors in the incorporation proceeding.
Record
February 10, 1955, Hayward City Council was petitioned for consent to the commencement of annexation proceedings, Treeview Annex. Findings and recommendations of Hayward Planning Commission, report and recommendations of the Alameda County Boundary Commission were presented to the council. Resolution consenting to the commencement of the annexation proceedings adopted. [fn. *]
February 11th, notice of intention to circulate petition for annexation published. (Gov. Code, 35111.)
March 1st, 2 p. m., Board of Supervisors of Alameda County. Petition for incorporation of certain unincorporated territory (of which the proposed Treeview Annex is a part) presented. Resolution adopted directing the county clerk to report to the board on the sufficiency of the petition, such report *465 to be made on March 3, 1955. [fn. ] (Gov. Code, 34303, 34306.)
March 1st, 8 p. m. Hayward City Council. Resolution adopted acknowledging receipt of notice of intention to circulate the petition for annexation and affidavit of publication and giving approval to circulate petition for annexation. (Gov. Code, 35113.) A letter notifying the board of supervisors of this action was presented to that board on March 3d, at which time the clerk of the board reported the sufficiency of the petition for incorporation. Thereafter said board, because of the overlapping of territory and because it was advised that the annexation proceedings had obtained priority, refused to proceed further in the incorporation matter.
Priority
[1] The parties agree that as between an incorporation proceeding and an annexation proceeding, the legislative body which first obtains jurisdiction retains it exclusively until the final determination of the particular proceeding. This is the rule between rival annexation proceedings (People v. Town of Corte Madera (1952), 115 Cal.App.2d 32 [251 P.2d 988]), and between annexation and incorporation proceedings (People v. City of Monterey Park (1919), 40 Cal.App. 715 [181 P. 825]; 2 McQuillin, Municipal Corporations, 320; 62 C.J.S. 150). Section 35115, Government Code, provides that when a petition for annexation has been received by the legislative body of a city and until annexation has been defeated by its electors, no other legislative body shall submit the question of annexation of any part of the territory described in the petition to its electors. In the interests of orderly government it necessarily follows that the same rule must apply to rivalry between annexation and incorporation proceedings. So the question here is, as between the rival proceedings, when was jurisdiction first acquired in the particular proceeding?
[2] The first step taken was the granting of permission by the Hayward City Council to the circulation of an annexation petition. Did this give that body the exclusive jurisdiction *466 of the proposed territory so as to exclude all other proceedings dealing with it? We think not, primarily for the reason that the Legislature in sections 35113 and 35115, in effect, has fixed later steps in the proceeding as the point when such jurisdiction attaches. Section 35106, Government Code (pursuant to which the Hayward City Council consented to the commencement of the annexation proceedings), provides: "The consent of the city legislative body shall be obtained before any proceedings are commenced pursuant to this article." (No procedure is provided for obtaining this consent.) Then follow sections 35108 and 35109 relating to the necessity of a report of the planning commission being received before consent may be given. Apparently, these sections contemplate that upon being asked for consent, the legislative body will request a report from the commission. However, in this case, the report of the planning commission was received by the Hayward City Council the same day and apparently at the same time the request for consent was received. Section 35110 prohibits annexation of territory of another city. Section 35111 requires publication by the proponents of a notice of intention to circulate a petition for annexation. Section 35112 provides for filing after publication, a copy of this notice and an affidavit of publication. Then we come to section 35113, which for the first time in the plan provided by the code for annexing territory mentions the effect of these proceedings on other proceedings. After providing that the legislative body may adopt a resolution acknowledging receipt of the notice of intention to circulate a petition for annexation, and approving circulation of the petition, it states: "A petition asking for the annexation of any portion of the territory described in the notice, shall not be filed with any other city for 50 days after the adoption of such a resolution." Then follows section 35114 providing that 21 days after the publication of the notice provided for in section 35111 the petition may be circulated. Section 35115 provides that when a petition for annexation has been received by the legislative body and until such annexation has been defeated by the electors, no other petition for the annexation of any portion of the territory included in the first petition shall be presented to the legislative body of any other city and no other legislative body shall submit the question of annexation to its electors. Thus the code contemplates that upon the adoption by a city council of the resolution provided for in section 35113, exclusive jurisdiction *467 over the territory exists for 50 days. [fn. *] Then if the petition for annexation is filed the exclusive jurisdiction continues unless the annexation is defeated by the voters. ( 35115.)
The reference in section 35115 to a petition "received" is not to the consent required by section 35106, where there can be no petition for annexation filed or "received." The petition contemplated by section 35106 is the type of petition which was filed here--a petition for consent to commence proceedings for annexation. When that consent is gained, then a notice of intention to circulate a petition for annexation is published. Then the city council approves the circulation of the petition. It is then that exclusive jurisdiction attaches. It continues if the petition for annexation is thereafter filed. Section 35106 says that before any proceedings are commenced the consent must be obtained. Thus the giving of consent is a preliminary requirement which cannot confer exclusive jurisdiction on the consenting body over the territory as to which proceedings actually may or may not be commenced. If exclusive jurisdiction attached at the time of giving consent, why the necessity of section 35113 or section 35115?
In Foth v. City of Long Beach (1954), 125 Cal.App.2d 520, 528 [270 P.2d 868], appears the language "An annexation proceeding is commenced when the consent of the city legislative body is obtained. ( 35106.)" That language was not a determination of the meaning of that section as that question was not before the court. It was merely a prefatory remark and cannot be authority here. The sole question before the court there was whether protestants had been given a fair hearing before the city council. The interpretation of that section was not involved. Nor are authorities from other states, such as Town of Greenfield v. City of Milwaukee (1951), 259 Wis. 77 [47 N.W.2d 292], holding that it is the first procedural step which controls, applicable here. In none of those states are the statutes similar to ours.
The next proceeding in time was the petition for incorporation filed at 2 p. m. March 1st with the board of supervisors. Section 34303 provides "Proceedings [for incorporation] are initiated by filing with the board of supervisors ... a petition ..." Section 34303.5 provides that no petition for incorporation may be circulated or filed with *468 the board of supervisors and that neither the board nor the clerk shall accept any such petition for filing, until the proposal for incorporation has been submitted to and reported upon to the proponents by the county boundary commission. Sections 34304, 34304.5 and 34305 prescribe the form and contents of the petition. Section 34306, the board shall cause its clerk to ascertain if the petition has the requisite number of qualified signers and if it correctly described the proposed boundaries, and report within 30 days. Section 34307 provides that the board is without jurisdiction to proceed further if the clerk's report shows that the petition does not have the requisite number of qualified signers or that the boundaries are inaccurately described. Section 34308 is to the effect that if the clerk's report shows that the petition complies with the law in certain respects "the board shall direct its clerk to accept the petition for filing and to file it when the petitioners have deposited with him the amount of money fixed by the board to defray the costs of the publication of the petition and the notice of election." (Emphasis added.) Section 34309: "If the money is deposited with the clerk within fifteen days after he is directed to accept the petition for filing, he shall thereupon file the petition."
There seems to be a conflict between the provisions of section 34303 and of section 34308. Section 34303 says the "Proceedings are initiated" by "filing" with the board a petition for incorporation. Section 34308 says that if the report of the clerk shows the petition to be proper in certain respects, the board shall direct the clerk to accept the petition for filing and file it when he shall have received certain moneys. Section 34309 provides that if he receives the moneys within 15 days he shall thereupon file the petition. The substance of sections 34303, 34308 and 34309 were originally in section 2, Statutes of 1883, chapter 49. As amended by Statutes of 1927, page 544, the section provided that the petition shall first be "presented" to the board, after publication for two weeks giving the time at which it was to be "presented." When "presented" the board must hear it. In 1933 (Stats. 1933, chap. 394, 2) the section was amended in certain respects, one of which was the elimination of the requirement that the petition be published, but the section still used the word "presented," and read in other respects practically the same as sections 34308 and 34309. In codifying section 2 the language inserted in section 34303 was changed *469 to "Proceedings are initiated by filing with the board of supervisors at a regular meeting a petition ..."
In its 1935 report (and in each biennial report thereafter) the California Code Commission has stated that it has adopted a policy "not to make substantive changes, but to confine its work to a compilation, consolidation, and clarification of the existing law." [fn. *] The same policy is expressed in section 2, Government Code. Having in mind that statement and policy, the provisions of the statute codified, as well as the provisions of sections 34308 and 34309, to the effect that while the clerk is directed to accept the petition for filing he may not file it until the required money is paid, it is clear that the meaning of the word "filing" is not technical filing but is "presenting." A check of the Code Commission records fails to show any indication of an intent to make any change in the law as it was prior to codification nor any indication that the draftsman thought that the language used would result in a substantive change.
[3] That the word "filing" in section 34303 really means "presenting" is shown by the provisions of section 34303.5, which states that no petition may be "filed" with the board, nor shall the clerk "accept ... for filing" any petition until the boundary commission has reported to the proponents. Significantly, section 34308 dealing with the action of the board after it has referred the petition to the clerk and received a favorable report uses the language of section 34303.5 in providing that the board may now direct the clerk to "accept ... for filing" the petition. However, he must not file it until he has received the money required by the board. The procedure contemplated by the code would include the "presenting" of the petition for incorporation to the board, accompanied by the boundary commission report theretofore obtained by the proponents, the clerk's report as ordered by the board, the payment of the money, and then, for the first time, the actual filing of the petition.
[4] This brings us to the question of whether the statement in section 34303 that the proceedings are initiated by presenting the petition, having in mind the later provision that the actual filing does not take place until certain requirements are met, was intended to confer upon the board complete control over the proposed territory. We do not think so. In annexation proceedings, as we have shown, it is not the *470 preliminary proceedings which the Legislature has determined shall give control, but the point when the governing body has approved the circulation of the petition for annexation. In incorporation proceedings it is the point where the petitioners for incorporation have completed their work, namely, the payment of the costs fixed by the board--and the board is obligated to call the election.
It is significant that when the incorporation sections were amended in 1933 they eliminated the provision that the affidavit of three qualified electors certifying to the genuineness of the signatures on the petition for incorporation was prima facie evidence of the requisite number of signers, and in place thereof provided that the board must cause the clerk to determine this question and report back ( 34306.) [5] Essential to the jurisdiction of the board is a proper petition signed by the requisite number of qualified signers. (People v. Town of Linden, 107 Cal. 94, 99 [40 P. 115].)
The statements in People v. Town of Corte Madera, supra, 115 Cal.App.2d 32, 38, "The rule conferring priority on the first city to file is part of the public policy of the state," (held in People v. City of Monterey Park, supra, 40 Cal.App. 715, to be declaratory of the existing common law) and "priority is granted to that city first instituting proceedings," are not contrary to the determination made in this case. It is that very rule we are applying here. The question which is not passed upon in either of the last mentioned cases is when a city "files" or institutes proceedings. [6] This we have determined in annexation proceedings is when under section 35113 the legislative body adopts a resolution acknowledging receipt of the notice of intention to circulate a petition for annexation, and approving its circulation. In proceedings to incorporate a city, it is when, under section 34308, the clerk, following the direction of the board of supervisors, has received the petitioner's money and has filed the petition for incorporation.
Conclusion
The Hayward City Council's consent to the commencement of annexation proceedings (February 10th), the presentation to the board of supervisors of the petition for incorporation (March 1st, 2 p. m.) gave neither board the exclusive jurisdiction of the territory included in the respective petitions. Under the provisions of section 35113 the action of the Hayward City Council on March 1st, 8 p. m. gave that body *471 the exclusive control over the territory. Therefore the Board of Supervisors of Alameda County has no power to proceed with the petition for incorporation of Union City.
The alternative writ is discharged and the peremptory writ is denied.
Peters, P. J., and Wood (Fred B.), J., concurred.
NOTES
[fn. *] *. Respondents claim initially that the adoption of this resolution gave the city of Hayward and the annexation proceedings exclusive jurisdiction over the territory involved. The annexation proceedings are pursuant to Annexation Act of 1913 (Gov. Code, pt. 2, div. 2, tit. 4, chap. 1, art. 2, 35106 et seq).
[fn. ] . It is the adoption of this resolution which petitioners claim gave the Alameda County Board of Supervisors and the incorporation proceedings exclusive jurisdiction over the territory. This proceeding is pursuant to Gov. Code, pt. 1, div. 2, tit. 4, chap. 1, 34300 et seq.
[fn. *] *. In Johnson v. City of San Pablo, 132 Cal.App.2d 447, 449 [283 P.2d 57], the action of the San Pablo City Council under section 35113 was considered the date upon which exclusive jurisdiction would have attached had the proceedings been regular.
[fn. *] *. Report of California Code Commission, 1949, page 8.
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-7742
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
WILLIAM HASKINS, a/k/a Julio, a/k/a K.C.,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Bluefield. David A. Faber, Senior
District Judge. (1:95-cr-00072-7)
Submitted: April 16, 2015 Decided: April 20, 2015
Before AGEE and KEENAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
William Haskins, Appellant Pro Se. Miller A. Bushong, III,
OFFICE OF THE UNITED STATES ATTORNEY, Beckley, West Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
William Haskins appeals from the district court’s order
denying his 18 U.S.C. § 3582(c)(2) (2012) motion for reduction
of his sentence based on Amendment 750 to the U.S. Sentencing
Guidelines Manual. We affirm.
The district court properly concluded that it lacked
authority to grant a sentence reduction under § 3582(c)(2)
because Haskins’ Guidelines range was driven by his career
offender designation and not the crack cocaine Guidelines
provisions. See United States v. Munn, 595 F.3d 183, 187 (4th
Cir. 2010). To the extent that Haskins challenges the continued
viability of that designation, such a claim is not properly
pursued in a § 3582(c)(2) motion. See Dillon v. United States,
560 U.S. 817 (2010) (explaining that § 3582(c)(2) does not
authorize full resentencing, but permits sentence reduction only
within narrow bounds established by the Sentencing Commission).
Accordingly, we affirm the district court’s order. See
United States v. Haskins, No. 1:95-cr-00072-7 (S.D.W. Va. Aug.
31, 2012). 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
2
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409 Mass. 292 (1991)
565 N.E.2d 1195
JUDITH M. PARE
vs.
DAVID L. PARE.
Supreme Judicial Court of Massachusetts, Essex.
December 5, 1990.
January 30, 1991.
Present: LIACOS, C.J., ABRAMS, O'CONNOR, & GREANEY, JJ.
Douglas M. Watson for Judith M. Pare.
*293 GREANEY, J.
After the trial of a complaint for an equitable division of marital property brought by Judith Pare (wife) against David Pare (husband) pursuant to G.L.c. 208, § 34 (1989 Supp.),[1] a judge of the Probate and Family Court entered a judgment dividing the parties' interests in the marital home. The wife appealed from the judgment, and we transferred the case to this court on our own motion. We conclude that the judge erred in dividing the property as he did, and that he should address another issue raised by the wife. Accordingly, we reverse the judgment and remand the case for further proceedings.
We take the facts from the judge's findings and from the uncontradicted evidence and materials before him. The parties were married in 1969. They have one child, a daughter, born on June 9, 1976. In 1978, using joint savings and a loan, the parties purchased a single family home in Lynn for $22,900. This property became the marital home. Five months later, the wife and daughter moved out. Neither the wife nor the daughter has lived in the home since then. The judge found that "[the husband] was exclusively responsible *294 for payment of all costs and expenses associated with said property from [the time that the wife and daughter left] to the time of the divorce in 1982, and to the present." These costs and expenses principally involved the mortgage, taxes, and insurance. The husband testified on direct examination, however, that his live-in girlfriend supports him and pays the mortgage.[2]
In addition to contributing to the down payment on the house, the wife contributed to the mortgage payments in the months that she lived there. The wife also was the principal homemaker and caretaker of the minor child. After the separation, so far as the record indicates, the wife has been virtually the exclusive caretaker of the daughter. The wife has received no assistance from the husband during this time. She has supported herself and the daughter at first by relying on public assistance, and later by maintaining two jobs.
On February 19, 1982, the wife was granted a divorce from the husband on the basis of cruel and abusive treatment. The judgment of divorce nisi provided, among other things, that the wife would have sole custody of the daughter; the husband was to pay $80 weekly for the support of the wife and daughter; and the husband was to pay the daughter's reasonable medical, dental, and hospital expenses. There was no assignment of the marital property at the time of the divorce.
Since the divorce, the husband consistently has failed to meet his support obligations, causing the wife to prosecute several contempt complaints to collect support. The husband also has failed to pay (or provide insurance coverage for) the daughter's medical and dental bills.[3] The wife has been forced to pay premiums of $364 monthly for medical insurance for the daughter. By February, 1987, when the trial on *295 the wife's complaint for property division was held, the husband was in arrears on his support obligations by at least $4,045. At the same time, the daughter's accrued, uninsured medical expenses were approximately $20,000.
The husband has neglected the marital home as well. The property was in good condition when the parties bought it. By the time of the wife's complaint, however, the house was, in the words of the husband, "[r]un-down and in bad need of repair." The husband testified the home had fallen into disrepair because he had been unemployed and unable to pay for upkeep and repairs.
On August 26, 1987, the wife filed a complaint for property division. The only property in dispute was the marital home, which the parties agreed had a value of $75,000 in 1989 when the trial was held. The wife sought an order determining the parties' respective rights in the marital property and requiring that the husband's interest be held as security for past and future child support (including medical and dental expenses) owed. Following a trial, the judge ordered that the property be sold, that the proceeds first be applied to pay off the mortgage ($17,000) and costs of sale, and that the balance be split 75% - 25% between the husband and wife respectively. The judge also ordered that, prior to any sale, the husband have sixty days in which to purchase the wife's interest. The judge rationalized his decision as follows: "The husband has been the sole occupant of the marital property since five months after the parties moved there in 1978. He was exclusively responsible for payment of all costs and expenses associated with said property from that time to the time of the divorce in 1982, and to the present.... [B]ased on the [§ 34] factors ... the parties would be entitled to an equal division of the property, but for the husband's contributions to said property as described above. For his contribution ... an additional 25% of the proceeds from the sale of the marital home to the husband is warranted." In his written decision, the judge did not mention the wife's request that the husband's interest be applied or *296 held as security for past and future obligations of support for the daughter and for her medical and dental expenses.[4]
The wife does not dispute the orders that the husband be given the opportunity to purchase her interest, and failing that, that the property be sold. The wife challenges the judge's division of property and his failure to address her request that her husband's interest be held as security. Specifically, she argues: (1) the division of property was plainly wrong because the judge attached too much importance to the husband's payment of the mortgage, taxes, insurance, and other bills after she left the house, and because he failed to weigh fairly the enumerated § 34 factors; and (2) the judge erred in failing to consider her request that the husband's interest be applied or set aside as security for past and future child support owed, as well as for past and future medical and dental bills of the minor daughter.
1. We consider first the issue of the fairness of the division. Under G.L.c. 208 § 34, a judge has broad discretion to divide marital property equitably. See Drapek v. Drapek, 399 Mass. 240, 243 (1987). Of course, that discretion is not unlimited. See Handrahan v. Handrahan, 28 Mass. App. Ct. 167, 168 (1989), and cases cited. We require that judges dividing marital property make express findings indicating that all relevant factors under § 34 have been considered. See Rice v. Rice, 372 Mass. 398, 402-403 (1977). We also require that the reasons for the judge's conclusions must be apparent in his decision. See Bowring v. Reid, 399 Mass. 265, 267 (1987). A judgment dividing property that is "plainly wrong and excessive" cannot stand. See Redding v. Redding, 398 Mass. 102, 107 (1986).
*297 The judgment here was plainly wrong and excessive. By focusing on the narrow issue of which spouse paid more toward the house, the judge overlooked the principle that "[t]he concept of property assignment or equitable division under [§ 34] must be read to apply in a broad sense to the value of all contributions of the respective spouses towards the marital enterprise; it contemplates something more than determining which spouse's money purchased a particular asset (emphasis added)." Putnam v. Putnam, 5 Mass. App. Ct. 10, 17 (1977). Although the wife was not contributing to the mortgage, tax or insurance payments for roughly three and one-half years before the divorce, she was, with considerable difficulty and without any help from the husband, supporting and caring for their daughter. This support provided by the wife included the payment of rent to maintain a home for the daughter, major medical expenses, and the normal costs of raising a child. The wife also provided the sole emotional care and nurturing for the daughter during a period that the record reflects to have been very difficult. The considerable expenses incurred by the wife to support the daughter, and the wife's provision of love and support, offset the husband's payment of the mortgage and other expenses on the marital home. The same conclusion applies to the efforts made by the wife during the period between the divorce and the disposition of the property division complaint.
In addition, because of his reliance on the fact that the husband made more mortgage payments than the wife, and paid taxes and insurance, it appears that the judge implicitly may have credited the husband with the roughly $52,000 of appreciation in value of the house. There is no sound basis for doing so. When the wife and daughter left in 1978, the house was in good condition. Since then, the house has become (in the husband's own words) "[r]un-down and in bad need of repair." Thus, appreciation in the value of the property is attributable to rising real estate values generally, rather than to any efforts by the husband. This is no reason to award the husband a larger share of the proceeds from the sale of the house. See Willis v. Willis, 27 Mass. App. Ct. *298 1144, 1144-1146 (1989). Contrast Savides v. Savides, 400 Mass. 250, 253 (1987).
The case comes down to this. After years as the primary housekeeper and caretaker for the daughter, and after contributing to the acquisition of the marital home, the wife left to avoid (as the divorce judgment indicates) cruel and abusive treatment. After the separation, the wife continued to care for the minor daughter, while the husband allowed the marital home the sole asset of the marriage of any value to become dilapidated. During the separation, the wife was virtually the exclusive caretaker of the daughter. She received no assistance from the husband during this time, and supported herself and the daughter, with considerable hardship. In view of these circumstances, the judge's division was inequitable.[5] See Grubert v. Grubert, 20 Mass. App. Ct. 811 (1985).
2. We turn to the issue of the wife's request for security for the minor child's past and future support and medical expenses. General Laws c. 208, § 28 (1988 ed.), provides in relevant part that "[u]pon a judgment for divorce, the court may make such judgment as it considers expedient relative to the care, custody and maintenance of the minor children of the parties...." Building on § 28, G.L.c. 208, § 36, provides, in pertinent part: "When ... support is adjudged for the ... children, the court may require sufficient security for its payment according to the judgment." Other provisions of these statutes do not limit the force of these specific provisions. Thus, §§ 28 and 36 together confer on probate judges broad discretion to fashion judgments in divorce proceedings *299 that will best protect the interests and welfare of the parties' minor children.[6]
Although we have not decided the precise question presented here, we have not ruled out the possibility that probate judges have the authority to enter orders of the type requested by the wife. See Bush v. Bush, 402 Mass. 406, 409-410 (1988) (assuming that § 28 authorizes probate judges to order that equity of marital home be placed in trust for benefit of minor children); Levine v. Levine, 394 Mass. 749, 751 n. 1 (1985) (implying that § 28 might authorize the assignment of marital property to a minor child). Cf. Gould v. Gould, 359 Mass. 29, 32 (1971) ("[under § 36,] the court may require sufficient security for the payment of alimony," quoting Dunnington v. Dunnington, 324 Mass. 610, 612 [1949]); Greenia v. Greenia, 206 Mass. 449, 450 (1910) (noting that, under predecessor to G.L.c. 208, § 37, the court could appoint trustees to hold property for the use of the children). Moreover, a number of other jurisdictions (generally construing similar statutes) have held or assumed that probate judges have the authority to enter such orders in circumstances analogous to those here. See Hinchey v. Hinchey, 722 P.2d 949, 950-953 (Alaska 1983); Farley v. Farley, 227 Cal. App.2d 1, 4-5, 7, cert. denied, 379 U.S. 945 (1964) (applying Utah law); Rosenberg v. Rosenberg, 201 So.2d 615, 615-616 (Fla. App. 1967); Jones v. State, 85 Idaho 135, 137-139 (1962); In re Marriage of Olsher, 78 Ill. App.3d 627, 637 (1979); Ulrich v. Ulrich, 400 N.W.2d 213, 217-218 (Minn. Ct. App. 1987); Guggenheimer v. Guggenheimer, 99 N.H. 399, 401-403 (1955); Mitchell v. Mitchell, 283 S.C. 87, 92 (1984); Bryant v. Bryant, 68 Wash.2d 97, 99-101 (1966); Foregger v. Foregger, 40 Wis.2d 632, *300 648a-648b (1968). Cf. Fitts v. Fitts, 231 Ga. 528, 529 (1973), reversed in part, Coleman v. Coleman, 240 Ga. 417, 423 (1977) (ordering creation of trust pursuant to jury verdict). See generally Annot., Court's Establishment of Trust to Secure Alimony or Child Support in Divorce Proceedings, 3 A.L.R.3d 1170 (1965).
We conclude that, pursuant to §§ 28 and 36 of G.L.c. 208, a probate judge presiding over a divorce proceeding has the authority to enter orders that are designed to secure a spouse's duty to provide support or benefits to a minor child of the marriage. Whether to enter such orders in a given case, as well as the specific form that any order or orders should take, are matters within the judge's broad discretion, to be exercised upon consideration of all relevant circumstances.
The judge in this case did not address the wife's request for an order of security for the husband's obligations of past and future child support and medical and dental expenses. The judge may have thought that he lacked authority to make such an order. The judge may also have concluded that the husband was not obligated to the daughter after losing his job,[7] or he may have decided, in the exercise of his discretion, not to take the action requested by the wife. Whatever the reason, reversal is necessary. If the judge assumed that he had discretion but simply refrained from exercising it, he should have responded to the wife's request by including in his recorded conclusions of law a statement describing that he was doing so and why. Cf. Rice v. Rice, 372 Mass. 398, 402-403 (1977).
*301 There was evidence at the hearing that the husband's arrears on past child support obligations, including medical and dental expenses, are substantial. On remand, after a new division of the marital property is made, the judge shall determine the exact extent of the husband's current arrearages, then enter an order that these shall be paid out of the husband's interest in the house. The judge then shall consider the wife's request that a portion of the husband's proceeds from the sale of the house be set aside as security for his future obligations.
3. The parties are in agreement that the marital property is to be sold if the division is not otherwise successfully concluded. As has been indicated, the wife does not object to an order that allows the husband to purchase her interest. We do not know the current value of the property. The judgment set its maximum value at $75,000 in 1989. In view of the passage of time, the need for a new division of the asset, and the need for further orders pertaining to the issue of child support, we conclude that the judgment should be vacated in its entirety. The case is remanded for further proceedings not inconsistent with this opinion and the entry of a new judgment on the wife's complaint.
So ordered.
NOTES
[1] General Laws c. 208, § 34 (Supp. 1989), provides, in pertinent part:
"Upon divorce or upon a complaint in an action brought at any time after a divorce, whether such a divorce has been adjudged in this commonwealth or another jurisdiction, the court of the commonwealth, provided there is personal jurisdiction over both parties, may make a judgment for either of the parties to pay alimony to the other. In addition to or in lieu of a judgment to pay alimony, the court may assign to either husband or wife all or any part of the estate of the other. In determining the amount of alimony, if any, to be paid, or in fixing the nature and value of the property, if any, to be so assigned, the court, after hearing the witnesses, if any, of each party, shall consider the length of the marriage, the conduct of the parties during the marriage, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties and the opportunity of each for future acquisition of capital assets and income. The court may also consider the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates and the contribution of each of the parties as a homemaker to the family unit."
[2] Except for a brief period as a sheet metal worker and occasional odd jobs, the husband has been unemployed since May, 1985, when he lost his job as a lathe operator at General Electric.
[3] The daughter has received treatment for a number of physical and emotional disorders. Apparently, she will require ongoing medical attention, and the bills for her medical services will be expensive.
[4] The judge applied the § 34 factors as of the date of the divorce, but valued the divisible property as of the date of the order of division. This is the correct procedure where property division takes place in a separate proceeding after the divorce is final, and any post-divorce appreciation (or depreciation) in the value of the divisible property is not fairly attributable to one spouse alone. See Davidson v. Davidson, 19 Mass. App. Ct. 364, 375-376 (1985). See also Willis v. Willis, 27 Mass. App. Ct. 1144, 1145 (1989). Compare Savides v. Savides, 400 Mass. 250, 251-252 (1987).
[5] By St. 1989, c. 559 (effective Feb. 26, 1990), the Legislature amended § 34 by inserting the following sentence: "In fixing the nature and value of the property to be so assigned, the court shall also consider the present and future needs of the dependent children of the marriage." This amendment authorizes the court to consider the needs of the children in dividing the marital property. See 2A Kindregan and Inker, Family Law and Practice § 1022 (1990). Although this provision was not in effect at the time of this property division, for purposes of this appeal, we nevertheless acknowledge the relevant public policy that the amendment represents.
[6] See also G.L.c. 208, § 12 (1988 ed.) ("Upon an action for divorce by either spouse ... the real and personal property of the other spouse may be attached to secure ... support and maintenance ... to such children as may be committed to [the plaintiff's] care and custody"). For cases construing this section, see, e.g., Madden v. Madden, 359 Mass. 356, cert. denied, 404 U.S. 854 (1971); Hill v. Hill, 196 Mass. 509 (1907), and cases cited.
[7] In his findings of fact, the judge noted that "[the judgment of divorce nisi required the husband] to pay the medical expenses for the daughter as long as he was employed." This is incorrect. In fact, while the judgment nisi does provide that the husband need provide no medical insurance for the wife after his coverage through his employer terminates, there was no such limitation as to the daughter. The husband's duty to support the daughter and to pay her reasonable medical, dental, and hospital expenses is continuous during her minority.
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927 A.2d 675 (2007)
CITY OF PITTSBURGH, DEPARTMENT OF PUBLIC SAFETY, Petitioner
v.
UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, Respondent.
Commonwealth Court of Pennsylvania.
Argued May 8, 2007.
Decided June 13, 2007.
Reargument Denied August 9, 2007.
*676 Hugh F. McGough, Pittsburgh, for petitioner.
Maribeth Wilt-Seibert, Asst. Counsel, Harrisburg, for respondent.
BEFORE: LEADBETTER, President Judge, SMITH-RIBNER, Judge, and SIMPSON, Judge.
OPINION BY Judge SMITH-RIBNER.
The City of Pittsburgh (Employer) petitions the Court for review of the October 13, 2006 order of the Unemployment Compensation Board of Review (Board) that reversed a decision of the referee to deny the claim for unemployment compensation benefits filed by Eva J. McCaskill (Claimant). Benefits were denied pursuant to Section 402.1(4) of the Unemployment Compensation Law (Law), Act of December 5, 1936, Second Ex.Sess., P.L. (1937) 2897, as amended, added by Section 5 of the Act of July 6, 1977, P.L. 41, 43 P.S. § 802.1(4).
Claimant works as a school crossing guard providing school safety services for the Pittsburgh Public School District. She has worked in this capacity for approximately twenty-six years and works thirty hours per week at the pay rate of $60.61 per day. Her last day of work was June 15, 2006. The Unemployment Compensation Service Center (Service Center) denied Claimant benefits under Section 402.1(4) of the Law, and she appealed to the referee who conducted a hearing at which Claimant and two Employer witnesses testified. After hearing the evidence, the referee affirmed the Service Center's determination that Claimant was ineligible for benefits because the Collective Bargaining Agreement (CBA) between Employer and Claimant's union provided her reasonable assurance of returning to work on August 24, 2006 after the school summer vacation recess. The Board, however, reversed the referee's decision after making the following relevant findings of fact:
2. The claimant provides services to the Pittsburgh Public School District for the safety of school children.
3. The claimant works in accordance with the school calendar.
4. The claimant has reasonable assurance of returning to work with the employer on August 24, 2006, at the end of the summer break.
5. The claimant is not employed by an educational institution or an educational service agency.
The Board credited Claimant's testimony, found that she was employed by the City of Pittsburgh and, on that basis, concluded that she was not ineligible for benefits.[1]
*677 The question presented by Employer is whether Claimant, as a school crossing guard, is employed by an educational service agency as that term is internally defined by Section 402.1(4) of the Law and, therefore, is ineligible for benefits during the period when schools are closed for summer recess. Section 402.1(4) provides in relevant part as follows:
Benefits based on service for educational institutions
. . . .
(4) With respect to weeks of unemployment beginning after January 1, 1979, benefits shall be denied to an individual who performed services in or near an educational institution while in the employ of an educational service agency for any week which commences during a period described in clauses (1), (2) and (3) [relating to services performed for an educational institution] if such individual performs any services described in clause (1) or (2) in the first of such periods, as specified in the applicable clause, and there is a contract or a reasonable assurance, as applicable in the appropriate clause, that such individual will perform such services in the second of such periods, as applicable in the appropriate clause. For purposes of this clause the term "educational service agency" means a governmental agency or governmental entity which is established and operated exclusively for the purposes of providing such services to one or more educational institutions. A political subdivision or an intermediate unit may establish and operate such an educational service agency. (Emphasis added).
Employer argues that the Board erred in finding that Employer failed to meet the definition of the term educational service agency, and it cites School District of Erie v. Pennsylvania Labor Relations Board, 832 A.2d 562 (Pa.Cmwlth.2003), to argue that where, as here, a statute contains an internal definition of a term, the meaning of the term found within the statute is controlling.
Employer asserts that it satisfies the definition of "educational service agency" in Section 402.1(4) of the Law because it established the Office of School Guards solely to provide a safety service to schools. It further maintains that Claimant is ineligible for benefits because the school guards' work constitutes services performed "in any other capacity for an educational institution," thereby disqualifying her for benefits under Section 402.1(2) of the Law, which provides:
(2) With respect to services performed after October 31, 1983, in any other capacity for an educational institution, benefits shall not be paid on the basis of such services to any individual for any week which commences during a period between two successive academic years or terms if such individual performs such services in the first of such academic years or terms and there is a reasonable assurance that such individual will perform such services in the second of such academic years or terms. (Emphasis added).
The Board responds that its determination is based upon a liberal and broad construction of Section 402.1(4) of the Law and its legislative history. The Board submits that Employer failed to prove that it is an educational service agency, i.e., Employer is not a governmental agency established and operated exclusively for the purpose of providing school crossing guards to schools. Next, the Board contends that Employer did not prove that it *678 established an educational service agency because the Office of School Guards is not a governmental entity with an administration, budget or CBA separate from Employer.
In further support of its position, the Board cites Borough of Pleasant Hills v. Unemployment Compensation Board of Review, 64 Pa.Cmwlth. 410, 440 A.2d 679 (1982), where the Court held that school crossing guards were eligible for benefits in part because they did not seek benefits for a period of unemployment during the summer months but rather for a period during the scheduled academic year during which they were unemployed through no fault of their own. They were unemployed because of a teachers' strike, which resulted in the school year commencing on October 19, 1979 instead of on September 4, 1979 as scheduled. Also, the guards were not ineligible for benefits because they did not participate in the teachers' strike, and they did not perform services for an educational institution under Section 402.1(2) of the Law.
The Court notes at the outset that it does not find Borough of Pleasant Hills to be dispositive of the issue presented here. The school crossing guards in Borough of Pleasant Hills were not precluded from receiving benefits for the time during the school year when they were unemployed due to the teacher's strike and thus unemployed through no fault of their own. Section 402.1(4) of the Law was not addressed in that case where the Court's decision rested upon Section 401(d) of the Law, 43 P.S. § 801(d), which requires a claimant to be available for work to be eligible for benefits, and upon Section 402.1(2) of the Law, which applies to those claimants who provide services to an educational institution.
When interpreting statutes, the Court must first seek to determine the legislative intent and, whenever possible, give effect to each statutory provision. See Section 1921(a) of the Statutory Construction Act of 1972, 1 Pa.C.S. § 1921(a). The Court will follow the letter of the law when the words and phrases in a statute are unambiguous. 1 Pa.C.S. § 1921(b). Hence, the Court will consider an agency's administrative interpretation of a statute only when that statute's language is unclear. 1 Pa.C.S. § 1921(c); Office of Administration v. Pennsylvania Labor Relations Board, 591 Pa. 176, 916 A.2d 541 (2007). Thus an administrative agency's interpretation of a statute carries minimal weight when that interpretation is inconsistent with the statute itself or when the words of the statute are clear.
A careful review of Section 402.1(4) of the Law demonstrates that its language is clear and unambiguous, and, therefore, the Court need not defer to the Board's interpretation of the term educational service agency. An educational service agency is defined within the meaning of Section 402.1(4) as "a governmental agency or governmental entity which is established and operated exclusively for the purposes of providing such services to one or more educational institutions." 43 P.S. § 802.1(4). Uncontroverted evidence shows that Employer established and operates the Office of School Guards exclusively for the purposes of providing school safety services to educational institutions in Pittsburgh.
There is evidence that the Office of School Guards operates under Order No. 13-1 of the Pittsburgh Bureau of Police. Employer Exh. 1 (Organizational Structure/Function Pittsburgh Bureau of Police); Reproduced Record (R.R.) at 36a. The record shows that the services of the school guards are specifically budgeted to correspond with the school calendar. Employer Exh. 2 (City of Pittsburgh, Pennsylvania *679 2006 Revised Operating Budget); R.R. at 41a. Further, the hours of employment for the school guards coincide with the schedules of the schools and school buses. Employer Exh. 3 (CBA Between the City of Pittsburgh and Service Employees International Union, Local 192-B); R.R. at 64a-65a. This evidence is consistent with the uncontradicted testimony provided by Hugh McGough, Labor Relations Manager, that Employer created the Office of School Guards and operates it solely to provide safety services to schools. See Notes of Testimony at 5. In light of the evidence, the Court holds that Employer, a political subdivision, established and operates an educational service agency within the meaning of Section 402.1(4) of the Law through the Office of School Guards, which was established and operates exclusively for purposes of providing services to one or more educational institutions.
In the present matter, Claimant seeks benefits for that period of time when she expected to be out of work at the end of the school year, and there is no dispute that she expected to return to work when school resumed after the summer recess. Under these distinguishing facts, the Court cannot agree that the legislature intended for the Court to interpret Section 402.1(4), Section 402.1(2) or any other provision of the Law to permit Claimant to receive benefits for the time period she requested. See Davis v. Unemployment Compensation Board of Review, 39 Pa. Cmwlth. 146, 394 A.2d 1320, 1321 (1978) (stating that legislative intent of unemployment compensation laws is not to subsidize vacation times for individuals who "know well in advance" that they may be unemployed for specific periods of time).
It is true that the Board is the ultimate finder of facts with discretion to make credibility determinations and to resolve conflicts in the evidence and that the Court will not reverse on appeal when its findings are supported by substantial evidence. Chiccitt v. Unemployment Compensation Board of Review, 842 A.2d 540 (Pa.Cmwlth.2004). The Board found Claimant credible; it resolved conflicts in the testimony in Claimant's favor and found that she was employed by the City of Pittsburgh. Employer's evidence, however, regarding the establishment and operation of the Office of School Guards and Claimant's testimony that she is employed by the City present no legally significant conflict. What governs the outcome of this case is the unambiguous statutory direction in Section 402.1(4) of the Law that precludes Claimant's eligibility for benefits during her school summer recess. Because the Board erred in its interpretation of the statute, the Court is compelled to reverse the order of the Board.
Judge SIMPSON dissents.
ORDER
AND NOW, this 13th day of June, 2007, the order of the Unemployment Compensation Board of Review is reversed.
NOTES
[1] The Court's review of the Board's order is limited to determining whether constitutional rights were violated, whether an error of law was committed, whether a practice or procedure of the Board was not followed and whether the findings of fact are supported by substantial evidence. 2 Pa.C.S. § 704; Leone v. Unemployment Compensation Board of Review, 885 A.2d 76 (Pa.Cmwlth.2005). Substantial evidence has been defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Murphy v. Department of Public Welfare, White Haven Center, 85 Pa.Cmwlth. 23, 480 A.2d 382, 386 (1984).
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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
CITIZENS FOR RESPONSIBILITY )
AND ETHICS IN WASHINGTON, )
)
Plaintiff, )
) Civil Action No. 07-2003 (EGS)
v. )
)
U.S. DEPARTMENT OF DEFENSE, )
DEFENSE INFORMATION SYSTEMS )
AGENCY, )
)
Defendant. )
)
MEMORANDUM OPINION
Plaintiff, Citizens for Responsibility and Ethics in
Washington (“CREW”), brings this action against the Defense
Information Systems Agency (“DISA”) of the United States
Department of Defense (“DOD”) pursuant to the Freedom of
Information Act (“FOIA”), 5 U.S.C. § 552. Plaintiff seeks all
email communications from certain email addresses associated with
the Republican National Committee (“RNC”) that came into or went
out of any email systems maintained or controlled by the White
House Communications Agency (“WHCA”). Pending before the Court
is Defendant’s Motion for Summary Judgment. Upon consideration
of the motion, the response and reply thereto, the applicable
law, and the entire record, Defendant’s Motion for Summary
Judgment is GRANTED IN PART and DENIED IN PART, without
prejudice.
I. BACKGROUND
CREW is a non-profit corporation “committed to protecting
the right of citizens to be informed about the activities of
government officials and to ensuring the integrity of government
officials.” Compl. ¶ 4. In order to disseminate information
about public officials and their actions, CREW relies on
government records made available to it under FOIA. Compl. ¶ 4.
DISA is a combat support agency that is responsible for all
aspects of “global net-centric solutions” to serve the needs of
the President, Vice-President, Secretary of Defense, and others.
Decl. of Laurie Ann Kwiedorowicz (“Kwiedorowicz Decl.”) ¶ 2.
Among other things, DISA provides advanced information technology
support to the White House Military Office (“WHMO”) and WHCA.
Kwiedorowicz Decl. ¶ 2. WHMO is a component of DOD and “provides
all advice and services to the President and the White House
regarding military support.” Kwiedorowicz Decl. ¶ 3.
WHCA, in turn, is a component of WHMO. Kwiedorowicz Decl.
¶ 4. WHCA provides “worldwide communications capabilities to the
President and his staff,” which includes maintaining the
“whmo.mil” internet domain and providing usernames and email
accounts ending in “whmo.mil” to DOD personnel who work in WHMO.
Kwiedorowicz Decl. ¶¶ 4-5. While WHCA and DISA are separate
components of DOD, WHCA’s funding is provided through DISA’s
2
appropriation budget and DISA manages all personnel actions of
WHCA’s military and civilian employees. Kwiedorowicz Decl. ¶ 6.
In a letter dated May 3, 2007, CREW submitted a FOIA request
to DISA for certain records maintained by WHCA and sought
expedited processing of that request. See Compl. Ex. 1, Pl.’s
FOIA Request at 1, 3. Specifically, CREW requested “[a]ny and
all emails that came into or went out of any email system
maintained or controlled by WHCA between January 1, 2001 and the
present that were from or to the following email addresses: (1)
gwb43.com; (2) rnchq.org and (3) georgebush.com.”1 Def.’s
Statement of Material Facts (“SMF”) ¶ 1; Pl.’s FOIA Request at 1.
DISA acknowledged receipt of the request on May 8, 2007, but
advised CREW that, due to a backlog of FOIA requests and limited
resources, DISA would be unable to comply with the statutory time
requirement for processing CREW’s request. Compl. Ex. 2, Letter
from DISA to CREW (May 8, 2007). DISA estimated, however, that
CREW’s request would be processed and completed within 90 days.
After more than six months elapsed without a response from DISA,
CREW filed the instant action on November 6, 2007, seeking to
compel DISA to comply with CREW’s FOIA request. Compl. ¶¶ 2, 23.
1
CREW also sought Karl Rove’s telephone logs, but those phone
logs are no longer at issue in this case. See Def.’s SMF ¶ 2
(“As agreed by the parties, DISA’s search for telephone logs is
not at issue in this case.”); Pl.’s Opp’n Br. at 1 n.1
(“[P]laintiff is not pursuing the telephone log portion of the
request.”).
3
Following the commencement of CREW’s lawsuit, the parties
agreed on a schedule for processing CREW’s request. See Docket
No. 8, Third Meet and Confer Statement ¶ 2 (Apr. 2, 2008).
Pursuant to this agreement, DISA identified and produced
thousands of pages of potentially responsive emails, although
some communications were redacted or withheld pursuant to FOIA
Exemptions 2, 5, and 6. See Docket No. 10, Def.’s Status Report
at 1 (May 5, 2008); Docket No. 11, Def.’s Status Report at 1
(June 2, 2008). The parties conferred further and determined
that the only remaining issues were CREW’s challenges to “(1)
defendant’s search for responsive documents; (2) defendant’s use
of FOIA Exemption 5; and (3) defendant’s redactions of some
individuals’ names and email addresses.” Docket No. 14, Parties’
Joint Status Report and Request for Briefing Schedule at 1 (Aug.
8, 2008). On November 14, 2008, defendant filed its motion for
summary judgment on these issues. Based on information provided
in defendant’s motion for summary judgment, CREW conceded the
propriety of DISA’s redactions under FOIA Exemptions 2 and 6.
See Pl.’s Opp’n Br. at 1. Accordingly, the only issues remaining
before the Court are (i) the reasonableness of DISA’s search, and
(ii) the application of the deliberative process privilege - FOIA
Exemption 5.2 See Def.’s Reply Br. at 1.
2
Defendant had also asserted the presidential communications
privilege with respect to a communication identified in Group 10.
See Def.’s Vaughn Index. In its reply brief, however, defendant
indicates that it made a discretionary release of that
4
II. STANDARD OF REVIEW
A. Rule 56
Pursuant to Federal Rule of Civil Procedure 56, summary
judgment should be granted only if the moving party has shown
that there are no genuine issues of material fact and that the
moving party is entitled to judgment as a matter of law. Fed. R.
Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986);
Waterhouse v. District of Columbia, 298 F.3d 989, 991 (D.C. Cir.
2002). In determining whether a genuine issue of material fact
exists, the Court must view all facts in the light most favorable
to the non-moving party. See Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986). When reviewing a
motion for summary judgment in a FOIA matter, the Court reviews
the agency’s decision de novo. Assassination Archives and
Research Ctr. v. CIA, 334 F.3d 55, 57 (D.C. Cir. 2003).
B. FOIA
FOIA provides a “statutory right of public access to
documents and records” held by federal government agencies.
Pratt v. Webster, 673 F.2d 408, 413 (D.C. Cir. 1982). “The
central purpose of FOIA is to ‘open[] up the workings of
government to public scrutiny’ through the disclosure of
government records.” Stern v. FBI, 737 F.2d 84, 88 (D.C. Cir.
communication. Def.’s Reply Br. at 1 n.1. Accordingly, “the
only withholdings still in dispute are those made pursuant to the
deliberative process privilege.” Def.’s Reply Br. at 1 n.1.
5
1984) (quoting McGehee v. CIA, 697 F.2d 1095, 1108 (D.C. Cir.
1983)). Accordingly, FOIA requires agencies of the federal
government to release requested records to the public unless the
documents fall within one or more of nine specific statutory
exemptions. 5 U.S.C. § 552; see Burka v. U.S. Dep’t of Health
and Human Servs., 87 F.3d 508, 515 (D.C. Cir. 1996) (“Because
FOIA establishes a strong presumption in favor of disclosure,
requested material must be disclosed unless it falls squarely
within one of the nine exemptions carved out in the Act.”
(internal citation omitted)). These statutory exemptions must be
narrowly construed in favor of disclosure. Dep't of the Air
Force v. Rose, 425 U.S. 352, 361 (1976). The government bears
the burden of justifying the withholding of any requested
documents through agency affidavits, an index of withheld
documents, or both. U.S. Dep't of State v. Ray, 502 U.S. 164,
173 (1991); Coastal States Gas Corp. v. DOE, 617 F.2d 854, 861
(D.C. Cir. 1980).
“In a FOIA case, the Court may award summary judgment solely
on the basis of information provided in affidavits or
declarations when the affidavits or declarations are relatively
detailed and non-conclusory, and describe the documents and the
justifications for nondisclosure with reasonably specific detail,
demonstrate that the information withheld logically falls within
the claimed exemption, and are not controverted by either
6
contrary evidence in the record nor by evidence of agency bad
faith.” Defenders of Wildlife v. U.S. Border Patrol, 623 F.
Supp. 2d 83, 87 (D.C. Cir. 2009) (internal citations and
quotations omitted).
III. ANALYSIS
A. Adequacy of Defendant’s Search
To prevail on a motion for summary judgment in a FOIA case,
an agency must show “beyond material doubt . . . that it has
conducted a search reasonably calculated to uncover all relevant
documents.” Weisberg v. Dep’t of Justice, 705 F.2d 1344, 1351
(D.C. Cir. 1983); see also Defenders of Wildlife, 623 F. Supp. 2d
at 91 (“The agency bears the burden of showing that its search
was calculated to uncover all relevant documents.”). Because the
agency is the possessor of the records and is responsible for
conducting the search, the Court may rely on “[a] reasonably
detailed affidavit, setting forth the search terms and the type
of search performed, and averring that all files likely to
contain responsive materials (if such records exist) were
searched.” Valencia-Lucena v. U.S. Coast Guard, FOIA/PA Records
Mgmt., 180 F.3d 321, 326 (D.C. Cir. 1999) (citing Oglesby v. U.S.
Dep't of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990)). The
adequacy of an agency’s search is measured by a “standard of
reasonableness” and is “dependent upon the circumstances of the
case.” Weisberg, 705 F.2d at 1351. If the record leaves
7
“‘substantial doubt as to the sufficiency of the search, summary
judgment for the agency is not proper.’” Kowalczyk v. Dep't of
Justice, 73 F.3d 386, 388 (D.C. Cir. 1996) (quoting Truitt v.
Dep't of State, 897 F.2d 540, 542 (D.C. Cir. 1990)).
Plaintiff’s FOIA request sought all emails that came into or
went out of any email systems maintained or controlled by the
WHCA between January 1, 2001 and the present that contained the
following email addresses: gwb43.com, rnchq.org, and
georgebush.com. Compl. ¶ 19. After receiving the request,
personnel at WHCA searched “(1) all ‘active’ emails of current
users of the ‘whmo.mil’ email domain (e.g., emails in the user’s
Inbox, Sent Items, and Deleted Items), and (2) all ‘archived’
emails3 of former account users.” Kwiedorowicz Decl. ¶ 12.
Using an electronic keyword search, any active or archived emails
containing the terms “gwb43.com,” “rnchq.org,” or
“georgebush.com” in the “to,” “from,” “cc,” “bcc,” “subject,” or
message field were identified for further review along with any
attachments to the emails. Kwiedorowicz Decl. ¶ 13.
Approximately 3776 pages of potentially responsive materials were
identified, of which 2301 were produced to plaintiff.
Kwiedorowicz Decl. ¶ 14. WHCA dedicated approximately 365 man-
hours to complete this search. Kwiedorowicz Decl. ¶ 14.
3
WHCA started archiving emails of former account users in
October 2005. Kwiedorowicz Decl. ¶ 12.
8
CREW argues that defendant has failed to establish that it
conducted a reasonable search because defendant (i) searched only
the unclassified “whmo.mil” email domain, Pl.’s Opp’n Br. at 4,
and (ii) failed to search or otherwise account for emails pre-
dating October 2005. Pl.’s Opp’n Br. at 5. The Court will
address both arguments in turn.
First, with regard to the classified emails, defendant
explains that it limited its search to the “whmo.mil” domain
because it is “the only unclassified email domain maintained or
controlled by WHCA.” Kwiedorowicz Decl. ¶ 12 (emphasis added).
The emphasis on “unclassified” is important because “WHCA’s
classified email system does not permit a user of that system to
send emails to or receive emails from an unclassified email
system.” Decl. of Benjamin Pauwels (“Pauwels Decl.”) ¶ 2. It
therefore would have been impossible for any of the RNC-related
communications requested by plaintiff to be transmitted through
WHCA’s classified email system. See Pauwels Decl. ¶ 2 (“[I]t is
impossible for emails to be sent from a WHCA classified email
system to an unclassified email system, such as georgebush.com;
rnchq.org; and gwb43.com. Likewise, it is impossible for emails
to be received by a WHCA classified email system from an
unclassified email system, such as georgebush.com; rnchq.org; and
gwb43.com.”). In other words, as the only unclassified email
domain maintained or controlled by WHCA, “whmo.mil” is the only
9
email system “capable of sending an email to or receiving an
email from unclassified email addresses, such as georgebush.com;
rnchq.org; and gwb43.com.” Pauwels Decl. ¶ 2. Because no other
email domains maintained or controlled by WHCA could contain
potentially responsive emails, the Court concludes that WHCA’s
decision to limit its search to the unclassified “whmo.mil” email
domain was reasonable.
Plaintiff next argues that defendant’s search was inadequate
because “defendant failed to search or otherwise account for
email predating October 2005.” Pl.’s Opp’n Br. at 5. This
argument is based on the fact that WHCA did not begin archiving
emails of former account users until October 2005. See
Kwiedorowicz Decl. ¶ 12. Defendant contends that its search was
reasonable because all active and archived emails were searched
regardless of the email’s date of creation, see Pauwels Decl. ¶ 3
(“No date restrictions were employed in WHCA’s search for
responsive documents.”), and that, as a result, numerous emails
were produced to plaintiff that were sent or received before
October 2005. Pl.’s Opp’n Br. at 3; see also Def.’s Ex. N
(sampling emails predating October 2005 that were produced to
plaintiff); Kwiedorowicz Decl. ¶ 12 (“While the archived .PST
folders were created as early as October 2005, the actual emails
that were archived would in some instances date back prior to
October 2005.”).
10
While the Court concludes that this evidence is sufficient
to establish the reasonableness of defendant’s electronic search
for documents predating October 2005, defendant has failed to
adequately respond to plaintiff’s contention that “to the extent
[emails pre-dating October 2005] are no longer maintained
electronically, defendant [is] required to search for paper
copies of the emails.” Pl.’s Opp’n Br. at 5. Rather than
address plaintiff’s underlying concerns regarding the adequacy of
the department’s search for these documents, defendant vaguely
protests that it is “mere speculation” that additional emails
predating October 2005 were preserved in paper form. See Def.’s
Reply Br. at 4 (“The mere speculation that some additional
responsive emails may not have been preserved electronically, and
the further speculation that these emails would have been
preserved in paper form, cannot support requiring the agency to
engage in a burdensome and fruitless search through its hard copy
files.”). The Court finds defendant’s response unpersuasive in
light of its failure to aver “that all files likely to contain
responsive materials . . . were searched.” Valencia-Lucena, 180
F.3d at 326; see also Oglesby, 920 F.2d at 68 (“It is not clear
from State’s affidavit that the Central Records system is the
only possible place that responsive records are likely to be
located. At the very least, State was required to explain in its
affidavit that no other record system was likely to produce
11
responsive documents.”). Accordingly, the Court concludes that
defendant has failed to demonstrate “beyond material doubt” that
its search with regard to emails predating October 2005 was
“reasonably calculated to uncover all relevant documents.”
Weisberg, 705 F.2d at 1351.
For these reasons, the Court GRANTS defendant’s motion for
summary judgment as to the adequacy of its search for emails from
October 2005 to the present, and DENIES without prejudice
defendant’s motion for summary judgment as to emails pre-dating
October 2005, recognizing that defendant’s searches may have been
adequate and may only suffer from a lack of documentation.
B. Defendant’s Withholdings Pursuant to the Deliberative
Process Privilege
Exemption 5 of FOIA permits an agency to withhold “inter-
agency or intra-agency memorandums or letters which would not be
available by law to a party other than an agency in litigation
with the agency.” 5 U.S.C. § 552(b)(5). This provision applies
to all documents which are normally privileged from discovery.
See NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 148 (1975).
While Exemption 5 should be construed as narrowly as possible,
see Coastal States, 617 F.2d at 868, the “deliberative process”
privilege falls squarely within this exemption. See Senate of
Puerto Rico v. Dep’t of Justice, 823 F.2d 574, 584-85 (D.C. Cir.
1987).
12
The deliberative process privilege may be invoked by an
agency upon the showing that the communication in question is
both predecisional and deliberative. Mapother v. Dep’t of
Justice, 3 F.3d 1533, 1537 (D.C. Cir. 1993) (citing Petroleum
Info. Corp. v. Dep’t of the Interior, 976 F.2d 1429, 1434 (D.C.
Cir. 1992)). A decision will be considered predecisional if “it
was generated before the adoption of an agency policy.” Coastal
States, 617 F.2d at 866. Deliberative communications are those
“reflecting advisory opinions, recommendations and deliberations
comprising part of a process by which governmental decisions and
policies are formulated.” Sears, Roebuck & Co., 421 U.S. at 150.
Documents protected by the deliberative process privilege are
those which would prematurely reveal the personal opinions of the
author or the views of the agency on a decision not yet finalized
at the time the document was created. See Coastal States, 617
F.2d at 866.
The rationale behind the deliberative process privilege is
that public disclosure would prevent “the full and frank exchange
of ideas” from “flow[ing] freely.” Mead Data Cent. v. Dep’t of
the Air Force, 566 F.2d 242, 256 (D.C. Cir. 1977). The privilege
serves to assure agency employees that they can provide a
decisionmaker with their uninhibited opinion without fear of
public scrutiny, to prevent premature disclosure of proposed
policies, and to protect against public confusion through the
13
disclosure of a document advocating or discussing reasons for
policy decisions that were ultimately not adopted. See Am.
Petroleum Inst. v. EPA, 846 F. Supp. 83, 88 (D.D.C. 1994).
In this case, defendant has withheld information in Groups
1-17 of its Vaughn index under the deliberative process
privilege. See generally Def.’s Ex. M, Def.’s Vaughn Index.
Plaintiff argues that defendant’s Vaughn index reveals that many
of these alleged deliberative processes are not the type of pre-
decisional discussions that merit protection under the privilege.
CREW identifies “three broad categories of information” that were
improperly withheld by defendant pursuant to Exemption Five: (i)
discussions about decisions already made; (ii) discussions not
concerning any policy matter; and (iii) non-deliberative
discussions. See Pl.’s Opp’n Br. at 6-7.
i. Documents Discussing Decisions Already Made
First, plaintiff challenges defendant’s withholding of
documents in Groups 3 and 5 of defendant’s Vaughn index. Pl.’s
Opp’n Br. at 6.4 Group 3 consists of an “[e]mail chain among
White House and DoD personnel discussing response to a request
for a replacement medal for soldier, including who has the
authority to issue the replacement medal.” Def.’s Vaughn Index.
Group 5 consists of a “[d]iscussion among White House personnel
4
Although plaintiff identifies Groups 3 and 5 as “examples,”
the Court is unable to find any other group of documents in
defendant’s Vaughn index that would fall under this category.
14
regarding procedures that must be followed prior to allowing
governor’s plane to land at Andrews Air Force Base.” Def.’s
Vaughn Index. Plaintiff argues that both withholdings “discuss a
decision that already has been made” and are therefore not
predecisional. Pl.’s Opp’n Br. at 6. Plaintiff notes that the
policy for replacing military medals is “well known and easily
available on the internet, and was not going to be changed by the
discussion of the withheld material.” Pl.’s Opp’n Br. at 6.
Similarly, plaintiff remarks that the procedures needed to land
the plane were already set, and “discussion of how to meet the
procedures to land the plane at Andrews Air Force Base is
factual” and therefore unprotected. Pl.’s Opp’n Br. at 6 (citing
Coastal States, 617 F.2d at 867).
In response to these assertions, defendant filed the
Supplemental Declaration of Laurie Kwiedorowicz (“Kwiedorowicz
Suppl. Decl.”). Kwiedorowicz clarifies that, in Group 5, White
House officials were discussing how to respond to a “request by a
governor to land his plane at Andrews Air Force Base, including
whether to accede to the governor’s request.” Kwiedorowicz
Suppl. Decl. ¶ 5. Kwiedorowicz also explains that the
communication in Group 3 discusses “how to respond to a request
for replacing a Presidential coin,” noting that “[n]o policy for
replacing the Presidential coin appears to have been
established.” Kwiedorowicz Suppl. Decl. ¶ 6; see also Def.’s
15
Reply Br. at 11 (explaining that “the decision in question was
whether a replacement coin would be made available to the
soldier, not what procedures would be established for future
requests”).
The Court is persuaded by defendant’s supplemental
submission. Both of the discussions in Groups 3 and 5 relate to
future decisions and involve deliberation about the outcome of
those decisions. Accordingly, the Court finds that defendant’s
invocation of the deliberative process privilege with respect to
the withheld materials was proper, and GRANTS summary judgment
for defendant as to Groups 3 and 5.
ii. Documents Not Concerning Agency Policy Matter
Next, plaintiff challenges defendant’s withholding of
documents in Groups 2, 8-10, and 13-17, arguing that those groups
“concern discussions about things that may be predecisional, but
do not concern any agency policy matter.” Pl.’s Opp’n Br. at 7.
Citing Jordan v. Department of Justice, 591 F.2d 753, 774 (D.C.
Cir. 1978), plaintiff argues that “[t]he deliberative process
privilege only protects predecisional matters made before the
adoption of agency policy.” Pl.’s Opp’n Br. at 7. Plaintiff
also relies on New York Times v. Department of Defense, 499 F.
Supp. 2d 501 (S.D.N.Y. 2007), which held that “talking points and
the formulation of responses to possible questions” used by the
Attorney General to respond to press inquiries were “routine
16
operating decision[s] rather than . . . policy oriented
judgment[s] to which the privilege would apply.” Id. at 514. To
the extent plaintiff correctly characterizes the law, the facts
in this case support summary judgment in favor of defendant.
For example, defendant describes the withheld material in
Group 2 as a “[d]iscussion among White House and WHMO personnel
regarding which family members of wounded soldiers should be
included for an upcoming Presidential visit.” Def.’s Vaughn
Index. The Court concludes that this discussion is predecisional
because it concerns a decision on how to allocate limited
Executive Branch resources, which is certainly a matter of agency
policy. The Court also agrees with defendant that requiring
disclosure of sensitive issues, such as deciding which family
members of wounded soldiers will be able to meet with the
President, may chill candid discussion among the President’s
advisors. See Dep’t of the Interior v. Klamath Water Users Prot.
Ass’n, 532 U.S. 1, 8-9 (2001) (“The deliberative process
privilege rests on the obvious realization that officials will
not communicate candidly among themselves if each remark is a
potential item of discovery and front page news . . . .”). A
similar analysis supports defendant’s withholdings in Groups 8-10
and 13-17. Thus, defendant’s motion for summary judgment is
GRANTED with respect to Groups 2, 8-10, and 13-17.
17
iii. Documents of a Non-Deliberative Nature
Finally, plaintiff challenges the withholding of
communications in Groups 6 and 11, arguing that they “fail to
even describe a pre-decisional deliberation of any kind.” Pl.’s
Opp’n Br. at 7-8. Defendant’s Vaughn index describes the
withheld information in Group 6 as a “[d]iscussion among White
House and DOD personnel discussing various aspects of upcoming
meetings,” and Group 11 is described as a “[d]iscussion among
White House personnel relating to upcoming meeting with the
President.” The Supplemental Declaration of Laurie Kwiedorowicz
clarifies, however, that the communication identified in Group 6
“contains a discussion of a decision that must be made before the
meeting takes place regarding which briefing materials will be
used in the meeting.” Kwiedorowicz Suppl. Decl. ¶ 7. Persuaded
that the supplemental declaration adequately describes a
predecisional deliberation, the Court concludes that the
information in Group 6 was properly withheld under the
deliberative process privilege.
Defendant has failed, however, to provide a similar
clarification for the communication in Group 11. Given the
similar descriptions of Groups 6 and 11, and in light of the
government’s subsequent clarification of Group 6, the Court notes
the possibility that defendant may have simply overlooked the
need to clarify Group 11’s predecisional deliberation.
18
Accordingly, the Court will deny summary judgment on Group 11,
without prejudice, to provide defendant the opportunity to submit
a supplemental declaration.
Accordingly, defendant’s motion for summary judgment is
GRANTED with respect to Group 6 and DENIED, without prejudice,
with respect to Group 11.
iv. Residual Groups
Plaintiff did not raise any objections to Groups 1, 4, 7,
and 12. Defendant’s description of the redacted material
indicates that all of the groups involve communication that is
both predecisional and deliberative. Therefore, summary judgment
for defendant is GRANTED with respect to Groups 1, 4, 7, and 12.
IV. CONCLUSION
Defendant’s Motion for Summary Judgment as to the adequacy
of its search is GRANTED as to communications from October 2005
to the present and is DENIED, without prejudice, as to
communications preceding October 2005. Defendant’s Motion for
Summary judgment is GRANTED with respect to Groups 1-10 and 12-17
of defendant’s Vaughn index. Defendant’s motion is DENIED,
without prejudice, with respect to Group 11. An appropriate
Order accompanies this Memorandum Opinion.
Signed: EMMET G. SULLIVAN
UNITES STATES DISTRICT JUDGE
September 29, 2009
19
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283 F.2d 303
60-2 USTC P 9765
M. Marshall LANDY, Appellant,v.UNITED STATES of America, Appellee.
No. 18504.
United States Court of Appeals Fifth Circuit.
Nov. 2, 1960.Rehearing Denied Dec. 6, 1960.
Arthur B. Cunningham, Philip T. Weinstein, Miami, Fla., for appellant.
Robert W. Rust, Asst. U.S. Atty., Miami, Fla., for appellee.
Before RIVES, Chief Judge, and TUTTLE and WISDOM, Circuit Judges.
PER CURIAM.
1
The judgment of the trial court requiring the appellant to respond to the administrative subpoena of the Internal Revenue Service is affirmed.
2
Appellant's motion to quash was based on the theory that appellant's constitutional privilege against testifying against himself would be violated if he was required to respond to the subpoena. This, appellant contends, is to be deduced from the holding of the Court of Appeals for the Fourth Circuit in Beard v. United States, 4 Cir., 222 F.2d 84, 85, certiorari denied 350 U.S. 846, 76 S.Ct. 48, 100 L.Ed. 753. Appellant contends that that case stands for the proposition that if a taxpayer, who is subsequently tried for criminal tax evasion, appears in response to a subpoena and then relies on the Fifth Amendment as a basis for refusing to answer specific questions, such use of the Fifth Amendment can be shown to the jury on the subsequent trial as an inference of guilt. In our view Beard v. United States stands for no such proposition. It is based rather on the doctrine announced in Shapiro v. United States, 335 U.S. 1, 68 S.Ct. 1375, 92 L.Ed. 1787, the 'required records' doctrine.
3
We hold that the trial court correctly decided that it could not quash the subpoena on the general allegation that it was intended for purposes other than those for which it purported to issue and that it might result in questions which the subpoenaed witness could constitutionally refuse to answer. The privilege of the Fifth Amendment must be exercised in connection with precise questions and not as a general excuse for refusing to appear in response to subpoena. Rogers v. United States, 340 U.S. 367, 71 S.Ct. 438, 95 L.Ed. 344.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 17-2537
___________
UNITED STATES OF AMERICA
v.
AVERY L. SOLLENBERGER; DENA SOLLENBERGER;
GARY SOLLENBERGER; WENDELL SOLLENBERGER;
TELTEC ENTERPRISES, A trust, by and though its trustee, Victory Perry;
SUNNY ISLES FIDUCIARY FUND, A trust, by and through
its trustee John Michael Crim; LEDGER MANAGEMENT COMPANY, a trust by and
through its trustee Victor Perry;BITTERROOT RENTAL COMPANY, a trust, by and
through its trustee/general manager, Donald Bailey;
BITTERROOT RENTAL COMPANY, a trust by and through
its trustee/general manager, Gary R. Sollenberger;
SUNNY ISLE FIDUCIARY FUND, a trust, by and through
its trustee John Michael Crim CI Taft Correctional Institution;
DESIGN CONCEPTS CO, A trust by and through its
trustee/general manager, Gary Sollenberger;
ASSOCIATED DYNAMICS, LLC
Avery Sollenberger, Dena Sollenberger,
Gary Sollenberger, and Wendell Sollenberger,
Appellants
____________________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil Action No. 1:12-cv-01488)
District Judge: Honorable Christopher C. Conner
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
April 13, 2018
Before: JORDAN, RESTREPO and SCIRICA, Circuit Judges
(Opinion filed April 24, 2018)
___________
OPINION*
___________
PER CURIAM
On December 15, 2015, the District Court entered judgment in favor of the United
States in a tax collection action against Avery and Dena Sollenberger, husband and wife;
their sons, Gary and Wendell Sollenberger; a house-framing business owned by the
Sollenbergers; and various associated trust entities.1 Specifically, the District Court
entered monetary judgments in favor of the United States in the following amounts for
unpaid federal tax liabilities: 1) $1,247,169.50 against Avery and Dena Sollenberger; 2)
$1,724,296.76 against Gary Sollenberger; and 3) $1,749,010.95 against Wendell
Sollenberger.2 The District Court also concluded that the United States had valid federal
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
1
Previously, the United States prosecuted the Sollenbergers for conspiracy to defraud the
United States by impeding, impairing, obstructing, and defeating the lawful functions of
the Internal Revenue Service (“IRS”) in the computation, assessment, and collection of
income taxes. United States v. Sollenberger, M.D. Pa. Crim. No. 1:07-cr-00205. A jury
found Avery, Gary, and Wendell Sollenberger guilty and Dena Sollenberger not guilty.
Id. at ECF No. 209 (Jury Verdict). As of result of their convictions, Avery, Gary, and
Wendell Sollenberger each incurred a restitution obligation of $1,287,506.01. Id. at ECF
No. 273, 277, & 279.
2
The District Court additionally entered a similar judgment against the business.
2
tax liens against eight properties owned by the Sollenbergers and ruled that the United
States was entitled to foreclosure of those liens so that it could sell the properties and
apply the proceeds to the tax liabilities. On January 14, 2016, the Sollenbergers moved
for reconsideration in a filing that the District Court denied the next month as untimely
and without merit.
Subsequently, in October 2016, the United States moved for an order of sale of the
eight properties encumbered by tax liens. On December 1, 2016, the District Court
granted the United States’ unopposed motion, ruling that the mortgages and promissory
notes for the eight properties were foreclosed. The District Court described the
properties, listed the tax liens, and detailed the terms and conditions of the sale in a
lengthy (19-page) order.
On May 11, 2017, Avery Sollenberger sought to vacate the December 2016 order
under Rule 60(b)(3) and Rule 60(b)(4) of the Federal Rules of Civil Procedure.3 He
presented three main arguments. First, he claimed that the order violated the
Sollenbergers’ right to due process of law because, inter alia, the United States did not
notify the District Court that Dena Sollenberger had been found not guilty in the related
criminal action; the United States did not reveal how much restitution the Sollenbergers
have paid; and the District Court did not provide the Sollenbergers an adequate
opportunity to be heard. Avery Sollenberger also asserted the District Court was
3
Although he presented arguments for himself and his family members, he alone signed
the motion on a line printed for “Avery Sollenberger, et al.”, and the District Court
treated the motion as his alone.
3
precluded from entering a judgment greater than $1,274,615.01 because the District
Court, in an order enforcing the restitution amount and allowing leave to apply the value
of seized assets toward the restitution amount, described the liability as $1,274,615.01,
and the United States had not timely challenged that amount. Third, he claimed that the
District Court’s decision to take jurisdiction was a plain usurpation of judicial power
because of the advanced ages (90 and 87, respectively) of Avery and Dena Sollenberger;
the resolution of the criminal action in 2015 (in which Dena Sollenberger was found not
guilty); and Avery Sollenberger’s continued payment in restitution, including $227.00 per
month deducted from his Social Security check. The District Court denied the motion,4
and the Sollenbergers appeal.5
On appeal, the Sollenbergers ask us to vacate or reverse the order of December 1,
2016. Appellant’s Informal Brief at 1, 5, 11. In support, they repeat, almost verbatim,
the arguments raised in Avery Sollenberger’s Rule 60(b) motion. The United States, in
response, argues that the District Court properly denied the Rule 60(b) motion.
Interpreting the Sollenbergers’ brief incorporating the Rule 60(b) motion as an attack on
4
On the same day, the District Court ruled on a motion filed by intervenors (tenants in
one of the Sollenbergers’ properties) and also denied a motion filed by the Sollenbergers
for a temporary restraining order and preliminary injunction. Neither of those rulings is
at issue in this appeal.
5
Although Avery Sollenberger alone filed the Rule 60(b) motion, all of the Sollenbergers
have explicitly informed us that they wish to participate in this appeal. Also, at the outset
of this appeal, they sought injunctive relief to prevent the sale of their properties. We
denied their motion and subsequent request for reconsideration. (Related to that, we note
that, even if the sale of their properties went forward as scheduled, we would not
conclude that this appeal is moot because we would be able to fashion a remedy.)
4
the underlying judgment as well, the United States argues that we lack jurisdiction to
review that decision.6 In their reply brief, in addition to repeating the arguments relating
to the denial of the Rule 60(b) motion, the Sollenbergers contest the United States’
argument and contend that we do have jurisdiction to review the District Court’s earlier
judgment entered December 15, 2015. Also, in their reply, the Sollenbergers seem to
expand their request for relief to include a request for us to vacate the earlier judgment
and to remand to the District Court for consideration of arguments relating to whether
they have fulfilled their restitution obligations and whether Dena Sollenberger can
advance an innocent spouse claim.
First, we consider the scope of our review. We have jurisdiction under 28 U.S.C.
§ 1291 to review the order denying the Rule 60(b) motion.7 See Torres v. Chater, 125
F.3d 166, 167 (3d Cir. 1997). The timely appeal from that order, however, does not bring
up for review earlier orders of the District Court. See id. (citing Daily Mirror, Inc. v.
New York News, Inc., 533 F.2d 53, 56 (2d Cir.1976), which held that “[a]n order
denying relief under Rule 60(b) is an appealable order, but the appeal brings up only the
correctness of the order itself”).
6
The United States also presents a motion for leave to file a supplemental appendix,
which is also a motion to expand the record to the extent that the United States wishes to
introduce documents from the Sollenbergers’ earlier criminal proceedings.
7
We review the decision only as to Avery Sollenberger because he was the only
signatory to the motion (despite the inclusion of “et al.” in the printed line), and he, a
non-lawyer, could not represent his family members in the District Court. See Osei-
Afriyie v. Med. Coll. of Pa., 937 F.2d 876, 882-83 (3d Cir. 1991).
5
We could review the prior order, however, if the notice of appeal was timely as to
it. However, as to the order of December 15, 2015, the notice is clearly untimely. A
notice of appeal in a civil case in which the United States is a party is timely if it is filed
within 60 days of the entry of the order or judgment being appealed. See Fed R. App. P.
4(a)(1)(B). That time limit is mandatory and jurisdictional. See Bowles v. Russell, 551
U.S. 205, 209-14 (2007); Browder v. Director, Dep’t of Corrections, 434 U.S. 257, 264
(1978). Although the time limit can be tolled by a timely motion seeking reconsideration
under Rule 59(e) or relief under Rule 60(b), see Fed. R. App. P. 4(a)(4), neither the
motion for reconsideration nor the Rule 60(b) motion was filed in time to toll the time
limit in this case. See Lizardo v. United States, 619 F.3d 273, 278 (3d Cir. 2010).
Accordingly, even if we agreed that the Sollenbergers challenged the December 15, 2015
judgment, we would not have jurisdiction to consider that judgment.
The District Court, effectuating the order of December 15, 2015, also issued the
order of sale in December 2016. To the extent that the entry of that order is governed by
the separate judgment rule, see Fed. R. Civ. P. 58, the notice of appeal would be timely as
to that order, see Fed. R. App. P. 4(a)(7), which did not satisfy the separate judgment
rule, Leboon v. Lancaster Jewish Cmty. Ctr. Ass’n, 503 F.3d 217, 224 (3d Cir. 2007).
However, although our jurisdiction may extend beyond review of the order
denying the Rule 60(b) motion, before we consider an issue, it must be raised on appeal.
Generally, arguments that are not presented and discussed in the opening brief are
considered abandoned and waived. See Kost v. Kozakiewicz, 1 F.3d 176, 182 (3d Cir.
1993); see also Al-Ra’id v. Ingle, 69 F.3d 28, 31 (5th Cir. 1995) (noting that pro se
6
litigants are not excepted from the requirement to raise and argue issues on appeal). The
Sollenbergers do not discuss the order of sale except in the context of their challenge to
the ruling on Avery Sollenberger’s Rule 60(b) motion seeking to vacate that order.8
Accordingly, we conclude that the issue is waived.
Our review of the District Court’s order, insomuch as it denied relief under Rule
60(b)(3), is for abuse of discretion. See Budget Blinds, Inc. v. White, 536 F.3d 244, 251
(3d Cir. 2008). To the extent that the order denied relief under Rule 60(b)(4), our review
is plenary. Id. at 251 & n.5. Upon review, we discern no error in the District Court’s
ruling, and we will affirm.
First, despite the arguments in the Rule 60(b) motion and on appeal, there is no
suggestion in the record that the order of sale was entered without due process of law.
“The fundamental requirement of due process is the opportunity to be heard at a
meaningful time and in a meaningful manner.” Mathews v. Eldridge, 424 U.S. 319, 333
(1976) (citation and quotation marks omitted). Looking at the District Court record, we
see no impingement of that fundamental right. Despite the claim to the contrary, Avery
Sollenberger (and his family members) had the opportunity to be heard. Although none
of them filed a response to the Government’s motion for an order of sale, they could
have; the District Court allowed time for a response before ruling. Also, the degree to
8
Furthermore, although the Government reads the opening brief more expansively to
challenge the original judgment, we read it to challenge the ruling on the Rule 60(b)
motion only.
7
which the United States disclosed the details of the earlier criminal proceedings to the
District Court did not affect the Sollenbergers’ due process rights in this case.
Second, the District Court properly concluded that resolution of the criminal
action, including the restitution order, did not render void the order of sale in the civil
suit. As the District Court explained, although the criminal prosecution was related to the
civil suit, it was separate from it. The criminal action did not preclude the civil
proceedings, and the order of restitution did not control the outcome of the suit to collect
the tax deficiency. See, e.g., Morse v. Comm’r, 419 F.3d 829, 833-34 (8th Cir. 2005)
(concluding that neither res judicata nor collateral estoppel doctrine precludes the
imposition of a civil liability for tax deficiency or fraud penalties after the resolution of a
related criminal prosecution). But see Creel v. Comm’r, 419 F.3d 1135, 1140-42 (11th
Cir. 2005) (noting an exception (not applicable in this case) to the general rule when an
order of restitution expressly incorporates civil penalties as part of the criminal sentence).
The District Court also properly rejected Sollenberger’s related argument that the order
was void because the United States had not timely challenged the restitution amount.
The District Court committed no error in rejecting Sollenberger’s third basis for
Rule 60(b) relief. The District Court did not usurp judicial power. Regardless of the age
of the parties, the resolution of the previous criminal action, and Avery Sollenberger’s
restitution efforts, the District Court properly assumed jurisdiction over the proceedings.
See 26 U.S.C. § 7402(a); 28 U.S.C. § 1340.
8
For these reasons, the District Court properly denied Avery Sollenberger’s Rule
60(b) motion.9 We will affirm the District Court’s order.10
9
As we noted previously, we understand the opening brief to challenge only the ruling on
the Rule 60(b) motion. But even if the arguments could be understood to be a timely
challenge to the order of sale itself, we would discern no error in the entry of that order to
effectuate the earlier judgment that we have no authority to review.
10
The United States’ motion to file a supplemental appendix is granted in part and denied
in part, as follows. To the extent that the United States seeks to file a supplemental
appendix to provide documents from the District Court record for this civil proceeding, it
is granted. To the extent that the United States seeks to expand the record, the motion is
denied.
9
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904 N.E.2d 391 (2009)
HARRIS
v.
STATE.
No. 03A01-0811-CR-537.
Court of Appeals of Indiana.
March 25, 2009.
BARNES, J.
Disposition of case by unpublished memorandum decision. Affirmed.
BAILEY, J. Concurs.
MATHIAS, J. Concurs.
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829 F.2d 37Unpublished Disposition
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.Lonnie A. TIPPETT, Jr., Defendant-Appellant.
No. 87-7186
United States Court of Appeals, Fourth Circuit.
Submitted July 16, 1987.Decided August 25, 1987.
Lonnie A. Tippett, Jr., appellant pro se.
James Stockton Perry, Assistant United States Attorney, for appellee.
Before DONALD RUSSELL, JAMES DICKSON PHILLIPS and WILKINSON, Circuit Judges.
PER CURIAM:
1
A review of the record and the district court's opinion discloses that this appeal from its order refusing relief under 28 U.S.C. Sec. 2255 is without merit. Because the dispositive issues recently have been decided authoritatively, we dispense with oral argument and affirm the judgment below on the reasoning of the district court. United States v. Tippett, CR. No. 86-1-5, C/A No. 87-321-5 (E.D.N.C., May 13, 1987).
2
AFFIRMED.
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972 F.2d 1340
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.Kamal B. MAHDAVI, Plaintiff-Appellant,v.THE REGENTS OF THE UNIVERSITY OF CALIFORNIA, Defendant-Appellee.
No. 91-16103.
United States Court of Appeals, Ninth Circuit.
Submitted July 27, 1992.*Decided Aug. 3, 1992.
Before EUGENE A. WRIGHT, FARRIS and BEEZER, Circuit Judges.
1
MEMORANDUM**
2
For the reasons listed in the district court's well-reasoned and carefully-crafted opinion of July 10, 1991, the district court's grant of summary judgment in favor of the Regents of the University of California is AFFIRMED.
*
The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); Ninth Circuit Rule 34-4
**
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
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90 F.Supp.2d 118 (2000)
Bernardo HURTADO
v.
John TUCKER, et al.
Civil Action No. 96-11915-RWZ.
United States District Court, D. Massachusetts.
February 28, 2000.
*119 Eugene P. McCann, Lawrence, MA, for petitioner.
Annette C. Benedetto, Asst. Atty. Gen., Criminal Bureau, Boston, MA, for respondent.
MEMORANDUM OF DECISION
ZOBEL, District Judge.
Respondent objects to the Report and Recommendation of the Magistrate Judge that the petition for a writ of habeas corpus be granted. The petition was filed after the effective date of the Antiterrorism and Effective Death Penalty Act ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214, which amended 28 U.S.C. § 2254 and, the Magistrate Judge ruled, governed the proceedings before him.
To the extent respondent suggests that the Magistrate Judge improperly weighed the evidence, he misconceives the report. The Magistrate Judge certainly reviewed the evidence, and he determined that that evidence was insufficient to convict. But he did so not as a result of weighing it and disagreeing with the state court as to its weight, but because much of the evidence concerning petitioner's participation recited and relied upon by the state court did not exist; it was not in the record.
To the extent respondent argues that the Magistrate Judge misapplied the AEDPA, the objections are overruled. The Report was filed four days before the *120 First Circuit issued its first decision interpreting the provision incorporated into 28 U.S.C. § 2254(d)(1) by the AEDPA, O'Brien v. Dubois, 145 F.3d 16 (1st Cir. 1998). Although the analysis prescribed by O'Brien, differs somewhat from that employed by the Magistrate Judge, it does not change the end result.
I begin at the beginning. Under the AEDPA, the writ may be granted only if the state adjudication "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). O'Brien teaches that the reviewing court must undertake a two-step analysis of the state court decision. See O'Brien, 145 F.3d at 24. The first question is whether the Supreme Court has prescribed a rule that governs the petitioner's claim. See id. If so, the second question is whether the state court decision is "contrary to" that rule. See id. If not, the second question becomes whether the state court's use (or failure to use) existing law in deciding petitioner's claim, involved an "unreasonable application" of Supreme Court precedent. See id.
The Magistrate Judge held that the Supreme Court had articulated a governing rule in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) and In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), and that the state court had posed the appropriate question under that rule; namely, "whether the evidence, viewed in the light most favorable to the Commonwealth, was sufficient to support a finding that the defendant was guilty of each element of the offenses beyond a reasonable doubt." See O'Brien, 145 F.3d at 25, n. 6 (noting that Jackson provides rule governing insufficiency at evidence claims). Since the state court had articulated the correct question, the Magistrate Judge determined that its ruling was not "contrary to" the Supreme Court rule. He therefore considered the alternative, whether its use of existing law nevertheless involved an "unreasonable application" of the Supreme Court rule, and found that it did.
Since the Magistrate Judge did not have the benefit of the O'Brien analysis, the framework for his decision is not entirely in conformity therewith. However his meticulous review of the evidence and his careful and thorough review of state law allow consideration of, and an answer to, the question he should have asked: is the state court's decision (not merely its recitation of the law) "contrary to" the Supreme Court precedent that prescribes the governing rule? To generate an affirmative response, petitioner must show that Supreme Court precedent "requires an outcome contrary to that reached by the ... state court." O'Brien, 145 F.3d at 24-25. For the reasons articulated in the Magistrate Judge's Report and Recommendation, the record did not show sufficient evidence to support a finding of petitioner's guilt beyond a reasonable doubt. The state court's adjudication was, therefore, contrary to the clearly established governing rule, that the evidence in a criminal case must be sufficient to prove each element of the offense beyond a reasonable doubt. Accordingly, I accept the Report and Recommendation.
Judgment may be entered granting the writ.
REPORT AND RECOMMENDATION ON PETITION UNDER § 2254 FOR WRIT OF HABEAS CORPUS BY A PERSON IN STATE CUSTODY (# 1)
COLLINGS, United States Magistrate Judge.
I. Introduction
Presently before the Court is petitioner Bernardo Hurtado's ("Hurtado") petition for a writ of habeas corpus. Hurtado is paroled on a conviction in the Massachusetts Superior Court for trafficking in cocaine and possession with intent to distribute *121 heroin.[1] He seeks relief pursuant to 28 U.S.C. § 2254. As his petition was filed after the effective date of the Anti-Terrorism and Effective Death Penalty Act ("AEDPA"), it is governed by the recently-amended version of 28 U.S.C. § 2254. See Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 2063, 138 L.Ed.2d 481 (1997).
II. Statement of Facts[2]
On January 24, 1991, police executed two search warrants for 77 Newbury Street in Lawrence, Massachusetts. The warrants were obtained after several weeks of surveillance of the building and four controlled drug buys by a confidential informant. The building is a three-story, multi-family structure with three apartments on the left-hand side of the building and three apartments on the right. An interior stairway on each side connects the three floors, but the two sides of the building are not accessible to one another, except through the exterior doors. All of the apartments on the left-hand side of the building were vacant, as was the third-floor apartment on the right-hand side. The warrants authorized searches of the first and second-floor apartments on the right.[3] The first-floor apartment was occupied by Lydia Nunez and her six children,[4] one of whom was Roberto Nunez. Hurtado and Lydia Nunez were husband and wife. Hurtado also may have lived in the apartment, though the evidence on this point was disputed at trial. Hurtado testified that he and his wife had been separated at the time of the search and that he had been living at another address. Commonwealth v. Hurtado, 1996 WL 32856, No. 94-P-1821 (Mass.App.Ct. Jan.25, 1996) at 1-2 (hereinafter "Hurtado").
As police entered the right side of the building, they heard people shouting "Policia" from above them and heard people running. Two officers ran to the second-floor landing, where they encountered Lydia and Roberto Nunez coming down from the third floor. As Roberto Nunez ran down the stairs, officers saw him throw something down; when officers retrieved it, it turned out to be over $6,100.00 in cash. Both Roberto and Lydia Nunez were arrested, while another male fled back up the stairs and into the third-floor apartment. Hurtado at 2. An officer pursued the unidentified male into the apartment. The individual escaped, but the pursuing officer found drugs and drug paraphernalia in plain view in the third-floor apartment. The drugs discovered included 29 packages of cocaine weighing 5.34 grams in total; a packet of cocaine weighing 1.09 grams, a bag containing 10.44 grams of cocaine; two white packets and two yellow bags of heroin containing .04 grams each, and 135 blue packets of heroin stamped with the image of a witch and weighing 4.13 grams in total. Among the paraphernalia discovered were a triple-beam scale, a small scale, a heat sealer for plastic bags, strainers, mannitol,[5] 200-300 empty blue bags, 500 empty white and clear plastic bags, sandwich bags, and blue bags stamped with the image of a witch. *122 The officer also discovered additional witch stamps, stamp pads, and a pair of scissors with a jagged edge. Id. at 2-3.[6]
At the time the police entered the building, Hurtado was in the first-floor apartment. He emerged from the apartment as police entered; an officer announced he had a warrant to search the apartment and took Hurtado back into the apartment. Hurtado sat at the kitchen table while officers conducted their search; the officer described him as "cooperative." (# 12, Exh. 8 at 1-161) When requested, Hurtado gave the officers his driver's license and his car's registration. (Id. at 1-128-29) No cash, drugs or drug paraphernalia were found on Hurtado.
In their search of the first-floor apartment, officers discovered eleven small clear plastic bags typically used to distribute a quarter gram of cocaine, along with a small white plastic bag with a witch stamp on it; these were found in a hutch in the kitchen. Inside a false plant pot in the kitchen, police also found three blue bags with witch stamps; lab analysis revealed that the bags contained heroin residue. Hurtado at 4. In the master bedroom, police found a piece of paper[7] containing drug notations;[8] the notations contained references to "Ma," and were found on top of a dresser along with some gold jewelry and a jewelry box. (# 12, Exh. 8 at 1-125) Somewhere in the master bedroom, officers also found two expired passports belonging to Hurtado, but no one testified where in that room the passports were found.
Police testified that during the four to six weeks of surveillance of the building before they executed the search warrants, they saw Hurtado outside the building "almost all the time" they were there. (# 12, Exh. 8 at 1-94) Police also testified that they witnessed numerous drug transactions outside the building. (Id. at 1107-09) The officers testified that they never saw Hurtado participate in any of the transactions; in fact, there was no direct evidence to indicate that Hurtado ever had been present outside the building during a drug transaction.[9] Police also testified that a confidential informant conducted four controlled buys at the building; that informant reported dealing with Hispanic men in their early twenties and with Lydia Nunez. (Id. at 1158-59) Hurtado was approximately 36 years old at the time of his arrest. (Id. at 1-194)
After a jury trial in state court, Hurtado was convicted of one count of trafficking in cocaine[10] and one count of possession with *123 intent to distribute heroin.[11] His conviction was affirmed on appeal to the Massachusetts Appeals Court, see Hurtado, and the Massachusetts Supreme Judicial Court denied his request for further review. His petition for writ of habeas corpus was filed in this Court less than one year after final resolution of his state appeal,[12] so the petition is timely under 28 U.S.C. § 2244(d)(1).
III. Analysis
Hurtado raises three points in his petition for habeas relief. First, he contends there was insufficient evidence to show he was guilty of the crimes charged. Second, he contends the trial court improperly admitted his passports into evidence, since the officer testifying when they were introduced as evidence was not the officer who found the passports. Third, he contends the trial court erred in refusing his request for disclosure of the name of the confidential informant.[13]
The Court finds the Massachusetts Appeals Court's decisions regarding the latter two items were correct. No hearsay problem was presented by the introduction of the passports by the officer directing the search; that officer only testified that the officer searching the master bedroom emerged from that room with the passports and handed them to him. No out-of-court statement was introduced into evidence, so the state appeals court's rejection of this argument certainly was reasonable. Further, it was not error to deny the request for disclosure of the confidential informant's identity. Hurtado only sought to elicit from the informant an admission that the informant did not see Hurtado present during any of the controlled buys. The government conceded this fact, so the testimony was not needed.
However, Hurtado's first pointthat the government failed to produce evidence sufficient to show he was guilty of the crimedemands closer scrutiny.
A. Standard of Review
At the close of the Commonwealth's case, and again at the close of all of the evidence, Hurtado moved for a required finding of not guilty, arguing the Commonwealth had failed to produce evidence which could lead a rational jury to find him guilty beyond a reasonable doubt. (# 12, Exh. 8 at 1168-70, 2-35) On appeal, Hurtado again argued that the Commonwealth had failed to prove its case beyond a reasonable doubt as a matter of law. The Massachusetts Appeals Court found the Commonwealth had produced evidence sufficiently supporting each element of the offense. Hurtado at 4-8.
The first step in the Court's analysis is to assess the standard of review to be used in evaluating Hurtado's habeas petition. Under the newly-amended version of 28 U.S.C. § 2254, this Court may not grant relief on any claim previously adjudicated on the merits in state court unless that adjudication:
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the *124 facts in light of the evidence presented in the State court proceeding.
28 U.S.C. § 2254(d).
No First Circuit decision explains the meaning of this statutory language.[14] But in Gomez v. Acevedo, 106 F.3d 192 (7 Cir., 1997), vacated on other grds. sub nom., Gomez v. DeTella, 522 U.S. 801, 118 S.Ct. 37, 139 L.Ed.2d 6 (1997), the Seventh Circuit made it clear that a deferential standard of review is imposed by § 2254(d). Gomez, 106 F.3d at 199. So long as the state court's determination of the issue presented was reasonable, the conviction must stand. Id. "Section 2254(d)(1) `requires federal courts to take into account the care with which the state court considered the subject .... [A] responsible, thoughtful answer reached after a full opportunity to litigate is adequate to support the judgment.'" Id. (quoting Lindh v. Murphy, 96 F.3d 856, 870-71, 877 (7th Cir., 1996), rev'd on other grds, 521 U.S. 320, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997)); see also Drinkard v. Johnson, 97 F.3d 751, 768-69 (5 Cir., 1996), overruled on other grds, Lindh, 521 U.S. 320, 117 S.Ct. 2059, 138 L.Ed.2d 481 (deferential standard of review imposed by § 2254(d)(1)).
Therefore, the Court in this case simply must examine whether the Massachusetts Appeals Court's decision on Hurtado's insufficiency of the evidence claim was "contrary to, or involved an unreasonable application of, clearly established" Supreme Court precedent. 28 U.S.C. § 2254(d)(1). It is not enough that this Court might disagree with the state court's decision in Hurtado; rather, the Court must find that the state court's decision was contrary to Supreme Court precedent or was unreasonable in light of Supreme Court precedent.
B. Controlling Supreme Court Precedent
The controlling Supreme Court precedents here are Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), and In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). In Winship, the court held that due process required any criminal conviction be supported by proof beyond a reasonable doubt; in essence, the court announced for the first time that this long-employed standard of proof was constitutionally required. Id. at 364, 90 S.Ct. 1068. In Jackson, the court went a step further and held that the Winship rule required a reviewing court to examine the evidence independently 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, 443 U.S. at 319, 99 S.Ct. 2781.[15]
*125 Though the Massachusetts Appeals Court did not cite Jackson or Winship in its consideration of Hurtado's direct appeal, it did consider "whether the evidence, viewed in the light most favorable to the Commonwealth, was sufficient to support a finding that the defendant was guilty of each element of the offenses beyond a reasonable doubt." Hurtado at 4-5. While the court's language does not track that in Jackson, it cannot be said that the statement in Hurtado is "contrary to ... clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). The question then presented is whether the court's analysis was "an unreasonable application of clearly established Federal law, as determined by the Supreme Court of the United States." Id.
Jackson teaches that in examining whether a rational trier of fact could have found the defendant guilty beyond a reasonable doubt, the Court must look to the substantive elements of the criminal offense as defined by state law. Jackson, 443 U.S. at 324 n. 16, 99 S.Ct. 2781. Thus, the Court's next task is to examine the elements of the crimes charged, as defined by Massachusetts law. If it appears the state appellate court reasonably found that sufficient evidence supported a finding of guilty beyond a reasonable doubt on each of those elements, then the petition will be denied.
C. Elements of the Crimes under State Law
Hurtado was charged under a theory of constructive possession of the drugs in the third-floor apartment.[16] Under Massachusetts law, an individual may be convicted of possession of a controlled substance (including a charge of trafficking or intent to distribute) if the defendant knew of the presence of the controlled substance and had "the ability and intention to exercise dominion and control over it." Commonwealth v. Cruz, 34 Mass.App. Ct. 619, 621, 614 N.E.2d 702, 704 (1993). The "elements of control and power or knowledge, coupled with the ability and intention to exercise dominion and control, may be inferred from circumstantial evidence." Commonwealth v. Brown, 34 Mass.App.Ct. 222, 225, 609 N.E.2d 100, 102 (1993). "While presence in an area where contraband is found alone cannot show the requisite knowledge, power, or intention to exercise control over the [contraband] ... presence, supplemented by other incriminating evidence, will serve to tip the scale in favor of sufficiency." Commonwealth v. Handy, 30 Mass.App.Ct. 776, 780, 573 N.E.2d 1006, 1009 (1991). Where contraband is found in a dwelling occupied by more than one individual, possession of that contraband is not established simply by the fact of joint occupancy. Commonwealth v. Carlos, 38 Mass.App.Ct. 929, 929, 646 N.E.2d 764, 765 (1995).
*126 D. Evidence Adduced at Trial of Elements of Offenses
Hurtado argues in part that he did not live at 77 Newbury Street, and so could not have known of the presence of drugs on the third floor or have had the ability to exercise dominion or control over them. But the evidence on this point was in conflict. The government presented the driver's license and auto registration taken from Hurtado's person at the time the search warrants were executed, and both his license and registration showed his address as 77 Newbury Street. The auto registration had been renewed only ten days earlier. Further, his passports were discovered in the master bedroom in the first floor apartment. Police also testified they saw Hurtado outside the building "almost all the time." Taking the evidence in the light most favorable to the prosecution, a rational jury could have concluded that Hurtado lived at 77 Newbury Street.
The Appeals Court went on to conclude that a rational jury also could have found Hurtado knew of the drugs in part because the drug note was found in his bedroom in plain view and because bags typically used in drug distribution were found in the kitchen. Hurtado at 7.[17] This Court need not decide whether it was reasonable to have concluded that these facts sufficiently established Hurtado knew the drugs were on the third floor. See Commonwealth v. Rivera, 31 Mass.App.Ct. 554, 557, 581 N.E.2d 498, 501 (Mass.App.Ct.1991) ("[O]ne who occupies an apartment ordinarily uses, and is familiar with, contents of the apartment's kitchen"). Even assuming sufficient evidence was produced to show Hurtado had knowledge of the drugs on the third floor, the Appeals Court still had to determine whether sufficient evidence was produced to show Hurtado had the ability and the intent to exercise dominion and control over those drugs. Thus, for the purposes of the analysis of Hurtado's claim, I shall assume that there was sufficient evidence for the jury to infer that Hurtado knew of the drugs on the third floor.
Did the government also establish beyond a reasonable doubt that Hurtado had the ability and the intent to exercise dominion or control over the drugs on the third floor? The Massachusetts Appeals Court concluded a rational jury could find ability and intent, and it explained as follows:
In addition, the jury could conclude that the defendant had the ability and intention to exercise control over the drugs found in the third floor apartment because he was present in the locked first floor apartment alone, the packaging found in the first floor apartment and that found on the third floor was similar, the drug note found by his personal papers mentioned quantities contained on the third floor, and the defendant had access to the third floor by the staircase.
Hurtado at 8.
Was this a reasonable application of the rule in Jackson? In Lindh, the Seventh Circuit said a state court's application of Supreme Court precedent was "reasonable" if it provided "a responsible, thoughtful answer reached after a full opportunity to litigate." Lindh, 96 F.3d at 871, rev'd on other grds, 521 U.S. 320, 117 S.Ct. 2059, 138 L.Ed.2d 481. "The statutory `unreasonableness' standard allows the state court's conclusion to stand if it is one of several equally plausible outcomes." Hall v. Washington, 106 F.3d 742, 748-49 (7 Cir., 1997). The Fifth Circuit has explained that a state court's application of Supreme Court precedent is unreasonable "only when it can be said that reasonable jurists considering the question would be of one view that the state court ruling was *127 incorrect." Drinkard, 97 F.3d at 769, overruled on other grds, Lindh, 521 U.S. 320, 117 S.Ct. 2059, 138 L.Ed.2d 481.
Certainly the facts set out by the Massachusetts Appeals Court demonstrate an ability to control the drugs on the third floor. As indicated, the evidence was sufficient for the jury to find that Hurtado lived in the first-floor apartment, and his sole presence there on the day in question was evidence that showed he lived there. He had access to the third floor via the staircase and so had the ability to control the drugs there. Also, the fact that Hurtado's passport was found in the master bedroom on the first floor tended to show he lived there. The evidence of drug packaging found in the first-floor apartment provides some circumstantial evidence that Hurtado knew of the "stash house" operation, since he would be aware of items in the kitchen of the apartment in which he apparently lived.[18] Finally, it is clear that persons living in the first-floor apartment including Lydia and Roberto Nunez operated the third-floor "stash house."
The questions remaining are (1) is this evidence sufficient for a jury to find beyond a reasonable doubt Hurtado also had the intention to exercise dominion and control over the cocaine and heroin in the third-floor apartment, and (2) was the Massachusetts Appeals Court reasonable in concluding that the evidence was sufficient?
Intent can be shown through circumstantial evidence, and usually is so established in most drug cases. But evidence of intent typically present in other cases seems to be missing here:
1. The drug packaging found on the first floor was found in a common area, rather than in an area where Hurtado kept personal items; thus, it is equally likely that Lydia or Roberto Nunez placed it there.
2. No drugs, drug paraphernalia or money were found on Hurtado.
3. No drugs were found in the first-floor apartment (with the exception of the residue found in the hidden bags seized from the kitchen).
4. No evidence existed to show Hurtado (or anyone meeting his description) was ever on the third floor.
5. No evidence existed to show Hurtado ever participated in a drug transaction.
6. Nothing in the drug note found in the master bedroom connects Hurtado to the operation.
7. The drug note, while found in the bedroom apparently used by Hurtado, was found on top of a dresser; along with the note, police saw some gold jewelry and a jewelry box on top of the dresser. There is no evidence that the gold jewelry on top of the dresser or any gold jewelry in the box were of the kind customarily worn by males rather than females. More importantly, no evidence was presented which would demonstrate the dresser also was used by Hurtado. No evidence was presented to show personal items belonging to him were found there. No evidence was introduced to show where Hurtado's passports were found in the bedroom. There was no evidence that they were found on or in the same dresser on which the drug note was found.
8. Hurtado did not "act guilty" when police arrived with the search warrants. While others ran, he stood still outside the first-floor apartment. While others yelled, "Policia," he remained silent. A police officer testified that he cooperated while police searched the first-floor apartment.
*128 The only circumstantial "evidence" which might show Hurtado had the intent to exercise dominion or control over the drugs on the third floor is the fact that he apparently lived on the first floor and that others who lived in that apartment (his wife and stepson) did operate the stash house. The Court finds that this did not constitute sufficient evidence to establish Hurtado possessed the requisite intent and that it was unreasonable for the Appeals Court to conclude otherwise.
It is important to note that the Appeals Court appears to have overstated the evidence in two respects and that this overstatement led, at least in part, to the conclusion that Hurtado had the intention to exercise dominion and control over the cocaine and heroin in the third-floor apartment.
First, the Appeals Court concluded that a rational jury could have found Hurtado knew of the drugs in part because "[t]he police observed him at the apartment while drug transactions were occurring." Hurtado at 7. The statement "at the apartment" is rather ambiguous. Since the drugs which Hurtado was convicted of constructively possessing were found in the third-floor apartment, it is assumed that when the court speaks of "at the apartment," it means the third-floor apartment. However, there is no evidence whatsoever that the police or anyone else observed Hurtado at or in the third-floor apartment.
The court may be saying that the police observed Hurtado outside the apartment building at a time when drug transactions were going on in front of the building. In fact, in its statement of facts, the Appeals Court wrote that:
During police surveillance four to six weeks before the search, the defendant ... was seen outside 77 Newbury Street "almost all the time." His Lincoln Continental was also seen parked in front of the building. The defendant was present during observed drug transactions, but was not seen participating in them.
Hurtado at p. 4.
The statement that "the defendant was present during observed drug transactions" is somewhat problematic, and whether this conclusion can fairly be inferred from the evidence is questionable. Presumably, the court's statement is based on Detective Laird's testimony that he saw Hurtado outside of 77 Newbury Street "almost all the time [Detective Laird] went by" during the six weeks prior to the search, (# 12, Exh. 8, p. 1-94), and on the following testimony of Detective Lorenzo:
Q: Detective Lorenzo, in the four to six weeks, thereabouts, before you obtained that search warrant, did you, yourself, participate in any surveillance of that building [at 77 Newbury Street, Lawrence, Massachusetts]?
A: Yes, I did.
Q: How many times did you surveil that building?
A: Numerous times. It had to be at least fifteen timesfifteen different occasions that I've done surveillances on that building.
Q: Besides the surveillance, that you conducted, did you have occasion, during the course of your normal duties, to pass by the area of that building?
A: I was up there, constantly. Yes.
Q: How many days, would you say, during any given week, you were there?
A: I would say, almost every day that I was working, that I was out on the road, I was in that area.
Q: And typically, during that period, what kind of shift did you work, per week; how many days a week?
A: We work four days on, and two days off.
Q: In the four to six weeks that you conducted the surveillance, yourself, were you in uniform?
A: No.
Q: Were you in a cruiser?
*129 A: No.
Q: Were you with anybody?
A: Yes.
Q: Who was that?
A: Usually, I am with Detective William Lees.
Q: Was he in uniform?
A: No.
Q: Can you describe the last time before you got the search warrant, when it was that you surveilled that building, 77 Newbury Street?
A: To the best of my memory, it was the night before, or the day before, on the 23rd of January.
Q: How long did you watch the building, at that time?
A: I don't recall. I'd say, at least an hour; but, I don't recall.
Q: Can you describe to the jurors what you observed in the area of 77 Newbury Street on that occasion, on the 23rd?
* * * * * *
A: On that day, I observed, there would be people standing out in front of 77 Newbury Street; I would observe people walking up; they'd have contact with the people out in front. To my knowledge, transactions were being made
* * * * * *
Q: What did you see?
Describe what you saw.
A: Somebody would hand The hands would meet. Something would be handed. Money would be handed, in return.
Q: How many times did you see such an exchange?
A: On the day?
Q: Yes.
A: I just don't recall. I couldn't tell you, right now.
Q: Was it more than once?
A: Oh, yes.
Q: Less than ten times?
A: I would say, somewhere around seven or eight times, at least.
Q: Did you see anybody enter or leave that building at 77 Newbury Street, during this interval?
A: Yes.
Q: Who were the persons?
Just generally, again, describe the persons.
A: Who were the people?
Q: Yes.
What were their roles?
What did you see them doing?
A: When someone would approach them, they'd run up to the side of the house to the side door. Come back out, and money would be handed to them.
Q: Did you see them actually enter the building at 77 Newbury Street?
A: On the side door, yes.
Q: Would you describe to the jurors, as you saw the building from the street, Newbury Street, what side of the building are you referring to?
A: Right side.
Q: How many doors are over there; do you know?
A: In the back?
Q: On the side.
A: On the back side, to the best of my memory, there were two doors; one led to the hallway, and one led to a shed area, if I remember right.
Q: Do you know which door the people, that you saw go in and out, were using?
A: Well, to me, it appeared to be the first door.
Q: Which door was that?
Can you describe it?
A: That would go into the hallway leading to the apartments on that side.
Q: At the times that you surveilled the building, before January 23rd, can you describe what you saw on those occasions?
A: On my other surveillances?
Q: Yes.
*130 A: The same type of transactions that were going on.
Q: Did you conduct the surveillance at any particular time of day?
A: Different times and, sometimes, at night.
Q: Detective Lorenzo, based on your training and experience, is the type of foot traffic, that you saw, and the transactions, as you described them, have any significance to you?
A: Yes.
Q: What is the significance?
A: In my opinion, there was drug dealing going on at that location.
Q: How did you form that opinion from what you saw?
A: This is consistent with other locations, that I've dealt with, as far as drug deals being made on a street level.
Q: Detective Lorenzo, during the time that you watched the building, or had occasion to be near it, did you see anybody, who is now present in this courtroom, in the area of that building?
A: Yes.
Q: Who is that?
A: The defendant, Mr. Hurtado.
MR. GANNON: Your Honor, may the record reflect that he's identified the defendant.
THE COURT: Yes, it may.
Q: Detective Lorenzo, is it fair to say that you knew the defendant, by name, before this event of January 24th?
A: Yes, I did.
Q: And, you met him before, in fact?
A: Yes.
Q: Did you see him involved in any of the transactions, that you described?
A: No, I did not.
# 12 at Exh. 8, pp. 1-1051-110.
A close reading of the transcript reveals that the witness never testified that Hurtado was present at those times when these drug transactions were occurring in front of the apartment building. In other words, the prosecutor never asked the witness whether Hurtado was present at any time when drug dealing was taking place. One might infer from the number of times when the officer saw drug dealing in front of 77 Newbury Street and the number of times he saw Hurtado in front of 77 Newbury Street that there were times he made both observations, i.e., drug dealing and Hurtado present in the area of the building, simultaneously.
However, the most which could be inferred is that at times when officers saw drug dealing occurring outside 77 Newbury Street, Hurtado was present in the area but did not participate in any of the transactions. And this is the most that the Appeals Court's statement that "[t]he police observed [Hurtado] at the apartment when drug transactions were occurring" can mean.
I need not decide whether the inference can be fairly made from the evidence because the Appeals Court cited this evidence to find that the jury could have inferred that Hurtado knew of the drugs on the third floor. As indicated on page 16, supra, I have assumed for purposes of this report and recommendation that there was sufficient evidence to infer that Hurtado knew of the drugs on the third floor.
The second overstatement is of more consequence. In concluding that there was sufficient evidence that Hurtado had the intention to exercise control over the drugs found in the third-floor apartment, the Appeals Court relied on the "fact" that "...the drug note found by his personal papers mentioned quantities contained on the third floor..." Hurtado at 8. As indicated, supra, the drug note was found next to a jewelry case on a dresser in the bedroom of the first-floor apartment. There was no evidence whatsoever that any of Hurtado's personal possessions or papers were found in or about that dresser. Rather, the most the evidence showed was that the two expired passports came somewhere from the same bedroom. The Appeals Court's statement that the drug *131 note was "found by his personal papers" can mean no more than the personal papers, i.e., two expired passports, were found in the same room as the drug note.
With these clarifications of precisely what the evidence was, the Court has reviewed the Massachusetts cases involving constructive possession to determine if the evidence in the instant case was sufficient to find that Hurtado intended to exercise dominion and control over the heroin and cocaine in the third-floor apartment.
E. Cases Involving Constructive Possession
At oral argument, this Court asked the parties to provide supplemental briefing and to set out any cases in which similar facts were found sufficient to support a conviction under a theory of constructive possession.[19] However, the cases presented by the respondents do not help to show that the Appeals Court's decision here was reasonable.
For instance, in Commonwealth v. Gonzalez, 42 Mass.App.Ct. 235, 675 N.E.2d 1177 (1997), the defendant was convicted of trafficking in cocaine under a theory of constructive possession. The cocaine in question was concealed on a first-floor back porch accessible by defendant (who, the evidence tended to show, occupied a first-floor apartment) and the residents of five other apartments in the building. Gonzalez, 42 Mass.App.Ct. at 236, 675 N.E.2d at 1178. The only question presented on appeal was whether sufficient evidence was presented to establish that the defendant constructively possessed the cocaine on the back porch. Other evidence tended to show the defendant was involved in drug trafficking: a scale and lactose were found in the kitchen of the apartment, bills from a paging service were found in his bedroom, personal papers showed he had lived at three addresses in the previous seven months, and over $1,200.00 in cash and personal papers containing the name of the defendant had been found in a bureau drawer.[20]Id. at 237, 238, 675 N.E.2d at 1179-80. More important for present purposes, no one else was shown to live at the apartment other than the defendant, although an unidentified woman was in the apartment when the officers executed the search warrant. The Massachusetts Appeals Court found the evidence sufficient to support the conviction. Id. at 241, 675 N.E.2d at 1181.
In contrast, no independent evidence shows Hurtado was involved in drug dealing; there was no evidence that he used the bureau on which the drug note was found and there was no evidence that the drug note was found with any of Hurtado's personal papers. In addition, the eleven small plastic bags found in the kitchen (and the three bags hidden in the kitchen) were just as likely to have been placed there by co-occupants Lydia or Roberto Nunez. No scales or cutting agent were found in the apartment, Hurtado was not found in possession of any cash, and no other behavior typical of drug dealers was attributed to Hurtado.
In Commonwealth v. Pratt, 407 Mass. 647, 555 N.E.2d 559 (1990), the defendant and her husband were both charged with possession and distribution of controlled substances found in their home and on land located behind the home. In order to show the defendant had the ability and intent to exercise control over the drugs in question, the government showed not only that some of the drugs were found in the *132 home she occupied with her husband,[21] but also that they were found on an open shelf along with towels, stockings, and toiletries.[22]Id. at 652, 555 N.E.2d at 563. The defendant had been sitting quietly while the police searched the home, but as police began to reach for the shelf, she stood up, pointed at the shelf, and began to speak. The court concluded this behavior demonstrated knowledge of the shelf's contents. Pratt, 407 Mass. at 650, 651-52, 555 N.E.2d at 562, 563. The court reasoned that where controlled substances are found in a home jointly occupied by one or more persons, a jury may conclude an occupant has the intent to possess those substances where "the contraband was found in proximity to personal effects of the defendant in areas of the dwelling, such a bedroom or closet, to which other evidence [in that case, defendant's gesture and attempt to speak] indicates the defendant has a particular relationship." Id. (quoting Commonwealth v. Rarick, 23 Mass.App.Ct. 912, 912, 499 N.E.2d 1233, 1233-34 (1986)). The court further concluded that a reasonable jury could have inferred from the defendant's possession of drugs in the house, the similarity in packaging between the drugs in the house and those outside, and the presence of a drug transaction sheet in plain view in the house that she intended to possess the drugs found outside as well. Id. at 652-53, 555 N.E.2d at 562.
Unlike the facts in the Pratt case, the facts here do not demonstrate Hurtado had the intent to exercise dominion and control over the drugs on the third floor. No drugs at all were found in the first-floor apartment. No paraphernalia associated with drugs or drug dealing were found "in proximity to personal effects of the defendant in areas of the dwelling, such as a bedroom or closet, to which other evidence indicates the defendant has a particular relationship." The empty plastic bags were found in the kitchen, so were just as likely to have been placed there by Lydia or Roberto Nunez.[23] And though the drug note was found on a bureau in the bedroom which Hurtado presumably occupied, there was no evidence that the note belonged to Hurtado or that any of his personal possessions were in the bureau. Even if the Court presumes that Hurtado would read documents on this bureau and thus be aware of the contents of those documents, at most the presence of the note in plain view in their bedroom shows Hurtado had knowledge of the scale of his wife's drug operation. But the presence of the note, in the absence of other incriminating evidence, does nothing to show Hurtado had any intent to exercise dominion or control over the drugs in the third-floor apartment.
In another case cited by respondents, Commonwealth v. Carmenatty, 37 Mass. App.Ct. 908, 638 N.E.2d 496 (1994), police searched the home shared by defendant and his girlfriend. In a dresser drawer, police found men's and women's underclothes as well as a precision scale typically used by drug dealers. The girlfriend was found in possession of several bags of cocaine. No drugs were found on the defendant, but he was carrying two fifty dollar bills. A jury convicted the defendant of possession with intent to distribute the cocaine found on his girlfriend. Id. at *133 909-10, 638 N.E.2d at 497. The court concluded that a reasonable jury could find the defendant was in constructive possession of the scale, since it was found in a bedroom drawer he apparently shared with his girlfriend. The court further found that the cash in the possession of defendant was additional evidence of his involvement in drug trading; while the amount was not large, the court noted it was significant in light of the fact that the defendant was a welfare recipient. Id. at 910, 638 N.E.2d at 498.
The facts in Carmenatty clearly are distinguishable from those in the case at bar. No money was found on Hurtado, and no evidence of drug trading was found amongst his personal effects. No other evidence, other than Hurtado's simple occupancy of the first-floor apartment, ties him to the drug operation on the third floor. And this fact is insufficient as a matter of law to establish constructive possession. Carlos, 38 Mass.App.Ct. at 929, 646 N.E.2d at 765.
In Commonwealth v. Cohen, 6 Mass. App.Ct. 653, 382 N.E.2d 1105 (1978), the defendant was convicted of unlawful possession of controlled substances and of hypodermic needles and syringes. Police executed a search warrant at the apartment of a co-defendant at 119 Charles Street, Boston and found drugs, needles and syringes in the bedroom in a bureau. The defendant was present in the apartment at the time of the search and correspondence addressed to him at another address (28 Leland Street, Jamaica Plain) was found in the same bureau in which the drugs were seized. Id. at 656, 382 N.E.2d at 1108. The court found the evidence was sufficient to support a conclusion that the defendant resided at the apartment and that the defendant controlled the items found in his bedroom. Id. at 658, 382 N.E.2d at 1109.
In Cohen, it was reasonable to infer that the items found in the bureau were in the possession of the defendant because they were found in a bureau along with personal correspondence addressed to him and because of his presence in the apartment. It is not reasonable to reach a similar conclusion in Hurtado's case because the only thing found in the bedroom was the drug note on the bureau, and there was no evidence whatsoever that the bureau was used by Hurtado or that any of his papers were found in it. All that the evidence reveals was that two of his passports were found somewhere in the bedroom. This Court has been unable to find any Massachusetts appellate court opinion (other than the one at issue) which would support the conclusion reached by the Appeals Court in this case.[24] This Court also has reviewed a number of decisions from other jurisdictions in which similar rules regarding constructive possession are applied. No case seems consistent with the result reached by the Massachusetts Appeals Court here.[25] Thus, given the evidence *134 courts in Massachusetts and in other jurisdictions have required in order to establish constructive possession, this Court cannot say that the Massachusetts Appeals Court's decision in Hurtado was reasonable.
F. "Reasonableness" under the Seventh Circuit's Standard
Furthermore, if this Court were to apply the Seventh Circuit's standard for judging whether a state court's decision was reasonable, the Court still would conclude that habeas relief should be granted. Lindh held that a state court decision was "reasonable" if it provided "a responsible, thoughtful answer reached after a full opportunity to litigate." Lindh, 96 F.3d at 871, rev'd on other grds, 521 U.S. 320, 117 S.Ct. 2059, 138 L.Ed.2d 481. But this Court cannot find that that standard has been met here, for three reasons.
First, the Appeals Court asserted that Hurtado had been present at the apartment while drug transactions were occurring. Hurtado at 4. As discussed on pages 127-130, supra, this is an overstatement. This Court cannot say that this overstatement contributed to a "responsible, thoughtful answer." Lindh, 96 F.3d at 871.
Second, the Appeals Court's statement in its opinion that "... the drug note found by his personal papers mentioned quantities contained on the third floor...", Hurtado at 8, is a more serious overstatement, as discussed on pages 130-131, supra. No evidence was produced to show where Hurtado's personal papers were found in the bedroom; there is no evidence that the "drug note" was found "by" his papers. Since the only evidence of what was contained in or on the bureau apart from the drug note was gold jewelry and a jewelry box, there is no evidence which would connect Hurtado to that bureau. These are critical facts and this Court cannot say that the Massachusetts Appeals Court gave "a responsible, thoughtful answer" when it overstated the picture by painting with such a broad brush.
Finally, it is not clear how the evidence cited by the Massachusetts Appeals Court actually supports a finding of intent to exercise dominion and control over the narcotics on the third floor. It is clear that the evidence shows an ability to exercise dominion or control. But the court addressed both the requirement of ability and the requirement of intent in one paragraph, and it did not distinguish which evidence established each of those two elements. It is difficult to discern which evidence the court deemed relevant to the element of intent alone. In blending its analysis of the elements of ability and intent two distinct elements of constructive possessionthe Massachusetts Appeals Court did not meet the standard of a "responsible, thoughtful answer."
IV. Summary and Conclusion
I accept as a given that intent is ordinarily proved by circumstantial evidence from which the jury can infer an intent to exercise dominion and control over the narcotics. I also accept that I must take the evidence in the light most favorable to the Commonwealth and must draw all reasonable inferences from that evidence which would support the verdict.
However, it is also the law that "knowledge of the presence of drugs by itself is not sufficient to establish possession" and "possession [is not] proved by the fact of sharing living quarters." Carlos, 38 Mass. App.Ct. at 929, 646 N.E.2d at 765 (citations omitted). In this case, although Hurtado may have shared living quarters in the first-floor apartment, knew of the presence of drugs on the third floor, and had the ability, i.e., could if he chose, to exercise control over those drugs, the evidence is insufficient to establish that he intended *135 to exercise dominion and control over the drugs found in the third-floor apartment.
Thus, I RECOMMEND that the petitioner's petition for relief under 28 U.S.C. § 2254 be GRANTED.
V. Review by the District Judge
The parties are hereby advised that under the provisions of Rule 3(b) of the Rules for United States Magistrates in the United States District Court for the District of Massachusetts, any party who objects to this report and recommendation must file a written objection thereto with the Clerk of this Clerk within 10 days of the party's receipt of this Report and Recommendation. The written objections must specifically identify the portion of the recommendation, or report to which objection is made and the basis for such objections. The parties are further advised that the United States Court of Appeals for this Circuit has indicated that failure to comply with this rule shall preclude further appellate review. See Scott v. Schweiker, 702 F.2d 13, 14 (1 Cir., 1983); United States v. Vega, 678 F.2d 376, 378-379 (1st Cir., 1982); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603 (1 Cir., 1980). See also Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985).
NOTES
[1] Parole is tantamount to "custody" for purposes of satisfying the requirement of § 2254 that the petitioner be "in custody pursuant to the judgment of a State court." Because of his conviction, the Immigration and Naturalization Service ("INS") is attempting to deport Hurtado to his native Dominican Republic. His appeal of a deportation order is pending.
[2] Unless otherwise noted, the statement of facts is taken from the opinion of the Massachusetts Appeals Court in Hurtado's direct appeal; see Commonwealth v. Hurtado, 1996 WL 32856, No. 94-P-1821 (Mass.App.Ct., Jan.25, 1996). The facts drawn from that opinion are those undisputed by Hurtado in his petition.
[3] A woman lived on the second floor with her four children, ranging in age from nine to seventeen. (# 12, Exh. 8 at 1-182) Nothing relevant to the investigation was found in the second floor apartment.
[4] The youngest of those six children also was the daughter of Hurtado.
[5] Mannitol is a substance commonly used to dilute cocaine.
[6] An officer testified that the witch stamp and the jagged-edged scissors were typically used in the Lawrence area to "brand" heroin. (# 12, Exh. 8 at 1-120, 138-39, 163)
[7] This piece of paper shall hereinafter be referred to as the "drug note."
[8] The note contained statements such as "sold one for 30" and "one for 70." An officer experienced in the investigation of drug operations testified that these notations referred to quantities and prices of drugs sold. (# 12, Exh. 8 at 1-126)
[9] See discussion, infra, at pp. 127-130.
[10] Under Massachusetts law, a defendant may be charged with "trafficking" in a controlled substance, which carries a heavier penalty than "possession with intent to distribute" a controlled substance, where the quantity of drugs allegedly attributable to the defendant meets a minimum statutory amount. See Mass. Gen. Laws ch. 94C, § 32E (trafficking); cf. Mass. Gen. Laws ch. 94C, § 32 (possession with intent to distribute). Hurtado was charged under Mass. Gen. Laws ch. 94C, § 32E(b)(1) with trafficking in cocaine, because police discovered more than 14 grams but less than 28 grams of cocaine in the thirdfloor apartment; that statute imposes a maximum term of imprisonment of 15 years, with a minimum term of imprisonment of three years; cf. Mass. Gen. Laws ch. 94C, § 32(a) (maximum term of imprisonment for possession with intent to distribute is ten years; no minimum term imposed). The trafficking statute could not be applied to the heroin charge, since police discovered less than 14 grams of heroin in the third floor apartment. See Mass. Gen. Laws ch. 94C, § 32E(b).
[11] Lydia and Roberto Nunez also were charged with the same offenses but they fled after being released by the state court and were at large at the time of Hurtado's sentencing. Hurtado was also on bail but he never defaulted. (See # 12 at Exh. 8, pp. 3-53-6)
[12] The Massachusetts Supreme Judicial Court denied his application for further judicial review on March 25, 1996, and this petition was filed on September 24, 1996.
[13] In their Answer, the respondents alleged that Hurtado had failed to exhaust his state court remedies with respect to all grounds in his petition. (# 11 at 4; see Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982)) However, respondents have since expressly waived the affirmative defense of exhaustion. (# 17 at 2 n. 2; see 28 U.S.C. sec. 2254(b)(3) (State must expressly waive exhaustion requirement through counsel))
[14] In Martin v. Bissonette, 1997 WL 280602, No. 96-1856 (1 Cir., May 29, 1997), opinion withdrawn, 118 F.3d 871 (1 Cir., 1997), the First Circuit explained its view of the standard set out in 28 U.S.C. § 2254(d). The opinion was withdrawn when the Supreme Court ruled in Lindh that AEDPA should not be applied retroactively. Martin v. Bissonette, 118 F.3d 871, 874 n. 3 (1 Cir., 1997). The First Circuit currently is considering a case which may provide the opportunity to revisit the question of how 28 U.S.C. § 2254(d) is to be interpreted; see O'Brien v. Dubois, Ct.App. No. 97-1979. Pending a decision in O'Brien, this court will be guided by decisions from other circuits interpreting 28 U.S.C. § 2254(d), and by a statement in dicta in the original Martin opinion that this Circuit's approach would not differ substantially in practical effect from that suggested by other circuits.
The original Martin opinion also suggested that in order to determine whether the state court decision in question was a "reasonable application" of Supreme Court precedent, courts should review decisions of the lower courts. If other courts have applied Supreme Court precedent in a manner similar to the decision in question, then the Court should conclude that the decision in question was "reasonable." This Court will follow that suggestion in its attempt to determine whether the state court decision at issue here was "reasonable."
[15] Jackson was a habeas corpus action challenging a state court conviction. In Jackson the Supreme Court further held that the federal court's review of the sufficiency of the evidence supporting a state court decision should be de novo. Jackson, 443 U.S. at 321-24, 99 S.Ct. 2781. Since AEDPA adopted a deferential standard toward state court judgments, this part of Jackson may be in doubt. The court will assume this is so, and apply the deferential standard imposed by AEDPA in reviewing the Massachusetts Appeals Court's decision regarding the sufficiency of the evidence.
[16] Alternatively, the Commonwealth charged Hurtado under a "joint venture" theory; Massachusetts law uses the term "joint venture" to describe the legal theory more typically termed "aiding and abetting." The jury was instructed under both theories, but its verdict did not specify which of the two theories it accepted. The Massachusetts Appeals Court found it unnecessary to examine whether sufficient evidence existed to support this alternative theory, though it acknowledged that had insufficient evidence existed to support the constructive possession charge, reversal and retrial would have been necessary, since it was unclear which of the two theories had been accepted by the jury. Hurtado at 5 n. 1 (citing Commonwealth v. Fickett, 403 Mass. 194, 198, 526 N.E.2d 1064 (1988); Commonwealth v. Pichardo, 38 Mass.App.Ct. 416, 417 n. 2, 647 N.E.2d 1236 (1995); Commonwealth v. Kickery, 31 Mass.App.Ct. 720, 724, 583 N.E.2d 869 (1991); Commonwealth v. Eldridge, 28 Mass.App.Ct. 936, 938, 549 N.E.2d 1139 (1990)).
[17] The court also relied on the alleged fact that "[t]he police observed him at the apartment while drug transactions were occurring." Hurtado at 7. As noted, there is no direct evidence to support this assertion, and as discussed, infra at pp. 127-130, the circumstantial evidence does not support such a broad assertion.
[18] It is not entirely clear, though, that Hurtado would have been aware of the three witch-stamped bags containing heroin residue, which were hidden in the bottom of a false plant pot. It is equally reasonable to assume that either Lydia or Roberto Nunez hid the bags there without Hurtado's knowledge.
[19] This was done in order to follow the suggestion in the original Martin opinion that this Court review other decisions on the same issue in order to determine whether the state court's conclusion could be termed "reasonable." See fn. 14, supra.
[20] An expert testified that drug dealers typically used scales similar to the one found, that lactose was often used to dilute cocaine for sale at "street level," and that drug dealers commonly used pagers, frequently changed their locations, and dealt in cash. Gonzalez, 42 Mass.App.Ct. at 235, 675 N.E.2d at 1179.
[21] Partially burnt glassine bags also were found in plain view on the stove in the house; the bags were stamped with a heroin "brand" typical in the local area. Pratt, 407 Mass. at 649-50, 555 N.E.2d at 562.
[22] In that closet, police found forty-four bags of heroin, forty-four methaqualude tablets, a bottle of methadone tablets, and seven syringes and needles. Pratt, 407 Mass. at 652, 555 N.E.2d at 563.
[23] Furthermore, there were only a small number of plastic bags found in the first-floor apartment in the Hurtado case. By contrast, in the Pratt case, the police found in the dwelling forty-four separately packaged bags of heroin, wrapped in packets of ten each (and one packet of four bags); forty-four separately wrapped methaqualone tablets; and a bottle of fifty-two methadone tablets. Pratt, 407 Mass. at 650, 555 N.E.2d at 562.
[24] Additional cases reviewed by the court include: Commonwealth v. Montanez, 410 Mass. 290, 571 N.E.2d 1372 (1991); Commonwealth v. Rivera, 31 Mass.App.Ct. 554, 581 N.E.2d 498 (1991); Commonwealth v. Booker, 31 Mass.App.Ct. 435, 578 N.E.2d 815 (1991); Commonwealth v. Handy, 30 Mass. App.Ct. 776, 573 N.E.2d 1006 (1991); Commonwealth v. James, 30 Mass.App.Ct. 490, 570 N.E.2d 168 (1991); Commonwealth v. Rarick, 23 Mass.App.Ct. 912, 499 N.E.2d 1233 (1986); Commonwealth v. LaPerle, 19 Mass. App.Ct. 424, 475 N.E.2d 81 (1985); Commonwealth v. Williams, 3 Mass.App.Ct. 370, 330 N.E.2d 502 (1975); Commonwealth v. Lee, 2 Mass.App.Ct. 700, 319 N.E.2d 732 (1974); Commonwealth v. Gill, 2 Mass.App.Ct. 653, 318 N.E.2d 628 (1974); Commonwealth v. Xiarhos, 2 Mass.App.Ct. 225, 310 N.E.2d 616 (1974); Commonwealth v. Mott, 2 Mass.App. Ct. 47, 308 N.E.2d 557 (1974).
[25] Cases from other jurisdictions reviewed by the court include the following: Heard v. State, 574 So.2d 873 (Ala.Crim.App.1990); Wooldridge v. State, 489 So.2d 703 (Ala.Crim. App.1986); Embry v. State, 302 Ark. 608, 792 S.W.2d 318 (1990); Osborne v. State, 278 Ark. 45, 643 S.W.2d 251 (1982); Wheeler v. United States, 494 A.2d 170 (D.C.Ct.App.1985); Gaynus v. State, 380 So.2d 1174 (Fla.Dist.Ct.App. 1980); Thompson v. State, 375 So.2d 633 (Fla.Dist.Ct.App.1979); Clayton v. State, 582 So.2d 1019 (Miss.1991); State v. Hall, 680 S.W.2d 179 (Mo.Ct.App.1984); Commonwealth v. Jackson, 540 Pa. 556, 659 A.2d 549 (1995).
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577 F.2d 1158
Gary Lee MILLER, Appellant,v.STATE OF MARYLAND and Gerald A. Keller, Appellees.
No. 77-2250.
United States Court of Appeals,Fourth Circuit.
Argued April 7, 1978.Decided June 22, 1978.
Paul Sullivan and John C. Sullivan, Cumberland, Md., for appellant.
F. Ford Loker, Asst. Atty. Gen., Baltimore, Md. (Francis B. Burch, Atty. Gen., and Clarence W. Sharp, Asst. Atty. Gen., Chief, Crim. Div., Baltimore, Md., on brief), for appellees.
Before BUTZNER, Circuit Judge, LAY, Circuit Judge for the Eighth Circuit, sitting by designation, and WIDENER, Circuit Judge.
PER CURIAM:
1
Gary Lee Miller appeals from the district court's judgment denying his petition for habeas corpus. We affirm.
2
Miller was convicted of murder after a non-jury trial before two judges of the Circuit Court of Allegheny County, Maryland. The trial court admitted into evidence a confession given by Miller to the police on the day of his arrest when he was 16 years old. The Court of Appeals of Maryland agreed with the trial court that Miller's statement "had been freely and voluntarily given, and that . . . (he) knowingly and intelligently waived his constitutional rights," and it affirmed the conviction. Miller v. State, 251 Md. 362, 247 A.2d 530, 540 (1968).
3
While Miller chose not to testify at trial concerning the circumstances surrounding his confession, he did testify at a state post-conviction hearing. He claimed that the police did not advise him of his Miranda rights, did not allow him to see his parents, and fabricated the confession. The police denied these allegations. The state judge did not believe Miller's testimony and held that he had voluntarily confessed. The district court, finding that the state court had applied the proper constitutional standards and that the record supported its findings of fact, decided this case on the pleadings and state record without a hearing. See Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963); 28 U.S.C. § 2254(d).
4
Miller contends that in evaluating the voluntariness of his confession the courts gave insufficient consideration to his age. But "(y)outh by itself is not a ground for holding a confession inadmissible." Williams v. Peyton, 404 F.2d 528, 530 (4th Cir. 1968). Both the state and federal courts explicitly recognized the duty required by Haley v. Ohio, 332 U.S. 596, 68 S.Ct. 302, 92 L.Ed. 224 (1948), to scrutinize with special care confessions by juveniles. The district court noted that the police's failure to contact Miller's parents as soon as they arrested him was a circumstance that weighed against the admissibility of the confession, but it correctly recognized that that fact alone did not render the confession involuntary. See Haley v. Ohio, 332 U.S. 596, 602-03, 68 S.Ct. 302, 92 L.Ed. 224 (1948) (Frankfurter, J., concurring).
5
Miller also reasserts in this court his allegations of police misconduct. But the state court, and the district court on the basis of the state record, found that the police twice gave Miller the standard Miranda warnings; that they honored Miller's first request to see his parents, which came after he confessed; and that considering the totality of the circumstances, Miller's confession had been freely, knowingly, and voluntarily given. After a careful review of the record, we cannot say that these findings are clearly erroneous.
6
Accordingly, we affirm the judgment of the district court.
7
AFFIRMED.
8
LAY, Circuit Judge, dissenting.
9
I respectfully dissent.
10
It is difficult to disagree with Judge Young's thorough and searching opinion rendered in the district court, which is supported by the conclusion of the Court of Appeals of Maryland that the defendant's statement "had been freely and voluntarily given, and that (he) knowingly and intelligently waived his constitutional rights." Miller v. State, 251 Md. 362, 247 A.2d 530, 540 (1968).
11
As voluntary as the confession may otherwise seem, however, there is nothing in the present record which demonstrates that this 16 year old boy made an effective and intelligent waiver of his right to counsel at the time of the police interrogation. My reluctance to deny petitioner relief is based on language found in Haley v. Ohio, 332 U.S. 596, 68 S.Ct. 302, 92 L.Ed. 224 (1948):
12
(W)e are told that this boy was advised of his constitutional rights before he signed the confession and that, knowing them, he nevertheless confessed. That assumes, however, that a boy of fifteen, without aid of counsel, would have a full appreciation of that advice and that on the facts of this record he had a freedom of choice. We cannot indulge those assumptions. Moreover, we cannot give any weight to recitals which merely formalize constitutional requirements. Formulas of respect for constitutional safeguards cannot prevail over the facts of life which contradict them. They may not become a cloak for inquisitorial practices and make an empty form of the due process of law . . . .
13
Id. at 601, 68 S.Ct. at 304 (plurality opinion) (emphasis added).
14
A similar observation was made in Gallegos v. Colorado, 370 U.S. 49, 82 S.Ct. 1209, 8 L.Ed.2d 325 (1962), where the Court stated:
15
(The juvenile arrestee) cannot be compared with an adult in full possession of his senses and knowledgeable of the consequences of his admissions. He would have no way of knowing what the consequences of his confession were without advice as to his rights from someone concerned with securing him those rights and without the aid of more mature judgment as to the steps he should take in the predicament in which he found himself. A lawyer or an adult relative or friend could have given the petitioner the protection which his own immaturity could not. Adult advice would have put him on a less unequal footing with his interrogators. Without some adult protection against this inequality, a 14-year-old boy would not be able to know, let alone assert, such constitutional rights as he had.
16
Id. at 54, 82 S.Ct. at 1212.
17
I appreciate that both Haley and Gallegos involved instances of physical mistreatment which additionally supported the Supreme Court's finding of a denial of due process. However, recent state cases have held that a confession secured from a 14 or 15 year old child, in the absence of counsel or a parent capable of protecting the child's rights, violates due process. See In re Nelson, 58 Misc.2d 748, 296 N.Y.S.2d 472 (1969); In re Aaron D., 30 App.Div.2d 183, 290 N.Y.S.2d 935 (1968). In my view, this reasoning is correct and should be applied here. See also Commonwealth v. Webster, 466 Pa. 314, 320-28, 353 A.2d 372, 376-79 (1975); In re K.W.B., 500 S.W.2d 275, 279-83 (Mo.App.1973); Lewis v. State, 259 Ind. 431, 436-40, 288 N.E.2d 138, 141-43 (1972). Cf. Weatherspoon v. State, 328 So.2d 875, 876 (Fla.App.1976).
18
The district court denied petitioner relief on the basis of the state courts' findings that petitioner had been advised of his Miranda rights, including his right to have counsel present during interrogation, and that he had waived this right. Judge Young acknowledged that "there is no indication that the police investigators made any attempt to explain in detail the meaning of the Miranda warnings, an action which should be taken when a juvenile is being interrogated. . . ." (Emphasis added). See also United States v. Miller, 453 F.2d 634, 636 (4th Cir.), cert. denied, 406 U.S. 923, 92 S.Ct. 1790, 32 L.Ed.2d 123 (1972). However, Judge Young found this fact irrelevant since "the petitioner has steadfastly maintained he never was given his Miranda rights. . . ." (The state court resolved this fact against petitioner.) The judge concluded that "Miller has, therefore, not argued to this Court that he did not comprehend the rights as they were read." The police acknowledge that all they did was read the Miranda rights to Miller and make a notation that he indicated he understood them. The district court recognized that "perhaps more should have been done." (Emphasis added). Judge Young concluded, however, that because Miller had a prior rape conviction and was not totally inexperienced with the law and law enforcement agents, there was no reason to conclude that the waiver was not effective. I find this conclusion to be unwarranted.
19
Notwithstanding Miller's assertion that his Miranda rights were not read to him, upon a judicial finding to the contrary it was incumbent on the State of Maryland to show that any waiver of those rights by the petitioner was fully understood and intelligently made. The Supreme Court recently reaffirmed the proposition that courts must "indulge in every reasonable presumption against waiver." Brewer v. Williams, 430 U.S. 387, 404, 97 S.Ct. 1232, 1242, 51 L.Ed.2d 424 (1977).
20
In Adams v. United States ex rel. McCann, 317 U.S. 269, 279, 63 S.Ct. 236, 242, 87 L.Ed. 268 (1942), Mr. Justice Frankfurter observed that a defendant "may waive his Constitutional right to assistance of counsel if he knows what he is doing and his choice is made with eyes open." (Emphasis added). The mere fact that an accused is informed of his right of counsel and expresses a desire to waive such right is not by itself considered to be an effective waiver. See Von Moltke v. Gillies, 332 U.S. 708, 68 S.Ct. 316, 92 L.Ed. 309 (1948). It is fundamental that the record show that an accused was offered counsel and that he intelligently and understandingly rejected the offer. As the Supreme Court stated in Carnley v. Cochran, 369 U.S. 506, 516, 82 S.Ct. 884, 8 L.Ed.2d 70 (1962), "(a)nything less is not waiver."
21
In the present case the record is silent as to whether petitioner fully understood the assistance effective counsel could have provided. Before interrogating a 16 year old youth the police must fully inform the youth of the nature of his constitutional rights, rather than merely accept the boy's acknowledgment that he waives those rights. The mere litany of formal questions and answers is not sufficient. It may be true that "(y)outh by itself is not a ground for holding a confession inadmissible." Williams v. Peyton, 404 F.2d 528, 530 (4th Cir. 1968). However, if it is true that because of a youth's suggestibility and immaturity special precautions must be taken in custodial interrogation,1 then the record here is grossly deficient in showing that the petitioner fully understood what his right to counsel was intended to provide.
22
At a minimum police should encourage the presence of a lawyer or his parents during interrogation. Maryland law required notification of the parents of a juvenile arrestee,2 and this statutory command should not be viewed simply as a hollow gesture. In the absence of parents, police should at least explain to a youth the value of having counsel present: that counsel can privately consult with the accused outside of the presence of the police, advise him as to whether to speak freely or not, advise him of the legal consequences of any incriminating statement he might make, and insure that the questioning will be conducted fairly.3 As recognized in Miranda, presence of counsel during interrogation "obviously enhances the integrity of the fact-finding processes in court." Miranda v. Arizona, 384 U.S. 436, 466, 86 S.Ct. 1602, 1624, 16 L.Ed.2d 694 (1966). Unless a youth minimally demonstrates that he fully understands these facts, and unless the record affirmatively shows this, I do not feel courts should indulge in any assumption that the youth has intelligently waived his right to counsel during interrogation.
23
If a lawyer had been requested in the present case he would have found the accused to be a 16 year old youth who had been involved in a prior criminal conviction, who was presently undergoing psychiatric care and who was about to be interrogated concerning a capital crime. Any effective lawyer under the circumstances would have advised his client to remain silent until further investigation and consultation had taken place.
24
I basically abhor the proposition that an immature and emotionally disturbed youth can be interrogated in custodial surroundings without the presence of his parents or counsel. Cf. Mr. Justice Marshall's dissent from the denial of certiorari in Little v. Arkansas, --- U.S. ----, 98 S.Ct. 1590, 55 L.Ed.2d 809 (1978) and in Riley v. Illinois, --- U.S. ----, 98 S.Ct. 1657, 56 L.Ed.2d 91 (1978). Law enforcement personnel know full well that incriminating statements may be more readily obtained from any accused if counsel is not present. Police know once a confession is obtained appointed counsel may thereafter serve only a perfunctory role. As Mr. Justice Harlan recognized in dissent in Mapp v. Ohio, 367 U.S. 643, 685, 81 S.Ct. 1684, 1707, 6 L.Ed.2d 1081 (1961):
25
(A)ll the careful safeguards erected around the giving of testimony, whether by an accused or any other witness, would become empty formalities in a procedure where the most compelling possible evidence of guilt, a confession, would have already been obtained at the unsupervised pleasure of the police.
26
I sense that judicial acceptance of an alleged waiver of the right to counsel by an immature youth is often blinded by the heinous crime with which the youth is charged. Violation of the basic constitutional right to counsel cannot be obviated by hindsight rationalization. Whether the confession may be corroborated by extrinsic facts, whether the incriminating remarks have an inherent ring of truth is beside the point. Cf. Williams v. Brewer, supra. More important is the right of each accused youth to effective assistance of counsel at a meaningful time in a criminal proceeding.
27
I would reverse and conditionally grant the writ of habeas corpus pending a new trial by the State of Maryland.
1
See Haley v. Ohio, 332 U.S. 596, 599-600, 68 S.Ct. 302, 92 L.Ed. 224 (1948)
2
The district court acknowledged that Maryland law places an affirmative obligation on law enforcement officials to notify parents or guardians when minors are taken into custody. § 3-822(a), Courts and Judicial Proceedings Act, Code of Maryland. This was not done here
3
I would like to assume that even without counsel present police would conduct a fair interrogation. However, I have heard at least one state attorney general argue before me that "every law officer knows that you must engage in a little trickery to obtain a good confession."
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106 F.2d 851 (1939)
AMERICAN CYANAMID CO. et al.
v.
COE, Commissioner of Patents.
No. 7158.
United States Court of Appeals for the District of Columbia.
Decided June 30, 1939.
Walter M. O'Brien, of Washington, D. C., and L. A. Watson, of New York City, for appellants.
R. F. Whitehead, of Washington, D. C., Solicitor, United States Patent Office, for appellee.
Before GRONER, Chief Justice, and STEPHENS and EDGERTON, Associate Justices.
STEPHENS, Associate Justice.
This is an appeal from an order of the District Court of the United States for the District of Columbia dismissing a bill of complaint after a hearing on the merits. The bill was filed by the appellants under Rev.Stat. § 4915, 35 U.S.C.A. § 63, to secure an order authorizing the appellee Commissioner of Patents to issue a patent to the appellant American Cyanamid Company. The trial court ruled that the plaintiffs were estopped to assert the claims herein because they failed to assert them, under Patent Office Rule 109, in an interference proceeding. The rule referred to reads, so far as here pertinent:
"109. An applicant involved in an interference may, within a time fixed by the examiner of interferences not less than thirty days after the preliminary statements (referred to in rule 110) of the parties have been received and approved, or *852 if a motion to dissolve the interference has been brought by another party, within thirty days from the filing thereof, on motion duly made as provided by rule 153, file an amendment to his application containing any claims which in his opinion should be made the basis of interference between himself and any of the other parties.
* * *
"Any party to an interference may bring a motion to put in interference any claims already in his application or patent which should be made the basis of interference between himself and any of the other parties. Any party to an interference may bring a motion to add or substitute any other application owned by him, as to the existing issue, or to include an application or a patent owned by him, as to claims which should be made the basis of interference between himself and any of the other parties. Such motions are subject to the same conditions and the procedure in connection therewith is the same, so far as applicable, as hereinabove set forth for motions to amend."
For convenience in stating the facts and discussing them and comparing them, as will be necessary, with the facts in International Cellucotton Products Co. v. Coe, 1936, 66 App.D.C. 248, 85 F.2d 869, and E. I. Du Pont De Nemours & Co. v. Coe, 1937, 67 App.D.C. 42, 89 F.2d 679, we print a graph, used by counsel in the oral argument, representative of the facts in the instant case and in the two others mentioned. In the graph the facts of the instant case are represented by Illustration 1, those of the Cellucotton case by Illustration 2, and those of the Du Pont case by Illustration 3.
*853 The facts, which were stipulated, are as follows:
In the instant case, Goldschmidt and Neuss filed Application No. 591,639, referred to as Application A, for an invention, referred to as invention X. The same inventors also filed Application No. 628,593, referred to as Application B, for invention Y. The trial court found that these applications involved related, but different, inventions. It found also that Application A did not disclose and could not claim invention Y. Both applications are now owned by the appellant American Cyanamid Company.
Ellis filed Application No. 689,165, referred to as Application C, claiming therein both inventions X and Y. Interference No. 58,965, which will be referred to as Interference I, was declared between Applications A and C, in respect of invention X. The Examiner awarded certain counts to Ellis and certain others to Goldschmidt and Neuss. Shortly before this award was made, Ellis transferred his claims to Y to a divisional application. But no issue is raised as to the effect of this transfer, so that the Ellis application may be treated as if it were still the original Application C. A patent was issued to Ellis under the divisional application.
On motion of Goldschmidt and Neuss, an interference, which will be referred to as Interference II, was declared between their Application B for invention Y and the Ellis Application C. This interference was in respect of invention Y. But upon motion of Ellis the Examiner dissolved Interference II upon the ground that Goldschmidt and Neuss were estopped by reason of failure to move under Rule 109 to have their Application B brought into Interference I. Application B was then denied ex parte by the Commissioner on the basis of the estoppel. The present bill was brought to attack this ruling, but the ruling was sustained by the trial court.
The appellants rely upon International Cellucotton Products Co. v. Coe, supra. The Commissioner contends that it is distinguishable. In that case Bauer filed Application No. 687,012, referred to as Application A, for a machine referred to as invention X. Thompson filed Application No. 148,322, referred to as Application B, for invention Y, an attachment for the same machine. Williams filed Application No. 98,050, referred to as Application C, for both inventions X and Y. Application A did not disclose and hence could not claim invention Y. The Cellucotton Company then became the owner of Applications A and B. The Commissioner declared an interference, which will be referred to as Interference I, between Applications A and C with respect to invention X. Cellucotton made no motion to bring into this interference Application B for invention Y. Interference I terminated in an award of priority to Bauer (Cellucotton) and a patent was issued to Cellucotton on Application A for invention X. The Commissioner then declared an Interference II between Applications B and C as to invention Y, but, on motion of Williams, dissolved this interference upon the ground of estoppel of Cellucotton for failure, as above said, to move to add Application B to Interference I. Bill of complaint was filed under Rev.Stat. § 4915 to attack this ruling. The trial court sustained the ruling but we reversed, holding that estoppel in such cases rests upon the doctrine of res adjudicata and that under that doctrine Cellucotton was not estopped to assert the claims of Application B for invention Y for the reason that they could not have been made issues in Interference I. That they could not have been made issues was conceded by the Commissioner and found by the trial court in that case. The instant case and the Cellucotton case are, we think, upon all fours and the latter therefore controls the instant case. There is but one difference in the facts of the two cases: In the instant case Applications A and B for inventions X and Y respectively were filed by the same inventors, Goldschmidt and Neuss, whereas in the Cellucotton case Applications A and B for inventions X and Y respectively were filed by different inventors, Bauer filing Application A and Thompson Application B. But in both cases the applications came into common ownership of the appellant American Cyanamid Company in the instant case, and of the International Cellucotton Products Company in the Cellucotton case the parties against whom in each case respectively an estoppel was urged. We think this difference between the two cases is not a distinction in the legal sense for the reason that the pertinent portion of Rule 109 has to do with the owners of applications rather than with inventors. It says: "Any party to an interference may bring a motion to add or substitute any other application owned by him, as to the existing issue, or to include an application *854 or a patent owned by him, as to claims which should be made the basis of interference between himself and any of the other parties."
The trial court in the instant case was of the view, as indicated in a memorandum opinion, that the Cellucotton case is distinguishable.[1] But, as we have just demonstrated, there is no material difference between the two cases.
It is additionally contended, however, by the appellee Commissioner that if the instant case and the Cellucotton case are not distinguishable, nevertheless the Cellucotton case has been overruled by the case of E. I. Du Pont de Nemours & Co. v. Coe, supra. In that case one Bowers had filed an Application A disclosing inventions X and Y but claiming, as originally filed, only invention X.[2] One Foster had filed an Application B, and Jaeger and Cannon had filed an Application C. Applications B and C claimed both inventions X and Y. An interference, referred to herein as Interference I, was declared between Applications A, B and C in respect of invention X and priority was determined in favor of Application A and a patent issued to Bowers. Bowers later applied for a reissue of the patent on Application A in order to include invention Y. This application is referred to as A2. He then moved to have this application added to an Interference II, which was then pending between Applications B and C as to invention Y. The motion was denied on the ground of estoppel under Rule 109 and the reissue to claim invention Y was refused. The denial by the Patent Office of this motion was sustained by the trial court, and by this court on appeal.
It was not intended by the Du Pont case to overrule the Cellucotton case. The two cases are distinguishable in that in the Cellucotton case Bauer's Application A neither claimed nor disclosed invention Y; whereas in the Du Pont case, while Bowers' original Application A did not claim invention Y, it did disclose it, so that it was included in the Bowers reissue Application A2.
We are aware that the case of In re Chase, 1934, 71 F.2d 178, decided by the Court of Customs and Patent Appeals and cited in the Cellucotton case as supporting the view therein taken, has, by a divided court (Bland, A. J., and Garrett, P. J., dissenting), been overruled. Avery v. Chase, Cust. & Pat.App., 1939, 101 F.2d 205. With all proper respect for the change of view by the majority in the Court of Customs and Patent Appeals, we feel obliged to adhere to the position taken in the Cellucotton case.
Reversed.
NOTES
[1] The trial court, referring to our decision in that case, said:
"The Court of Appeals reversed the decree, saying:
"`Under the doctrine res judicata the appellant is not estopped to assert claims 23, 33, 34, 37 and 38 [the claims to invention Y] of the Thompson application, for the reason that, as conceded by appellee and found by the trial court, they could not have been made issues in the first interference. Accordingly the decree of the trial court herein is reversed.'
"The Cellucotton Case is wholly different from the instant case. There Cellucotton was not estopped to assert the claims of the Thompson application because they could not have been made issues in the first interference between Bauer and Williams; whereas, in the instant case, while in the first interference, between Goldschmidt and Neuss' Application No. 591,639 [Application A for invention X] and Ellis' Application No. 689,165 [Application C for X and Y], Goldschmidt and Neuss' application `did not disclose and could not claim the invention in the case at bar,' [invention Y] yet Ellis' application in that interference did disclose the invention [Y] claimed by Goldschmidt and Neuss in their second application, No. 628,593. . . . That being true, the claims here in issue (from Goldschmidt and Neuss' second application) could have been made issues in the first interference. Therein lies the vital distinction between the Cellucotton Case and the case at bar."
[2] The fact that Application A disclosed both inventions X and Y is not expressly stated in the opinion in the Du Pont case. It does appear in the record, and is implied in the opinion in that, when Bowers filed a new application claiming invention Y after a patent had been issued to him on his first application which had claimed X, the Patent Office ruled that instead of filing a new application he should have applied for a reissue of his patent to include the claim to invention Y. The reissue to include Y could not have been granted unless that invention had been disclosed in the original application.
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16-3734-cr
United States v. Dominique Mack, et al.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
Rulings by summary order do not have precedential effect. Citation to a summary order filed
on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate
Procedure 32.1 and this Court’s Local Rule 32.1.1. When citing a summary order in a
document filed with this Court, a party must cite either the Federal Appendix or an
electronic database (with the notation “summary order”). A party citing a summary order
must serve a copy of it on any party not represented by counsel.
1 At a stated term of the United States Court of Appeals for the Second Circuit, held at
2 the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
3 on the 2nd day of April, two thousand twenty.
4
5 PRESENT: JOHN M. WALKER, JR.,
6 DEBRA ANN LIVINGSTON,
7 Circuit Judges,
8 KATHERINE POLK FAILLA,
9 District Judge.*
10
11
12 UNITED STATES OF AMERICA,
13
14 Appellee, 16-3734-cr
15
16 v.
17
18 KERONN MILLER, aka Fresh, TYQUAN LUCIEN, aka
19 TQ, aka Frogger,
20
21 Defendants,
22
23 DOMINIQUE MACK, aka Lil Sweets,
24
25 Defendant-Appellant.
26
27
28
29 FOR APPELLEE: BRIAN P. LEAMING (Jennifer R. Laraia,
30 Marc H. Silverman, on the brief) Assistant
31 United States Attorneys, for John H.
* Judge Katherine Polk Failla, of the United States District Court for the Southern District of New
York, sitting by designation.
1 Durham, United States Attorney for the
2 District of Connecticut.
3
4 FOR DEFENDANT-APPELLANT: JEREMIAH DONOVAN, Old Saybrook, CT.
5
6
7 Appeal from a judgment entered in the United States District Court for the District of
8 Connecticut (Michael P. Shea, Judge) following a jury trial.
9 UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
10 ADJUDGED, AND DECREED that the judgment of the District Court be and hereby is
11 AFFIRMED.
12 Defendant Dominique Mack appeals from a judgment entered in the United States District
13 Court for the District of Connecticut following a jury trial before Michael P. Shea, Judge, convicting
14 him of conspiracy to commit witness tampering related to the death of Ian Francis, conspiracy to
15 commit witness tampering by planning to murder Charles Jernigan, and two counts of unlawful
16 possession of a firearm by a felon. The district court sentenced Mack to life imprisonment for each
17 conspiracy conviction and ten years’ imprisonment for each firearms conviction, to run concurrently.
18 We assume the parties’ familiarity with the facts, procedural history, and issues for review.
19 On appeal, Mack primarily challenges the adequacy of the jury instructions, certain evidentiary
20 rulings by the district court, and the imposition of a life sentence for the conspiracy convictions. These
21 issues are addressed in a separate opinion issued simultaneously with this summary order. We now
22 address Mack’s remaining arguments: (i) that the district court lacked jurisdiction over the prosecution
23 of Mack’s firearms charge; (ii) that the district court’s approach to re-cross examination, cross-
24 examination, and voir dire violated Mack’s rights to due process and to confront the witnesses against
25 him; (iii) that the evidence was insufficient to establish that Mack entered into a conspiracy to murder
26 Jernigan; and (iv) that Mack is entitled to have cell-site location information related to his whereabouts
27 on the evening of the Francis shooting suppressed in light of the Supreme Court’s decision in Carpenter
28 v. United States, 138 S. Ct. 2206 (2018).
29 A. Jurisdiction to adjudicate firearms charge
30 United States v. Rehaif, 139 S. Ct. 2191 (2019), held that in prosecuting charges under 18 U.S.C.
31 §§ 922(g) and 924(a)(2), the government must prove that the defendant knew he was a member of a
32 class of persons forbidden from possessing firearms. On appeal, Mack argues that in failing to allege
33 scienter with respect to his status, the indictment failed to allege a federal crime that the district court
34 would have jurisdiction to adjudicate. The Second Circuit recently addressed and rejected this
35 argument in United States v. Balde, 943 F.3d 73 (2d Cir. 2019). Recounting that “the standard for the
36 sufficiency of an indictment is not demanding,” and that indictments suffice even if they “do little
37 more than . . . track the language of the statute,” id. at 89 (quoting United States v. Stringer, 730 F.3d
2
1 120, 124 (2d Cir. 2013)), Balde confirmed the jurisdiction of a district court in response to an
2 indictment structured virtually identically to Mack’s, id. at 92. Like Mack’s indictment, the indictment
3 at issue in Balde specified the time and place of the defendant’s conduct, described the status of the
4 defendant that forbade the defendant from possessing a firearm, stated that the defendant “knowingly
5 did possess” a firearm “in and affecting commerce,” and then described the firearm and its transit in
6 interstate commerce. Id. at 89. The indictment at issue in Balde did not allege that the defendant knew
7 he held the status described. Id. That Mack’s indictment for his firearms charge failed to allege that
8 Mack knew he had previously been convicted of a felony “does not mean that the indictment fails to
9 allege a federal offense in the sense that would speak to the district court’s power to hear the case.”
10 Id. at 91. Mack’s challenge to the district court’s jurisdiction fails.
11 B. Approach to re-cross examination, cross-examination, and voir dire
12 A “primary interest secured” by the Confrontation Clause of the Sixth Amendment is the right
13 of cross-examination, which “is the principal means by which the believability of a witness and the
14 truth of his testimony are tested.” Davis v. Alaska, 415 U.S. 308, 315 (1974) (quoting Douglas v.
15 Alabama, 389 U.S. 415, 418 (1965)). In addition, “[t]he rights to confront and cross-examine witnesses
16 and to call witnesses in one’s own behalf have long been recognized as essential to due process.”
17 Chambers v. Mississippi, 410 U.S. 284, 294 (1973); see also Matter of Kitchen, 706 F.2d 1266, 1273 (2d Cir.
18 1983) (“Full cross-examination of the government’s witnesses is an essential element of both the right
19 to present defenses and the right to confront the government’s evidence.”). These rights, however,
20 are not unlimited. The district court enjoys a “wide latitude insofar as the Confrontation Clause is
21 concerned to impose reasonable limits on such cross-examination based on concerns about, among
22 other things, harassment, prejudice, confusion of the issues, the witness’ safety, or interrogation that
23 is repetitive or only marginally relevant.” Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986). We reverse
24 restrictions on cross-examination only when the district court has abused its “broad discretion.”
25 United States v. James, 712 F.3d 79, 103 (2d Cir. 2013) (quoting United States v. Caracappa, 614 F.3d 30,
26 42 (2d Cir. 2010)).
27 On appeal, Mack argues that the district court erred when it did not permit his counsel to re-
28 cross-examine witnesses or to cross-examine witnesses on additional topics. But an inspection of the
29 record reveals that the information Mack sought to elicit through re-cross-examination could have
30 been gleaned during cross-examination, and the information Mack sought to elicit through further
31 cross-examination would have presented irrelevant or duplicative testimony that would likely confuse
32 the jury. Therefore, the district court’s rulings in this regard were not an abuse of discretion.
33 Mack also argues that the district court erred by refusing to allow the defense to conduct voir
34 dire of the government’s proffered audio recording transcript for a conversation between Lucien and
35 his cellmate. The district court did not permit voir dire because the transcript was an aid to the audio
36 recording exhibit, rather than an exhibit itself, and the district court gave the jury a limiting instruction
3
1 regarding the transcript. Furthermore, Mack had the opportunity to cross-examine Lucien on the
2 accuracy of the transcript. We do not believe the district court abused its discretion here, either.
3 Finally, Mack argues that the district court erred by admonishing trial counsel for repeatedly
4 trying to ask questions over objections. “Our role . . . is not to determine whether the trial judge’s
5 conduct left something to be desired, or even whether some comments would have been better left
6 unsaid. Rather, we must determine whether the judge’s behavior was so prejudicial that it denied [the
7 defendant] a fair, as opposed to a perfect, trial.” United States v. Pisani, 773 F.2d 397, 402 (2d Cir. 1985)
8 (citing United States v. Robinson, 635 F.2d 981, 984 (2d Cir. 1980)). When the district court admonished
9 defense counsel, admittedly somewhat harshly, it provided reasons for doing so. The district court’s
10 admonishments typically came after defense counsel made the same objection after repeatedly being
11 overruled. Even if the district court’s behavior may have at times left something to be desired, it did
12 not deny Mack a fair trial.
13 C. Sufficiency of the evidence
14 On appeal, Mack argues that the evidence is insufficient to support his conviction for
15 conspiracy to murder Jernigan. In reviewing his challenge, we “view the evidence in the light most
16 favorable to the government, drawing all inferences in the government’s favor and deferring to the
17 jury’s assessments of the witnesses’ credibility.” United States v. Allah, 130 F.3d 33, 45 (2d Cir. 1997).
18 “We must affirm the conviction so long as any rational trier of fact could have found the essential
19 elements of the crime beyond a reasonable doubt.” United States v. Jackson, 180 F.3d 55, 74 (2d Cir.),
20 on reh’g, 196 F.3d 383 (2d Cir. 1999).
21 The conspiracy to murder Jernigan arose between Mack and Lucien while they were
22 incarcerated at the same facility. Although they were subject to a separation order, Mack and Lucien
23 were able to meet several times. During one of these meetings, Lucien told Mack that he thought
24 Jernigan might testify against Mack if Jernigan were in federal custody. Mack responded that “[I] got
25 to do something about it. Like he got to go.” Gov. App’x at 1281. Lucien understood that to mean
26 “[Jernigan’s] a dead man.” Gov. App’x at 1282. Lucien told Mack, “I’m going see what I can do
27 about it.” Gov. App’x at 1282. In response, Mack laughed, which Lucien understood to signify an
28 “agreement” because “[h]e ain’t say no. So it was a go.” Gov. App’x at 1284. During a visit a month
29 later, Mack told Lucien that “he got a CD from his evidence that Charles Jernigan had said that he
30 seen [Lucien] with the murder weapon,” Gov. App’x at 1287, that a superseding indictment was
31 coming, and that Lucien might be involved, Gov. App’x at 1294. Mack told Lucien that Jernigan is
32 “getting risky,” meaning “[d]angerous for the trial,” and asked Lucien to “[g]et rid of him.” Gov.
33 App’x at 1298.
34 Lucien’s first plan had been to get out of jail on bond so that he could kill Jernigan himself.
35 He was not able to get out on bond, however, and turned to his cellmate for help. Lucien’s cellmate
36 told Lucien that “[h]is boy could kill [Jernigan],” and the cellmate arranged a meeting between Lucien
4
1 and his associate. Gov. App’x at 1303. Lucien’s cellmate was working for the FBI, and the associate
2 who met with Lucien was in fact an undercover agent. When Lucien met with the agent, he gave the
3 agent Jernigan’s home address, which he had gotten from Mack. Lucien also told the agent that
4 Jernigan lived with his girlfriend and a daughter, and that any witnesses should be killed. Some time
5 later, Lucien and Mack met again through a prison visit, and Lucien told Mack, “I sent my peoples,
6 they came Friday.” Gov. App’x at 1318. Lucien wanted Mack to “know everything’s a go.” Id.
7 During this conversation, Mack confirmed the address that Lucien gave to the agent, asking Lucien
8 “if the address is right.” Gov. App’x at 1319.
9 From Lucien’s testimony, the jury could have reasonably concluded that Mack instructed
10 Lucien to kill Jernigan and attempted to facilitate Jernigan’s murder by providing Lucien with his
11 address. Lucien’s testimony is sufficient to support a determination of Mack’s guilt beyond a
12 reasonable doubt.
13 On appeal, Mack raises three challenges beyond the content of Lucien’s testimony. First, he
14 argues that the evidence is insufficient because it consists solely of Lucien’s testimony. However, it is
15 “well established that a federal conviction may be supported ‘by the uncorroborated testimony’ of
16 even a single accomplice witness ‘if that testimony is not incredible on its face and is capable of
17 establishing guilt beyond a reasonable doubt.’” United States v. Florez, 447 F.3d 145, 155 (2d Cir. 2006)
18 (quoting United States v. Parker, 903 F.2d 91, 97 (2d Cir. 1990)). We do not find Lucien’s testimony to
19 be incredible on its face. Second, Mack makes the related argument that Lucien’s testimony was not
20 corroborated. But even if this is true, “any lack of corroboration goes only to the weight of the
21 evidence, not to its sufficiency. The weight is a matter for argument to the jury, not a ground for
22 reversal on appeal.” United States v. Roman, 870 F.2d 65, 71 (2d Cir. 1989) (citing Compton v. Luckenbach
23 Overseas Corp., 425 F.2d 1130, 1132 & n.2 (2d Cir. 1970)). Finally, Mack argues that Lucien is a felon
24 who lied to the FBI and was indicted for false statements. Mack asks us to second-guess the jury’s
25 determination that Lucien’s testimony was credible. We decline to do so. See United States v. Baker,
26 899 F.3d 123, 130 (2d Cir. 2018) (quoting Florez, 447 F.3d at 156).
27 For these reasons, Mack’s sufficiency of the evidence challenge to his conviction of conspiracy
28 to murder Jernigan fails.
29 D. Suppression of Evidence
30 The government obtained and presented to the jury three days of cell-site location information
31 for Mack’s cellphone. This information was obtained pursuant to a Stored Communications Act order
32 on November 14, 2011. Pursuant to the Stored Communications Act, obtaining the order did not
33 require a showing of probable cause. On appeal, Mack challenges the admission of this cell-site
34 location information in light of the Supreme Court’s recent decision in Carpenter v. United States, 138 S.
35 Ct. 2206 (2018). “When considering an appeal stemming from a motion to suppress evidence, we
5
1 review legal conclusions de novo and findings of fact for clear error.” United States v. Zodhiates, 901
2 F.3d 137, 143 (2d Cir. 2018).
3 In Carpenter, the Supreme Court held that “an individual maintains a legitimate expectation of
4 privacy in the record of his physical movements as captured through [cell-site location information],”
5 138 S. Ct. at 2217, and that as a result, the Fourth Amendment requires the government to obtain a
6 warrant supported by probable cause before obtaining this type of record, id. at 2221. However, there
7 is a “good faith” exception to this rule. “[W]hen the Government acts with an objectively reasonable
8 good-faith belief that their conduct is lawful, the exclusionary rule does not apply. This exception
9 covers searches conducted in objectively reasonable reliance on appellate precedent existing at the
10 time of the search.” Zodhiates, 901 F.3d at 143 (citations, modifications, and internal quotation marks
11 omitted). In Zodhiates, we considered a similar factual scenario and concluded that “in 2011, prior to
12 Carpenter, a warrant was not required for the cell records.” Id. at 144. Although Zodhiates addressed
13 information obtained under the Stored Communications Act’s subpoena requirement rather than its
14 order requirement, this is not a material distinction. See United States v. Chambers, 751 F. App’x 44, 46–
15 47 (2d Cir. 2018) (applying Zodhiates to a case in which information was obtained pursuant to the
16 Stored Communications Act’s order requirement and concluding that the good faith exception applied
17 and that suppression of the cell-site records at issue was not required). For these reasons, we conclude
18 that although Carpenter does apply to the cell-site location information at issue in this case, the good-
19 faith exception also applies, and this evidence did not need to be suppressed.
20 CONCLUSION
21 We have reviewed Mack’s remaining arguments and find them to be without merit. For the
22 reasons set forth in both the accompanying opinion and this summary order, the judgment of
23 conviction and sentence are AFFIRMED.
24
25 FOR THE COURT:
26 Catherine O’Hagan Wolfe, Clerk
6
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999 So.2d 777 (2009)
STATE of Louisiana in the Interest of J.N.
No. 2008-CK-1239.
Supreme Court of Louisiana.
February 6, 2009.
Not considered; not timely filed.
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9 So.3d 716 (2009)
Freddick Lamark WOODSON, Appellant,
v.
STATE of Florida, Appellee.
No. 2D08-2316.
District Court of Appeal of Florida, Second District.
April 22, 2009.
*717 James Marion Moorman, Public Defender, and Pamela H. Izakowitz, Assistant Public Defender, Bartow, for Appellant.
Bill McCollum, Attorney General, Tallahassee, and Marilyn Muir Beccue, Assistant Attorney General, Tampa, for Appellee.
LaROSE, Judge.
Freddick Woodson appeals the revocation of his probation for committing a new offense. The trial court sentenced him to five years in prison. We affirm. In doing so, we reject without discussion Mr. Woodson's suggestion that he was not properly advised of his probationary terms. See State v. Green, 667 So.2d 959, 960-61 (Fla. 2d DCA 1996) (holding that due process does not require defendant to receive verbal notice of standard probation conditions because all persons have constructive notice of state's criminal statutes). We write briefly to explain that Mr. Woodson received due process at his revocation hearing.
"Due process requires that the State prove an alleged violation of probation at a hearing or that the defendant enter a knowing admission to a violation before the trial court revokes the defendant's probation." Balsinger v. State, 974 So.2d 592, 593 (Fla. 2d DCA 2008). Under section 948.06(2)(a), Florida Statutes (2007), the trial court must advise the probationer of the alleged violation. Balsinger, 974 So.2d at 593. Here, the probation officer did not testify, a circumstance that the trial court recognized as not "normal." Nevertheless, our record reflects sufficient evidence to revoke Mr. Woodson's probation. And, based on the testimony presented, there can be no question but that Mr. Woodson knew why the State sought revocation of probation. Mr. Woodson made no objection to not being specifically advised of the alleged violation at the start of the hearing. See § 924.051(3), Fla. Stat. (2007); Insko v. State, 969 So.2d 992, 1001 (Fla.2007) (holding that litigant must object at trial to preserve error for review).
Despite our affirmance, we remand for entry of a written order specifying the conditions of probation that Mr. Woodson violated.
Affirmed and remanded.
SILBERMAN and KELLY, JJ., Concur.
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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs August 7, 2001
STATE OF TENNESSEE v. LARRY DEAN DICKERSON
Direct Appeal from the Criminal Court for Crockett County
No. 3066 Mark L. Agee, Judge
No. W2000-02201-CCA-R3-CD - Filed September 10, 2001
The defendant appeals his premeditated first degree murder conviction for which he received a life
sentence, arguing: (1) the evidence was not sufficient to convict him of first degree murder; (2) he
should have been granted a mistrial due to the prosecutor’s improper statements during closing
arguments; and (3) he was entitled to a special jury instruction regarding diminished capacity. After
reviewing the record, we affirm the judgment of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
JOE G. RILEY, J., delivered the opinion of the court, in which DAVID G. HAYES and ALAN E. GLENN,
JJ., joined.
Garry Brown, Milan, Tennessee (at trial), and Clifford K. McGown, Jr., Waverly, Tennessee (on
appeal), for the appellant, Larry Dean Dickerson.
Paul G. Summers, Attorney General and Reporter; Kim R. Helper, Assistant Attorney General;
Clayburn L. Peeples, District Attorney General; Edward L. (Larry) Hardister and Harold E. (Hal)
Dorsey, Assistant District Attorneys General, for the appellee, State of Tennessee.
OPINION
The defendant and the victim were married for 27 years and worked in the same factory. In
August 1997, the victim moved out of their home and eventually filed for divorce. Witnesses familiar
with the defendant testified the defendant’s behavior changed dramatically after the separation. The
defendant stalked the victim from the time of their separation until the victim’s death. He interfered
with her work by frequenting her work area. When he was barred from her work area, the defendant
began hiding in the ventilation system of the plant where he could watch her through a vent. Outside
of work, the defendant repeatedly followed the victim. He borrowed a friend’s truck in order to spy
on her. On one occasion, he hid in her vehicle while carrying a pellet pistol in order to frighten her.
The defendant wrote numerous letters and notes to the victim during their separation.
In October 1997, the defendant purchased the rifle he used to kill the victim, which was the
first firearm he had ever purchased. Just a few hours prior to the killing, the defendant telephoned his
son-in-law and asked where he could purchase ammunition for the rifle.
Larry Dean Dickerson, the defendant, shot and killed his estranged wife during the early
morning hours of December 20, 1997. Ellen Nunnery, a friend of the victim, testified she had given
the victim a ride home. After the victim exited the vehicle, she stooped to speak to Nunnery through
the window of the vehicle. Nunnery heard a shot, and the window shattered. A second shot rang out,
and the victim collapsed beside the car. The medical examiner testified the victim had been shot twice,
once on the left forearm and again in the chest, with the cause of death being the wound to the chest.
The defendant admitted to law enforcement that he shot the victim. He said he parked his car,
took his rifle, and walked approximately 200 yards to a hiding place in the bushes across the street
from the victim’s home. For an hour, he waited in the bushes for the victim to return home. He
admitted firing two shots. After shooting the victim, the defendant disposed of the weapon and
traveled to several different locations, including Jackson, Memphis, Missouri, and Illinois before
returning to his home, where he was arrested several days after the killing.
The prosecution and the defense each presented expert testimony regarding the defendant’s
capacity to commit a premeditated murder. Dr. Nat Winston, a psychiatrist, testified on behalf of the
state that, in his opinion, the defendant had the ability to premeditate the killing. The defendant’s
expert witness, psychologist Dr. John McCoy, stated the defendant suffered from obsessive
compulsive disorder at the time of the offense. He opined the defendant was not capable of
premeditation due to the disorder.
The jury convicted the defendant of premeditated first degree murder, and he received a life
sentence with the possibility of parole.
I. SUFFICIENCY OF THE EVIDENCE
The defendant argues the proof submitted by the state was insufficient to legally support his
conviction of premeditated first degree murder. The defendant does not contest that he shot and killed
his wife. Instead, he argues that the evidence established he did not have the mental capacity to
commit a premeditated murder.
Where sufficiency of the evidence is challenged, the relevant question for an appellate court
is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime beyond a reasonable doubt. Tenn. R. App.
P. 13(e); Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979); State
-2-
v. Abrams, 935 S.W.2d 399, 401 (Tenn. 1996). The weight and credibility of the witnesses' testimony
are matters entrusted exclusively to the jury as the triers of fact. State v. Sheffield, 676 S.W.2d 542,
547 (Tenn. 1984); State v. Brewer, 932 S.W.2d 1, 19 (Tenn. Crim. App. 1996).
In this case, psychologist Dr. John McCoy testified the defendant was suffering from obsessive
compulsive disorder at the time he killed his wife. Dr. McCoy stated that, due to this disorder, the
defendant was not capable of premeditation. However, psychiatrist Dr. Nat Winston opined the
defendant was capable of premeditation. The resolution of this conflicting testimony was for the jury
to determine. Further, the proof established that the defendant purchased a rifle several weeks prior
to the murder, and he had never before purchased a firearm. A few hours prior to the murder, he
contacted his son-in-law to ask where he could obtain ammunition for the weapon. Approximately
one hour before the killing, the defendant drove to his wife’s home, parked his vehicle, got out his new
rifle, walked a distance of 200 yards to a hiding spot in the bushes, and lay in wait for his wife to
return. Upon her arrival, he shot her twice. The element of premeditation is a question of fact for the
jury. State v. Gentry, 881 S.W.2d 1, 3 (Tenn. Crim. App. 1993). From the record before this court,
a rational trier of fact could have found beyond a reasonable doubt that the defendant committed a
premeditated murder. This issue is without merit.
II. PROSECUTORIAL MISCONDUCT
The defendant also argues he should have been granted a mistrial due to statements made by
the prosecutor during closing arguments. During his closing argument, the assistant district attorney
stated the following regarding defendant’s expert witness:
Ladies and gentlemen, aren’t you tired of all this? Aren’t you tired of opening your
newspaper, hearing on the radio and seeing on tv where criminal defendants bring in
expert witnesses to try and relieve them of the responsibility of their own actions?
Defense counsel then objected to the prosecutor’s argument as being improper. The trial
court admonished the prosecutor, outside the hearing of the jury, to exercise caution because he was
“getting close to arguing that [the jury] should disregard the law.” The defense did not request a
mistrial, and no curative instructions were requested or given.
Initially, we would note the defendant has waived this issue by failing to request a mistrial
contemporaneously with the objection to the prosecutor’s argument. See State v. Hall, 976 S.W.2d
121, 157 (Tenn.1998) (Appendix). However, this court will address the merits of the issue.
Generally, the scope of closing argument is subject to the trial court’s discretion. State v.
Middlebrooks, 995 S.W.2d 550, 557 (Tenn. 1999). However, the parties should be granted wide
latitude provided the argument is “temperate, predicated on evidence introduced during the trial,
relevant to the issues being tried, and not otherwise improper under the facts or law.” State v.
-3-
Thornton, 10 S.W.3d 229, 235 (Tenn. Crim. App. 1999). In this case, the statements of the
prosecutor were not predicated on the evidence submitted at trial and were, therefore, improper.
In the case of an improper argument, this court must determine “whether the improper
conduct ‘affected the verdict to the prejudice of the defendant.’” Middlebrooks, 995 S.W.2d at 559
(quoting Harrington v. State, 215 Tenn. 338, 385 S.W.2d 758, 759 (1965)). To make this
determination, we consider:
(1) the challenged conduct in light of the facts and circumstances of the
case;
(2) the trial court and prosecution’s curative measures;
(3) the prosecutor’s intent in making the argument;
(4) the cumulative effect of the conduct in conjunction with any other
errors in the record; and
(5) the case’s relative strength and weakness.
State v. Bigbee, 885 S.W.2d 797, 809 (Tenn. 1994). In the case sub judice, the prosecutor’s
improper statements were directed at the findings of the defense expert regarding the defendant’s
ability to premeditate the murder. The prosecutor’s improper remarks were brief due to the prompt
objection by defense counsel and the trial court’s immediate instruction to the prosecutor. Following
this direction, no further improper argument was made. Further, it is highly doubtful that the brief
comments made by the prosecutor had any impact upon the jury where the proof established that the
defendant hid in the bushes with a weapon for an hour waiting for his wife to return. For these
reasons, we conclude the improper argument did not affect the jury’s verdict to the prejudice of the
defendant and, thus, did not constitute reversible error.
III. DIMINISHED CAPACITY JURY CHARGE
The defendant moved the trial court to charge the jury as follows:
Evidence has been submitted in this case by the defense concerning the
defendant’s mental condition. This evidence should be considered by you,
specifically in reference to whether or not the defendant possessed the necessary
“premeditation,” which is an element of murder in the first degree, or “knowledge”
which is an element of murder in the second degree.
While this evidence may not establish a defense wherein the defendant would
be found not guilty of any offense, it may be considered by you in deliberating upon
-4-
the necessary elements of murder in the first degree or murder in the second degree.
As I instructed you earlier, should you find that the necessary elements of any of the
grades of homicide are not present, the defendant must be acquitted as to that charge.
You may consider evidence of the defendant’s mental condition along with other
relevant evidence in arriving at your verdict.
This request was denied by the trial court. The defendant argues this was reversible error.
While a criminal defendant’s diminished capacity does not constitute a defense capable of
excusing or defeating a criminal charge, evidence of the diminished capacity is relevant to
determining the defendant’s mens rea. State v. Grose, 982 S.W.2d 349, 353 (Tenn. Crim. App.
1997)(citing State v. Phipps, 883 S.W.2d 138,148 (Tenn. Crim. App. 1994)). Once the trial court
has properly instructed the jury regarding the mens rea necessary to find the defendant guilty of the
charged offense, no further instruction regarding diminished capacity or the effect of the evidence
relating to diminished capacity is necessary. See Grose, 982 S.W.2d at 354.
In the instant case the trial court’s jury charge regarding first degree murder and the
definition of premeditation were taken verbatim from Tennessee Criminal Pattern Jury Instruction
7.01(b) (4th ed. 1995), as follows:
A premeditated act is one done after the exercise of reflection and judgment.
Premeditation means that the intent to kill must have been formed prior to the act
itself. It is not necessary that the purpose to kill preexist in the mind of the accused
for any definite period of time. The mental state of the accused at the time he
allegedly decided to kill must be carefully considered in order to determine whether
the accused was sufficiently free from excitement and passion as to be capable of
premeditation. If the design to kill was formed with premeditation, it is immaterial
that the accused may have been in a state of passion or excitement when the design
was carried into effect. Furthermore, premeditation can be found if the decision to
kill is first formed during the heat of passion, but the accused commits the act after
the passion has subsided.
In addition, the trial court instructed the jury in accordance with Tennessee Criminal Pattern
Jury Instruction 42.22, as follows:
The state must prove beyond a reasonable doubt the culpable mental state of
the accused. Culpable mental state means the state of mind of the accused at the time
of the offense. This means that you must consider all of the evidence to determine
the state of mind of the accused at the time of the commission of the offense. The
state of mind which the state must prove is contained in the elements of the offense
as outlined in these instructions I’ve already given you.
-5-
In this case, you have heard evidence that the defendant might have suffered
from a mental disease, defect or condition which could have affected his capacity to
form the culpable mental state required to commit a particular offense.
If you find from the evidence that the defendant’s capacity to form a culpable
mental state may have been affected, then you must determine beyond a reasonable
doubt what the mental state of the defendant was at the time of the commission of the
offense to determine which, if any, offense he is guilty of.
These instructions were accurate and sufficiently covered the material provisions of the
requested charge. No further instructions were necessary.
CONCLUSION
Based upon our review of the record, the judgment of the trial court is affirmed.
___________________________________
JOE G. RILEY, JUDGE
-6-
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United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 08-2705
___________
Donaldson Company, Inc., *
*
Plaintiff – Appellee, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Missouri.
Burroughs Diesel, Inc., *
*
Defendant – Appellant. *
___________
Submitted: August 26, 2009
Filed: September 16, 2009
___________
Before SMITH, GRUENDER, and BENTON, Circuit Judges.
___________
BENTON, Circuit Judge.
Donaldson Company, Inc., a nonsignatory, seeks to compel arbitration against
Burroughs Diesel, Inc., a signatory to an agreement with an arbitration clause. The
district court ordered arbitration. Burroughs appeals. Jurisdiction being proper under
28 U.S.C. § 1291, this court reverses and remands.1
1
This Court previously issued an opinion on July 20, 2009, relying on Finnie
v. H&R Block Financial Advisors, Inc., 307 Fed. Appx. 19 (8th Cir. 2009)
(unpublished) (per curiam), among other cases. The motion for rehearing is hereby
granted, the previous opinion vacated, and this opinion substituted for it.
I.
In 1999, Burroughs signed a Dealer Full Service Agreement with Western Star
Truck Sales, Inc. Western Star manufactured trucks that it sold to Burroughs for
resale. A third party, Donaldson, supplied two parts of the air intake system in the
trucks. The Dealer Agreement did not mention Donaldson. It contained an arbitration
provision that
any controversy or claim arising out of or in connection with this
Agreement, its construction, interpretation, effect, performance, non-
performance, termination, or consequences thereof, or any transaction
contemplated hereby, however characterized as a matter of law (whether
in contract, tort or otherwise), . . . shall be settled by arbitration in St.
Louis County, Missouri . . . .
Dealer Agreement ¶ 31. The Agreement provided that it “shall be governed by and
construed in accordance with the laws of the state in which Dealer’s principal place
of business, as designated in Paragraph 6 hereof, is located, and such laws shall be
applied and control any arbitration conducted pursuant to Paragraph 31 hereof.” Id.
¶ 34.2
The engines failed in several trucks purchased from Burroughs. In November
2001, the buyers sued Donaldson, “Western Star Trucks,” and Burroughs in
Mississippi state court. In February 2002, Burroughs cross-claimed against
Donaldson and Western Star. The cross-claim, referring to Donaldson and Western
Star collectively as “Cross-Defendants,” did not distinguish between them in terms of
the misconduct alleged. Western Star answered the cross-claim, raising arbitration as
an affirmative defense, and serving a copy on Donaldson.
2
Paragraph 6 says that Laurel, Mississippi, is Burroughs’s principal place of
business.
-2-
Two days later, Western Star sued, in the U.S. District Court for the Eastern
District of Missouri, to compel arbitration. Neither Burroughs nor Western Star
notified Donaldson of the arbitration proceedings in Missouri.
In Mississippi, Donaldson answered the cross-claims, conditionally raising an
arbitration defense: “If there is an arbitration agreement between Western Star Trucks
and Burroughs, then the cross-claim is barred by that agreement and the cross claim
should be dismissed and all issues should be resolved by arbitration.” Donaldson
raised other affirmative defenses, including “lack of privity” and the lack of a “legal,
contractual, or other relationship” between Donaldson and Burroughs.
In December 2002, the Missouri federal court granted Western Star’s motion
to compel arbitration, relying on the arbitration clause in the Dealer Agreement. See
Western Star Truck Sales, Inc. v. Burroughs Diesel, Inc., No. 4:02-cv-457, slip op.
at 9 (E.D. Mo. Dec. 2, 2002). Burroughs then dismissed its Mississippi cross-claim
against Western Star.
In August 2007, Burroughs moved to schedule trial on its cross-claim against
Donaldson in Mississippi. Soon thereafter, Donaldson alleges, it first learned of the
Missouri arbitration order. In October 2007, Donaldson moved to compel Burroughs
to arbitrate in the Missouri federal court, citing that court’s 2002 arbitration order in
the Western Star-Burroughs case.
In Missouri, Donaldson argued that, although it was not a party to the Dealer
Agreement, arbitration was required because: (1) Burroughs’s claim was premised
on and presumed the existence of the Agreement; and (2) Burroughs previously
alleged that Western Star and Donaldson acted in concert. Burroughs responded by
moving for summary judgment, which was denied. The federal court granted
-3-
Donaldson’s motion to compel arbitration, enjoining Burroughs from proceeding in
Mississippi court.3
II.
This court reviews “de novo a district court’s grant of a motion to compel
arbitration.” 3M Co. v. Amtex Sec., Inc., 542 F.3d 1193, 1198 (8th Cir. 2008). “A
court must grant a motion to compel arbitration if a valid arbitration clause exists
which encompasses the dispute between the parties.” Id. The parties agree that
paragraph 31 of the Agreement is a valid arbitration clause between Western Star and
Burroughs. They dispute whether Donaldson can enforce the arbitration clause
against Burroughs. Donaldson was not a party to the Agreement, and relies on the
doctrine of equitable estoppel in the arbitration context. See, e.g., Dominium Austin
Partners, LLC v. Emerson, 248 F.3d 720, 728 (8th Cir. 2001).
Donaldson contends that since equitable estoppel is the basis, the proper
standard of review of the district court’s grant of arbitration is abuse of discretion,
citing Grigson v. Creative Artists Agency, L.L.C., 210 F.3d 524 (5th Cir. 2000). The
circuits are split. See Sunkist Soft Drinks, Inc. v. Sunkist Growers, Inc., 10 F.3d
753, 756-57 (11th Cir. 1993) (reviewing de novo the district court’s order compelling
arbitration, which invoked equitable estoppel, and labeling the equitable estoppel issue
a “question of law”); Bouriez v. Carnegie Mellon Univ., 359 F.3d 292, 294 (3d Cir.
2004) (“We exercise plenary review over the District Court’s order compelling
arbitration,” where the district court invoked equitable estoppel). But see Grigson,
210 F.3d 524, 528 (“Accordingly, whether to utilize equitable estoppel in this fashion
is within the district court’s discretion; we review to determine only whether it has
been abused.”); Brantley v. Republic Mortg. Ins. Co., 424 F.3d 392, 395 (4th Cir.
3
In February 2008, the plaintiff-buyers settled with Burroughs, Western Star,
and Donaldson, dismissing their claims. The only claim pending in Mississippi is
Burroughs’s cross-claim against Donaldson.
-4-
2005) (“District court decisions determining the scope of arbitration agreements are
generally reviewed de novo . . . . However, in cases such as the present one, the
arbitration order does not rest on a term of the contract, rather upon the application of
equitable estoppel. We review such equitable estoppel decisions for abuse of
discretion.”) (internal citations omitted).
Generally, courts review de novo a district court’s grant of a motion to compel
arbitration. See, e.g., 3M Co., 542 F.3d at 1198. There is no reason to depart from
the de novo standard here. Where a district court grants arbitration, its application of
equitable estoppel presents at least mixed questions of law and fact. In this circuit,
mixed questions of law and fact are reviewed de novo. See, e.g., Sargent v.
Commissioner, 929 F.2d 1252, 1254 (8th Cir. 1991); Cooper Tire & Rubber Co. v.
St. Paul Fire & Marine Ins. Co., 48 F.3d 365, 369 (8th Cir. 1995).
A.
Donaldson, in its petition for rehearing, argues that Mississippi law, not federal
law, should apply based on the choice-of-law provision in the Agreement. “This court
reviews a district court’s choice of law determination de novo.” Am. Home
Assurance Co. v. L & L Marine Serv., Inc., 153 F.3d 616, 618 (8th Cir. 1998).
The Federal Arbitration Act “create[s] a body of federal substantive law of
arbitrability, applicable to any arbitration agreement within the coverage of the Act.”
Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24 (1983). But
“when deciding whether the parties agreed to arbitrate a certain matter . . ., courts
generally . . . should apply ordinary state-law principles that govern the formation of
contracts.” Hudson v. Conagra Poultry Co., 484 F.3d 496, 500 (8th Cir. 2007),
quoting First Options of Chicago Inc. v. Kaplan, 514 U.S. 938, 944 (1995). Thus,
state contract law governs the threshold question of whether an enforceable arbitration
agreement exists between litigants; if an enforceable agreement exists, the federal
-5-
substantive law of arbitrability governs whether the litigants' dispute falls within the
scope of the arbitration agreement. Daisy Mfg. Co., Inc., v. NCR Corp., 29 F.3d 389,
392 (8th Cir. 1994); Fleetwood Enters. Inc. v. Gaskamp, 280 F.3d 1069, 1073 (5th
Cir. 2002).
The Supreme Court has ruled that state contract law governs the ability of
nonsignatories to enforce arbitration provisions. Arthur Andersen LLP v. Carlisle,
556 U.S. ____ (2009). “[A] litigant who was not a party to the relevant arbitration
agreement may invoke §3 [of the Federal Arbitration Act] if the relevant state contract
law allows him to enforce the agreement.” Id. “‘State law’ . . . is applicable to
determine which contracts are binding under §2 and enforceable under §3 ‘if that law
arose to govern issues concerning the validity, revocability, and enforceability of
contracts generally.’” Id., quoting Perry v. Thomas, 482 U.S. 483, 493, n. 9 (1987).
See Moses H. Cone, 460 U.S. at 22 (“The Act provides two parallel devices for
enforcing an arbitration agreement: a stay of litigation in any case raising a dispute
referable to arbitration, 9 U.S.C. §3, and an affirmative order to engage in arbitration,
§4.”). State law principles allowing “a contract to be enforced by or against
nonparties to the contract,” including “assumption, piercing the corporate veil, alter
ego, incorporation by reference, third-party beneficiary theories, waiver and estoppel,”
govern issues concerning the enforceability of contracts generally. Carlisle, 556 U.S.
at ____. Thus, these state law principles control whether a nonparty to an arbitration
agreement can enforce the agreement under sections 3 and 4.
B.
The issue in this case is whether Donaldson, a nonsignatory, can enforce the
arbitration provision in the Agreement. Under Mississippi state law, “equitable
estoppel is an extraordinary remedy and should only be invoked to prevent
unconscionable results.” B.C. Rogers Poultry, Inc. v. Wedgeworth, 911 So. 2d 483,
491 (Miss. 2005), quoting Harrison Enters., Inc. v. Trilogy Commc’ns, Inc., 818 So.
-6-
2d 1088, 1095 (Miss. 2002). Donaldson, relying on B.C. Rogers Poultry, argues that
Mississippi law allows it to use equitable estoppel to compel arbitration against
Burroughs.
In B.C. Rogers Poultry, a contract poultry grower for Rogers sued Rogers and
the Bank of Morton. The grower alleged that Rogers and the Bank “forced and
coerced him to assign collateral and/or borrow money on Rogers’s behalf.” 911 So.
2d at 486. Rogers moved to compel arbitration, relying on the arbitration clause in its
agreement with the grower. The Bank joined Rogers’ motion, although it was not a
party to the agreement. The trial court denied the motion to compel arbitration.
Rogers and the Bank appealed. Before the appellate court ruled, all claims against
Rogers were discharged in bankruptcy. The Bank, a nonsignatory (alone) on appeal,
sought to compel arbitration by invoking equitable estoppel. The Supreme Court of
Mississippi discussed two theories of equitable estoppel from the Fifth Circuit’s
opinion in Grigson: the “relies on” test and the “concerted misconduct” test. B.C.
Rogers Poultry, 911 So. 2d at 491-92, discussing Grigson, 210 F.3d 524. The court
then discussed the traditional principles of estoppel under Mississippi law. 911 So.
2d at 492-93. The court held that the Bank could not compel arbitration with the
grower. Id. at 493.
Despite the Mississippi Supreme Court’s rejection of a nonsignatory’s motion
to compel arbitration in B.C. Rogers Poultry, Donaldson claims that Mississippi law
permits it to enforce an agreement to arbitrate. Donaldson premises its argument on
the position that Mississippi law recognizes each of the theories of equitable estoppel
discussed in B.C. Rogers Poultry. Assuming that Mississippi law recognizes these
theories, Donaldson still may not prevail by using equitable estoppel.
1.
First, Donaldson argues that it can invoke equitable estoppel against Burroughs
because Burroughs’s cross-claims rely on Burroughs’s agreement with Western Star.
Under Grigson, equitable estoppel allows a nonsignatory to compel arbitration “when
-7-
the signatory to a written agreement containing an arbitration clause must rely on the
terms of the written agreement in asserting its claims against the nonsignatory.” 210
F.3d at 527, quoting MS Dealer Serv. Corp. v. Franklin, 177 F.3d 942, 947 (11th Cir.
1999). “When each of a signatory’s claims against a nonsignatory makes reference
to or presumes the existence of the written agreement, the signatory’s claims arise out
of and relate directly to the written agreement, and arbitration is appropriate.”
Grigson, 210 F.3d at 527, quoting MS Dealer, 177 F.3d at 947.
The “relies on” test does not help Donaldson. Burroughs does not rely on its
agreement with Western Star in asserting its claims against Donaldson. Burroughs
cross-claimed against Donaldson and Western Star for: negligence, breach of
fiduciary duty, breach of good faith and fair dealing, fraudulent misrepresentation,
fraudulent concealment, and implied warranty of fitness for a particular purpose.
Burroughs does not allege that the Agreement was breached. Burroughs’s allegations
do not refer to the Agreement or presume it exists. Burroughs’s cross-claim would
have a basis for recovery against Donaldson even if there were no Agreement. Cf. MS
Dealer, 177 F.3d at 947-48 (compelling arbitration because “each of [the plaintiff’s]
fraud and conspiracy claims depends entirely upon her contractual obligation . . . for
the service contract”); Sunkist, 10 F.3d at 758 (“Although [the signatory] does not
rely exclusively on the license agreement to support its claims, each claim presumes
the existence of such an agreement.”).
2.
Second, Donaldson argues that it can invoke equitable estoppel against
Burroughs because Burroughs alleges interdependent and concerted misconduct
between Donaldson and Western Star. Donaldson contends that, under Mississippi
law, the “concerted misconduct” test permits a nonsignatory to compel arbitration
“when the signatory to the contract containing an arbitration clause raises allegations
of substantially interdependent and concerted misconduct by both the nonsignatory
-8-
and one or more of the signatories to the contract.” B.C. Rogers Poultry, 911 So. 2d
at 491, quoting Grigson, 210 F.3d at 527. Additionally, either (1) the allegations of
concerted misconduct must be dependent upon the agreement containing the
arbitration provision, or (2) there must be “a close legal relationship, such as, alter
ego, parent/subsidiary, or agency relationship,” between the nonsignatory and a
signatory to the agreement. B.C. Rogers Poultry, 911 So. 2d at 491-92.4
a.
Donaldson argues that Burroughs’s cross-claim alleges “substantially
interdependent and concerted misconduct” by Donaldson and Western Star. Below,
the district court found that Burroughs “alleged in its cross-claim that Donaldson and
Western Star acted as one.” “[T]he focus of our inquiry should be on the nature of the
underlying claims asserted by [the signatory] against [the nonsignatory] to determine
whether those claims fall within the scope of the arbitration clause.” Sunkist, 10 F.3d
at 757-58; accord MS Dealer, 177 F.3d at 947.
The cases applying the concerted-misconduct test establish that the plaintiff
must specifically allege coordinated behavior between a signatory and a nonsignatory.
In MS Dealer, Franklin, a car buyer, signed a Buyers Order to purchase a car from Jim
Burke Motors, Inc. 177 F.3d at 944-47. The Order incorporated by reference a Retail
Installment Contract, which obligated the buyer to a service contract through MS
Dealer Service Corporation. The Order contained an arbitration clause. When the
buyer had problems with the car, she sued Burke and MS Dealer. According to her
complaint, Burke and MS Dealer “improperly cooperated, conspired, and otherwise
4
In B.C. Rogers Poultry, the Mississippi Supreme Court referred to this test as
the “intertwined-claims test.” 911 So. 2d at 491. In Grigson, the “intertwined-claims
test” covers both the “relies on” test and “concerted misconduct” test taken together.
Grigson, 210 F.3d at 527. This opinion uses “concerted misconduct” to refer to the
concerted misconduct test by itself, and reserves the “intertwined-claims” label to
refer to the two tests taken together.
-9-
colluded” to charge an excessive amount for the service contract. MS Dealer sought
to compel arbitration, which the district court denied because MS Dealer was not a
signatory to the Order. The Eleventh Circuit reversed, concluding “that Franklin’s
claims against Jim Burke and MS Dealer ‘are based on the same facts and are
inherently inseparable.’” Id. at 948. The court emphasized that the buyer “specifically
alleges that MS Dealer worked hand-in-hand with Jim Burke and Chrysler Credit
Corporation in this alleged fraudulent scheme.” Id.
In Denney v. BDO Seidman, the plaintiffs claimed that they were recruited by
two accounting firms to participate in a fraudulent tax scheme, Currency Options
Bring Reward Alternatives (COBRA). 412 F.3d 58, 60-64 (2d Cir. 2005). The
plaintiffs’ “consulting agreements” with the firms contained broad arbitration clauses.
The firms, along with Deutsche Bank, advised and executed an illegal plan where
plaintiffs manufactured losses from partnerships engaged in foreign currency option
transactions. The plaintiffs sued; defendants sought to compel arbitration. The
district court held that the consulting agreements were “mutually fraudulent” and
unenforceable, and denied a motion to compel arbitration. The Second Circuit
reversed and remanded for consideration whether Deutsche Bank, a nonsignatory,
could enforce the arbitration provision. The court noted, “[h]aving alleged . . . that the
Deutsche Bank and BDO defendants acted in concert to defraud plaintiffs . . .
plaintiffs cannot now escape the consequence of those allegations . . . .” Id. at 70. In
particular, the court noted that the complaint alleged that the “Defendants knowingly
acted in concert to market and implement the fraudulent and illegal COBRA tax
shelter transaction.” Id. (emphasis added).
In the present case, Burroughs’s cross-claim stated that “Cross-Defendants
concealed and misrepresented the fact that Western Star Heritage model truck was
designed, manufactured and sold with an allegedly defective intake system.” The
pleading also said that “Cross-Defendants conduct was intentional and/or done with
gross negligence.” Although Burroughs’s cross-claim made common allegations
-10-
against Donaldson and Western Star, it did not make any allegations suggesting that
Donaldson and Western Star “knowingly acted in concert,” “improperly cooperated,”
or “worked hand-in-hand.” The concerted-misconduct test requires allegations of
“pre-arranged, collusive behavior” demonstrating that the claims are “intimately
founded in and intertwined with” the agreement at issue. MS Dealer, 177 F.3d at 948.
Burroughs’s cross-claims do not allege the level of “substantially interdependent and
concerted misconduct” required by the case law.
b.
Under Mississippi law, even if Burroughs alleged “substantially interdependent
and concerted misconduct” between Donaldson and Western Star, Donaldson could
compel arbitration only if either (1) the allegations of concerted misconduct were
dependent upon the agreement containing the arbitration provision, or (2) there were
a close legal relationship, “such as alter ego, parent/subsidiary, or agency relationship”
between Donaldson and Western Star.
In B.C. Rogers Poultry, the court found that neither scenario applied. The court
found the grower’s claims against the Bank were not “dependent upon” the agreement
with Rogers, as the grower did “not rely upon the Broiler Growing Agreement in
asserting his claims.” 911 So. 2d at 491. The court also found that the business
relationship between the Bank and B.C. Rogers Poultry was not sufficiently close for
the Bank to compel arbitration. Id. at 492.
Burroughs’s allegations are not “dependent upon” its agreement with Western
Star. Like the grower in B.C. Rogers Poultry, Burroughs “does not rely upon [the
Agreement] in asserting [its] claims.” Burroughs’s cross-claims do not refer to the
Agreement or presume it exists, and Burroughs would have a basis for recovery
against Donaldson even if there were no Agreement.
-11-
Donaldson does not have a sufficiently close legal relationship with Western
Star. The close-relationship test analyzes whether, “under agency or related
principles, the relationship between the signatory and nonsignatory defendants is
sufficiently close that only by permitting the nonsignatory to invoke arbitration may
evisceration of the underlying arbitration agreement between the signatories be
avoided.” MS Dealer, 177 F.3d at 947. Under B.C. Rogers Poultry, a nonsignatory
needs an “alter ego, parent/subsidiary, or agency relationship,” or another comparable
legal relationship, with a signatory to satisfy the close-relationship test. 911 So. 2d
at 492.
Donaldson contends that the close-relationship test can be satisfied purely by
the claims asserted, without considering the actual relationship between the
defendants, and that Burroughs’s cross-claims satisfy the test because of the identical
allegations against Donaldson and Western Star. Donaldson conflates the close-
relationship test with the analysis of whether a signatory raises allegations of
“substantially interdependent and concerted misconduct.”
Donaldson cites Ingstad v. Grant Thornton, LLP, for the proposition that a
“‘close relationship’ . . . may be found in the structure of the [plaintiff’s] complaint.”
No. 3:05-cv-98, 2006 WL 3751204, at *5 (D.N.D. Dec. 19, 2006). First, Donaldson
acknowledges that no Mississippi court has followed Ingstad. Second, Ingstad
misapplies the Second Circuit’s opinion in Denney. The Denney court found that the
plaintiffs’ complaint satisfied the “allegations of concerted misconduct” requirement,
not the close-relationship test. “Having alleged . . . that the Deutsche Bank and BDO
defendants acted in concert to defraud plaintiffs, and that defendants’ fraud arose in
connection with BDO’s tax-strategy advice, plaintiffs cannot now escape the
consequences of those allegations by arguing that the Deutsche Bank and BDO
defendants lack the requisite close relationship. . . .” Denney, 412 F.3d at 70 (internal
citations omitted) (emphasis added). The Denney court does not say the plaintiffs’
complaint established a close relationship between Deutsche Bank and BDO. Rather,
-12-
it clarifies that the close-relationship test does not matter when there are allegations
of “interdependent or concerted misconduct” and those claims are dependent upon,
or intertwined with, the agreement containing the arbitration provision. The Denney
court remanded for consideration of the relationship between the claims and the
agreement, not the relationship between Deutsche Bank and BDO. Id. at 70
(instructing the district court to consider, “specifically, whether the issues the
Deutsche Bank defendants seek to arbitrate are indeed intertwined with the consulting
agreements”).
The close-relationship test does not look to the claims asserted. Rather, it
analyzes the relationship between the signatory and nonsignatory parties “under
agency or related principles.” MS Dealer, 177 F.3d at 947. Under these principles,
the business relationship between B.C. Rogers Poultry and the Bank was not
sufficiently close. B.C. Rogers Poultry, 911 So. 2d at 492. Likewise, the business
relationship between Donaldson and Western Star is not sufficiently close. Donaldson
has no relationship with Western Star or Burroughs other than supplying parts for the
trucks at issue. Donaldson contends its supply-chain relationship with Western Star
is sufficient. If it were, any supplier could enforce an arbitration provision if the
manufacturer had agreed to arbitration. The supply-chain relationship between
Donaldson and Western Star is not nearly as close as the “alter ego, parent/subsidiary,
or agency relationship” contemplated in B.C. Rogers Poultry.5
5
Donaldson fails to demonstrate a sufficiently close relationship with Western
Star whether the close-relationship test is part of the equitable estoppel analysis, as in
B.C. Rogers Poultry, or is its own distinct ground for allowing a non-signatory to
compel arbitration. See MS Dealer, 177 F.3d at 947 (listing equitable estoppel and
a sufficiently close legal relationship as separate circumstances where nonsignatories
can compel arbitration); Denney, 412 F.3d at 71 (same); Qualcomm Inc. v. Am.
Wireless License Group, LLC, 980 So. 2d 261, 269 (Miss. 2007) (same).
-13-
3.
“Absent allegations of substantially interdependent and concerted misconduct
between a non-signatory and a signatory who have a close legal relationship, the
Mississippi law of equitable estoppel should first be examined to determine if
conditions are present where equity should allow a non-signatory to compel
arbitration.” Id. Under Mississippi law, equitable estoppel requires: (1) belief in and
reliance upon some representation, (2) a change in position on account of that belief
and reliance, and (3) detriment resulting from the reliance. Id.
Donaldson does not assert that it believed or relied on any representation about
arbitration, or changed its position to its detriment in reliance on a representation. It
does not appear that Donaldson even knew about the arbitration agreement between
Burroughs and Western Star until this litigation began. Donaldson may not invoke
equitable estoppel in this case.
III.
The order compelling arbitration is reversed, and the case remanded for further
proceedings consistent with this opinion.
______________________________
-14-
| {
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} |
37 F.3d 1490
U.S.v.Morris (Jay Edward)
NO. 93-7776
United States Court of Appeals,Third Circuit.
Aug 16, 1994
1
Appeal From: D.Del.
2
AFFIRMED.
| {
"pile_set_name": "FreeLaw"
} |
(Slip Opinion)
House Committees’ Authority to
Investigate for Impeachment
The House of Representatives must expressly authorize a committee to conduct an
impeachment investigation and to use compulsory process in that investigation before
the committee may compel the production of documents or testimony in support of the
House’s power of impeachment.
The House had not authorized an impeachment investigation in connection with
impeachment-related subpoenas issued by House committees before October 31, 2019,
and the subpoenas therefore had no compulsory effect.
The House’s adoption of Resolution 660 on October 31, 2019, did not alter the legal
status of those subpoenas, because the resolution did not ratify or otherwise address
their terms.
January 19, 2020
MEMORANDUM OPINION FOR THE COUNSEL TO THE PRESIDENT
On September 24, 2019, Speaker of the House Nancy Pelosi “an-
nounc[ed]” at a press conference that “the House of Representatives is
moving forward with an official impeachment inquiry” into the Presi-
dent’s actions and that she was “directing . . . six Committees to proceed
with” several previously pending “investigations under that umbrella of
impeachment inquiry.” 1 Shortly thereafter, the House Committee on
Foreign Affairs issued a subpoena directing the Secretary of State to
produce a series of documents related to the recent conduct of diplomacy
between the United States and Ukraine. See Subpoena of the Committee
on Foreign Affairs (Sept. 27, 2019). In an accompanying letter, three
committee chairmen stated that their committees jointly sought these
documents, not in connection with legislative oversight, but “[p]ursuant to
the House of Representatives’ impeachment inquiry.” 2 In the following
days, the committees issued subpoenas to the Acting White House Chief
1 Nancy Pelosi, Speaker of the House, Press Release: Pelosi Remarks Announcing
Impeachment Inquiry (Sept. 24, 2019), www.speaker.gov/newsroom/92419-0 (“Pelosi
Press Release”).
2 Letter for Michael R. Pompeo, Secretary of State, from Eliot L. Engel, Chairman,
Committee on Foreign Affairs, U.S. House of Representatives, Adam Schiff, Chairman,
Permanent Select Committee on Intelligence, U.S. House of Representatives, and Elijah
E. Cummings, Chairman, Committee on Oversight & Reform, U.S. House of Representa-
tives at 1 (Sept. 27, 2019) (“Three Chairmen’s Letter”).
1
Opinions of the Office of Legal Counsel in Volume 44
of Staff, the Secretary of Defense, the Secretary of Energy, and several
others within the Executive Branch.
Upon the issuance of these subpoenas, you asked whether these com-
mittees could compel the production of documents and testimony in
furtherance of an asserted impeachment inquiry. We advised that the
committees lacked such authority because, at the time the subpoenas were
issued, the House had not adopted any resolution authorizing the commit-
tees to conduct an impeachment inquiry. The Constitution vests the “sole
Power of Impeachment” in the House of Representatives. U.S. Const.
art. I, § 2, cl. 5. For precisely that reason, the House itself must authorize
an impeachment inquiry, as it has done in virtually every prior impeach-
ment investigation in our Nation’s history, including every one involving
a President. A congressional committee’s “right to exact testimony and to
call for the production of documents” is limited by the “controlling char-
ter” the committee has received from the House. United States v. Rumely,
345 U.S. 41, 44 (1953). Yet the House, by its rules, has authorized its
committees to issue subpoenas only for matters within their legislative
jurisdiction. Accordingly, no committee may undertake the momentous
move from legislative oversight to impeachment without a delegation by
the full House of such authority.
We are not the first to reach this conclusion. This was the position of
the House in the impeachments of Presidents Nixon and Clinton. In the
case of President Nixon, following a preliminary inquiry, the House
adopted a formal resolution as a “necessary step” to confer the “investiga-
tive powers” of the House “to their full extent” upon the Judiciary Com-
mittee. 120 Cong. Rec. 2350–51 (1974) (statement of Rep. Rodino); see
H.R. Res. 803, 93d Cong. (1974). As the House Parliamentarian ex-
plained, it had been “considered necessary for the House to specifically
vest the Committee on the Judiciary with the investigatory and subpena
power to conduct the impeachment investigation.” 3 Lewis Deschler,
Deschler’s Precedents of the United States House of Representatives ch.
14, § 15.2, at 2172 (1994) (Parliamentarian’s Note). 3 The House followed
the same course in the impeachment of President Clinton. After reviewing
the Independent Counsel’s referral, the Judiciary Committee “decided that
it must receive authorization from the full House before proceeding on
3 Although volume 3 of Deschler’s Precedents was published in 1979, our citations of
Deschler’s Precedents use the continuously paginated version that is available at www.
govinfo.gov/collection/precedents-of-the-house.
2
House Committees’ Authority to Investigate for Impeachment
any further course of action.” H.R. Rep. No. 105-795, at 24 (1998). The
House again adopted a resolution authorizing the committee to issue
compulsory process in support of an impeachment investigation. See H.R.
Res. 581, 105th Cong. (1998). As Representative John Conyers summa-
rized in 2016: “According to parliamentarians of the House past and
present, the impeachment process does not begin until the House actually
votes to authorize [a] Committee to investigate the charges.” 4
In marked contrast with these historical precedents, in the weeks after
the Speaker’s announcement, House committees issued subpoenas without
any House vote authorizing them to exercise the House’s authority under
the Impeachment Clause. The three committees justified the subpoenas
based upon the Rules of the House, which authorize subpoenas for matters
within a committee’s jurisdiction. But the Rules assign only “legislative
jurisdiction[]” and “oversight responsibilities” to the committees. H.R.
Rules, 116th Cong., Rule X, cl. 1 (Jan. 11, 2019) (“Committees and their
legislative jurisdictions”), cl. 2 (“General oversight responsibilities”); see
also H.R. Rule X, cls. 3(m), 11. The House’s legislative power is distinct
from its impeachment power. Compare U.S. Const. art. I, § 1, with id. art.
I, § 2, cl. 5. Although committees had that same delegation during the
Clinton impeachment and a materially similar one during the Nixon
impeachment, the House determined on both occasions that the Judiciary
Committee required a resolution to investigate. Speaker Pelosi purported
to direct the committees to conduct an “official impeachment inquiry,”
but the House Rules do not give the Speaker any authority to delegate
investigative power. The committees thus had no delegation authorizing
them to issue subpoenas pursuant to the House’s impeachment power.
In the face of objections to the validity of the committee subpoenas that
were expressed by the Administration, by ranking minority members in
the House, and by many Senators, among others, on October 31, 2019, the
House adopted Resolution 660, which “directed” six committees “to
continue their ongoing investigations” as part of the “existing House of
Representatives inquiry into whether sufficient grounds exist” to impeach
President Trump. H.R. Res. 660, 116th Cong. § 1 (2019). Resolution
660’s direction, however, was entirely prospective. The resolution did not
purport to ratify any previously issued subpoenas or even make any men-
4 Impeachment Articles Referred on John Koskinen (Part III): Hearing Before the H.
Comm. on the Judiciary, 114th Cong. 3 (2016).
3
Opinions of the Office of Legal Counsel in Volume 44
tion of them. Accordingly, the pre-October 31 subpoenas, which had not
been authorized by the House, continued to lack compulsory force. 5
I.
Since the start of the 116th Congress, some members of Congress have
proposed that the House investigate and impeach President Trump. On
January 3, 2019, the first day of the new Congress, Representative Brad
Sherman introduced a resolution to impeach “Donald John Trump, Presi-
dent of the United States, for high crimes and misdemeanors.” H.R. Res.
13, 116th Cong. (2019). The Sherman resolution called for impeachment
based upon the President’s firing of the Director of the Federal Bureau of
Investigation, James Comey. See id. Consistent with settled practice, the
resolution was referred to the Judiciary Committee. See H.R. Doc. No.
115-177, Jefferson’s Manual § 605, at 324 (2019).
The Judiciary Committee did not act on the Sherman resolution, but it
soon began an oversight investigation into related subjects that were also
the focus of a Department of Justice investigation by Special Counsel
Robert S. Mueller, III. On March 4, 2019, the committee served document
requests on the White House and 80 other agencies, entities, and individu-
als, “unveil[ing] an investigation . . . into the alleged obstruction of jus-
tice, public corruption, and other abuses of power by President Trump, his
associates, and members of his Administration.” 6 Those document re-
quests did not mention impeachment.
After the Special Counsel finished his investigation, the Judiciary
Committee demanded his investigative files, describing its request as an
5 This opinion memorializes the advice we gave about subpoenas issued before Octo-
ber 31. We separately addressed some subpoenas issued after that date. See, e.g., Letter
for Pat A. Cipollone, Counsel to the President, from Steven A. Engel, Assistant Attorney
General, Office of Legal Counsel (Nov. 7, 2019) (subpoena to Mick Mulvaney); Letter for
Pat A. Cipollone, Counsel to the President, from Steven A. Engel, Assistant Attorney
General, Office of Legal Counsel (Nov. 3, 2019) (subpoena to John Eisenberg); Exclusion
of Agency Counsel from Congressional Depositions in the Impeachment Context, 43 Op.
O.L.C. __ (Nov. 1, 2019).
6 U.S. House of Representatives Committee on the Judiciary, Press Release: House
Judiciary Committee Unveils Investigation into Threats Against the Rule of Law (Mar. 4,
2019), judiciary.house.gov/news/press-releases/house-judiciary-committee-unveils-
investigation-threats-against-rule-law; see also Letter for the White House, c/o Pat
Cipollone, from Jerrold Nadler, Chairman, Committee on the Judiciary, U.S. House of
Representatives (Mar. 4, 2019).
4
House Committees’ Authority to Investigate for Impeachment
exercise of legislative oversight authority. See Letter for William P. Barr,
Attorney General, from Jerrold Nadler, Chairman, Committee on the
Judiciary, U.S. House of Representatives at 3 (May 3, 2019) (asserting
that “[t]he Committee has ample jurisdiction under House Rule X(l ) to
conduct oversight of the Department [of Justice], undertake necessary
investigations, and consider legislation regarding the federal obstruction
of justice statutes, campaign-related crimes, and special counsel investiga-
tions, among other things”). The committee’s subsequent letters and
public statements likewise described its inquiry as serving a “legislative
purpose.” E.g., Letter for Pat Cipollone, White House Counsel, from
Jerrold Nadler, Chairman, Committee on the Judiciary, U.S. House of
Representatives at 3–6 (May 16, 2019) (describing the “legislative pur-
pose of the Committee’s investigation” (capitalization altered)).
Over time, the Judiciary Committee expanded the description of its in-
vestigation to claim that it was considering impeachment. The committee
first mentioned impeachment in a May 8, 2019 report recommending that
the Attorney General be held in contempt of Congress. In a section enti-
tled “Authority and Legislative Purpose,” the committee stated that one
purpose of the inquiry was to determine “whether to approve articles of
impeachment with respect to the President or any other Administration
official.” H.R. Rep. No. 116-105, at 12, 13 (2019). 7
The committee formally claimed to be investigating impeachment when
it petitioned the U.S. District Court for the District of Columbia to release
grand-jury information related to the Special Counsel’s investigation. See
Application at 1–2, In re Application of the Comm. on the Judiciary, U.S.
7 On June 11, 2019, the full House adopted Resolution 430. Its first two clauses author-
ized the Judiciary Committee to file a lawsuit to enforce subpoenas against Attorney
General William Barr and former White House Counsel Donald McGahn and purported to
authorize the Bipartisan Legal Advisory Group to approve future litigation. See H.R. Res.
430, 116th Cong. (2019). The next clause of the resolution then stated that, “in connection
with any judicial proceeding brought under the first or second resolving clauses, the chair
of any standing or permanent select committee exercising authority thereunder has any
and all necessary authority under Article I of the Constitution.” Id. The resolution did not
mention “impeachment” and, by its terms, authorized actions only in connection with the
litigation authorized “under the first or second resolving clauses.” On the same day that
the House adopted Resolution 430, Speaker Pelosi stated that the House’s Democratic
caucus was “not even close” to an impeachment inquiry. Rep. Nancy Pelosi (D-CA)
Continues Resisting Impeachment Inquiry, CNN (June 11, 2019), transcripts.cnn.com/
TRANSCRIPTS/1906/11/cnr.04.html.
5
Opinions of the Office of Legal Counsel in Volume 44
House of Reps., No. 19-gj-48 (D.D.C. July 26, 2019); see also Memoran-
dum for Members of the Committee on the Judiciary from Jerrold Nadler,
Chairman, Re: Lessons from the Mueller Report, Part III: “Constitutional
Processes for Addressing Presidential Misconduct” at 3 (July 11, 2019)
(advising that the Committee would seek documents and testimony “to
determine whether the Committee should recommend articles of im-
peachment against the President or any other Article I remedies, and if so,
in what form”). 8 The committee advanced the same contention when
asking the district court to compel testimony before the committee by
former White House Counsel Donald McGahn. See Compl. for Declarato-
ry and Injunctive Relief ¶ 1, Comm. on the Judiciary, U.S. House of Reps.
v. McGahn, No. 19-cv-2379 (D.D.C. Aug. 7, 2019) (contending that the
Judiciary Committee was “now determining whether to recommend
articles of impeachment against the President based on the obstructive
conduct described by the Special Counsel”).
In connection with this litigation, Chairman Nadler described the com-
mittee as conducting “formal impeachment proceedings.” David Priess &
Margaret Taylor, What if the House Held Impeachment Proceedings and
Nobody Noticed?, Lawfare (Aug. 12, 2019), www.lawfareblog.com/what-
if-house-held-impeachment-proceedings-and-nobody-noticed (chronicling
the evolution in Chairman Nadler’s descriptions of the investigation).
Those assertions coincided with media reports that Chairman Nadler had
privately asked Speaker Pelosi to support the opening of an impeachment
inquiry. See, e.g., Andrew Desiderio, Nadler: ‘This is Formal Impeach-
ment Proceedings,’ Politico (Aug. 8, 2019), www.politico.com/story/
2019/08/08/nadler-this-is-formal-impeachment-proceedings-1454360
(noting that Nadler “has privately pushed Speaker Nancy Pelosi to support
a formal inquiry of whether to remove the president from office”). On
September 12, the Judiciary Committee approved a resolution describing
its investigation as an impeachment inquiry and adopting certain proce-
dures for the investigation. See Resolution for Investigative Procedures
Offered by Chairman Jerrold Nadler, H. Comm. on the Judiciary, 116th
8 While the House has delegated to the Bipartisan Legal Advisory Group the ability to
“articulate[] the institutional position of ” the House, it has done so only for purposes of
“litigation matters.” H.R. Rule II, cl. 8(b). Therefore, neither the group, nor the House
counsel implementing that group’s directions, could assert the House’s authority in
connection with an impeachment investigation, which is not a litigation matter.
6
House Committees’ Authority to Investigate for Impeachment
Cong. (Sept. 12, 2019), docs.house.gov/meetings/JU/JU00/20190912/
109921/BILLS-116pih-ResolutionforInvestigativeProcedures.pdf.
Speaker Pelosi did not endorse the Judiciary Committee’s characteriza-
tion of its investigation during the summer of 2019. But she later purport-
ed to announce a formal impeachment inquiry in connection with a sepa-
rate matter arising out of a complaint filed with the Inspector General of
the Intelligence Community. The complaint, cast in the form of an un-
signed letter to the congressional intelligence committees, alleged that, in
a July 25, 2019 telephone call, the President sought to pressure Ukrainian
President Volodymyr Zelenskyy to investigate the prior activities of one
of the President’s potential political rivals. See Letter for Richard Burr,
Chairman, Select Committee on Intelligence, U.S. Senate, and Adam
Schiff, Chairman, Permanent Select Committee on Intelligence, U.S.
House of Representatives at 2–3 (Aug. 12, 2019). After the Inspector
General reported the existence of the complaint to the intelligence com-
mittees, the President declassified the official record of the July 25 tele-
phone call and the complaint, and they were publicly released on Septem-
ber 25 and 26, respectively.
On September 24, the day before the release of the call record, Speaker
Pelosi “announc[ed]” that “the House of Representatives is moving for-
ward with an official impeachment inquiry” and that she was “direct[ing]
. . . six [c]ommittees to proceed with their investigations under that um-
brella of impeachment inquiry.” Pelosi Press Release, supra note 1. In an
October 8, 2019 court hearing, the House’s General Counsel invoked the
Speaker’s announcement as purportedly conclusive proof that the House
had opened an impeachment inquiry. Tr. of Mot. Hrg. at 23, In re Appli-
cation of the Comm. on the Judiciary (“We are in an impeachment in-
quiry, an impeachment investigation, a formal impeachment investigation
because the House says it is. The speaker of the House has specifically
said that it is.”).
On September 27, Chairman Engel of the Foreign Affairs Committee
issued a subpoena to Secretary of State Pompeo “[p]ursuant to the House
of Representatives’ impeachment inquiry.” Three Chairmen’s Letter,
supra note 2, at 1. That subpoena was the first to rely on the newly pro-
claimed “impeachment inquiry.” A number of subpoenas followed, each
of which was accompanied by a letter signed by the chairmen of three
committees (Foreign Affairs, Oversight and Reform, and the Permanent
Select Committee on Intelligence (“HPSCI”)). Although the September 27
letter mentioned only the “impeachment inquiry” as a basis for the ac-
7
Opinions of the Office of Legal Counsel in Volume 44
companying subpoena, subsequent letters claimed that other subpoenas
were issued both “[p]ursuant to the House of Representatives’ impeach-
ment inquiry” and “in exercise of ” the committees’ “oversight and legis-
lative jurisdiction.” 9
Following service of these subpoenas, you and other officials within the
Executive Branch requested our advice with respect to the obligations of
the subpoenas’ recipients. We advised that the subpoenas were invalid
because, among other reasons, the committees lacked the authority to
conduct the purported inquiry and, with respect to several testimonial
subpoenas, the committees impermissibly sought to exclude agency
counsel from scheduled depositions. In reliance upon that advice, you and
other responsible officials directed employees within their respective
departments and agencies not to provide the documents and testimony
requested under those subpoenas.
On October 8, 2019, you sent a letter to Speaker Pelosi and the three
chairmen advising them that their purported impeachment inquiry was
“constitutionally invalid” because the House had not authorized it. 10 The
House Minority Leader, Kevin McCarthy, and the Ranking Member of the
Judiciary Committee, Doug Collins, had already made the same objec-
9 E.g., Letter for John Michael Mulvaney, Acting Chief of Staff to the President, from
Elijah E. Cummings, Chairman, Committee on Oversight & Reform, U.S. House of
Representatives, Adam B. Schiff, Chairman, Permanent Select Committee on Intelligence,
U.S. House of Representatives, and Eliot L. Engel, Chairman, Committee on Foreign
Affairs, U.S. House of Representatives at 1 (Oct. 4, 2019); Letter for Mark T. Esper,
Secretary of Defense, from Adam B. Schiff, Chairman, Permanent Select Committee on
Intelligence, U.S. House of Representatives, Eliot L. Engel, Chairman, Committee on
Foreign Affairs, U.S. House of Representatives, and Elijah E. Cummings, Chairman,
Committee on Oversight & Reform, U.S. House of Representatives at 1 (Oct. 7, 2019);
Letter for Gordon Sondland, U.S. Ambassador to the European Union, from Adam B.
Schiff, Chairman, Permanent Select Committee on Intelligence, U.S. House of Represent-
atives, Elijah E. Cummings, Chairman, Committee on Oversight & Reform, U.S. House
of Representatives, and Eliot L. Engel, Chairman, Committee on Foreign Affairs, U.S.
House of Representatives at 1 (Oct. 8, 2019); Letter for James Richard “Rick” Perry,
Secretary of Energy, from Eliot L. Engel, Chairman, Committee on Foreign Affairs, U.S.
House of Representatives, Adam B. Schiff, Chairman, Permanent Select Committee on
Intelligence, U.S. House of Representatives, and Elijah E. Cummings, Chairman, Com-
mittee on Oversight & Reform, U.S. House of Representatives at 1 (Oct. 10, 2019).
10 Letter for Nancy Pelosi, Speaker, U.S. House of Representatives, et al., from Pat A.
Cipollone, Counsel to the President at 2–3 (Oct. 8, 2019).
8
House Committees’ Authority to Investigate for Impeachment
tion. 11 Senator Lindsey Graham introduced a resolution in the Senate, co-
sponsored by 49 other Senators, which objected to the House’s impeach-
ment process because it had not been authorized by the full House and did
not provide the President with the procedural protections enjoyed in past
impeachment inquiries. S. Res. 378, 116th Cong. (2019).
On October 25, 2019, the U.S. District Court for the District of Colum-
bia granted the Judiciary Committee’s request for grand-jury information
from the Special Counsel’s investigation, holding that the committee
was conducting an impeachment inquiry that was “preliminar[y] to . . . a
judicial proceeding,” for purposes of the exception to grand-jury secrecy
in Rule 6(e)(3)(E)(i) of the Federal Rules of Criminal Procedure. See In re
Application of the Comm. on the Judiciary, U.S. House of Reps., No. 19-
gj-48, 2019 WL 5485221 (D.D.C. Oct. 25, 2019), stay granted, No. 19-
5288 (D.C. Cir. Oct. 29, 2019), argued (D.C. Cir. Jan. 3, 2020). In so
holding, the court concluded that the House need not adopt a resolution
before a committee may begin an impeachment inquiry. Id. at *26–28. As
we discuss below, the district court’s analysis of this point relied on a
misreading of the historical record.
Faced with continuing objections from the Administration and mem-
bers of Congress to the validity of the impeachment-related subpoenas,
the House decided to take a formal vote to authorize the impeachment
inquiry. See Letter for Democratic Members of the House from Nancy
Pelosi, Speaker of the House (Oct. 28, 2019). On October 31, the House
adopted a resolution “direct[ing]” several committees “to continue their
ongoing investigations as part of the existing House of Representatives
inquiry into whether sufficient grounds exist for the House of Representa-
tives to exercise its Constitutional power to impeach Donald John Trump,
President of the United States of America.” Resolution 660, § 1. The
resolution also adopted special procedures for impeachment proceedings
before HPSCI and the Judiciary Committee.
11 See Letter for Nancy Pelosi, Speaker, U.S. House of Representatives, from Kevin
McCarthy, Republican Leader, U.S. House of Representatives at 1 & n.1 (Oct. 3, 2019);
Mem. Amicus Curiae of Ranking Member Doug Collins in Support of Denial at 5–21, In
re Application of the Comm. on the Judiciary (D.D.C. Oct. 3, 2019).
9
Opinions of the Office of Legal Counsel in Volume 44
II.
The Constitution vests in the House of Representatives a share of Con-
gress’s legislative power and, separately, “the sole Power of Impeach-
ment.” U.S. Const. art. I, § 1; id. art. I, § 2, cl. 5. Both the legislative
power and the impeachment power include an implied authority to inves-
tigate, including by means of compulsory process. But those investigative
powers are not interchangeable. The House has broadly delegated to
committees its power to investigate for legislative purposes, but it has
held impeachment authority more closely, granting authority to conduct
particular impeachment investigations only as the need has arisen. The
House has followed that approach from the very first impeachment in-
quiry through dozens more that have followed over the past 200 years,
including every inquiry involving a President.
In so doing, the House has recognized the fundamental difference be-
tween a legislative oversight investigation and an impeachment investiga-
tion. The House does more than simply pick a label when it “debate[s]
and decide[s] when it wishes to shift from legislating to impeaching” and
to authorize a committee to take responsibility for “the grave and weighty
process of impeachment.” Trump v. Mazars USA, LLP, 940 F.3d 710, 737,
738 (D.C. Cir. 2019), cert. granted, No. 19-715 (Dec. 13, 2019); see also
id. at 757 (Rao, J., dissenting) (recognizing that “the Constitution forces
the House to take accountability for its actions when investigating the
President’s misconduct”). Because a legislative investigation seeks “in-
formation respecting the conditions which the legislation is intended to
affect or change,” McGrain v. Daugherty, 273 U.S. 135, 175 (1927),
“legislative judgments normally depend more on the predicted conse-
quences of proposed legislative actions and their political acceptability,
than on precise reconstruction of past events,” Senate Select Comm. on
Presidential Campaign Activities v. Nixon, 498 F.2d 725, 732 (D.C. Cir.
1974) (en banc). By contrast, an impeachment inquiry must evaluate
whether a civil officer did, or did not, commit treason, bribery, or another
high crime or misdemeanor, U.S. Const. art. II, § 4, and it is more likely
than a legislative oversight investigation to call for the reconstruction of
past events.
Thus, the House has traditionally marked the shift to an impeachment
inquiry by adopting a resolution that authorizes a committee to investigate
through court-like procedures differing significantly from those used in
routine oversight. See, e.g., Jefferson’s Manual § 606, at 324 (recognizing
10
House Committees’ Authority to Investigate for Impeachment
that, in modern practice, “the sentiment of committees has been in favor
of permitting the accused to explain, present witnesses, cross-examine,
and be represented by counsel” (citations omitted)); see also Cong. Re-
search Serv., R45983, Congressional Access to Information in an Im-
peachment Investigation 15 (Oct. 25, 2019) (“[D]uring both the Nixon
and Clinton impeachment investigations, the House Judiciary Committee
adopted resolutions affording the President and his counsel the right to
respond to evidence gathered by the committee, raise objections to testi-
mony, and cross-examine witnesses[.]”).12 A House resolution authorizing
the opening of an impeachment inquiry plays a highly significant role in
directing the scope and nature of the constitutional inquest that follows.
Such a resolution does not just reflect traditional practice. It is a consti-
tutionally required step before a committee may exercise compulsory
process in aid of the House’s “sole Power of Impeachment.” U.S. Const.
art. I, § 2, cl. 5. In this Part, we explain the basis for this conclusion. First,
we address the constitutional distinction between the House’s power to
investigate for legislative purposes and for impeachment purposes. We
next explain why an impeachment inquiry must be authorized by the
House itself. Finally, we review the historical record, which confirms,
across dozens of examples, that the House must specifically authorize
12 The House Judiciary Committee permitted President Nixon’s counsel to submit and
respond to evidence, to request to call witnesses, to attend hearings and examinations, to
object to the examination of witnesses and the admissibility of testimony, and to question
witnesses. See H.R. Rep. No. 93-1305, at 8–9 (1974); 3 Deschler’s Precedents ch. 14,
§ 6.5, at 2045–47. Later, President Clinton and his counsel were similarly “invited to
attend all executive session and open committee hearings,” at which they were permitted
to “cross examine witnesses,” “make objections regarding the pertinency of evidence,”
“suggest that the Committee receive additional evidence,” and “respond to the evidence
adduced by the Committee.” H.R. Rep. No. 105-795, at 25–26; see also 18 Deschler’s
Precedents app. at 549 (2013) (noting that, during the Clinton impeachment investigation,
the House made a “deliberate attempt to mirror [the] documented precedents and proceed-
ings” of the Nixon investigation). In a departure from the Nixon and Clinton precedents,
the House committees did not provide President Trump with any right to attend, partici-
pate in, or cross-examine witnesses in connection with the impeachment-related deposi-
tions conducted by the three committees before October 31. Resolution 660 similarly did
not provide any such rights with respect to any of the public hearings conducted by
HPSCI, limiting the President’s opportunity to participate to the Judiciary Committee,
which did not itself participate in developing the investigative record upon which the
articles of impeachment were premised. See H.R. Res. 660, 116th Cong. § 4(a); 165 Cong.
Rec. E1357 (daily ed. Oct. 29, 2019) (“Impeachment Inquiry Procedures in the Commit-
tee on the Judiciary”).
11
Opinions of the Office of Legal Counsel in Volume 44
committees to conduct impeachment investigations and to issue compul-
sory process.
A.
The Constitution vests several different powers in the House of Repre-
sentatives. As one half of Congress, the House shares with the Senate
the “legislative Powers” granted in the Constitution (U.S. Const. art. I,
§ 1), which include the ability to pass bills (id. art. I, § 7, cl. 2) and to
override presidential vetoes (id. art. I, § 7, cl. 3) in the process of enacting
laws pursuant to Congress’s enumerated legislative powers (e.g., id. art. I,
§ 8), including the power to appropriate federal funds (id. art. I, § 9, cl. 7).
But the House has other, non-legislative powers. It is, for instance, “the
Judge of the Elections, Returns and Qualifications of its own Members.”
Id. art. I, § 5, cl. 1. And it has “the sole Power of Impeachment.” Id. art. I,
§ 2, cl. 5.
The House and Senate do not act in a legislative role in connection with
impeachment. The Constitution vests the House with the authority to
accuse civil officers of “Treason, Bribery, or other high Crimes and
Misdemeanors” that warrant removal and disqualification from office.
U.S. Const. art. I, § 2, cl. 5; id. art. I, § 3, cl. 7; id. art. II, § 4. As Alexan-
der Hamilton explained, the members of the House act as “the inquisitors
for the nation.” The Federalist No. 65, at 440 (Jacob E. Cooke ed., 1961).
And Senators, in turn, act “in their judicial character as a court for the
trial of impeachments.” Id. at 439; see also The Federalist No. 66, at 445–
46 (defending the “partial intermixture” in the impeachment context of
usually separated powers as “not only proper, but necessary to the mutual
defense of the several members of the government, against each other”;
noting that dividing “the right of accusing” from “the right of judging”
between “the two branches of the legislature . . . avoids the inconvenience
of making the same persons both accusers and judges”). The House’s
impeachment authority differs fundamentally in character from its legisla-
tive power.
With respect to both its legislative and its impeachment powers, the
House has corresponding powers of investigation, which enable it to
collect the information necessary for the exercise of those powers. The
Supreme Court has explained that “[t]he power of inquiry—with process
to enforce it—is an essential and appropriate auxiliary to the legislative
function.” McGrain, 273 U.S. at 174. Thus, in the legislative context,
12
House Committees’ Authority to Investigate for Impeachment
the House’s investigative power “encompasses inquiries concerning the
administration of existing laws as well as proposed or possibly needed
statutes.” Watkins v. United States, 354 U.S. 178, 187 (1957); see also
Scope of Congressional Oversight and Investigative Power with Respect
to the Executive Branch, 9 Op. O.L.C. 60, 60 (1985) (“Congress may
conduct investigations in order to obtain facts pertinent to possible legis-
lation and in order to evaluate the effectiveness of current laws.”). The
Court has further recognized that the House also has implied powers to
investigate in support of its other powers, including its power of im-
peachment. See, e.g., Kilbourn v. Thompson, 103 U.S. 168, 190 (1880);
see also In re Request for Access to Grand Jury Materials, 833 F.2d 1438,
1445 (11th Cir. 1987) (the House “holds investigative powers that are
ancillary to its impeachment power”); Mazars USA, 940 F.3d at 749 (Rao,
J., dissenting) (“The House . . . has a separate power to investigate pursu-
ant to impeachment[.]”).
Because the House has different investigative powers, establishing
which authority has been delegated has often been necessary in the course
of determining the scope of a committee’s authority to compel witnesses
and testimony. In addressing the scope of the House’s investigative pow-
ers, all three branches of the federal government have recognized the
constitutional distinction between a legislative investigation and an im-
peachment inquiry.
1.
We begin with the federal courts. In Kilbourn, the Supreme Court held
that a House committee could not investigate a bankrupt company indebt-
ed to the United States because its request exceeded the scope of the
legislative power. According to the Court, the committee had employed
investigative power to promote the United States’ interests as a creditor,
rather than for any valid legislative purpose. See 103 U.S. at 192–95. At
the same time, the Court conceded that “the whole aspect of the case
would have been changed” if “any purpose had been avowed to impeach
the [S]ecretary” of the Navy for mishandling the debts of the United
States. Id. at 193. But, after reviewing the resolution authorizing the
actions of the committee, the Court confirmed that the House had not
authorized any impeachment inquiry. Id.
In a similar vein, the D.C. Circuit distinguished the needs of the House
Judiciary Committee, which was conducting an impeachment inquiry into
13
Opinions of the Office of Legal Counsel in Volume 44
the actions of President Nixon, from those of the Senate Select Committee
on Presidential Campaign Activities, whose investigation was premised
upon legislative oversight. See Senate Select Comm., 498 F.2d at 732. The
court recognized that the impeachment investigation was rooted in “an
express constitutional source” and that the House committee’s investiga-
tive needs differed in kind from the Senate committee’s oversight needs.
Id. In finding that the Senate committee had not demonstrated that Presi-
dent Nixon’s audiotapes were “critical to the performance of its legisla-
tive functions,” the court recognized “a clear difference between Con-
gress’s legislative tasks and the responsibility of a grand jury, or any
institution engaged in like functions,” such as the House Judiciary Com-
mittee, which had “begun an inquiry into presidential impeachment.” Id.
(emphases added).
More recently, the D.C. Circuit acknowledged this same distinction in
Mazars USA. As the majority opinion explained, “the Constitution has left
to Congress the judgment whether to commence the impeachment pro-
cess” and to decide whether the conduct in question is “better addressed
through oversight and legislation than impeachment.” 940 F.3d at 739.
Judge Rao’s dissent also recognized the distinction between a legislative
oversight investigation and an impeachment inquiry. See id. at 757 (“The
Framers established a mechanism for Congress to hold even the highest
officials accountable, but also required the House to take responsibility
for invoking this power.”). Judge Rao disagreed with the majority insofar
as she understood Congress’s impeachment power to be the sole means
for investigating past misconduct by impeachable officers. But both the
majority and the dissent agreed with the fundamental proposition that the
Constitution distinguishes between investigations pursuant to the House’s
impeachment authority and those that serve its legislative authority (in-
cluding oversight).
2.
The Executive Branch similarly has long distinguished between inves-
tigations for legislative and for impeachment purposes. In 1796, the
House “[r]esolved” that President Washington “be requested to lay before
th[e] House a copy of the instructions” given to John Jay in preparation
for his negotiation of a peace settlement with Great Britain. 5 Annals of
Cong. 759–62 (1796). Washington refused to comply because the Consti-
tution contemplates that only the Senate, not the House, must consent to
14
House Committees’ Authority to Investigate for Impeachment
a treaty. See id. at 760–61. “It d[id] not occur” to Washington “that the
inspection of the papers asked for, c[ould] be relative to any purpose
under the cognizance of the House of Representatives, except that of an
impeachment.” Id. at 760 (emphasis added). Because the House’s “resolu-
tion ha[d] not expressed” any purpose of pursuing impeachment, Wash-
ington concluded that “a just regard to the constitution . . . forb[ade] a
compliance with [the House’s] request” for documents. Id. at 760, 762.
In 1832, President Jackson drew the same line. A select committee of
the House had requested that the Secretary of War “furnish[]” it “with
a copy” of an unratified 1830 treaty with the Chickasaw Tribe and “the
journal of the commissioners” who negotiated it. H.R. Rep. No. 22-488,
at 1 (1832). The Secretary conferred with Jackson, who refused to comply
with the committee’s request on the same ground cited by President
Washington: he “d[id] not perceive that a copy of any part of the incom-
plete and unratified treaty of 1830, c[ould] be ‘relative to any purpose
under the cognizance of the House of Representatives, except that of an
impeachment, which the resolution has not expressed.’” Id. at 14 (reprint-
ing Letter for Charles A. Wickliffe, Chairman, Committee on Public
Lands, U.S. House of Representatives, from Lewis Cass, Secretary of War
(Mar. 2, 1832)).
In 1846, another House select committee requested that President Polk
account for diplomatic expenditures made in previous administrations by
Secretary of State Daniel Webster. Polk refused to disclose information
but “cheerfully admitted” that the House may have been entitled to such
information if it had “institute[d] an [impeachment] inquiry into the
matter.” Cong. Globe, 29th Cong., 1st Sess. 698 (1846). 13 Notably, he
13 In denying the congressional request before him, President Polk suggested, in the
equivalent of dictum, that, during an impeachment inquiry, “all the archives and papers of
the Executive departments, public or private, would be subject to the inspection and
control of a committee of their body.” Cong. Globe, 29th Cong., 1st Sess. 698 (1846).
That statement, however, dramatically understates the degree to which executive privilege
remains available during an impeachment investigation to protect confidentiality interests
necessary to preserve the essential functions of the Executive Branch. See Exclusion of
Agency Counsel from Congressional Depositions in the Impeachment Context, 43 Op.
O.L.C. __, at *3 & n.1 (Nov. 1, 2019). In a prior opinion, this Office viewed Polk as
acknowledging the continued availability of executive privilege, because we read Polk’s
preceding sentence as “indicat[ing]” that, even in the impeachment context, “the Execu-
tive branch ‘would adopt all wise precautions to prevent the exposure of all such matters
the publication of which might injuriously affect the public interest, except so far as
15
Opinions of the Office of Legal Counsel in Volume 44
took this position even though some members of Congress had suggested
that evidence about the expenditures could support an impeachment of
Webster. 14 In these and other instances, the Executive Branch has consist-
ently drawn a distinction between the power of legislative oversight and
the power of impeachment. See Mazars USA, 940 F.3d at 761–64 (Rao, J.,
dissenting) (discussing examples from the Buchanan, Grant, Cleveland,
Theodore Roosevelt, and Coolidge Administrations).
3.
House members, too, have consistently recognized the difference be-
tween a legislative oversight investigation and an impeachment investiga-
tion. See Alissa M. Dolan et al., Cong. Research Serv., RL30240, Con-
gressional Oversight Manual 25 (Dec. 19, 2014) (“A committee’s inquiry
must have a legislative purpose or be conducted pursuant to some other
constitutional power of Congress, such as the authority . . . to . . . conduct
impeachment proceedings.” (emphases added)); Cong. Research Serv.,
Congressional Access to Information in an Impeachment Investigation
at 1 (distinguishing between “legislative investigation[s]” and “[m]uch
more rare[]” “impeachment investigation[s]”).
For instance, in 1793, when debating the House’s jurisdiction to inves-
tigate Secretary of the Treasury Alexander Hamilton, some members
argued that the House could not adopt a resolution of investigation into
Hamilton’s conduct without adopting the “solemnities and guards” of an
impeachment inquiry. See, e.g., 3 Annals of Cong. 903 (1793) (statement
of Rep. Smith); id. at 947–48 (statement of Rep. Boudinot) (distinguish-
ing between the House’s “Legislative capacity” and its role as “the grand
inquest of the Nation”); see also Mazars USA, 940 F.3d at 758 (Rao, J.,
dissenting) (discussing the episode). In 1796, when the House debated
this might be necessary to accomplish the great ends of public justice.’” Memorandum
for Elliot Richardson, Attorney General, from Robert G. Dixon, Jr., Assistant Attorney
General, Office of Legal Counsel, Re: Presidential Immunity from Coercive Congression-
al Demands for Information at 22–23 (July 24, 1973) (quoting Polk’s letter).
14 See, e.g., Cong. Globe, 29th Cong., 1st Sess. 636 (1846) (statement of Rep. Inger-
soll) (“Whether . . . [Webster’s] offences will be deemed impeachable misdemeanors in
office, conviction for which might remove him from the Senate, and disqualify him to
hold any office of honor, trust, or profit, under the United States, will remain to be
considered.”); Todd Garvey, The Webster and Ingersoll Investigations, in Morton Rosen-
berg, The Constitution Project, When Congress Comes Calling 289 (2017).
16
House Committees’ Authority to Investigate for Impeachment
whether to request the President’s instructions for negotiating the Jay
Treaty, Representative Murray concluded that the House could not med-
dle in treatymaking, but acknowledged that “the subject would be pre-
sented under an aspect very different” if the resolution’s supporters had
“stated the object for which they called for the papers to be an impeach-
ment.” 5 Annals of Cong. 429–30 (1796).
Similarly, in 1846, a House select committee agreed with President
Polk’s decision not to turn over requested information regarding State
Department expenditures where the House did not act “with a view to an
impeachment.” H.R. Rep. No. 29-684, at 4 (1846) (noting that four of the
committee’s five members “entirely concur with the President of the
United States” in deciding not to “communicate or make [the requested
documents] public, except with a view to an impeachment” and that “[n]o
dissent from the views of that message was expressed by the House”); see
also Mazars USA, 940 F.3d at 761 (Rao, J., dissenting). To take another
example, in 1879, the House Judiciary Committee distinguished “[i]n-
vestigations looking to the impeachment of public officers” from “an
ordinary investigation for legislative purposes.” H.R. Rep. No. 45-141,
at 2 (1879).
Most significantly, during the impeachments of Presidents Nixon and
Clinton, the House Judiciary Committee determined that the House must
provide express authorization before any committee may exercise com-
pulsory powers in an impeachment investigation. See infra Part II.C.1.
Thus, members of the House, like the other branches of government, have
squarely recognized the distinction between congressional investigations
for impeachment purposes and those for legislative purposes.
B.
Although the House of Representatives has “the sole Power of Im-
peachment,” U.S. Const. art. I, § 2, cl. 5 (emphasis added), the associated
power to conduct an investigation for impeachment purposes may, like the
House’s other investigative powers, be delegated. The full House may
make such a delegation by adopting a resolution in exercise of its authori-
ty to determine the rules for its proceedings, see id. art. I, § 5, cl. 2, and
each House has broad discretion in determining the conduct of its own
proceedings. See, e.g., NLRB v. Noel Canning, 573 U.S. 513, 551–52
(2014); United States v. Ballin, 144 U.S. 1, 5 (1892); see also 1 Desch-
ler’s Precedents ch. 5, § 4, at 305−06. But the House must actually exer-
17
Opinions of the Office of Legal Counsel in Volume 44
cise its discretion by making that judgment in the first instance, and its
resolution sets the terms of a committee’s authority. See United States v.
Rumely, 345 U.S. 41, 44 (1953). No committee may exercise the House’s
investigative powers in the absence of such a delegation.
As the Supreme Court has explained in the context of legislative over-
sight, “[t]he theory of a committee inquiry is that the committee members
are serving as the representatives of the parent assembly in collecting
information for a legislative purpose” and, in such circumstances, com-
mittees “are endowed with the full power of the Congress to compel
testimony.” Watkins, 354 U.S. at 200–01. The same is true for impeach-
ment investigations. 15 Thus, Hamilton recognized, the impeachment
power involves a trust of such “delicacy and magnitude” that it “deeply
concerns the political reputation and existence of every man engaged in
the administration of public affairs.” The Federalist No. 65, at 440. The
Founders foresaw that an impeachment effort would “[i]n many cases . . .
connect itself with the pre-existing factions” and “inlist all their animosi-
ties, partialities, influence and interest on one side, or on the other.” Id. at
439. As a result, they placed the solemn authority to initiate an impeach-
ment in “the representatives of the nation themselves.” Id. at 440. In order
to entrust one of its committees to investigate for purposes of impeach-
ment, the full House must “spell out that group’s jurisdiction and pur-
pose.” Watkins, 354 U.S. at 201. Otherwise, a House committee con-
15 When the House first considered impeachment in 1796, Attorney General Charles
Lee advised that, “before an impeachment is sent to the Senate, witnesses must be exam-
ined, in solemn form, respecting the charges, before a committee of the House of Repre-
sentatives, to be appointed for that purpose.” Letter for the House of Representatives from
Charles Lee, Attorney General, Re: Inquiry into the Official Conduct of a Judge of the
Supreme Court of the Northwestern Territory (May 9, 1796), reprinted in 1 Am. State
Papers: Misc. 151 (Walter Lowrie & Walter S. Franklin eds., 1834). Because the charges
of misconduct concerned the actions of George Turner, a territorial judge, and the wit-
nesses were located in far-away St. Clair County (modern-day Illinois), Lee suggested
that the “most solemn” mode of prosecution, an impeachment trial before the Senate,
would be “very inconvenient, if not entirely impracticable.” Id. Lee informed the House
that President Washington had directed the territorial governor to arrange for a criminal
prosecution before the territorial court. See id. The House committee considering the
petition about Turner agreed with Lee’s suggestion and recommended that the House take
no further action. See Inquiry into the Official Conduct of a Judge of the Supreme Court
of the Northwestern Territory (Feb. 27, 1797), reprinted in 1 Am. State Papers: Misc. at
157.
18
House Committees’ Authority to Investigate for Impeachment
trolled by such a faction could launch open-ended and untethered investi-
gations without the sanction of a majority of the House.
Because a committee may exercise the House’s investigative powers
only when authorized, the committee’s actions must be within the scope
of a resolution delegating authority from the House to the committee. As
the D.C. Circuit recently explained, “it matters not whether the Constitu-
tion would give Congress authority to issue a subpoena if Congress has
given the issuing committee no such authority.” Mazars USA, 940 F.3d at
722; see Dolan, Congressional Oversight Manual at 24 (“Committees of
Congress only have the power to inquire into matters within the scope of
the authority delegated to them by their parent body.”). In evaluating a
committee’s authority, the House’s resolution “is the controlling charter
of the committee’s powers,” and, therefore, the committee’s “right to
exact testimony and to call for the production of documents must be found
in this language.” Rumely, 345 U.S. at 44; see also Watkins, 354 U.S. at
201 (“Those instructions are embodied in the authorizing resolution. That
document is the committee’s charter.”); id. at 206 (“Plainly [the House’s]
committees are restricted to the missions delegated to them . . . . No
witness can be compelled to make disclosures on matters outside that
area.”); Exxon Corp. v. FTC, 589 F.2d 582, 592 (D.C. Cir. 1978) (“To
issue a valid subpoena, . . . a committee or subcommittee must conform
strictly to the resolution establishing its investigatory powers[.]”); United
States v. Lamont, 18 F.R.D. 27, 32 (S.D.N.Y. 1955) (Weinfeld, J.) (“No
committee of either the House or Senate, and no Senator and no Repre-
sentative, is free on its or his own to conduct investigations unless author-
ized. Thus it must appear that Congress empowered the Committee to act,
and further that at the time the witness allegedly defied its authority the
Committee was acting within the power granted to it.”). While a commit-
tee may study some matters without exercising the investigative powers of
the House, a committee’s authority to compel the production of docu-
ments and testimony depends entirely upon the jurisdiction provided by
the terms of the House’s delegation.
In Watkins, the Supreme Court relied upon those principles to set aside
a conviction for contempt of Congress because of the authorizing resolu-
tion’s vagueness. The uncertain scope of the House’s delegation imper-
missibly created “a wide gulf between the responsibility for the use of
investigative power and the actual exercise of that power.” 354 U.S. at
205. If the House wished to authorize the exercise of its investigative
power, then it needed to take responsibility for the use of that power,
19
Opinions of the Office of Legal Counsel in Volume 44
because a congressional subpoena, issued with the threat of a criminal
contempt citation, necessarily placed “constitutional liberties” in “dan-
ger.” Id.
The concerns expressed by the Court in Watkins apply with equal, if
not greater, force when considering the authority of a House committee to
compel the production of documents in connection with investigating
impeachment. As John Labovitz, a House impeachment attorney during
the Nixon investigation, explained: “[I]mpeachment investigations, be-
cause they involve extraordinary power and (at least where the president
is being investigated) may have extraordinary consequences, are not to be
undertaken in the same manner as run-of-the-mill legislative investiga-
tions. The initiation of a presidential impeachment inquiry should itself
require a deliberate decision by the House.” John R. Labovitz, Presiden-
tial Impeachment 184 (1978). Because a committee possesses only the
authorities that have been delegated to it, a committee may not use com-
pulsory process to investigate impeachment without the formal authoriza-
tion of the House.
C.
Historical practice confirms that the House must authorize an im-
peachment inquiry. See, e.g., Zivotofsky v. Kerry, 135 S. Ct. 2076, 2091
(2015) (recognizing that “[i]n separation-of-powers cases,” the Court has
placed “significant weight” on “accepted understandings and practice”);
Noel Canning, 573 U.S. at 514 (same). The House has expressly author-
ized every impeachment investigation of a President, including by identi-
fying the investigative committee and authorizing the use of compulsory
process. The same thing has been true for nearly all impeachment investi-
gations of other executive officials and judges. While committees have
sometimes studied a proposed impeachment resolution or reviewed avail-
able information without conducting a formal investigation, in nearly
every case in which the committee resorted to compulsory process, the
House expressly authorized the impeachment investigation. That practice
was foreseen as early as 1796. When Washington asked his Cabinet for
opinions about how to respond to the House’s request for the papers
associated with the Jay Treaty, the Secretary of the Treasury, Oliver
Wolcott Jr., explained that “the House of Representatives has no right to
demand papers” outside its legislative function “[e]xcept when an Im-
peachment is proposed & a formal enquiry instituted.” Letter for George
20
House Committees’ Authority to Investigate for Impeachment
Washington from Oliver Wolcott Jr. (Mar. 26, 1796), reprinted in 19 The
Papers of George Washington: Presidential Series 611–12 (David R.
Hoth ed., 2016) (emphasis added).
From the very first impeachment, the House has recognized that a
committee would require a delegation to conduct an impeachment inquiry.
In 1797, when House members considered whether a letter contained
evidence of criminal misconduct by Senator William Blount, they sought
to confirm Blount’s handwriting but concluded that the Committee of the
Whole did not have the power of taking evidence. See 7 Annals of Cong.
456–58 (1797); 3 Asher C. Hinds, Hinds’ Precedents of the House of
Representatives of the United States § 2294, at 644–45 (1907). Thus, the
committee “rose,” and the House itself took testimony. 3 Hinds’ Prece-
dents § 2294, at 646. Two days later, the House appointed a select com-
mittee to “prepare and report articles of impeachment” and vested in that
committee the “power to send for persons, papers, and records.” 7 Annals
of Cong. at 463–64, 466; 3 Hinds’ Precedents § 2297, at 648. 16 As we
discuss in this section, we have identified dozens of other instances where
the House, in addition to referring proposed articles of impeachment,
authorized formal impeachment investigations.
Against this weighty historical record, which involves nearly 100 au-
thorized impeachment investigations, the outliers are few and far be-
tween. 17 In 1879, it appears that a House committee, which was expressly
authorized to conduct an oversight investigation into the administration of
the U.S. consulate in Shanghai, ultimately investigated and recommended
that the former consul-general and former vice consul-general be im-
peached. In addition, between 1986 and 1989, the Judiciary Committee
considered the impeachment of three federal judges who had been crimi-
nally prosecuted (two of whom had been convicted). The Judiciary Com-
mittee pursued impeachment before there had been any House vote, and
issued subpoenas in two of those inquiries. Since then, however, the
Judiciary Committee reaffirmed during the impeachment of President
16 After the House impeached Senator Blount, the Senate voted to dismiss the charges
on the ground that a Senator is not a civil officer subject to impeachment. See 3 Hinds’
Precedents § 2318, at 678–80.
17 A 2007 overview concluded that “[t]here have been approximately 94 identifiable
impeachment-related inquiries conducted by Congress[.]” H.R. Doc. No. 109-153, at 115
(2007). Since 2007, two more judges have been impeached following authorized investi-
gations.
21
Opinions of the Office of Legal Counsel in Volume 44
Clinton that, in order to conduct an impeachment investigation, it needed
an express delegation of investigative authority from the House. And in
all subsequent cases the House has hewed to the well-established practice
of authorizing each impeachment investigation.
The U.S. District Court for the District of Columbia recently reviewed
a handful of historical examples and concluded that House committees
may conduct impeachment investigations without a vote of the full House.
See In re Application of the Comm. on the Judiciary, 2019 WL 5485221,
at *26–28. Yet, as the discussion below confirms, the district court mis-
read the lessons of history. 18 The district court treated the House Judiciary
Committee’s preliminary inquiries in the Clinton and Nixon impeach-
ments as investigations, without recognizing that, in both cases, the com-
mittee determined that a full House vote was necessary before it could
issue subpoenas. The district court also treated the 1980s judicial inquiries
as if they represented a rule of practice, rather than a marked deviation
from the dozens of occasions where the House recognized the need to
adopt a formal resolution to delegate its investigative authority. As our
survey below confirms, the historical practice with respect to Presidents,
other executive officers, and judges is consistent with the structure of our
Constitution, which requires the House, as the “sole” holder of impeach-
ment power, to authorize any impeachment investigation that a committee
may conduct on its behalf.
18 The district court’s erroneous conclusions rested upon the arguments offered by the
House Judiciary Committee, which relied principally upon the judicial outliers from the
1980s, a misunderstanding of the Nixon impeachment inquiry, and a misreading of the
committee’s subpoena power under the House Rules. See Application at 33−34, In re
Application of the Comm. on the Judiciary (D.D.C. July 26, 2019); Reply of the Commit-
tee on the Judiciary, U.S. House of Representatives, in Support of Its Application for an
Order Authorizing the Release of Certain Grand Jury Materials, at 16 n.19, In re Applica-
tion of the Comm. on the Judiciary (D.D.C. Sept. 30, 2019). HPSCI and the Judiciary
Committee later reiterated these arguments in their reports, each contending that execu-
tive branch officials had “obstructed” the House’s impeachment inquiry by declining to
comply with the pre-October 31 impeachment-related subpoenas. H.R. Rep. No. 116-335,
at 168–72, 175–77 (2019); H.R. Rep. No. 116-346, at 10, 13–16 (2019). But those reports
asserted that the pre-October 31 subpoenas were authorized because the committees
misunderstood the historical practice concerning the House’s impeachment inquiries (as
we discuss in Part II.C) and they misread the committees’ subpoena authority under the
House Rules (as we discuss in Part III.A).
22
House Committees’ Authority to Investigate for Impeachment
1.
While many Presidents have been the subject of less-formal demands
for impeachment, at least eleven have faced resolutions introduced in the
House for the purpose of initiating impeachment proceedings. 19 In some
cases, the House formally voted to reject opening a presidential impeach-
ment investigation. In 1843, the House rejected a resolution calling for an
investigation into the impeachment of President Tyler. See Cong. Globe,
27th Cong., 3d Sess. 144−46 (1843). In 1932, the House voted by a wide
margin to table a similar resolution introduced against President Hoover.
See 76 Cong. Rec. 399–402 (1932). In many other cases, the House simp-
ly referred impeachment resolutions to the Judiciary Committee, which
took no further action before the end of the Congress. But, in three in-
stances before President Trump, the House moved forward with investi-
gating the impeachment of a President. 20 Each of those presidential im-
peachments advanced to the investigative stage only after the House
19 See, e.g., Cong. Globe, 27th Cong., 3d Sess. 144, 146 (1843) (John Tyler); Cong.
Globe, 39th Cong., 2d Sess. 320 (1867) (Andrew Johnson); 28 Cong. Rec. 5627, 5650
(1896) (Grover Cleveland); 76 Cong. Rec. 399–402 (1932) (Herbert Hoover); H.R. Res.
607, 82d Cong. (1952) (Harry Truman); H.R. Res. 625, 93d Cong. (1973) (Richard
Nixon); H.R. Res. 370, 98th Cong. (1983) (Ronald Reagan); H.R. Res. 34, 102d Cong.
(1991) (George H.W. Bush); H.R. Res. 525, 105th Cong. (1998) (Bill Clinton); H.R. Res.
1258, 110th Cong. (2008) (George W. Bush); H.R. Res. 13, 106th Cong. (2019) (Donald
Trump).
20 In 1860, the House authorized an investigation into the actions of President Buchan-
an, but that investigation was not styled as an impeachment investigation. See Cong.
Globe, 36th Cong., 1st Sess. 997–98 (1860) (resolution establishing a committee of five
members to “investigat[e] whether the President of the United States, or any other officer
of the government, ha[d], by money, patronage, or other improper means, sought to
influence the action of Congress” or “by combination or otherwise, . . . attempted to
prevent or defeat, the execution of any law”). It appears to have been understood by the
committee as an oversight investigation. See H.R. Rep. No. 36-648, at 1–28 (1860).
Buchanan in fact objected to the House’s use of its legislative jurisdiction to circumvent
the protections traditionally provided in connection with impeachment. See Message
for the U.S. House of Representatives from James Buchanan (June 22, 1860), reprinted in
5 A Compilation of the Messages and Papers of the Presidents 625 (James D. Richardson
ed., 1897) (objecting that if the House suspects presidential misconduct, it should “trans-
fer the question from [its] legislative to [its] accusatory jurisdiction, and take care that in
all the preliminary judicial proceedings preparatory to the vote of articles of impeachment
the accused should enjoy the benefit of cross-examining the witnesses and all the other
safeguards with which the Constitution surrounds every American citizen”); see also
Mazars USA, 940 F.3d at 762 (Rao, J., dissenting) (discussing the episode).
23
Opinions of the Office of Legal Counsel in Volume 44
adopted a resolution expressly authorizing a committee to conduct the
investigation. In no case did the committee use compulsory process until
the House had expressly authorized the impeachment investigation.
The impeachment investigation of President Andrew Johnson. On
January 7, 1867, the House adopted a resolution authorizing the “Commit-
tee on the Judiciary” to “inquire into the official conduct of Andrew
Johnson . . . and to report to this House whether, in their opinion,” the
President “has been guilty of any act, or has conspired with others to do
acts, which, in contemplation of the Constitution, are high crimes or
misdemeanors.” Cong. Globe, 39th Cong., 2d Sess. 320–21 (1867); see
also 3 Hinds’ Precedents § 2400, at 824. The resolution conferred upon
the committee the “power to send for persons and papers and to adminis-
ter the customary oath to witnesses.” Cong. Globe, 39th Cong., 2d Sess.
320 (1867). The House referred a second resolution to the Judiciary
Committee on February 4, 1867. Id. at 991; 3 Hinds’ Precedents § 2400,
at 824. 21 Shortly before that Congress expired, the committee reported
that it had seen “sufficient testimony . . . to justify and demand a further
prosecution of the investigation.” H.R. Rep. No. 39-31, at 2 (1867). On
March 7, 1867, the House in the new Congress adopted a resolution that
authorized the committee “to continue the investigation authorized” in the
January 7 resolution and to “send for persons and papers” and administer
oaths. Cong. Globe, 40th Cong., 1st Sess. 18, 25 (1867); 3 Hinds’ Prece-
dents § 2401, at 825–26. The committee recommended articles of im-
peachment, but the House rejected those articles on December 7, 1867.
See Cong. Globe, 40th Cong., 2d Sess. 67–68 (1867). In early 1868,
however, the House adopted resolutions authorizing another investigation,
with compulsory powers, by the Committee on Reconstruction and trans-
ferred to that committee the evidence from the Judiciary Committee’s
21 The district court’s recent decision in In re Application of the Committee on the Ju-
diciary misreads Hinds’ Precedents to suggest that the House Judiciary Committee (which
the court called “HJC”) began investigating President Johnson’s impeachment without
any authorizing resolution. According to the district court, “a resolution ‘authoriz[ing]’
HJC ‘to inquire into the official conduct of Andrew Johnson’ was passed after HJC ‘was
already considering the subject.’” 2019 WL 5485221, at *27 (quoting 3 Hinds’ Prece-
dents § 2400, at 824). In fact, the committee was “already considering the subject” at the
time of the February 4 resolution described in the quoted sentence because, as explained
in the text above, the House had previously adopted a separate resolution authorizing
an impeachment investigation. See Cong. Globe, 39th Cong., 2d Sess. 320–21 (1867);
3 Hinds’ Precedents § 2400, at 824.
24
House Committees’ Authority to Investigate for Impeachment
earlier investigation. See Cong. Globe, 40th Cong., 2d Sess. 784–85, 1087
(1868); 3 Hinds’ Precedents § 2408, at 845.
On February 21, 1868, the impeachment effort received new impetus
when Johnson removed the Secretary of War without the Senate’s ap-
proval, contrary to the terms of the Tenure of Office Act, which Johnson
(correctly) held to be an unconstitutional limit on his authority. See
Cong. Globe, 40th Cong., 2d Sess. 1326–27 (1868); 3 Hinds’ Precedents
§ 2408–09, at 845–47; see also Myers v. United States, 272 U.S. 52, 176
(1926) (finding that provision of the Tenure of Office Act “was invalid”).
That day, the Committee on Reconstruction reported an impeachment
resolution to the House, which was debated on February 22 and passed on
February 24. Cong. Globe, 40th Cong., 2d Sess. 1400 (1868); 3 Hinds’
Precedents §§ 2409–12, at 846–51.
The impeachment investigation of President Nixon. Although many
resolutions were introduced in support of President Nixon’s impeachment
earlier in 1973, the House’s formal impeachment inquiry arose in the
months following the “Saturday Night Massacre,” during which President
Nixon caused the termination of Special Prosecutor Archibald Cox at the
cost of the resignations of his Attorney General and Deputy Attorney
General. See Letter Directing the Acting Attorney General to Discharge
the Director of the Office of Watergate Special Prosecution Force (Oct.
20, 1973), Pub. Papers of Pres. Richard Nixon 891 (1973). Immediately
thereafter, House members introduced resolutions calling either for the
President’s impeachment or for the opening of an investigation. 22 The
Speaker of the House referred the resolutions calling for an investigation
to the Rules Committee and those calling for impeachment to the Judici-
ary Committee. See Office of Legal Counsel, U.S. Dep’t of Justice, Legal
Aspects of Impeachment: An Overview at 40 (Feb. 1974) (“Legal Aspects
of Impeachment ”); 3 Deschler’s Precedents ch. 14, § 5, at 2020.
Following the referrals, the Judiciary Committee “beg[a]n an inquiry
into whether President Nixon ha[d] committed any offenses that could
lead to impeachment,” an exercise that the committee considered “prelim-
inary.” Richard L. Madden, Democrats Agree on House Inquiry into Nixon’s
Acts, N.Y. Times, Oct. 23, 1973, at 1. The committee started collecting
publicly available materials, and Chairman Peter Rodino Jr. stated that he
22 See, e.g., H.R. Res. 625, 631, 635, and 638, 93d Cong. (1973) (impeachment); H.R.
Res. 626, 627, 628, 636, and 637, 93d Cong. (1973) (Judiciary Committee or subcommit-
tee investigation).
25
Opinions of the Office of Legal Counsel in Volume 44
would “set up a separate committee staff to ‘collate’ investigative files
from Senate and House committees that have examined a variety of
charges against the Nixon Administration.” James M. Naughton, Rodino
Vows Fair Impeachment Inquiry, N.Y. Times, Oct. 30, 1973, at 32.
Although the committee “adopted a resolution permitting Mr. Rodino
to issue subpoenas without the consent of the full committee,” James M.
Naughton, House Panel Starts Inquiry on Impeachment Question, N.Y.
Times, Oct. 31, 1973, at 1, no subpoenas were ever issued under that
purported authority. Instead, the committee “delayed acting” on the im-
peachment resolutions. James M. Naughton, House Unit Looks to Im-
peachment, N.Y. Times, Dec. 2, 1973, at 54. By late December, the com-
mittee had hired a specialized impeachment staff. A Hard-Working Legal
Adviser: John Michael Doar, N.Y. Times, Dec. 21, 1973, at 20. The staff
continued “‘wading through the mass of material already made public,’”
and the committee’s members began considering “the areas in which the
inquiry should go.” Bill Kovach, Vote on Subpoena Could Test House
on Impeachment, N.Y. Times, Jan. 8, 1974, at 14; see also Staff of the
H. Comm. on the Judiciary, 93d Cong., Rep. on Work of the Impeachment
Inquiry Staff as of February 5, 1974, at 2–3 (1974) (noting that the staff
was “first collecting and sifting the evidence available in the public do-
main,” then “marshaling and digesting the evidence available through
various governmental investigations”). By January 1974, the committee’s
actions had consisted of digesting publicly available documents and prior
impeachment precedents. That was consistent with the committee’s “only
mandate,” which was to “study more than a dozen impeachment resolu-
tions submitted” in 1973. James M. Naughton, Impeachment Panel Seeks
House Mandate for Inquiry, N.Y. Times, Jan. 25, 1974, at 1.
In January, the committee determined that a formal investigation was
necessary, and it requested “an official House mandate to conduct the
inquiry,” relying upon the “precedent in each of the earlier [impeachment]
inquiries.” Id. at 17. On January 7, Chairman Rodino “announced that the
Committee’s subpoena power does not extend to impeachment and that
. . . the Committee would seek express authorization to subpoena persons
and documents with regard to the impeachment inquiry.” Legal Aspects of
Impeachment at 43; see also Richard L. Lyons, GOP Picks Jenner as
Counsel, Wash. Post, Jan. 8, 1974, at A1, A6 (“Rodino said the committee
will ask the House when it reconvenes Jan. 21 to give it power to subpoe-
na persons and documents for the inquiry. The committee’s subpoena
power does not now extend to impeachment proceedings, he said.”). As
26
House Committees’ Authority to Investigate for Impeachment
the House Parliamentarian later explained, the Judiciary Committee’s
general authority to conduct investigations and issue subpoenas “did not
specifically include impeachments within the jurisdiction of the Commit-
tee on the Judiciary,” and it was therefore “considered necessary for the
House to specifically vest the Committee on the Judiciary with the inves-
tigatory and subpena power to conduct the impeachment investigation.”
3 Deschler’s Precedents ch. 14, § 15.2, at 2172 (Parliamentarian’s Note).
On February 6, 1974, the House approved Resolution 803, which “au-
thorized and directed” the Judiciary Committee “to investigate fully and
completely whether sufficient grounds exist for the House of Representa-
tives to exercise its constitutional power to impeach Richard M. Nixon,
President of the United States of America.” H.R. Res. 803, 93d Cong. § 1.
The resolution specifically authorized the committee “to require . . . by
subpena or otherwise . . . the attendance and testimony of any person” and
“the production of such things” as the committee “deem[ed] necessary” to
its investigation. Id. § 2(a).
Speaking on the House floor, Chairman Rodino described the resolu-
tion as a “necessary step” to confer the House’s investigative powers on
the Judiciary Committee:
We have reached the point when it is important that the House ex-
plicitly confirm our responsibility under the Constitution.
We are asking the House of Representatives, by this resolution, to
authorize and direct the Committee on the Judiciary to investigate
the conduct of the President of the United States . . . .
As part of that resolution, we are asking the House to give the Ju-
diciary Committee the power of subpena in its investigations.
Such a resolution has always been passed by the House. . . . It is a
necessary step if we are to meet our obligations.
....
. . . The sole power of impeachment carries with it the power to
conduct a full and complete investigation of whether sufficient
grounds for impeachment exist or do not exist, and by this resolution
these investigative powers are conferred to their full extent upon the
Committee on the Judiciary.
120 Cong. Rec. 2350–51 (1974) (emphases added). During the debate,
others recognized that the resolution would delegate the House’s investi-
gative powers to the Judiciary Committee. See, e.g., id. at 2361 (statement
27
Opinions of the Office of Legal Counsel in Volume 44
of Rep. Rostenkowski) (“By delegating to the Judiciary Committee the
powers contained in this resolution, we will be providing that committee
with the resources it needs to inform the whole House of the facts of this
case.”); id. at 2362 (statement of Rep. Boland) (“House Resolution 803 is
intended to delegate to the Committee on the Judiciary the full extent of
the powers of this House in an impeachment proceeding[]—both as to the
persons and types of things that may be subpenaed and the methods for
doing so.”). Only after the Judiciary Committee had received authoriza-
tion from the House did it request and subpoena tape recordings and
documents from President Nixon. See H.R. Rep. No. 93-1305, at 187
(1974). 23
The impeachment investigation of President Clinton. On September 9,
1998, Independent Counsel Kenneth W. Starr, acting under 28 U.S.C.
§ 595(c), advised the House of Representatives that he had uncovered
substantial and credible information that he believed could constitute
grounds for the impeachment of President Clinton. 18 Deschler’s Prece-
dents app. at 548–49 (2013). Two days later, the House adopted a resolu-
tion that referred the matter, along with Starr’s report and 36 boxes of
evidence, to the Judiciary Committee. H.R. Res. 525, 105th Cong. (1998).
The House directed that committee to review the report and “determine
whether sufficient grounds exist to recommend to the House that an
impeachment inquiry be commenced.” Id. § 1. The Rules Committee’s
Chairman emphasized that the House would need to adopt a subsequent
resolution if it decided to authorize an impeachment inquiry: “[T]his
resolution does not authorize or direct an impeachment inquiry. . . . It
merely provides the appropriate parameters for the Committee on the
Judiciary . . . to . . . make a recommendation to the House as to whether
we should commence an impeachment inquiry.” 144 Cong. Rec. 20021
(1998) (statement of Rep. Solomon).
23 A New York Times article the following day characterized House Resolution 803 as
“formally ratif [ying] the impeachment inquiry begun by the committee [the prior] Octo-
ber.” James M. Naughton, House, 410-4, Gives Subpoena Power in Nixon Inquiry, N.Y.
Times, Feb. 7, 1974, at 1. But the resolution did not grant after-the-fact authorization for
any prior action. To the contrary, the resolution “authorized and directed” a future inves-
tigation, including by providing subpoena power. In the report recommending adoption of
the resolution, the committee likewise described its plans in the future tense: “It is the
intention of the committee that its investigation will be conducted in all respects on a fair,
impartial and bipartisan basis.” H.R. Rep. No. 93-774, at 3 (1974).
28
House Committees’ Authority to Investigate for Impeachment
On October 7, 1998, the Judiciary Committee did recommend that there
be an investigation for purposes of impeachment. As explained in the
accompanying report: “[T]he Committee decided that it must receive
authorization from the full House before proceeding on any further course
of action. Because impeachment is delegated solely to the House of Rep-
resentatives by the Constitution, the full House of Representatives should
be involved in critical decision making regarding various stages of im-
peachment.” H.R. Rep. No. 105-795, at 24 (emphasis added). The com-
mittee also observed that “a resolution authorizing an impeachment in-
quiry into the conduct of a president is consistent with past practice,”
citing the resolutions for Presidents Johnson and Nixon and observing that
“numerous other inquiries were authorized by the House directly, or by
providing investigative authorities, such as deposition authority, to the
Committee on the Judiciary.” Id.
The next day, the House voted to authorize the Judiciary Committee to
“investigate fully and completely whether sufficient grounds exist for the
House of Representatives to exercise its constitutional power to impeach
William Jefferson Clinton, President of the United States of America.”
H.R. Res. 581, 105th Cong. § 1 (1998). The resolution authorized the
committee “to require . . . by subpoena or otherwise . . . the attendance
and testimony of any person” and “the production of . . . things,” and to
require the furnishing of information “by interrogatory.” Id. § 2(a). “On
November 5, 1998,” as part of its investigation, “the Committee presented
President Clinton with 81 requests for admission,” which the Committee
explained that it “would have . . . compelled by subpoena” had President
Clinton not complied. H.R. Rep. No. 105-830, at 77, 122 (1998). And the
Committee then “approved the issuance of subpoenas for depositions and
materials” from several witnesses. 144 Cong. Rec. D1210–11 (daily ed.
Dec. 17, 1998).
In discussing the Clinton precedent, the district court in In re Applica-
tion of the Committee on the Judiciary treated the D.C. Circuit’s approval
of the disclosure of Starr’s report and associated grand-jury information
as evidence that the Judiciary Committee may “commence an impeach-
ment investigation” without a House vote. 2019 WL 5485221, at *27 &
n.36. But the D.C. Circuit did not authorize that disclosure because of any
pending House investigation. It did so because a statutory provision
required an independent counsel to “advise the House of Representatives
of any substantial and credible information which such independent
counsel receives . . . that may constitute grounds for an impeachment.”
29
Opinions of the Office of Legal Counsel in Volume 44
28 U.S.C. § 595(c) (emphasis added). And the D.C. Circuit viewed the
report as reflecting “information of the type described in 28 U.S.C.
§ 595(c).” In re Madison Guar. Sav. & Loan Ass’n, Div. No. 94-1 (D.C.
Cir. Spec. Div. July 7, 1998), reprinted in H.R. Doc. No. 105-331, pt. 1,
at 10 (1998). The order authorizing the transmission of that information to
the House did not imply that any committee was conducting an impeach-
ment investigation. To the contrary, after the House received the infor-
mation, “no person had access to” it until after the House adopted a reso-
lution referring the matter to the Judiciary Committee. H.R. Rep. No. 105-
795, at 5. And the House then adopted a second resolution (Resolution
581) to authorize a formal investigation. In other words, the House voted
to authorize the Judiciary Committee both to review the Starr evidence
and to conduct an impeachment investigation. Neither the D.C. Circuit
nor the Judiciary Committee suggested that any committee could have
taken such action on its own.
2.
The House has historically followed these same procedures in consider-
ing impeachment resolutions against executive branch officers other than
the President. In many cases, an initial resolution laying out charges of
impeachment or authorizing an investigation was referred to a select or
standing committee. 24 Following such a referral, the designated committee
24 As with Presidents, many of these resolutions remained with the committees until
they expired at the end of the Congress. Several merely articulated allegations of im-
peachment. See, e.g., H.R. Res. 1028, 115th Cong. (2018) (Deputy Attorney General Rod
Rosenstein); H.R. Res. 417, 114th Cong. (2015) (Administrator of the Environmental
Protection Agency Regina McCarthy); H.R. Res. 411, 113th Cong. (2013) (Attorney
General Eric Holder); H.R. Res. 333, 110th Cong. (2007) (Vice President Richard Chen-
ey); H.R. Res. 629, 108th Cong. (2004) (Secretary of Defense Donald Rumsfeld); H.R.
Res. 805, 95th Cong. (1977) (United Nations Ambassador Andrew Young); H.R. Res.
274, 95th Cong. (1977) (Commissioner of the Federal Trade Commission Paul Dixon);
H.R. Res. 881, 94th Cong. (1975) (U.S. Attorney Jonathan Goldstein and Principal
Assistant U.S. Attorney Bruce Goldstein); H.R. Res. 647, 94th Cong. (1975) (Ambassador
to Iran Richard Helms); H.R. Res. 547, 94th Cong. (1975) (Special Crime Strike Force
Prosecutor Liam Coonan). Others called for an investigation. See, e.g., H.R. Res. 589,
110th Cong. (2007) (Attorney General Alberto Gonzales); H.R. Res. 582, 105th Cong.
(1998) (Independent Counsel Kenneth Starr); H.R. Res. 102, 99th Cong. (1985) (Chair-
man of the Board of Governors of the Federal Reserve System Paul Volcker); H.R. Res.
101, 99th Cong. (1985) (same and others); H.R. Res. 1025, 95th Cong. (1978) (Attorney
General Griffin Bell); H.R. Res. 1002, 95th Cong. (1978) (same); H.R. Res. 569, 93d
30
House Committees’ Authority to Investigate for Impeachment
reviewed the matter and considered whether to pursue a formal impeach-
ment inquiry—it did not treat the referral as stand-alone authorization to
conduct an investigation. When a committee concluded that the charges
warranted investigation, it reported to the full House, which then consid-
ered whether to adopt a resolution to authorize a formal investigation.
For example, in March 1867, the House approved a resolution directing
the Committee on Public Expenditures “to inquire into the conduct of
Henry A. Smythe, collector of the port of New York.” Cong. Globe, 40th
Cong., 1st Sess. 132 (1867); see also id. (noting that the resolution had
been modified following debate “so as to leave out that part about bring-
ing articles of impeachment”). Weeks later, the House voted to authorize
an impeachment investigation. Id. at 290 (authorizing the investigating
committee to “send for persons and papers”). The House followed this
same procedure in 1916 for U.S. Attorney H. Snowden Marshall. H.R.
Res. 90, 64th Cong. (1916) (initial resolution referred to the Judiciary
Committee); H.R. Res. 110, 64th Cong. (1916) (resolution approving the
investigation contemplated in the initial resolution). And the process
repeated in 1922 for Attorney General Harry Daugherty. H.R. Res. 425,
67th Cong. (1922) (referring the initial resolution to the committee); H.R.
Res. 461, 67th Cong. (1922) (resolution approving the investigation
contemplated in the initial resolution).
In a few instances, the House asked committees to draft articles of im-
peachment without calling for any additional impeachment investigation.
For example, in 1876, after uncovering “unquestioned evidence of the
malfeasance in office by General William W. Belknap” (who was then
Secretary of War) in the course of another investigation, the House ap-
proved a resolution charging the Committee on the Judiciary with the
responsibility to “prepare and report without unnecessary delay suitable
articles of impeachment.” 4 Cong. Rec. 1426, 1433 (1876). When a key
witness left the country, however, the committee determined that addi-
tional investigation was warranted, and it asked to be authorized “to take
Cong. (1973) (Vice President Spiro Agnew); H.R. Res. 67, 76th Cong. (1939) (Secretary
of Labor Frances Perkins and others); 28 Cong. Rec. 114, 126 (1895) (Ambassador to
Great Britain Thomas Bayard); 16 Cong. Rec. 17−19 (1884) (U.S. Marshal Lot Wright);
Cong. Globe, 40th Cong., 1st Sess. 778−79 (1867) (Minister to Great Britain Charles
Francis Adams). On occasion, the House voted to table these resolutions instead of
referring them to a committee. See, e.g., H.R. Res. 545, 105th Cong. (1998) (resolution of
impeachment for Independent Counsel Kenneth Starr); H.R. Res. 1267, 95th Cong. (1978)
(resolution of impeachment for Ambassador to the United Nations Andrew Young).
31
Opinions of the Office of Legal Counsel in Volume 44
further proof ” and “to send for persons and papers” in its search for
alternative evidence. Id. at 1564, 1566; see also 3 Hinds’ Precedents
§§ 2444–45, at 902–04.
In some cases, the House declined to authorize a committee to investi-
gate impeachment with the aid of compulsory process. In 1873, the House
authorized the Judiciary Committee “to inquire whether anything” in
testimony presented to a different committee implicating Vice President
Schuyler Colfax “warrants articles of impeachment of any officer of the
United States not a member of this House, or makes it proper that further
investigation should be ordered in his case.” Cong. Globe, 42d Cong.,
3d Sess. 1545 (1873); see 3 Hinds’ Precedents § 2510, at 1016–17.
No further investigation was authorized. A similar sequence occurred in
1917 in the case of an impeachment resolution offered against members of
the Federal Reserve Board. See 54 Cong. Rec. 3126−30 (1917) (im-
peachment resolution); H.R. Rep. No. 64-1628, at 1 (1917) (noting that
following the referral of the impeachment resolution, the Committee had
reviewed available information and determined that no further proceed-
ings were warranted). In 1932, the House referred to the Judiciary Com-
mittee a resolution calling for the investigation of the possible impeach-
ment of Secretary of the Treasury Andrew Mellon. H.R. Res. 92, 72d
Cong. (1932); see also 3 Deschler’s Precedents ch. 14, § 14.1, at 2134–
39. The following month, the House approved a resolution discontinuing
any investigation of the charges. 75 Cong. Rec. 3850 (1932); see also
3 Deschler’s Precedents ch. 14, § 14.2, at 2139–40.
Most recently, in the 114th Congress, the House referred to the Judici-
ary Committee resolutions concerning the impeachment of the Commis-
sioner of the Internal Revenue Service, John Koskinen. See H.R. Res.
494, 114th Cong. (2015); H.R. Res. 828, 114th Cong. (2016). Shortly
after an attempt to force a floor vote on one of the resolutions, Koskinen
voluntarily appeared before the committee at a hearing. See Impeachment
Articles Referred on John Koskinen (Part III): Hearing Before the H.
Comm. on the Judiciary, 114th Cong. 2 (2016). The ranking minority
member, Representative John Conyers, observed that, despite the title,
“this is not an impeachment hearing” because, “[a]ccording to parliamen-
tarians of the House past and present, the impeachment process does
not begin until the House actually votes to authorize this Committee to
investigate the charges.” Id. at 3; see also id. at 30 (similar statement by
Rep. Johnson). During the hearing, Commissioner Koskinen offered to
provide a list of supporting witnesses who could be cross-examined “if
32
House Committees’ Authority to Investigate for Impeachment
the Committee decided it wanted to go to a full-scale impeachment pro-
cess, which I understand this is not.” Id. at 45. Two months later, one of
the impeachment resolutions was briefly addressed on the floor of the
House, and again referred to the Judiciary Committee, but without provid-
ing any investigative authority. See 162 Cong. Rec. H7251–54 (daily ed.
Dec. 6, 2016). The committee never sought to compel the appearance of
Koskinen or any other witness, and the committee does not appear to have
taken any further action before the Congress expired.
In his 1978 book on presidential impeachment, former House im-
peachment attorney John Labovitz observed that there were a “few excep-
tions,” “mostly in the 1860s and 1870s,” to the general rule that “past
impeachment investigations ha[ve] been authorized by a specific resolu-
tion conferring subpoena power.” Labovitz, Presidential Impeachment at
182 & n.18. In our review of the history, we have identified one case from
that era where a House committee commenced a legislative oversight
investigation and subsequently moved, without separate authorization, to
consider impeachment. 25 But the overwhelming historical practice to the
contrary confirms the Judiciary Committee’s well-considered conclusions
in 1974 and 1998 that a committee requires specific authorization from
the House before it may use compulsory process to investigate for im-
peachment purposes.
25 In 1878, the Committee on Expenditures in the State Department, which was
charged with investigative authority for “the exposing of frauds or abuses of any kind,”
7 Cong. Rec. 287, 290 (1878), was referred an investigation into maladministration at the
consulate in Shanghai during the terms of Consul-General George Seward and Vice
Consul-General O.B. Bradford, id. at 504, 769. Eventually, the committee began to
consider Seward’s impeachment, serving him with a subpoena for testimony and docu-
ments, in response to which he asserted his privilege against self-incrimination. See
3 Hinds’ Precedents § 2514, at 1023–24; H.R. Rep. No. 45-141, at 1–3 (1879). The
committee recommended articles of impeachment, but the House declined to act before
the end of the Congress. See 8 Cong. Rec. 2350–55 (1879); 3 Hinds’ Precedents § 2514,
at 1025. During this same period, the Committee on Expenditures reported proposed
articles of impeachment against Bradford but recommended “that the whole subject be
referred to the Committee on the Judiciary” for further consideration. H.R. Rep. No. 45-
818, at 7 (1878). The House agreed to the referral, but no further action was taken.
7 Cong. Rec. at 3667.
33
Opinions of the Office of Legal Counsel in Volume 44
3.
The House has followed the same practice in connection with nearly all
impeachment investigations involving federal judges. Committees some-
times studied initial referrals, but they waited for authorization from the
full House before conducting any formal impeachment investigation.
Three cases from the late 1980s departed from that pattern, but the House
has returned during the past three decades to the historical baseline,
repeatedly ensuring that the Judiciary Committee had a proper delegation
for each impeachment investigation.
The practice of having the House authorize each specific impeachment
inquiry is reflected in the earliest impeachment investigations involving
judges. In 1804, the House considered proposals to impeach two judges:
Samuel Chase, an associate justice of the Supreme Court, and Richard
Peters, a district judge. See 3 Hinds’ Precedents § 2342, at 711–16. There
was a “lengthy debate” about whether the evidence was appropriate to
warrant the institution of an inquiry. Id. at 712. The House then adopted
a resolution appointing a select committee “to inquire into the official
conduct” of Chase and Peters “and to report” the committee’s “opinion
whether” either of the judges had “so acted, in their judicial capacity, as
to require the interposition of the constitutional power of this House.”
13 Annals of Cong. 850, 875–76 (1804); 3 Hinds’ Precedents § 2342, at
715. A few days later, another resolution “authorized” the committee “to
send for persons, papers, and records.” 13 Annals of Cong. at 877; see
also 3 Hinds’ Precedents § 2342, at 715. At the conclusion of its investi-
gation, the committee recommended that Chase, but not Peters, be im-
peached. 3 Hinds’ Precedents § 2343, at 716. The House thereafter agreed
to a resolution impeaching Chase. Id. at 717. Congress recessed before the
Senate could act, but, during the next Congress, the House appointed an
almost identical select committee, which was “given no power of investi-
gation.” Id. §§ 2343–44, at 717–18. The committee recommended revised
articles of impeachment against Chase, which were again adopted by the
House. Id. § 2344, at 718–19. In 1808, the House again separately author-
ized an investigation when it considered whether Peter Bruin, a Missis-
sippi territorial judge, should be impeached for “neglect of duty and
drunkenness on the bench.” Id. § 2487, at 983–84. A member of the
House objected “that it would hardly be dignified for the Congress to
proceed to an impeachment” based on the territorial legislature’s referral
and proposed the appointment of a committee “to inquire into the proprie-
34
House Committees’ Authority to Investigate for Impeachment
ty of impeaching.” Id. at 984; see 18 Annals of Cong. 2069 (1808). The
House then passed a resolution forming a committee to conduct an in-
quiry, which included the “power to send for persons, papers, and rec-
ords” but, like most inquiries to follow, did not result in impeachment. 18
Annals of Cong. at 2189; 3 Hinds’ Precedents § 2487, at 984.
Over the course of more than two centuries thereafter, members of the
House introduced resolutions to impeach, or to investigate for potential
impeachment, dozens more federal judges, and the House continued,
virtually without exception, to provide an express authorization before
any committee proceeded to exercise investigative powers. 26 In one 1874
case, the Judiciary Committee realized only after witnesses had traveled
from Arkansas that it could not find any resolution granting it compulsory
powers to investigate previously referred charges against Judge William
Story. See 2 Cong. Rec. 1825, 3438 (1874); 3 Hinds’ Precedents § 2513,
at 1023. In order to “cure” that “defect,” the committee reported a privi-
leged resolution to the floor of the House that would grant the committee
“power to send for persons and papers” as part of the impeachment inves-
26See, e.g., 3 Hinds’ Precedents § 2489, at 986 (William Van Ness, Mathias
Tallmadge, and William Stephens, 1818); id. § 2490, at 987 (Joseph Smith, 1825); id.
§ 2364, at 774 (James Peck, 1830); id. § 2492, at 990 (Alfred Conkling, 1830); id. § 2491,
at 989 (Buckner Thurston, 1837); id. § 2494, at 993–94 (P.K. Lawrence, 1839); id.
§§ 2495, 2497, 2499, at 994, 998, 1003 (John Watrous, 1852–60); id. § 2500, at 1005
(Thomas Irwin, 1859); id. § 2385, at 805 (West Humphreys, 1862); id. § 2503, at 1008
(anonymous justice of the Supreme Court, 1868); id. § 2504, at 1008–09 (Mark Delahay,
1872); id. § 2506, at 1011 (Edward Durell, 1873); id. § 2512, at 1021 (Richard Busteed,
1873); id. § 2516, at 1027 (Henry Blodgett, 1879); id. §§ 2517–18, at 1028, 1030–31
(Aleck Boarman, 1890–92); id. § 2519, at 1032 (J.G. Jenkins, 1894); id. § 2520, at 1033
(Augustus Ricks, 1895); id. § 2469, at 949–50 (Charles Swayne, 1903); 6 Clarence
Cannon, Cannon’s Precedents of the House of Representatives of the United States § 498,
at 685 (1936) (Robert Archbald, 1912); id. § 526, at 746–47 (Cornelius H. Hanford,
1912); id. § 527, at 749 (Emory Speer, 1913); id. § 528, at 753 (Daniel Wright, 1914); id.
§ 529, at 756 (Alston Dayton, 1915); id. § 543, at 777–78 (William Baker, 1924); id.
§ 544, at 778–79 (George English, 1925); id. § 549, at 789–90 (Frank Cooper, 1927); id.
§ 550, at 791–92 (Francis Winslow, 1929); id. § 551, at 793 (Harry Anderson, 1930); id.
§ 552, at 794 (Grover Moscowitz, 1930); id. § 513, at 709–10 (Harold Louderback, 1932);
3 Deschler’s Precedents ch. 14, § 14.4, at 2143 (James Lowell, 1933); id. § 18.1, at 2205–
06 (Halsted Ritter, 1933); id. § 14.10, at 2148 (Albert Johnson and Albert Watson, 1944);
H.R. Res. 1066, 94th Cong. (1976) (certain federal judges); H.R. Res. 966, 95th Cong.
(1978) (Frank Battisti); see also 51 Cong. Rec. 6559–60 (1914) (noting passage of
authorizing resolution for investigation of Daniel Wright); 68 Cong. Rec. 3532 (1927)
(same for Frank Cooper).
35
Opinions of the Office of Legal Counsel in Volume 44
tigation. 2 Cong. Rec. at 3438. The House promptly agreed to the resolu-
tion, enabling the committee to “examine” the witnesses that day. Id.
In other cases, however, no full investigation ever materialized. In
1803, John Pickering, a district judge, was impeached, but the House
voted to impeach him without conducting any investigation at all, relying
instead upon documents supplied by President Jefferson. See 3 Hinds’
Precedents § 2319, at 681–82; see also Lynn W. Turner, The Impeach-
ment of John Pickering, 54 Am. Hist. Rev. 485, 491 (1949). Sometimes,
the House authorized only a preliminary inquiry to determine whether an
investigation would be warranted. In 1908, for instance, the House asked
the Judiciary Committee to consider proposed articles impeaching Judge
Lebbeus Wilfley of the U.S. Court for China. In the ensuing hearing, the
Representative who had introduced the resolution acknowledged that the
committee was not “authorized to subpoena witnesses” and had been
authorized to conduct only “a preliminary examination,” which was “not
like an investigation ordinarily held by the House,” but was instead dedi-
cated solely to determining “whether you believe it is a case that ought to
be investigated at all.” 27 In many other cases, it is apparent that—even
when impeachment resolutions had been referred to them—committees
conducted no formal investigation. 28
27 Articles for the Impeachment of Lebbeus R. Wilfley, Judge of the U.S. Court for Chi-
na: Hearings Before a Subcomm. of the H. Comm. on the Judiciary, 60th Cong. 4 (1908)
(statement of Rep. Waldo); see also id. at 45–46 (statement of Rep. Moon) (“This com-
mittee conceives to be its duty solely, under the resolution referring this matter to them, to
examine the charges preferred in the petition . . . and to report thereon whether in its
judgement the petitioner has made out a prima facie case; and also whether . . . Congress
should adopt a resolution instructing the Judiciary Committee to proceed to an investiga-
tion of the facts of the case.”); 6 Cannon’s Precedents § 525, at 743–45 (summarizing the
Wilfley case, in which the Judiciary Committee ultimately reported that no formal
investigation was warranted). The case of Judge Samuel Alschuler in 1935 similarly
involved only a preliminary investigation—albeit one with actual investigative powers.
The House first referred to the Judiciary Committee a resolution that, if approved, would
authorize an investigation of potential impeachment charges. See 79 Cong. Rec. 7086,
7106 (1935). Six days later, it adopted a resolution that granted the committee investiga-
tive powers in support of “the preliminary examinations deemed necessary” for the
committee to make a recommendation about whether a full investigation should occur. Id.
at 7393–94. The committee ultimately recommended against a full investigation. See H.R.
Rep. No. 74-1802, at 2 (1935).
28 See, e.g., 18 Annals of Cong. 1885–86, 2197–98 (1808) (Harry Innes, 1808; the
House passed a resolution authorizing an impeachment investigation, which concluded
36
House Committees’ Authority to Investigate for Impeachment
In 1970, in a rhetorical departure from well-established practice, a sub-
committee of the Judiciary Committee described itself as investigating the
impeachment of Justice William O. Douglas based solely upon an impeach-
ment resolution referred to the Judiciary Committee. See 116 Cong. Rec.
11920, 11942 (1970); 3 Deschler’s Precedents ch. 14, §§ 14.14−14.16, at
2151−64; see also Labovitz, Presidential Impeachment at 182 n.18 (not-
ing that “[t]he Douglas inquiry was the first impeachment investigation in
twenty-five years, and deviation from the older procedural pattern was not
surprising”). Yet, the subcommittee did not resort to any compulsory
process during its inquiry, and it did not recommend impeachment.
3 Deschler’s Precedents ch. 14, §§ 14.15−14.16, at 2158−63. According-
ly, the committee did not actually exercise any of the investigative powers
of the House.
In the late 1980s, the House Judiciary Committee considered the im-
peachment of three district-court judges without any express authorization
from the House: Walter Nixon, Alcee Hastings, and Harry Claiborne. See
In re Application of the Comm. on the Judiciary, 2019 WL 5485221, at
*26 (discussing these investigations). All three judges had been criminally
prosecuted, and two had been convicted. See H.R. Rep. No. 101-36, at
12–13 (1989) (describing Nixon’s prosecution and conviction); H.R. Rep.
No. 100-810, at 7−8, 29–31, 38–39 (1988) (describing Hastings’s indict-
ment and trial and the subsequent decision to proceed with a judicial-
misconduct proceeding in lieu of another prosecution); H.R. Rep. No. 99-
688, at 9, 17–20 (1986) (describing Claiborne’s prosecution and convic-
tion). In the Claiborne inquiry, the committee does not appear to have
that the evidence accompanying the resolution did not support impeachment); 3 Hinds’
Precedents § 2486, at 981–83 (George Turner, 1796; no apparent investigation, presuma-
bly because of the parallel criminal prosecution recommended by Attorney General Lee,
as discussed above); id. § 2488, at 985 (Harry Toulmin, 1811; the House “declined to
order a formal investigation”); 40 Annals of Cong. 463–69, 715–18 (1822–23) (Charles
Tait, 1823; no apparent investigation beyond examination of documents containing
charges); 3 Hinds’ Precedents § 2493, at 991–92 (Benjamin Johnson, 1833; no apparent
investigation); id. § 2511, at 1019–20 (Charles Sherman, 1873; the Judiciary Committee
received evidence from the Ways and Means Committee, which had been investigating
corruption in Congress, but the Judiciary Committee conducted no further investigation);
6 Cannon’s Precedents § 535, at 769 (Kenesaw Mountain Landis, 1921; the Judiciary
Committee reported that “charges were filed too late in the present session of the Con-
gress” to enable investigation); 3 Deschler’s Precedents ch. 14, § 14.6, at 2144–45
(Joseph Molyneaux, 1934; the Judiciary Committee took no action on the referral of a
resolution that would have authorized an investigation).
37
Opinions of the Office of Legal Counsel in Volume 44
issued any subpoenas. See H.R. Rep. No. 99-688, at 4 (noting that the
committee sent “[i]nvitational letters to all witnesses,” who apparently
cooperated to the Committee’s satisfaction). The committee did issue
subpoenas in the Nixon and Hastings investigations, yet no witness ap-
pears to have objected on the ground that the committee lacked jurisdic-
tion to issue the subpoenas, and at least one witness appears to have
requested a subpoena. 29 In those two cases, though, the Judiciary Commit-
tee effectively compelled production without any express authorization
from the House. 30
In the years after these outliers, the Judiciary Committee returned to the
practice of seeking specific authorization from the House before conduct-
ing impeachment investigations. Most notably, as discussed above, the
Judiciary Committee “decided that it must receive authorization from the
full House before proceeding” with an impeachment investigation of
President Clinton. H.R. Rep. No. 105-795, at 24 (emphasis added). And
the House has used the same practice with respect to federal judges. 31
Thus, in 2008, the House adopted a resolution authorizing the Judiciary
Committee to investigate the impeachment of Judge G. Thomas Porteous,
Jr., including the grant of subpoena authority. See H.R. Rep. No. 111-427,
at 7 (2010); H.R. Res. 1448, 110th Cong. (2008); 154 Cong. Rec. 19502
(2008). After the Congress expired, the House in the next Congress
29 See H.R. Rep. No. 100-810, at 11 & n.14 (stating that, in the Hastings investigation,
a committee subpoena had been issued for William Borders, who challenged the subpoena
on First, Fourth, Fifth, and Eighth Amendment grounds); H.R. Rep. No. 100-1124, at 130
(1989) (noting the issuance of “subpoenas duces tecum” in the investigation of Judge
Nixon); 134 Cong. Rec. 27782 (1988) (statement of Rep. Edwards) (explaining the
subcommittee’s need to depose some witnesses pursuant to subpoena in the Nixon
investigation); Judge Walter L. Nixon, Jr., Impeachment Inquiry: Hearing Before the
Subcomm. on Civil & Constitutional Rights of the H. Comm. on the Judiciary, 101st
Cong. 530–606 (1988) (reprinting deposition of Magistrate Judge Roper).
30 The House did pass resolutions authorizing funds for investigations with respect to
the Hastings impeachment, see H.R. Res. 134, 100th Cong. (1987); H.R. Res. 388, 100th
Cong. (1988), and resolutions authorizing the committee to permit its counsel to take
affidavits and depositions in both the Nixon and Hastings impeachments, see H.R. Res.
562, 100th Cong. (1988) (Nixon); H.R. Res. 320, 100th Cong. (1987) (Hastings).
31 In the post-1989 era, as before, most of the impeachment resolutions against judges
that were referred to the Judiciary Committee did not result in any further investigation.
See, e.g., H.R. Res. 916, 109th Cong. (2006) (Manuel Real); H.R. Res. 207, 103d Cong.
(1993) (Robert Collins); H.R. Res. 177, 103d Cong. (1993) (Robert Aguilar); H.R. Res.
176, 103d Cong. (1993) (Robert Collins).
38
House Committees’ Authority to Investigate for Impeachment
adopted a new resolution re-authorizing the inquiry, again with subpoena
authority. See H.R. Res. 15, 111th Cong. (2009); 155 Cong. Rec. 568, 571
(2009). Several months later, another district judge, Samuel Kent, pleaded
guilty to obstruction of justice and was sentenced to 35 months of incar-
ceration. See H.R. Rep. 111-159, at 9–13 (2009). The House then adopted
a resolution directing the Judiciary Committee to investigate impeach-
ment, again specifically granting subpoena authority. See id. at 13; H.R.
Res. 424, 111th Cong. (2009); 155 Cong. Rec. at 12211–13.
Thus, the House’s long-standing and nearly unvarying practice with
respect to judicial impeachment inquiries is consistent with the conclusion
that the power to investigate in support of the House’s “sole Power of
Impeachment,” U.S. Const. art. I, § 2, cl. 5, may not be exercised by a
committee without an express delegation from the House. In the cases of
Judges Nixon and Hastings, the Judiciary Committee did exercise com-
pulsory authority despite the absence of any delegation from the House.
But insofar as no party challenged the committee’s authority at the time,
and no court addressed the matter, these historical outliers do not under-
mine the broader constitutional principle. As the Supreme Court observed
in Noel Canning, “when considered against 200 years of settled practice,”
a “few scattered examples” are rightly regarded “as anomalies.” 573 U.S.
at 538. They do not call into question the soundness of the House’s oth-
erwise consistent historical practice, much less the constitutional require-
ment that a committee exercise the constitutional powers of the House
only with an express delegation from the House itself.
III.
Having concluded that a House committee may not conduct an im-
peachment investigation without a delegation of authority, we next con-
sider whether the House provided such a delegation to the Foreign Affairs
Committee or to the other committees that issued subpoenas pursuant to
the asserted impeachment inquiry. During the five weeks between the
Speaker’s announcement on September 24 and the adoption of Resolution
660 on October 31, the committees issued numerous impeachment-related
subpoenas. See supra note 9. We therefore provided advice during that
period about whether any of the committees had authority to issue those
subpoenas. Because the House had not adopted an impeachment resolu-
tion, the answer to that question turned on whether the committees could
issue those subpoenas based upon any preexisting subpoena authority.
39
Opinions of the Office of Legal Counsel in Volume 44
In justifying the subpoenas, the Foreign Affairs Committee and other
committees pointed to the resolution adopting the Rules of the House of
Representatives, which establish the committees and authorize investiga-
tions for matters within their jurisdiction. The committees claimed that
Rule XI confers authority to issue subpoenas in connection with an im-
peachment investigation. Although the House has expanded its commit-
tees’ authority in recent decades, the House Rules continue to reflect the
long-established distinction between legislative and non-legislative inves-
tigative powers. Those rules confer legislative oversight jurisdiction on
committees and authorize the issuance of subpoenas to that end, but they
do not grant authority to investigate for impeachment purposes. While the
House committees could have sought some information relating to the
same subjects in the exercise of their legislative oversight authority, the
subpoenas they purported to issue “pursuant to the House of Representa-
tives’ impeachment inquiry” were not in support of such oversight. We
therefore conclude that they were unauthorized.
A.
The standing committees of the House trace their general subpoena
powers back to the House Rules, which the 116th Congress adopted by
formal resolution. See H.R. Res. 6, 116th Cong. (2019). The House Rules
are more than 60,000 words long, but they do not include the word “im-
peachment.” The Rules’ silence on that topic is particularly notable when
contrasted with the Senate, which has adopted specific “Rules of Pro-
cedure and Practice” for impeachment trials. S. Res. 479, 99th Cong.
(1986). 32 The most obvious conclusion to draw from that silence is that
the current House, like its predecessors, retained impeachment authority
at the level of the full House, subject to potential delegations in resolu-
tions tailored for that purpose.
Rule XI of the Rules of the House affirmatively authorizes committees
to issue subpoenas, but only for matters within their legislative jurisdic-
tion. The provision has been a part of the House Rules since 1975. See
H.R. Res. 988, 93d Cong. § 301 (1974). Clause 2(m)(1) of Rule XI vests
32Unlike the House, “the Senate treats its rules as remaining in effect continuously
from one Congress to the next without having to be re-adopted.” Richard S. Beth, Cong.
Research Serv., R42929, Procedures for Considering Changes in Senate Rules 9 (Jan. 22,
2013). Of course, like the House, the Senate may change its rules by simple resolution.
40
House Committees’ Authority to Investigate for Impeachment
each committee with the authority to issue subpoenas “[f ]or the purpose
of carrying out any of its functions and duties under this rule and rule X
(including any matters referred to it under clause 2 of rule XII).” Rule XI,
cl. 2(m)(1); see also Rule X, cl. 11(d)(1) (making clause 2 of Rule XI
applicable to HPSCI). The committees therefore have subpoena power to
carry out their authorities under three rules: Rule X, Rule XI, and clause 2
of Rule XII.
Rule X does not provide any committee with jurisdiction over im-
peachment. Rule X establishes the “standing committees” of the House
and vests them with “their legislative jurisdictions.” Rule X, cl. 1. The
jurisdiction of each committee varies in subject matter and scope. While
the Committee on Ethics, for example, has jurisdiction over only “[t]he
Code of Official Conduct” (Rule X, cl. 1(g)), the jurisdiction of the For-
eign Affairs Committee spans seventeen subjects, including “[r]elations of
the United States with foreign nations generally,” “[i]ntervention abroad
and declarations of war,” and “[t]he American National Red Cross” (Rule
X, cl. 1(i)(1), (9), (15)). The rule likewise spells out the jurisdiction of the
Committee on Oversight and Reform (Rule X, cl. 1(n), cl. 3(i)), and the
jurisdiction of the Judiciary Committee (Rule X, cl. 1(l )). Clause 11 of
Rule X establishes HPSCI and vests it with jurisdiction over “[t]he Cen-
tral Intelligence Agency, the Director of National Intelligence, and the
National Intelligence Program” and over “[i]ntelligence and intelligence-
related activities of all other departments and agencies.” Rule X, cl.
11(a)(1), (b)(1)(A)–(B).
The text of Rule X confirms that it addresses the legislative jurisdiction
of the standing committees. After defining each standing committee’s
subject-matter jurisdiction, the Rule provides that “[t]he various standing
committees shall have general oversight responsibilities” to assist the
House in its analysis of “the application, administration, execution, and
effectiveness of Federal laws” and of the “conditions and circumstances
that may indicate the necessity or desirability of enacting new or addition-
al legislation,” as well as to assist the House in its “formulation, consider-
ation, and enactment of changes in Federal laws, and of such additional
legislation as may be necessary or appropriate.” Rule X, cl. 2(a)(1)–(2).
The committees are to conduct oversight “on a continuing basis” “to
determine whether laws and programs addressing subjects within the
jurisdiction of a committee” are implemented as Congress intends “and
whether they should be continued, curtailed, or eliminated.” Rule X, cl.
2(b)(1). Those are all functions traditionally associated with legislative
41
Opinions of the Office of Legal Counsel in Volume 44
oversight, not the separate power of impeachment. See supra Part II.A.
Clause 3 of Rule X further articulates “[s]pecial oversight functions” with
respect to particular subjects for certain committees; for example, the
Committee on Foreign Affairs “shall review and study on a continuing
basis laws, programs, and Government activities relating to . . . intelli-
gence activities relating to foreign policy,” Rule X, cl. 3(f ). And clause 4
addresses “[a]dditional functions of committees,” including functions
related to the review of appropriations and the special authorities of the
Committee on Oversight and Reform, Rule X, cl. 4(a)(1), (c)(1). But none
of the “[s]pecial oversight” or “[a]dditional” functions specified in clauses
3 and 4 includes any reference to the House’s impeachment power.
The powers of HPSCI are addressed in clause 11 of Rule X. Unlike the
standing committees, HPSCI is not given “[g]eneral oversight responsibil-
ities” in clause 2. But clause 3 gives it the “[s]pecial oversight functions”
of “review[ing] and study[ing] on a continuing basis laws, programs, and
activities of the intelligence community” and of “review[ing] and
study[ing] . . . the sources and methods of ” specified entities that engage
in intelligence activities. Rule X, cl. 3(m). And clause 11 further provides
that proposed legislation about intelligence activities will be referred to
HPSCI and that HPSCI shall report to the House “on the nature and extent
of the intelligence and intelligence-related activities of the various de-
partments and agencies of the United States.” Rule X, cl. 11(b)(1), (c)(1);
see also H.R. Res. 658, 95th Cong. § 1 (1977) (resolution establishing
HPSCI, explaining its purpose as “provid[ing] vigilant legislative over-
sight over the intelligence and intelligence-related activities of the United
States” (emphasis added)). Again, those powers sound in legislative
oversight, and nothing in the Rules suggests that HPSCI has any generic
delegation of the separate power of impeachment.
Consistent with the foregoing textual analysis, Rule X has been seen as
conferring legislative oversight authority on the House’s committees,
without any suggestion that impeachment authorities are somehow in-
cluded therein. The Congressional Research Service describes Rule X as
“contain[ing] the legislative and oversight jurisdiction of each standing
committee, several clauses on committee procedures and operations, and a
clause specifically addressing the jurisdiction and operation of the Perma-
nent Select Committee on Intelligence.” Michael L. Koempel & Judy
Schneider, Cong. Research Serv., R41605, House Standing Committees’
Rules on Legislative Activities: Analysis of Rules in Effect in the 114th
Congress 2 (Oct. 11, 2016); see also Dolan, Congressional Oversight
42
House Committees’ Authority to Investigate for Impeachment
Manual at 25 (distinguishing a committee inquiry with “a legislative
purpose” from inquiries conducted under “some other constitutional
power of Congress, such as the authority” to “conduct impeachment
proceedings”). In the chapter of Deschler’s Precedents devoted to ex-
plaining the “[i]nvestigations and [i]nquiries” by the House and its com-
mittees, the Parliamentarian repeatedly notes that impeachment investi-
gations and other non-legislative powers are discussed elsewhere. See
4 Deschler’s Precedents ch. 15, § 1, at 2283; id. § 14, at 2385 n.12; id.
§ 16, at 2403 & n.4.
Rule X concerns only legislative oversight, and Rule XI does not ex-
pand the committees’ subpoena authority any further. That rule rests upon
the jurisdiction granted in Rule X. See Rule XI, cl. 1(b)(1) (“Each com-
mittee may conduct at any time such investigations and studies as it
considers necessary or appropriate in the exercise of its responsibilities
under rule X.”). Nor does Rule XII confer any additional jurisdiction.
Clause 2(a) states that “[t]he Speaker shall refer each bill, resolution, or
other matter that relates to a subject listed under a standing committee
named in clause 1 of rule X[.]” Rule XII, cl. 2(a). The Speaker’s referral
authority under Rule XII is thus limited to matters within a committee’s
Rule X legislative jurisdiction. See 18 Deschler’s Precedents app. at 578
(“All committees were empowered by actual language of the Speaker’s
referral to consider only ‘such provisions of the measure as fall within
their respective jurisdictions under Rule X.’”). Accordingly, the Speaker
may not expand the jurisdiction of a committee by referring a bill or
resolution falling outside the committee’s Rule X authority. 33
In reporting Resolution 660 to the House, the Rules Committee ex-
pressed the view that clause 2(m) of Rule XI gave standing committees
the authority to issue subpoenas in support of impeachment inquiries. See
H.R. Rep. No. 116-266, at 18 (2019). But the committee did not explain
which terms of the rule provide such authority. To the contrary, the com-
mittee simply asserted that the rule granted such authority and that the
text of Resolution 660 departed from its predecessors on account of
amendments to clause 2(m) that were adopted after the “Clinton and
33 Nor do the Rules otherwise give the Speaker the authority to order an investigation
or issue a subpoena in connection with impeachment. Rule I sets out the powers of the
Speaker. She “shall sign . . . all writs, warrants, and subpoenas of, or issued by order of,
the House.” Rule I, cl. 4. But that provision applies only when the House itself issues an
order. See Jefferson’s Manual § 626, at 348.
43
Opinions of the Office of Legal Counsel in Volume 44
Nixon impeachment inquiry resolutions.” Id. Yet clause 2(m) of Rule XI
was adopted two decades before the Clinton inquiry. 34 Even with that
authority in place, the Judiciary Committee recognized in 1998 that it
“must receive authorization from the full House before proceeding” to
investigate President Clinton for impeachment purposes. H.R. Rep. No.
105-795, at 24 (emphasis added). And, even before Rule XI was adopted,
the House had conferred on the Judiciary Committee a materially similar
form of investigative authority (including subpoena power) in 1973. 35 The
Judiciary Committee nevertheless recognized that those subpoena powers
did not authorize it to conduct an impeachment inquiry about President
Nixon. In other words, the Rules Committee’s recent interpretation of
clause 2(m) (which it did not explain in its report) cannot be reconciled
with the Judiciary Committee’s well-reasoned conclusion, in both 1974
and 1998, that Rule XI (and its materially similar predecessor) do not
confer any standing authority to conduct an impeachment investigation.
In modern practice, the Speaker has referred proposed resolutions call-
ing for the impeachment of a civil officer to the Judiciary Committee.
See Jefferson’s Manual § 605, at 324. Consistent with this practice, the
Speaker referred the Sherman resolution (H.R. Res. 13, 116th Cong.) to
the Judiciary Committee, because it called for the impeachment of Presi-
dent Trump. Yet the referral itself did not grant authority to conduct an
impeachment investigation. House committees have regularly received
referrals and conducted preliminary inquiries, without compulsory pro-
34 Clause 2(m) of Rule XI was initially adopted on October 8, 1974, and took effect on
January 3, 1975. See H.R. Res. 988, 93d Cong. The rule appears to have remained materi-
ally unchanged from 1975 to the present (including during the time of the Clinton investi-
gation). See H.R. Rule XI, cl. 2(m), 105th Cong. (Jan. 1, 1998) (version in effect during
the Clinton investigation); Jefferson’s Manual § 805, at 586–89 (reprinting current
version and describing the provision’s evolution).
35 At the start of the 93rd Congress in 1973, the Judiciary Committee was “authorized
to conduct full and complete studies and investigations and make inquiries within its
jurisdiction as set forth in [the relevant provision] of the Rules of the House of Represent-
atives” and was empowered “to hold such hearings and require, by subpena or otherwise,
the attendance and testimony of such witnesses and the production of such books, records,
correspondence, memorandums, papers, and documents, as it deems necessary.” H.R. Res.
74, 93d Cong. §§ 1, 2(a) (1973); see also Cong. Research Serv., R45769, The Impeach-
ment Process in the House of Representatives 4 (updated Nov. 14, 2019) (noting that,
before Rule XI vested subpoena power in standing committees, the Judiciary Committee
and other committees had often been given subpoena authority “through resolutions
providing blanket investigatory authorities that were agreed to at the start of a Congress”).
44
House Committees’ Authority to Investigate for Impeachment
cess, for the purpose of determining whether to recommend that the
House open a formal impeachment investigation. See supra Part II.C.
Should a committee determine that a formal inquiry is warranted, then the
committee recommends that the House adopt a resolution that authorizes
such an investigation, confers subpoena power, and provides special
process to the target of the investigation. The Judiciary Committee fol-
lowed precisely that procedure in connection with the impeachment
investigations of Presidents Nixon and Clinton, among many others. By
referring an impeachment resolution to the House Judiciary Committee,
the Speaker did not expand that committee’s subpoena authority to cover
a formal impeachment investigation. In any event, no impeachment reso-
lution was ever referred to the Foreign Affairs Committee, HPSCI, or the
Committee on Oversight and Reform. Rule XII thus could not provide any
authority to those committees in support of the impeachment-related
subpoenas issued before October 31.
Accordingly, when those subpoenas were issued, the House Rules did
not provide authority to any of those committees to issue subpoenas in
connection with potential impeachment. In reaching this conclusion, we
do not question the broad authority of the House of Representatives to
determine how and when to conduct its business. See U.S. Const. art. I,
§ 5, cl. 2. As the Supreme Court has recognized, “‘all matters of method
are open to the determination’” of the House, “as long as there is ‘a rea-
sonable relation between the mode or method of proceeding established
by the rule and the result which is sought to be attained,’ and the rule does
not ‘ignore constitutional restraints or violate fundamental rights.’” Noel
Canning, 573 U.S. at 551 (quoting United States v. Ballin, 144 U.S. 1, 5
(1892)). The question, however, is not “what rules Congress may estab-
lish for its own governance,” but “rather what rules the House has estab-
lished and whether they have been followed.” Christoffel v. United States,
338 U.S. 84, 88–89 (1949); see also Yellin v. United States, 374 U.S. 109,
121 (1963) (stating that a litigant “is at least entitled to have the Commit-
tee follow its rules and give him consideration according to the standards
it has adopted in” the relevant rule); United States v. Smith, 286 U.S. 6, 33
(1932) (“As the construction to be given to the rules affects persons other
than members of the Senate, the question presented is of necessity a
judicial one.”). Statements by the Speaker or by committee chairmen are
not statements of the House itself. Cf. Noel Canning, 573 U.S. at 552–53
(relying on statements and actions of the Senate itself, as reflected in the
Journal of the Senate and the Congressional Record, to determine when
45
Opinions of the Office of Legal Counsel in Volume 44
the Senate was “in session”). Our conclusion here turned upon nothing
more, and nothing less, than the rules and resolutions that had been adopt-
ed by a majority vote of the full House. 36
The text of those provisions determined whether the House had dele-
gated the necessary authority. See id. at 552 (“[O]ur deference to the
Senate cannot be absolute. When the Senate is without the capacity to act,
under its own rules, it is not in session even if it so declares.”). Thus, the
Supreme Court has repeatedly made clear that a target of the House’s
compulsory process may question whether a House resolution has actually
conferred the necessary powers upon a committee, because the commit-
tee’s “right to exact testimony and to call for the production of documents
must be found in [the resolution’s] language.” Rumely, 345 U.S. at 44; see
also Watkins, 354 U.S. at 201. In Rumely, the Court expressly rejected the
argument that the House had confirmed the committee’s jurisdiction by
adopting a resolution that merely held the witness in contempt after the
fact. As the Court explained, what was said “after the controversy had
arisen regarding the scope of the resolution . . . had the usual infirmity of
post litem motam, self-serving declarations.” 345 U.S. at 48. In other
words, even a vote of the full House could not “enlarge[]” a committee’s
authority after the fact for purposes of finding that a witness had failed to
comply with the obligations imposed by the subpoena. Id.
Here, the House committees claiming to investigate impeachment is-
sued subpoenas before they had received any actual delegation of im-
peachment-related authority from the House. Before October 31, the
committees relied solely upon statements of the Speaker, the committee
chairmen, and the Judiciary Committee, all of which merely asserted that
one or more House committees had already been conducting a formal
impeachment inquiry. There was, however, no House resolution actually
delegating such authority to any committee, let alone one that did so with
36 The Judiciary Committee has also invoked House Resolution 430 as an independent
source of authority for an impeachment inquiry. See Tr. of Mot. Hrg. at 91–92, In re
Application of the Comm. on the Judiciary; see also Majority Staff of H. Comm. on the
Judiciary, 116th Cong., Constitutional Grounds for Presidential Impeachment 39 (Dec.
2019). As discussed above, however, that resolution did not confer any investigative
authority. Rather, it granted “any and all necessary authority under Article I” only “in
connection with” certain “judicial proceeding[s]” in federal court. H.R. Res. 430, 116th
Cong. (2019); see supra note 7. The resolution therefore had no bearing on any commit-
tee’s authority to compel the production of documents or testimony in an impeachment
investigation.
46
House Committees’ Authority to Investigate for Impeachment
“sufficient particularity” to compel witnesses to respond. Watkins, 354
U.S. at 201; cf. Gojack v. United States, 384 U.S. 702, 716–17 (1966). At
the opening of this Congress, the House had not chosen to confer investi-
gative authority over impeachment upon any committee, and therefore, no
House committee had authority to compel the production of documents or
testimony in furtherance of an impeachment inquiry that it was not au-
thorized to conduct.
B.
Lacking a delegation from the House, the committees could not compel
the production of documents or the testimony of witnesses for purposes of
an impeachment inquiry. Because the first impeachment-related subpoena
—the September 27 subpoena from the Foreign Affairs Committee—
rested entirely upon the purported impeachment inquiry, see Three
Chairmen’s Letter, supra note 2, at 1, it was not enforceable. See, e.g.,
Rumely, 345 U.S. at 44. Perhaps recognizing this infirmity, the committee
chairmen invoked not merely the impeachment inquiry in connection with
subsequent impeachment-related subpoenas but also the committees’
“oversight and legislative jurisdiction.” See supra note 9 and accompany-
ing text. That assertion of dual authorities presented the question whether
the committees could leverage their oversight jurisdiction to require the
production of documents and testimony that the committees avowedly
intended to use for an unauthorized impeachment inquiry. We advised
that, under the circumstances of these subpoenas, the committees could
not do so.
Any congressional inquiry “must be related to, and in furtherance of, a
legitimate task of the Congress.” Watkins, 354 U.S. at 187. The Executive
Branch need not presume that such a purpose exists or accept a “make-
weight” assertion of legislative jurisdiction. Mazars USA, 940 F.3d at
725–26, 727; see also Shelton v. United States, 404 F.2d 1292, 1297 (D.C.
Cir. 1968) (“In deciding whether the purpose is within the legislative
function, the mere assertion of a need to consider ‘remedial legislation’
may not alone justify an investigation accompanied with compulsory
process[.]”). Indeed, “an assertion from a committee chairman may not
prevent the Executive from confirming the legitimacy of an investigative
request.” Congressional Committee’s Request for the President’s Tax
Returns Under 26 U.S.C. § 6103( f ), 43 Op. O.L.C. __, at *20 (June 13,
2019). To the contrary, “a threshold inquiry that should be made upon
47
Opinions of the Office of Legal Counsel in Volume 44
receipt of any congressional request for information is whether the request
is supported by any legitimate legislative purpose.” Response to Congres-
sional Requests for Information Regarding Decisions Made Under the
Independent Counsel Act, 10 Op. O.L.C. 68, 74 (1986); see also Congres-
sional Requests for Confidential Executive Branch Information, 13 Op.
O.L.C. 153, 159 (1989) (recognizing that the constitutionally mandated
accommodation process “requires that each branch explain to the other
why it believes its needs to be legitimate”).
Here, the committee chairmen made clear upon issuing the subpoenas
that the committees were interested in the requested materials to support
an investigation into the potential impeachment of the President, not to
uncover information necessary for potential legislation within their re-
spective areas of legislative jurisdiction. In marked contrast with routine
oversight, each of the subpoenas was accompanied by a letter signed by
the chairs of three different committees, who transmitted a subpoena
“[p]ursuant to the House of Representatives’ impeachment inquiry” and
recited that the documents would “be collected as part of the House’s
impeachment inquiry,” and that they would be “shared among the Com-
mittees, as well as with the Committee on the Judiciary as appropriate.”
See supra note 9 and accompanying text. Apart from their token invoca-
tions of “oversight and legislative jurisdiction,” the letters offered no hint
of any legislative purpose. The committee chairmen were therefore seek-
ing to do precisely what they said—compel the production of information
to further an impeachment inquiry.
In reaching this conclusion, we do not foreclose the possibility that the
Foreign Affairs Committee or the other committees could have issued
similar subpoenas in the bona fide exercise of their legislative oversight
jurisdiction, in which event the requests would have been evaluated
consistent with the long-standing confidentiality interests of the Executive
Branch. See Watkins, 354 U.S. at 187 (recognizing that Congress’s gen-
eral investigative authority “comprehends probes into departments of the
Federal Government to expose corruption, inefficiency or waste”);
McGrain, 273 U.S. at 179–80 (observing that it is not “a valid objection
to the investigation that it might possibly disclose crime or wrongdoing on
[the Attorney General’s] part”). Should the Foreign Affairs Committee, or
another committee, articulate a legitimate oversight purpose for a future
information request, the Executive Branch would assess that request as
part of the constitutionally required accommodation process. But the
Executive Branch was not confronted with that situation. The committee
48
House Committees’ Authority to Investigate for Impeachment
chairmen unequivocally attempted to conduct an impeachment inquiry
into the President’s actions, without the House, which has the “sole Power
of Impeachment,” having authorized such an investigation. Absent such
an authorization, the committee chairs’ passing mention of “oversight and
legislative jurisdiction” did not cure that fundamental defect.
C.
We next address whether the House ratified any of the previous com-
mittee subpoenas when it adopted Resolution 660 on October 31, 2019—
after weeks of objections from the Executive Branch and many members
of Congress to the committees’ efforts to conduct an unauthorized im-
peachment inquiry. Resolution 660 provides that six committees of the
House “are directed to continue their ongoing investigations as part of the
existing House of Representatives inquiry into whether sufficient grounds
exist for the House of Representatives to exercise its Constitutional power
to impeach Donald John Trump, President of the United States of Ameri-
ca.” Resolution 660, § 1. The resolution further prescribes certain proce-
dures by which HPSCI and the Judiciary Committee may conduct hear-
ings in connection with the investigation defined by that resolution.
Resolution 660 does not speak at all to the committees’ past actions or
seek to ratify any subpoena previously issued by the House committees.
See Trump v. Mazars USA, LLP, 941 F.3d 1180, 1182 (D.C. Cir. 2019)
(Rao, J., dissenting from the denial of rehearing en banc); see also Exclu-
sion of Agency Counsel from Congressional Depositions in the Impeach-
ment Context, 43 Op. O.L.C. __, at *5 (Nov. 1, 2019). The resolution
“direct[s]” HPSCI and other committees to “continue” their investiga-
tions, and the Rules Committee apparently assumed, incorrectly in our
view, that earlier subpoenas were legally valid. See H.R. Rep. No. 116-
266, at 3 (“All subpoenas to the Executive Branch remain in full force.”).
But the resolution’s operative language does not address any previously
issued subpoenas or provide the imprimatur of the House to give those
subpoenas legal force.
And the House knows how to ratify existing subpoenas when it chooses
to do so. 37 On July 24, 2019, the House adopted a resolution that express-
37 Even if the House had sought to ratify a previously issued subpoena, it could give
that subpoena only prospective effect. As discussed above, the Supreme Court has
recognized that the House may not cite a witness for contempt for failure to comply with
49
Opinions of the Office of Legal Counsel in Volume 44
ly “ratif [ied] and affirm[ed] all current and future investigations, as well
as all subpoenas previously issued or to be issued in the future,” related to
certain enumerated subjects within the jurisdiction of standing or select
committees of the House “as established by the Constitution of the United
States and rules X and XI of the Rules of the House of Representatives.”
H.R. Res. 507, 116th Cong. § 1 (2019) (emphasis added). There, as here,
the House acted in response to questions regarding “the validity of . . .
[committee] investigations and subpoenas.” Id. pmbl. Despite that recent
model, Resolution 660 contains no comparable language seeking to ratify
previously issued subpoenas. The resolution directs certain committees to
“continue” investigations, and it specifies procedures to govern future
hearings, but nothing in the resolution looks backward to actions previ-
ously taken. Accordingly, Resolution 660 did not ratify or otherwise
authorize the impeachment-related subpoenas issued before October 31,
which therefore still had no compulsory effect on their recipients.
IV.
Finally, we address some of the consequences that followed from our
conclusion that the committees’ pre-October 31 impeachment-related
subpoenas were unauthorized. First, because the subpoenas exceeded the
committees’ investigative authority and lacked compulsory effect, the
committees were mistaken in contending that the recipients’ “failure or
refusal to comply with the subpoena [would] constitute evidence of ob-
struction of the House’s impeachment inquiry.” Three Chairmen’s Letter,
supra note 2, at 1. 38 As explained at length above, when the subpoenas
were issued, there was no valid impeachment inquiry. To the extent that
the committees’ subpoenas sought information in support of an unauthor-
ized impeachment inquiry, the failure to comply with those subpoenas
was no more punishable than were the failures of the witnesses in Wat-
kins, Rumely, Kilbourn, and Lamont to answer questions that were beyond
a subpoena unsupported by a valid delegation of authority at the time it was issued. See
Rumely, 345 U.S. at 48; see also Exxon, 589 F.2d at 592 (“To issue a valid subpoena, . . .
a committee or subcommittee must conform strictly to the resolution establishing its
investigatory powers[.]”).
38 The letters accompanying other subpoenas, see supra note 9, contained similar
threats that the recipients’ “failure or refusal to comply with the subpoena, including at
the direction or behest of the President,” would constitute “evidence of obstruction of the
House’s impeachment inquiry.”
50
House Committees’ Authority to Investigate for Impeachment
the scope of those committees’ authorized jurisdiction. See Watkins, 354
U.S. at 206, 215 (holding that conviction for contempt of Congress was
invalid because, when the witness failed to answer questions, the House
had not used sufficient “care . . . in authorizing the use of compulsory
process” and the committee had not shown that the information was
pertinent to a subject within “the mission[] delegated to” it by the House);
Rumely, 345 U.S. at 42–43, 48 (affirming reversal of conviction for con-
tempt of Congress because it was not clear at the time of questioning that
“the committee was authorized to exact the information which the witness
withheld”); Kilbourn, 103 U.S. at 196 (sustaining action brought by
witness for false imprisonment because the committee “had no lawful
authority to require Kilbourn to testify as a witness beyond what he vol-
untarily chose to tell”); Lamont, 18 F.R.D. at 37 (dismissing indictment
for contempt of Congress in part because the indictment did not suffi-
ciently allege, among other things, “that the [Permanent Subcommittee on
Investigations] . . . was duly empowered by either House of Congress to
conduct the particular inquiry” or “that the inquiry was within the scope
of the authority granted to the [sub]committee”). That alone suffices to
prevent noncompliance with the subpoenas from constituting “obstruction
of the House’s impeachment inquiry.”
Second, we note that whether or not the impeachment inquiry was au-
thorized, there were other, independent grounds to support directions by
the Executive Branch that witnesses not appear in response to the commit-
tees’ subpoenas. We recently advised you that executive privilege contin-
ues to be available during an impeachment investigation. See Exclusion of
Agency Counsel from Congressional Depositions in the Impeachment
Context, 43 Op. O.L.C. __, at *2–5. The mere existence of an impeach-
ment investigation does not eliminate the President’s need for confidenti-
ality in connection with the performance of his duties. Just as in the
context of a criminal trial, a dispute over a request for privileged infor-
mation in an impeachment investigation must be resolved in a manner that
“preserves the essential functions of each branch.” United States v. Nixon,
418 U.S. 683, 707 (1974). Thus, while a committee “may be able to
establish an interest justifying its requests for information, the Executive
Branch also has legitimate interests in confidentiality, and the resolution
of these competing interests requires a careful balancing of each branch’s
need in the context of the particular information sought.” Exclusion of
Agency Counsel from Congressional Depositions in the Impeachment
Context, 43 Op. O.L.C. __, at *4.
51
Opinions of the Office of Legal Counsel in Volume 44
Accordingly, we recognized, in connection with HPSCI’s impeachment
investigation after October 31, that the committee may not compel an
executive branch witness to appear for a deposition without the assistance
of agency counsel, when that counsel is necessary to assist the witness in
ensuring the appropriate protection of privileged information during the
deposition. See id. at *4–5. In addition, we have concluded that the testi-
monial immunity of the President’s senior advisers “applies in an im-
peachment inquiry just as it applies in a legislative oversight inquiry.”
Letter for Pat A. Cipollone, Counsel to the President, from Steven A.
Engel, Assistant Attorney General, Office of Legal Counsel at 2 (Nov. 3,
2019).
Thus, even when the House takes the steps necessary to authorize a
committee to investigate impeachment and compel the production of
needed information, the Executive Branch continues to have legitimate
interests to protect. The Constitution does not oblige either branch of
government to surrender its legitimate prerogatives, but expects that each
branch will negotiate in good faith with mutual respect for the needs of
the other branch. See United States v. Am. Tel. & Tel. Co., 567 F.2d 121,
127 (D.C. Cir. 1977) (“[E]ach branch should take cognizance of an im-
plicit constitutional mandate to seek optimal accommodation through a
realistic evaluation of the needs of the conflicting branches in the particu-
lar fact situation.”); see also Memorandum for the Heads of Executive
Departments and Agencies from President Ronald Reagan, Re: Proce-
dures Governing Responses to Congressional Requests for Information
(Nov. 4, 1982). The two branches should work to identify arrangements in
the context of the particular requests of an investigating committee that
accommodate both the committee’s needs and the Executive Branch’s
interests.
For these reasons, the House cannot plausibly claim that any executive
branch official engaged in “obstruction” by failing to comply with com-
mittee subpoenas, or directing subordinates not to comply, in order to
protect the Executive Branch’s legitimate interests in confidentiality and
the separation of powers. We explained thirty-five years ago that “the
Constitution does not permit Congress to make it a crime for an official to
assist the President in asserting a constitutional privilege that is an inte-
gral part of the President’s responsibilities under the Constitution.” Pros-
ecution for Contempt of Congress of an Executive Branch Official Who
Has Asserted a Claim of Executive Privilege, 8 Op. O.L.C. 101, 140
(1984). Nor may Congress “utilize its inherent ‘civil’ contempt powers to
52
House Committees’ Authority to Investigate for Impeachment
arrest, bring to trial, and punish an executive official who assert[s] a
Presidential claim of executive privilege.” Id. at 140 n.42. We have re-
affirmed those fundamental conclusions in each of the subsequent dec-
ades. 39
The constitutionally required accommodation process, of course, is a
two-way street. In connection with this investigation, the House commit-
tees took the unprecedented steps of investigating the impeachment of a
President without any authorization from the full House; without the
procedural protections provided to Presidents Nixon and Clinton, see
supra note 12; and with express threats of obstruction charges and uncon-
stitutional demands that officials appear and provide closed-door testimo-
ny about privileged matters without the assistance of executive branch
counsel. Absent any effort by the House committees to accommodate the
Executive Branch’s legitimate concerns with the unprecedented nature of
the committees’ actions, it was reasonable for executive branch officials
to decline to comply with the subpoenas addressed to them.
V.
For the reasons set forth above, we conclude that the House must ex-
pressly authorize a committee to conduct an impeachment investigation
and to use compulsory process in that investigation before the committee
39 See, e.g., Attempted Exclusion of Agency Counsel from Congressional Depositions of
Agency Employees, 43 Op. O.L.C. __, at *14 (May 23, 2019) (“[I]t would be unconstitu-
tional to enforce a subpoena against an agency employee who declined to appear before
Congress, at the agency’s direction, because the committee would not permit an agency
representative to accompany him.”); Testimonial Immunity Before Congress of the
Former Counsel to the President, 43 Op. O.L.C. __, at *20 (May 20, 2019) (“The consti-
tutional separation of powers bars Congress from exercising its inherent contempt power
in the face of a presidential assertion of executive privilege.”); Whether the Department of
Justice May Prosecute White House Officials for Contempt of Congress, 32 Op. O.L.C.
65, 65–69 (2008) (concluding that the Department cannot take “prosecutorial action, with
respect to current or former White House officials who . . . declined to appear to testify, in
response to subpoenas from a congressional committee, based on the President’s assertion
of executive privilege”); Application of 28 U.S.C. § 458 to Presidential Appointments of
Federal Judges, 19 Op. O.L.C. 350, 356 (1995) (“[T]he criminal contempt of Congress
statute does not apply to the President or presidential subordinates who assert executive
privilege.”); see also Authority of Agency Officials to Prohibit Employees from Providing
Information to Congress, 28 Op. O.L.C. 79, 80–82 (2004) (explaining that the Executive
Branch has the constitutional authority to supervise its employees’ disclosure of privi-
leged and other information to Congress).
53
Opinions of the Office of Legal Counsel in Volume 44
may compel the production of documents or testimony in support of the
House’s “sole Power of Impeachment.” U.S. Const. art. I, § 2, cl. 5. The
House had not authorized such an investigation in connection with the
impeachment-related subpoenas issued before October 31, 2019, and the
subpoenas therefore had no compulsory effect. The House’s adoption of
Resolution 660 did not alter the legal status of those subpoenas, because
the resolution did not ratify them or otherwise address their terms.
STEVEN A. ENGEL
Assistant Attorney General
Office of Legal Counsel
54
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292 So.2d 656 (1974)
DOTHAN-HOUSTON COUNTY AIRPORT AUTHORITY, INC.
v.
C. E. HORNE et al.
SC 436, 436A, 436B.
Supreme Court of Alabama.
April 4, 1974.
*657 C. R. Lewis, Dothan, for appellant.
Charles L. Woods, Ozark, for appellees.
JONES, Justice.
These are three consolidated appeals arising out of awards of compensation to the property owners in condemnation proceedings brought by Dothan-Houston County Airport, Appellant. The assignments of errorraising the sole issue dispositive of each appealclaim error in the overruling of motions for new trials on the ground of excessiveness of the verdicts. Finding no error to reverse, we affirm.
The facts are simple. The property owners' property lies at the very end of one of the jet runways; and, in ascending and descending, the planes travel on an angle 30-60 feet from the surface over plaintiffs' property. It is the air space above the line formed by this angle which the Airport sought to condemn. This is known as an avigation easement. It is not a fee but a perpetual right of use. The only right of access acquired to the surface is the right to go onto the property and cut the top of the trees at the low point of the easement acquired, which in itself does little or no harm to the property; and the property owners do not contend otherwise.
Two points are contended by the property owners as affecting the "before and after" value of their property caused by the low-flying aircraft:
1. Improvements are limited to one story.
2. The use and enjoyment of the property is materially affected by the noise and vibration.
Involved are three tracts of land consisting of approximately four acres, three acres, and one acre, respectively. Only *658 tract three has improvements of any substantial valuea reasonably modern seven-room residence. Expert testimony on behalf of the Airport is to the effect that each of the tracts is mere rural property best suited for farming, and that the avigation easement constitutes only nominal depreciation in value. None of the Airport witnesses went onto the property, witnessed the air space in use, or talked with any of the residents in the immediate area concerning the noise or vibration caused by the planes. They merely rode by and viewed it from their cars; and each admitted that the only element of damage which he took into account in arriving at his estimate of depreciated value was the fact that the easement gave the Airport the right to come onto the property and cut the tree tops that protruded into the condemned space.
The property owners' expert testimony takes the position basically that the properties' best and highest use is for industrial and commercial purposes. Lay witnesses, neighbors, also describe in rather vivid detail the annoyance and inconvenience caused by the coming and going of aircraft just over their roof tops.
The appellant in an excellent brief, under "Statement of the Facts," summarizes the testimony of an adjoining landowner thusly:
"I have been living there for 29 years and I am definitely aware of the air traffic over my home and the home of Mrs. Horne. It's hard to describe what happens when a jet aircraft or other aircraft flies over my property to land on the north-south runway. First of all, it effects the way of tension in your body, the noise is unbearable, the dishes in the kitchen rattle, the windows rattle, and there is no such thing as watching TV or carrying on a normal conversation with anyone. We've had windows cracked and plumbing trouble caused by the airplanes. They cause our pictures to be disarranged and there's smoke damage. Over a period of time it's especially bad on the windows and it's very hard to clean and it's very noticeable on the paint work of the house. Very often the lights of approaching planes shine right in our bedroom and, of course, the noise will awaken you."
The highest estimate of the total difference in the "before and after" value of all three tracts given by any witness on behalf of the Airport is $8,900, and the lowest is $2,500. The lowest such estimate on behalf of the property owners is $33,000 and the highest is $81,467. The jury, under supervision of the Court, was permitted to view the property in question.
The verdicts are:
Tract #1 $24,000
Tract #2 6,000
Tract #3 11,500
_______
TOTAL $41,500
Our research discloses that this is the first avigation easement case ever reviewed by this Court.[1] The record of the proceedings below reveals that the trial Court applied, and we think correctly, the well-established principles governing the measure of damages in eminent domain cases generally.[2]
The alleged error on the ground of excessiveness of the verdicts invokes two equally well-established rules of appellate review: (1) The action of the trial Court in overruling a motion for a new trial is due to be affirmed unless the verdict is unsupported by competent evidence, or (2) that the verdict is against the preponderance of the evidence or is palpably wrong *659 and manifestly unjust. Renfroe v. Weaver, 285 Ala. 1, 228 So.2d 764 (1969).
These two rules (or, perhaps more accurately, two aspects of the same rule) must be applied in the context of condemnation cases where the verdicts are well within the outer ranges of the "before and after" evaluations.
In State v. Burroughs, 285 Ala. 177, 230 So.2d 235 (1970), in which the jury had heard testimony by condemnor's witnesses that the difference in value after the taking was between $1,880 and $2,600, and testimony by condemnee's witnesses for between $15,000 and $22,000, before awarding a judgment for $18,000, Justice Simpson stated the proposition that:
"Where there is a conflict as to the amount of damages sustained as a result of condemnation procedures, a presumption will be indulged in favor of the findings made at the trial level. [Cases cited omitted.] Here the amount of the award was peculiarly the prerogative of the jury to determine."
Such weight is given the jury's determination of damages that the only instances in which this Court has ruled condemnation awards excessive are those in which the awards have been greater than any testimony adduced. State v. Walker, 281 Ala. 182, 200 So.2d 482 (1967); State v. Crawford, 277 Ala. 568, 173 So.2d 109 (1965). Likewise, where the award is lower than the lowest amount fixed by the testimony, no error is committed in the granting of a motion for a new trial. State v. Edmundson, 282 Ala. 293, 210 So.2d 926 (1968).
Where the verdicts and the judgments entered thereon, as in these cases, are supported by competent evidence, we cannot say that these verdicts were reached on account of bias, passion, corruption or other improper motive or cause. Airheart v. Green, 267 Ala. 689, 104 So.2d 687 (1958); Yarbrough v. Mallory, 225 Ala. 579, 144 So. 447 (1932).
Nor can we say that the awards are so excessive as to warrant the belief that the jury must have been misled by some mistaken view of the merits of the case. See National Surety Co. v. Mabry, 139 Ala. 217, 35 So. 698 (1903).
Moreover, the presumption of correctness of the jury's verdict is strengthened when the jury itself viewed the land in question. Gordon v. State, 273 Ala. 213, 137 So.2d 752 (1962); State v. Long, 269 Ala. 270, 112 So.2d 480 (1959). We are unwilling to substitute our subjective judgment for that of the jury.
The assignments of error raises one additional point worthy of our consideration. The Airport contends that the trial Court erred in sustaining objection to the following question on cross examination of the property owner: "And in so assessing, did you sign the tax assessment sheets when you swore as to the value of the property?"
Appellant contends that where the tax assessment records show that the property owner participated in the fixing of value, or swore as to the value of subject property for purposes of taxation, evidence of such action is admissible on cross examination, not as proof of value, but as an admission against interest. While this is a correct statement of the rule (Dean v. County Board of Education, 210 Ala. 256, 97 So. 741 (1923), it does not support this contention of error in the instant context as urged by appellant. The question posed assumes a fact not in evidence: viz., "... when you swore as to the value of the property?" The 1951 Revenue Code (Title 51, Code of Alabama 1940, as amended) prescribes the precise language of the oath to be administered before the return is made (§ 40), as well as the oath to be used on the bottom of the assessment sheet (§ 43); and neither of these oaths contains any language "as to the value of the property." Indeed, § 45 states, "... but nothing in this title shall be construed as requiring the taxpayer to *660 make oath as to the value of the property." See also McElroy, Law of Evidence in Alabama, V. 2, pp. 314-315.
By virtue of this statute, then, the two parts of the question (i.e., 1. "Did you sign the assessment sheets?" and 2. "when you swore to the value?") are incongruous; and, therefore, the Court did not err in sustaining the objection.
Affirmed.
MERRILL, BLOODWORTH, McCALL and FAULKNER, JJ., and LAWSON, Supernumerary Judge, concur.
HEFLIN, C. J., and COLEMAN and MADDOX, JJ., concur in result.
NOTES
[1] For excellent treatises in this field, see East, Avigation Easements, and Clearance Easements, 25 Baylor L.Rev. 511 (1973); and Bohannon, Airport Easements, 54 Va.L.Rev. 355 (1968). See also United States v. Brondum, 272 F.2d 642 (5th Cir., 1959).
[2] See Alabama Pattern Jury Instructions Civil, Eminent Domain 14.00.
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Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
06/28/2019 12:06 AM CDT
- 100 -
Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
STATE v. MANJIKIAN
Cite as 303 Neb. 100
State of Nebraska, appellee, v.
Vazgen M anjikian, appellant.
___ N.W.2d ___
Filed May 10, 2019. No. S-18-858.
1. Pleas: Appeal and Error. A trial court is afforded discretion in deciding
whether to accept guilty pleas, and an appellate court will reverse the
trial court’s determination only in case of an abuse of discretion.
2. Sentences: Appeal and Error. An appellate court will not disturb a sen-
tence imposed within the statutory limits absent an abuse of discretion
by the trial court.
3. Judges: Words and Phrases. A judicial abuse of discretion exists when
the reasons or rulings of a trial judge are clearly untenable, unfairly
depriving a litigant of a substantial right and denying just results in mat-
ters submitted for disposition.
4. Effectiveness of Counsel: Appeal and Error. Whether a claim of inef-
fective assistance of trial counsel may be determined on direct appeal is
a question of law.
5. ____: ____. In reviewing claims of ineffective assistance of counsel on
direct appeal, an appellate court decides only whether the undisputed
facts contained within the record are sufficient to conclusively deter-
mine whether counsel did or did not provide effective assistance and
whether the defendant was or was not prejudiced by counsel’s alleged
deficient performance.
6. Pleas. To support a finding that a defendant has entered a guilty plea
freely, intelligently, voluntarily, and understandingly, a court must inform
a defendant about (1) the nature of the charge, (2) the right to assistance
of counsel, (3) the right to confront witnesses against the defendant, (4)
the right to a jury trial, and (5) the privilege against self-incrimination.
The record must also establish a factual basis for the plea and that the
defendant knew the range of penalties for the crime charged.
7. Double Jeopardy. The Double Jeopardy Clause protects against three
distinct abuses: (1) a second prosecution for the same offense after
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303 Nebraska R eports
STATE v. MANJIKIAN
Cite as 303 Neb. 100
acquittal, (2) a second prosecution for the same offense after conviction,
and (3) multiple punishments for the same offense.
8. Double Jeopardy: Juries: Evidence: Pleas. In Nebraska, jeopardy
attaches (1) in a case tried to a jury, when the jury is impaneled and
sworn; (2) when a judge, hearing a case without a jury, begins to hear
evidence as to the guilt of the defendant; or (3) at the time the trial court
accepts the defendant’s guilty plea.
9. Double Jeopardy: Legislature: Intent: Sentences. Where the
Legislature has demonstrated an intent to permit cumulative punish-
ments, the Double Jeopardy Clause is not violated as long as the cumu-
lative punishments are imposed in a single proceeding.
10. Waiver: Constitutional Law: Intent: Presumptions: Words and
Phrases. A waiver is ordinarily an intentional relinquishment or aban-
donment of a known right or privilege, and courts indulge every reason-
able presumption against waiver of fundamental constitutional rights.
11. Waiver. The determination of whether there has been an intelligent
waiver of a right must depend, in each case, upon the particular facts
and circumstances surrounding that case, including the background,
experience, and conduct of the accused.
12. Pleas: Waiver. The voluntary entry of a guilty plea or a plea of no con-
test waives every defense to a charge, whether the defense is procedural,
statutory, or constitutional.
13. Sentences. When imposing a sentence, the sentencing court is to con-
sider the defendant’s (1) age, (2) mentality, (3) education and experi-
ence, (4) social and cultural background, (5) past criminal record or
record of law-abiding conduct, and (6) motivation for the offense, as
well as (7) the nature of the offense, and (8) the amount of violence
involved in the commission of the crime. The sentencing court is not
limited to any mathematically applied set of factors.
14. ____. The appropriateness of a sentence is necessarily a subjective
judgment and includes the sentencing judge’s observation of the defend
ant’s demeanor and attitude and all the facts and circumstances sur-
rounding the defendant’s life.
15. Effectiveness of Counsel: Proof. To prevail on a claim of ineffective
assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104
S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the defendant must show that
counsel’s performance was deficient and that this deficient performance
actually prejudiced his or her defense.
16. Postconviction: Pleas: Waiver: Effectiveness of Counsel. Normally,
a voluntary guilty plea waives all defenses to a criminal charge.
However, in a postconviction proceeding brought by a defendant con-
victed because of a guilty plea or a plea of no contest, a court will
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303 Nebraska R eports
STATE v. MANJIKIAN
Cite as 303 Neb. 100
consider an allegation that the plea was the result of ineffective assist
ance of counsel.
17. Convictions: Effectiveness of Counsel: Pleas: Proof. When a convic-
tion is based upon a guilty plea, the prejudice requirement for an inef-
fective assistance of counsel claim is satisfied if the defendant shows a
reasonable probability that but for the errors of counsel, the defendant
would have insisted on going to trial rather than pleading guilty.
18. Effectiveness of Counsel: Records: Appeal and Error. The fact that
an ineffective assistance of counsel claim is raised on direct appeal does
not necessarily mean that it can be resolved on direct appeal. The deter-
mining factor is whether the record is sufficient to adequately review
the question.
19. Trial: Effectiveness of Counsel: Evidence: Appeal and Error. An
ineffective assistance of counsel claim will not be resolved on direct
appeal if it requires an evidentiary hearing.
Appeal from the District Court for Lancaster County: Susan
I. Strong, Judge. Affirmed.
Jason E. Troia, of Dornan, Troia, Howard, Breitkreutz &
Conway, P.C., L.L.O., for appellant.
Douglas J. Peterson, Attorney General, and Melissa R.
Vincent for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Heavican, C.J.
INTRODUCTION
Following a traffic stop in Lancaster County, Nebraska,
Vazgen Manjikian was charged by information with possession
of a controlled substance, a Class IV felony. During the course
of the traffic stop, an amount of amphetamine, a Schedule
II controlled substance, was located, along with $234,956.
Pursuant to a plea agreement, Manjikian was charged by
amended information with one count of attempted possession
of a controlled substance, a Class I misdemeanor. Manjikian
now appeals his conviction and sentence on various constitu-
tional grounds. We affirm.
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303 Nebraska R eports
STATE v. MANJIKIAN
Cite as 303 Neb. 100
BACKGROUND
On January 24, 2018, a Lancaster County sheriff’s deputy
observed a vehicle, bearing New York license plates, traveling
westbound on Interstate 80 at mile marker 394 in Lancaster
County. The deputy noted that the vehicle was following
another vehicle at a distance of .39 seconds and at a speed of
73 miles per hour. The deputy initiated a traffic stop on the
vehicle for following too closely. As the deputy was attempt-
ing to stop the vehicle, he observed the two occupants making
furtive movements in the area around the center console of
the vehicle.
Upon contacting the vehicle’s occupants, the deputy noted
the odor of raw marijuana emanating from the vehicle. The
deputy identified the driver as Kevin Conrado, and the only
passenger in the vehicle was identified as Manjikian. Conrado
was asked for the vehicle’s registration and paperwork, which
he retrieved from a backpack in the back seat. The vehicle’s
rental agreement identified the renter as an individual who
was later determined to be the brother of Manjikian. Further
investigation revealed that following a murder conviction in
California, Manjikian’s brother had been incarcerated for a
period of time preceding the initial rental period of the vehicle.
Upon inspecting the vehicle’s paperwork and rental agreement,
the deputy noted that the rental agreement had expired 4 days
prior, on January 20, 2018.
A search of the vehicle resulted in the discovery of two
baggies of suspected methamphetamine found in the console
area between the driver and passenger seats. The content in the
baggies, as confirmed by the Nebraska State Patrol laboratory,
was found to be methamphetamine. Deputies noted that one
of the baggies was observed to have an end ripped open. The
contents of that baggie appeared to have been dumped into an
open drink container which was found in the vehicle and which
held an unknown liquid.
Manjikian later admitted to a deputy that he possessed a
controlled substance in the vehicle; although he referred to the
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STATE v. MANJIKIAN
Cite as 303 Neb. 100
substance as “Adderall,” it was later confirmed to be meth-
amphetamine. In addition to the methamphetamine, deputies
also discovered marijuana cigarettes in the center console area
and a total of $234,956 in U.S. currency. Conrado’s backpack
contained $11,300, and Manjikian was in possession of $376,
which was found on his person. The remainder of the cur-
rency was found stuffed inside three 64-ounce brownie mix
cans that were resealed to look as if they were in their origi-
nal condition.
On March 27, 2018, Manjikian was charged by information
in Lancaster County District Court with possession of a con-
trolled substance (amphetamine), a Class IV felony.1 Manjikian
entered a plea of not guilty to the charge.
On June 21, 2018, Manjikian, along with his trial counsel,
appeared before the district court at a change of plea hearing.
The parties advised the district court that they had reached an
agreement wherein Manjikian would plead no contest to an
amended information charging him with attempted posses-
sion of a controlled substance (methamphetamine) under Neb.
Rev. Stat. § 28-201(4)(e) (Reissue 2016) and § 28-416(3), a
Class I misdemeanor. In addition, Manjikian agreed to forfeit
any interest in the $234,956 that was seized during the traffic
stop that led to his arrest. The forfeiture agreement was in writ-
ing and stated, in pertinent part:
Manjikian hereby enters into an agreement with the State
of Nebraska in the above captioned matter and agrees
that any interest he has in said $234,956.00 shall be
forfeited to [U.S. Customs and Border Protection] pur-
suant to federal forfeiture laws. . . . Manjikian consents
to the administrative forfeiture of the $234,956.00 and
will not file a claim for it. In agreeing to such forfeit
ure, . . . Manjikian waives his rights pursuant to Neb.
Rev. Stat. §28-431 and the procedural requirements for
such forfeitures and waives his rights as they relate
1
See Neb. Rev. Stat. § 28-416(3) (Cum. Supp. 2018).
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STATE v. MANJIKIAN
Cite as 303 Neb. 100
to claims of double jeopardy pursuant to the United
States Constitution Amendment V, the Nebraska State
Constitution Article I, section 12, and State v. Franco,
257 Neb. 15 (1999);
. . . Manjikian, having consulted with his attorney
in the matter, now waives his rights freely, voluntarily,
knowingly and intelligently without force, threat, coer-
cion, duress, or promises, other than a plea agreement.
Following a hearing in which the court advised Manjikian
of his rights and confirmed his understanding of such, the
district court found that Manjikian’s plea was “freely, volun-
tarily, knowingly and intelligently made” and adjudged him
guilty of the offense. The court then ordered a presentence
investigation and set a date for sentencing.
Manjikian’s sentencing hearing was held on August 29,
2018. At the hearing, the district court sentenced Manjikian to
180 days’ imprisonment, with 2 days’ credit for time served.
Manjikian appeals.
ASSIGNMENTS OF ERROR
In a brief prepared by appellate counsel, Manjikian claims
that the district court erred in (1) finding that Manjikian
made a free, voluntary, knowing, and intelligent plea; (2)
accepting a plea that Manjikian contends violates constitu-
tional protections against double jeopardy; and (3) abusing
its discretion in sentencing him to a term of incarceration.
Manjikian also contends that he received ineffective assist
ance of trial counsel.
STANDARD OF REVIEW
[1] A trial court is afforded discretion in deciding whether
to accept guilty pleas, and an appellate court will reverse
the trial court’s determination only in case of an abuse of
discretion.2
2
State v. Wilkinson, 293 Neb. 876, 881 N.W.2d 850 (2016).
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STATE v. MANJIKIAN
Cite as 303 Neb. 100
[2,3] An appellate court will not disturb a sentence imposed
within the statutory limits absent an abuse of discretion by the
trial court.3 A judicial abuse of discretion exists when the rea-
sons or rulings of a trial judge are clearly untenable, unfairly
depriving a litigant of a substantial right and denying just
results in matters submitted for disposition.4
[4,5] Whether a claim of ineffective assistance of trial coun-
sel may be determined on direct appeal is a question of law.5 In
reviewing claims of ineffective assistance of counsel on direct
appeal, an appellate court decides only whether the undisputed
facts contained within the record are sufficient to conclusively
determine whether counsel did or did not provide effective
assistance and whether the defendant was or was not preju-
diced by counsel’s alleged deficient performance.6
ANALYSIS
Manjikian’s Free, Voluntary, Knowing,
and Intelligent Plea.
In his first assignment of error, Manjikian contends that the
plea agreement he entered into with the State was not entered
into freely, voluntarily, knowingly, or intelligently. According
to Manjikian, the district court failed to advise him that by
entering into the plea agreement, he waived his right to appeal
any adverse decisions had he filed pretrial motions or pro-
ceeded to trial. Manjikian argues that the court’s failure in this
respect results in his plea not being made freely, voluntarily,
knowingly, and intelligently.
[6] Under our holding in State v. Lane,7 to support a find-
ing that a defendant has entered a guilty plea freely, intelli-
gently, voluntarily, and understandingly, a court must inform
3
State v. Steele, 300 Neb. 617, 915 N.W.2d 560 (2018).
4
State v. Clemens, 300 Neb. 601, 915 N.W.2d 550 (2018).
5
State v. Vanness, 300 Neb. 159, 912 N.W.2d 736 (2018).
6
Id.
7
State v. Lane, 299 Neb. 170, 907 N.W.2d 737 (2018).
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STATE v. MANJIKIAN
Cite as 303 Neb. 100
a defendant about (1) the nature of the charge, (2) the right to
assistance of counsel, (3) the right to confront witnesses against
the defendant, (4) the right to a jury trial, and (5) the privilege
against self-incrimination. The record must also establish a
factual basis for the plea and that the defendant knew the range
of penalties for the crime charged.8
Manjikian now argues, without binding authoritative sup-
port, that the court was also required, during the plea colloquy,
to advise him of the fact that his plea would result in the waiver
of his right to appeal any adverse decision had he filed pretrial
motions or proceeded to trial. Manjikian further contends that
the court was also required to advise him that appellate counsel
and costs would be provided, had he qualified.
Manjikian would have us adopt a new prerequisite to accept-
ing a plea in the form of the American Bar Association’s
Standard 14-1.4(a)(vi), requiring the court to advise the defend
ant that “by pleading guilty the defendant generally waives the
right to appeal, except the right to appeal a motion that has
been made, ruled upon and expressly reserved for appeal and
the right to appeal an illegal or unauthorized sentence.”9
We have consistently held that the rule to be distilled from
our prior holdings is that in order to support a finding that a
plea of guilty or nolo contendere has been entered freely, intel-
ligently, voluntarily, and knowingly, the court must inform the
defendant concerning the nature of the charge,10 the right to
assistance of counsel,11 the right to confront witnesses against
the defendant,12 the right to a jury trial,13 and the privilege
8
Id.
9
ABA Standards for Criminal Justice, Pleas of Guilty, Standard 14-1.4(a)
(vi) at 36 (3d ed. 1999).
10
State v. Turner, 186 Neb. 424, 183 N.W.2d 763 (1971), disapproved on
other grounds, State v. Irish, 223 Neb. 814, 394 N.W.2d 879 (1986).
11
State v. Tweedy, 209 Neb. 649, 309 N.W.2d 94 (1981).
12
Id.
13
Id.
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against self-incrimination.14 The court must also examine the
defendant and determine whether he or she understands the
foregoing.15 Lastly, the court must ensure the record establishes
that there is a factual basis for the plea and that the defendant
knew the range of penalties for the crime with which he or she
is charged.16
As we stated in State v. Irish, “[we recognize] that the work
of the ABA, although good and useful, nevertheless does not
rise to the status of legislative acts or judicial holdings.”17
Through painstaking judicial work, we have established the
minimum requirements for the court to accept a plea as being
entered freely, intelligently, voluntarily, and knowingly.
Additionally, as we indicated in State v. Turner,18 a require-
ment of an item-by-item review of constitutional rights on
a guilty plea is a strained and a too extreme construction of
the U.S. Supreme Court’s holdings in Boykin v. Alabama19
and McCarthy v. United States.20 Both Boykin and McCarthy
dealt with a court’s duties under Fed. R. Crim. P. 11 as it
relates to a defendant’s voluntarily and intelligently made
plea agreement.
Here, the record demonstrates that the district court advised
Manjikian at length about the nature of the charge, made sig-
nificant reference to his right to assistance of counsel, and
advised Manjikian of the right to confront witnesses against
him, the right to a jury trial, and the privilege against self-
incrimination. Beyond the required admonishments enumerated
in Lane, the court went on to specifically warn Manjikian that
14
Id.
15
Irish, supra note 10.
16
Id.
17
Id. at 818, 394 N.W.2d at 882.
18
Turner, supra note 10.
19
Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969).
20
McCarthy v. United States, 394 U.S. 459, 89 S. Ct. 1166, 22 L. Ed. 2d 418
(1969).
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his plea would waive his right to additional hearings regarding
pretrial motions, had he subsequently decided to make any.
Based on the foregoing analysis, Manjikian’s plea was
entered freely, voluntarily, knowingly, and intelligently. We
decline his invitation to adopt the American Bar Association’s
Standard 14-1.4(a)(vi), and we find his assignment of error to
be without merit.
Double Jeopardy.
Manjikian next assigns that the district court erred and
abused its discretion in accepting his no contest plea. Manjikian
contends that such acceptance violated double jeopardy princi-
ples. Specifically, Manjikian argues that our precedent in State
v. Spotts 21 acts to bar the State from seeking both forfeiture
and subsequent criminal prosecution.
At oral arguments, for the first time, the State argued that
the money seized during the traffic stop was abandoned prop-
erty, because Manjikian disclaimed ownership of the money in
a statement to law enforcement. The State further argues that
Manjikian cannot now claim double jeopardy applies because
of the forfeiture of the funds that he had earlier proclaimed
were not his. The State’s contention regarding abandonment
was not discussed below, nor was it specifically assigned
in their brief. We proceed, therefore, to analyze Manjikian’s
double jeopardy claim.
The U.S. Supreme Court has noted that the constitutional
prohibition against double jeopardy was designed to protect
an individual from being subjected to the hazards of trial and
possible conviction more than once for an alleged offense.22 In
Benton v. Maryland,23 the Court applied the 5th Amendment’s
21
State v. Spotts, 257 Neb. 44, 595 N.W.2d 259 (1999).
22
Green v. United States, 355 U.S. 184, 78 S. Ct. 221, 2 L. Ed. 2d 199
(1957).
23
Benton v. Maryland, 395 U.S. 784, 89 S. Ct. 2056, 23 L. Ed. 2d 707
(1969).
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protection against double jeopardy to the states through the
Due Process Clause of the 14th Amendment, noting that the
protection “represents a fundamental ideal in our constitu-
tional heritage.”24
[7,8] The Double Jeopardy Clause protects against three
distinct abuses: (1) a second prosecution for the same offense
after acquittal, (2) a second prosecution for the same offense
after conviction, and (3) multiple punishments for the same
offense.25 In Nebraska, jeopardy attaches (1) in a case tried to a
jury, when the jury is impaneled and sworn; (2) when a judge,
hearing a case without a jury, begins to hear evidence as to the
guilt of the defendant; or (3) at the time the trial court accepts
the defendant’s guilty plea.26
Manjikian’s double jeopardy claim in this case appears to be
based on the prohibition of multiple punishments for the same
offense, i.e., the seizure and jail sentence.
In State v. Franco,27 we stated that since State v. One 1987
Toyota Pickup,28 we have determined that the Legislature
intended forfeiture actions pursuant to Neb. Rev. Stat.
§ 28-431 (Reissue 2008) to be criminal proceedings. In
Franco, a criminal defendant was charged with a crime and
faced the forfeiture of personal property seized during his
arrest. The district court concluded that the crime and the
actions leading to forfeiture constituted separate criminal
offenses so that the prosecution of both was not barred by
double jeopardy. On appeal, this court disagreed, instead
holding that a forfeiture action pursuant to § 28-431 necessar-
ily required the proof of a violation of chapter 28, article 4,
of the Nebraska Revised Statutes. In Franco, the defendant’s
24
Id., 395 U.S. at 794.
25
Spotts, supra note 21.
26
State v. Thalken, 299 Neb. 857, 911 N.W.2d 562 (2018).
27
State v. Franco, 257 Neb. 15, 594 N.W.2d 633 (1999).
28
State v. One 1987 Toyota Pickup, 233 Neb. 670, 447 N.W.2d 243 (1989),
overruled, Spotts, supra note 21.
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violation of § 28-416(1)(a)—the statute which charged him
with possession of a controlled substance—had to be proved.
We concluded that § 28-416(1)(a) was subsumed within
§ 28-431 and that as such, the two statutes were not defin-
ing separate offenses. In short, we held that the State could
not seek forfeiture of property and then proceed in a criminal
prosecution arising from the same set of facts without offend-
ing double jeopardy.29
[9] However, we went on to note that the Blockburger
test, enumerated in Blockburger v. United States,30 which is
applied to prevent double punishment in situations where
the Legislature intended to provide only for a single pun-
ishment, did not prevent the State from seeking a crimi-
nal prosecution and a forfeiture in the same proceeding if
there was legislative intent to do so. We concluded that the
Nebraska Legislature intended for punishments pursuant to
§§ 28-416(1)(a) and 28-431 to be imposed cumulatively.31
Where the Legislature has demonstrated an intent to permit
cumulative punishments, the Double Jeopardy Clause is not
violated as long as the cumulative punishments are imposed
in a single proceeding.32
In Spotts, we reinforced our holding in Franco. The defend
ant in Spotts was arrested by the Nebraska State Patrol for
being in possession of a controlled substance with the intent
to deliver, a Class III felony. Before his criminal informa-
tion was filed, the State sought forfeiture of $14,177 found
on the defendant’s person at the time of his arrest. Following
his initial appearance at his criminal trial, he filed a plea in
bar alleging in pertinent part that the conduct which exposed
him to forfeiture of the $14,177 was the same conduct which
29
See Franco, supra note 27.
30
Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306
(1932).
31
Franco, supra note 27.
32
Id.
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exposed him to liability and punishment for the possession
of methamphetamine. The defendant alleged that in order to
forfeit the money found on his person, he would have had to
commit one and the same offense as charged in the informa-
tion. He asserted that the prosecution for possession of meth-
amphetamine was barred, because said prosecution would
expose him to double jeopardy.
In Spotts, we reiterated that forfeiture actions pursu-
ant to § 28-431 constituted criminal proceedings. We ulti-
mately found that Franco controlled, concluding that the
Nebraska Legislature intended for punishments pursuant to
§§ 28-416(1)(a) and 28-431 be imposed cumulatively. Where
the Legislature has demonstrated an intent to permit cumu-
lative punishments, the Double Jeopardy Clause is not vio-
lated as long as the cumulative punishments are imposed in
a single proceeding. In Spotts, we ultimately agreed with
the district court when it stated: “‘[I]f [a] forfeiture action
arises out of the underlying criminal case, the State is placed
in the position of having to decide whether to pursue the
forfeiture proceeding or whether to pursue the criminal
proceeding.’”33
We observe that in 2016, the Legislature revised §§ 28-416
and 28-431.34 Because we find that Manjikian expressly
waived his constitutional right against double jeopardy when
he entered into the plea agreement,35 we express no opinion as
to whether the revisions enacted by the Legislature change the
viability of Franco and Spotts. Therefore we need not venture
into a comprehensive analysis under Spotts.
[10,11] The U.S. Supreme Court has indicated that a
waiver is ordinarily an intentional relinquishment or aban-
donment of a known right or privilege, and courts indulge
every reasonable presumption against waiver of fundamental
33
Spotts, supra note 21, 257 Neb. at 49, 595 N.W.2d at 262.
34
See 2016 Neb. Laws, L.B. 1106, §§ 5 and 6.
35
See State v. Dye, 291 Neb. 989, 870 N.W.2d 628 (2015).
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constitutional rights.36 The determination of whether there has
been an intelligent waiver of a right must depend, in each case,
upon the particular facts and circumstances surrounding that
case, including the background, experience, and conduct of
the accused.37
In this case, Manjikian’s plea agreement in relevant part
specifically stated:
In agreeing to such forfeiture, . . . Manjikian waives his
rights pursuant to Neb. Rev. Stat. §28-431 and the pro-
cedural requirements for such forfeitures and waives his
rights as they relate to claims of double jeopardy pursu-
ant to the United States Constitution Amendment V, the
Nebraska State Constitution Article I, section 12, and
State v. Franco, 257 Neb. 15 (1999)[.]
Based on the record, Manjikian has some formal education
and has previously been involved in the California criminal
justice system. Beyond his personal history which is inform
ative of his background and understanding, when asked by
the court whether he understood the plea agreement and his
rights, Manjikian consistently answered that he was aware
of the particular details of the agreement and had entered the
agreement voluntarily.
[12] We have repeatedly held that the voluntary entry of a
guilty plea or a plea of no contest waives every defense to a
charge, whether the defense is procedural, statutory, or con-
stitutional.38 This includes the right against double jeopardy;
we have held that such exceptions include the defenses of
insufficiency of the indictment, information, or complaint;
ineffective assistance of counsel; and lack of jurisdiction.39
36
See Johnson v. Zerbst, 304 U.S. 458, 58 S. Ct. 1019, 82 L. Ed. 2d 1461
(1938). See, also, Ricketts v. Adamson, 483 U.S. 1, 107 S. Ct. 2680, 97 L.
Ed. 2d 1 (1987) (Brennan, J., dissenting).
37
Johnson, supra note 36.
38
See State v. Biernacki, 237 Neb. 215, 465 N.W.2d 732 (1991).
39
State v. Start, 239 Neb. 571, 477 N.W.2d 20 (1991).
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The record in this case is clear. Manjikian waived his right
against double jeopardy when he entered into the plea agree-
ment; therefore, Manjikian’s assignment of error with regard
to being put twice in jeopardy is without merit.
Sentence.
Manjikian next assigns as error that the court abused its dis-
cretion in sentencing him to a term of incarceration. Manjikian
argues that the district court relied on improper informa-
tion contained in the presentence investigation and on com-
ments made by the prosecution alleging, without evidence,
that Manjikian was involved in organized crime. His argument
appears to further contend that probation would have been the
appropriate sentence in this case.
An appellate court will not disturb a sentence imposed
within the statutory limits absent an abuse of discretion by the
trial court.40 A judicial abuse of discretion exists when the rea-
sons or rulings of a trial judge are clearly untenable, unfairly
depriving a litigant of a substantial right and denying just
results in matters submitted for disposition.41
[13,14] When imposing a sentence, the sentencing court is
to consider the defendant’s (1) age, (2) mentality, (3) education
and experience, (4) social and cultural background, (5) past
criminal record or record of law-abiding conduct, and (6) moti-
vation for the offense, as well as (7) the nature of the offense,
and (8) the amount of violence involved in the commission of
the crime.42 However, the sentencing court is not limited to any
mathematically applied set of factors.43 The appropriateness of
a sentence is necessarily a subjective judgment and includes
the sentencing judge’s observation of the defendant’s demeanor
40
Steele, supra note 3.
41
Clemens, supra note 4.
42
State v. Wofford, 298 Neb. 412, 904 N.W.2d 649 (2017).
43
State v. Mora, 298 Neb. 185, 903 N.W.2d 244 (2017).
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and attitude and all the facts and circumstances surrounding the
defendant’s life.44
Here, the record establishes that the district court reviewed
the presentence investigation report and considered all appro-
priate sentencing factors. The comments made by the district
court noted at sentencing that the “facts and circumstances of
this case” were “somewhat disturbing.” Although the presen-
tence report and comments made by the prosecution regard-
ing Manjikian’s alleged connections to organized crime were
largely unsubstantiated, there is no indication that the district
court’s sentence turned solely on those claims.
The court’s comments at sentencing do not indicate that the
district court considered any inappropriate factors in deter-
mining the sentence to be imposed. The presentence report
contains significant findings regarding Manjikian’s violent
criminal history, unauthorized possession of weapons, previ-
ous flight from justice, and propensity for poor impulse control
and decisionmaking. Based on the facts and circumstances sur-
rounding Manjikian’s life and the crime charged, we cannot say
that the district court abused its discretion in sentencing him to
180 days’ incarceration.
Manjikian’s assignment of error regarding the court’s deci-
sion to sentence him to 180 days in jail is without merit.
Ineffective Assistance of Counsel.
Lastly, Manjikian claims that he received ineffective assist
ance of counsel in violation of his 6th Amendment right as
applied to the states through the Due Process Clause of the
14th Amendment. Manjikian contends that his trial counsel’s
performance fell below the range of competence demanded of
attorneys in criminal cases.
Specifically, Manjikian points to four instances in particular
in which he claims trial counsel was deficient. First, Manjikian
argues that his codefendant had signed a written confession
44
Id.
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and was prepared to testify that the controlled substance was
not Manjikian’s. Manjikian argues that trial counsel was inef-
fective in advising Manjikian that his codefendant’s statement
and proposed testimony would not be sufficient to convince a
jury. Second, Manjikian claims that trial counsel advised him
a jury would likely convict him based on his being from out
of state and that this erroneous advice caused Manjikian to
enter into a plea agreement rather than proceed to trial. Third,
Manjikian claims that trial counsel incorrectly advised him that
observing his codefendant “do something” with the substance
upon the officer’s initiating the traffic stop was sufficient
evidence to sustain a conviction for the crime with which he
was charged, leading him to forgo his right to trial.45 Lastly,
Manjikian contends that his counsel failed to protect his rights
against double jeopardy by not filing a plea in bar.
[15] To prevail on a claim of ineffective assistance of
counsel under Strickland v. Washington,46 the defendant must
show that counsel’s performance was deficient and that this
deficient performance actually prejudiced his or her defense.47
The two prongs of this test may be addressed in either
order, and the entire ineffective assistance analysis should
be viewed with a strong presumption that counsel’s actions
were reasonable.48
[16,17] Normally, a voluntary guilty plea waives all
defenses to a criminal charge. However, in a postconviction
proceeding brought by a defendant convicted because of a
guilty plea or a plea of no contest, a court will consider an
allegation that the plea was the result of ineffective assistance
of counsel.49 When a conviction is based upon a guilty plea,
45
Brief for appellant at 20.
46
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984).
47
State v. Ash, 293 Neb. 583, 878 N.W.2d 569 (2016).
48
Id.
49
State v. Amaya, 276 Neb. 818, 758 N.W.2d 22 (2008).
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the prejudice requirement for an ineffective assistance of
counsel claim is satisfied if the defendant shows a reasonable
probability that but for the errors of counsel, the defendant
would have insisted on going to trial rather than plead-
ing guilty.50
The likelihood of the defense’s success had the defendant
insisted on going to trial is relevant to the prejudice analy-
sis51; it is relevant to the consideration of whether a rational
defendant would have insisted on going to trial.52 The like-
lihood of the defense’s success had the defendant gone to
trial should be considered along with other factors, such as
the likely penalties the defendant would have faced if con-
victed at trial, the relative benefit of the plea bargain, and the
strength of the State’s case.53
Where, as here, appellate counsel is different from trial
counsel, a defendant must raise on direct appeal any issue of
ineffective assistance of trial counsel which is known to the
defendant or is apparent from the record, or the issue will be
procedurally barred on postconviction review.54 An ineffective
assistance of counsel claim is raised on direct appeal when the
claim alleges deficient performance with enough particularity
for (1) an appellate court to make a determination of whether
the claim can be decided upon the trial record and (2) a district
court later reviewing a petition for postconviction relief to be
able to recognize whether the claim was brought before the
appellate court.55
[18,19] The fact that an ineffective assistance of counsel
claim is raised on direct appeal does not necessarily mean
50
State v. Armendariz, 289 Neb. 896, 857 N.W.2d 775 (2015).
51
See State v. Yos-Chiguil, 281 Neb. 618, 798 N.W.2d 832 (2011).
52
Id.
53
Id.
54
State v. Watt, 285 Neb. 647, 832 N.W.2d 459 (2013).
55
Ash, supra note 47.
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that it can be resolved on direct appeal.56 The determining
factor is whether the record is sufficient to adequately review
the question.57 An ineffective assistance of counsel claim
will not be resolved on direct appeal if it requires an eviden-
tiary hearing.58
In this case, the State submits that the record is sufficient to
resolve Manjikian’s claims of ineffective assistance of counsel
and contends that Manjikian’s claims are without merit. In
regard to Manjikian’s claim that his codefendant had signed
a written confession and was prepared to testify that the con-
trolled substance was not Manjikian’s, the State directs our
attention to Manjikian’s own admissions which clearly refute
any potential testimony of his codefendant. As to Manjikian’s
claim that trial counsel’s statement as to the risk of conviction
based on Manjikian’s being from out of state, the State con-
tends that such claims are betrayed by Manjikian’s own admis-
sion to law enforcement. The State argues that Manjikian’s
admissions would have carried substantial weight which alone
could have led to a conviction. The State directs our atten-
tion to the recorded jail telephone call between Manjikian and
a sheriff’s deputy in which Manjikian admitted that he had
been in possession of “Adderall,” an admission that supported
Manjikian’s plea.
In regard to Manjikian’s claim that trial counsel failed to
protect his right against double jeopardy, the record clearly
refutes his claim, because he knowingly, intentionally, and vol-
untarily agreed, as a part of the plea agreement with the State,
to forfeit the money to the federal government. Moreover,
as noted above, the plea agreement specifically recited that
Manjikian “waives his rights as they relate to claims of
double jeopardy pursuant to the United States Constitution
56
Id.
57
Id.
58
Id.
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Amendment V, [and] the Nebraska State Constitution Article I,
section 12.” Therefore, unlike the defendants in Franco 59 and
Spotts,60 Manjikian was not subjected to successive criminal
prosecutions, but instead agreed to the forfeiture and reduced
criminal charge in exchange for his plea.
Given the fact that Manjikian and his codefendant were
transporting $234,956 on their persons, as well as in various
sealed containers, while being in possession of an amount
of methamphetamine and in a vehicle rented to Manjikian’s
brother, who was incarcerated at the time of the rental agree-
ment, it cannot be said that Manjikian’s defense had a strong
likelihood of success on the merits. This is especially true given
the fact that Manjikian admitted to law enforcement that he had
been in possession of “Adderall,” a controlled substance.
Had the plea agreement not been reached, Manjikian
was facing a charge of possession of a controlled substance
(amphetamine), a Class IV felony under § 28-416(3), which
carries a potential maximum sentence of 2 years’ imprison-
ment and 12 months’ postrelease supervision or a $10,000 fine,
or both, and a minimum sentence of 9 months’ postrelease
supervision, if imprisonment is imposed.61 In light of the
potential penalty he faced, had Manjikian not pled to the lower
Class I misdemeanor, the weight of the evidence and the fact
that our ineffective assistance analysis is viewed with a strong
presumption that counsel’s actions were reasonable, we cannot
say that Manjikian’s trial counsel was ineffective in regard to
the plea agreement.
Further, we cannot say that trial counsel was incorrect
in advising Manjikian regarding possession. We have previ-
ously stated that “possession of an illegal substance can be
inferred from a vehicle passenger’s proximity to the substance
59
Franco, supra note 27.
60
Spotts, supra note 21.
61
See Neb. Rev. Stat. § 28-105 (Reissue 2016).
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or other circumstantial evidence that affirmatively links the
passenger to the substance.”62 Given this prior holding and
Manjikian’s admission, we cannot say that Manjikian’s claim
that his codefendant was willing to testify and provide a writ-
ten statement as to being the alleged true possessor of the
controlled substance rises to the level of establishing that
Manjikian suffered actual prejudice as a result of choosing to
enter a plea instead of risking a trial. Trial counsel is afforded
due deference to formulate trial strategy and tactics, and we
are not to second-guess trial counsel’s reasonable strategic
decisions when reviewing claims of ineffective assistance
of counsel.63
CONCLUSION
The district court did not err in finding that Manjikian made
a free, voluntary, knowing, and intelligent plea. Additionally,
the district court did not err in accepting the plea as it did not
violate double jeopardy, because Manjikian waived his rights
as evidenced by the language of the plea agreement. Further,
the district court did not abuse its discretion in sentencing
Manjikian to a term of incarceration. Lastly, Manjikian did
not receive ineffective assistance of trial counsel.
The decision of the district court is affirmed.
A ffirmed.
62
State v. Draganescu, 276 Neb. 448, 478, 755 N.W.2d 57, 85 (2008).
63
See State v. Rocha, 286 Neb. 256, 836 N.W.2d 774 (2013).
| {
"pile_set_name": "FreeLaw"
} |
481 So.2d 1241 (1985)
William PHILLIPS, Howard Jones, William Starr, Robert Edwards, Russell Warner, Buck McClennen, George Lewis, et al., As Trustees of the International Association of Bridge, Structural and Ornamental Iron Workers Local 272 Annuity Pay Plan, Appellants/Cross-Appellees,
v.
Louis C. OSTRER, Eugene Bowen, Martin Bessell, Michael Burke, Michael Famigliatti, Thomas Kilgellon, Charles Baker, John Nord, and Insurance Company of North America, Appellees/Cross-Appellants.
No. 83-2686.
District Court of Appeal of Florida, Third District.
December 31, 1985.
Rehearing Denied February 11, 1986.
*1243 Kurzban, Kurzban & Weinger and Steven Weinger, Miami, for appellants/cross-appellees.
Welbaum, Zook, Jones & Williams and Betsy L. Warwick, Miami; Ackerman, Bakst, Gundlach, Lauer & Zwickel, West Palm Beach; Joseph C. Segor; Bercuson, Cahan, Weksler & Lasky and Bernard Weksler, Miami, for appellees/cross-appellants.
Before BARKDULL, BASKIN and JORGENSON, JJ.
BASKIN, Judge.
Appellants were the trustees of the International Association of Bridge, Structural & Ornamental Iron Workers Local 272 Annuity Pay Plan [Annuity Pay Plan] on March 13, 1978, when they instituted an action against appellees: the former trustees; Louis Ostrer, the consultant for and administrator of the Annuity Pay Plan; and Insurance Company of North America [INA], the issuer of an honesty bond. They sought damages for fraud, negligence, and breach of fiduciary duties in connection with the purchase of insurance policies with funds contributed to the Annuity Pay Plan.[1] The jury returned verdicts in their favor and the court entered a final judgment. In response to post-trial motions, however, the trial court entered orders which reduced the amount of the final judgment. Appellants challenge the trial court's ruling that the verdicts entered against the former trustees and Louis Ostrer constituted a triple recovery. In addition, appellants contend that the trial court's reduction of the judgment against INA was an unwarranted interference with the jury's findings. Agreeing with appellants' contentions regarding the judgment entered against the former trustees and the administrator of the Annuity Pay Plan, we reverse the order reducing the judgment as to them. We affirm, however, the trial court's reduction of the amount of the judgment against INA, but reinstate the court's ruling that the former trustees and INA are jointly and severally liable to appellants.
In cross-appeals, appellees argue that they should have prevailed because the collective bargaining agreement mandated the purchase of whole life insurance policies; the evidence is insufficient to support the jury verdict; the evidence regarding compensatory damages is too speculative to support the verdict; an exculpatory clause in the trust agreement insulated the trustees from liability; prejudicial misconduct by opposing counsel deprived them of a fair trial; and the trial court should have dismissed the claims against them as a matter of law. In addition, INA asserts that it was exonerated from liability when the bond's cancellation provisions became effective.[2] We find no basis for granting the relief sought in the cross-appeals.
*1244 The Annuity Pay Plan was created as a result of industry-wide collective bargaining between negotiating teams for Iron Workers Local 272 and the management association. The purpose of the Annuity Pay Plan was to establish a severance fund and to provide iron workers with tax benefits gained from deferred compensation. Appellants sought to prove that the former trustees, who administered the fund, consulted with and were advised by Louis Ostrer, a convicted felon whose license had been suspended,[3] and that they fraudulently or negligently followed Ostrer's recommendations, purchasing individual whole life insurance policies for each person who performed two hours of iron work in Local 272 jurisdiction after May, 1972. They obtained no competitive bids and did not discuss with any other insurance consultant the type or amount of insurance necessary to cover participants. The former trustees spent 55% to 60% of the contributed funds on insurance premiums despite IRS prohibitions against the expenditure of more than 49.9% of contributions. An actuarial study disclosed that the Annuity Pay Plan was financially unsound and would become insolvent unless substantial changes were instituted. Ignoring the actuarial study, the trustees continued to follow Ostrer's plan, even though they were aware of a citation dated April 18, 1974, filed by the State of New York Insurance Department against Ostrer, trustees of a fund similar to the Iron Worker's Annuity Pay Plan, and others. The citation explained that it was improper for the New York trustees to deal with Ostrer because of his former convictions and license revocation and that the purchase of individual whole life insurance policies was excessively costly and generated unconscionably high commissions for Ostrer. After discussing the citation at a trustees' meeting on June 24, 1974, and expressing concern for their individual liability, the former trustees voted unanimously to purchase an additional insurance policy for each iron worker, rejecting lower-priced policies in favor of the policies recommended by Ostrer.
The Annuity Pay Plan purchased a Blanket Honesty Bond from INA, effective March 1, 1974. The Bond protected the Annuity Pay Plan for "any loss of other property ... through any fraudulent or dishonest act or acts committed by any employee ... during the term of the Bond." In the ensuing litigation, the court, in accordance with these provisions, granted INA a partial summary judgment, limiting its liability for loss to acts committed after the effective date of the Bond.
Appellants sought damages in excess of $1 million for fraud, breach of fiduciary duty, and negligence. The trial culminated in a jury verdict totaling $1,195,000, including $110,000 in punitive damages against the former trustees and Ostrer. Interrogatory verdicts instructed the jury, first, to assess total damages and then to state which of the defendants committed fraudulent acts. Their next task was to calculate the total amount of damages to be recovered for fraud as well as the amount recoverable from each defendant. The jury received similar verdict forms for the claims based on breach of fiduciary duty and on negligence. The jurors were then asked to determine whether any defendant should be held liable for punitive damages. Next, the jury was instructed to decide whether INA was liable for each defendant's actions, to determine the amount of INA's liability, and to state the date on which each trustee committed any fraudulent act giving rise to INA's liability. Finally, the jurors were asked to decide the date the "Annuity Pay Plan first learned of the dishonest or fraudulent acts." The jury found Ostrer liable for negligence and *1245 fraud, and each former trustee, except John Nord, liable for fraud, breach of fiduciary duty, and negligence; it found INA liable for the trustees' fraudulent or dishonest acts occurring after the effective date of its bond. Complying with the directives in the verdict forms, the jury apportioned the total damage award among the counts and defendants.
The trial court entered judgment in accordance with the jury's verdicts but, upon post-trial motions, ruled that the jury verdicts against the former trustees and Ostrer constituted triple recovery. The trial court then reduced the award of compensatory damages from $1,085,000 to $246,667,[4] relying upon Besett v. Basnett, 437 So.2d 172 (Fla. 2d DCA 1983), as legal authority for its reduction. The court also reduced the verdict against INA from $345,000 to $99,629.27,[5] finding that INA was liable only for the premiums paid on policies purchased after the effective date of the honesty bond.
We first direct our attention to the trial court's citation of Besett and the reduction of the judgment against the former trustees and Ostrer on the ground that the awards constituted triple recovery. According to Besett, verdicts based on multiple theories of recovery which contain the same elements of damage should result in a judgment predicated on a single count. While Besett may lead to reduction in some situations, we find it inapplicable to the facts and circumstances before us. In Besett, the jury considered negligence and fraud claims and determined that damages were proper on each count against a real estate broker who misrepresented the amount of land purchased. The Besett court held that because the proof necessary to establish both fraud and negligence was the same, only the greater award, based on fraud, should stand. In the case before us, however, the jury did not combine multiple awards for a single claim. Instead, the jury arrived at the total amount of the recovery first and, in response to the court's specific instructions, divided the damages into separate awards for the individual counts. The instructions in the interrogatory verdicts left the jury no alternative but to apportion the total award no matter what sum it found represented the damages sustained.[6] In addition, the interrogatories reflect the jury's finding that the former trustees' actions evolved from negligence into fraud after the lapse of a period of time. Thus, the separate proof establishing liability for damages based on fraud and negligence precludes a ruling that appellants received a multiple award for a single claim.[7]
The facts of this case distinguish it from Air Florida, Inc. v. Hobbs, 477 So.2d 40 (Fla. 3d DCA 1985). In Air Florida, this court held that although the evidence was sufficient to support the total award, there was no evidence to sustain the division of the award. The total amount of the jury award in Air Florida could be determined only by adding the damages incurred for the different types of economic losses sustained. Here, however, the jury was instructed to arrive at a total damage award and then to apportion the award among the counts and defendants.
This case differs from the cases cited by appellees in support of the trial court's reduction of the verdict. Atlantic Coast Line Railroad v. Saffold, 130 Fla. 598, 178 So. 288 (1938); Besett; ITT-Nesbitt, Inc. v. Valle's Steak House, 395 So.2d 217 *1246 (Fla. 4th DCA), review dismissed, 408 So.2d 1096 (Fla. 1981). In the cited cases, the damage award was greater than necessary to compensate the injured party. Here, however, the total award was established by the evidence. When the total award is supported by substantial, competent evidence, the jury's apportionment of damages does not affect the integrity of the verdict. See R.W. King Construction Co. v. City of Melbourne, 384 So.2d 654 (Fla. 5th DCA 1980).
The record supports the amount of compensatory damages awarded by the jury. The purpose of an award of compensatory damages is to make the injured party whole, Mercury Motors Express, Inc. v. Smith, 393 So.2d 545, 547 (Fla. 1981), or to place him in the position in which he would have been had no wrongful act occurred. Ashland Oil, Inc. v. Pickard, 269 So.2d 714 (Fla. 3d DCA 1972), cert. denied, 285 So.2d 18 (Fla. 1973). The award of compensatory damages of $1,085,000 is so close to the amount requested by appellants that it provides a clear indication of the jury's intent to follow appellants' suggestions in determining the amount of compensatory damages. See Cory v. Greyhound Lines, 257 So.2d 36 (Fla. 1971). When the intent of the jury is apparent, the verdict will sustain a judgment entered in conformity with that intent. Cory; Adkins v. Seaboard Coastline Railroad, 351 So.2d 1088 (Fla. 2d DCA 1977); Buffett v. Geldhauser, 155 So.2d 844 (Fla. 3d DCA 1963). The determination of the amount of damages is a matter solely within the province of the jury. Jefferson Realty v. United States Rubber Co., 222 So.2d 738 (Fla. 1969); South Miami Hospital v. Sanchez, 386 So.2d 39 (Fla. 3d DCA 1980); Sunrise Point, Inc. v. Reliance Realty, Inc., 371 So.2d 674 (Fla. 3d DCA 1979).
Courts should construe verdicts to carry out the jury's intentions. Advance Co. v. Albert, 216 So.2d 474 (Fla. 3d DCA 1968), cert. denied, 225 So.2d 526 (Fla. 1969). Although a jury may award a greater sum than the trial court deems appropriate, the court may not interfere unless the sum is so large that it indicates the jury must have been under the influence of passion, prejudice, or gross mistake. Lassitter v. International Union of Operating Engineers, 349 So.2d 622 (Fla. 1977) (on reh'g). A jury verdict may be set aside by the trial court only where the record affirmatively shows the impropriety of the verdict or the trial judge determines that the jury was influenced by considerations outside the record. Laskey v. Smith, 239 So.2d 13 (Fla. 1970); Tejon v. Broome, 261 So.2d 197 (Fla. 2d DCA), cert. dismissed, 265 So.2d 50 (Fla. 1972). If evidence supports an award of damages, the award may not be disturbed. Hendel v. Rudnick, 78 So.2d 709 (Fla. 1955); Allied Chemical Corp. v. Eubanks Industries, Inc., 155 So.2d 740 (Fla. 3d DCA 1963). A review of the record reveals sufficient evidence to support the amount of the compensatory damage award. Thus, in conformity with pertinent legal principles, we hold that the trial court erred in reducing the verdicts. We discern no record support for the amount computed by the trial court because it bears no relation to the amount of damages established by any party.
We find error, however, in the jury's inclusion of interest as an element of damages. Although counsel for appellants presented evidence and argued that five per cent compounded interest should be added to the amount recovered, the trial court subsequently disallowed interest as an element of damages and did not instruct the jury to consider interest in arriving at its verdict. Affirming the principle that a jury may not apply a measure of damages which is not contained in the trial court's instructions, Alonso v. Fernandez, 379 So.2d 685 (Fla. 3d DCA 1980), we hold that the jury erred in computing interest on the damage award. We therefore deduct the amount added for interest and, based on the evidence in the record, find that $700,000 represents the proper amount of appellants' compensatory damages.
Next, we address the trial court's reduction of INA's liability under the honesty bond. INA provided coverage for losses *1247 arising from fraudulent or dishonest acts committed during the term of the bond. Neither negligent nor fraudulent acts committed prior to the term of the bond fell within its purview. By the clear terms of the policy, the honesty bond was an occurrence bond, protecting the policy holder for acts done while the policy was in effect, rather than for losses suffered or claims made during that time. To determine whether the trial court erred in reducing the amount of damages awarded against INA, we must decide which acts of the trustees constituted "occurrences" giving rise to liability. The trustees made three separate purchases of insurance; two purchases were made prior to the effective date of the honesty bond, and one purchase occurred during the term of the bond. Premiums were paid on all the policies, however, while the bond was in effect. Appellants argue that the payments of premiums were the occurrences giving rise to INA's liability. We reject that argument.
Florida applies the "cause theory" to determine which acts are occurrences triggering an insurance company's liability. American Indemnity Co. v. McQuaig, 435 So.2d 414 (Fla. 5th DCA 1983). The act which causes the damage constitutes the occurrence. McQuaig. Applying the causation test to the facts of this case, we hold that the only fraudulent or dishonest occurrence which took place during the effective term of the bond was the purchase of the third group of insurance policies. See Business Interiors, Inc. v. Aetna Casualty & Surety Co., 751 F.2d 361 (10th Cir.1984); Aetna Casualty & Surety Co. v. Medical Protective Co., 575 F. Supp. 901 (N.D.Ill. 1983); Appalachian Insurance Co. v. Liberty Mutual Insurance Corp., 507 F. Supp. 59 (W.D.Pa. 1981), aff'd, 676 F.2d 56 (3d Cir.1982). But see Buccino v. Continental Assurance Co., 578 F. Supp. 1518 (S.D.N.Y. 1983). The payments of premiums on policies purchased prior to the effective date of the bond were merely ministerial acts and did not give rise to liability.
Accordingly, we affirm the trial court's reduction of the judgment entered against INA and hold that the amount of damages properly chargeable to INA is $99,629.27. We reinstate, however, the trial court's determination in the original judgment that the former trustees and INA are jointly and severally liable for the award entered against INA.
In summary, we reverse the order reducing the judgment entered against the former trustees and Ostrer; we affirm the trial court's reduction of the amount of the judgment against INA; and we reinstate the trial court's ruling that the former trustees and INA are jointly and severally liable for the amount of the judgment entered against INA.
Affirmed in part; reversed in part; remanded for further proceedings consistent with this opinion.
APPENDIX
The Verdict and the Jury Interrogatories and Answers are as follows:
VERDICT
We, the Jury, find for the Plaintiff and assess its total damages at
$ 1,195,000.00
THE TOTAL AMOUNT OF YOUR VERDICT, IF ANY, SHOULD REFLECT THE TOTAL
SUM TO BE AWARDED TO THE PLAINTIFF AND THE COURT IN ENTERING JUDGMENT
WILL ALLOCATE THAT TOTAL AMOUNT AGAINST THE DEFENDANTS BASED UPON THE
JURY INTERROGATORIES AND ANSWERS ATTACHED HERETO AND MADE A PART OF
THIS VERDICT.
So say we all this 24th day of April, 1983.
BY: /s/ Harriet S. Liles
Foreman/Forewoman
*1248
JURY INTERROGATORIES AND ANSWERS
1. Was there fraud upon the part of any of the Defendant former Trustees
and/or Defendant Louis C. Ostrer which was a legal cause of damage to the
Plaintiff?
YES X NO ___________
2. If you answered "Yes" to the preceding question, which of the
Defendants do you find committed fraudulent acts?
DEFENDANT FRAUD
YES NO
MICHAEL BURKE X _____
MICHAEL FAMIGLIATTI X _____
THOMAS KILGELLON X _____
JOHN NORD _____ X
EUGENE BOWEN X _____
MARTIN BESSELL X _____
CHARLES BAKER X _____
LOUIS C. OSTRER X _____
3. If you answered "Yes" to the preceding question, what is the total
amount of legal damages, if any, the Plaintiff is entitled to recover as a
direct result of fraudulent acts?
$ 246,677.00
4. If you answered "Yes" to the preceding question, state the legal
damages the Plaintiff is entitled to recover from each Defendant as a
result of that Defendant's fraudulent acts.
DEFENDANT AMOUNT
MICHAEL BURKE $ 35,238.00
MICHAEL FAMIGLIATTI $ 35,238.00
THOMAS KILGELLON $ 35,238.00
JOHN NORD $ 0
EUGENE BOWEN $ 35,238.00
MARTIN BESSELL $ 35,238.00
CHARLES BAKER $ 35,238.00
LOUIS C. OSTRER $ 35,239.00
5. Was there a breach of fiduciary duty on the part of the Defendant
former Trustees or any of said Defendant former Trustees?
YES X NO ___________
If you answered "No" to the foregoing, you need not answer the next three
(3) questions, questions numbered 6, 7 and 8.
6. If you answered "Yes" to the preceding question, which of the Defendant
former Trustees do you find breached a fiduciary duty?
DEFENDANT TRUSTEE BREACH OF FIDUCIARY DUTY
YES NO
MICHAEL BURKE X _____
MICHAEL FAMIGLIATTI X _____
THOMAS KILGELLON X _____
JOHN NORD _____ X
EUGENE BOWEN X _____
MARTIN BESSELL X _____
CHARLES BAKER X _____
*1249
7. If you answered "Yes" to the preceding question, what is the total
amount of legal damages, if any, the Plaintiff is entitled to recover as a
direct result of breach of fiduciary duty?
$ 246,666.00
8. If the Defendants former Trustees or a Defendant former Trustee
breached a fiduciary duty, state the legal damages, if any, the Plaintiff
is entitled to recover as a direct result of each Defendant's breach?
DEFENDANT TRUSTEE AMOUNT
MICHAEL BURKE $ 41,111.00
MICHAEL FAMIGLIATTI $ 41,111.00
THOMAS KILGELLON $ 41,111.00
JOHN NORD $ 0
EUGENE BOWEN $ 41,111.00
MARTIN BESSELL $ 41,111.00
CHARLES BAKER $ 41,111.00
9. Was there negligence upon the part of the Defendants former Trustees
and/or Defendant Louis C. Ostrer or any of said Defendants which was a
legal cause of damage to the Plaintiff?
YES X NO ___________
10. If you answer "Yes" to the preceding question, which of the
Defendants do you find were negligent?
DEFENDANT NEGLIGENT
YES NO
MICHAEL BURKE X _____
MICHAEL FAMIGLIATTI X _____
THOMAS KILGELLON X _____
JOHN NORD _____ X
EUGENE BOWEN X _____
MARTIN BESSELL X _____
CHARLES BAKER X _____
LOUIS C. OSTRER X _____
11. If you answered "Yes" to any of the preceding questions, then what
is the total amount of the legal damages, if any, the Plaintiff is
entitled to recover as a direct result of negligence?
$ 246,667.00
12. If you find that the Plaintiff is entitled to recover any legal
damages as a result of negligence, then state as to each Defendant, the
amount of legal damages, if any, resulting from that Defendant's negligence.
DEFENDANT AMOUNT
MICHAEL BURKE $ 35,238.00
MICHAEL FAMIGLIATTI $ 35,238.00
THOMAS KILGELLON $ 35,238.00
JOHN NORD $ 0
EUGENE BOWEN $ 35,238.00
MARTIN BESSELL $ 35,238.00
CHARLES BAKER $ 35,238.00
LOUIS C. OSTRER $ 35,239.00
*1250
13. Are the Defendant former Trustees and/or Defendant Louis C. Ostrer or
any of said Defendants liable for Punitive Damages?
YES X NO ___________
14. If you have answered the preceding questions "Yes", indicate as to
each Defendant so liable, the amount of punitive damages to be awarded.
DEFENDANT AMOUNT
MICHAEL BURKE $ 10,000.00
MICHAEL FAMIGLIATTI $ 10,000.00
THOMAS KILGELLON $ 10,000.00
JOHN NORD $ 0
EUGENE BOWEN $ 10,000.00
MARTIN BESSELL $ 10,000.00
CHARLES BAKER $ 10,000.00
LOUIS C. OSTRER $ 50,000.00
15. Did the Defendant former Trustees commit fraudulent or dishonest acts
after March 1, 1974, for which the Defendant, Insurance Company of North
America, is liable to the Plaintiff, Annuity Pay Plan.
YES X NO ___________
16. If you have found that any of the Defendant former Trustees committed
fraudulent or dishonest acts, for which the Defendant Insurance Company of
North America, is liable to the Plaintiff, Annuity Pay Plan, give as to
each such Defendant former Trustee the date the fraudulent act or acts
first occurred.
DEFENDANT TRUSTEE DATE
MICHAEL BURKE Mar. 1, 1974 12:01 PM
MICHAEL FAMIGLIATTI Mar. 1, 1974 12:01 PM
THOMAS KILGELLON Mar. 1, 1974 12:01 PM
JOHN NORD ______________________
EUGENE BOWEN Mar. 1, 1974 12:01 PM
MARTIN BESSELL Mar. 1, 1974 12:01 PM
CHARLES BAKER Mar. 1, 1974 12:01 PM
17. If you have found that any of the Defendant former Trustees committed
fraudulent or dishonest acts, for which Defendant, Insurance Company of
North America, is liable to the Plaintiff, Annuity Pay Plan, as to each
such Defendant former Trustee, give the date upon which the Plaintiff,
Annuity Pay Plan, first learned of the dishonest or fraudulent acts.
DEFENDANT TRUSTEE DATE
MICHAEL BURKE Jan. 1975
MICHAEL FAMIGLIATTI Jan. 1975
THOMAS KILGELLON Jan. 1975
JOHN NORD _____________
EUGENE BOWEN Jan. 1975
MARTIN BESSELL Jan. 1975
CHARLES BAKER Jan. 1975
18. If you have found that any of the Defendant former Trustees committed
fraudulent or dishonest acts after March 1, 1974, for which Defendant,
Insurance Company of North America, is liable to the Plaintiff, Annuity Pay
Plan, state the total amount of legal damages, if any, the Plaintiff's
[sic] are entitled to recover as a result of such fraudulent or dishonest
acts.
$ 345,000.00
*1251
19. If you have found that any of the Defendant former Trustees committed
fraudulent or dishonest acts after March 1, 1974, for which the Defendant,
Insurance Company of North America, is liable to the Plaintiff, Annuity Pay
Plan, give as to each such Defendant former Trustee the amount of legal
damages, if any, legally caused by such dishonest or fraudulent acts.
DEFENDANT TRUSTEE AMOUNT
MICHAEL BURKE $ 57,500.00
MICHAEL FAMIGLIATTI $ 57,500.00
THOMAS KILGELLON $ 57,500.00
EUGENE BOWEN $ 57,500.00
MARTIN BESSELL $ 57,500.00
CHARLES BAKER $ 57,500.00
DATED: April 24, 1983 /s/ Harriet S. Liles
As Foreman/Forewoman
NOTES
[1] The jury absolved John Nord, a trustee for only eight weeks, of all liability. The court granted a summary judgment as to defendant Robert Charles Sells, lead underwriter for Underwriters at Lloyd's, which was affirmed on appeal. Phillips v. Ostrer, 418 So.2d 1104 (Fla. 3d DCA 1982), review denied, 429 So.2d 6 (Fla. 1983).
[2] Section 11 of INA's Blanket Honesty Bond states, in pertinent part:
This bond shall be deemed canceled as to any Employee: (a) immediately upon discovery by the Insured, or by any partner or officer thereof not in collusion with such Employee, of any fraudulent or dishonest act on the part of such Employee... .
This section did not become operative because former trustee John Nord resigned before the effective date of INA's bond.
[3] Ostrer was convicted on separate occasions of grand larceny and stock manipulation. His license was revoked in December, 1967, for untrustworthiness.
[4] The trial court did not alter the punitive damage award of $110,000.
[5] A discrepancy in the amount appears on the face of the final judgment and the error should be corrected on remand.
[6] See appendix.
[7] Although we find several inconsistencies and inherent defects in the interrogatories, appellants' failure to raise these inconsistencies prior to the discharge of the jury constitutes a waiver of their right to challenge the interrogatories on appeal. Higbee v. Dorigo, 66 So.2d 684 (Fla. 1953); N. American Catamaran Racing Assoc. v. McCollister, 480 So.2d 669 (Fla. 5th DCA 1985); Ashby Div. of Consol. Aluminum Corp. v. Dobkin, 458 So.2d 335 (Fla. 3d DCA 1984); Savoca v. Sherry Frontenac Hotel Operating Co., 346 So.2d 1207 (Fla. 3d DCA 1977).
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946 F.Supp. 596 (1996)
Marilyn A. SICILIANO, Plaintiff,
v.
CHICAGO LOCAL 458-3M, Graphic Communications International Union and American National Can Company, Defendant.
No. 95 C 6555.
United States District Court, N.D. Illinois, Eastern Division.
November 25, 1996.
*597 Marilyn A. Siciliano, Chicago, IL, Pro Se.
Wyvonnia Ford Bridgeforth, Law Office of Wyvonnia Ford Bridgeforth, Oak Park, IL, for Marilyn A. Siciliano.
Aaron Edward Hoffman, Thomas Yale Mandler, Schwartz & Freeman, Chicago, IL, for American National Can Company.
MEMORANDUM OPINION AND ORDER
GETTLEMAN, District Judge.
Plaintiff, Marilyn Siciliano, has filed a three count complaint against her former employer, American National Can Company (the "Company"), and her union, Graphic Communications International Union (the "Union"), alleging violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e-5 ("Title VII"), the Americans with Disability Act, 42 U.S.C. § 12101(a) ("ADA"), and the Age Discrimination in Employment Act, 29 U.S.C. § 621 ("ADEA"). Count I alleges that plaintiff was discriminated against because of her gender in violation of Title VII. Count II alleges that plaintiff was discriminated against because of her diabetes mellitus in violation of ADA. Count III alleges that plaintiff was terminated because of her age in violation of the ADEA. The Union has moved to dismiss all three counts; the Company has moved to dismiss Count III. Both motions, brought pursuant to Fed.R.Civ.P. 12(b)(6), allege that plaintiff has failed to exhaust her administrative remedies prior to filing suit in federal court. In addition, both respondents have moved to strike plaintiff's jury demand. For the reasons set forth below, the court grants the motions to dismiss in part and denies them in part, and denies the motion to strike the jury demand without prejudice.
FACTS
The Company hired plaintiff as a film color separator in February of 1988. Plaintiff remained employed by the Company until her termination on August 31, 1994. Plaintiff was a member of the Union throughout her employment with the Company.
Plaintiff claims that she was verbally harassed and humiliated for a period of several months by her male co-workers and male supervisors. Upon reporting these incidents *598 to her supervisor and foreman, no action was taken to investigate or discipline the harassers by the Company or the Union. This harassment allegedly continued until her termination.
In addition to verbal harassment, plaintiff alleges that on January 13, 1993, Jim Young, the Company's General Manager, verified plaintiff's previously known diabetes with her physician. Thereafter, Mr. Young proceeded to test plaintiff's blood sugar level with an unsterile instrument. Subsequent to reporting this incident to the Union and the Company, both failed to investigate or take action. Moreover, the Company's superintendent told plaintiff that he believed her emotional problems were directly caused by her diabetes. Thereafter, plaintiff's physician assured the Union and the Company that her diabetes would not interfere with her employment.
On April 26, 1994, plaintiff filed charges with the EEOC against the Company alleging sex and disability discrimination. After an investigation by the EEOC, plaintiff received a right to sue notice against the Company on May 5, 1994.
Plaintiff also filed charges with the EEOC against the Union on August 11, 1994. In the charges against the Union, plaintiff checked the box asserting sex discrimination, and specifically stated that:
I began employment with the employer in February 1988. I am a member of the Graphic Communications International Union. Ongoing since October 15, 1993, I have made numerous complaints regarding various issues with the union. In May 1994, I filed two grievances against the employer with my local union. The union officials have not given my complaints and grievances the same attention and action as those filed by male employees. I have not been given a reason why the issue I raised have been ignored. I believe that I was discriminated against because of my sex, female, in violation of Title VII of the Civil Rights Act of 1964, as amended, in that the union has represented males in union matters better than they represent females.
The EEOC thereafter issued plaintiff a notice of right to sue the Union on September 13, 1995.
On August 31, 1994, four months after plaintiff filed charges against it with the EEOC, the Company terminated plaintiff. She was fifty-nine and a half years old at the time of her termination. She would have been eligible for retirement in December 1994. Plaintiff was replaced by an employee under the age of forty with no disability.
After her termination, plaintiff made the first of two amendments to the EEOC charges against the Company. In the first amendment dated September 13, 1994, plaintiff stated that,
I was accused of being insubordinate because I reported George Palitine for violation of Respondent's rules and would not accept Glen Stam as proper representation from the Union. Palitine was reprimanded while I was suspended and later discharged. Stam has been making it impossible for me to accomplish my daily work tasks in that he harasses me all the time by talking, tapping his pencil on the desk, and putting things out of my reach. All of these actions occurred subsequent to the filing of the original charge in April, 1994.
The second amendment to the EEOC charge filed by plaintiff on January 1, 1995, stated that:
My Union Representative requested from Respondent [the Company] and permission was granted to review my personnel records. During the course of the review of my employment record I noticed that certain documents that I have never previously received (i.e. disciplinary letters) were mysteriously placed into my personnel file and other documents removed. These actions are what I believe another act of retaliation in that; Respondent [the Company] is attempting to justify my involuntary separation from Respondent.
To date, plaintiff has not filed any amendments to the EEOC charges against the Union.
*599 DISCUSSION
I. THE UNION
The Union has moved to dismiss plaintiff's amended complaint pursuant to 12(b)(6), Fed.R.Civ.P., for failure to exhaust administrative remedies because the allegations of sex, disability and age discrimination in her amended complaint were not raised within the scope of the underlying EEOC charges.
In general, a plaintiff may file a complaint pursuant to Title VII in the federal court containing only those allegations previously charged with the EEOC. Alexander v. Gardner-Denver Co., 415 U.S. 36, 47, 94 S.Ct. 1011, 1019, 94 S.Ct. 1011 (1974). The purpose behind this rule is to allow the EEOC and the defendant to attempt to resolve the case through conference, conciliation, and persuasion, in addition to providing notice to the defendant as to the conduct of which the employee is complaining. Cheek v. Western and Southern Life Insurance Co., 31 F.3d 497, 500 (7th Cir.1994). This rule is not jurisdictional, but does create a condition precedent that a plaintiff must meet prior to filing in federal court. Babrocky v. Jewel Food Co., 773 F.2d 857, 863 (7th Cir.1985).
Although the general rule requires that the complaint contain allegations only presented in the EEOC charge, courts recognize that most EEOC charges are completed by laypersons, not attorneys. Cheek, 31 F.3d at 500. Thus, the plaintiff need not specify every fact in the EEOC charge that is used for the basis of her complaint. Id. The test for determining whether the complaint fits within the scope of the EEOC charge is whether the "discrimination is like or reasonably related to the allegations of the charge and growing out of such allegations." Jenkins v. Blue Cross Mutual Hospital Ins. Inc., 538 F.2d 164, 167 (7th Cir.1976).
In Count I plaintiff alleges that throughout her employment with the Company, she was subjected to verbal harassment by her male co-workers and supervisors. Plaintiff reported these incidents to her foreman and supervisor, but she claims that the Company did not investigate or take action against the harassers. Count I does not contain a specific allegation that plaintiff reported the verbal harassment to the Union, nor does it claim that the Union was in anyway involved in the harassment. Count I also does not claim that the Union failed to investigate the harassment because plaintiff is a female. Although Count I does not make a specific allegation against the Union, it does seek relief from both respondents.
The Union asserts that Count I should be dismissed because it seeks to bring claims of discrimination against it that were never presented to the EEOC. Specifically, the Union reads Count I as somehow charging it with the responsibility for plaintiff's termination. As noted, however, Count I actually contains no allegations against the Union. Therefore, it fails against the Union not because it charges beyond the scope of the EEOC charges, but rather because it simply does not accuse the Union of gender based discrimination. Accordingly, the Union's motion to dismiss Count I is granted without prejudice.
The Union has additionally moved to dismiss Counts II and III, asserting that the allegations in the counts are not reasonably related to the charges previously filed with the EEOC. Count II alleges that plaintiff was discriminated against because she had diabetes mellitus and was replaced by a person without a disability. Count III alleges age discrimination because plaintiff was replaced by a person under the age of forty when she was terminated.
In Jenkins v. Blue Cross Mutual Hospital Insurance, Jenkins filed charges with the EEOC and checked only the box indicating discrimination based on race. 538 F.2d at 167. Jenkins attempted to support this assertion by describing a situation where she was told by her supervisor that she had not been promoted because she was a Negro with an "afro" hairdo. Id. While describing the alleged racial discrimination, Jenkins stated that the supervisor "also accused me of being the leader of the girls on the floor," and that "[a] white employee who associated with me might have been denied her promotion because of her association with me." Id. Although Jenkins never specifically checked the box marked "sex" on the EEOC *600 form, it was clear from her description of the racial discrimination that there was a possibility that she also suffered sexual discrimination. Id. at 169. Therefore, that court held that Jenkin's claim of sexual discrimination in her complaint was reasonably related to the EEOC charges. Id.
The present case is distinguishable from Jenkins. Here, plaintiff stated in the EEOC charges only that, "the Union officials have not given my complaints and grievances the same attention and action as those filed by male employees ... I believe that I was discriminated against because of my sex." This charge was never amended after her subsequent termination. At no time did plaintiff describe conduct by the Union that could possibly be construed as disability and age discrimination while she was describing her sex discrimination allegations. Thus, plaintiff's claims of disability and age discrimination in her amended complaint are not reasonably related to the allegations in the underlying EEOC charges. Therefore, Counts II and III against the Union are dismissed with prejudice.
II. THE COMPANY
The Company has also moved to dismiss Count III for failure to exhaust administrative remedies. Count III alleges that the Company terminated plaintiff because of her age.
As noted above, a claim not in the underlying EEOC charge is cognizable only if it is reasonably related to or growing out of the allegations made in the EEOC charge. Jenkins, 538 F.2d at 167. Here, Count III of plaintiff's complaint alleges that she was subjected to age discrimination by the Company when it terminated her employment and replaced her with a person under the age of forty. Plaintiffs original EEOC charge described only sex and disability discrimination. Because it was filed prior to her termination there was no mention of age discrimination in the original charge. Subsequent to her termination plaintiff filed two amendments to the EEOC charge. The first amendment stated only that, "I was accused of being insubordinate because I reported George Palitine for violation of Respondent's rules and would not accept Glen Stam as proper representation from the union. Palitine was reprimanded while I was suspended and later discharged." Although this statement does discuss her discharge, it does not necessarily encompass her age. Rather, this statement, read in conjunction with the rest of the EEOC charge alleging sex and disability discrimination, suggests that plaintiff believed that she was unfairly terminated on the basis of her sex and disability, not her age. Thus, Count III of her complaint is not reasonably related to the first amendment to the EEOC charge against the Company.
On January 24, 1995, plaintiff filed a second amendment to the EEOC charge against the Company. In that amendment plaintiff stated: "My union representative requested from Respondent [the Company] and permission was granted to review my personnel records. During the course of the review of my employment record I noticed that certain documents that I have never previously received (i.e. disciplinary letters) were mysteriously placed into my personnel file and other documents removed. These actions are what I believe another act of retaliation in that; Respondent [the Company] is attempting to justify my involuntary separation from Respondent [the Company]." Again, these additional statements by plaintiff do not even remotely describe the possibility that her termination was due to her age. Thus, because Count III is not reasonably related to the original EEOC charge or its amendments, that count is dismissed with prejudice with respect to the Company.
III. JURY DEMAND
Finally, both respondents have moved to strike plaintiff's jury demand. Plaintiff claims that she is entitled to a jury pursuant to the Civil Rights Act of 1991. 42 U.S.C. § 1981a(c)(1).
Prior to the Civil Rights Act of 1991, the only remedy available to a plaintiff under Title VII was equitable. Johnson v. Indopco, Inc., 846 F.Supp. 670, 675 (N.D.Ill.1994). Such equitable remedies included reinstatement or hiring of employees and back pay. Id. As amended in 1991, however, Title VII provides for a jury trial in those instances *601 where the plaintiff is seeking either compensatory or punitive damages instead of, or in addition to, equitable relief. Townsend v. Indiana University, 995 F.2d 691, 693 (7th Cir.1993). Compensatory damages include damages for "emotional pain, suffering, and mental anguish," while excluding back pay. Johnson, 846 F.Supp. at 675. In her claims for relief, plaintiff has not asked for compensatory or punitive damages. She has, however, alleged suffering such damages in the body of her complaint. Thus, if plaintiff specifically requests compensatory or punitive relief in Count I of her amended complaint, then she will be entitled to a jury trial. Because plaintiff will be filing an amended complaint consistent with this opinion, the motion to strike is denied without prejudice.
CONCLUSION
The Union's motion to dismiss is granted without prejudice as to Count I, and with prejudice as to Counts II and III. The Company's motion to dismiss Count III is granted with prejudice. The motion to strike the jury demand is denied without prejudice. Plaintiff is ordered to file an amended complaint consistent with this opinion on or before the status report set for December 10, 1996.
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 18-6572
MONTI N. BELLAMY,
Petitioner - Appellant,
v.
GIO RAMIREZ, Warden,
Respondent - Appellee,
and
FEDERAL BUREAU OF PRISONS; UNITED STATES ATTORNEY
GENERAL,
Respondents.
Appeal from the United States District Court for the District of South Carolina, at
Charleston. Mary G. Lewis, District Judge. (2:17-cv-01782-MGL)
Submitted: July 19, 2018 Decided: July 24, 2018
Before WILKINSON, MOTZ, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Monti N. Bellamy, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Monti N. Bellamy, a federal prisoner, appeals the district court’s orders adopting
the magistrate judge’s recommendation to dismiss his 28 U.S.C. § 2241 (2012) petition,
in which Bellamy sought to challenge his armed career criminal designation, and denying
Bellamy’s Fed. R. Civ. P. 59(e) motion to alter or amend judgment. We have reviewed
the record and find no reversible error. Specifically, Bellamy’s § 2241 petition was
predicated on the Supreme Court’s ruling in Mathis v. United States, __ U.S. __, 136 S.
Ct. 2243 (2016). But this ruling has not been held to apply retroactively to cases on
collateral review, as is required to raise a sentencing challenge in a § 2241 petition. See
United States v. Wheeler, 886 F.3d 415, 428-29 (4th Cir. 2018) (holding that federal
prisoner may challenge his sentence in a § 2241 proceeding following a change in
substantive law that is retroactively applicable on collateral review, when “the sentence
now presents an error sufficiently grave to be deemed a fundamental defect”).
Accordingly, we grant Bellamy leave to proceed in forma pauperis and affirm the district
court’s orders. See Bellamy v. Ramirez, No. 2:17-cv-01782-MGL (D.S.C. Mar. 28 &
May 2, 2018). 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
2
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613 A.2d 332 (1992)
Steven K. NEWTON, Appellant,
v.
UNITED STATES, Appellee.
No. 88-CF-169.
District of Columbia Court of Appeals.
Argued December 4, 1990.
Decided July 7, 1992.
Daniel E. Ellenbogen, Washington, D.C., appointed by this court, for appellant.
Thomas G. Connolly, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., and John R. Fisher and Elizabeth Trosman, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellee.
Before ROGERS, Chief Judge, WAGNER, Associate Judge, and PRYOR, Senior Judge.
PRYOR, Senior Judge:
After a trial by jury, appellant was convicted in October 1985 of distribution of PCP and marijuana in violation of provisions of D.C.Code § 33-541(a)(1) (1988 Repl.). Prior to sentencing, appellant wrote to the presiding judge expressing dissatisfaction with his counsel.[1] The judge appointed a different attorney for appellant, directed him to file a motion in this regard prior to sentencing, and ordered the government to file a response. On the day of sentencing, appellant had failed as yet to file the motion; therefore, there was no need for the government to respond as the court had ordered,[2] and appellant's pro se motion was dismissed as prematurely filed. Appellant was sentenced to not less *333 than twenty, nor more than sixty months of incarceration for distribution of PCP. He was given a ninety day concurrent sentence for the marijuana offense.
After sentencing, appellant filed a motion, pursuant to D.C.Code § 23-110 (1989), to vacate his convictions and for a new trial, alleging ineffective assistance of counsel. If the court cannot dispose of appellant's motion solely on the record, D.C.Code § 23-110(c) provides that the court must cause notice to be served on the government and grant a prompt hearing.[3] Absent action by the court in compliance with the statute, the government was not obliged to file a response, and accordingly, did not do so. Appellant, nevertheless, filed a Motion to Treat the § 23-110 Motion as Conceded, and the trial court, erroneously believing that it had served notice upon the United States Attorney's Office pursuant to the statute,[4] concluded that the government, in its silence, was conceding the motion. The court then mistakenly granted appellant's motion, ordered a new trial, and released appellant pending the new trial. A few days later, asserting that the court had not requested a response as required by statute before acting on the post-sentencing motion, the government filed a Motion to Reconsider and to Vacate the order granting a new trial.
Thereafter, the court, without a hearing, granted the government's motion to vacate the May 19th order, and ordered a hearing on the merits of the § 23-110 motion. (Order of January 19, 1988.) Appellant's counsel filed motions to stay further execution of the sentence and further proceedings pending appeal to this court. At a subsequent hearing, the trial court denied the motions to stay and began a hearing on the merits of the claim of ineffective assistance of counsel. Appellant was not returned to custody and was not present at the hearing. His counsel declined to participate, contending the court was without jurisdiction to conduct the hearing because (1) the court's May 19th order granting a new trial was a final order subject only to appellate review, and (2) appellant was not "in custody" within the meaning of the statute. The judge heard evidence from the government on the merits of the ineffective assistance charge and denied appellant's § 23-110 motion.[5]
This appeal arises from the court's order granting the government's Motion to Reconsider and Vacate the initial order granting relief. We affirm.
We sketch the procedural history of this case in some detail because the circumstances leading to this appeal are unusual and hopefully rare. The trial judge, in this instance, was addressing a collateral attack to appellant's convictions, an area which is becoming increasingly familiar to trial and appellate judges. In considering appellant's motion, the judge was, of course, governed by our statute, D.C.Code § 23-110, which provides in pertinent part:
§ 23-110. Remedies on motion attacking sentence.
(a) A prisoner in custody under sentence of the Superior Court claiming the right to be released upon the ground that (1) the sentence was imposed in violation of the Constitution of the United States or the laws of the District of Columbia, (2) the court was without jurisdiction to impose the sentence, (3) the sentence was in excess of the maximum authorized by law, (4) the sentence is otherwise subject to collateral attack, may move the court to vacate, set aside, or correct the sentence.
(b) A motion for such relief may be made at any time.
*334 (c) Unless the motion and files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall cause notice thereof to be served upon the prosecuting authority, grant a prompt hearing thereon, determine the issues, and make findings of fact and conclusions of law with respect thereto....
(d) A court may entertain and determine the motion without requiring the production of the prisoner at the hearing.
* * * * * *
In the trial court and in this court, appellant argues that the issuance of the unopposed order vacating appellant's convictions and granting a new trial, rendered the trial judge without authority or jurisdiction to take further action. Relying on language in the statute, appellant also urges that once he was released, he was no longer "a person in custody under sentence." It has never seriously been argued in this case that the order granting collateral relief was anything more than a response to what the court thought at the time to be an unopposed motion ripe for resolution without further notice as required by D.C.Code § 23-110(c). Thus, we believe the critical question we address is whether, under the circumstances, the trial judge could vacate a procedurally incorrect order entered by mistake or inadvertence.
We start with a premise, bottomed on necessity, that courts generally take care to avoid inadvertent or mistaken orders. Nonetheless, some instances will arise. In this case, once the trial court realized that, pursuant to § 23-110(c), it was the court's obligation to serve notice on the government, the court sought to correct its erroneous orderan action which appellant now challenges. In our review of the trial court's corrective action, the government urges us to follow the model of some federal courts, which deem a collateral attack upon a criminal conviction an independent civil action. See Heflin v. United States, 358 U.S. 415, 418 n. 7, 79 S.Ct. 451, 453 n. 7, 3 L.Ed.2d 407 (1959); United States v. Somers, 552 F.2d 108, 113 n. 9 (3d Cir.1977); Ferrara v. United States, 547 F.2d 861, 862 (5th Cir.1977). In taking this approach, FED.R.CIV.P. 60 has been invoked to address a problem of this nature. The government argues that the District of Columbia's identical rule, Super.Ct.Civ.R. 60, may be applied to cases such as this which would allow the trial judge to reconsider a final order. This rule (Super.Ct.Civ.R. 60(a) & (b)) provides in pertinent part:
Clerical mistakes in judgments, orders... and errors therein arising from over-sight or omission may be corrected by the court at any time of its own initiative or on the motion of any party.... On motion ... the Court may relieve a party from a final judgment, order, or proceeding [for] ... mistake, inadvertence, surprise, or excusable neglect....
However, we do not take this occasion to adopt this approach. Rather, we reiterate and rely upon the rationale that a trial court has "inherent power to correct its record so as to reflect the truth and insure that justice be served." Rich v. United States, 357 A.2d 421, 423 (D.C.1976).[6]
In Lindsay v. United States, 520 A.2d 1059 (D.C.1987), we affirmed the trial court's action reinstating a conviction and reimposing sentence after both had been set aside based on a procedural flaw involving an erroneous probation report.[7] 520 *335 A.2d at 1063. We found no implication of Constitutional double jeopardy concerns and rejected the "`doctrine that a prisoner, whose guilt is established by a regular verdict, is to escape punishment altogether because the Court committed an error'" or that "`a wrong move by the judge means immunity for the prisoner.'" Id. at 1064 (quoting Bozza v. United States, 330 U.S. 160, 166-67, 67 S.Ct. 645, 649, 91 L.Ed. 818 (1947)). The Supreme Court also favors giving trial courts the opportunity to correct their own errors, and points out that courts, by so doing, prevents unnecessary burdens on courts of appeals.[8]See United States v. Ibarra, ___ U.S. ___, ___, 112 S.Ct. 4, 6, 116 L.Ed.2d 1 (1991).
In the instant case, the trial court set aside a procedural flaw involving an order entered inadvertently and on the mistaken assumption that appellant's motion had been conceded by the government. We think it serves no meaningful purpose to hold that the trial court was powerless to vacate such a pro forma order. Were we to deny the court the power to correct purely administrative or procedural mistakes, appellant would be the recipient of an undeserved windfall. See Christian v. State, 309 Md. 114, 522 A.2d 945, 949 (1987).
The order, however, in this case was twofold. It not only set aside appellant's convictions, but also directed a new trial. These rulings are interwoven. Except for outright dismissal of the charges, vacated convictions are generally accompanied by the grant of a new trial. Courts have not been uniform as to the finality of an order granting a new trial.[9] In English v. State, 592 S.W.2d 949 (Tex.Crim.App.) (en banc), cert. denied, 449 U.S. 891, 101 S.Ct. 254, 66 L.Ed.2d 120 (1980), the court held that the action of a motions judge when he mistakenly signed an order granting the appellant a new trial, thinking it was a motion to amend a motion for a new trial, was "akin to a clerical error" that could also be corrected. Id. at 955-56. See also Moore, supra, 749 S.W.2d at 58; Ex parte Drewery, 677 S.W.2d 533, 536 (Tex.Crim.App. 1984) (en banc); Matthews v. State, 40 Tex. Crim. 316, 50 S.W. 368 (App.1899). In the instant case, we find the trial court's vacating of appellant's conviction and granting of a new trial, based on the mistaken belief that it could be treated as conceded, so interrelated as to be regarded as a unitary error which warrants correction in the interest of justice.[10]
Accordingly, we hold that the trial judge did not err in vacating its initial order and *336 this, of course, includes rescinding the grant of a new trial.
So ordered.
ROGERS, Chief Judge, concurring:
Two related but distinct legal issues are presented by this appeal: whether the trial court had jurisdiction under District of Columbia law to vacate its May 19, 1987, order granting a new trial and, if so, whether such action violated the Double Jeopardy Clause of the Fifth Amendment to the Constitution. The first issue presents a complex analytical issue that is important for the court to resolve on a sound, principled basis; otherwise, there would be no apparent limits, either substantive or temporal, on the extent to which the trial court could correct its final orders. For this reason, unlike the majority, I would not extend the limited holding of Rich v. United States, 357 A.2d 421, 423 (D.C. 1976) (per curiam) (correction of technical clerical errors), in order to conclude that the trial judge had authority to reconsider her grant to appellant of a new trial pursuant to D.C.Code § 23-110 (1989 Repl.). Instead, in view of our decision in Lindsay v. United States, 520 A.2d 1059 (D.C.1987), I would follow the courts that recognize a trial court's authority to reconsider a final order where a motion for reconsideration is filed within the allowable period for noting an appeal. See, e.g., United States v. Cook, 670 F.2d 46, 48 (5th Cir.), cert. denied, 456 U.S. 982, 102 S.Ct. 2255, 72 L.Ed.2d 860 (1982); United States v. Spiegel, 604 F.2d 961, 971 (5th Cir.1979), cert. denied, 446 U.S. 935, 100 S.Ct. 2151, 64 L.Ed.2d 787 (1980); United States v. Miller, 869 F.2d 1418, 1420-21 (10th Cir.1989); People v. Weller, 679 P.2d 1077, 1080-81 (Colo.1984) (en banc), and cases cited therein.
I
The first issue arises in the context of a statute that applies to "a prisoner in custody under sentence of the Superior Court."[1] Appellant maintains that once the trial judge set aside his conviction, vacated the sentence, ordered a new trial, and issued an order for his immediate release that was executed, the trial court was without authority to proceed under D.C.Code § 23-110.[2] His point is well taken in view of the express language of the statute and the trial court's order unconditionally releasing him from custody.[3] While agreeing that § 23-110 is the local equivalent of 28 U.S.C. § 2255, appellant maintains that the trial court lacked authority to reconsider its final order, see United States v. Jones, 423 A.2d 193, 196 n. 4 (D.C.1983) (trial court criminal rules do not provide for reconsideration motion), and that the only relief that was available was by government appeal under D.C.Code § 23-110(f).[4]
*337 The government offers several responses. It suggests that this court should affirm the January 19, 1988, order vacating the grant of a new trial because the subject matter before the judge, a motion under D.C.Code § 23-110, was analogous to a motion filed under 28 U.S.C. § 2255, and therefore, the trial judge could properly look to the federal statute in implementing § 23-110. Noting that Congress has enacted procedural rules to govern § 2255 motions, the government argues that the trial judge had authority to proceed as though a § 2255 Rule 12 existed for the District of Columbia courts.[5] In other words, the government maintains that "the trial court was not acting `under' the jurisdictional predicate of § 23-110 when it vacated the order of May 19, [1987,] but rather it was acting under the general authority of [Super.Ct.Civ.] Rule 60, which permits the court to vacate any previous order resulting from a mistake, or for any other reason justifying relief."
The difficulty with this approach is that this court has not promulgated an analogous § 2255 Rule 12 for § 23-110. See D.C.Code § 11-946 (1989 Repl.). Although the local rules of criminal and civil procedure are the same as the federal rules except as otherwise approved by this court, D.C.Code § 11-946, the provisions of D.C.Code § 23-110 have yet to be supplemented with a Rule 12 provision. Consequently, there was no basis on which the trial judge could properly grant the government's motion to vacate as being in the nature of a motion filed under Super.Ct.Civ.R. 60(b).[6]
The majority also declines to adopt the government's federal-rules approach, but concludes that the trial judge had jurisdiction to reconsider her order granting a new trial based on the trial judge's "inherent power to correct its record so as to reflect the truth and insure that justice be served." Opinion at 334, quoting Rich, supra, 357 A.2d at 423. However, the instant case is not analogous to Rich. In Rich, the record showed that the trial judge intended to confine Rich, but issued an order that mistakenly referred to 18 U.S.C. § 5010(a) of the Federal Youth Corrections Act providing for probation. Upon discovering his mistake, the judge corrected his order to read "commitment under § 5010(b)." Rich, supra, 357 A.2d at 422-23. On appeal the court relied on the fact that "the record clearly reveals the intention of the sentencing judge to incarcerate [Rich]" because the trial judge had announced during the sentencing hearing that Rich would be sentenced under § 5010(a) "until such time `as they determine you would be eligible for parole,'" id. at 423, and reiterated that "if they feel [Rich] does progress ... then they can make the determination as to when he should be released," Id. at 422. Thus, in view of the trial judge's statements of record indicating his intention to confine Rich, the reference to § 5010(a) in the record was clearly a clerical mistake in recording the trial judge's true intention at the time the order was written, and it was not an attempt by the trial judge to change his opinion in light of newly discovered facts or circumstances.[7] The cases relied on by the court *338 in Rich also involve trial court correction of a record to accurately reflect either an established fact or the trial court's true intentions at the time the mistake was recorded.[8]
Unlike Rich, the trial judge's decision to vacate her order granting appellant a new trial was more than a mere attempt to correct a clerical mistake in the record. The failure to provide the government with statutory notice under D.C.Code § 23-110(c) was a procedural error as opposed to a mere clerical one. The written order granting appellant a new trial accurately recorded the trial judge's intention at the time it was issued. The record did not incorrectly reflect the fact that the government had failed to respond to appellant's motion because, regardless of the cause, the government, in fact, did not respond. Therefore, because there was no clerical mistake in the record for the trial judge to correct, the rationale of Rich is inapplicable.
Furthermore, it would be unwise, in my view, to extend the limited holding in Rich with regard to clerical errors to the trial court's correction of procedural errors. The court in Rich acknowledged only the trial court's "inherent power to correct its record so as to reflect the truth and insure that justice be served." Rich, supra, 357 A.2d at 423. This rationale does not readily adapt to the proposition that a trial court has authority to reconsider the vacation of a judgment of conviction upon discovery of a procedural error. In contrast to the correction of an error as a result of a mistake in recording the judge's true intention at the time the judge acted, procedural corrections require the trial court to exercise its discretion anew before the record can be amended to reflect what it theoretically would have contained had the procedural error had not occurred.[9] In addition, were the broad language of Rich extended to the correction of procedural errors, the trial court would have authority to reconsider errors at any time, regardless of whether the time for appeal had expired. Such an extension of Rich would undermine the interest that the court, the government and the defendant have in the finality of decisions.[10]
Therefore, rather than extend Rich, I would follow the courts that recognize the authority of the trial court to reconsider the grant or denial of a new trial where a motion for reconsideration is filed within *339 the time period to note an appeal. This approach is consistent with the government's suggestion that the trial judge had jurisdiction by analogy to correction of an erroneous entry of a judgment of acquittal following a jury verdict, citing United States v. Jenkins, 420 U.S. 358, 365, 95 S.Ct. 1006, 1010-11, 43 L.Ed.2d 250 (1975) (citing United States v. Wilson, 420 U.S. 332, 344-45, 95 S.Ct. 1013, 1022-23, 43 L.Ed.2d 232 (1975)).[11]
Observing that cases on the jurisdictional issue are sparse, the Fifth Circuit Court of Appeals in Spiegel, supra, 604 F.2d at 971, held that the trial court had jurisdiction to reconsider its grant of a new trial where the government's motion for reconsideration had been timely filed, there was no vacation of conviction and the basis for the grant of the new trial had not been fully briefed at the time the order was entered.[12] Instructive also is the decision in Cook, supra, where the Fifth Circuit, in considering whether Cook could file a petition for rehearing by the trial court of its denial of a new trial, noted that while the Federal Rules of Criminal Procedure did not specifically provide for a petition for rehearing, "[t]he Supreme Court has repeatedly and expressly sanctioned the use of motions for reconsideration in criminal proceedings," and that the underlying rationale for this "`traditional and virtually unquestioned practice'" is one of judicial economy. 670 F.2d at 48 (quoting United States v. Healy, 376 U.S. 75, 79, 84 S.Ct. 553, 556, 11 L.Ed.2d 527 (1964)).[13] The Tenth Circuit Court of Appeals has followed the same reasoning with respect to the denial of a motion for a new trial. Miller, supra, 869 F.2d at 1420-21 (citing Cook, supra, 670 F.2d at 48); see United States v. Arrington, 757 F.2d 1484, 1486 (4th Cir.1985) (grant of new trial may be reconsidered before retrial and denied (citing Spiegel, supra, 604 F.2d at 970-72; 3 WRIGHT, FEDERAL PRACTICE AND PROCEDURE § 551 (1982))).
A number of the state courts have likewise balanced the interests of judicial economy and finality in favor of some trial court authority to reconsider its orders. Thus, in Weller, supra, 679 P.2d at 1081, the Colorado Supreme Court observed that:
it would make little sense to hold that if a judge responsible for the final judgment perceived that a motion for a new trial had been granted erroneously, he *340 nonetheless could not reconsider his order before final judgment is entered or a notice of appeal filed. It also would make little sense for us to require the expense and burdens of a new trial if the judge who originally ordered the trial believes that he erred in granting the new trial motion.
Other state courts agree. See id. at 1080-81 (cases cited). In still others, greater emphasis is placed on the interest in finality, with some courts drawing a distinction based on whether or not the trial court order was a decision on the merits, where both sides had an opportunity to present their positions.[14] Even those courts that view an order granting a new trial as an interlocutory order generally construe the trial court to have jurisdiction only before a final judgment is entered.[15]
Such trial court authority to reconsider is not without limitation. Thus, "[i]t is well established that in criminal proceedings, petitions for rehearing are timely filed if made within the period allotted for the noticing of an appeal." Cook, supra, 670 F.2d at 48 (citing Browder v. Director, Department of Corrections of Illinois, 434 U.S. 257, 98 S.Ct. 556, 54 L.Ed.2d 521 (1978) (citing Healy, supra, 376 U.S. at 78, 84 S.Ct. at 555)); see Weller, supra, 679 P.2d at 1081 (trial court may reconsider grant of new trial before entry of final judgment and filing of notice of appeal). This limit follows logically from the rationale of judicial economy underlying the trial court's authority to reconsider its orders: if the time for appeal has expired, it cannot reasonably be argued that the trial court's reconsideration would save the resources of the appellate court because an appeal can, in fact, no longer be taken. Thus, in the wake of abolishment of terms of court, the trial court is without jurisdiction to grant relief in criminal cases that have become final, because the time for appeal has expired, in the absence of a statute or a rule of the court. See United States v. Breit, 754 F.2d 526, 530 (4th Cir.1985), and cases cited therein.
In addition, there is the limitation that arises under double jeopardy when the trial court has set aside a judgment of conviction. See, e.g., Spinella, supra note 12, 506 F.2d at 430 (after granting new trial, trial court "had no power to revive a judgment of conviction that became a nullity when the defendants were placed in jeopardy in the second trial"), and note 12, supra. Thus, in Stewart v. United States, 439 A.2d 461, 464 (D.C.1981) (per curiam), this court observed that until trial terminates upon entry of judgment, the trial court is *341 free to reconsider its rulings, and held that because no final judgment of acquittal had been entered on any court documents, and the defendant had not been discharged and subsequently brought back to stand trial, the trial judge had jurisdiction immediately to reconsider its grant of a motion for judgment of acquittal at the close of the government's case. 439 A.2d at 464. In Lindsay, supra, moreover, the court held, in response to a double jeopardy challenge, that a procedural mistake may be corrected after vacation of the judgment of conviction.[16] 520 A.2d at 1063. In that case, the trial court's order of early discharge of the defendant from probation, with the consequent setting aside of underlying conviction under 18 U.S.C. § 5021(b), was erroneous in law and in fact.[17]Id. This court found no double jeopardy bar to the reinstated probation as a result of vacations of an order of early discharge from probation and an order setting aside a judgment of conviction that were themselves tantamount to an illegal sentence. 520 A.2d at 1063 ("analogous to an illegal sentence").[18] Citing Jenkins, supra, 420 U.S. at 365, 95 S.Ct. at 1010-11, the court concluded "[l]ikewise here, the vacation of the erroneous order simply reinstates the original probationary status; no new prosecution or new punishment is involved."[19]Id.; see Fine v. Commonwealth, 312 Mass. 252, 259-61, 44 N.E.2d 659, 664 (1942) (trial court of general jurisdiction has "power to rehear and redecide a motion for new trial that has been either denied or granted" "to the end that justice may be served;" no double jeopardy violation).
In the instant case, the trial judge granted appellant's motion for a new trial "as conceded pursuant to D.C.R-Criminal R. 47I(c)," on May 19, 1987, because the government had failed to respond. The judge, in other words, did not address the merits of appellant's motion for a new trial. See notes 14 & 15, supra. Furthermore, although the trial judge had vacated the judgment of conviction and thereby nullified the jury's verdict a nullity, the trial judge's order granting a new trial was clearly erroneous in law to the extent that the judge had failed to order the government to file a response to the motion. See D.C.Code § 23-110(c). Moreover, although the trial judge had ordered appellant's release, and appellant, in fact, had been released from custody, he was not recalled into custody after the judge vacated her order granting a new trial.[20] Finally, the *342 government filed its motion for reconsideration on May 21, 1987, two days after the judge had vacated the judgment of conviction and granted a new trial, and within the 30-day period for noting an appeal in a criminal case. D.C.App.R. 4(b)(1). Under these circumstances, I conclude that the trial judge had jurisdiction to consider the government's motion for reconsideration of her order granting appellant a new trial.[21]Cf. Bozza, supra note 18, 330 U.S. at 167, 67 S.Ct. at 649 (court "only set aside what it had no authority to do" in sentencing defendant (citation and internal quotation omitted)).
Accordingly, because I join the majority in concluding that the second issue is resolved by Lindsay, supra, 520 A.2d at 1063, I concur in affirming the order of January 19, 1988.
NOTES
[1] Appellant's pro se letter claiming ineffective assistance of counsel was written subsequent to trial but prior to sentencing; thus it is properly treated as filed pursuant to Super.Ct.Crim.R. 33 rather than D.C.Code § 23-110 which "only authorizes a motion `to vacate, set aside, or correct [a] sentence.'" Johnson v. United States, 585 A.2d 766, 769 and 769 n. 3 (D.C.1991) (emphasis added).
[2] Service of the motion upon opposing counsel is provided for by rule, and absent a response, the court may treat the motion as conceded. (Super.Ct.Crim.R. 47-I(a-c)).
[3] The statute provides in pertinent part that "[u]nless the motion and files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall cause notice thereof to be served upon the prosecuting authority." D.C.Code § 23-110(c).
[4] D.C.Code § 23-110(c). The court at a later hearing acknowledged as much.
[5] The government presented testimony from the arresting officers and appellant's trial counsel refuting appellant's claim. At the conclusion of the hearing the court found no basis for the allegation of ineffective assistance of counsel and denied appellant's motion for a new trial.
[6] We cannot agree with our concurring colleague that Rich involved a strictly clerical error and thus, is not analogous to this case. In Rich, the trial court apparently believed that a sentence under 18 U.S.C. § 5010(a) was an incarcerative sentence. Based on that mistake, the trial court orally pronounced a 5010(a) sentence and entered a written judgment and commitment order to that effect. 357 A.2d at 423. Although the trial court's intention to incarcerate the defendant in Rich was discernible from the record, it was not strictly a clerical error. Thus, this court recognized the inherent power of the court to correct the mistake in the interests of justice. Id. It is that rationale we employ here in reaching our decision.
[7] This court has also allowed a trial judge to correct an illegal sentence after final judgment of a conviction and sentence. In Byrd v. United States, 487 A.2d 616 (D.C.1985), we held that a court's sua sponte vacating the original sentence which proved to be illegal and resentencing the defendant to a longer incarceration was valid. 487 A.2d at 617. See also Gray v. United States, 585 A.2d 164 (D.C.1991); Stewart v. United States, 439 A.2d 461 (D.C.1981); Christopher v. United States, 415 A.2d 803 (D.C.1980).
Although there was no illegality in the instant case, these decisions lend support to the principle that the court may correct its own mistakes.
[8] This is a presumed benefit which we also favor.
[9] Some states have held once a new trial is granted, absent a clerical error, it is a final order that cannot be rescinded. See Moore v. State, 749 S.W.2d 54, 58 (Tex.Crim.App.1988). Others have held that a trial court may reconsider its order granting or denying a new trial, under certain circumstances. See United States v. Miller, 869 F.2d 1418, 1421 (10th Cir.1989) (motion to reconsider allowed if timely filed); United States v. Doherty, 675 F.Supp. 726, 729 (D.Mass.1987), cert. denied, 492 U.S. 918, 109 S.Ct. 3243, 106 L.Ed.2d 590 (1989) (motion to reconsider denial of new trial allowed for intervening change in law when filed prior to final judgment); United States v. Spiegel, 604 F.2d 961, 971 (5th Cir.1979), cert. denied, 446 U.S. 935, 100 S.Ct. 2151, 64 L.Ed.2d 787 (1980) (trial court had jurisdiction and discretion to reconsider grant of new trial where motion to reconsider was filed within statutory period even where movant's brief was late). Courts in Maryland allow reconsideration of an order granting or denying a new trial even where the first order was the result of a determination on the merits. The trial court must reconsider, however, within the term of court or if it is a collateral order issued prior to entry of final judgment. See Christian, supra, 522 A.2d at 949; Williamson v. State, 25 Md.App. 338, 333 A.2d 653 (1975).
[10] In this case, the motion to reconsider which resulted in the vacation of the prior order was filed only two days after the original order. We agree with our concurring colleague that there is no impediment to correction of the earlier order on these facts. We need not decide whether the trial court can correct similar errors upon motions filed after the expiration of the time on noting an appeal because those facts are not before us.
[1] D.C.Code § 23-110(a) provides:
(a) A prisoner in custody under sentence of the Superior Court claiming the right to be released upon the ground that (1) the sentence was imposed in violation of the Constitution of the United States or the laws of the District of Columbia, (2) the court was without jurisdiction to impose the sentence, (3) the sentence was in excess of the maximum authorized by law, (4) the sentence is otherwise subject to collateral attack, may move the court to vacate, set aside, or correct the sentence.
[2] Appellant was sentenced on February 26, 1986, and filed a notice of appeal on March 6, 1986. This appeal was remanded so that appellant could pursue a motion under D.C.Code § 23-110. On December 16, 1986, he filed a motion for a new trial. Receiving no response from the government, the trial judge granted the motion on May 19, 1987. The trial judge also ordered that appellant be released, by order of May 21, 1987, and certified the case for a new trial. This court dismissed the original appeal by order of June 3, 1987.
[3] See Streater v. United States, 429 A.2d 173, 174 (D.C.1980), cert. denied, 451 U.S. 902, 101 S.Ct. 1966, 68 L.Ed.2d 289 (1981); Butler v. United States, 388 A.2d 883, 886 (D.C.1978); Zaffarano v. Fitzpatrick, 404 F.2d 474, 478 (2nd Cir.1968), cert. denied, 395 U.S. 977, 89 S.Ct. 2130, 23 L.Ed.2d 766 (1969); see also Maleng v. Cook, 490 U.S. 488, 109 S.Ct. 1923, 1925, 104 L.Ed.2d 540 (1989) (28 U.S.C. § 2241habeas corpusunavailable where sentence had fully expired); Hirabayashi v. United States, 828 F.2d 591, 604 (9th Cir.1987).
[4] D.C.Code § 23-110(f) provides that "An appeal may be taken to the District of Columbia Court of Appeals from the order entered on the motion as from a final judgment on application for a writ of habeas corpus."
[5] 28 U.S.C. § 2255 Rule 12 provides:
If no procedure is specifically prescribed by these rules, the district court may proceed in any lawful manner not inconsistent with these rules, or any applicable statute, and may apply the Federal Rules of Criminal Procedure or the Federal Rules of Civil Procedure, whichever it deems most appropriate, to the motions filed under these rules.
See United States v. Frady, 456 U.S. 152, 166-68 n. 15, 102 S.Ct. 1584, 1593-95 n. 15, 71 L.Ed.2d 816 (1982) (discussing the rule).
[6] The trial judge excused the government's failure to file a response to appellant's motion under § 23-110 as "excusable neglect" noting that because appellant had not filed his motion until approximately eleven months later:
[t]his delay in filing led the Government to follow its usual practice of awaiting an order of the Court to respond to defendant's motion, pursuant to 28 U.S.C. § 2255 and 28 U.S.C. § 2255 R. 3(b) [copy of motion to be served on United States, which shall answer only if directed by the court] and [R.] 4(b) [U.S. Attorney to be ordered to file answer if judge cannot summarily dispose of motion on its face, attached exhibits and prior proceedings].
[7] In Borum v. United States, 133 U.S.App.D.C. 147, 155, 409 F.2d 433, 441 (1967), cert. denied, 395 U.S. 916, 89 S.Ct. 1765, 23 L.Ed.2d 230 (1969), in the absence of an on-the-record indication by the trial judge at the time of imposing sentence of his intent to impose consecutive sentences, the U.S. Court of Appeals for the District of Columbia Circuit held that the judge was without authority to clarify the record subsequently to state that consecutive sentences were intended since doing so had the effect of increasing the sentence.
[8] Rich, supra, 357 A.2d at 423, (citing Fisher v. Small, 166 A.2d 744, 746 (D.C.1960) (inherent authority to correct record to accurately reflect actual date a motion was filed); Kennedy v. Reid, 101 U.S.App.D.C. 400, 403-04, 249 F.2d 492, 495-96 (1957) (same, to correct error by clerk's office in transposing defendant's sentence from the transcript and docket to commitment papers); Downey v. United States, 67 U.S.App.D.C. 192, 199, 91 F.2d 223, 230 (1937) (same, to correct ambiguously recorded sentences to reflect judge's intent at time of sentencing).
[9] The majority does not explain its reasoning in asserting that the trial court's mistake in Rich "was not strictly a clerical error." Opinion at 334 n. 6. Furthermore, regardless of what label is used to characterize the trial court's mistake in Rich, the majority does not dispute the underlying distinction that the trial court's mistake in the instant case, unlike that in Rich, required the trial court to exercise its discretion anew upon the consideration of additional facts and circumstances.
[10] For these reasons, the majority's expansion of Rich makes clear the need for rules in this area. Even under 28 U.S.C. § 2255 Rule 12 there are some time limitations. See 28 U.S.C. § 2255 Rule 12 advisory committee notes ("Since § 2255 has been considered analogous to habeas corpus as respects the restrictions in Fed.R.Civ.P. 81(a)(2) (see Sullivan v. United States, 198 F.Supp. 624 (S.D.N.Y.1961)), rule 12 is needed."); see also Ayre v. State, 291 Md. 155, 158-60, 433 A.2d 1150, 1153 (1981) ("[i]n Maryland all judgments are under the control of the [trial] court during the term in which they are entered, and during that time the court has inherent power to strike out or modify judgments in both civil and criminal cases") (quoting Madison v. State, 205 Md. 425, 431, 109 A.2d 96, 99 (1954)); State v. Bundy, 52 Md.App. 456, 459-61, 450 A.2d 495, 497 (1982) (referring to local 30-day rule giving trial court authority to revise a judgment after its entry).
[11] Neither Jenkins, supra, nor Wilson, supra, provide a basis on which to conclude that the trial judge had jurisdiction under District of Columbia law. In those cases the government had appealed under 18 U.S.C. § 3731. See Jenkins, supra, 420 U.S. at 364, 95 S.Ct. at 1010 (appeal from post trial dismissal of indictment and release of defendant); Wilson, supra, 420 U.S. at 334, 95 S.Ct. at 1017 (appeal from grant of post-verdict motion dismissing indictment because of prejudicial preindictment delay). The government in the instant case did not appeal under D.C.Code § 23-110(f), which appellant maintains is the government's only remedy. In addressing double jeopardy, the Court stated in Jenkins, supra, that "a conclusion by an appellate court that the judgment of acquittal was improper does not require a criminal defendant to submit to a second trial; the error can be corrected on remand by entry of a judgment on the verdict." 420 U.S. at 365, 95 S.Ct. at 1010. In Wilson, supra, the Court held that double jeopardy did not bar a government appeal when errors of law may be corrected and the result will simply be reinstatement of a jury's verdict of guilty or a judge's finding of guilt and not a second trial. 420 U.S. at 353, 95 S.Ct. at 1026-27.
[12] The Fifth Circuit had earlier held in United States v. Spinella, 506 F.2d 426, 430 (5th Cir. 1975), that once a second trial had begun, the trial court had no power to vacate its order granting a new trial and to reinstate the conviction obtained in the first trial. In Spiegel, supra, 604 F.2d at 971, the government had urged the court "to accept Spinella's broad obverse, that the district court can alter new trial orders and revive convictions until jeopardy attaches in the second trial," but the court found that it "need not go as far as the government urges."
[13] The Supreme Court explained in Healy, supra, that allowing the trial court to reconsider its decision could ultimately save time at the appellate level:
[T]o deprive the Government of the opportunity to petition a lower court for the correction of errors might, in some circumstances, actually prolong the process of litigation since plenary consideration of a question of law here ordinarily consumes more time than disposition of a petition for rehearingand could, in some cases, impose an added and unnecessary burden of adjudication upon this Court.
376 U.S. at 80, 84 S.Ct. at 556 (footnote omitted).
[14] See Weller, supra, 679 P.2d at 1080 (citing Burton v. State, 296 So.2d 79, 80 (Fla.Dist.Ct. App.1974) (where timely motion for new trial considered on merits, and motion granted or denied thereafter, trial court is without authority to consider petition for rehearing absent fraud or clerical error; interest in finality in view of fact that the government should be prepared to meet allegations of motion for new trial at hearing on the motion), vacated on other grounds, 314 So.2d 136 (Fla.1975)); People v. Lindsey, 275 Cal.App.2d 340, 342-44, 79 Cal. Rptr. 880, 882-83 (1969) (long held that trial court has no jurisdiction to vacate its grant of a new trial); see also State v. Morris, 359 So.2d 478 (Fla.Dist.Ct.App.1978) (trial court had no jurisdiction to reconsider denial of new trial upon discovery of new appellate decision; "[j]udicial error or `mistake' is a matter for appeal.... The trial court's jurisdiction must and does terminate with denial of a motion for a new trial" in absence of fraud or clerical error) (citing State v. Burton, supra, 314 So.2d at 136)); State Farm Mutual Ins. Co. v. Senn, 277 Ala. 508, 510-11, 172 So.2d 533, 535 (1965) (trial court had no "discretionary power to set aside an order ..., in which [it] overruled a motion for a new trial" (citation and internal quotation omitted)); Ayre v. State, supra note 10, 291 Md. at 158-60, 433 A.2d at 1153 (trial court has authority to strike its judgment anytime during term of court in which order rendered); Christian v. State, 309 Md. 114, 120, 522 A.2d 945, 948 n. 3 (1987) ("We expressly leave open the question of whether a new trial order entered after final judgment may be reconsidered, and if so, within what time it may be reconsidered." (emphasis in original)). See% note 15, infra.
[15] See Weller, supra, 679 P.2d at 1080 (citing Spiegel, supra, 604 F.2d at 971 (where reconsideration timely and judgment not vacated, trial court had jurisdiction to grant motion vacating new trial granted after hearing on merits)); see also People v. Poole, 7 Mich.App. 237, 240-42, 151 N.W.2d 365, 368 (1967) (trial court may "set aside and vacate an order for a new trial improvidently granted" on misapprehension of facts) (citing People v. Beath, 277 Mich. 473, 479, 269 N.W. 238, 240 (1936)); People v. Phino, 80 A.D.2d 804, 437 N.Y.S.2d 104 (1981) (same).
[16] There was no challenge in Lindsay, supra, to the trial court's jurisdiction to vacate the order setting aside the conviction and the order of early discharge from probation. 520 A.2d at 1063.
[17] In distinguishing Borum, supra note 7, 133 U.S.App.D.C. at 155, 409 F.2d at 441, the court noted that there was "ample evidence of irregularity in the issuance of the June 28 order [of early discharge from probation]." Lindsay, supra, 520 A.2d at 1063 n. 6.
[18] The court also rejected the claim that "the automatic `setaside' of the conviction under 18 U.S.C. § 5021(b) is the functional equivalent of the entry of a judgment of acquittal, to whose retraction even if erroneously entered the double jeopardy clause generally acts as a bar." Lindsay, supra, 520 A.2d at 1063 (set aside "does not totally `rewrite history,' or alter fact of conviction, but only shields it from public view, and thus "is distinctly different from, the final and unqualified act of an acquittal. Cf. Stewart v. United States, supra, 439 A.2d [at] 464"); see id. at 1064 ("On the facts here, ... the set aside can have no more protected status than the erroneous order of early discharge upon which it depends." (citing Bossa v. United States, 330 U.S. 160, 166-67, 67 S.Ct. 645, 649, 91 L.Ed. 818 (1947)).
[19] In Wilson, supra, 420 U.S. at 345, 95 S.Ct. at 1023 the Court stated, in addressing the government's right to appeal:
It is difficult to see why the rule [that Double Jeopardy is not offended where an appellate court's order reversing a conviction is subject to further review] should be any different simply because the defendant has gotten a favorable post-verdict ruling of law from the [trial] [j]udge rather than from the Court of Appeals.... Although review of any ruling of law discharging a defendant obviously enhances the likelihood of conviction and subjects him to continuing expense and anxiety, a defendant has no legitimate claim to benefit from an error of law when that error could be corrected without subjecting him to a second trial before a second trier of fact.
[20] The trial judge stated at the time of the hearing on appellant's § 23-110 motion to vacate, following the vacation of her order granting a new trial, that she had not yet reinstated appellant's sentence.
[21] Although the trial judge took nine months to rule on the government's motion for reconsideration, the delay does not present a bar to her jurisdiction to act because jurisdiction vested when the government timely filed its motion.
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322 A.2d 587 (1974)
Reginald W. ATKINSON, Appellant,
v.
UNITED STATES, Appellee.
No. 7634.
District of Columbia Court of Appeals.
Argued April 15, 1974.
Decided July 10, 1974.
*588 Michael J. McCarthy, Washington, D. C., appointed by this court, for appellant.
James N. Owens, Asst. U. S. Atty., with whom Earl J. Silbert, U. S. Atty., and John A. Terry, Asst., U. S. Atty., were on the brief, for appellee.
Before FICKLING and NEBEKER, Associate Judges, and PAIR, Associate Judge, Retired.
PAIR, Associate Judge, Retired:
This appeal is from convictions for armed robbery,[1] assault with a dangerous weapon,[2] receiving stolen property,[3] and carrying a pistol without a license.[4] The sentences were concurrent; the longest, 6-18 years, was imposed on the armed robbery count. Appellant assigns as error (1) the court's supplemental instruction to the jury on aiding and abetting, and (2) the denial of his motion for a judgment of acquittal on the receiving stolen property count.
The testimony at trial established that on the evening of January 26, 1973, a cashier at a local drugstore was robbed at gunpoint by two men. Appellant was identified as the possessor of the weapon. His companion, who took the money from the clerk, was never apprehended. As the robbers left the store a plainclothes security officer, who was joined by two officers of the Metropolitan Police Department, pursued them and, after a short chase punctuated by exchanges of gunfire, appellant was apprehended. During the chase appellant was observed to throw an object into nearby bushes. Recovered from the bushes was a gun and, from appellant's clutched hand, $6.00 in cash.
At the close of the evidence, the jury was instructed as to the elements of robbery, armed robbery, assault with a dangerous weapon, receiving stolen goods, and carrying a pistol without a license. The prosecution did not request an instruction on aiding and abetting and the trial judge did not give, sua sponte, such an instruction. Counsel, both for the government and for appellant, indicated satisfaction with the court's instructions.
After deliberating several hours, the foreman of the jury sent to the court a note which read:
First Count. Does it matter that Mr. Atkinson [appellant] did not receive the money from Susan Fisher?
Foreman
Robert R. Hardy
The court, after discussing the contents of the note with counsel, re-instructed the jury on the elements of armed robbery and then gave, notwithstanding objection by appellant's counsel, a supplemental instruction on aiding and abetting. Two hours later the jury returned its verdict.
It is well established that the feasibility and scope of any re-instruction of a jury is a matter within the discretion of the trial judge. United States v. Wharton, 139 U.S.App.D.C. 293, 296 n.9, 433 F. 2d 451, 454 n.9 (1970); Mendelson v. United States, 61 App.D.C. 127, 129, 58 F.2d 532, 534 (1932). Appellant contends, however, that because in the case at bar the jury had commenced its deliberations, the court abused its discretion in giving the supplemental aiding and abetting instruction. We disagree.
The note from the jury clearly indicated the need for further instruction. By coupling a re-instruction on the elements of armed robbery with the supplemental aiding and abetting instruction, the court minimized the possibility of further confusion *589 in the minds of the jurors as they continued their deliberations. Certainly, such instructions were preferable to a general deadlock instruction. See Winters v. United States, D.C.App., 317 A.2d 530 (1974). In any event, appellant made no request for permission to present additional argument to the jury on the matters covered by the supplemental instruction. Cf. Martin v. State, 236 Ark. 409, 366 S.W.2d 281 (1963); Jackson v. State, 216 Ark. 341, 225 S.W.2d 522 (1949).
Appellant says, however, that aiding and abetting the commission of the armed robbery was a lesser included offense and that the supplemental instruction, in effect, permitted the government to change the theory of the prosecution after the jury had commenced its deliberations. No authority has been cited and we have found none which supports the proposition that an aider and abettor of an armed robbery is guilty of a lesser included offense. To the contrary, D.C.Code 1973, § 22-105 provides in language crystal clear that any person aiding and abetting the principal offender shall be charged as a principal. See in this connection Ladrey v. United States, 81 U.S.App.D.C. 127, 155 F.2d 417 (1946); In re Reeder, D.C.App., 264 A.2d 893 (1970).
Appellant's other assignment of error, viz., the denial of his motion for a judgment of acquittal as to the charge of receiving stolen property, is more troublesome. Though reversal of the conviction under this count will not affect the greater sentence of 6-18 years for armed robbery, we nonetheless consider the point. The indictment charged as to ownership that the stolen property, a pistol, was the property "of William J. Burns International Detective Agency, Inc., a body corporate.. . ."
At trial the following colloquy took place between the prosecutor and the Burns security officer who had custody of the pistol when it was stolen:
BY THE PROSECUTOR:
Q. Mr. Edwards, I'm showing you a pistol that's been marked as Government's Exhibit Number 1 for identification, and ask you to examine that and tell me if you recognize that pistol?
A. Yes, sir, I do, sir. This is the one that was taken from me.
Q. Are you sure that is your pistol?
A. That's the one.
Q. When this pistol was taken from you, who owned it?
A. Burns Detective Agency.
The government offered no other evidence regarding the ownership of the pistol.
Urging reversal of his conviction on the receiving stolen property count, appellant contends that there was no evidence purporting to establish the corporate existence of the complainant and that, accordingly, the government failed to prove ownership of the pistol. We agree. As this court pointed out in Nelson v. United States, D.C.Mun.App., 142 A.2d 604, 605 (1958):
There is a fundamental requirement in every prosecution that the Government must, directly or circumstantially, prove the essential elements of the crime charged. . . . And when ownership is claimed to be in a corporation, such claim must be supported by evidence.
The existence of a corporation may be proven by production of a charter or certificate of incorporation, by a license to do business as such, or "even by parol evidence of incorporation or of user or reputation * * *" Bimbo v. United States, 65 App.D.C. 246, 82 F.2d 852, 855, certiorari denied 297 U.S. 721, 56 S.Ct. 670, 80 L.Ed. 1006. The requirement may be met by evidence tending to show that an organization was a de facto corporation and acting as such. Bord v. United States, 76 U.S.App.D.C. 205, 133 F.2d 313, certiorari denied 317 U.S. 671, 63 S.Ct. 77, 87 L.Ed. 539. The *590 proof need not be of an elaborate or highly formal nature. But some proof there must be. Underhill, Criminal Evidence, § 593 (5th ed. 1957); 23 C.J.S. Criminal Law § 921.
Significantly enough, in Nelson what purported to be an impression of the seal of the corporation involved was introduced into evidence, but was held to have no probative value the court saying:
. . . This is no mere technicality, and the law recognizes that "ordinarily it is a perfectly simple matter to prove [it] by parol testimony." See Wigmore, Evidence, § 2169 (3d ed. 1940). Defendant's motion for dismissal should have been granted.
From this it follows that the judgment of conviction for receiving stolen property must be set aside. In all other respects the judgments of conviction are affirmed.
Affirmed in part; reversed in part.
NOTES
[1] D.C.Code 1973, §§ 22-2901 & 22-3202.
[2] D.C.Code 1973, § 22-502.
[3] D.C.Code 1973, § 22-2205.
[4] D.C.Code 1973, § 22-3204.
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835 F.Supp. 157 (1993)
SECURITIES AND EXCHANGE COMMISSION, Plaintiff,
v.
Richard L. KAUFMAN, Defendant.
No. 85 Civ. 4787 (JES).
United States District Court, S.D. New York.
October 20, 1993.
S.E.C., Attorneys for Plaintiff, Washington, DC (James A. Brigagliano, Asst. Gen. Counsel for S.E.C., John A. Meynardie, Special Counsel, Valerie G. Preiss, of counsel), for plaintiff.
Richard L. Kaufman, pro se.
MEMORANDUM OPINION AND ORDER
SPRIZZO, District Judge.
Defendant pro se Richard L. Kaufman ("Kaufman" or "defendant") brings this application for reimbursement of costs, fees and expenses pursuant to the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412 (1988).[1] For the reasons that follow, defendant's motion is granted in part and denied in part.
*158 BACKGROUND
On June 20, 1985, the Securities and Exchange Commission (the "Commission") filed a complaint against Kaufman, among others, seeking a permanent injunction for alleged primary and secondary violations of the Securities Exchange Act, to wit, sections 10(b), 13(a) and 13(b)(2), 15 U.S.C. §§ 78j(b), 78m(a), 78m(b)(2), and Rules 10b-5, 13b2-1, 12b-20, 13a-1 and 13a-13, 17 C.F.R. §§ 240.10b-5, 240.13b2-1, 240.12b-20, 240.13a-1 and 240.13a-13 promulgated thereunder. On October 15, 1990, the Commission agreed to a dismissal with prejudice of the case against Kaufman.
Kaufman served as Vice President and Controller of AM International from in or about June, 1979, until in or about October, 1979. See Joint Pre-Trial Order dated March 30, 1990 ("PTO"), ¶ 16(B)(xi). After that he was AM International's Vice President of Operations until in or about April, 1981, at which time he left the company. Id.; Def.Mem.Fact at 2. From January 18, 1980, until April, 1981, he was simultaneously President and General Manager of AM Multigraphics, an unincorporated division of AM International. PTO, ¶¶ 13, 16(B)(xi). Since he left the company in April, 1981, Kaufman has been continuously unemployed. Def. Mem.Fact at 2.
Within thirty days following the resolution after trial of the case against Price Waterhouse, et al., (hereinafter referred to as "the main case"), Kaufman applied as a prevailing party under the EAJA for reimbursement of his costs, fees and expenses incurred over his five years of litigation. Kaufman has submitted a "Bill of Costs" itemizing that for which he seeks reimbursement. See Bill of Costs dated August 5, 1992. In a letter to the Court dated August 5, 1992, Kaufman refers to the Bill of Costs as a summary of his fees and expenses reflecting the "expenditure of time, labor and thought necessary for the preparation of [the] case." That Bill of Costs documents that he spent 4,515 hours preparing his defense and computes compensation at a $398.37 hourly rate (based on his 1980 hourly rate indexed for inflation) for a total of $1,798,640.50. Id. It also lists a total of $19,662.30 in "out-of-pocket expenses," indexed for inflation, related to travel, typing, and miscellaneous (i.e., expenses for mailing, telephone, supplies, local mileage, dictation equipment, passport, duplication, storage, shipping, and translation). Id.
DISCUSSION
Under the EAJA, a prevailing party in any civil action brought by any agency of the United States whose position in that litigation was not substantially justified shall recover his fees and other expenses and may recover his costs.[2] Kaufman seeks to recover all three, i.e., his costs, fees and expenses. In its papers submitted in opposition to Kaufman's application, the Commission did not contest Kaufman's allegation that their position was not substantially justified.[3]
*159 Although Kaufman expressly disclaimed any attempt to recover attorney fees in his August 5 letter to the Court, he does request compensation for hours spent preparing his case. The Second Circuit has indicated, however, that that form of compensation is not recoverable since non-lawyers who appear pro se may not recover attorney fees unless the litigation caused them to divert their time from income-producing activity. See Sommer v. Sullivan, 898 F.2d 895, 896 (2d Cir.), cert. denied, 498 U.S. 980, 111 S.Ct. 508, 112 L.Ed.2d 520 (1990) (EAJA case); Kuzma v. United States Postal Service, 725 F.2d 16 (2d Cir.) (FOIA case), cert. denied, 469 U.S. 831, 105 S.Ct. 119, 83 L.Ed.2d 62 (1984); Crooker v. United States Dep't of the Treasury, 634 F.2d 48, 49 (2d Cir.1980) (FOIA case). Kaufman, a non-lawyer who was unemployed during the period he was a defendant in this litigation, suffered no loss of income as a result of this case.[4]
Neither is Kaufman entitled to reimbursement for any costs. Costs are available under EAJA § 2412(d)(1)(A) only when not specifically precluded by another statute. See 28 U.S.C. § 2412(a)(1). Since section 27 of the Securities and Exchange Act expressly precludes recovery of costs against the Commission, Kaufman cannot recover costs. See 15 U.S.C. § 78aa; SEC v. Torr, 22 F.Supp. 602, 611 (S.D.N.Y.1938). See also Fed. R.Civ.P. 54(d) (prevailing party entitled to costs "[e]xcept when express provision is made ... in a statute of the United States ...; [moreover,] costs against the United States, its officers, and agencies shall be imposed only to the extent permitted by law").
However, the Court must decide whether expenses, as opposed to costs, may be taxed against the Commission notwithstanding section 27, an issue no court has yet addressed. The Court concludes that they may. While waivers of sovereign immunity must be strictly construed in favor of the United States, see Ardestani v. INS, ___ U.S. ___, ___, 112 S.Ct. 515, 520, 116 L.Ed.2d 496 (1991), section 27, is not a waiver of sovereign immunity, see SEC v. Independence Drilling Corp., 595 F.2d 1006, 1008 (5th Cir.1979), and therefore need not be subject to that rule of construction. Instead, "costs" can be given their normal meaning as defined by the plain language of 28 U.S.C. § 1920, which is specifically referred to in 28 U.S.C. § 2412(a), i.e., fees of the clerk and marshal, fees of the court reporter for necessary stenographic transcripts, fees and disbursements for printing and witnesses, fees for necessary exemplification and copies of papers, docket fees, and compensation of court appointed experts, interpreters and special interpretation services under 28 U.S.C. § 1828.[5] Only those costs are specifically barred by § 27.
The Court concludes, therefore, that Kaufman, as a prevailing party, is entitled to reimbursement for certain of the "out-of-pocket expenses" listed in his Bill of Costs of a type which are normally billed to a client and which are not specifically barred by section 27 as costs under section 1920, to wit, expenses for travel, typing services, postage, *160 telephone, transport and storage of records, and translation. See, e.g., Kuzma v. IRS, supra, 821 F.2d at 933-34; Film Office, S.A. v. MGM/UA Home Video, Inc., No. 91 Civ. 1132, 1992 WL 196734, at *2 (S.D.N.Y. Aug. 3, 1992); Dow Chem. Pac. Ltd. v. Rascator Maritime S.A., 640 F.Supp. 882, 886 (S.D.N.Y.1986). However, he may not recover expenses includable as costs under section 1920 such as his expenses for duplication and copying, nor may he recover for expenses not normally billed to a client such as, in this case, his expenses for mileage, stationery and supplies, dictation equipment and tapes, and passport.
CONCLUSION
For the reasons stated above, Kaufman's application for reimbursement of costs and expenses under the EAJA is granted in part and denied in part. The parties shall propose and submit appropriate judgments.
It is SO ORDERED.
NOTES
[1] Kaufman has submitted two memoranda dated August 5, 1992, in support of his application: a Memorandum in Support of an Application for Reimbursement of Expenses Incurred (hereinafter "Def.Mem.Law"), and a Memorandum in Support setting forth Contentions of Fact (hereinafter "Def.Mem.Fact").
[2] The EAJA provides in pertinent part:
(a)(1) Except as otherwise specifically provided by statute, a judgment for costs, as enumerated in section 1920 of this title, but not including the fees and expenses of attorneys, may be awarded to the prevailing party in any civil action brought by or against the United States or any agency ... of the United States....
(d)(1)(A) Except as otherwise specifically provided by statute, a court shall award to a prevailing party other than the United States fees and other expenses, in addition to any costs awarded pursuant to subsection (a), incurred by that party in any civil action ..., brought by or against the United States in any court having jurisdiction of that action, unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust....
(2) For the purposes of this subsection
(A) "fees and other expenses" includes the reasonable expenses of expert witnesses, the reasonable cost of any study, analysis, engineering report, test, or project which is found by the court to be necessary for the preparation of the party's case, and reasonable attorney fees....
28 U.S.C. § 2412(a), (d)(1)(A), (d)(2)(A) (emphasis added).
[3] Although the Commission never claimed that its position was substantially justified, the Court notes that Kaufman has been continuously unemployed since leaving AM International in 1981. That fact, which the Commission either knew or reasonably should have known at the time it filed its complaint, see Def.Mem.Fact at 2, severely weakens any argument it may have made that a recurrence of any past wrongdoing was imminent and likely. See SEC v. Monarch Fund, 608 F.2d 938, 943 (2d Cir.1979); SEC v. Commonwealth Chem. Sec., Inc., 574 F.2d 90, 100 (2d Cir.1978); SEC v. Bausch & Lomb, Inc., 565 F.2d 8, 18 (2d Cir.1977). See also Pierce v. Underwood, 487 U.S. 552, 565, 108 S.Ct. 2541, 2550, 101 L.Ed.2d 490 (1988).
[4] Kaufman's reliance on Jones v. Lujan, 883 F.2d 1031 (D.C.Cir.1989), is misplaced. The court in Jones awarded fees and expenses under the EAJA to a pro se plaintiff who was, by profession, an attorney. In its reasoning, that court distinguished pro se attorneys from other pro se litigants, noting that the latter may not recover attorney fees under the EAJA. Id. at 1033-34. Here, Kaufman is not an attorney and does not seek to recover attorney fees as such.
[5] Even though, as noted above, the Supreme Court has recently stated that the EAJA, as a partial waiver of that sovereign immunity, must be strictly construed in favor of the United States, that case did not expressly overrule, see Ardestani v. INS, supra, ___ U.S. at ___, 112 S.Ct. at 520, Second Circuit case precedent holding that the expenses specifically set out in section 2412(d)(2)(A) of the EAJA are not exclusive, and that, under the EAJA, litigants may recover amounts for "telephone, postage, travel and photocopying" as expenses normally billed to a client. See, e.g., Aston v. Secretary of Health and Human Serv., 808 F.2d 9, 12 (2d Cir.1986) (citing International Woodworkers of America v. Donovan, 769 F.2d 1388, 1392 (9th Cir.1985)); but see Action on Smoking and Health v. Civil Aeronautics Bd., 724 F.2d 211, 223-24 (D.C.Cir.1984). See also Kuzma v. IRS, 821 F.2d 930, 933-34 (2d Cir.1987) (applicable pro se litigants).
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486 F.Supp. 1265 (1980)
Jack Burton TUNNELL, Plaintiff,
v.
William B. ROBINSON et al., Defendants.
Civ. A. No. 79-361.
United States District Court, W. D. Pennsylvania.
March 20, 1980.
*1266 *1267 Jack B. Tunnell, pro se.
Edward G. Biester, Jr., Atty. Gen. for the Commonwealth of Pennsylvania, Pittsburgh, Pa., for defendants.
SUPPLEMENTAL MEMORANDUM
ROSENBERG, District Judge.
The plaintiff in this case, Jack Burton Tunnell, incarcerated in the State Correctional Institution, Pittsburgh, Pennsylvania, filed a complaint under authority granted by the civil rights statute.[1] He charged the defendant, William B. Robinson and others associated with this Commonwealth's prison system, with violation of his civil rights in this institution.[2]
The plaintiff charged that while being a prisoner in the institution, the defendants were hampering his ability to transact financial matters with private banking facilities; that he was not permitted free access to his bank passbooks; that while other inmates were permitted to use the mail to obtain articles from catalogue sales stores, he was not so permitted to order from retailers catering to the black community; that rehabilitation programs for long-term inmates were inadequate; that inmates were not provided with periodic chest X-rays; that the institutional medical facilities were inadequate; that the dining facility was filthy; and, that the defendants were denying the inmates proper family visitation privileges.
The matter was referred to a United States Magistrate for an evidentiary hearing and submission of proposed findings of fact and a report and recommendation. Thereupon the Magistrate held an evidentiary hearing, heard witnesses, received testimony and made proposed findings of fact and conclusions of law and filed his report and recommendation and gave notice to the parties to file any objections they might have within ten (10) days from the date of his order.
The Magistrate in his Proposed Findings of Fact and Conclusions of Law, based upon the evidence which was presented before *1268 him, has dealt quite adequately with these charges. I now find that the record as a whole supports both the findings of fact and conclusions of law. Accordingly, I adopt these as the Findings of Fact and Conclusions of Law of this court.
Rather, it is the assumed, matter-of-right character of the charges as made by the plaintiff and the inadequacy of the evidence as presented to support them or lend weight of any significance as they may have offended the civil rights as charged, which I have also considered. Since there seems to be some misunderstanding of the rights of incarcerated persons, as shown by the number of petitions and complaints as filed for correction of internal matters in the places of custody, and because of the mistaken belief that federal courts can provide remedies for practically any matter, whatsoever, I deem it appropriate to clarify to some extent prisoner's rights to resort to federal courts and the limitations which govern federal courts. This, perhaps, will eliminate some futile efforts or hopes on the part of incarcerated prisoners and reduce the overburdened work load of the federal courts and their staffs.
The United States Constitution and federal laws are definitely concerned with the welfare of incarcerated people, as they are with unincarcerated people. However, to classify everything as being constitutionally protected is factually and legally erroneous. The Constitution and civil rights laws are not a catch-all, but, on the contrary, can be only in federal court if a matter raises substantial federal questions. It will be sufficient here to explain this in relation to the circumstances of this case.
While civil rights laws aim for the protection of prisoners who are held involuntarily in confinement, Congress never intended that the laws were to be used for the purpose of disregarding the basic fact that such individuals who seek aid from the courts should be able to sweep aside the fact, also, that they are incarcerated as a matter of punishment for criminal violations even though they are accorded the protection of due process.
Lawful incarceration necessarily operates to deprive a prisoner of certain rights and privileges he would otherwise enjoy in a free society. Courtney v. Bishop, 409 F.2d 1185, C.A. 8, 1969, cert. den. 396 U.S. 915, 90 S.Ct. 235, 24 L.Ed.2d 192. Some deprivations are a necessary and expected result of being an inmate of a penal institution which must provide for the custody, maintenance, discipline and, optimistically, rehabilitation of those who have violated the laws of the sovereign. Gray v. Creamer, 465 F.2d 179, C.A. 3, 1970, on remand D.C., 376 F.Supp. 675. A prisoner does not retain constitutional rights which are inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system. Newman v. State of Alabama, 559 F.2d 283, C.A. 5, 1977. Imprisonment unavoidably results in forfeiture of certain rights and privileges commonly exercised in a free society. Gittlemacker v. Prasse, 428 F.2d 1, C.A. 3, 1970. When a person is lawfully incarcerated in a penal institution, he loses the right, except as granted specially by a court before entering incarceration, to enter into, engage in or conduct ordinary business ventures and he does not have the right to set up his own business oriented ventures and require that special rules and regulations be tailored to accommodate such ventures. Ray v. Brierley, 316 F.Supp. 1057 (W.D.Pa., 1970). That a discretionary benefit has or has not been granted to a state prisoner does not of itself suggest that his rights have been unconstitutionally denied him. Marnin v. Pinto, 463 F.2d 583, C.A. 3, 1972.
The civil rights laws never intended that while such individuals are being incarcerated, they can have full enjoyment and freedom to do those things which all citizens normally have a right to do. When incarcerated, as a penalty for such violation of the laws of the land, a person must pay with deprivation of many personal rights and even suffer discomfort for his indiscretion in violating the law; and for him to expect that such punishment is to be tendered to him with loving care and kindness and with such luxuries as he might have *1269 enjoyed as a hotel guest in some resort, is plainly unthinkable. It is not to be encouraged as a matter of public policy and public welfare, and for the better control of such incarcerated persons by their guards and custodians, both for themselves and those responsible for their custody. The plaintiff here is not on vacation as such is customarily understood and limitations must be imposed on his dealings, whether financial or personal. Such matters must be left to those responsible for his custody.
When important rights are at stake in prisons, courts should not be reluctant to protect them, but the judiciary must move with measured caution when it lays down requirements for affirmative action by prison administrators. Braxton v. Carlson, 483 F.2d 933, C.A. 3, 1973. Except under exceptional circumstances, internal matters such as rules and regulations in state prisons are the sole concern of states, and federal courts will not inquire concerning them. Walker v. Pate, 356 F.2d 502, C.A. 7, 1966, cert. den. 384 U.S. 966, 86 S.Ct. 1598, 16 L.Ed.2d 678. And, federal courts will not interfere with uniformly applied prison regulations designed to achieve discipline, and which are indispensable to the orderly operation of state penal institutions. United States ex rel. Raymond v. Rundle, 276 F.Supp. 637 (D.C.Pa., 1967). As for the plaintiff's efforts to stretch prisoner civil rights into the realm of rehabilitation programs, periodic chest X-rays and other phases of medical facilities and adequacies, these are the discretionary responsibilities of the constituted officials. Courts cannot be concerned with prison menu or the lack of medical care to which prisoners believe they are entitled or the lack of exercise or the lack of access to special religious services. These involve matters of internal prison administration. Krist v. Smith, 439 F.2d 146, C.A. 5, 1971.
Thus, it is that financial matters in and out of a place of custody, visitation and the like, must exclusively be left to the authorities prescribed by the Commonwealth of Pennsylvania. Interference by federal courts with the Commonwealth's responsibilities and obligations has never been authorized by any federal statute or by the Constitution of the United States. The welfare of all people both inside and outside of prison walls must be of utmost concern to a government, and it is for the courts, acting always under the direction of law, to balance the welfare of the public as well as those whom the law must necessarily incarcerate for interference with the public's welfare. Accordingly, while courts seek to protect the welfare of those incarcerated, courts can do so only within the limits of authority granted them by the Constitution and law. Under these circumstances prisoner complaints relating to conditions concerning clothing issued, or repairs of facilities and the like, are matters of internal concern and should be presented to the administrators of the institution to correct on each occasion when and where they occur since they are bound to occur on an almost daily basis. Sparks v. Fuller, 506 F.2d 1238, C.A. 1, 1974. Since it is not the function of courts to superintend treatment[3] and discipline of prisoners in penitentiaries, and because prisoner disapproval of rules and regulations provides no jurisdiction in federal courts, petitions claiming that such restrictions effectuating such regulations violate constitutional rights, and seeking supervision over such prison administrators, do not give federal courts jurisdiction, nevertheless. Ray v. Commonwealth of Pennsylvania, 263 F.Supp. 630 (D.C.Pa., 1967).[4]
The Findings of Fact and Conclusions of Law and the Recommendation of the Magistrate are adopted as set forth in an Order of Court.
ORDER OF COURT
AND NOW, TO-WIT, this 20th day of March 1980, for the reasons set forth in the *1270 foregoing Supplemental Memorandum, the Findings of Fact, Conclusions of Law and Report and Recommendation of the United States Magistrate, are hereby adopted as the Opinion of this Court. Judgment is hereby entered for the defendants and against Jack Burton Tunnell, the plaintiff.
MAGISTRATE'S RECOMMENDATION FOR DISPOSITION AND PROPOSED FINDINGS OF FACT AND CONCLUSION OF LAW
I. Recommendation
It is respectfully recommended that judgment be entered against the plaintiff and in favor of the defendants.
II. Report
Jack B. Tunnell has presented a civil rights complaint[1] in which he alleges that the defendants are hampering his ability to transact financial matters with private banking facilities by interfering with his use of the mails to conduct these transactions and by not permitting him free access to his bank passbooks. In addition, it is alleged that while inmates are permitted to mail order certain articles from catalogue sales stores, the inmates are not permitted to order from retailers catering to the black community; that there are inadequate rehabilitation programs for long-term inmates; that inmates are not provided with periodic chest x-rays and the Institutional medical facilities are inadequate; that the dining facility is filthy, and that the defendants are denying inmates proper family visitation privileges.
The plaintiff's allegations are said to state a claim under 42 U.S.C. § 1983 and therefore he invokes the jurisdiction of this Court pursuant to Section 1343 of Title 28, United States Code. The plaintiff also seeks declaratory relief. Named as defendants in this action are officials of the Pennsylvania Bureau of Corrections as well as various officials and employees of the State Correctional Institution at Pittsburgh, where the plaintiff is incarcerated.
After the period for pretrial discovery had elapsed, the matter was referred to the undersigned United States Magistrate for evidentiary hearing and the submission of proposed findings of fact and a recommendation for disposition. Accordingly, a pretrial conference was held which resulted in the filing of a stipulation of facts on December 14, 1979, and the matter came on for final evidentiary hearing on that same date. Following that hearing a summary of the testimony was prepared and submitted to all parties with an order granting them ten (10) days to file objections, if any, to that summary. The time for filing objections has elapsed, none have been received, and the matter is now in a posture for disposition.
The first issue which the plaintiff raises concerns the fact that he has been denied the opportunity to participate in picnic visitations with members of his family. Furthermore, the plaintiff objects to the fact that an inmate is not permitted to have more than five visitors at any one time. The parties have stipulated that "an inmate is permitted to list 20 addresses on his approved visitors list which enables any number of persons from that address to visit him at the Institution. However, at any one time an inmate may not have more than five visitors who are permitted to visit for up to three hours on weekdays and for up to one hour on weekends. However, while no more than five visitors are permitted at any one time, those who are visiting may depart and their place taken by other persons during the three or one hour visitation period." In addition, upon request, extended visitation privileges may be made for persons who have to travel over 200 miles to the Institution.
The manner in which visitation privileges are granted rests within the discretion of prison administrators. Inmates v. Robinson, 612 F.2d 754 (3d Cir. 1979). It is *1271 only when visitation is denied in an unreasonable or discriminatory manner that an actionable fact exists. Thomas v. Brierley, 481 F.2d 660 (3d Cir. 1973).
In the present case there is no allegation that allowance of visitation privileges are being arbitrarily or discriminatorily denied to the plaintiff, and therefore the plaintiff has failed to state a claim in this regard.
The plaintiff next contends that although he does not eat in the dining hall and has elected not to participate in any rehabilitation programs as a result of his self-imposed isolation, the conditions of the dining hall and the manner in which vocational training is offered constitute a violation of his civil rights. In Civil Action No. 77-1271, Maxwell v. Robinson, these same allegations were raised and dismissed. There has not been any showing on the part of the plaintiff that conditions have changed since the time of that suit, and therefore, the same conclusion applies, i. e. that the dining facilities and the rehabilitation programs are not being administered in a fashion which is violative of the inmates' civil rights.
The plaintiff also alleges that routine physical examinations are not conducted. Lack of medical treatment becomes actionable only when it involves deliberate indifference to a serious medical need of an inmate. Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976); United States ex rel. Walker v. Fayette Cty., Pa., 599 F.2d 573 (3d Cir. 1979). In the present case, the plaintiff has not demonstrated any indifference to his needs, nor has he even demonstrated that he was denied routine medical treatment. Rather, he alleges that he believes that the institution should inaugurate some routine program of medical examinations. The lack of such a program clearly does not constitute deliberate indifference to a serious medical need.
The next series of allegations raised by the plaintiff concern the institutional policy concerning money and bank accounts. It has been stipulated that "inmates are not permitted to possess a bank savings account book from a private banking institution. Such account books are held by the prison authorities and are available for viewing by the inmate to whom they have been issued." Since "money is regarded as contraband within the State Correctional Institution" all financial transactions must be conducted through the inmate account office and "inmates are provided with receipts for all financial transactions occurring under the supervision of the Institution."
As the Court observed in Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979), the operation of penal institutions,
". . . are peculiarly within the province and professional expertise of corrections officials, and, in the absence of substantial evidence in the record to indicate that the officials have exaggerated their response to these considerations, courts should ordinarily defer to their judgment in such matters." 441 U.S. at 541 n. 23, 99 S.Ct. at 1875.
In the present case, the testimony disclosed that in most instances financial transactions are processed with the utmost dispatch, although there have been some isolated instances in which some time has elapsed before the requested transaction could be completed. While it would be most desirable to conclude these transactions within a very short time interval, it is also true that the institution must operate within the framework of available personnel and priorities of functions which must be performed. Nevertheless, the evidence indicates that inmates are not deprived of access to information concerning their private bank accounts, and that in almost all instances, financial transactions are promptly executed. As such, we must defer to the expertise of institutional personnel in carrying out the inmate account procedures. Bell v. Wolfish, supra.
The plaintiff also objects to the fact that with the exception of government checks, all checks are deposited directly into an inmate's account, and he does not even have to endorse the checks. This, too, is part of *1272 institutional policy management procedures. Furthermore, the testimony disclosed that inmates receive full statements concerning the sources and amounts of funds credited to their accounts. Thus, no harmful effects of this procedure have been demonstrated.
The final allegation made by the petitioner concerns the fact that inmates are permitted to order items from only three large catalog sales chains and not from other sales establishments. It has been stipulated that "inmates are not permitted to purchase articles from sources outside the Institution except they may order from three large mail order houses. Exceptions to this rule are permitted for such items such as books, magazines, religious articles and art supplies." In addition, testimony was presented that relatives of inmates are permitted to send in other articles which have been purchased anywhere throughout the economy, subject only to routine inspection upon arrival at the Institution. Thus, again the plaintiff has failed to demonstrate an invasion of his civil rights.
It is provided in 42 U.S.C. § 1983 that:
"Every person, who, under color of any statute, ordinance, regulation, custom, or usage of any state or territory subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the constitution, and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress."
In the present case, the plaintiff has presented a series of grievances which he would like to see corrected. However, none of the matters raised amount to deprivations of constitutional proportion or involve matters secured by the laws of the United States.
Thus, the plaintiff has failed to sustain his burden of demonstrating that he is entitled to any relief. Accordingly, it is respectfully recommended that judgment be entered against the plaintiff and in favor of the defendants.
III. Proposed Findings of Fact
1. Jack Tunnell, the plaintiff in the above-captioned case, is an inmate at the State Correctional Institution at Pittsburgh.
2. The defendants in this action are officials of the Pennsylvania Bureau of Corrections and various officials and employees of the State Correctional Institution at Pittsburgh.
3. Inmates at the State Correctional Institution may not have more than five visitors at any one time and those visits are limited to three hours on weekdays and one hour on weekends.
4. Upon request special visiting arrangements can be made for persons traveling over 200 miles to visit inmates.
5. The conditions in the prison dining hall are not unsanitary.
6. The plaintiff is not being arbitrarily denied an opportunity to participate in rehabilitation programs.
7. No showing has been made that the plaintiff has experienced indifference to a serious medical need.
8. Money is regarded as contraband at the institution.
9. All inmate financial transactions must be conducted through the inmate accounts office.
10. With few exceptions all inmate financial transactions are conducted expeditiously.
11. The manner in which inmates may order articles from suppliers outside the Institution is not unduly restrictive.
12. None of the matters alleged in this suit constitute violations of any rights assured by the Constitution or laws of the United States.
IV. Proposed Conclusions of Law
1. This Court has jurisdiction over the subject matter of this action brought under the provisions of 42 U.S.C. § 1983 and invoking *1273 the jurisdiction of this Court pursuant to Section 1343 of Title 28, United States Code.
2. The plaintiff has failed to demonstrate an abridgement of any right secured to him under the Constitution or laws of the United States.
3. Judgment should be entered against the plaintiff and in favor of the defendants.
NOTES
[1] 42 U.S.C. § 1983.
[2] Bernett L. Johnson was a plaintiff originally with Tunnell, but he subsequently withdrew. Additionally, Tunnell asserts in the caption that this action is brought with all others similarly situated.
[3] This is not applicable to "cruel and unusual punishments". United States Constitution, Amendment VIII.
[4] The principles quoted here reflect federal law as it applies to state institutions charged with the custody of persons incarcerated by state authorities.
[1] In an Order dated December 17, 1979, coplaintiff Bernett L. Johnson's motion to withdraw as a party plaintiff was granted.
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661 F.2d 936
Krummelv.Secretary of Health, Education and Welfare
80-1443
UNITED STATES COURT OF APPEALS Seventh Circuit
7/2/81
1
E.D.Wis.
AFFIRMED
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 98-6443
THERON JOHNNY MAXTON,
Petitioner - Appellant,
versus
UNITED STATES OF AMERICA,
Respondent - Appellee.
Appeal from the United States District Court for the District of
South Carolina, at Rock Hill. David C. Norton, District Judge.
(CA-97-3811-0-6-BD)
Submitted: May 28, 1998 Decided: June 10, 1998
Before ERVIN, LUTTIG, and MOTZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Theron Johnny Maxton, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Theron Johnny Maxton appeals the district court's order dis-
missing without prejudice his petition filed under 28 U.S.C. § 2241
(1994). Maxton's case was referred to a magistrate judge pursuant
to 28 U.S.C. § 636(b)(1)(B) (1994). The magistrate judge recom-
mended that relief be denied and advised Maxton that failure to
file timely objections to this recommendation could waive appellate
review of a district court order based upon the recommendation.
Despite this warning, Maxton failed to object to the magistrate
judge's recommendation. *
The timely filing of objections to a magistrate judge's
recommendation is necessary to preserve appellate review of the
substance of that recommendation when the parties have been warned
that failure to object will waive appellate review. See Wright v.
Collins, 766 F.2d 841, 845-46 (4th Cir. 1985). See generally Thomas
v. Arn, 474 U.S. 140 (1985). Maxton has waived appellate review by
failing to file objections after receiving proper notice. Accord-
ingly, we affirm the judgment of the district court. 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
*
The district court erroneously stated in its order that
objections were filed on September 29, 1997, but this was well
before the magistrate judge issued his report and recommendation.
No objections were filed after Maxton received proper notice.
2
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Filed 8/18/11 by Clerk of Supreme Court
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2011 ND 166
Clint Miller, Plaintiff and Appellee
v.
Julie Mees, Defendant and Appellant
No. 20110020
Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Sonna M. Anderson, Judge.
AFFIRMED.
Opinion of the Court by VandeWalle, Chief Justice.
Stacy Mae Moldenhauer, P.O. Box 460, Bismarck, N.D. 58502-0460, for plaintiff and appellee.
Justin Dale Hager, 1110 College Drive, Suite 211, Bismarck, N.D. 58501-
1225, for defendant and appellant.
Miller v. Mees
No. 20110020
VandeWalle, Chief Justice.
[¶1] Julie Mees appealed from a judgment granting Clint Miller primary residential responsibility of the parties’ minor child. Mees argues the court erred in basing its decision on Miller’s affidavits, which were not presented in open court, and in awarding Miller primary residential responsibility of the child. We affirm, concluding the court’s reference to Miller’s affidavits is not reversible error and the court’s decision to award Miller primary residential responsibility is
not clearly erroneous.
I
[¶2] Miller and Mees were never married, but lived together for about two years and had one child together. Mees has another child about one year older than the parties’ child. In 2007 the parties separated, and in June 2009, Miller brought this action seeking primary residential responsibility of the parties’ minor child. Miller claimed Mees had denied him visitation with the child and sought an interim order for visitation. Mees answered and sought primary residential responsibility of the child. The district court issued an interim order, granting Mees primary residential responsibility of the child and awarding Miller parenting time.
[¶3] In September 2009, Mees obtained a temporary domestic violence protection order against Miller, alleging he had sexually abused the child during visitation in September 2009. A police report indicated the allegations were “unfounded,” and after further proceedings, the court dismissed the temporary order, concluding there was insufficient evidence to justify a permanent domestic violence protection order. The court reinstated visitation required under the interim order.
[¶4] In October 2009, Miller moved to hold Mees in contempt, claiming he had been denied visitation in September 2009, and he submitted an affidavit in support of his motion. The court dismissed Miller’s motion, stating the temporary domestic violence protection order preempted the disputed visitation.
[¶5] Barbara Oliger, a court-appointed parenting investigator, filed a parenting investigation report with the district court in June 2010, in which she evaluated the factors for the best interests and welfare of the child under N.D.C.C. § 14-09-06.2 and recommended that Miller receive primary residential responsibility of the child. At a July 2010 trial, Mees was represented by counsel and Miller represented himself. Oliger, Mees, and Miller testified at trial. The court thereafter awarded Miller primary residential responsibility of the child after making findings under the best-
interests factors listed in N.D.C.C. § 14-09-06.2. The court’s decision stated “Miller did not offer extensive testimony at trial, but his affidavits are in the file and he was available for cross examination on those affidavits.”
II
[¶6] Relying on N.D.R.Civ.P. 43, Mees argues the district court erred in basing its custody decision on evidence that was not presented in open court. She claims the court committed reversible error in considering Miller’s affidavits to make its custody decision.
[¶7] At the time of the July 2010 trial in this action, N.D.R.Civ.P.43(a),
(footnote: 1) provided, in part:
In every trial, the testimony of witnesses must be taken orally or by non-oral means in open court, unless otherwise provided by statute or these rules. Testimony must be taken orally unless a witness is unable to reasonably communicate orally. All evidence must be admitted which is admissible under the statutes of this state, the North Dakota Rules of Evidence, or other rules adopted by the North Dakota Supreme Court.
[¶8] Rule 43(a), N.D.R.Civ.P., provides the general rule that witnesses’ testimony must be taken in open court and expresses a preference for oral testimony unless otherwise provided by statute or procedural rules.
See
Lawrence v. Delkamp
, 2008 ND 111, ¶ 12, 750 N.W.2d 452 (plurality opinion discussing pre-2011 rule);
In Interest of Gust
, 345 N.W.2d 42, 44-45 (N.D. 1984) (decided under pre-1999 rule providing that testimony of witnesses shall be taken orally in open court unless otherwise provided by statute or rules).
See generally
9A Charles Alan Wright and Arthur J. Miller,
Federal Practice and Procedure: Civil
§ 2414 (3rd ed. 2008) (discussing similar provisions of parallel federal rule and identifying preference for oral testimony). Our rules allow evidence to be submitted by affidavits for some motions.
See
N.D.R.Civ.P. 43(d) (evidence on motions); N.D.R.Ct. 8.2 (interim orders). However, N.D.R.Civ.P. 43 generally requires oral testimony at trial and does not allow trial by affidavit, and we conclude the district court erred to the extent its decision cited Miller’s affidavits and to the extent the court may have relied on those affidavits for the custody decision. Under N.D.R.Civ.P. 61, however, harmless errors and defects that do not affect substantial rights may be disregarded.
[¶9] This record reflects the district court’s custody decision relied primarily on information in Oliger’s parenting investigation report. Oliger’s report was filed with the district court in June 2010.
See
N.D.C.C. § 14-09-06.3(3) and N.D.R.Ct. 8.6. The best-interests factors for primary residential responsibility considered by the district court under N.D.C.C. § 14-09-06.2 followed the content of Oliger’s report. Oliger testified at trial and was available for cross-examination on all facets of her recommendation that Miller be awarded primary residential responsibility of the child. To the extent the court said Miller’s affidavits were in the file and he was available for cross-examination and the court may have relied on information in those affidavits, we conclude the information in those affidavits was also included in Oliger’s parenting investigation report and any error did not affect Mees’s substantial rights and was harmless under N.D.R.Civ.P. 61.
III
[¶10] Mees argues the district court clearly erred in awarding Miller primary residential responsibility of the child under N.D.C.C. § 14-09-06.2. She argues several of the statutory best-interests factors the court found favored Miller should have been found to favor her or neither party and other factors also should have favored her. Miller responds the court did not clearly err in awarding him primary residential responsibility of the child and asserts Mees is essentially asking this Court to reweigh the evidence and substitute its findings for the district court’s findings.
[¶11] In an initial custody decision, a district court must award primary residential responsibility of a child to the person who will best promote the best interests and welfare of the child under N.D.C.C. § 14-09-06.2.
Wolt v. Wolt
, 2010 ND 26, ¶ 8, 778 N.W.2d 786. Section 14-09-06.2(1), N.D.C.C., outlines the applicable factors for assessing the best interests and welfare of the child and provides:
a. The love, affection, and other emotional ties existing between the parents and child and the ability of each parent to provide the child with nurture, love, affection, and guidance.
b. The ability of each parent to assure that the child receives adequate food, clothing, shelter, medical care, and a safe environment.
c. The child’s developmental needs and the ability of each parent to meet those needs, both in the present and in the future.
d. The sufficiency and stability of each parent’s home environment, the impact of extended family, the length of time the child has lived in each parent’s home, and the desirability of maintaining continuity in the child’s home and community.
e. The willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child.
f. The moral fitness of the parents, as that fitness impacts the child.
g. The mental and physical health of the parents, as that health impacts the child.
h. The home, school, and community records of the child and the potential effect of any change.
i. If the court finds by clear and convincing evidence that a child is of sufficient maturity to make a sound judgment, the court may give substantial weight to the preference of the mature child. The court also shall give due consideration to other factors that may have affected the child’s preference, including whether the child’s preference was based on undesirable or improper influences.
j. Evidence of domestic violence. . . .
k. The interaction and interrelationship, or the potential for interaction and interrelationship, of the child with any person who resides in, is present, or frequents the household of a parent and who may significantly affect the child’s best interests. The court shall consider that person’s history of inflicting, or tendency to inflict, physical harm, bodily injury, assault, or the fear of physical harm, bodily injury, or assault, on other persons.
l. The making of false allegations not made in good faith, by one parent against the other, of harm to a child as defined in section 50-25.1-02.
m. Any other factors considered by the court to be relevant to a particular parental rights and responsibilities dispute.
[¶12] “‘The district court has substantial discretion in making a custody determination, but it must consider all of the factors under N.D.C.C. § 14-09-06.2(1)(a)-(m).’”
Wolt
, 2010 ND 26, ¶ 9, 778 N.W.2d 786 (quoting
Brown v. Brown
, 1999 ND 199, ¶ 11, 600 N.W.2d 869). Although a separate finding is not required for each statutory factor, the court’s findings must contain sufficient specificity to show the factual basis for the custody decision.
Wolt
, at ¶ 9. An award of primary residential responsibility is a finding of fact that will not be reversed on appeal unless clearly erroneous.
Doll v. Doll
, 2011 ND 24, ¶ 6, 794 N.W.2d 425. Under N.D.R.Civ.P. 52(a), a finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if no evidence exists to support it, or if, although there is some evidence to support it, on the entire record, we are left with a definite and firm conviction a mistake has been made.
Doll
, at ¶ 6. “Under the clearly erroneous standard, we do not reweigh the evidence nor reassess the credibility of witnesses, and ‘“we will not retry a custody case or substitute our judgment for a district court’s initial custody decision merely because we might have reached a different result.”’”
Wolt
, 2010 ND 26, ¶ 7, 778 N.W.2d 786 (quoting
Lindberg v. Lindberg
, 2009 ND 136, ¶ 4, 770 N.W.2d 252).
[¶13] The district court considered all of the factors for determining primary residential responsibility under N.D.C.C. § 14-09-06.2(1)(a)-(m) and made findings under each factor. The district court found factors (a), (b), (e), (f), (g), and (l) favored Miller, factor (d) favored Mees, and factor (c) favored neither parent, while finding the other factors were not applicable. The court recognized the award of primary residential responsibility to Miller was a “very difficult decision” and found:
The fact that [Mees] believes that [the child] has been abused, but yet has not seen fit to follow recommendations to get [the child] counseling plays heavily in this decision. [The child] needs to be with a parent who will provide her the opportunity to obtain counseling that has been recommended. Although [Mees] says that she will do anything to help her child, her actions do not appear to bear that out.
Additionally, [Mees’s] reluctance to promote visitation with [Miller] is of great concern to the Court. [The child] deserves to have a parent who will recognize the need for and promote interaction with the other parent. The Court believes [Miller] will promote that interaction, while [Mees] will not.
[¶14] Mees argues the district court erred as a matter of law in deciding factors (a), (b), (e), (f), (g), and (l) favored Miller, in finding factor (c) favored neither parent, and in finding no other factors favored her. She claims this case is “one-sided” and asks this Court to award her custody.
[¶15] Mees is essentially asking this Court to reweigh the evidence and make different credibility determinations. However, the court found Mees was not credible in some respects, and we decline her invitation to reweigh the evidence or reassess credibility. The court’s award of primary residential responsibility to Miller followed Oliger’s parenting investigation report and recommendation. Oliger’s report examined all the factors for primary residential responsibility under N.D.C.C. § 14-
09-06.2(1)(a)-(m), and she testified at trial and was available for cross-examination on her report. Oliger’s report stated that Mees “appear[ed] to have little insight into the daily functioning deficits of the child,” and expressed concerns with her lack of follow through with appropriate counseling for the child. Oliger’s report also stated that Mees’s “bold statements, attitude, and actions throughout these proceedings and prior to these proceedings, raise serious questions about her ability to foster a relation[] between the child and [Miller]” and Mees’s “behavior is not consistent with her allegations and expressed concern for the child. Her motivation in making these statements has to be in question.” Oliger recommended that Miller receive primary residential responsibility of the child. A court has broad discretion in deciding what weight to assign to a parenting investigator’s report and recommendation.
See
Doll
, 2011 ND 24, ¶ 30, 794 N.W.2d 425. Oliger’s report supports the court’s award of primary residential responsibility to Miller, and the district court did not err in relying on that report.
[¶16] Based upon our review of the evidence presented at trial, we conclude the court’s findings regarding primary residential responsibility were not induced by an erroneous view of the law, and we are not left with a definite and firm conviction the court made a mistake. We therefore conclude the court did not clearly err in awarding Miller primary residential responsibility of the child.
IV
[¶17] We affirm
the judgment
.
[¶18] Gerald W. VandeWalle, C.J.
Dale V. Sandstrom
Daniel J. Crothers
Mary Muehlen Maring
Carol Ronning Kapsner
FOOTNOTES
1:1
Rule 43, N.D.R.Civ.P., was amended, effective March 1, 2011, in response to revisions in F.R.Civ.P. 43.
See
N.D.R.Civ.P. 43, Explanatory Note stating the “language and organization of the rule were changed to make the rule more easily understood and to make style and terminology consistent throughout the rules.” Rule 43(a), N.D.R.Civ.P., now provides, in part, that “[a]t trial, the witnesses’ testimony must be taken in open court unless a statute, the Rules of Evidence, these rules, or other court rules provide otherwise.” The explanatory note and language of the amendment do not reflect a substantive change in the rule.
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404 P.2d 308 (1965)
75 N.M. 354
Edward K. SALOME, Plaintiff-Appellee and Cross-Appellant,
v.
EIDAL MANUFACTURING COMPANY and Mountain States Mutual Casualty Company, Defendants-Appellants and Cross-Appellees.
No. 7651.
Supreme Court of New Mexico.
July 19, 1965.
Rehearing Denied August 23, 1965.
*309 Keleher & McLeod, John B. Tittmann, Albuquerque, for appellants and cross-appellees.
Edward L. Yudin, Albuquerque, for appellee and cross-appellant.
COMPTON, Justice.
The defendants appeal from a judgment awarding workmen's compensation benefits for partial permanent disability of the body as a whole, allegedly resulting from an injury to a scheduled member, in this instance, the plaintiff's right foot.
The pertinent findings read:
"1. Plaintiff suffered an accidental injury arising out of and in the course of his employment on November 21, 1962 when a trailer hitch fell on his right foot."
"4. That from the time of his injury through the date of trial, Plaintiff received weekly medical treatments and has not yet been discharged by his physician."
"9. Plaintiff has suffered partial permanent disability to his body as a whole in the amount of 35%, from the accidental injury."
The appellants do not question findings 1 and 4, but do complain of finding number 9. It is their contention that any award should have been limited to an injury to a scheduled member, the "right great toe with the metatarsal bone thereof" as provided by § 59-10-18.4(33), 1953 Comp.
It is well established that the scheduled injury section is exclusive unless there is evidence of separate and distinct impairment to other parts of the body in addition to the disability resulting from the injury to a scheduled member. Boggs v. D & L Construction Company, 71 N.M. 502, 379 P.2d 788. But the converse of the rule is noted. When the effects of an injury to a scheduled member extend to and impair other parts of the body, compensation is not limited to that provided by statute for loss of the scheduled member or the loss of use thereof. Gonzales v. Gackle Drilling Company, 70 N.M. 131, 371 P.2d 605. Also see 2 Larson's Workmen's Compensation Law, § 58.20, and we quote in part therefrom:
"The great majority of modern decisions agree that, if the effects of the loss of the member extend to other parts of the body and interfere with their efficiency, the schedule allowance for the lost member is not exclusive. A common example of this kind of decision is that in which an amputation of a leg causes pain shooting into the rest of the body, general debility, stiffening of the hip socket, or other extended effects resulting in greater interference with ability to work than would be expected from a simple and uncomplicated loss of the leg."
Consequently, we review the record to determine whether there is evidence of a substantial nature of bodily impairment and disability beyond that due to the loss, or loss of use of the scheduled member. In our review this court must construe the findings of the court liberally so as to support the judgment. Plains White Truck Company v. Steele, 75 N.M. 1, 399 P.2d 642.
*310 Appellee was of the age of 59 years when he sustained the injury and had worked for the appellant, Eidal Manufacturing Company, for some 17 years, part time as a foreman and later as an assembler. The latter work required the lifting of heavy objects, in some instances as much as 200 pounds. On November 21, 1962, a jack supporting a trailer weighing some 4 or 5 tons slipped, causing the trailer hitch to fall onto appellee's right foot, about the middle. The right foot was badly broken. He was taken first to Dr. Minear who X-rayed the foot, found it broken and placed it in a cast. Later the foot was treated by Dr. Haas for a considerable period of time. In January, 1963, he returned to work but the employer had him to do only light work, and in March, 1963, his employment was terminated. Thereafter, he was never able to do heavy work due to continuous pain in his foot, legs, right side and in his back. When he walks, due to pain, he tilts the weight of his body off the first metatarsus, causing the foot to turn inward, which is not normal. At times he has to walk on his heel or heel and toes and has developed a definite limp. Since March, 1963, he has assisted his wife and children in operating a small store at 112 Girard, N.E. in Albuquerque, but is able to do only light work. Also he is unable to drive an automobile for any length of time because of leg and back pains.
Dr. Sidney Schultz, a physician and orthopedic surgeon, treated appellee previously in 1957 for a like injury to his left foot. He saw him later in June, 1963. At that time he examined, took X-rays of appellee's right foot, and obtained a history of the case. In answers to the following questions propounded with respect to appellee's latter injury and disability, the doctor stated:
"Q. Now, doctor, has this injury affected plaintiff's ability to walk?
A. Yes.
Q. In what manner has this injury affected plaintiff's body?
A. In the sense that his abnormal weight bearing, that is his bearing weight on the outer side of his foot, by altering his gait and shifting his mechanics could cause him some back pain and the patient does complain of pain going up to his back.
Q. What is the condition of his foot at the present time?
A. The condition of the foot is such that I believe this man has pain in the foot on prolonged standing, that he would have pain on walking on uneven ground and even prolonged walking on even surface because he doesn't bear his weight normally on the foot but tilts the weight off the first metatarsus.
Q. You stated, doctor, there was a shortening in the metatarsus?
A. This shortening is present on both sides. This is normal for him but with this fracture and angulation it has shortened a short bit more.
Q. Does this have any effect on the ability to walk?
A. I think the deformity of the bone itself, plus the fact he has a fracture line entering the joint causes pain. Therefore, he is protecting it. He is balancing his weight on the outside.
Q. This causes the foot to roll inward?
A. No, it causes the foot to turn inward, what we call inversion, so that he picks the inner side of his foot off the and rolls the outer side toward the floor, so that he is bearing most of his weight toward the small side of the foot. This is not normal. We bear most of our weight on the big toe side of the foot at the head of the first metatarsus.
Q. When Mr. Salome was on the stand this morning, he testified he had pain in the left knee, can you account for this?
A. Just on the basis of abnormal stress and strain on his knee, perhaps *311 all that and even up to his back, if he walks prolonged periods, with this foot held in that position.
Q. Is a foot appliance needed for this man at this time?
A. I think so. I think something should be done, some type of support made to attempt to more evenly distribute his weight so that he can try to get off the outside of his foot.
* * * * * *
Q. How would you rate his functional disability at the present time?
A. It depends on the occupation. I think for a sedentary occupation, the man would have very little disability. I think he would have a great deal of disability going into the 75% category for heavy work, say for work over uneven ground, for work that would involve a lot of heavy lifting.
* * * * * *
Q. Doctor, do your clinical findings support his complaints?
A. Yes."
Jerry Jordan, an investigator for the appellants, was called as a witness by them. He testified that he took motion pictures of appellee while attending the store. This was for the purpose of rebutting appellee's testimony that he walked with a limp. The pictures were admitted into evidence and according to the views of the witness Jordan no limp was shown to exist. Dr. Schultz previously had stated on cross-examination that if he could see the pictures it possibly could alter his testimony as to appellee's injury and bodily disability. Thereupon the court suggested to counsel that Dr. Schultz should be given an opportunity to view the pictures and report to the court by letter. That the parties agreed to the court's suggestion is reasonably inferable from the fact that no objection was made to the suggested procedure and from the further facts that both parties rely in part upon Dr. Schultz' report. The report reads:
"DRS. SCHULTZ & HURLEY
Orthopedic Surgery
Encino Medical Plaza, Suite 14
717 Encino Place, NE
Albuquerque, New Mexico
SIDNEY SCHULTZ, M.D.
LLOYD A. HURLEY, M.D.,
August 8, 1963
Judge John B. McManus, Jr.
City Court House
Albuquerque, New Mexico
RE: Edward K. Salome
Dear Judge McManus:
The motion pictures on the above named patient were shown in my office on August 5, 1963. The films showed the patient sweeping, walking, and squatting down. No other significant activities were noted although the patient did use his right foot on one occasion to flatten something on the ground. At no time did the patient appear to limp. During his sweeping activities he raised his right foot from the ground on repeated occasions but it is impossible to state whether or not this was just a normal action in the course of his sweeping or whether he was actually favoring the right foot. It is regrettable that no other activities were displayed and I feel that it is impossible to accurately determine the actual degree of the patient's physical ability from the scenes shown.
There is no question in my mind that this man can perform light work without significant difficulty which he did in the motion pictures. I still feel that he would have trouble performing heavy work for any prolonged period of time. The motion pictures do not alter my opinion in this regard.
From the standpoint of disability we have a knotty problem. For the type of work which the patient was seen to perform in the motion pictures I do not feel that he would have more than a *312 ten per cent permanent partial disability of the body as a whole. For work involving excessive bending and heavy lifting this disability might go as high as seventy five per cent, of the body as a whole. These figures are related to the body as a whole despite the fact that I am aware that his injury was confined to the right foot. However, if the patient really does have my [any] appreciable limp for any prolonged period of time there is no question that he would have some symptoms referable to his low back despite the fact that no injury to this particular area was sustained. My recommendations for treatment remain unchanged.
I hope this is the information which you desire. Should there be any other questions, I would be more than glad to discuss the situation with you.
Sincerely yours,
S/ Sidney Schultz, M.D.
Sidney Schultz, M.D."
We conclude from the testimony that the court was warranted in finding that as a medical probability the appellee had a general bodily impairment and disability fairly traceable to the injury to his right foot. Compare Reck v. Robert E. McKee General Contractors, 59 N.M. 492, 287 P.2d 61; Hamilton v. Doty, 65 N.M. 270, 335 P.2d 1067; Lipe v. Bradbury, 49 N.M. 4, 154 P.2d 1000.
Appellants rely strongly on our recent cases, Boggs v. D & L Construction Company, supra, and Sisneros v. Breese Industries, Inc., 73 N.M. 101, 385 P.2d 960, as support for their position that compensation should be limited to the scheduled member. The cases have been carefully considered and they are distinguishable on the facts; no general bodily disability was shown to exist in either of these cases. It follows the judgment should be affirmed. Appellee will be allowed $750.00 for the services of his attorney in representing him in this court.
It is so ordered.
CHAVEZ, J., concurs.
MOISE, J., concurring specially.
CARMODY, C.J., and NOBLE, J., dissenting.
MOISE, Justice (concurring specially).
I agree that the case should be affirmed, and that attorneys fees should be allowed. However, I find it difficult to distinguish this case on the facts from Boggs v. D & L Construction Company, 71 N.M. 502, 379 P.2d 788, and from Sisneros v. Breese Industries, 73 N.M. 101, 385 P.2d 960.
In Boggs the claimant had injured his knee which resulted in pain in other parts of his body, difficulty in sleeping, trouble in walking, occasional falling, and an entire loss of his wage earning ability. This court limited the recovery to a percentage of the amount provided in the schedule (§ 59-10-18.4, N.M.S.A. 1953). The opinion pointed out that the only injury was to claimant's knee "and any disability to his body, as a whole, was a direct result of this injury."
It seems to me that the court in Boggs, supra, reasoned that since § 59-10-18.4, supra, provided that the trial court could grant enlarged compensation beyond the schedule in certain cases where there had been actual amputation, it would necessarily follow that since the statute made no such provisions for injuries not requiring amputation, the legislature intended that recovery be limited to scheduled amounts absent amputation.
Professor Larson in 2 Workmen's Compensation, § 58.20, points out that most cases limit recovery to the schedule amount in a case where there is a loss of a limb, without complications, even though the workman is thereby totally disabled to do any work for which he is qualified. It seems to me that the provision in § 59-10-18.4, supra, discussed above, must have been included to avoid such a result. Does it follow, therefore, that the legislature intended that awards be limited to scheduled amounts where, instead of actual amputation *313 there was an injury to a scheduled member which resulted in disability to the body as a whole and a greater loss of earning capacity than recognized by the schedule? I do not think so. In this connection, I quote the following from 2 Larson, Workmen's Compensation Law, § 58.20:
"The great majority of modern decisions agree that, if the effects of the loss of the member extend to other parts of the body and interfere with their efficiency, the schedule allowance for the lost member is not exclusive. A common example of this kind of decision is that in which an amputation of a leg causes pain shooting into the rest of the body, general debility, stiffening of the hip socket, or other extended effects resulting in greater interference with ability to work than would be expected from a simple and uncomplicated loss of the leg.
* * * * * *
"The usual statute provides for both total disability and specific loss of a leg, without expressly saying that either shall be exclusive. It could therefore be argued that, since the act must be given a liberal construction, destruction of the more favorable remedy should not be read into the act by implication in a case where claimant is able to prove a case coming under either heading. Loss of a leg may or may not cause total disability as defined in the preceding section. To refuse total disability benefits in such a case, when total disability is otherwise established to the satisfaction of the usual tests, has the effect of ruling out the inability-to-get-work element in a listed group of injuries which just happen to take the form of a neatly classifiable loss of a member. It has already been shown that the inability-to-get-work factor is an indispensable ingredient in the concept of total disability. If this is so, it is difficult to see why this factor is relevant in case of loss of a lung but not in case of loss of a leg. Logically, there is no reason to make the distinction turn on physical extension of the effects beyond the lost member. If, in addition to loss of a hand, there are incidental injuries and pains elsewhere, there is no greater reason why this should entitle claimant to make a showing of de facto total disability based on refusal of employment and to take advantage of the `odd-lot' doctrine than if the loss was an uncomplicated amputation of a leg. * * *
"Somewhat the same problem on a smaller scale arises when a claim is made that loss of all or parts of several fingers amounts to loss of use of the hand. Of course, as has been observed, the finger schedule would not be exclusive if pain or other effects extended beyond the finger. The present question is whether, in the absence of such physical extension of effects, a claimant can be allowed to assert that the cumulative or special result of the individual losses is a loss of use of the hand, or a percentage loss of it. Consistency with the argument just applied to total disability would require that the larger award be permitted. Just as parallel benefits for loss of a leg and total disability are provided, so parallel benefits for loss of specific fingers and loss of the hand stand side by side in the statute. If, under the schedule, loss of use is equivalent to loss, the claimant who can in fact show loss of use of his hand should not under liberal statutory construction be deprived of a benefit provided for that loss merely because there also exists a less favorable remedy. Moreover, just as total disability should be judged in part in terms of the claimant's particular qualifications and training, so the question whether loss of several fingers amounts to loss of use of the hand should depend in part on whether the hand has become useless to the claimant for any work for which he is qualified *314 by experience and background. * * *"
Whereas, prior to amendment of § 59-10-18(b) by Ch. 67, § 22. N.M.S.L. 1959 (§ 59-10-18.4, supra) the schedule was only applicable upon "loss" of a scheduled member, the section now applies not only in the event of "loss" but also for "loss of use." In this variance, however, I perceive of no reason for a different rule or contrary approach. Rather, it seems to me that the rule as outlined in the quotation above is reasonable and furthers the expressed intent of the legislature.
In Sisneros, supra, a case where the claimant lost parts of four fingers and suffered a two-inch cut in his hand, the court merely followed Boggs and limited him to the compensation provided in the schedule notwithstanding pain in the hand, arm and neck, and loss of strength in the arm. The court expressed the view that the pain in the other parts of the body was incidental to the injury suffered and could not be made the basis of a separate or different claim for compensation. That this was correct under the rule announced in Boggs, supra, cannot be doubted.
It seems to me, however, the proper approach is that announced by Larson in § 58.20, quoted above, and that we should apply it here. Gonzales v. Gackle Drilling Co., 70 N.M. 131, 371 P.2d 605, is a case decided under our statute as it existed prior to its amendment in 1959, and is an example of a situation where we recognized the right of a claimant to total permanent disability even though the only injury was the loss of a scheduled member. Subsequent changes do not require a different result.
In the instant case, I would affirm the trial court and if in so doing, Boggs, supra, and Sisneros, supra, must be overruled, I would do that. Since the other members of the court do not agree with this approach, and the result reached in Justice Compton's opinion is correct in my view, I specially concur in the affirmance and granting of attorneys fees therein ordered.
CARMODY, Chief Justice, and NOBLE, Justice (dissenting).
This case cannot be distinguished from either Boggs v. D & L Construction Company, 1963, 71 N.M. 502, 379 P.2d 788, or Sisneros v. Breese Industries, Inc., 1963, 73 N.M. 101, 385 P.2d 960, and, on their authority, should be reversed. Therefore, for the reasons stated in these cases, we dissent.
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795 So.2d 191 (2001)
PINECREST LAKES, INC.; and Villas at Pinecrest Lakes Limited Partnership, Appellants,
v.
Karen SHIDEL, Appellee.
No. 4D99-2641.
District Court of Appeal of Florida, Fourth District.
September 26, 2001.
*192 Jack J. Aiello and Ernest A. Cox, III, of Gunster, Yoakley, Valdes-Fauli & Stewart, P.A., West Palm Beach, for appellants.
*193 Richard Grosso, General Counsel, Environmental & Land Use Law Center, Fort Lauderdale, for appellee.
Stephen H. Grimes and Lawrence E. Sellers, Jr. of Holland & Knight, LLP., Tallahassee, for Amici Curiae, National Association of Home Builders, Florida Home Builders Association, Florida Association of Realtors, and Association of Florida Community Developers, Inc.
Michael L. Rosen, Tallahassee, for Amicus Curiae, Florida Legal Foundation, Inc.
Terrell K. Arline, Legal Director, Tallahassee, Thomas G. Pelham, Kenneth J. Goldberg and Douglas W. Ackerman, Tallahassee, for Amici Curiae, The Florida Chapter of the American Planning Association, and 1000 Friends of Florida, Inc.
FARMER, J.
The ultimate issue raised in this case is unprecedented in Florida. The question is whether a trial court has the authority to order the complete demolition and removal of several multi-story buildings because the buildings are inconsistent with the County's comprehensive land use plan. We conclude that the court is so empowered and affirm the decision under review.
Some twenty years ago, a developer[1] purchased a 500-acre parcel of land in Martin County and set out to develop it in phases. Development there is governed by the Martin County Comprehensive Plan (the Comprehensive Plan).[2] Phase One of the property was designated under the Comprehensive Plan as "Residential Estate," meaning single-family homes on individual lots with a maximum density of 2 units per acre (UPA). The Comprehensive Plan provides that
"[w]here single family structures comprise the dominant structure type within these areas, new development of undeveloped abutting lands shall be required to include compatible structure types of land immediately adjacent to existing single family development." [e.s.]
Phases One through Nine were developed as single-family homes on individual lots in very low densities.
The subject of this litigation, Phase Ten, is a 21-acre parcel between Phase One and Jensen Beach Boulevard, a divided highway designated both as "major" and "arterial." Phase Ten was designated by the Comprehensive Plan as "Medium Density Residential" with a maximum of 8 UPA. The developer sought approval of three different site plans before finally erecting the buildings that are the subject of this litigation. In 1988, the developer first sought approval for an initial scheme of 3-story apartment buildings with a density of just under 8 UPA. Karen Shidel, since 1986 an owner of a single-family residence in the adjoining area of Phase One, along with other residents, opposed the project proposed by the developer. This initial site plan for Phase Ten was approved by the County but never acted upon.
*194 Five years later the developer changed the proposed scheme to single family residences, and the County Commission approved a revised site plan for 29 single-family homes with a density of 1.37 UPA. Two years after that, however, the developer again changed its mind and returned to its original concept of multi-family structures. This time, the developer sought to develop 136 units in two-story buildings, with a density of 6.5 UPA. The County's growth management staff recommended that the County Commission approve this second revised site plan for Phase Ten. Following a hearing at which a number of people objected to the proposal, including Shidel, the County Commission approved the revision and issued a Development Order[3] for Phase Ten permitting the construction of 19 two-story buildings.
Claiming statutory authority, Shidel and another Phase One homeowner, one Charles Brooks, along with the Homeowners Associations for Phases One through Nine, then filed a verified complaint with the Martin County Commission challenging the consistency of the Development Order with the Comprehensive Plan, requesting rescission of the Development Order.[4] In response to the verified complaint, after a hearing the County Commission confirmed its previous decision to issue the Development Order.
Shidel and Brooks then filed a civil action in the Circuit Court against Martin County under the same statutory authority.[5] They alleged that the Development Order was inconsistent with the Comprehensive Plan. The developer intervened. Shidel and Brooks argued that their statutory challenge was a de novo proceeding in which the court should decide in the first instance whether the Development Order was consistent with the Comprehensive Plan. Martin County and the developer argued that the proceeding was in the nature of appellate review in which the County's determination was entitled to deference and the court should consider only whether there was substantial competent evidence supporting the Development Order. Basing its decision solely on a review of the record created before the County Commission, the trial court found that the Development Order was consistent with the Comprehensive Plan and entered final judgment in favor of the developer.
*195 At that point, the developer took stock of its position. It had prevailed before the County Commission andat least initially in the trial court. Technically, however, its approval for the project was not final. Developer considered whether to proceed to construct the buildings or instead await appellate review of the trial court's decision. Ultimately the developer decided to commence construction, notwithstanding the pendency of an appeal. Accordingly, it applied for and received building permits for construction of Buildings 8, 9, 10, 11 and 12, and started on each of those buildings while the case was under consideration in court.[6] When construction was just beginning, Shidel and Brooks sent written notice to the developer of their intention, should they prove successful in court, to seek demolition and removal of any construction undertaken while judicial consideration of the consistency issue was pending.
Appellate review did not produce the outcome for which the developer had hoped. In 1997 we reversed the trial court's decision that the County's consistency determination complied with the Comprehensive Plan. Poulos v. Martin County, 700 So.2d 163 (Fla. 4th DCA 1997). Specifically, we concluded that section 163.3215 required de novo consideration in the trial court on the consistency issue. Our opinion explained:
"if section 163.3215 was intended to provide for the circuit court to conduct an appellate review by certiorari, then the statutory language permitting the filing of the action up to 90 days after the granting of the development order is in conflict with the 30 day deadline outlined under the Florida Rules of Appellate Procedure."
700 So.2d at 165. We further adopted an analysis by Judge Wentworth as to the meaning of section 163.3215:
"the ... language in the statute ... provides only for a suit or action clearly contemplating an evidentiary hearing before the court to determine the consistency issue on its merits in the light of the proceedings below but not confined to the matters of record in such proceedings."
700 So.2d at 166 (quoting from Gregory v. City of Alachua, 553 So.2d 206, 211 (Fla. 1st DCA 1989) (Wentworth, J., dissenting)). We remanded the case for a trial de novo and for any appropriate relief.
On remand, the trial judge[7] proceeded in two stages: the first stage involved a determination whether the Development Order was consistent with the Comprehensive Plan; and the second stage, which became necessary, addressed the remedy. While the case was pending on remand, developer continued with construction. The County conducted final inspections of Building 11 and 12, issuing certificates of occupancy (CO), and residents moved into the buildings. At the end of the consistency phase, the trial court entered a partial judgment finding that the Development Order was not consistent with the Comprehensive Plan. The trial de novo then proceeded to the remedy.
At the conclusion of the remedy phase, the trial court entered a Final Judgment. The court found that the Comprehensive Plan established a hierarchy of land uses, paying deference to lower density residential uses and providing protection to those areas. The "tiering policy" required that, *196 for structures immediately adjacent to each other, any new structures to be added to the area must be both comparable and compatible to those already built and occupied.[8] The court then found significant differences between the northern tier of Phase One and the adjacent southern tier of Phase Ten. The structures in Phase One were single level, single family residences, while the structures in Phase Ten were two-story apartment buildings with eight residential units. Therefore, the court found, the 8-residential unit, two-story, apartment buildings in Phase Ten were not compatible or comparable types of dwelling units with the single family, single level residences in Phase One; nor were they of comparable density. Consequently, the court determined, the Development Order was inconsistent with the Comprehensive Plan.
As regards the remedy, the Final Judgment found no evidence indicating that either Brooks or the Homeowners Association were damaged by any diminution in value. The court found that the Homeowners Association was not a person within the meaning of section 163.3215(2) and therefore had no standing to seek relief under section 163.3215. Accordingly, only plaintiff Shidel was entitled to seek injunctive relief under section 163.3215.
In granting such relief, the court found that the developer had acted in bad faith. Specifically, the court found that the developer continued construction during the pendency of the prior appeal and continued to build and lease during the trial even after losing on the consistency issue. The court found that the developer "acted at [its] own peril in doing precisely what this lawsuit sought to prevent and now [is] subject to the power of the court to compel restoration of the status prior to construction." The relief awarded was:
(1) the Court permanently enjoined Martin County from taking any further action on the subject Development Order for Phase Ten, other than to rescind it;
(2) the Court permanently enjoined developer and its successors in interest from any further development of Phase Ten under the subject Development Order; and
(3) the Court ordered developer to remove all apartment buildings from Phase Ten either through demolition or physical relocation by a date certain.
When the Final Judgment was entered, five of the eight-unit buildings had been constructed in Phase Ten (Buildings 8-12). Buildings 11 and 12 had already received their CO's, and fifteen of their sixteen units were actually occupied. Building 10 was fully completed and was awaiting final inspection as of the date the remedies stage of trial began. Buildings 8 and 9 were 50% and 66% completed, respectively, also as of that date.
Following the entry of Final Judgment, the developer filed this timely appeal and moved for a stay pending review.[9] The trial court granted a stay only as to the demolition order, allowing lessees to continue in possession of those apartments in *197 Buildings 9-12 under actual lease when the trial court entered final judgment, as well as to those leases in Building 8 in existence as of the date of filing of the notice of appeal. The developer was prohibited, however, from entering into any renewals of existing leases upon expiration of the original term or any new leases of any apartments. Upon review, we affirmed the stay order. We now explain our decision on the merits.
I. The Consistency Issue
Initially the developer argues that the trial court erred in the consistency phase by failing to accord any deference to the County Commission's interpretation of its own Comprehensive Plan when the County approved the second revised site plan and its multi-story, multi-family buildings. Conceding that the proceedings are de novo and that the Development Order is subject to "strict scrutiny" under the Comprehensive Plan as to the consistency issue, the developer nevertheless argues that the courts must bow to the County's interpretation of its own Comprehensive Plan and the application of its many elements to the site plan. Developer argues that the statutes and cases accord such deference to a local government's interpretation of its own Comprehensive Plan and that it was reversible error for the trial court in this case to fail to do so. In particular, developer relies on Southwest Ranches Homeowners Ass'n v. Broward County, 502 So.2d 931 (Fla. 4th DCA 1987), and B.B. McCormick & Sons, Inc. v. City of Jacksonville, 559 So.2d 252 (Fla. 1st DCA 1990). According to developer, these cases authorize the use of the highly deferential "fairly debatable" standard of reviewcustomary with zoning decisions to land use determinations such as the issue of consistency in this case. We disagree.
As we have already seen in this dispute, the applicable statute provides that:
"[a]ny aggrieved or adversely affected party may maintain an action for injunctive or other relief against any local government to prevent such local government from taking any action on a development order ... which materially alters the use or density or intensity of use on a particular piece of property that is not consistent with the comprehensive plan...."
§ 163.3215(1), Fla. Stat. (2000). This statute obviously creates an action for an injunction against the enforcement of a development order, rather than to carry out such an order. The statute is aimed at development orderswhich, by their very nature, must have been approved by a local governmentso it is clear that the Legislature did not mean that local governments or developers would be the parties seeking injunctive relief under this provision.
Moreover there is but one basis for issuing the injunction: that the development order is not consistent with the Comprehensive Plan to the detriment of adjoining property owners. Hence the issuance of an injunction under section 163.3215(1) necessarily requires the judge to determine in the first instance whether a development order is consistent with the Comprehensive Plan. When a statute authorizes a citizen to bring an action to enjoin official conduct that is made improper by the statute, and that same statute necessitates a determination by the judge in the action as to whether the official's conduct was improper under the statute, as a general matter the requirement for a determination of the propriety of the official action should not be understood as requiring the court to defer to the official whose conduct is being judged. While the *198 Legislature could nevertheless possibly have some reason to require judges to require some deference to the officials whose conduct was thus put in issue, we would certainly expect to see such a requirement of deference spelled out in the statute with unmistakable clarity. Here it is not a question of any lack of clarity; the statute is utterly silent on the notion of deference. It is thus apparent that the structure and text of the statute do not impliedly involve any deference to the decision of the county officials. So we necessarily presume none was intended.[10]
Section 163.3194 requires that all development conform to the approved Comprehensive Plan, and that development orders be consistent with that Plan.[11] The statute is framed as a rule, a command to cities and counties that they must comply with their own Comprehensive Plans after they have been approved by the State. The statute does not say that local governments shall have some discretion as to whether a proposed development should be consistent with the Comprehensive Plan. Consistency with a Comprehensive Plan is therefore not a discretionary matter. When the Legislature wants to give an agency discretion and then for the courts to defer to such discretion, it knows how to say that. Here it has not. We thus reject the developer's contention that the trial court erred in failing to defer to the County's interpretation of its own comprehensive plan.
Before we proceed to assess the trial court's determination on the consistency issue, we pause to consider the history of the land development statutes. The State of Florida did not assert meaningful formal control over the explosive and unplanned development of land in this state until the passage of the first growth management statute, the Local Government Comprehensive Planning Act of 1975. Chapter 75-257, Laws of Fla. (the 1975 Act). The 1975 Act forced counties and cities to adopt comprehensive plans, but *199 they were left to interpret such plans for themselves, largely free from effective oversight by the state. See, e.g., City of Jacksonville Beach v. Grubbs, 461 So.2d 160, 163 (Fla. 1st DCA 1984) (determination of when to conform more restrictive zoning ordinances with Comprehensive Plan is legislative judgment to be made by local governing body, subject only to limited judicial review for patent arbitrariness). The requirement of adopting a Comprehensive Plan was, therefore, only a small step. Moreover nothing in the legislation required local governments to comply with their own Comprehensive Plans or that all development be consistent with the Plan.
By the early 1980's it was widely recognized that the 1975 Act was proving ineffectual in regulating Florida's development. See Reid Ewing, Florida's Growth Management Learning Curve, 19 VA. ENVT'L. L.J. 375 (2000). The lack of state control over interpretation of the Comprehensive Plan was often cited as a serious deficiency. As one such criticism described the situation:
"[f]rustration grew at the state level as well. Lacking the actual power to approve or disapprove local planning decisions, state and regional planners could not effectively coordinate and oversee local planning and regulation. Local governments changed their plans `willynilly virtually every time a city council or county commission met ...'"
John M. DeGrove, State and Regional Planning and Regulatory Activity: The Florida Experience and Lessons for Other Jurisdictions, C390 ALI-ABA 397, 428 (1994).
For another thing, the 1975 Act was criticized for failing to give affected property owners and citizen groups standing to challenge the land development decisions of local governments on the grounds that they were inconsistent with the Comprehensive Plan. The standing issue was considered in Citizens Growth Management Coalition of West Palm Beach Inc. v. City of West Palm Beach, 450 So.2d 204 (Fla. 1984) (CGMC). CGMC involved a challenge by a citizens group to a local decision to allow the construction of a large scale residential and commercial complex. The court began by referring to Renard v. Dade County, 261 So.2d 832 (Fla.1972), holding that standing to challenge local development decisions was limited to the highly deferential "fairly debatable" standard. Affected property owners in the vicinity of new development had no standing to seek enforcement of local comprehensive plans unless they could "prove special damages different in kind from that suffered by the community as a whole." 261 So.2d at 834. The CGMC court determined that the 1975 Act did not change these rules on standing. 450 So.2d at 208. The court reasoned that because the 1975 Act "did not specifically address the question" of standing, the statute was not meant to alter the common law standing requirements set forth in Renard. 450 So.2d at 206-07.
Again, to return to the criticism, this limitation on standing to enforce local planning laws resulted in:
"a failure to conform development decisions to the plan based upon the fact that citizens lacked standing to challenge development orders for lack of consistency with the comprehensive plan."
James C. Nicholas & Ruth L. Steiner, Growth Management and Smart Growth in Florida, 35 WAKE FOREST L.REV. 645, 657 (2000)(quoting Daniel W. O'Connell, Growth Management in Florida: Will State and Local Governments Get Their Acts Together?, FLORIDA ENVT'L & URBAN ISSUES, 1-5 (June 1984)). If affected property owners in the area of newly permitted *200 development could not challenge a project on the grounds that it would be inconsistent with the Comprehensive Plan, that eliminated the only real check on local government compliancea challenge by those most directly affected by a proposed development.
The growing pressure for a fundamental change in the growth management law is reflected in the following statement made just prior to the Legislature's adoption of the current law in 1985:
"In response to this lack of citizen standing, a citizen initiative began last year and thousands of signatures were collected around the state to bring the standing issue to a referendum vote. The petition specifically calls for a referendum on the issues of giving citizens a right in the state constitution to environmental health and welfare and providing them with legal standing to sue if government at the local, regional, or state level is not doing its job.
"That initiative fell just a few thousand signatures short of the required number for qualifying for a referendum in 1984. However, the initiative is continuing, and I feel confident that the issue will be brought to the voters of the state in 1985 unless the legislature addresses the issue more effectively than it did last year."
Kathleen Shea Abrams, An Environmental Word, 1 J. LAND USE & ENVT'L LAW 155, 159 (1985). Clearly the pressure from a "civically militant electorate" was growing, and the elected representatives took notice of it. The result was the Growth Management Act of 1985. Chap. 85-55, Laws of Fla. This is essentially the statute we have today, parts of which have been cited in preceding paragraphs.[12] Its most important provision for our purposes was section 163.3215, the provision used by Shidel to bring this action into court.
In Southwest Ranches, we observed that section 163.3215 had liberalized standing requirements and demonstrated "a clear legislative policy in favor of the enforcement of comprehensive plans by persons adversely affected by local action." 502 So.2d at 935. In Parker v. Leon County, 627 So.2d 476, 480 (Fla.1993), the court held that "the legislature enacted section 163.3215 to ensure the standing for any person who `will suffer an adverse effect to an interest protected ... by the ... comprehensive plan.'" 627 So.2d at 479. The Parker court quoted with approval the above passage from Southwest Ranches. 627 So.2d at 479. See also Putnam County Envt'l Council, Inc. v. Board of County Comm'rs of Putnam County, 757 So.2d 590, 593 (Fla. 5th DCA 2000) ("That standard changed, however, with the 1985 adoption of section 163.3215, which liberalized the standing requirements and `demonstrat[ed] a clear legislative policy in favor of the enforcement of comprehensive plans by persons adversely affected by local action.'"). Thus, the criticism described above certainly was of great influence in the 1985 Legislature's formulation of the new standing provision. Affected citizens have been given a significantly enhanced standing to challenge the consistency of development decisions with the Comprehensive Plan.
The Growth Management Act of 1985 was discussed in what is now recognized as the most significant land use decision by the supreme court in the past decade, namely Board of County Commissioners of Brevard County v. Snyder, 627 So.2d 469 (Fla.1993). Snyder involved a parcel then zoned only for single family homes and a proposed development of 5-6 units. The proposal also necessarily required a *201 change of zoning. After substantial opposition, and in spite of a favorable staff recommendation, the County voted to deny the request without giving any reasons. Certiorari was denied in the circuit court, one judge dissenting. The Fifth District held that rezoning actions entailing the application of a general rule or policy to specific individuals, interests, or activities are quasi-judicial in nature and should be subjected to a stricter standard of judicial review. The court found that the proposed site plan was consistent with the Comprehensive Plan, that there was no evidence supporting the denial of any necessary rezoning, and that the denial of the request without giving any reasons was arbitrary and unreasonable.
After granting review, the supreme court was first concerned with the level of review given by the courts to such proceedings. The county took the position that it had been faced with primarily a legislative judgment because the landowner sought rezoning. As the court noted:
"Both federal and state courts adopted a highly deferential standard of judicial review early in the history of local zoning. In Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303 (1926), the United States Supreme Court held that `[i]f the validity of the legislative classification for zoning purposes be fairly debatable, the legislative judgment must be allowed to control.' This Court expressly adopted the fairly debatable principle in City of Miami Beach v. Ocean & Inland Co., 147 Fla. 480, 3 So.2d 364 (1941)." [c.o.]
627 So.2d at 472. The court went on to note, however, that this tolerant form of judicial review had not proved satisfactory:
"Inhibited only by the loose judicial scrutiny afforded by the fairly debatable rule, local zoning systems developed in a markedly inconsistent manner. Many land use experts and practitioners have been critical of the local zoning system. Richard Babcock deplored the effect of `neighborhoodism' and rank political influence on the local decision-making process. Richard F. Babcock, The Zoning Game (1966). Mandelker and Tarlock recently stated that `zoning decisions are too often ad hoc, sloppy and self-serving decisions with well-defined adverse consequences without off-setting benefits.' Daniel R. Mandelker and A. Dan Tarlock, Shifting the Presumption of Constitutionality in Land-Use Law, 24 URB. LAW. 1, 2 (1992)."
627 So.2d at 472-73.
The court explained that in Florida the 1975 Act "was substantially strengthened by the Growth Management Act [of 1985]." 627 So.2d at 473. After analyzing various provisions of the Growth Management Act of 1985, the court stated:
"We also agree with the court below that the review is subject to strict scrutiny. In practical effect, the review by strict scrutiny in zoning cases appears to be the same as that given in the review of other quasi-judicial decisions. See Lee County v. Sunbelt Equities, II, Ltd. Partnership, 619 So.2d 996 (Fla. 2d DCA 1993) (The term `strict scrutiny' arises from the necessity of strict compliance with comprehensive plan.). This term as used in the review of land use decisions must be distinguished from the type of strict scrutiny review afforded in some constitutional cases. Compare Snyder v. Board of County Comm'rs, 595 So.2d 65, 75-76 (Fla. 5th DCA 1991) (land use), and Machado v. Musgrove 519 So.2d 629, 632 (Fla. 3d DCA 1987), review denied, 529 So.2d 693 (Fla.1988), and review denied, 529 So.2d 694 (Fla.1988) (land use), with In re Estate of Greenberg, 390 So.2d 40, 42-43 (Fla.1980) (general discussion of strict *202 scrutiny review in context of fundamental rights), appeal dismissed, 450 U.S. 961, 101 S.Ct. 1475, 67 L.Ed.2d 610 (1981), Florida High Sch. Activities Ass'n v. Thomas, 434 So.2d 306 (Fla. 1983) (equal protection), and Department of Revenue v. Magazine Publishers of America, Inc., 604 So.2d 459 (Fla. 1992) (First Amendment)." [e.s.]
627 So.2d at 475.
In the foregoing quotation the supreme court drew a distinction between the use of strict scrutiny in land use cases and its use in other contexts. The court approved the analyses of the Fifth District in Snyder and the Third District in Machado v. Musgrove, 519 So.2d 629, 632 (Fla. 3d DCA 1987), review denied, 529 So.2d 693 (Fla.), review denied, 529 So.2d 694 (Fla.1988), regarding land use decisions. These courts explained that strict scrutiny of local government development orders is necessary to insure that the local governments comply with the duty imposed by section 163.3194 to make decisions consistent with the Comprehensive Plan. In discussing the difference between a developer aggrieved by a land use decision of local government and an affected property owner in the vicinity aggrieved by a proposed new development, the Snyder court emphasized that section 163.3215 "provides a remedy for third parties to challenge the consistency of development orders." 627 So.2d at 475.
As one pair of writers put it, "Snyder changed the rules of the game for local government land use approvals." John W. Howell & David J. Russ, Planning v. Zoning: Snyder Decision Changes Rezoning Standards, FLA. B.J., May 1994, at 16. And another pair noted:
"The easygoing `fairly debatable' test for site-specific rezonings was abandoned and the `strict scrutiny' standard was adopted for the review of development orders under a county's comprehensive master plan."
Lucia A. Dougherty & Elliot H. Scherker, Rights, Remedies, and Ratiocination: Toward a Cohesive Approach to Appellate Review of Land Use Orders After Board of County Commissioners v. Snyder, 24 STET. L.REV. 311, 312 (1995). In light of this history, deferential review of the kind advocated by developer here is no longer the rule after Snyder.
Under section 163.3215 citizen enforcement is the primary tool for insuring consistency of development decisions with the Comprehensive Plan. Deference by the courtsespecially of the kind argued by the developer in this casewould not only be inconsistent with the text and structure of the statute, but it would ignore the very reasons for adopting the legislation in the first place. When an affected property owner in the area of a newly allowed development brings a consistency challenge to a development order, a cause of actionas it werefor compliance with the Comprehensive Plan is presented to the court, in which the judge is required to pay deference only to the facts in the case and the applicable law. In light of the text of section 163.3215 and the foregoing history, we reject the developer's contention that the trial court erred in failing to defer to the County's interpretation of its own Comprehensive Plan.
Having thus decided that the trial court was correct in failing to accord any particular deference to the Martin County Commission in its interpretation of the Comprehensive Plan, we now proceed to consider the court's determination on the consistency issue. The trial court explained its decision as follows:
"The primary claim by [plaintiffs] is that the juxtaposition of multi-story, multi-family apartments in Phase 10 directly next to the single family homes in *203 Phase 1 violates a number of provisions in the Comprehensive Plan. The provision of the Comprehensive Plan that is central to their argument is section 4-5(A)(2)(b), known as the `tiering policy.' [see n. 6, above]
"The tiering policy was added to the Comprehensive Plan ... to address how development would be added to existing single-family residential communities. There was a concern ... over how existing single-family homes were being impacted by new, adjacent denser developments....
"The tiering policy required ... a transition zone along the southern portion of Phase 10 equal to `the depth of the first block of single-family lots' within the northern portion of Phase 1. The section requires that development in the first tier of Phase 10 be limited to construction `of comparable density and compatible dwelling unit types.' The court finds that the appropriate measure is 225 feet, using the shortest average depth method of computation.
"No transition zone was established for Phase 10. The buildings along the first tier of Phase 10 are multi-family, multi-story, and have balconies. The southern tier of Phase 10 has a density of 6.6[UPA]. The overall density of Phase 10 is 6.5[UPA]. There is no meaningful difference in density across the entire western portion of Phase 10. The northern tier of Phase 1, on the other hand, is comprised entirely of single-family homes on 0.75 acre to 1.2 acre lots, with a density of 0.94[UPA].[13]
"There was no first tier transition zone established for Phase 10 as mandated by section 4-5(A)(2)(b). That section is not the only provision of the Comprehensive Plan that mandated compatible structures within the first tier of Phase 10. Section 4-4(M)(1)(e)(2) provided:
... Where single family structures comprise the dominant structure type within [residential estate densities (RE-0.5A) ], new development on undeveloped abutting lands shall be required to include compatible structure types of lands immediately adjacent to existing family development.
... Phase 1 is designated RE-0.5A
. . .
"It is impossible ... to examine the photographs of the homes in the northern tier of Phase 1, and the apartment buildings in the southern tier of Phase 10, and find that they are either `compatible dwelling unit types' or `compatible structure types.' The only residential structure that could be less compatible with the northern tier of Phase 1, would be a multi-story condominium building. There is no compatibility between the structures in the southern tier of Phase 10 and the northern tier of Phase 1. Further, an examination of the density of development in the two tiers at issue, precludes this court from finding that they are in any way comparable.
. . .
"[B]uffering does not grant relief to the [developer] under section 4-4(I)(5). That section deals with buffering between `incompatible land uses.' The more specific Tiering Policy mandates compatibility. More importantly, even to the extent that the Comprehensive Plan might, in some instances, provide a *204 builder with the ability to buffer changes in density, intensity or uses, the language of sections 4-4(M)(1)(e)(2) and 4-5(A)(2)(b) simply do not permit the type of development that is under construction in Phase 10."
. . .
"Based on the foregoing, the Court finds that the Development Order is inconsistent with the Comprehensive Plan. It is not compatible with, nor does it further the objective, policies, land uses, densities and intensities in the Comprehensive Plan. § 163.3194(3)(a)." [e.o.]
We have carefully reviewed the record of the trial and the evidence presented. It is apparent that there is substantial competent evidence to support these findings. Developer argues that the court erred in its interpretation of the "tiering policy," in deeming it a mandatory requirement rather than a discretionary guide. We conclude that the trial court's construction is consistent with the plain meaning of the text of the Comprehensive Plan. See Comprehensive Plan, § 4-5(A)(2)(b) ("a density transition zone of comparable density and compatible dwelling unit types shall be established in the new project for a depth from the shared property line that is equivalent to the depth of the first tier of the adjoining development's lower density (i.e. the depth of the first block of single-family lots)."). Moreover, given the evidence as to Martin County's adoption of the tiering policy, the record clearly supports the finding that the policy was intended to be applied in all instances of projects abutting single-family residential areas. We therefore affirm the finding of inconsistency and proceed to explain our decision on the remedy.
II. Remedy of Demolition
Developer challenges what it terms the "enormity and extremity of the injunctive remedy imposed by the trial court." It argues that the trial court's order requiring the demolition of 5 multi-family residential buildings is the most radical remedy ever mandated by a Florida court because of an inconsistency with a Comprehensive Plan. Specifically, the contention is that the trial judge failed to balance the equities between the parties and thus ignored the evidence of a $3.3 million dollar loss the developer will suffer from the demolition of the buildings. The court failed to consider alternative remedies in damages, it argues, that would have adequately remedied any harm resulting from the construction of structures inconsistent with the Comprehensive Plan. Developer maintains that the trial court erroneously failed to give meaningful consideration to the traditional elements for the imposition of injunctive relief. It contends that the trial court proceeded on an erroneous conclusion that where an injunction is sought on the basis of a statutory violation, no proof is required as to the traditional elements for an injunction.
Traditionally, as the trial judge noted, it is true that injunctions are usually denied where the party seeking such relief fails to demonstrate a clear legal right, a particular harm for which there is no adequate remedy at law, and that considerations of the public interest would support the injunction. See, e.g., St Lucie County v. St. Lucie Village, 603 So.2d 1289, 1292 (Fla. 4th DCA 1992). These are, of course, the necessary ingredients for equitable relief when we labor in the interplay of common law and equity, where ordinary legal remedies are unavailing.
Nonetheless, as between the State legislature and the several counties, the Legislature is the dominant creator of public *205 duties and citizen rights.[14] Recognizing that the Legislature has the sole power to create such public duties and citizen rights, it logically follows that the Legislature is necessarily endowed with the authority to specify precisely what remedies shall be used by judges to enforce a statutory dutyregardless of whether in general usage such a remedy usually requires additional factors before it is traditionally employed.
When the Legislature creates a public duty and a corresponding right in its citizens to enforce the duty it has created, and provides explicitly that the remedy of vindication shall be an injunction, the Legislature has not thereby encroached on judicial powers, as the courts held in Harvey v. Wittenberg, 384 So.2d 940 (Fla. 3rd DCA 1980), and Times Publishing Co. v. Williams, 222 So.2d 470 (Fla. 2d DCA 1969). The Times Publishing court explained its theory of encroachment thus:
"Injunctive relief is an extraordinary remedy which issues only when justice requires and there is not adequate remedy at law, and when there is a real and imminent danger of irreparable injury. Statutory authority for such writs, as in the act before us, are not uncommon; but it must be remembered that such writs are in the first instance judicial writs. If such statutes purport to give the circuit courts injunctive power they are ineffectual, since those courts are otherwise vested with such powers under the constitution, § 6(3) Art. V Constitution of Florida; and if they purport to dictate to such courts when, how or under what conditions injunctions should issue they would constitute an unlawful legislative infringement on a judicial function." [e.s.]
222 So.2d at 476. Times Publishing and Harvey both held that the Legislature is limited to specifying certain harms as irreparable, but the court alone has the discretion to determine whether the injunction should otherwise issue. We disagree with this analysis.
We think that is too wooden a construction of legislative powers where a statute is concededly valid. In our view when the Legislature provides for an injunction in these circumstances, it has deliberately made the new public duty and its corresponding right of enforcement an integrated statutory prescription. By specifying that the public interest requires that a certain duty be vindicated in the courts and not primarily within other branches of government, the Legislature is well within its powers. Surely the Legislature's primary role in defining public policy under the constitution is broad enough to enable it to specify a legal remedy in an enactment, regardless of whether the traditional judicial restrictions on that remedy in other, non-statutory contexts would limit its usage. As the author of the primary duty, the Legislature alone shapes the form of its effectuating mechanism.
In section 163.3215, we think the Legislature has constructed such a statute. The statute leads off with a declaration that:
"Any aggrieved or adversely affected party may maintain an action for injunctive or other relief against any local government to prevent such local government from taking any action on a development order, as defined in s. 163.3164, which materially alters the use or density or intensity of use on a particular piece of property that is not consistent *206 with the comprehensive plan adopted under this part."
From the plain and obvious meaning of this text we discern only two elements to the granting of an injunction against the enforcement of a development order: (a) the party is affected or aggrieved by (b) an approved project that is inconsistent with the Comprehensive Plan. In short, the existence of an affected neighbor is all that is necessary for the issuance of an injunction against a proposed land use that is inconsistent with the Comprehensive Plan.
We note that the statute does not say that the affected/aggrieved party bringing the action "creates a presumption of irreparable injury" by showing an inconsistency with the Plan. See, e.g., § 542.335(1)(j), Fla. Stat. (2000) ("The violation of an enforceable restrictive covenant creates a presumption of irreparable injury to the person seeking enforcement of a restrictive covenant."). When the Legislature wants to make a lesser intrusion on traditional equitable jurisdiction, it obviously knows how to do so. Here the statutory text makes the injunction the first and preferred remedy to alleviate the affects of in inconsistent land use. Hence, we read the statute to make the injunction the presumed remedy where the conditions prescribed are shown.[15]
We disagree with the developer's contention that this statute was meant to create mere discretion in the court to issue an injunction. If injunctive relief is the specified, primary remedy to correct a violation of a public duty and to vindicate the right of a person affected by the violation of that duty, it can properly be deemed a rule that the Legislature has created, not a grant of discretion. Here the Legislature has devised an entire statutory scheme to insure that all counties have a Comprehensive Plan for the development of land within their respective jurisdictions. The scheme creates mandatory duties to have a plan, mandatory duties to have the plan approved by the state, and once approved mandatory duties to limit all developments so that they are consistent with the plan's requirements. At the end of all these *207 mandatory dutiesall these shallscomes a new relaxation of the requirements on standing for citizen suits to enforce comprehensive land use plans and providing for the issuance of injunctions when an inconsistency affects another land owner. Judicial construction of that sole remedy as discretionary strikes us as remarkably inconsistent with not only the text of the statute itself but also with the purpose of the entire legislative scheme.
Developer lays great stress on the size of the monetary loss that it claims it will suffer from demolition, as opposed to the much smaller diminution in value that the affected property owner bringing this action may have suffered. It contends that a $3.3 million loss far outweighs the evidence of diminution in the value of Shidel's property, less than $26,000. Its primary contention here is that the trial judge erred in failing to weigh these equities in its favor and deny any remedy of demolition. Instead, as developer sees it, the court should have awarded money damages to eliminate the objector's diminution in value. Developer argued that it should be allowed instead of demolition it should also be allowed to build environmental barriers, green areas of trees and shrubbery, between the apartment buildings and the adjoining area of single family homes.
Developer emphasizes that we deal here with an expensive development: "a high quality, upscale project;" "forty units of high-quality garden apartments;" "five upscale multi-family dwellings, housing 40 garden apartments, at a value of approximately $3 million." Developer concedes that there is evidence showing that plaintiff Shidel's property is diminished by $26,000. It also concedes that the total diminution for all the homes bordering its project is just under $300,000. Developer contends, however, that the real countervailing harm to all these affected property owners in the vicinity is not any diminution in the value of their homes, but instead is merely "knowing that there is an upscale apartment building approximately a football field away, partially visible through some trees behind the house."
Section 163.3215 says nothing about weighing these specific equities before granting an injunction. If the Legislature had intended that injunctive enforcement of comprehensive plans in the courts be limited to cases where such imbalances of equities were not present, we assume that it would have said so. As important, such balancing if applied generally would lead to substantial non-compliance with comprehensive plans. We doubt that there will be many instances where the cost of the newly allowed construction will be less than any diminution resulting from an inconsistency. Entire projects of the kind permitted here will frequently far exceed the monetary harms caused to individual neighbors affected by the inconsistency. In other words, if balancing the equitiesthat is, weighing the loss suffered by the developer against the diminution in value of the objecting partywere required before demolition could be ordered, then demolition will never be ordered.
Moreover it is an argument that would allow those with financial resources to buy their way out of compliance with comprehensive plans. In all cases where the proposed use is for multiple acres and multiple buildings, the expenditures will be great. The greater will be its cost, and so will be a resulting loss from an after-the-fact demolition order. The more costly and elaborate the project, the greater will be the "imbalance in the equities." The more a developer is able to gild an inconsistency with nature's ornamentstrees, plants, flowers and their symbiotic fauna the more certain under this argument will *208 be the result that no court will enjoin an inconsistency and require its removal if already built.
In this case the alleged inequity could have been entirely avoided if developer had simply awaited the exhaustion of all legal remedies before undertaking construction. It is therefore difficult to perceive from the record any great inequity in requiring demolition. Shidel let the developer know when it was just beginning construction of the first building that she would seek demolition if the court found the project inconsistent. When developer decided to proceed with construction in spite of the absence of a final decision as to the merits of the challenge under section 163.3215, the developer was quite able to foresee that it might lose the action in court. It could not have had a reasonable expectation that its right to build what it had proposed was finally settled. It may have thought the decision to build before the consistency question was settled in court a reasonable "business decision," but that hardly makes it inequitable to enforce the rule as written.
It also seems quite inappropriate, if balancing of equities were truly required by this statute, to focus on the relatively small financial impacts suffered by those adjoining an inconsistent land use. The real countervailing equity to any monetary loss of the developer is in the flouting of the legal requirements of the Comprehensive Plan. Every citizen in the community is intangibly harmed by a failure to comply with the Comprehensive Plan, even those whose properties may not have been directly diminished in value.
We claim to be a society of laws, not of individual eccentricities in attempting to evade the rule of law. A society of law must respect law, not its evasion. If the rule of law requires land uses to meet specific standards, then allowing those who develop land to escape its requirements by spending a project out of compliance would make the standards of growth management of little real consequence. It would allow developers such as this one to build in defiance of the limits and then escape compliance by making the cost of correction too high. That would render section 163.3215 meaningless and ineffectual.
In this regard we are drawn to the views expressed in Welton v. 40 Oak Street Building. Corp., 70 F.2d 377 (7th Cir. 1934), a case of strikingly analogous facts. There the developer applied for a permit to erect a building, and proceeded to build while its neighbor objected to the edifice and sought to show that the building plans did not comply with the zoning ordinances. When the agency approved the building he sought relief in the courts, finally being victorious in the state supreme court. Ownership of the building meanwhile passed to a federal receiver, and so the objecting neighbor sought to enforce his remedy by injunctive relief in the federal court. The trial judge denied an injunction. On appeal the Court of Appeals disagreed and ordered a mandatory injunction to "rebuild" the edifice in compliance with the zoning law, explaining:
"We have earnestly endeavored to place ourselves in a position to fully appreciate appellees' argument to the effect that enforcement of a right which arises out of an effort to give light and air to metropolitan areas is an equity that is outweighed by the dollars advanced by builders of twenty story buildings in defiance of zoning ordinances. We have also endeavored to obtain appellees' viewpoint when they propose a money judgment to one who suffers small financial loss as satisfaction for violation of important ordinances enacted for the benefit of the public. In the fight for better living *209 conditions in large cities, in the contest for more light and air, more health and comfort, the scales are not well balanced if dividends to the individuals outweigh health and happiness to the community. Financial relief to appellants is not the only factor in weighing equities. There is involved that immeasurable but nevertheless vital element of respect for, and compliance with, the health ordinance of the city. The surest way to stop the erection of high buildings in defiance of zoning ordinances is to remove all possibility of gain to those who build illegally. Prevention will never be accomplished by compromise after the building is erected, or through payment of a small money judgment to some individual whose financial loss is an inconsequential item."
70 F.2d at 382-83. We agree with the Seventh Circuit that respect for law, in this case the Comprehensive Plan, trumps any "inequity" of financial loss arising from demolition.
Our understanding of section 163.3215 is thus different from equity's traditional use of its remedies. If, as we have shown, an injunction is the statutory remedy to insure consistency of development of property within the county, it does not seem to us that the kind of balancing advocated here would further that goal. In fact it would very likely lead to even more inconsistent development, particularly as to the kind of large scale project involved here with multiple buildings for multiple families. As we see it, the purpose of this statute is precisely against this kind of thinking. A clear rule is far more likely to erase the kind of legal unpredictability lamented by developer and amici.
The statute says that an affected or aggrieved party may bring an action to enjoin an inconsistent development allowed by the County under its Comprehensive Plan. The statutory rule is that if you build it, and in court it later proves inconsistent, it will have to come down. The court's injunction enforces the statutory scheme as written. The County has been ordered to comply with its own Comprehensive Plan and restrained from allowing inconsistent development; and the developer has been found to have built an inconsistent land use and has been ordered to remove it. The rule of law has prevailed.
We therefore affirm the final judgment of the trial court in all respects.
GUNTHER and GROSS, JJ., concur.
NOTES
[1] Originally the developer was Pinecrest Lakes, Inc., the entity which planned and built Phases One through Ten. In 1997, when we reversed the first appeal in this case for a trial de novo, the corporation transferred title to Phase Ten to a limited partnership known as The Villas at Pinecrest Lakes. The trial court substituted the limited partnership for the corporation as the developer. Consequently, when we use the term "developer" in this opinion, we refer either to the corporation or the limited partnership or both as the context requires.
[2] See § 163.3167(2), Fla. Stat. (2000) ("Each local government shall prepare a comprehensive plan of the type and in the manner set out in this act or shall prepare amendments to its existing comprehensive plan to conform it to the requirements of this part in the manner set out in this part.").
[3] See § 163.3164(7) and (8), Fla. Stat. (2000) ("`Development permit' includes any building permit, zoning permit, subdivision approval, rezoning, certification, special exception, variance, or any other official action of local government having the effect of permitting the development of land.... `Development order' means any order granting, denying, or granting with conditions an application for a development permit.").
[4] See § 163.3215(4), Fla. Stat. (2000) ("As a condition precedent to the institution of an action pursuant to this section, the complaining party shall first file a verified complaint with the local government whose actions are complained of, setting forth the facts upon which the complaint is based and the relief sought by the complaining party. The verified complaint shall be filed no later than 30 days after the alleged inconsistent action has been taken. The local government receiving the complaint shall respond within 30 days after receipt of the complaint. Thereafter, the complaining party may institute the action authorized in this section. However, the action shall be instituted no later than 30 days after the expiration of the 30-day period which the local government has to take appropriate action.").
[5] See § 163.3215(1), Fla. Stat. (1995) ("Any aggrieved or adversely affected party may maintain an action for injunctive or other relief against any local government to prevent such local government from taking any action on a development order ... which materially alters the use or density or intensity of use on a particular piece of property that is not consistent with the comprehensive plan adopted under this part.").
[6] We express no view on the propriety of Martin County issuing building permits while the case was pending in court.
[7] The original judge assigned to the case was rotated into another division, so the case was assigned to a new judge.
[8] "A project immediately adjacent to lands used or designated for lower intensity use should be given lesser density. (1) For that portion of said project abutting the existing development or area of lesser density, a density transition zone of comparable density and compatible dwelling unit types shall be established [e.s.] in the new project for a depth from the shared property line that is equivalent to the depth of the first tier of the adjoining development's lower density (i.e. the depth of the first block of single-family lots)." Comprehensive Plan, § 4-5(A)(2)(b).
[9] Neither Charles Brooks nor Martin County has appealed the final judgment, or filed a brief in this appeal by Karen Shidel.
[10] To illustrate the point, we draw an analogy. The action by a county approving a development order could fairly and logically be compared to the actions of administrative agencies generally. Thus we might contrast section 163.3215(1) with comparable provisions of the Administrative Procedures Act. Section 120.68 generally grants parties in agency proceedings access to a court after the agency has finally acted. Section 120.68(4), however, limits review to the record in agency. There is no similar provision in section 163.3215. Moreover section 120.68(7) spells out in precise detail exactly what the reviewing court can do. Among its provisions is the following:
"The court shall remand a case to the agency for further proceedings consistent with the court's decision or set aside agency action, as appropriate, when it finds that ... (b) The agency's action depends on any finding of fact that is not supported by competent, substantial evidence in the record of a hearing conducted pursuant to ss. 120.569 and 120.57; however, the court shall not substitute its judgment for that of the agency as to the weight of the evidence on any disputed finding of fact ... (e) the agency's exercise of discretion was: 1. outside the range of discretion delegated to the agency by law; 2. inconsistent with agency rule; 3. inconsistent with officially stated agency policy or a prior agency practice, if deviation therefrom is not explained by the agency; or 4. otherwise in violation of a constitutional or statutory provision; but the court shall not substitute its judgment for that of the agency on an issue of discretion." [e.s.]
§ 120.68(7), Fla. Stat. (2000). There is nothing even remotely comparable in section 163.3215.
[11] See § 163.3194(1)(a), Fla. Stat. (2000) ("After a comprehensive plan...has been adopted in conformity with this act, all development undertaken by, and all actions taken in regard to development orders by, governmental agencies in regard to land covered by such plan or element shall be consistent with such plan or element as adopted."). [e.s.]
[12] See supra notes 2, 3, 4 and 5 and accompanying text.
[13] At this point in the Final Judgment, the court went on to show in a comparative table that the change in density between the two tiers represented a 560% difference, the change in population a 492% difference, and the number of units a 418% difference.
[14] See Art. VIII, § 1(f) and (g), Fla. Const. (whether charter or non-charter government, Counties are granted power to enact only ordinances that are "not inconsistent with general law").
[15] We reject developer's argument that demolition is improper simply because Shidel failed to seek a temporary injunction against any construction while the case proceeded in court on the consistency issue. In the first place, when the action was filed the trial court originally thought its role limited to a record review of the proceedings before the Martin County Commission and concluded that no error had been shown. Having decided there was no error in the limited review it thought applicable, the trial court was hardly likely to grant a temporary injunction while the case was on appeal.
Even more important, however, we find nothing in the text of the relevant statutes making such a request for a temporary injunction a precondition to effective final relief after a trial de novo when the court finds that the permitted use is inconsistent with the Comprehensive Plan. We note from other statutes that when the Legislature means to place restrictions on third party challenges to agency decisions granting permits, it says so in specific text. Compare § 403.412(2)(c), Fla. Stat. (2000), with § 163.3215(4), Fla. Stat. (2000), as to preconditions for suit; see also § 163.3215(6), Fla. Stat. (2000) ("The signature of an attorney or party constitutes a certificate that he or she has read the pleading, motion, or other paper and that, to the best of his or her knowledge, information, and belief formed after reasonable inquiry, it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or for economic advantage, competitive reasons or frivolous purposes or needless increase in the cost of litigation. If a pleading, motion, or other paper is signed in violation of these requirements, the court, upon motion or its own initiative, shall impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of reasonable expenses incurred because of the filing of the pleading, motion, or other paper, including a reasonable attorney's fee.").
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380 S.W.2d 900 (1964)
UNITED STATES FIDELITY & GUARANTY COMPANY, Appellant,
v.
TEXAS BANK & TRUST COMPANY OF DALLAS, Guardian, et al., Appellees.
No. 16361.
Court of Civil Appeals of Texas, Dallas.
June 26, 1964.
Rehearing Denied July 17, 1964.
Johnson, Guthrie, White & Stanfield, Dallas, for appellant.
William I. Lofland, Rockwall, and Brundidge, Fountain, Elliott & Churchill, Dallas, for appellees.
*901 WILLIAMS, Justice.
This action was instituted by Texas Bank & Trust Company of Dallas, as Guardian of the Estates of Janet Marie Miller, Ella Sue Miller, Teresa D. Miller, and Joyce Diane Miller, the minor children of Walter Miller, deceased, and Blanche Miller. Named as defendants were Blanche Miller Lindley, individually and as Administratrix of the Estate of Walter Miller, deceased, J. P. Lindley, the present husband of Blanche Miller Lindley, United States Fidelity & Guaranty Company, being surety upon a $5,000 bond for Blanche Miller Lindley as administratrix of the Miller estate, and The First State Bank, Rockwall, Texas. Plaintiff sought to recover $2,500 claimed to have belonged to the guardianship estate and allegedly misappropriated by the Lindleys with the claimed knowledge of the Rockwall bank. United States Fidelity & Guaranty Company sought judgment over and against the Lindleys and the Rockwall bank in the event it was held liable on its bond to the plaintiff. Trial was had to the court, without a jury, and a judgment was rendered in favor of Texas Bank & Trust Company against Blanche Miller Lindley, individually and as Administratrix of the Estate of Walter Miller, deceased, J. P. Lindley, and United States Fidelity & Guaranty Company in the sum of $2,500, with interest and costs. United States Fidelity & Guaranty Company was given judgment over and against the Lindleys but the court denied to Texas Bank & Trust Company and United States Fidelity & Guaranty Company any right to recover over and against The First State Bank, Rockwall, Texas. United States Fidelity & Guaranty Company, alone, has perfected this appeal complaining of that part of the judgment denying it recovery over against The First State Bank of Rockwall. Affirmed.
FACTS
The facts were stipulated. Walter Miller died July 19, 1955 and left surviving his wife, Blanche Miller, and the four minor children. Thereafter Blanche Miller married J. P. Lindley. On November 8, 1955, Blanche Miller Lindley was appointed executrix of the estate of Walter Miller, deceased, in the Probate Court of Dallas County, Texas and qualified by taking the oath and providing a $5,000 bond executed by United States Fidelity & Guaranty Company, as surety. In her application to be appointed administratrix, Blanche Miller Lindley recited that administration was necessary only to allow the collection of the proceeds of a national service life insurance policy from the Veterans Administration in the sum of $5,000, such policy not designating a beneficiary, and the government requiring the appointment of an administratrix in order to collect the proceeds of such policy. On or about August 27, 1957 the Veterans Administration delivered to Blanche Miller Lindley a check in the sum of $5,000 payable to "Blanche Miller Lindley, ADMIN OF THE ESTATE OF WALTER MILLER." On August 27, 1957 Texas Bank & Trust Company of Dallas was appointed guardian of the estates of the four children, such order being from the County Court of Collin County, Texas. As guardian of the estates of said children, the Texas Bank & Trust Company of Dallas did not at any time receive any money from Blanche Miller Lindley, as administratrix of the estate of Walter Miller, deceased. One-half, or the sum of $2,500, of the proceeds of the check from the Veterans Administration belonged to the minor children. On August 29, 1957 Blanche Miller Lindley took the $5,000 check from the Veterans Administration to The First State Bank, Rockwall, Texas, where she received $100 in cash and placed the balance of $4,900 in her personal account in the name of Blanche C. Lindley. The check was endorsed "Blanche Miller Lindley." The Rockwall bank made out a signature card authorizing both Blanche C. Lindley and J. P. Lindley to draw checks on the account. No other funds were ever deposited in this account. Thereafter, J. P. *902 Lindley withdrew $2,933.40 from the account, evidenced by a large number of checks given to different payees; $650 was drawn out by both Blanche C. Lindley and J. P. Lindley, and Blanche C. Lindley withdrew $1,202.53. None of the proceeds of the $5,000 check was ever used for the benefit of the minor children and none was ever paid to the guardian. At the time Blanche Miller Lindley opened the account at the Rockwall bank she was waited on by Odis A. Lowe, Jr., President of the bank, who testified that he had only met Mrs. Lindley a few days prior to August 29, 1957. He did not know at that time that Mrs. Lindley had minor children. He said he asked Mrs. Lindley whether or not anyone else had an interest in the check tendered for deposit and she replied that it was her personal check and that she wanted it deposited in her name. He further testified that it was customary, in accounts dealing with administrators, for surety companies making bonds for such administrators to present the bank with a copy of letters of administration from the court, along with a joint control agreement from the bonding company showing how the account is to be entitled and the authorized signatures on checks drawn against the account. However, in this case neither he nor the bank had any notice from any bonding company or anyone else with reference to a joint control agreement from a surety company.
OPINION
By its two points on appeal, briefed together, appellant contends that the trial court erred in refusing to grant to it a judgment over against The First State Bank, Rockwall, Texas, because the bank had knowledge that the $5,000 check made payable to Blanche Miller Lindley, as administratrix of the estate of Walter Miller, deceased, which it deposited to Blanche Miller Lindley's private account, was trust money and it knowingly assisted the fiduciary of such trust to breach it by permitting J. P. Lindley, whom it knew to be a complete stranger to the trust, to check out a portion of such trust funds which he used for his own benefit.
Appellee, The First State Bank, Rockwall, Texas, counters by contending: (1) That the bank was entitled to rely on the statement of its depositor that no one other than herself had any interest in the funds, and hence was not chargeable with knowledge that the fund in question was, in part, trust funds; and (2) that assuming, arguendo, that the account was partially trust funds, the fact that the husband of the depositor was authorized to check on the account does not constitute actual notice of misappropriation of the fund.
We cannot agree with appellant's basic argument which is to the effect that because the check was payable to Mrs. Lindley as administratrix such fact placed the Rockwall bank on notice, as a matter of law, that the funds were trust funds, and that others had an interest in said trust fund, regardless of Mrs. Lindley's statement to the contrary and that, possessed with such knowledge, the bank was obligated to make further inquiry as to the legal limitation placed upon the funds evidenced by the check. The fact that an instrument is payable to one as administrator or administratrix does not necessarily imply that someone other than the person named is interested in the funds evidenced by the instrument. A person may be an administrator or administratrix of an estate wherein the only person interested is such administrator or administratrix. This is illustrated by Mrs. Lindley's application for appointment as executrix. Such is not the case in a guardianship where the very existence of such necessarily implies wards. The designation of one as "trustee" also carries with it the legal implication of others who are beneficiaries of the trust. In this case the Rockwall bank had every legal right to believe that Mrs. Lindley was the only beneficiary of the estate of Walter Miller, deceased.
*903 Neither can we agree with appellant's contention that the mere fact that Mrs. Lindley was made administratrix of the estate carries with it the implication of the necessity of administration and that she was appointed as a fiduciary by the probate court. It is a matter of common knowledge that the Federal Government will not issue a check for the proceeds of veterans' life insurance to one not named as beneficiary in such policy without the appointment of an administrator or administratrix to receive same.
Even if it may be assumed that the Rockwall bank had knowledge, either actual or constructive, of any trust relationship existing by virtue of the appointment of Mrs. Lindley as administratrix of the estate of Walter Miller, deceased, yet such fact, alone, would not cast liability upon the bank by virtue of the action of Mrs. Lindley in withdrawing the funds for her own benefit. It is the law of this state that there is a presumption that a trustee or fiduciary will legally perform their functions.
The law was announced by our Supreme Court in Quanah, A. & P. Ry. Co. v. Wichita State Bank & Trust Co., 127 Tex. 407, 93 S.W.2d 701, 106 A.L.R. 821, which involved a bill of exchange payable on its face to one in a trust capacity which was deposited in a bank in the individual account of the trustee and thereafter withdrawn. The question presented to the Supreme Court was whether the bank was liable for the loss of the funds to the true owner where the bank had received no part of the funds and had no actual knowledge that the funds were being checked to persons not entitled to receive them. In holding no liability on the part of the bank in that case Justice Critz said:
"In this connection, we think the great weight of and better authority is to the effect that it is not deemed a breach of trust, or such a suspicious circumstance, as to put a duty on the bank to investigate for a trustee to carry trust credits in his personal bank account, and this even though such fact is known to the bank. In this connection, it is generally held that the bank is entitled to believe that the trustee will check the trust credit out of his personal account for proper trust purposes. The main reasons for this rule are that to require the bank to investigate such transactions would put a burden on the bank for which it is not paid by the trust, and would clog the handling of commercial paper in a way that would be to the disadvantage generally of trust business, and also to business in general. 4 Bogert on Trusts and Trustees, § 908, p. 2632; American Law Institute, Restatement of the Law of Trusts, § 324d, pp. 966, 967; * * *."
In the case of Smith v. Commercial State Bank of Ranger, Tex.Civ.App., 157 S.W.2d 969, a guardianship was involved. There a guardian deposited proceeds of a check payable to the guardian in the guardian's personal account and thereafter withdrew such funds. The court held that the fact that the checks were payable to a guardian constituted notice to the bank that the real ownership of the checks, and proceeds thereof, belonged to the wards. The court held, however, that such fact alone is not conclusive of the question of the bank's liability for misappropriation of the funds by the guardian, citing Quanah, A. & P. Ry. Co. v. Wichita State Bank & Trust Co., 127 Tex. 407, 93 S.W.2d 701, 106 A.L.R. 821.
We conclude from a review of the facts in this case, in the light of the above authorities, that the appellee Rockwall bank was not charged, as a matter of law, with knowledge that anyone else other than Mrs. Lindley had an interest in the proceeds of the check deposited in her individual name and account. Appellant in oral argument before this court, admits that the bank was under no legal duty to check the probate court records to determine the details of *904 Mrs. Lindley's appointment as administratrix.
Appellant makes no attack on the implied findings of the trial court that the appellee Rockwall bank did not have knowledge of the trust character of a portion of the funds in controversy. Such implied finding of the trial court is amply supported by the evidence and must stand. Neither is there an attack on the implied finding of the trial court that the bank did not know that the portion of the deposit belonging to the minors was being misappropriated by either Mr. or Mrs. Lindley.
Inasmuch as this case was tried before the court without a jury, and no findings of fact or conclusions of law were requested and none were filed, the court's judgment carries with it all implied findings of fact necessary to support the judgment. Upon our review of such judgment we are bound only to consider that evidence most favorable to the judgment and disregard entirely that which is opposed to it. Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609, 23 A.L.R.2d 1114; Lamb v. Ed Maher, Inc., Tex.Civ.App., 368 S.W.2d 255. Having reviewed this record in the light of these authorities we find that the evidence supports the judgment in its implied findings that (1) Rockwall bank had no notice of any trust funds deposited in the personal account of Mrs. Lindley; (2) that if such funds were, in part, trust funds, the bank was entitled to rely upon the presumption that Mrs. Lindley, as administratrix, would properly account for disbursement of such funds; and (3) that the bank had no knowledge of any misappropriation or diversion of trust funds from the account, either as to Mrs. Lindley or Mr. Lindley. Appellant's points are overruled.
The judgment of the trial court is affirmed.
Affirmed.
BATEMAN, J., not sitting.
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In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 02-4272 & 03-1288
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
VERNON BONNER and MARIA MAGANA BONNER,
Defendants-Appellants.
____________
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 01 CR 670—George W. Lindberg, Judge.
____________
SUBMITTED FEBRUARY 6, 2006—DECIDED MARCH 7, 20061
____________
Before BAUER, COFFEY, and MANION, Circuit Judges.
COFFEY, Circuit Judge. The appellants, Vernon and
Maria Magana Bonner, have filed a motion asking this
court to provide direction to the district court on a matter
of first impression in this circuit. We previously directed a
limited remand pursuant to the terms set forth in United
States v. Paladino, 401 F.3d 471 (7th Cir. 2005), for the
1
This opinion has been circulated among all judges of this
court in regular active service pursuant to Circuit Rule 40(e). No
judge favored hearing the case en banc. Chief Judge Flaum
took no part in the consideration of whether to hear the case en
banc.
2 Nos. 02-4272 & 03-1288
district court to state whether it would have imposed the
same sentences had it understood in this case that the
guidelines were advisory. On remand, the original sentenc-
ing judge recused himself, and the case was reassigned to
another district court judge. The newly assigned judge after
review issued an order explaining that he cannot proceed
because he was not the sentencing judge and thus is unable
to carry out the purpose of the limited remand. The appel-
lants in turn ask this court to reverse the district court’s
ruling and order the newly assigned judge to carry out the
limited remand in light of the sentencing judge’s recusal
from the case. Rather than directing the newly assigned
judge to follow the procedure set forth in Paladino, we
believe the better approach would be to vacate the appel-
lants’ sentences and remand to the newly assigned district
judge with a clean slate for resentencing. This approach
both makes sense and is true to the spirit of Paladino and
its progeny.
I. Background
We recite only those facts necessary for this opinion
but point out that a more complete recitation of the under-
lying facts may be found in our previous unpublished order.
See United States v. Bonner, Nos. 02-4272 & 03-1288 (7th
Cir. May 20, 2005) (unpublished). Vernon and Maria
Magana Bonner were found guilty of wire fraud and theft
of government funds. Maria also was found guilty of mail
fraud and theft of educational funds. The district court
sentenced both Vernon and Maria to 78 months’ imprison-
ment, ordered them to pay restitution, barred Vernon from
receiving any future social security benefits until restitution
had been paid in full, and barred Maria from receiving any
federal benefits until restitution was paid. In our May 20,
2005, order, we vacated the restriction on their eligibility
for benefits and remanded the case to the district court for
Nos. 02-4272 & 03-1288 3
the entry of corrected judgments. We also directed a limited
remand pursuant to Paladino, asking the district court to
indicate whether it would have sentenced the appellants
differently under the advisory guidelines. Id.
The first sentencing judge, Judge Hart, recused himself
from further proceedings on remand and recommended to
the Executive Committee for the United States District
Court for the Northern District of Illinois that the case
be reassigned to another judge. Upon reassignment, Judge
Lindberg issued a minute order explaining that it ap-
pears “that only the sentencing judge can make the deter-
mination required by Paladino, and Paladino provides no
course of action for a situation such as this.” He thus
concluded that he was unable to carry out the purpose of
the limited remand and refused to proceed. In denying the
appellants’ motion to reconsider, Judge Lindberg again
relied on the language in Paladino referring to the “sen-
tencing judge,” and he explained that whether he may
conduct proceedings on remand is an issue for this appellate
court, not him, to decide.
II. Discussion
Our review of the Bonners’ sentences imposed prior to the
Supreme Court’s decision in United States v. Booker, 543
U.S. 220 (2005), is for plain error only because they did not
object based on Sixth Amendment or Apprendi grounds in
the district court. See Paladino, 401 F.3d at 481. In
Paladino, our court outlined the procedure for determining
whether an error, such as a sentence imposed under a
guidelines regime that was thought to be mandatory,
constitutes a correctable plain error. Id. at 481-83. We went
on to explain that even where plain error exists, such an
error is not correctable without proof that intolerable
prejudice or a “miscarriage of justice” has occurred. Id. at
481. In order to determine whether such prejudice exists,
4 Nos. 02-4272 & 03-1288
we are required to ascertain whether the “sentencing judge
would have given the sentence he did even if he had not
misunderstood the legal effect of the guidelines.” Id. at 482
(emphasis added). Accordingly, this court agreed on a
procedure whereby the court would order “a limited remand
to permit the sentencing judge to determine whether he
would (if required to resentence) reimpose his original
sentence.” Id. at 484 (emphasis added).
This, by its very nature, is a subjective determination.
Indeed, in Paladino we stated that the case should be
remanded to the “sentencing judge,” not just any judge who
might be available. Cf. Fed. R. Crim. P. 25(b)(1); United
States v. Soto, 48 F.3d 1415 (7th Cir. 1995). We therefore
conclude that, according to Paladino, the only person who
could really tell us whether he would have imposed the
same sentence based on the facts and evidence of a particu-
lar case is the original “sentencing judge.” In his dissent to
rehearing en banc in Paladino, Judge Ripple acknowledged
the subjective requirements of a Paladino remand when he
voiced concern over the uncertainty that would result in
cases where “retirement, disability or death has made
impossible consultation with the district judge who imposed
the unconstitutional sentence.” Paladino, 401 F.3d at 487
(Ripple, J., dissenting). The fact is that, in order for an
appellate court to determine that a “miscarriage of justice”
has not occurred, Paladino makes clear that an appellate
court must be confident that the sentencing judge would
have given the same sentence. Id. at 482. We fail to see how
this court could possibly be “confident” that the sentenc-
ing judge would have given the same sentences in this
case unless he has reassured himself after a further
proceeding and we are able to ask him.
The Second and the Ninth Circuit have addressed this
issue and reached similar conclusions, although they
employ slightly different remand procedures. See United
States v. Sanders, 421 F.3d 1044 (9th Cir. 2005); United
Nos. 02-4272 & 03-1288 5
States v. Garcia, 413 F.3d 201 (2d Cir. 2005). Similar to the
decision we reach today, the Ninth Circuit held that a full
remand for a resentencing hearing, rather than its standard
limited remand, was appropriate in a case where the
district court judge had retired while the case was on
appeal. Sanders, 421 F.3d at 1052. The Second Circuit, in
contrast, concluded that a successor judge may conduct
proceedings on limited remand when the original sentenc-
ing judge was unavailable, reasoning that the district court
as an institution, not an individual judge, analyzes whether
a defendant’s sentence would have been the same under an
advisory guidelines system. Garcia, 413 F.3d at 226. When
the original sentencing judge is unavailable, however, the
Second Circuit requires the presence of the defendant and
requires the successor judge to consider what sentence he
or she would have imposed on behalf of the court post-
Booker rather than try to speculate what the original
sentencing judge would do. Id. at 228-30; cf. Fed. R. Crim.
P. 43(b)(3). These qualifications led the Ninth Circuit to
observe that there is no substantive difference between the
procedures adopted by the two circuits. “Whether the new
district judge is imposing a new sentence in a full
resentencing hearing, or determining in a Garcia modified
limited remand whether he or she would have imposed a
materially different sentence than that imposed by the
original judge, a full review of the record is required.
Further, in both cases the defendant must be produced and
given an opportunity to be heard.” Sanders, 421 F.3d at
1052.
Vacating the appellants’ sentences and remanding for a
new sentencing hearing allows the newly assigned judge
to proceed with a clean slate. Unlike the typical case
contemplated in Paladino, we cannot simply ask the
sentencing judge whether he would have given a differ-
ent sentence and “thus dispel[ ] the epistemic fog.”
Paladino, 401 F.3d at 484. Accordingly, we see no pur-
6 Nos. 02-4272 & 03-1288
pose in restricting a newly assigned judge to comparing the
sentence he would impose post-Booker, armed with the
knowledge that the guidelines are advisory, to the sentence
initially imposed by a different judge operating under the
assumption that the guidelines were mandatory. Instead of
being constrained by the proceedings conducted before the
original sentencing judge, the successor sentencing judge
will now be able to consider the entire record, consider
additional evidence, including witness testimony, hear from
the defendant if he or she desires, and hear arguments from
the defense and prosecution alike. “In the post-Booker
world, sentencing judges have discretion to weigh a multi-
tude of factors that were not ordinarily relevant or appro-
priate to consider under the previous regime.” 401 F.3d at
487-88 (Kanne, J., dissenting) (citing the example of specific
offender characteristics set forth U.S.S.G. § 5H1 such as
age, family ties and responsibilities, and employment
record). Also, unlike a limited Paladino remand, the
defendant will have an absolute right to be present during
the hearing. See Fed. R. Crim. P. 43(a)(3). The new sentenc-
ing judge will start with a blank page and there is nothing
to preclude him from imposing the same sentence, a lighter
sentence or a harsher sentence as long as the sentence
imposed is reasonable and the 18 U.S.C. § 3553(a) factors
are considered. See, e.g., United States v. Newsom, 428 F.3d
685, 686-87 (7th Cir. 2005), cert. denied, 2006 WL 271816
(2006); Paladino, 401 F.3d at 484.
The procedure we establish today is applicable when-
ever the original sentencing judge is unavailable to carry
out a remand from this court in accordance with the terms
set forth in Paladino, regardless of whether the judge is
unavailable due to recusal, retirement, absence, death,
sickness or other disability. If the sentencing judge becomes
unavailable following a limited remand under Paladino, the
successor judge should notify this court of the unavailability
of the original sentencing judge. This court, in these
Nos. 02-4272 & 03-1288 7
unusual and rare circumstances, will then vacate the
defendant’s sentence and remand for a complete resen-
tencing hearing in order to permit the successor judge to
sentence the defendant in conformity with the mandates
of Booker.
Accordingly, IT IS ORDERED that the appellants’ motion
to direct the district court to carry out a limited remand
under Paladino is DENIED. The appellants’ sentences
are VACATED, and their cases are REMANDED to the dis-
trict court for resentencing.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—3-7-06
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360 So.2d 999 (1978)
FRUEHAUF CORPORATION
v.
Howell Franklin PRATER.
Civ. 1313.
Court of Civil Appeals of Alabama.
May 10, 1978.
Rehearing Denied June 14, 1978.
*1000 Robert L. Hodges of Ford, Caldwell, Ford & Payne, Huntsville, for appellant.
A. P. Reich, II of Speake, Speake & Reich, Moulton, for appellee.
WRIGHT, Presiding Judge.
Defendant employer appeals from judgment in a workmen's compensation suit. We affirm.
Claimant was injured by accident in the line and scope of his employment with defendant, while working as a furnace operator in defendant's plant at Decatur, Alabama on February 13, 1974. Plaintiff suffered second and third degree burns when a furnace charged with molten aluminum exploded. Approximately 55% of his body surface was burned.
After initial treatment in Decatur, plaintiff was transferred to the Burn Clinic at University Hospital in Birmingham. His physician then was Dr. Dimick. He was also treated there by Dr. Nepomuceno, a specialist in rehabilitation medicine. His treatment continued through several skin grafts and he was released to out-patient basis about July 17, 1974.
The evidence is without dispute that plaintiff suffered severe bodily injury and disfigurement. Due to his burns which resulted in loss of sweat glands in the affected areas, plaintiff is unable to work in hot conditions. Subsequent to his recovery from the burns, plaintiff worked for more than a year for plaintiff as a janitor. He was offered jobs in other areas of the plant but they were too hot. He declined supervisory positions because of his belief that he could not perform with only a sixth grade education. Prior to trial, plaintiff had become a psychiatric patient of Dr. Phillips and was hospitalized in a psychiatric hospital at time of trial.
As there is no dispute as to the physical consequences and disabilities of plaintiff, we will not further catalog them. The court in its judgment found that plaintiff suffered a total and permanent occupational disability because of (1) physical consequences from the burns such as loss of sweat glands, contractures of the skin, limited motion in joints, susceptibility of the burned area to infection and injury, even cancer, and difficulty of healing should injury occur; (2) disfigurement; (3) his age (43) with limited educational background and mental development; (4) psychiatric consequences of his injury. It is the propriety of the inclusion of the "psychiatric consequences" as a factor in determining permanent total disability that defendant presents as the primary issue on appeal.
The psychiatric consequence stated by Dr. Phillips to be suffered by claimant as a result of his injury is specifically designated as depressive neurosis. Depressive Neurosis *1001 is defined [1] as "a severe onset of depression due to internal conflict or the loss of an object real or symbolic. It is characterized by morbid sadness, dejection, or melancholy and usually is accompanied by loss of sleep, loss of interest in activities, weariness, inhibitions, and loss of appetite and weight. This reaction is commonly seen in neuroses following trauma." There is considerable evidence in this case that claimant exhibited most of the characteristics common to depressive neurosis including suicidal tendencies and loss of a feeling of self worth. There was ample evidence that the neurosis of claimant resulted from the trauma of his injury and the residual effects.[2]
Defendant contends that the evidence discloses that in spite of claimant's serious burns, his recovered physical condition is such that he only has a 5% disability of the body as a whole. Defendant submits that the disabling factor is not the physical condition but the mental condition of claimant. With some exception to defendant's conclusions from the evidence, we agree with these contentions. We further agree that there is no specific definitive slot in the provisions of the Alabama Workmen's Compensation Act into which a disabling neurosis may be fitted. However, we do not agree that the result must be disallowance of compensation.
There has been no similar factual situation presented to the appellate courts of this state so far as we have determined. However, there are ample precedents from other states with compensation laws similar to ours, including the state of Minnesota from which state our Workmen's Compensation Act was largely copied. Wilborn Constr. Co. v. Parker, 281 Ala. 626, 206 So.2d 872 (1968). In the case of Hartman v. Cold Spring Granite Co., 243 Minn. 264, 67 N.W.2d 656 (1954), the court affirmed an award for "traumatic neurosis" and said as follows:
"The granite company concedes that if Hartman is a true neurotic he is entitled to compensation. Under our decisions it is clear that traumatic neurosis is compensable if it is the proximate result of the employee's injuries and results in disability. Welchin v. Fairmont Ry. Motors, 180 Minn. 411, 230 N.W. 897; Rystedt v. Minneapolis-Moline Power Imp. Co., 186 Minn. 185, 242 N.W. 623."
The position of the Minnesota case is well supported by other jurisdictions. Sizemore v. Canaveral Port Auth., 332 So.2d 23 (Fla. 1976); Miller v. United States Fidelity and Guar. Co., 99 So.2d 511 (La.App.1957); Buck v. Beech Aircraft Corp., 215 Kan. 157, 523 P.2d 697 (1974). 1A Larson's Workmen's Compensation Law § 42.22.
Therefore, in recognition that psychic injuries and diseases are often as disabling as physical injuries and diseases and in response to the principle that the Workmen's Compensation Act has a beneficent purpose and is to be liberally construed [3] to serve that end, we follow the precedent of other states. We hold that if it is established by legal evidence that an employee has suffered a physical injury or trauma in the line and scope of his employment and he develops a neurosis as a proximate result of such injury or trauma which neurosis causes or contributes to an occupational or physical disability, such disability is compensable.
We recognize the possible difficulty of establishing the existence of or the precipitating cause of any neurosis or psychic disorder. We recognize that there is a distinct possibility of attempted malingering in the absence of objective symptoms. We believe, however, that the difficulty of proof may be overcome by use of expert medical testimony and/or objective evidence. We also believe that malingering will be minimized by the vigilance of a discerning trial judge.
*1002 Defendant insists in brief that the cause, existence and duration of a neurosis because of its nature should be established only by expert medical opinion. Though we are convinced that in many cases, the very nature of the alleged mental disease would require expert medical testimony to establish its existence and effect, we are not prepared to hold that such testimony is a required prerequisite to a finding of compensable disability in any case. Our courts have explicitly stated that expert medical testimony is not a prerequisite to a finding of a physical disability, its degree or duration.[4] Though we discern a distinction between physical and mental diseases, we are not at this time convinced that there is a material difference in the difficulty of proof of their existence and effect.
Defendant contends there was no proof in this case to support the finding of a permanent total disability. We do not agree. The judgment of the trial court concluded that claimant had a permanent total occupational disability. The judge emphasized that his conclusion came from a combined consideration of the physical and mental disabilities. In addition to the medical testimony, with its reasonable inferences, the testimony of the claimant and others, the court saw and observed the claimant. This fact of observation is specifically stated in the judgment. In view of the rule of review of such cases by this court,[5] we find the judgment supported by the evidence and thus safe from reversal for insufficiency of the evidence.
Defendant charges error in the direction of the trial court that it pay the cost of the treatment of claimant in the psychiatric hospital. Defendant contends it could not be assessed such cost because the cost was not proved and shown to be reasonable. The requirement of payment of medical cost is established by Tit. 26, § 293, Code of Alabama (1940) (Recomp.1958). That statute requires payment by the employer of the actual cost of reasonably necessary medical treatment. Our review of the evidence sufficiently supports the conclusion that the psychiatric treatment of defendant was reasonably necessary. Defendant was directed only to pay the cost thereof as required by statute.
Defendant also presents the issue of whether the trial court erred in awarding an uncommuted lump sum to claimant.
This issue brings us again to an amendment to Tit. 26, § 279(C)(9), Code of Alabama (1940) (Recomp.1958) passed by the legislature in 1973.[6] The amendment generally provided that in cases presented to the court, the judge could decide whether compensation would be paid upon final judgment in installments or as an uncommuted lump sum. The judge in this case directed payment in an uncommuted lump sum.
This court has had occasion to discuss the short-lived amendment in prior cases.[7] Defendant contends the court had no authority to award the uncommuted lump sum without a request for such payment being filed with the court and notice thereof to defendant.
Defendant's contention is not supportable. The statute clearly gives to the court the power to grant an uncommuted lump sum award in any case presented to it by petition. We consider that the petition referred to in this part of the statute is the original petition invoking the jurisdiction of the court and seeking workmen's compensation. The statute itself placed the defendant on notice that the court was authorized to award an uncommuted lump sum. It had opportunity to enter prior objection to the exercise of such authority and request a hearing thereon. We said in B. F. Goodrich Co. v. Butler, supra that there was no requirement *1003 of notice to the employer prior to entering such judgment. Constitutional due process is in no way involved in this case.
We find that no issue presented requires reversal. We therefore affirm.
AFFIRMED.
BRADLEY and HOLMES, JJ., concur.
NOTES
[1] American Psychiatric Association, The Diagnostic & Statistical Manual of Mental Disorders, § 300 (2d ed. 1968).
[2] There is an interesting and enlightening article entitled Neurosis Following Trauma: A Dark Horse In The Field of Mental Disturbance, written by J. Mark Hart in 8 Cumb.L. Rev. 495 (1977).
[3] Ford v. Mitcham, 53 Ala.App. 102, 298 So.2d 34 (1974).
[4] Stewart v. Busby, 51 Ala.App. 242, 284 So.2d 269 (1973).
[5] Craig v. Decatur Petroleum Haulers, Inc., 340 So.2d 1127 (Ala.Civ.App.1976).
[6] It was repealed in 1975.
[7] Harris v. National Truck Serv., 56 Ala.App. 350, 321 So.2d 690 (1975); B. F. Goodrich Co. v. Butler, 56 Ala.App. 635, 324 So.2d 776 (1975).
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NOT RECOMMENDED FOR PUBLICATION
File Name: 11a0501n.06
FILED
No. 10-3050
Jul 20, 2011
UNITED STATES COURT OF APPEALS LEONARD GREEN, Clerk
FOR THE SIXTH CIRCUIT
HASSAN ADEL KASSEM, )
)
Petitioner, ) PETITION FOR REVIEW OF AN
) ORDER OF THE BOARD OF
v. ) IMMIGRATION APPEALS
)
)
ERIC HOLDER, JR., Attorney General )
)
Respondent. )
Before: SILER, COLE, and KETHLEDGE, Circuit Judges.
SILER, Circuit Judge. Hassan Adel Kassem seeks withholding of removal under the
Immigration and Nationality Act (“INA”) and protection under the Convention Against Torture
(“CAT”). The immigration judge (“IJ”) rejected Kassem’s claim and the Board of Immigration
Appeals (“BIA”) affirmed. For the following reasons, we DENY the petition.
BACKGROUND
Kassem, a citizen of Lebanon and native of Liberia, entered the United States around August
27, 2002 as a nonimmigrant visitor for business. His visa expired on November 7 of that year. After
removal proceedings commenced in October 2005, Kassem applied for withholding of removal from
Lebanon and Liberia under INA § 241(b)(3) and protection under the CAT.
Kassem fears persecution and torture by members of Hezbollah in Lebanon and Liberia in
retaliation for his purported sympathy for Israel. He alleges he operated a store in Liberia from 1988
to 1991, where he sold replacement parts for heavy duty machinery. Although he did not realize it
initially, one of Kassem’s clients, a logging and construction company named Yona International
(“Yona”), was Israeli. Several individuals warned him to stop doing business with Yona. In 1989,
Kassem’s mother phoned him and told him that rumors were spreading in Lebanon that he had been
interacting socially with Israelis. In 1990, war broke out in Liberia and Kassem’s business
relationship with Yona ended. Kassem returned to Lebanon for four months, despite his mother’s
warnings. He lived in Beirut again, without being harmed, from April 1996 to June 1997. Kassem
claims to have received threatening phone calls in Lebanon (and one in the United States in 2003),
but not in Liberia. He admits no one has ever threatened him in person.
In 2002, Kassem traveled to the United States while his family returned to Lebanon.
Kassem’s mother continues to warn him by telephone not to return to Lebanon because it is unsafe
for him there. Kassem says he also fears for his safety in Liberia because he claims his residence
there was set on fire in 2003 and his business was looted, acts which he interprets as a message not
to return. However, he also believes no one would hurt him in Liberia if his family were with him.
Before the IJ, Kassem offered no evidence to support his claims besides his own testimony.
The IJ asked Kassem to produce corroborating evidence to prove the existence of Yona, his store,
and their business relationship. The IJ also asked Kassem why he had not obtained corroboration
from his mother. Although Kassem’s mother is illiterate, he admitted that his wife, who visits his
mother on occasion, could have taken a dictated statement from her.
In denying Kassem’s claims under the INA and CAT, the IJ held that (1) Kassem’s testimony
was incredible; (2) Kassem failed to support his claims with reasonably obtainable corroborating
evidence; and (3) even if credible, Kassem’s claims fell far short of establishing a clear probability
-2-
of persecution or torture. The BIA affirmed the IJ’s decision on narrower grounds, holding that
Kassem failed to produce reasonably obtainable evidence to corroborate his claims of persecution
and failed to establish a clear probability of torture.
DISCUSSION
Where, as here, the BIA renders its own opinion, we review the decision of the BIA de novo.
Koulibaly v. Mukasey, 541 F.3d 613, 619 (6th Cir. 2008).
An IJ’s determination regarding the availability of corroborating evidence is not to be
reversed unless “the court finds . . . that a reasonable trier of fact is compelled to conclude that such
corroborating evidence is unavailable.” INA § 242(b)(4), 8 U.S.C. § 1252(b)(4); Yinggui Lin v.
Holder, 565 F3d. 971, 977 (6th Cir. 2009) (applying the same standard to a BIA opinion).
Administrative findings of fact are reviewed under the deferential “substantial evidence”
standard, and we must treat them as “conclusive unless any reasonable adjudicator would be
compelled to conclude to the contrary.” INA § 242(b)(4)(B), 8 U.S.C. § 1252(b)(4)(B); Zhao v.
Holder, 569 F.3d 238, 246-47 (6th Cir. 2009).
I. Kassem Does Not Qualify for Withholding of Removal Under the INA
Nothing in the record compels us to reverse the BIA’s finding that Kassem failed to produce
reasonably obtainable evidence to corroborate his claims of persecution. To qualify for withholding
of removal under the INA, the alien must establish that his “life or freedom would be threatened”
in the proposed country of removal on the basis of one of the enumerated grounds, such as “political
opinion.” INA § 241(b)(3)(A), 8 U.S.C. § 1231(b)(3)(A); Ndrecaj v. Mukasey, 522 F.3d 667, 674
(6th Cir. 2008). The alien seeking withholding of removal must establish a “clear probability of
-3-
persecution,” meaning it is “more likely than not” he would be persecuted. Al-Ghorbani v. Holder,
585 F.3d 980, 994-95 (6th Cir. 2009) (quoting INS v. Stevic, 467 U.S. 407, 413, 424 (1984)).
Under the Real ID Act’s amendments to the INA, when the IJ “determines that the applicant
should provide evidence which corroborates otherwise credible testimony, such evidence must be
provided unless the applicant demonstrates that the applicant does not have the evidence and cannot
reasonably obtain the evidence.” INA § 240(c)(4)(B), 8 U.S.C. § 1229a(c)(4)(B). Even if an
applicant is credible, the failure to provide reasonably available corroborating evidence can lead to
a finding that an applicant has failed to meet his burden of proof. Shkabari v. Gonzales, 427 F.3d
324, 331 (6th Cir. 2005) (quoting Dorosh v. Ashcroft, 398 F.3d 379, 382 (6th Cir. 2004)).
Kassem does not show the corroborating evidence the IJ requested was not reasonably
obtainable. The BIA identified three types of corroborating evidence that Kassem could reasonably
have produced, but failed to provide a persuasive explanation for his failure to do so. First, as
Kassem acknowledged, he could have procured a letter from Yona to prove the company’s existence
and its ties to Israel. Second, Kassem could have corroborated his mother’s warnings through a
dictated statement to his wife, who lived in Lebanon and occasionally visited her. Third, Kassem
could have corroborated the threats against him by obtaining a statement from his wife, with whom
he was in regular contact. Any of these three forms of available evidence would have been probative
of Kassem’s story: that his business relationship with an Israeli company caused his harassment. See
Urbina-Mejia v. Holder, 597 F.3d 360, 368 (6th Cir. 2010) (finding an IJ’s request for a letter from
the applicant’s father to be “appropriate” because such evidence would have been available and
probative of applicant’s fears of persecution). Thus, Kassem does not qualify for withholding of
removal under the INA.
-4-
Kassem argues the BIA erred by failing to explicitly address the IJ’s adverse credibility
determination. However, once we conclude that substantial evidence supports the stated basis for
denying relief (here, a lack of reasonable corroboration), “further review is foreclosed,” and we need
not remand for a credibility determination. Cruz-Samayoa v. Holder, 607 F.3d 1145, 1150 (6th Cir.
2010) (citing Haider v. Holder, 595 F.3d 276, 282-83 (6th Cir. 2010)).
II. Kassem Does Not Qualify for Withholding of Removal Under the CAT
Kassem does not demonstrate a clear probability of torture in either Lebanon or Liberia. To
warrant protection under the CAT, the applicant bears the burden of proving it is more likely than
not that he will be tortured if sent to the country of removal. 8 C.F.R. § 1208.16(c)(2).
The BIA’s determination that Kassem did not warrant protection under the CAT was
supported by substantial evidence and nothing in the record compels us to reverse. Kassem offered
no evidence that he had previously been tortured, and his only evidence that he will “more likely than
not” be tortured in the future is the same uncorroborated evidence that failed to support his
persecution claim under the INA. Although Hezbollah is arguably a Lebanese governmental entity,
see Tarraf v. Gonzales, 495 F.3d 525, 527 n.2 (7th Cir. 2007), Kassem offered no evidence that
Hezbollah threatened him or that any governmental agent or entity in Lebanon or Liberia would
consent to his torture. Thus, he is not eligible for protection under the CAT.
REVIEW DENIED.
-5-
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205 Ga. App. 48 (1992)
421 S.E.2d 137
PARRIS
v.
THE STATE.
A92A0606.
Court of Appeals of Georgia.
Decided July 16, 1992.
William A. Dowell, for appellant.
Spencer Lawton, Jr., District Attorney, for appellee.
SOGNIER, Chief Judge.
Arthur Lee Parris was convicted of possession of marijuana with intent to distribute, possession of cocaine, and five counts of possession of a firearm by a convicted felon. He appeals from the denial of his amended motion for a new trial.
1. Appellant contends the trial court erred by denying his motion to suppress. We do not agree. The record reveals that on January 13, 1990, a Savannah police detective obtained a search warrant for a house at 206 Russ Circle. In the supporting affidavit, the detective averred that on January 5 he had received information from a confidential informant that there had been excessive vehicular traffic going to that address, and that a dark green Pontiac Grand Prix, which was usually parked in the driveway, was being driven by "a Muslim looking fellow with [a] physically deformed forehead." The detective stated that he was familiar with appellant; that appellant had "a physically distinctive forehead"; that he was familiar with a dark green Grand Prix driven by appellant; that appellant was not the registered owner but was frequently seen driving the car; and that appellant was listed as the person receiving electric power service at 206 Russ Circle. The affidavit further recited that on January 6, the detective had received both a "silent witness" complaint and a vice referral form regarding the premises in issue. The "silent witness" complaint, dated August 12, 1989, recited that on August 12, a Roy Kicklighter brought crack or cocaine from Miami to that address. The "silent witness" was not sure whether Kicklighter lived there or was just visiting. The vice referral form indicated that the house was the scene of prostitution and drug activity; that 14 males and females resided there; and that other people were observed entering the premises for an hour at a time.
The detective also averred that he had received an anonymous letter dated January 4, 1990, stating that the address in question was "a haven for prostitution and illegal drugs"; that crack and cocaine were delivered to the residence by cars with Florida and North Carolina plates and by Federal Express shipments; and that "girls were picked up and delivered hourly." The detective stated that he had become familiar with the operation of prostitution rings in his two years on the vice squad, and this traffic pattern was consistent with a *49 house of prostitution.
In addition, the affidavit contained the detective's averment that on January 13, 1990, while listening to a scanner tuned to a low frequency, he overheard and recorded a conversation on a cordless telephone between a woman and a man identified as Mohammed. The conversation concerned the delivery of multiple kilos of cocaine that evening on the south side of Savannah. As the detective continued to monitor this scanner, the same man left a message for his call to be returned at a telephone number listed to appellant at the address in question. Another police officer also identified the voice from the recording as appellant's voice. The affidavit also related that on July 17, 1989, appellant was convicted of two counts of possession of cocaine.
The search warrant for the residence was issued after the judge considered the detective's affidavit and a transcript of the phone conversation. Officers staked out the house in anticipation of the woman in the telephone conversation arriving with cocaine and continued to monitor the scanner. When the woman did not arrive by January 15, the officers executed the warrant. They discovered appellant sitting in the living room in a bathrobe. The room had the odor of burning marijuana. In appellant's pocket was an automatic pistol loaded with six rounds, a small bag of marijuana, and $510 in cash. Elsewhere in the house were two women and two young children. Appellant told the officers there were more guns in the closet, and when they searched the locked master bedroom closet, they found a suitcase containing six one-quart ziplock bags of suspected marijuana, a glass beaker, a scale, and a box of ziplock bags. Also in the closet were a hot plate with cocaine residue on top, syringes, $2,000 in cash, and four handguns. A small set of scales, rolling papers, two small plastic bags containing cocaine residue, and a jar of a powder commonly used to cut cocaine were discovered in another bedroom. In the living room, police found more rolling papers and ziplock bags and a cordless telephone.
Pretermitting the issue whether the detective's use of a scanner to overhear the conversation on the cordless telephone was prohibited under Georgia law, the trial court properly denied appellant's motion to suppress the evidence.
The affidavit may or may not have been sufficient to support issuance of a warrant under the "totality of the circumstances" standard of Illinois v. Gates, 462 U. S. 213 (103 SC 2317, 76 LE2d 527) (1983). However, even assuming it was not sufficient, under United States v. Leon, 468 U. S. 897 (104 SC 3405, 82 LE2d 677) (1984) the exclusionary rule has been "'modified so as not to bar the admission of evidence seized in reasonable, good-faith reliance on a search warrant that is subsequently held to be defective.'" Id. at 905 (I). In our effort not to punish police for a magistrate's erroneous issuance of a *50 warrant, in determining whether evidence obtained as a result of executing the warrant must be suppressed we look to the question of whether the officer relied in good faith upon the issuance of the warrant. See Adams v. State, 191 Ga. App. 916 (383 SE2d 378) (1989). "'[A] warrant issued by a magistrate normally suffices to establish' that a law enforcement officer has `acted in good faith in conducting the search.' [Cit.]" Leon, supra at 922. "In the absence of an allegation that the magistrate abandoned his detached and neutral role, suppression is appropriate only if the officers were dishonest or reckless in preparing their affidavit or could not have harbored an objectively reasonable belief in the existence of probable cause." Id. at 926. See Adams, supra at 917.
The record in the case at bar reveals no allegations of dishonesty or recklessness on the part of the officer or lack of neutrality on the part of the magistrate. Accordingly, we focus on whether the officer could have harbored an objectively reasonable belief in the existence of probable cause to search appellant's residence. See Davis v. State, 198 Ga. App. 310, 311 (401 SE2d 326) (1991). Our examination of the officer's affidavit reveals that it was not "`so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable,' [cit.]" Leon, supra at 923, which is required to warrant suppression. See Talley v. State, 200 Ga. App. 442, 445 (3) (408 SE2d 463) (1991). Defects such as those focused on by the dissent do not preclude the existence of objective good faith on the part of the police in relying on the validity of the warrant. Id. Based on the totality of the circumstances here, including the many independent sources from which the officer drew his suspicions regarding appellant's illegal activity, we conclude that the officer "acted in objective good faith, within the meaning of Leon, in both obtaining and executing the search warrant and that any deficiency in the warrant or its affidavit would not result in the invocation of the exclusionary rule." Talley, supra.
Accordingly, we affirm the trial court's denial of the motion to suppress.
2. Appellant's contention that the record does not contain an order either granting or denying his motion to suppress has been addressed by the transmission of a supplement to the record containing the trial court's order denying his motion.
3. Appellant contends the evidence at trial was insufficient to support his conviction on the charged offenses. We do not agree. "It is true that merely finding contraband on premises occupied by a defendant is not sufficient to support a conviction if it affirmatively appears from the evidence that persons other than the defendant had equal opportunity to commit the crime." (Citations and punctuation omitted.) Hunt v. State, 196 Ga. App. 694 (2) (396 SE2d 802) (1990). *51 However, the evidence adduced at trial showed that appellant owned the house and slept in the bedroom containing the locked closet in which the contraband was found. He claimed ownership of the guns and money found in that same closet. Although he testified he had merely discovered contraband left there by another, he failed to report the "discovery" to the police, and admitted he had taken a "pinch" of marijuana himself. Thus, the totality of the evidence was sufficient to connect appellant to the contraband and, when viewed in a light favorable to the verdict, as an appellate court is required to do, was sufficient to authorize any rational trier of fact to find appellant guilty of the crimes charged under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). See Hunt, supra at 694-695. Accord Barkley v. State, 198 Ga. App. 477-478 (402 SE2d 88) (1991).
Judgment affirmed. Birdsong, P. J., Carley, P. J., Pope, Beasley, Andrews and Johnson, JJ., concur. McMurray, P. J., and Cooper, J., dissent.
COOPER, Judge, dissenting.
I must respectfully dissent as I cannot agree with the majority that the officer's affidavit demonstrated probable cause to support issuance of the search warrant. The issuing judge should not have considered the unlawfully obtained private telephone conversations. The officer's use of the scanner to intercept appellant's private cordless telephone conversations required a properly issued warrant pursuant to OCGA § 16-11-64 (b), and his recording of the conversations violated OCGA § 16-11-62. Review of the affidavit, excluding the unlawfully obtained cordless telephone conversations, reveals no probable cause.
The affidavit first represents that a confidential informant reported to the detective eight days prior to the execution of the warrant that "there has been a lot of vehicular traffic to 206 Russ Circle." The informant also stated that a "Muslim looking fellow" with a deformed forehead drove a green Grand Prix which was always parked in the driveway of the residence. However, there are no facts alleged in the affidavit to demonstrate the informant's reliability and no allegation of criminal activity. See State v. Smith, 201 Ga. App. 650 (411 SE2d 877) (1991). Furthermore, the evidence, without more, is not relevant to any offense with which appellant was charged. Next, the detective discussed a silent witness complaint and a vice referral form he received on January 6, seven days before the execution of the warrant. The silent witness alleged that another individual brought crack or cocaine into the residence on August 12, 1989, five months before the execution of the warrant and two-and-one-half months before appellant moved into the house. The vice referral form reported prostitution *52 and drug activity on October 2, 1989, three months before the issuance of the warrant. These observations were not "`so near in point of time to the making of the affidavit and the execution of the search warrant as to create a reasonable belief that the same conditions described in the affidavit still prevailed at the time of the issuance of the warrant.' [Cit.]" Jackson v. State, 130 Ga. App. 6 (3) (202 SE2d 206) (1973). Moreover, the information provided in the anonymous letter regarding drug deliveries and prostitution was not corroborated by the detective nor did it point to any particular place where cocaine might be found in the house. State v. Stephens, 252 Ga. 181, 182 (311 SE2d 823) (1984). These are not merely technical defects. Probable cause must be demonstrated by more than an officer's suspicions based on stale information and uncorroborated allegations. Furthermore, I cannot so easily excuse the officer's unlawful interception of appellant's private telephone conversations. The officer cannot be said to have acted in good faith in executing the search warrant when he violated the law in obtaining the warrant authorizing such search. Thus, the issuing judge did not have a substantial basis for concluding that probable cause existed, and appellant's motion to suppress should have been granted.
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311 F.Supp.2d 1131 (2004)
Susan NICHOLS, Plaintiff,
v.
UNITED STATES of America, Defendant.
No. 02-CV-4134-JAR.
United States District Court, D. Kansas.
March 11, 2004.
*1132 Jerry R. Palmer, Palmer, Leatherman & White, L.L.P., Topeka, KS, for Plaintiff.
David D. Plinsky, Office of United States Attorney, Topeka, KS, Charles G. Young, III, Arlington, VA, for Defendant.
MEMORANDUM ORDER AND OPINION GRANTING JUDGMENT TO DEFENDANT
ROBINSON, District Judge.
This medical malpractice action brought under the Federal Tort Claims Act was tried to the Court on December 2-4, 2003. Plaintiff claims that Defendant United States of America acted negligently in failing to timely diagnose micronodular basal cell carcinoma. Plaintiff contends that Defendant should have diagnosed this skin cancer no later than February 1998; and that the delay until her diagnosis in July 1999 caused her to undergo a more invasive and disfiguring surgery affecting her nose and cheek area. Defendant denies that it negligently failed to diagnose in February 1998 or before. Defendant concedes it acted negligently in failing to diagnose this skin cancer in August 1998, but claims the surgical procedures Plaintiff underwent would have been no less severe or invasive had Defendant diagnosed the skin cancer in August 1998. Because Plaintiff has failed to establish that Defendant negligently failed to diagnose any earlier than August 1998 and because Plaintiff has not shown that this delay in diagnosis resulted in a more invasive, injurious or disfiguring surgery, the Court concludes Plaintiff has failed to prove causation and damages. Based on the testimony and exhibits, the Court makes the following findings of fact and conclusions of law and grants judgment to Defendant United States.
FINDINGS OF FACT
On July 19, 1999, a doctor at the University of California Davis Medical Center (UC Davis) diagnosed micronodular basal cell carcinoma in Plaintiff Susan Nichols. On this date, Plaintiff presented with three lesions in the area of the right alar groove, which is the fold of skin between the cheek and right side of the nose. From August *1133 1996 to February 1998, Plaintiff was treated by a board certified dermatologist, Dr. McGovern, in the dermatology clinic of Irwin Army Hospital.[1] At issue in this case are the facts and circumstances of Dr. McGovern's treatment of Plaintiff; specifically whether Plaintiff presented with complaints and/or clinically observable symptoms that Dr. McGovern failed to consider or respond to. What is not at issue in this case is that in August 1998 Plaintiff presented to the family practice clinic at Irwin Army Hospital complaining about oozing lesions near the alar groove area which were clinically observable; and that Plaintiff returned to the family practice clinic in October 1998 complaining that this same lesion(s) still had not healed, a condition that was clinically observable. It is undisputed that the nurse practitioner who examined Plaintiff on these two occasions was negligent; she failed to refer Plaintiff to a dermatologist, which is what the medical standard of care required.
At issue is whether Defendant was negligent before August 1998, and specifically whether Dr. McGovern was negligent in failing to diagnose Plaintiff's skin cancer during the time she was his patient. Plaintiff was seen in the Irwin dermatology clinic on four occasions: August 9, 1996; October 7, 1996; April 4, 1997; and February 3, 1998. Although Plaintiff contends that she was not seen by Dr. McGovern during the third visit, the Court finds that this is not credible; Plaintiff was seen by Dr. McGovern on each of these four occasions.
On each of these four visits, either a student Physician assistant (PA), or a dermatology technician first took history from Plaintiff. Then, Dr. McGovern examined Plaintiff and conversed with her in prescribing or recommending a treatment. There are two primary issues of fact: whether Plaintiff presented with complaints and/or clinically observable symptoms and whether Dr. McGovern failed to respond to the symptoms in accordance with the standard of care. Most of the complaints Plaintiff described in her testimony were not recorded in the medical record. Dr. McGovern and Marie Jordan, the dermatology technician who was present during three of the four visits, deny that Plaintiff presented with either the complaints or clinically observable symptoms Plaintiff now testifies about.
Thus, the Court must necessarily determine who is telling the truth about what Plaintiff said and what Dr. McGovern saw or should have seen during these visits. The Court decides these issues of fact and witness credibility based on the Court's careful attention to the witnesses' testimony, review of the medical records and other exhibits admitted in the evidence, and evaluation of the testimony of the expert witnesses. From this the Court makes inferences, deductions and conclusions, which reason and common sense lead the Court to draw from the facts established by the testimony and evidence in the case. Furthermore, in weighing the testimony of witnesses, the Court considers the witness's relationship to Plaintiff or to Defendant; any interest the witness may have in the outcome of the case; the witness's manner while testifying; the opportunity and ability to observe or acquire knowledge concerning the facts about which the witness testified; the witness's candor, fairness and intelligence; and the extent to which the witness has been supported or contradicted by other credible evidence. Because Plaintiff and Defendant dispute whether Plaintiff complained and/or presented with clinically observable lesion(s) warranting further examination and biopsy, *1134 the Court makes the following findings about what occurred during each of the four visits.
Plaintiff had never been seen in the dermatology clinic at Irwin Army Hospital before her first appointment with Dr. McGovern on August 9, 1996. Plaintiff testified that she scheduled this appointment because she was concerned about a "hole" near the side of her nose. Plaintiff testified that this hole was the first of the three lesions she presented with in July 1999 at UC Davis. These three lesions were in or near the alar groove area between Plaintiff's cheek and the right side of her nose.
Melasma (redness), however, was the main complaint Plaintiff articulated when she made the appointment and when she came to the clinic on August 9, 1996. The medical records indicate that her primary complaint was melasma; and that she also complained about acne scarring. Dr. McGovern had no independent recollection of Plaintiff's complaints on August 9, 1996, but testified that the primary complaints are recorded: melasma and acne scarring. Marie Jordan, the dermatology technician, had an independent recollection of Plaintiff's complaints that day. Jordan recalled a conversation with Plaintiff in the reception area of the clinic, in which Plaintiff stated that she was concerned about the melasma on her face, that she was a model and that her face was more important to her than her own children.
The medical records indicate that acne scarring and Plaintiff's ten year history of acne were also discussed. Plaintiff had multiple ice pick scars on her forehead and nose, and wider, crater-like scarring on her cheeks. The notes of the PA student who took and recorded Plaintiff's history state that Plaintiff was concerned about a hole on the side of her nose. Dr. McGovern testified that he recalled the PA student bringing this hole to Dr. McGovern's attention. Dr. McGovern testified that this was a thin deep ice pick scar on the nare area of Plaintiff's nose, that is the fleshy side of the nostril. Dr. McGovern testified that Plaintiff had no "hole" or ice pick scar in or near the alar groove area. Marie Jordan's testimony was consistent, that the hole referred to was an ice pick scar on the fleshy side or nare of Plaintiff's nose. In contrast, Plaintiff testified that she and McGovern discussed the hole on the side of her nose. McGovern told her it was acne and perhaps due to sun exposure. Plaintiff testified that she advised McGovern that she had never had a pimple in that location and that she was adamant that she wanted it gone.
Of course, this is critically disputed testimony. If the Court believes Plaintiff, then this notation in the August 9, 1996 medical record is evidence of a clinically observable lesion in the same area as those seen in July 1999. If the Court believes the testimony of Dr. McGovern and Marie Jordan, then the note refers to an ice pick scar in a different area. Furthermore Plaintiff's expert did not dispute the testimony of Defendant's expert, as well as the testimony of Dr. McGovern that ice pick scars are not a clinical indication of basal cell carcinoma.
The Court need not decide this issue in a vacuum. The testimony of Dr. McGovern and Marie Jordan is corroborated by photographs taken in 1999, which show that Plaintiff had a number of ice pick scars on the nare of her nose, just as Dr. McGovern described. These photographs do not show any such scars in the alar groove area, however.
Plaintiff attempts to corroborate her testimony with photographs as well. Plaintiff presented two photographs purportedly taken in August 1996, the same month as her first visit to Dr. McGovern. These photographs, Plaintiff contends, depict the *1135 hole that she complained about during her August 9, 1996 visit to Dr. McGovern. For several reasons, the Court finds that these photographs are not authentic depictions of Plaintiff's condition when she presented to Dr. McGovern on August 9, 1996. First, the only evidence of when these photographs were taken is the testimony of Plaintiff, that the two photographs were taken one day in August 1996 while she was on a train trip in California. Marie Jordan, who saw Plaintiff at least twenty-five times between August 1996 and February 1998, testified that Nichol's hair was always short, not long as depicted in the photographs. Plaintiff testified that her hair was always long during this period, producing a 1995 driver's license photo depicting her with long hair. But, the Court finds no reason to believe that Jordan was lying about the length of Nichols' hair in 1996.
From the Court's observation, as well as the observation of Defendant's expert, the so-called lesions depicted in these photographs may have been fabricated with an ink pen or other implement. Other evidence suggests that these photographs are suspect. First, the alleged lesion or hole depicted in the photographs does not appear consistent in the two photographs, despite the photographs having been taken the same day. In one photograph (Exhibit 26) the lesion appears to be a raised, round white lesion or mark, rimmed in red. It looks nothing like the dark, deep lesion depicted in the other photograph (Exhibit 25). Plaintiff testified that Exhibit 26 depicts the lesion without makeup; and Exhibit 25 depicts the lesion packed with makeup in an attempt to cover it up. But these explanations do not make sense. For if the lesion is a deep, large hole, as Plaintiff indicates, it surely does not appear that way in the photograph where it is uncovered by makeup.
Furthermore, the lesion in one photograph does not appear to be in the precise location as the lesion in the other photograph. The lesion in Exhibit 26 is closer to the alar groove; the lesion in Exhibit 25 appears to be more on the cheek area. In other words, the photographs are suspect because the lesions do not appear to be one and the same. Moreover, the lesions depicted in the photographs are quite large, as much as 6 mm to 1 centimeter or 1/4 to 1/2 inch in diameter. Even in these photographs, one taken from as much as fifteen feet distance, the lesion is quite noticeable. If that was the size of the lesion Plaintiff had on August 9, 1996, the Court doubts that she would have complained about melasma; she would have focused on this very large, unsightly lesion. Moreover, such a large lesion would have grown larger, and repeatedly bled, and scabbed over as long as it was unhealed. Not only is there no mention of a large lesion, there is no mention of an unhealed, bleeding, oozing lesion, until the summer of 1998. Even Plaintiff did not testify that this lesion was bleeding, oozing or scabbing during the time she was seen by Dr. McGovern.
If that was the size of the lesion Plaintiff presented with on August 9, 1996, there is no way Dr. McGovern, Marie Jordan, or anyone could not have noticed it. The Court has no doubt that had Plaintiff presented with a lesion like those depicted in the two photographs, Dr. McGovern would have done further examination or biopsy. Although Plaintiff suggested through cross examination of Dr. McGovern that he was an inexperienced dermatologist, in just his second week of clinical practice, the Court finds that Dr. McGovern was quite competent. Dr. McGovern testified that had he seen any indication of lesions, holes or suspicious growths, particularly in the alar groove, which is an area with a higher incidence of micronodular basal cell, he *1136 would have done a biopsy during the visit. Biopsies were routinely done, when indicated, and the dermatology technicians had been trained by Dr. McGovern to do them as well.
In fact, the evidence, from those who worked with him, was that Dr. McGovern was an earnest and intense young doctor, with a particular interest in diagnosing and treating skin cancers. While at Ft. Riley, Dr. McGovern established a monthly walk-in clinic to screen for skin cancer. And, even Plaintiff's expert agrees that Defendant's records show Dr. McGovern took a "significant number" of biopsies and was "attentive to performing biopsy technique" even in his first few months at Irwin Army Hospital. In short, the Court finds that the photographs were either fabricated or were taken at some time other than August 1996.
The Court simply finds the testimony of Dr. McGovern and Marie Jordan more credible and more consistent with the medical records and other evidence in this case. Plaintiff's testimony is not credible. Plaintiff suggests that Jordan is not credible because she disliked Plaintiff and considered her vain. Plaintiff suggests that McGovern is not credible because he considered Plaintiff a malingerer. Even if Marie Jordan and Dr. McGovern perceived Plaintiff as vain and obsessed with her appearance, there is no evidence that this perception affected their care of Plaintiff. In addition to Plaintiff's four visits with Dr. McGovern, she stopped in the dermatology clinic more than twenty-five times from 1996 to 1998, engaging in pleasant conversation with Marie Jordan, and reporting to Jordan her progress with the regimen prescribed by Dr. McGovern to clear up her acne and melasma. Dr. McGovern saw Plaintiff once when she had no scheduled appointment, accommodated her cancelled appointments and rescheduled appointments on other occasions, and examined a prolapsed scar from a mole removed by another doctor. Dr. McGovern consulted with Plaintiff by phone three or four times. The only reason Dr. McGovern did not see Plaintiff more than four times was that Plaintiff failed to make follow-up appointments with the frequency he advised.
In short, the Court finds the testimony of Dr. McGovern and Marie Jordan credible and the testimony of Plaintiff not credible concerning her complaints on August 9, 1996. Similarly, the Court discounts Plaintiff's testimony that Dr. McGovern did not examine or palpate her skin, nor examine her skin cleansed of makeup. The Court finds credible the testimony of Dr. McGovern, which was corroborated by the testimony of those who worked with him, as well as the medical records, that he examined Plaintiff's skin on that first visit and on all four visits. On this first visit, he palpated her skin and examined her skin using the bright overhead clinic lights. He also examined her skin under a Wood's lamp, which illumines the skin in a manner that discriminates superficial from deep melasma. Consistent with the complaints and clinical observations of melasma and active acne, Dr. McGovern prescribed tetracycline and benzoil peroxide, explaining that he could not address the acne scarring until the active acne was resolved. Even Plaintiff's expert acknowledges, that if Plaintiff did not present with the complaints and lesions she claims, McGovern's treatment of Plaintiff at that first visit did not deviate from the standard of care.
Apparently in a phone consultation in September 1996, McGovern prescribed Retin A, which Plaintiff picked up along with a brochure on a chemical peel procedure he recommended once the active acne had cleared. Although Plaintiff told Dr. McGovern that she had problems tolerating Retin A in the past, he advised her to try *1137 it, as it best resolved two of her skin problems. Plaintiff tried it and it caused inflammation. Plaintiff called the clinic on October 7, 1996, complaining about multiple "holes" in her face, in a manner Dr. McGovern testified was quite dramatic. Dr. McGovern saw Plaintiff that same day. Plaintiff presented with eight dime sized erosions on her forehead and cheeks, but not in the alar groove or nose area. Plaintiff testified that by this second visit, there were two lesions in the alar groove area, the second just below the first lesion present in August 1996. The medical records do not reflect any complaint or observation of a lesion or lesions on the side of Plaintiff's nose; and Dr. McGovern and Marie Jordan testified that Plaintiff raised no such complaint. The Court finds that Plaintiff's testimony is not credible on this issue.
In this second visit on October 7, 1997, Dr. McGovern neither touched nor examined Plaintiff's skin under the Woods lamp, for her skin was very inflamed. Instead, he addressed the immediate problem by stopping her use of Retin A and prescribing two other medications, as an alternative. Plaintiff later stopped by the clinic to report to Jordan her satisfaction with this new regimen, and that she planned to recommend it to a friend.
Despite Dr. McGovern telling Plaintiff that he wanted to see her a month after October 7, 1996, she did not schedule another appointment with him until April of 1997, some five months later. During this five month interim, she stopped by the clinic numerous times, repeatedly asking Marie Jordan what Dr. McGovern could do about her melasma and acne scars. Plaintiff did not complain about lesions in the alar groove of her nose. Also during this five months, another doctor biopsied a mole on her back; Plaintiff did not mention the alleged legions to that doctor either. Nor did she mention the lesion or lesions to Dr. McGovern in phone consultations with him on November 4 and November 12, 1996.
After cancelling an appointment scheduled for March 27, 1997 and failing to show up for an appointment on April 3, 1997, Plaintiff was seen by Dr. McGovern and Marie Jordan on April 4, 1997. The Court does not believe Plaintiff's testimony that she did not see Dr. McGovern but only saw a PA during this visit, as the medical record indicates otherwise. Nor does the Court believe Plaintiff's testimony that she complained about the second lesion during this visit.[2] The medical records indicate that this appointment was a followup for acne scarring. Dr. McGovern noted that the active acne was clearing up although there was some residue of active acne lesions. Dr. McGovern discussed with Plaintiff options for treatment of the acne scarring, and advised Plaintiff that he needed to see her in three months.
Nichols did not return for a followup appointment in three months as Dr. McGovern directed. She waited ten months. During those ten months, she continued to stop by the clinic and visit with Marie Jordan when she was at the hospital for other purposes; the records show she was at the hospital six out of those ten months. She also had phone consultations with Dr. McGovern on June 24, 1997 and September 15, 1997.
Nichols' last visit with Dr. McGovern was on February 3, 1998. Marie Jordan was not present for this appointment. The medical record includes a long note written by Dr. McGovern on this date, describing his examination of her, and his findings that the inflammatory acne was well controlled *1138 and that no new lesions were seen. Plaintiff did not complain nor present with a lesion or lesions in the alar groove. Dr. McGovern noted that her acne scars were too numerous to count. He discussed with Plaintiff her option for dermabrasion by a civilian doctor. Dr. McGovern also refilled Plaintiff's prescriptions, told her he was leaving, and that she needed to schedule a followup visit in six months, because acne has to be controlled for a certain period of time before anyone will do laser abrasion.
In short, Plaintiff's actions between August 1996 and February 1998 belie her claim that she repeatedly presented complaining of a clinically observable lesion or lesions. Surely if she had a large lesion that was not only this unsightly in appearance but was bleeding or oozing, she would have kept follow up appointments, and would not have raved to Marie Jordan about the positive effects of the prescribed regimen.
Plaintiff never saw the dermatologist who replaced Dr. McGovern. Plaintiff testified that her attempts to schedule an appointment were rebuffed; that she was told she needed to be referred for a "consult." Because she was an established patient in the dermatology clinic, this was misinformation, if someone told her that. In any event, Plaintiff was seen by a nurse practitioner in August 1998 and again in October 1998. It is undisputed that Plaintiff complained about a lesion, and that the lesion was clinically observable. Plaintiff testified that she complained about lesions, but the August 20, 1998 medical record indicates that she complained about one lesion. The note indicates that this lesion was bleeding, oozing and crusting, yet the nurse dismissed it as a bug bite and refused Plaintiff's requested referral to a dermatologist. The October 30, 1998 medical record states that there is a recurring sore on Plaintiff's nose, referring to the same lesion seen in August. Again the nurse practitioner refused to refer Plaintiff to a dermatologist.
From October 30, 1998 to July 19, 1999, Plaintiff did not seek any medical attention for this lesion or lesions. The fact that she failed to seek treatment during those nine months suggests that the lesion did not appear until the summer of 1998, and when it did, it was in the alar groove and not as noticeable as a lesion on the cheek would have been. Perhaps this is why Plaintiff accepted the nurse practitioner's dismissive explanation, and did not seek further treatment until she and her husband moved to California in July 1999. Of course, sometime during that interim, three lesions were clinically observable in the alar groove as well. By the time Plaintiff presented to UC Davis in July 1999, there were three lesions in the alar groove area on the right side of her nose. The dermatologist noticed the lesions from several feet away and immediately suspected micronodular basal cell carcinoma. A biopsy confirmed his suspicions. The tumor, excised by Dr. Rosio, was rather large, 3 cm by 2.6 cm.
Dr. McGovern, Defendant's expert, Dr. Belcido, and Plaintiff's expert Dr. Rosio agree that micronodular basal cell carcinomas grow geometrically, but quite slowly. Dr. Belcido testified that some literature suggests that these tumors may grow more rapidly in persons under the age of 35, as Plaintiff was. Although the doctors agree that this tumor would have grown in size over time, they disagree about the ability to estimate the origin and rate of growth of such a tumor from its size at the time excised.
Dr. Rosio testified that it is probable that this tumor increased forty percent in size between February 3, 1998 when Plaintiff was last seen by Dr. McGovern and July 1999 when he discovered the tumor. Dr. Rosio did not discuss or explain anything *1139 about the typical rate of growth of such tumors. But, Dr. Rosio opined that based on the large size of the tumor, 3 cm by 2.6 cm, and the slow growing nature of these tumors, there is a "high degree of medical certainty" that the tumor was present one to three years before July 1999; and that it was probable that the tumor was present "I would guess three to five years" before July 1999; and was "probably" clinically observable four years before July 1999.
Drs. McGovern and Belcido testified that it is impossible to estimate with any degree of medical certainty when Plaintiff's tumor originated and how fast it grew, and impossible to extrapolate this information from the size of the tumor excised by Dr. Rosio. Interestingly, Dr. Rosio testified that he could not say what percentage of growth took place between 1996 and 1998 versus 1998 and 1999, and he could not say with reasonable medical certainty the percentage of growth from October 30, 1998 to July 1999.[3] But if these tumors grow progressively, through cellular division, the Court does not understand how Dr. Rosio can estimate the growth for one period but not another. The Court is thus persuaded that although these tumors grow progressively, the rate of their growth, is as Drs. Belcido and McGovern testified, unpredictable.
There are other problems with Dr. Rosio's opinion. First, his opinion is based on an assumption that the tumor was present in August 1996, and that the two photographs are accurate depictions of lesions that were clinical indications of the tumor in 1996. But the Court has already discounted the testimony and photographs underlying Dr. Rosio's assumption. And Dr. Rosio acknowledges that it is possible that there was no clinical manifestation until August 20, 1998. Secondly, Dr. Rosio did not explain how he derived this estimation that the tumor grew forty percent between February 1998 and July 1999.
The Court adopts the expert opinion of Dr. Belcido, and the consistent testimony of Dr. McGovern, that micronodular basal cell carcinoma originates deep, in between the first and second layers of the epidermis, and may not impact the surface of the skin for quite some time. When it becomes clinically observable, it typically presents as a flat, or slightly raised lesion that is red or flesh colored. The difficulty of observing and thus diagnosing this type of basal cell carcinoma is demonstrated by one study referred to by Dr. Belcido. This study demonstrates that in a population of patients who had basal cell carcinomas excised, despite close medical monitoring, recurring tumors were not discovered for as long as eleven years, with the average time of discovery thirty-six months. Thus, the Court finds that the age and rate of growth of this tumor is unknown, but that there are clinically observable indications that it existed in the summer of 1998, and that it would have grown to some undeterminable extent between the summer of 1998 and July 1999.
The parties also presented expert testimony about the injury attributable to the delayed diagnosis. Dr. Rosio testified that because of the delay, Plaintiff underwent Mohs surgery, which was more invasive, and involved more reconstruction and facial scarring than she would have otherwise had. Again, Dr. Rosio did not explain this opinion, but it was presumably based on his opinion that the tumor grew forty percent from February 1998 to July 1999. *1140 Because Dr. Rosio opined that Dr. McGovern breached the duty of care no later than February 1998, Dr. Rosio did not consider nor render an opinion about the injury from a delay in diagnosis from August 1998 to July 1999. For this reason, his opinion is not persuasive or helpful.
Dr. Belcido, on the other hand, opined that Mohs surgery would have been performed whether the tumor was discovered in July 1999, August 1998 or earlier. In fact, Mohs surgery is the prescribed course for micronodular basal cell carcinoma. Micronodular basal cell tumors are not one large tumor, but are composed of small pieces that form in clusters much like grapes, with "skip areas" between pieces of the tumor. The Mohs procedure involves cutting layers from the excision area, sending each layer to pathology for a determination of whether there are cancerous cells in the layer. Once all cancerous cells have been excised in this manner, the surgeon cuts a "margin" of healthy skin from the site, to ensure that any scattered cells have been excised. This is accomplished in the first stage of the Mohs procedure. In the second stage of the Mohs procedure, the surgeon reconstructs the excised area. This Dr. Rosio did by cutting a flap in Plaintiff's cheek, and closing the large incision by moving the cheek, as well as by grafting skin. He also had to use cartilage from Plaintiff's ear to reconstruct cartilage in her nose that had been affected by the tumor.
Plaintiff's Mohs surgery was done in two stages, the minimum number of stages, according to Dr. Belcido. Some tumors' size and location require even more stages of Mohs. But, according to Dr. Belcido, even if the tumor had been discovered earlier, two stage Mohs surgery would have been done. And, given the location of the tumor, it is likely that the tumor would have affected the cartilage in the nose, even had it been detected earlier.
Because the size of the excision affected various planes of skin on Plaintiff's face, the surgeon also used laser abrasion to smooth the surfaces of her nose and cheek area. Dr. Belcido testified that although Dr. Rosio did laser abrasion on Plaintiff's entire face, with the exception of the affected cheek area, the laser abrasion was done for contouring and cosmetic purposes, improving acne scarring as well.
DISCUSSION
Statute of Limitations
Before trial, the Court denied Defendant's motion to dismiss, which was based on Defendant's argument that Plaintiff's claim was barred by the statute of limitations. Because the Court concluded that issues of fact precluded this determination, the Court denied the motion, but necessarily addresses the issue now. Under the Federal Tort Claims Act ("FTCA"), a tort claim against the United States is forever barred "unless it is presented to the appropriate Federal agency within two years after such claim accrues."[4] Timely compliance with § 2401(b) is a jurisdictional prerequisite to maintenance of a FTCA suit.
The point at which a cause of action accrues under the FTCA is governed by federal law.[5] Under § 2401(b), a claim accrues when the plaintiff has (1) knowledge of the injury, and (2) knowledge of its cause.[6] "[A] legally cognizable injury or damage begins the running of [the FTCA's statute of limitations] even though the ultimate *1141 damage is unknown or unpredictable."[7] "Lack of knowledge of the injury's permanence, extent, and ramifications does not toll the statute."[8]
In cases involving alleged failures to diagnose or treat, the Tenth Circuit has held that knowledge of "cause" means more than mere awareness of the medical cause of injury.[9] There must also be knowledge of the causal connection between the injury and the misdiagnosis, or knowledge sufficient to cause a reasonably diligent person to inquire into causation.[10] However, knowledge of negligence is not necessary. Both the Supreme Court and the Tenth Circuit have made it clear that knowledge of negligence is irrelevant to accrual under § 2401(b).[11] Accrual only requires knowledge that the failure, whether or not negligent, was a cause of the injury, or knowledge of information sufficient to cause a reasonably diligent person to inquire into causation.
Plaintiff argues that her claim accrued on or about July 20, 1999, the date of Dr. Rosio's diagnosis. Defendant claims the cause of action accrued on August 9, 1996. Despite Plaintiff's testimony about the clinically observable lesions in 1996 and later, the Court finds this testimony not credible. The Court finds that until Plaintiff presented with a bleeding, oozing lesion in August 1998 that remained unhealed in October 1998, there was no clinically observable lesion or symptom that required further investigation or biopsy.
Because the Court does not believe that there was any clinical indication nor that Plaintiff was aware or even complained of such, her cause of action could not have accrued on August 9, 1996. In fact, her cause of action could not have accrued until the summer of 1998, when she presented with a bleeding, unhealed lesion, which she knew was not a bug bite, and received a dismissive explanation coupled with a refusal to refer her to a doctor. At this point she knew she had an injury and although she did not know its cause, she knew it was not the cause given to her by the health care provider. In this case, the Court has resolved the merits, and has determined that until the summer of 1998 and specifically on August 20, 1998 at the earliest or in October 1998 when she was again seen by the nurse practitioner, Plaintiff was not on notice of sufficient facts to cause a reasonable person to inquire further. Because she filed this tort claim on July 20, 2000, she timely filed within the two year statute of limitations.
Negligence
Under the FTCA, the United States is liable "for injury ... under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred."[12] Therefore, Kansas law applies. In Kernke v. Menninger Clinic, Inc.,[13] the court held *1142 that to establish a claim for medical malpractice in Kansas, a plaintiff must demonstrate that the defendant owed him a duty, the defendant breached the duty and a causal nexus exists between the duty breached and the plaintiff's injury. "Except where the lack of reasonable care or the existence of proximate cause is apparent to the average layman from common knowledge or experience, expert testimony is required in medical malpractice cases to establish the accepted standard of care and to prove causation."[14] A plaintiff's failure to establish these elements against a particular defendant will entitle that defendant to judgment as a matter of law.[15]
Breach of Duty of Care
In this case, Plaintiff has failed to establish these elements by a preponderance of evidence. First, Plaintiff has failed to establish that Defendant breached the duty of care in the course of Dr. McGovern's treatment of Plaintiff, for Dr. McGovern used ordinary care and diligence, along with the degree of learning and skill ordinarily possessed and used by dermatologists in the community.[16] Dr. Rosio's opinion that Dr. McGovern breached the duty of care is dependent on the veracity of Plaintiff's testimony and the authenticity of the photographs allegedly showing her condition in August 1996. The Court, for many reasons, has found that Plaintiff's testimony concerning her complaints and appearance in August 1996 is not credible and that the photographs are not credible either.
Causation
Plaintiff has established that Defendant breached the duty of care beginning in August of 1998 when Plaintiff presented with complaints and a clinically observable lesion that warranted her referral to a dermatologist. But Plaintiff has failed to establish causation; she has not shown a causal nexus between the delay of diagnosis between August 1998 and July 1999, and the injury she suffered. Although Plaintiff underwent Mohs surgery, requiring reconstruction of her cheek area, grafting of skin and cartilage and laser ablation to the affected areas, there is no evidence that Plaintiff would not have had to undergo these same procedures had she been diagnosed in August 1998, or even before. Mohs surgery is the indicated procedure for this type of carcinoma, no matter when discovered; and there is no evidence that the size or situs of the tumor in August *1143 1998 called for a less invasive or injurious procedure.
Nor is there convincing evidence that the delay in diagnosis caused injury in the form of a higher risk of recurrence. Dr. Rosio testified, without explanation, that Plaintiff has a five percent risk of recurrence because of the size of the tumor and delay in diagnosis. Dr. Belcido quoted literature that the only relevant factor in the risk of recurrence is the tumor's location; and a tumor that surfaces in the alar groove does present a heightened risk, that is a one percent risk of recurrence. All doctors agreed that the first five years is critical; the median and average recurrence times occur between two and three years. In July 2004, Plaintiff will have lived five years without any recurrence, and as Dr. Rosio testified, will be at that point, outside of the danger zone.
Damages
Even if Plaintiff had shown causation, she has failed to show damages attributable to any such injury. Plaintiff seeks damages for medications and medical examinations that she would have borne even if she had been diagnosed in August 1998. Plaintiff also seeks non-economic damages based on injury to her self image from others looking at her facial scars, and her feelings that she is not beautiful and is the object of other's curiosity. But, there is no evidence that an earlier surgery would have been less invasive, would not have resulted in facial scarring and would not have resulted in these same economic damages. Finally, Plaintiff seeks to recover the cost of custom made makeup products to cover the facial scarring. The Court notes that at trial Plaintiff appeared in makeup and the Court observed that her facial scarring is barely noticeable. The Court could not ascertain the extent of her scarring without makeup, because Plaintiff did not appear at trial without makeup. If Plaintiff had proved causation, her damages would be minimal if any.
IT IS THEREFORE ORDERED BY THE COURT that Judgment is Granted to Defendant.
IT IS FURTHER ORDERED that this case is DISMISSED.
NOTES
[1] From 1996 to 1998, Plaintiff had been treated for a variety of ailments at Irwin Army Hospital, as a dependent of her husband, a soldier stationed at Fort Riley, Kansas.
[2] Notably Plaintiff did not testify that she continued to complain about the first "hole." It is unclear whether she claims that it had healed or not.
[3] Even Dr. Rosio acknowledges, on the other hand, that Plaintiff's delay of seventeen months (February 1998 to July 1999) in seeking treatment was a significant period of delay, supporting Defendant's argument that to the extent there was damage flowing from the delay, Nichols failed to reasonably mitigate.
[4] 28 U.S.C. § 2401(b).
[5] See Newcomb v. Ingle, 827 F.2d 675, 678 (10th Cir.1987).
[6] Arvayo v. United States, 766 F.2d 1416, 1419 (10th Cir.1985).
[7] Robbins v. United States, 624 F.2d 971, 973 (10th Cir.1980).
[8] Gustavson v. United States, 655 F.2d 1034, 1036 (10th Cir.1981).
[9] Arvayo, 766 F.2d at 1420.
[10] Id. at 1421-22.
[11] See United States v. Kubrick, 444 U.S. 111, 123, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979) ("We thus cannot hold that Congress intended that `accrual' of a claim must await awareness by the plaintiff that his injury was negligently inflicted"); Gustavson v. United States, 655 F.2d 1034, 1037 (10th Cir.1981) ("Whether doctors who treated him had been negligent in not discovering his condition and recommending surgery relates to the question of knowledge of malpractice, a matter irrelevant to the running of the statute of limitations.")
[12] 28 U.S.C. § 1346(b); 28 U.S.C. § 2674.
[13] 172 F.Supp.2d 1347, 1352-53 (D.Kan.2001)(citing Sharples v. Roberts, 249 Kan. 286, 816 P.2d 390, 397 (1991) (quoting Durflinger v. Artiles, 234 Kan. 484, 673 P.2d 86, 91 (1983))); see also Rios v. Bigler, 847 F.Supp. 1538, 1542 (D.Kan.1994) (citing Durflinger, 673 P.2d at 92) ("Under Kansas law, a physician has a duty to use reasonable and ordinary care and diligence in the diagnosis and treatment of his or her patients, to use his or her best judgment, and to exercise that reasonable degree of learning, skill and experience which is ordinarily possessed by other physicians in the same or similar locations under like circumstances.")
[14] Bacon v. Mercy Hosp. of Ft. Scott, 243 Kan. 303, 756 P.2d 416, 420 (1988) (citations omitted).
[15] Rios, 847 F.Supp. at 1542 (citing Mellies v. Nat'l Heritage, Inc., 6 Kan.App.2d 910, 636 P.2d 215, 218 (1981)).
[16] PIK 3d 123.01 is the Kansas pattern instruction for medical malpractice (failure to diagnose/treat) claims, and states:
In performing professional services for a patient, a Dermatologist has a duty to use that degree of learning and skill ordinarily possessed and used by members of that profession and of that school of medicine in the community in which the Dermatologist practices, or in similar communities, and under like circumstances. In the application of this skill and learning the Dermatologist should also use ordinary care and diligence. A violation of this duty is negligence.
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925 F.2d 857w
59 USLW 2570, 13 Employee Benefits Cas. 1625
Oreste KIDDER and Thelma Kidder, Plaintiffs-Appellees,v.H & B MARINE, INC., et al., Defendants-Appellants.
No. 90-3340.
United States Court of Appeals,Fifth Circuit.
March 8, 1991.
NOTE: THE COURT HAS WITHDRAWN THIS OPINION
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915 F.2d 693
Durkeev.Spring Branch Isd*
NO. 90-2118
United States Court of Appeals,Fifth Circuit.
SEP 20, 1990
1
Appeal From: S.D.Tex.
2
DISMISSED.
*
Fed.R.App.P. 34(a); 5th Cir.R. 34.2
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633 N.E.2d 1315 (1994)
262 Ill. App.3d 228
199 Ill.Dec. 324
Debra PEARSON, Indiv. and as Parent and Next Friend of Phoenix Pearson, a Minor, Plaintiff-Appellant,
v.
LAKE FOREST COUNTRY DAY SCHOOL et al., Defendants (American Airlines, Inc., and Steve J. Brno, Defendants-Appellees).
No. 2-93-0478.
Appellate Court of Illinois, Second District.
May 4, 1994.
Nunc pro tunc May 19, 1994.
*1316 Norman Rifkind, Beigel & Sandler, Laurence M. Landsman (argued), Beigel & Sandler, Chicago, for Debra Pearson and Phoenix Pearson (a minor).
Patrick J. Lubenow, Querrey & Harrow, Ltd., Waukegan, for Lake Forest Country Day School, Ann M. Shiras and Larry Ivens.
Amy P. Hartman (argued), Joel H. Kaplan, Seyfarth, Shaw, Fairweather & Geraldson, Chicago, for American Airlines and Steve J. Brno.
Justice COLWELL delivered the opinion of the court:
Plaintiff, Debra Pearson, brought suit in her capacity as parent and next friend of Phoenix, a 13-year-old girl, against American Airlines (American) for intentional and negligent infliction of emotional distress after American refused to board Phoenix on a flight from Madrid to Dallas at the end of a school-sponsored trip. Plaintiff also sued, individually, American and one of its employees, Steve J. Brno, for defamation, alleging injuries resulting from a letter written by Brno to an employee of the school two months after the incident. Although Lake Forest Country Day School (Lake Forest) and two of its employees were also named as defendants, this appeal involves only plaintiff's claims against American and Brno.
Pursuant to section 2-619 of the Code of Civil Procedure (735 ILCS 5/2-619 (West 1992)), the circuit court dismissed plaintiff's causes of action against American on the ground that they were preempted by the Federal Aviation Act; (42 U.S.C App. § 1305(a)(1) (1988)). The court also granted Brno's motion to dismiss the defamation claim against him for lack of personal jurisdiction. We vacate the court's ruling with respect to personal jurisdiction over Brno but affirm the dismissal of plaintiff's causes of action against both Brno and American.
We note, preliminarily, that plaintiff's statement of facts is defective. Supreme Court Rule 341(e)(6) provides that the facts shall be "stated accurately and fairly without argument or comment." (134 Ill.2d R. 341(e)(6).) It is not the least bit helpful to our review, or to plaintiff's cause, that her statement of facts is laden with argument and comment. Supreme Court Rules pertaining to appellate briefs are not merely suggestions. First National Bank v. Loffelmacher (1992), 236 Ill.App.3d 690, 177 Ill. Dec. 299, 603 N.E.2d 80.
The facts, when viewed in the light most favorable to plaintiff, can be summarized as follows. Between June 14 and July 4, 1991, Phoenix participated in a trip to Spain offered by Lake Forest Country Day School (Lake Forest) through its Spanish program. The itinerary included arrival at, and departure from, Madrid, Spain. Because Phoenix's mother, the plaintiff, was an international flight attendant with American, Phoenix was entitled to use a pass available to the families of American employees.
Although a priority pass, the "D-1" pass Phoenix was entitled to use does not guarantee a seat on a flight. Pass passengers are required to telephone the airline prior to the day of the flight and have themselves placed on a list for the flight's meal count. Pass passengers put themselves on a stand-by list on the day of the flight, and the decision as to whether a pass passenger can travel on a particular flight depends on the priority level of the pass as well as the pass passenger's position on the stand-by list. Although a pass passenger is, generally, only eligible to fly coach class, a pass passenger 13 years old or older, who is dressed appropriately and for whom a meal is available, could be seated in a business or first class seat if all coach class seats are occupied.
*1317 On July 4,1991, the students and their two chaperons arrived at the Madrid airport. Ann M. Shiras, a teacher at Lake Forest, was not returning with the others and said goodbye to them at the security gate inside the airport. The other supervisor, Larry Ivens, accompanied the students to the departure gate where all the members of the trip except for Phoenix, her roommate, and Ivens boarded a bus to be taken to the aircraft. When the final boarding call was announced, Ivens told Phoenix that American would not permit her on the flight because there were purportedly no unoccupied seats available for her. He then gave Phoenix her passport and boarded the bus with Phoenix's roommate. The plane flew to Dallas with three empty seats.
Left alone in the airport, Phoenix was upset and afraid. An American couple from Dallas, Texas, also flying stand-by and also unable to get on the flight to Dallas, approached Phoenix and took her to an apartment where the couple was staying. The couple telephoned plaintiff to explain what had happened. The next day, all three flew to Dallas together, where the couple ensured that Phoenix cleared customs and boarded a flight to Chicago.
Plaintiff's complaint alleges that Phoenix suffered extreme emotional distress as a result of her ordeal. According to plaintiff, American breached its duty to Phoenix by, inter alia, disregarding its knowledge that Phoenix, a 13-year-old, was left alone at the gate without adult supervision and by failing to allow her to occupy an empty business-class or first-class seat, failing to contact plaintiff, and failing to arrange for Phoenix to board the next flight to Dallas.
On or about September 10, 1991, Brno, acting at all relevant times within the scope and course of his employment by American, wrote a letter to Shiras regarding the incident in Madrid. Brno's letter was purportedly written in response to a letter from Shiras to American. In his letter, Brno made the following statements: "I feel that [Phoenix's] mother did not properly explain to you that anyone travelling on an employee pass is subject to removal for reasons that might not apply to our revenue passengers, and that you should not have left the airport until the plane had taken off and you were assured that she indeed was accommodated"; "I question the employee's judgment in having her daughter travel stand-by out of Madrid during our busy season when her chances of not getting on board were high"; and "I only mention this so as to put the blame where it belongs, not with you, but with the parent."
Plaintiff's complaint alleges that she has suffered emotional distress and mental anguish as a result of the letter, in that her good name has been damaged, her reputation at Lake Forest and in her community has been injured, and she has been exposed to public ridicule.
When proceeding under section 2-619, a movant concedes all well-pleaded facts set forth in the complaint but does not admit conclusions of law. (Falk v. Martel (1991), 210 Ill.App.3d 557, 560-61, 155 Ill.Dec. 248, 569 N.E.2d 248; Miranda v. Jewel Cos. (1989), 192 Ill.App.3d 586, 588, 139 Ill.Dec. 634, 548 N.E.2d 1348.) In its review, an appellate court may consider admissions in the record and exhibits that are attached to the pleadings. (Fahey v. State & Madison Property Association (1990), 200 Ill.App.3d 437,146 Ill.Dec. 229, 558 N.E.2d 192.) While appellate review of the dismissal of a complaint pursuant to a section 2-619 motion is limited to a consideration of the legal questions presented by the pleadings, such review is independent and need not defer to the trial court's reasoning. Beckman v. Freeman United Coal Mining Co. (1988), 123 Ill.2d 281, 286, 122 Ill.Dec. 805, 527 N.E.2d 303; Miranda, 192 Ill.App.3d at 588, 139 Ill.Dec. 634, 548 N.E.2d 1348; Woodson v. North Chicago Community School District No. 64 (1989), 187 Ill.App.3d 168, 172, 135 Ill.Dec. 55, 543 N.E.2d 290.
We address first plaintiff's contention that the trial court erred in ruling that it lacked personal jurisdiction over Brno. The trial court's ruling was based solely on Brno's lack of minimum contacts with the forum State. Plaintiff, however, makes the initial argument that Brno submitted to the court's jurisdiction by participating in the proceedings after filing a special and limited appearance. *1318 Counsel for defendants Brno and American counters by arguing that the inclusion of Brno's name on "several pleadings" after he filed the special appearance was a clerical error which the court recognized as such by dismissing plaintiff's claims against Brno for lack of personal jurisdiction based on constitutional due process grounds.
Personal jurisdiction is conferred by the service of summons or by a general appearance, and it is derived from the actions of the person sought to be bound. (In re Estate of Zoglauer (1992), 229 Ill.App.3d 394, 397, 170 Ill.Dec. 551, 593 N.E.2d 93.) Section 301(a) of the Code of Civil Procedure (Ill.Rev.Stat.1991, ch. 110, par. 2-301(a) (now 735 ILCS 5/2-301(a) (West 1992))) provides that a defendant may make a special appearance to object to the court's assertion of personal jurisdiction over him, so long as such appearance is made prior to filing any other pleading or motion. The primary concern of this rule is to prevent a party from simultaneously invoking and denying jurisdiction, the inquiry being whether a party has set forth a defense or has taken other steps in the cause which invoked the jurisdiction of the challenged court. Supreme Hive Ladies of the Maccabees v. Harrington (1907), 227 Ill. 511, 525, 81 N.E. 533.
Once a defendant enters a special appearance, he is "confined to contesting only the question of jurisdiction; his participation in other aspects of the trial destroys the limitation of his appearance and waives the jurisdictional objection." (In re Marriage of Falstad (1987), 152 Ill.App.3d 648, 653, 105 Ill. Dec. 623, 504 N.E.2d 908.) Thus, "any action taken by [a] litigant which recognizes the case as in court will amount to a general appearance unless such action was for the sole purpose of objecting to the jurisdiction." Lord v. Hubert (1957), 12 Ill.2d 83, 87, 145 N.E.2d 77; In re Estate of Zoglauer, 229 Ill.App.3d at 397,170 Ill.Dec. 551, 593 N.E.2d 93.
In the instant case, the sequence of events unfolded as follows. Brno filed a special and limited appearance on October 19, 1992, followed by a motion to dismiss for lack of personal jurisdiction, filed on November 2, 1992. On November 9, 1992, American filed a motion to dismiss pursuant to sections 2-615 and 2-619(a)(1) of the Code of Civil Procedure (735 ILCS 5/2-615, 2-619(a)(1) (West 1992)). On January 21, 1993, a reply brief in support of Brno's motion to dismiss for lack of personal jurisdiction was received by the court, and, on the same date, a reply brief in support of American's and Brno's motion to dismiss was also received by the court. Plaintiff's surreply memorandum, which argued, inter alia, that Brno had now waived his special and limited appearance, was received by the circuit court on January 28, 1993. American filed a "motion to correct case caption" on February 2, 1993, requesting the court to amend the reply brief supporting American's motion to dismiss so that it would not include Brno's name in the heading or the closing.
American's motion to correct case caption is unavailing. The reply brief does not merely identify Brno in its heading and closing; it also sets forth a substantive defense to plaintiff's defamation claims against American and Brno, arguing that plaintiff has failed to state a cause of action for either defamation per se or defamation per quod and concluding that count VII of plaintiff's complaint, which alleges defamation and is directed at both American and Brno, "must be dismissed." The trial court did not amend the reply brief as requested or otherwise rule on American's motion to correct case caption. On the record before us, we are unable to say with certainty that Brno's evident participation in this part of the proceedings was not an "action taken by [a] litigant which recognizes the case as in court." Lord v. Hubert, 12 Ill.2d at 87, 145 N.E.2d 77.
We further note Brno's participation in the discovery process. A plaintiff is permitted to pursue discovery on issues raised in a special appearance, "provided such discovery is limited to the court's jurisdiction over the person of the defendant." (134 Ill.2d R. 201(1); see also La Salle National Bank v. Akande (1992), 235 Ill.App.3d 53, 62-65, 175 Ill.Dec. 780, 600 N.E.2d 1238; In re Marriage of Falstad, 152 Ill.App.3d at 652-55,105 Ill.Dec. 623, 504 N.E.2d 908.) Although we have found no case law addressing the precise issue, it is apparent to us that participation in *1319 discovery by a defendant who has entered a special and limited appearance must be similarly restricted to issues raised in that appearance; otherwise, he would be in the contradictory position of taking steps in the cause that invoked the jurisdiction of the same court whose jurisdiction he was simultaneously denying. In the instant case, Brno signed a verification statement on January 15, 1993, certifying both his and American's answers to plaintiff's amended interrogatories. The answers Brno caused to be prepared addressed substantive questions regarding the allegedly defamatory letter sent to Shiras.
In moving to dismiss for lack of personal jurisdiction, Brno argued that he lacked minimum contacts with the forum State. However, where a party enters a special appearance questioning the jurisdiction of the court over his person, and thereafter makes a general appearance, jurisdictional questions raised in the special appearance are deemed to be waived. (Spencer v. American United Cab Association (1965), 59 Ill. App.2d 165,170, 208 N.E.2d 118.) In light of our finding that Brno's "participation in other aspects of the trial destroy[ed] the limitation of his appearance and waive[d] the jurisdictional objection" (In re Marriage of Falstad, 152 Ill.App.3d at 653, 105 Ill.Dec. 623, 504 N.E.2d 908), it was error for the trial court to consider further Brno's jurisdictional arguments.
Although we find that Brno submitted to the court's jurisdiction, we dismiss plaintiff's defamation claim against Brno for the same reasons, stated below, that we affirm the trial court's dismissal of all of plaintiff's complaints against American.
The trial court ruled that plaintiff's causes of action for negligent and intentional infliction of emotional distress and defamation against American are preempted by the Federal Aviation Act of 1958 (FAA) (§ 105(a)(1), as amended, 49 U.S.C.App. § 1305(a)(1) (1988)). Section 1305(a)(1), the preemption provision added to the FAA by the Airline Deregulation Act of 1978 (ADA), provides in pertinent part:
"[N]o State or political subdivision thereof and no interstate agency or other political agency of two or more States shall enact or enforce any law, rule, regulation, standard, or other provision having the force and effect of law relating to rates, routes, or services of any air carrier * * *." (Emphasis added.) 49 U.S.C.App. § 1305(a)(1) (1988).
In 1992, the United States Supreme Court held that State standards for airline fare advertising were expressly preempted by the ADA. (Morales v. Trans World Airlines, Inc. (1992), 504 U.S.___, 112 S.Ct. 2031, 119 L.Ed.2d 157.) In reaching its decision, the Morales Court focused on defining the scope of "relating to." The Court determined that the phrase "relating to" in the ADA preemption provision should be given the same broad interpretation that the Court has applied under the preemption provision found in the Employee Retirement Income Security Act of 1974 (ERISA) (29 U.S.C. § 1144(a) (1988)). The Court explained:
"For purposes of the present case, the key phrase, obviously, is `relating to.' The ordinary meaning of these words is a broad one'to stand in some relation; to have bearing or concern; to pertain; refer; to bring into association with or connection with,' Black's Law Dictionary 1158 (5th ed 1979)and the words thus express a broad preemptive purpose. We have repeatedly recognized that in addressing the similarly worded pre-emption provision of [ERISA] [citation], which pre-empts all state laws `insofar as they ... relate to any employee benefit plan.' We have said, for example, that `the breadth of [that provision's] pre-emptive reach is apparent from [its] language,' [citation]; that it has a `broad scope,' [citation], and an `expansive sweep,' [citation]; and that it is `broadly worded,' [citation], `deliberately expansive,' [citation], and `conspicuous for its breadth' [citation]. True to our word, we have held that a state law `relates to' an employee benefit plan, and is pre-empted by ERISA, `if it has a connection with or reference to such a plan.' [Citation.] Since the relevant language of the ADA is identical, we think it appropriate to adopt the same standard here: State enforcement actions having a connection with or reference to *1320 airline `rates, routes, or services' are pre-empted under 49 U.S.C.App. § 1305(a)(1)." Morales, 504 U.S. at ___, 112 S.Ct. at 2037, 119 L.Ed.2d at 167-68.
The Court rejected the argument that preemption should be limited to State laws expressly addressing the airline industry: "Besides creating an utterly irrational loophole * * * this notion * * * ignores the sweep of the `relating to' language." (Morales, 50 U.S. at___, 112 S.Ct. at 2038, 119 L.Ed.2d at 169.) The Court noted that it had consistently rejected the same argument in ERISA cases, having held that "`a state law may "relate to" a benefit plan, and thereby be pre-empted, even if the law is not specifically designed to affect such plans, or the effect is only indirect.'" Morales, 504 U.S. at___, 112 S.Ct. at 2038, 119 L.Ed.2d at 169, quoting Ingersoll-Rand Co. v. McClendon (1990), 498 U.S. 133,139, 484, 111 S.Ct. 478, 483,112 L.Ed.2d 474.
While the Court concluded that the guidelines regarding airline fare advertising were expressly preempted by section 1305(a)(1), it nonetheless stated that "`[s]ome state actions may affect [airline fares] in too tenuous, remote, or peripheral a manner' to have pre-emptive effect." (Morales, 504 U.S. at___, 112 S.Ct. at 2040, 119 L.Ed.2d at 172, quoting Shaw v. Delta Airlines, Inc. (1983), 463 U.S. 85, 100 n. 21, 103 S.Ct. 2890, 2901 n. 21, 77 L.Ed.2d 490, 503 n. 21.) The Morales Court found that the issue before it did not present a borderline question, however, and thus declined to comment on where it would be appropriate to draw the line as to the types of actions that would be preempted by section 1305(a)(1).
Given Morales' very broad interpretation of "relating to," we believe the State law claims at issue affect airline services directly, because they immediately arise from the denial, or the allegedly inadequate provision, of such services.
Plaintiff maintains that her common-law tort claims against American and Brno are too tenuously or remotely related to American's "services" to be preempted. Plaintiff argues that Phoenix "was wrongfully bumped [from the flight] despite the availability of seating for which she was suitable" and that American failed to abide by its own standards and duties. It would be impossible for a court to consider these assertions without addressing American's boarding and seating practices.
An airline's boarding and seating policies come within the ambit of the "services" it provides to its customers. (See Hodges v. Delta Airlines, Inc. (5th Cir.1993), 4 F.3d 350, 354 ("[elements of the air carrier service bargain include items such as ticketing [and] boarding procedures").) Courts have repeatedly held that State causes of action involving airlines' boarding and seating policies relate to "services" and are, consequently, preempted by Federal law. See, e.g., O'Carroll v. American Airlines, Inc., (5th Cir.1989), 863 F.2d 11, cert, denied (1989), 490 U.S. 1106, 109 S.Ct. 3158, 104 L.Ed.2d 1021 (State law claims alleging wrongful exclusion from a flight); Williams v. Express Airlines I, Inc. (W.D.Tenn.1993), 825 F.Supp. 831 (false imprisonment claims for being stopped from boarding a flight); Cannava v. USAir, Inc. (D.Mass.1993) 1993 WL 565341 (and cases cited therein) (claims, inter alia, of breach of contract and intentional infliction of emotional distress arising from an attempt to board a flight, of negligence for allowing a hijacker to board a plane, and of wrongful death arising from airline's actions in assisting an ill passenger with a connecting flight).
In support of her position, plaintiff cites a recent Illinois Supreme Court decision, Wolens v. American Airlines, Inc. (1993), 157 Ill.2d 466, 193 Ill.Dec. 172, 626 N.E.2d 205. Wolens is not only distinguishable on its facts; its reasoning reinforces our conclusion that plaintiff's claims relate to "services."
Revisiting a decision (Wolens v. American Airlines, Inc. (1992), 147 Ill.2d 367, 168 Ill. Dec. 133, 589 N.E.2d 533) remanded by the United States Supreme Court for further consideration in light of Morales, our supreme court addressed whether State court claims for damages arising from retroactive changes in American's frequent flyer program were preempted by section 1305(a)(1). In deciding that question, the court reasoned that a frequent flyer program is not an essential *1321 element to the operation of an airline: "[i]ndeed, the airline industry functioned successfully for decades prior to providing incentives to its travelers in the form of frequent flyer programs." (Wolens, 157 Ill.2d at 472, 193 Ill.Dec. 172, 626 N.E.2d 205.) In view of its finding that frequent flyer programs are "peripheral" to the operation of an airline, the court affirmed its previous holding that the plaintiff's State law claims for money damages were not preempted because they bore "only a tangential, or tenuous, relation to American's rates, routes, and services." Wolens, 157 Ill.2d at 473,193 Ill.Dec. 172, 626 N.E.2d 205.
Conversely, boarding and seating practices are not peripheral to the operation of an airline. Therefore, following the supreme court's reasoning in Wolens, State law claims such as plaintiff's bear a direct relation to "services" and are preempted by Federal law.
Plaintiff's reliance on West v. Northwest Airlines, Inc., (9th Cir.1993), 995 F.2d 148, is also misplaced. The plaintiff in that case was bumped from an overbooked flight upon which he held a confirmed reservation. The United States Court of Appeals for the Ninth Circuit determined that the plaintiff's claim for breach of the covenant of good faith and fair dealing was not preempted to the extent it sought compensatory damages. The court expressed its belief that the "state contract and tort laws under which [the plaintiff] seeks relief are within that range of statutes too tenuously connected to airline regulation to trigger pre-emption." West, 995 F.2d at 151.
The West court characterized the cause before it as "borderline," however, and turned for guidance to the administrative regulations interpreting the FAA. The court recognized the "controlling authority" of section 250.9(b), which gives bumped passengers holding confirmed reservations the option of declining airline compensation and seeking to recover damages in "a court of law or in some other manner." West, 995 F.2d at 151-52, citing 14 C.F.R. § 250.9(b) (1990).
The pleadings in the instant case do not allege that Phoenix held a confirmed reservation or that she was bumped from the flight in Madrid as a result of overselling. Therefore, section 250.9(b) is inapplicable to the case at hand. Since the West court's holding evidently relied on the existence of the agency regulation, plaintiff's contention that West "mandates reversal" is unpersuasive.
O'Hern v. Delta Airlines, Inc. (N.D.Ill. 1993), 838 F.Supp. 1264, another case offered by plaintiff, is also inapposite. In that case, the district court held that a State cause of action alleging safety deficiencies was not preempted by section 1305(a)(1). The court based its holding on a finding that Congress did not intend the term "services" to encompass airline safety, because "safety" was not included in the language of the preemption provision. (O'Hern, 838 F.Supp. at 1266-67.) Plaintiff's causes of action, on the other hand, relate to American's "services" and are expressly preempted by the ADA.
Phoenix's inability to board the flight in Madrid and her ensuing ordeal, as well as the allegedly defamatory letter written by Brno two months later, are directly connected to services providedor, perhaps, not providedby American. Thus, the facts before us do not present a borderline question of a State action only tenuously, or tangentially, related to airline services.
The dismissal of plaintiff's claims against American and Brno on the ground that they are preempted by the Federal Aviation Act is affirmed. The ruling that the circuit court lacked personal jurisdiction over Brno is vacated.
Affirmed in part; vacated in part.
DOYLE and PECCARELLI, JJ., concur.
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94 Ill.2d 52 (1983)
445 N.E.2d 330
PAUL P. GILL, County Clerk, et al., Appellees,
v.
JEFFERY C. MILLER, Director of Public Aid, et al., Appellants.
No. 56817.
Supreme Court of Illinois.
Opinion filed January 24, 1983.
*53 Tyrone C. Fahner, Attorney General, of Springfield (Patricia Rosen, Assistant Attorney General, of Chicago, of counsel), for the People.
Leslie R. Landis, of Chicago, for intervenor-appellant Illinois Coalition Against Domestic Violence.
Daniel D. Doyle, State's Attorney, of Rockford (Patrick J. Winn, Assistant State's Attorney, of counsel), for appellees.
Reversed and remanded.
JUSTICE WARD delivered the opinion of the court:
This appeal is from a summary judgment that the funding provisions of Public Act 82-645, "An Act in relation to domestic relations and domestic violence shelters and service programs" (Ill. Rev. Stat. 1981, ch. 40, par. 2401 et seq.) (hereafter the Act) are unconstitutional. The judgment was entered in the circuit court of Winnebago County following an action brought by Paul P. Gill, the county clerk of Winnebago County, and Ronald Kotche, the clerk of the circuit court of Winnebago County. Appeal was taken directly to this court under Rule 302(a) (73 Ill.2d R. 302(a)) by Jeffery C. Miller, the Director of the Department of Public Aid, and the Illinois *54 Coalition Against Domestic Violence, a not-for-profit corporation that the circuit court allowed to intervene.
The Governor signed the Act into law on September 24, 1981. It became effective on January 1, 1982. The Act provides that the Department of Public Aid (the Department) shall administer or provide for the administration of shelters and service programs for victims of domestic violence. The statute states that the Department shall provide for the funding of such shelters and programs from the Domestic Violence Shelter and Service Fund (the Fund).
The Act amended section 3 of "An Act to provide for the fees of the sheriff, recorder of deeds and county clerk in counties of the third class" (Ill. Rev. Stat. 1981, ch. 53, par. 73) and section 18 of "An Act concerning fees and salaries, and to classify the several counties of this state with reference thereto" (Ill. Rev. Stat. 1981, ch. 53, par. 35). These amendments increase by $10 the fees that are charged by county clerks for the issuance of marriage licenses, and provide that "$10 [of that fee] shall be paid into the * * * Fund." Too, the Act amended sections 27.1 and 27.2 of "An Act to revise the law in relation to clerks of courts" (Ill. Rev. Stat. 1981, ch. 25, pars. 27.1, 27.2) to provide that $5 of the $45 fee charged by circuit court clerks for the filing of a dissolution of marriage action "shall be paid into the * * * Fund."
The Act amended, too, section 1.2f of "An Act to revise the law in relation to county clerks" (Ill. Rev. Stat. 1981, ch. 35, par. 1.2f). The Act provides:
"Pursuant to `An Act in relation to domestic relations and domestic violence shelters and service programs', enacted by the 82nd General Assembly, the county clerk shall deposit in the Domestic Violence Shelter and Service Fund, monthly by the 10th day of the month following, certain fees derived from marriage licenses and marriage *55 dissolution cases."
The Winnebago county officers brought this action on January 4, 1982, almost immediately after the Act took effect. Their complaint alleged that the Act was unconstitutional because it provided that "the county clerk shall deposit" the fees into the Fund. The officers pointed out that the Constitution of Illinois provides:
"Compensation of officers and employees and the office expenses of units of local government shall not be paid from fees collected. Fees may be collected as provided by law and by ordinance and shall be deposited upon receipt with the treasurer of the unit. Fees shall not be based upon funds disbursed or collected, nor upon the levy or extension of taxes." (Emphasis added.) Ill. Const. 1970, art. VII, sec. 9(a).
The circuit court held the statute unconstitutional on May 28, 1982. Pursuant to an order entered by the circuit court, the plaintiffs, the circuit court clerk and the county clerk, have continued to collect the fees specified in the Act. By the court's order, the portion of those fees which the Act directs to be paid into the Fund has been held in an escrow account pending this appeal.
After the court had held the Act to be unconstitutional, the legislature repealed the section that called for the county clerk to deposit the fees into the Fund. (Pub. Act 82-888, "An Act to amend "The Illinois Domestic Violence Act', approved September 24, 1981, and other Acts herein named," sec. 2 (eff. Aug. 5, 1982) (1982 Ill. Leg. Serv. 2021 (West)).) In its place, the legislature added section 3.1 to the Act (to be codified as Ill. Rev. Stat., ch. 40, par. 2403.1). The new section provides:
"Each circuit and county clerk shall deposit with the county treasurer, in accordance with Section 2 of `An Act to provide for the timely deposit of fees collected pursuant to law by any elected or appointed official of local government', approved September 1, 1972, all fees or portions of fees collected pursuant to law, which are designated for payment into the Domestic Violence Shelter *56 and Service Fund. The county treasurer shall, monthly, by the 10th day of the month following receipt, remit the amounts so deposited to the State Treasurer, who shall deposit such amounts into the Domestic Violence Shelter and Service Fund in the State treasury." Pub. Act 82-888, sec. 2.
The amendment was approved on August 5, 1982, and took effect from that date. Involved here is the disposition to be made of the moneys collected between the effective date of the Act and the effective date of the amendment.
It is fundamental that in construing a statute a court is to ascertain and give effect to the legislature's intent. (People ex rel. Gibson v. Cannon (1976), 65 Ill.2d 366, 369.) It will be presumed that in enacting a statute the legislature acted in the light of the provisions of the Constitution and intended to enact a statute not inconsistent with the Constitution. (Illinois Crime Investigating Com. v. Buccieri (1967), 36 Ill.2d 556, 561 cert. denied (1967), 389 U.S. 848, 19 L.Ed.2d 117, 88 S.Ct. 75.) Accordingly, we must construe the Act here as not offending the Constitution, provided of course that the construction is reasonable. Continental Illinois National Bank & Trust Co. v. Illinois State Toll Highway Com. (1969), 42 Ill.2d 385, 389.
In ascertaining the legislature's intent we should consider the statute in its entirety, noting the subject it addresses and the legislature's apparent objective in enacting it. (Chastek v. Anderson (1981), 83 Ill.2d 502, 510-11.) Where the letter of the statute conflicts with the spirit of it, the spirit will be controlling when construing the statute's provisions. (Inskip v. Board of Trustees (1962), 26 Ill.2d 501, 510.)
Considering these principles of construction, we judge that Public Act 82-645 is constitutional. Undoubtedly the provision that the county clerk rather than the county treasurer should deposit the fees was simply a legislative inadvertence or mistake. The Act requires the circuit court clerk, not the county clerk, to collect the fees for the filing *57 of petitions in dissolution-of-marriage cases. The General Assembly certainly did not intend that the county clerk was to deposit fees that the Act provided that the circuit court clerk would charge and collect.
Also, the legislature was certainly aware of our constitution and its requirement that fees collected in the operation of a unit of local government (here, the county) shall be deposited with the unit's treasurer. To implement that constitutional requirement, another statute, "An Act to provide for the timely deposit of fees collected pursuant to law by any elected or appointed official of local government" (Ill. Rev. Stat. 1981, ch. 85, pars. 721, 722), provides: "All elected or appointed officials of units of local government, and clerks of the circuit courts, authorized by law to collect fees which collection is not prohibited by Section 9 of Article VII of the Constitution, shall deposit all such collected fees upon receipt with the county treasurer or treasurer of such other unit of local government, as the case may be; except that such officials may maintain over-payments, tax redemptions, trust funds and special funds as provided for by law or local ordinance."
The legislature's intent, we must presume, was to enact a constitutional statute, and it is also presumed that the legislature was aware of the statute we have just quoted when it provided the Act's funding details. We therefore construe the Act, as originally drafted, to have required that the county treasurer, the constitutionally designated officer, was to deposit the specified portion of the fees into the Fund. We construe that act to have meant that the circuit court clerk and the county clerk were to have deposited the fees with the county treasurer.
Evidence that this construction expresses the legislature's intent can be found in the amendment to the Act, which was approved about seven months after the Act took effect. The amendment provides that the county clerk and the circuit court clerk shall deposit the fees collected *58 with the county treasurer, and that the county treasurer then shall transfer those moneys to the State Treasurer for deposit into the Fund. Regarding the significance of an amendment to a statute, Sutherland on Statutory Construction states: "If the amendment was enacted soon after controversies arose as to the interpretation of the original act, it is logical to regard the amendment as a legislative interpretation of the original act a formal change rebutting the presumption of substantial change [of the original act by the amendment]." (1A A. Sutherland, Statutory Construction sec. 22.31 (4th ed. 1972).) Cf. Carey v. Elrod (1971), 49 Ill.2d 464 appeal dismissed (1972), 408 U.S. 901, 33 L.Ed.2d 327, 92 S.Ct. 2488 (upon concluding that it was through oversight that the legislature, in amending a statute, had deleted a certain provision in the statute, the court deemed it proper in interpreting the amended statute to consider that when the legislature became aware of the deletion, it amended the statute again to restore the deleted provision).
We have here a situation where a legislative intention, otherwise clear, was in part mistakenly or inaccurately stated. Under such circumstances courts have allowed the substitution of language in order to carry out the demonstrable legislative intention, observing, however, when doing so, that this technique of construction is to be exercised with caution. Sutherland on Statutory Construction observes: "A large majority of the cases permit the substitution of one word for another where it is necessary to carry out the legislative intent or express clearly manifested meaning. Although, as one court said, `it is sometimes called "exceptional construction," and we are not unmindful of the dangers attending the exercise of such powers by the courts. But, properly understood, and exercised with due caution, it is not judicial legislation, but is simply a method of arriving at legislative intent defectively expressed.'" (2A A. Sutherland, Statutory Construction *59 sec. 47.36 (4th ed. 1973), quoting Baca v. Board of County Commissioners (1900), 10 N.M. 438, 442-43, 62 P. 979, 980.) The text further states: "Courts have permitted the substitution of one word for another: where it is necessary to make the act harmonious or to avoid repugnancy or inconsistency, [or] where the word to be substituted is to be found in the * * * act as amended * * * or by reference to other statutes, [or] where it is obvious that the word used in the act is the result of clerical error, or mistake, [or] where the substitution will make the act sensible, or give it force and effect." 2A A. Sutherland, Statutory Construction sec. 47.36 (4th ed. (1973).
Adhering to the holdings in the majority of jurisdictions, this court has decided that where applying language literally in a clause of an otherwise coherent statute would frustrate the spirit of the statute and the intent of the legislature, language may be disregarded, modified or supplied to give effect to the legislative design. Continental Illinois National Bank & Trust Co. v. Illinois State Toll Highway Com. (1969), 42 Ill.2d 385, 395; e.g., People ex rel. Cason v. Ring (1968), 41 Ill.2d 305 (where through oversight the legislature, in amending the Election Code, failed to provide for the continuation of a long-standing procedure for the erasure of names from the voters' register, the court construed the amendment as continuing the procedure); People ex rel. Barrett v. Anderson (1947), 398 Ill. 480 (cited by 2A A. Sutherland, Statutory Construction sec. 47.36 (4th ed. 1973)) (the description of territory in the Congressional Reapportionment Act of 1947 as "the village of Stickney" was contrued to mean "the township of Stickney," because a literal reading would have brought about the unintended result of leaving unapportioned the part of the township that was outside of the village).
An opinion given by the Attorney General on December 22, 1981, prior to the effective date of the Act, is in agreement with our construction of the statute. 1981 Ill. Att'y *60 Gen. Op. 113.
For the reasons given, the judgment of the circuit court holding Public Act 82-645 unconstitutional is reversed. The cause is remanded to the circuit court for further proceedings consistent with this opinion.
Reversed and remanded.
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(2008)
Susan MICCICHE, Plaintiff,
v.
KEMPER NATIONAL SERVICES, Defendant.
No. 06-CV-5099 (DLI)(SMG).
United States District Court, E.D. New York.
March 24, 2008.
MEMORANDUM AND ORDER
DORA L. IRIZARRY, District Judge.
On September 21, 2006, plaintiff Susan Micciche sued defendant Kemper National Services ("Kemper") under the Employee Retirement Income Security Act ("ERISA"), alleging that defendant, as administrator of her employer-sponsored insurance plan (the "HSBC plan"), improperly denied her claim for long-term disability benefits. Plaintiff seeks the value of the benefits she believes are owed to her under the HSBC plan. Kemper moves the court to dismiss the complaint pursuant to Rules 4(m) and 12(b)(5) of the Federal Rules of Civil Procedure because plaintiff failed to serve Kemper with the summons and complaint within 120 days after it was filed, or alternatively, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure because the present action is time-barred by the terms of the HSBC plan. For the reasons set forth below, the court excuses plaintiffs failure to comply with Rule 4(m)'s service requirements, and dismisses plaintiffs complaint pursuant to Rule 12(b)(6).
I. Background
A. Facts
Plaintiff worked as a Branch Platform Officer for HSBC Bank USA, and received disability insurance coverage under the HSBC plan. (Compl. ¶ 6; Attachment to Complaint (hereinafter, "O'Rourke Letter") at 1-2) In February of 2000, an accident rendered plaintiff unable to work and she took disability leave. (Comp. ¶ 7; O'Rourke Letter at 2-3) Plaintiff briefly returned to work from August 17, 2000 until September 14, 2000 but has not worked since because her disability "has [ ] prevented [her] from engaging in any occupation or from performing any work for compensation or profit." (Compl.¶¶ 7, 16) Plaintiff asserts in her complaint that she has been totally disabled since 2001, and has received social security disability benefits, in addition to short-term disability benefits under the HSBC plan. (Compl.¶¶ 8, 16) Plaintiffs application for long-term disability benefits under the HSBC plan was denied. (See O'Rourke Letter at 1)
Plaintiff, through counsel, made several unsuccessful attempts to appeal the denial of her claim. (Id.) Plaintiff attached to her complaint a letter dated October 3, 2001 from the claims administrator that preceded Kemper Integrated Disability Resources, Inc. ("IDR") to plaintiffs counsel, Mr. Thomas Bello, which reads, "We are writing to you concerning your appeal of the denial decision on your client's application for Long Term Disability benefits under the above employer's policy. We have completed our review of your appeal and we must uphold the previous denial decision on your client's claim." (O'Rourke Letter at 1) The letter concludes with the following language:
Since this is the third appeal and we still have not been provided with medical evidence to support a disability for the period of time for which the claim is being filed, this is our final decision on the claim. We will not consider for review any medical information submitted that is already in the file and is not supportive of a Disability that began at the start of the policy's Benefit Qualifying period.
(Id. at 3)
On November 4, 2002, more than a year after the denial of plaintiffs third appeal, Mr. Bello sent IDR a letter, attempting to submit additional medical documentation and requesting that the administrator contact him to discuss plaintiffs benefits claim. (ECF Docket Entry 26, Ex. D at 25) A subsequent letter to IDR from Mr. Bello dated April 2, 2003 states, "On November 4, 2002 this firm forwarded correspondence to you regarding [plaintiff]. To date we have not received a response. Kindly contact this office at your earliest convenience." (Id, at 27) On April 7, 2003, IDR wrote a response to Mr. Bello, which states:
We are writing to you concerning your client's Long Term Disability claim under [HSBCJ's policy.
We wish to acknowledge receipt of your letter dated April 2, 2003 in which you indicated information was forwarded to us concerning [plaintiff]'s claim.
Please note that [Kemper], the claim administrator for the Long Term Disability (LTD) Plan, has transitioned claims administration from IDR Inc.'s Connecticut office to Kemper's Florida claims center. The transition to the Florida office took place effective December 1, 2002. Therefore, your client's claim has been transferred to the Florida office for ongoing claims administration. The Kemper Disability Claims Unit, located in Plantation, Florida, has a fully staffed team of professionals dedicated to coordination your disability needs. If you have any questions concerning your client's claim, you may contact Kemper at the address and telephone number listed below:
(ECF Docket Entry 27, Ex. D at 39-40) The letter also includes Kemper's general address and toll free number. (Id. at 39-40)
On March 5, 2004, Mr. Bello sent another letter to IDR, renewing his request that IDR contact him and resubmitting the medical documentation originally sent with his November 4, 2002 letter. (Id. at 29, 33) On April 20, 2004, Mr. Bello also sent a letter to Kemper, asking it to contact him regarding the status of plaintiffs claim and forwarding copies of correspondence between IDR and his office. (Id. at 30.) There is no indication that either IDR or Kemper ever replied to these communications. A letter from Mr. Bello to Kemper dated September 8, 2004 and addressed "To Whom It May Concern," states, "As per our conversation please forward a copy of [plaintiffs] file to the undersigned at your earliest convenience." (Id. at 32)
B. Procedural History
On September 21, 2006, plaintiff filed the present complaint, alleging that Kemper wrongly denied her the benefits that she was entitled to under the HSBC plan. Plaintiff seeks, "[j]udgment in the amount of the calculated benefit rate from January, 2001 to the present and continuing to the future, plus interest." (Compl. ¶ A)[1] Service of the summons and complaint on the defendant was due within 120 days of the filing of the complaint, or, no later than January 19, 2007. See Fed.R.Civ.P. 4(m). Defendant was not served until March 13, 2007 173 days after the filing of the complaint. (See ECF Docket Entry 26 at 2) On April 20, 2007, Kemper moved to dismiss the complaint pursuant to Rules 4(m), 12(b) (5), and 12(b)(6).
II. Discussion
Plaintiff asserts in her complaint that she is fully disabled and that Kemper has wrongly denied her the disability benefits to which she is entitled under the HSBC plan. Kemper argues that the complaint should be dismissed with prejudice pursuant to Rules 12(b) (5) and 4(m) because plaintiff failed to timely serve the summons and complaint within the prescribed 120-day period, or alternatively, pursuant to Rule 12(b)(6) because plaintiff has failed to state a claim upon which relief can be granted.
A. Kemper's Motion under Rules 12(b)(5) and h(m)
Kemper first argues that plaintiffs complaint should be dismissed for insufficient process pursuant to Rule 12(b)(5) because plaintiff did not serve defendant with a summons and complaint within 120 days of filing the complaint with the court, as required by Rule 4(m). See Fed. R.Civ.P. 4(m), 12(b)(5). Rule 4(m) states:
If a defendant is not served within 120 days after the complaint is filed, the court on motion or on its own after notice to the plaintiff must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.
Fed.R.Civ.P. 4(m). Although earlier versions of the rule mandated dismissal unless a plaintiff could demonstrate good cause for failing to timely serve the defendant, the current rule as amended in 1993[2] provides district courts with the discretion "to enlarge the 120-day period `even if there is no good cause shown.'" Henderson v. United States, 517 U.S. 654, 662-663, 116 S.Ct. 1638, 134 L.Ed.2d 880 (1996) (quoting Fed.R.Civ.P. 4(m) Adv. Comm. Notes).
Despite the 1993 amendment, as recently as 2006, the Second Circuit was reluctant to adopt a reading of Rule 4(m) that deviated from the traditional view that a complaint not timely served must be dismissed absent a showing of good cause. See Bogle-Assegai v. Connecticut, 470 F.3d 498, 508 (2d Cir.2006) (plaintiffs suggestion "that she was not required to show good cause in order to be given an extension of time to make proper service ... is unsupported by any authority of this Court."). In Zapata v. City of New York, however, the Circuit clarified that its earlier observation about Rule 4(m) "was linked to the factual context of that case," and did not represent a categorical holding "that good cause is required in every case for an extension of the service period under Rule 4(m)" because such an interpretation "would be inconsistent with the wording of the rule and the views of the Supreme Court." 502 F.3d 192, 196 (2d Cir.2007). Accordingly, the court held "that district courts have discretion to grant extensions even in the absence of good cause." Id.; see also Beauvoir v. United States Secret Service, 234 F.R.D. 55, 57-58 (E.D.N.Y.2006) ("In light of Henderson, the view that dismissal under Rule 4(m) is mandatory even if it remains the majority view in this Circuit is no longer valid."). Thus, even if plaintiff is unable to show good cause for failing to serve Kemper within the 120-day period, the court still may consider granting a discretionary extension.
1. Extension for Good Cause
Courts consider two factors in determining whether good cause, i.e., excusable neglect, for failing to comply with Rule 4(m)'s time limit has been shown: "(1) the reasonableness and diligence of Plaintiffs efforts to serve, and (2) the prejudice to the Moving Defendants from the delay." Lab Crafters, Inc. v. Flow Safe, Inc. 233 F.R.D. 282, 284 (E.D.N.Y.2005) (citing Blessinger v. United States, 174 F.R.D. 29, 31 (E.D.N.Y.1997)). Courts generally will find good cause only where the failure to effect timely service was the result of circumstances beyond plaintiffs control, and was not the result of mere "inadvertence, neglect, mistake or misplaced reliance." Beauvoir, 234 F.R.D. at 56 (citations omitted); see also Zankel v. United States, 921 F.2d 432, 436 (2d. Cir. 1990) ("[A] judge is certainly not required to treat inadvertence... as `good cause' or `excusable neglect' for delay in service.") (collecting authorities). Moreover, courts have found that a plaintiffs duty to effectuate timely service is not satisfied simply by relying on a process server. Beauvoir, 234 F.R.D. at 57.
Service of the summons and complaint was due on Kemper on or before January 19, 2007, but was not effectuated until March 13, 2007, fifty-three days past the 120-day deadline. Plaintiff acknowledges that service was untimely, but asks that this defect be excused. Plaintiffs counsel, Mr. Bello, attempts to establish excusable neglect by citing "numerous problems with the process server" and "absence of the full time paralegal who was out on maternity leave," which purportedly left the office "severely understaffed" and unable to perform "normal follow up procedures." (ECF Docket Entry 27 at 2) Circumstances such as these fail to establish excusable neglect. See, e.g., Hertzner v. United States Postal Service, No. 05-CV-2371, 2007 WL 869585 at *8 (E.D.N.Y. March 20, 2007) (counsel's duty to inquire into the status of service not affected by his vacation plans or "[t]he fact that [he] was actively engaged in litigation of other cases"). Mr. Bello must have anticipated that his full-time paralegal would be taking maternity leave, and he should have made the requisite preparations to fulfill his responsibilities to his clients and the court. Regardless of the availability of counsel's staff, it remained his "responsibility to monitor the activity of the process server and to take reasonable steps to assure that [the] defendant is timely served." Beauvoir, 234 F.R.D. at 57 (citation omitted). In this case, rather than explain the steps he took to monitor the process server, counsel concedes that the "normal follow up procedures" were not performed. Under these circumstances, plaintiff cannot be considered to have made reasonable and diligent efforts to timely serve defendant.
Moreover, plaintiffs reliance on Armstrong v. Sears is entirely misplaced. In Armstrong, the Second Circuit overturned the district court's Rule 4(m) dismissal where a pro se plaintiff, relying on the United States Marshals Service to effect service on several federal agents, failed to ensure that service actually was made. 33 F.3d 182, 188 (2d Cir.1994). In contrast, plaintiffs counsel is a member of the bar and admitted to practice before this court. When representing a client in this or any other court, he is responsible for complying with the applicable procedural rules. See, e.g., N.Y.Code of Prof'l Responsibility EC 6-1[3] ("Having undertaken representation, a lawyer should take proper care to safeguard the interests of the client."). Plaintiff shirked this responsibility, and has failed to establish good cause for so doing. Nevertheless, the court will review the relevant factors to determine whether a discretionary extension is appropriate.
2. Discretionary Extension
As noted above, "a district court may grant an extension in the absence of good cause, but it is not required to do so." Zapata, 502 F.3d at 197 (emphasis in original). The four factors to be considered in determining whether to grant a discretionary extension of the service deadline are: "(1) whether the applicable statute of limitations would bar the refiled action; (2) whether the defendant had actual notice of the claims asserted in the complaint; (3) whether the defendant had attempted to conceal the defect in service; and (4) whether the defendant would be prejudiced by the granting of plaintiffs request for relief from the provision." Beauvoir, 234 F.R.D. at 58. (quoting Carroll v. Certified Moving & Storage Co., LLC, No. 04-CV-4446, 2005 WL 1711184 at *2 (E.D.N.Y. July 19, 2005)). In the present case, Kemper argues that plaintiffs action was time-barred from the moment it was filed. As service was eventually made on Kemper, it was apprised of plaintiffs claim and has had an opportunity to brief the issues. Nothing indicates that Kemper attempted to conceal the defect in service, but neither is there any indication that Kemper would suffer any prejudice if the court excused plaintiffs defective service. These factors, combined with the court's reticence to punish plaintiff for her counsel's mistakes, lead the court to excuse plaintiffs tardy service. Accordingly, the court will consider whether plaintiff has stated a claim for which relief can be granted.
B. Kemper's Motion under Rule 12(b)(6)
1. Standards on a Rule 12(b)(6) Motion
Rule 12(b) (6) of the Federal Rules of Civil Procedure provides that a defendant may make a motion, in lieu of an answer, to dismiss a complaint for "failure to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). On a motion to dismiss under Rule 12(b)(6), the court accepts as true all well-pleaded factual allegations and draws all reasonable inferences in the plaintiffs favor. See Dangler v. New York City Off Track Betting Corp., 193 F.3d 130, 138 (2d Cir.1999). In Bell Atlantic Corp. v. Twombly, the Supreme Court retired the standard set forth half a century ago in Conley v. Gibson, that a complaint should not be dismissed "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief," in favor of the requirement that plaintiff plead enough facts to "state a claim to relief that is plausible on its face." Bell Atlantic, ___ U.S. ___, 127 S.Ct. 1955, 1968-69, 1974, 167 L.Ed.2d 929 (2007) (quoting Conley, 355 U.S. 41, 45^6, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). Pursuant to Bell Atlantic, in order to be facially plausible, a complaint cannot make merely "a formulaic recitation of the elements of a cause of action," but must allege facts that "raise a right of relief above the speculative level on the assumption that all allegations in the complaint are true (even if doubtful in fact)." Bell Atlantic, 127 S.Ct. at 1964-65 (citations omitted). The Second Circuit has interpreted the foregoing language to "require] a flexible `plausibility standard,' which obliges a pleader to amplify a claim with some factual allegations in those contexts where such amplification is needed to render the claim plausible," rather than to mandate a "universal standard of heightened fact pleading." Iqbal v. Hasty, 490 F.3d 143, 157-58 (2d Cir.2007).
When material outside the complaint is "presented to and not excluded by the court, the motion must be treated as one for summary judgment ... and all parties must be given a reasonable opportunity to present all the material that is pertinent to the motion." Fed.R.Civ.P. 12(d). For the purposes of this rule, however, the complaint is deemed to include writings and documents attached to the complaint, referenced in the complaint, or integral to the complaint. See Chambers v. Time Warner, Inc., 282 F.3d 147, 152-53 (2d Cir. 2002); Fed.R.Civ.P. 10(c). A document is "integral" to the complaint where "the complaint relies heavily upon its terms and effects." Chambers, 282 F.3d at 153 (citations omitted). "A plaintiff's reliance on the terms and effect of a document in drafting the complaint is a necessary prerequisite to the court's consideration of the document on a dismissal motion; mere notice or possession is not enough." Id. (emphasis in original).
Plaintiffs are harmed when material outside the complaint is considered on a motion to dismiss because they lack notice that such consideration is taking place. Global Network Commc'ns, Inc. v. City of New York, 458 F.3d 150, 155 (2d Cir.2006). Rule 12(d)'s conversion requirement remedies this problem by "deter[ring] trial courts from engaging in fact finding when ruling on a motion to dismiss and ensur[ing] that when a trial judge considers evidence dehors the complaint, a plaintiff will have an opportunity to contest defendant's relied-upon evidence by submitting material that controverts it." Id. Accordingly, where there is actual notice by the opposing party of all the information in the movant's papers, the necessity to convert a motion to dismiss to one for summary judgment is largely dissipated. Chambers, 282 F.3d at 153.
In the present case, several documents have been presented for the court's consideration in connection with Kemper's 12(b)(6) motion: plaintiff attached the October 3, 2001 letter from IDR to the complaint itself, Kemper submitted a copy of the HSBC plan along with their motion to dismiss, and plaintiff submitted a number of-letters between her lawyer, Kemper, and IDR in connection with plaintiffs disability claim. The court finds that all of these documents may be considered without converting Kemper's dismissal motion into a Rule 56 motion for summary judgment. The October 3, 2001 letter plainly is attached to the complaint, and the HSBC plan is necessarily referenced by the complaint because the complaint seeks disability benefits under the plan. Additionally, the court finds that the correspondence between plaintiffs counsel, IDR, and Kemper is integral to the complaint because, as explained more fully below, such correspondence represents plaintiffs only attempt to satisfy the applicable limitations period. See Holowecki v. Federal Exp. Corp., 440 F.3d 558, 565 (2d Cir.2006) ("In reviewing the Rule 12(b)(6) ruling, it is proper for this court to consider [documents not] attached to the complaint, because ... plaintiffs rely on these documents to satisfy the [statutory] time limit requirements."). Moreover, as plaintiff herself submitted the correspondence at issue to the court, its consideration poses no prejudicial threat.
2. The Applicable Statute of Limitations
Plaintiff's final appeal was formally denied on October 3, 2001, and her complaint was not filed until September 21, 2006. Kemper argues that a three-year statute of limitations governs plaintiffs ERISA claim, and, as such, is time-barred. Plaintiff disagrees, contending that a six-year statute of limitations applies, and, accordingly, the claim was timely filed. Section 502(a)(1)(B) of ERISA, "confers upon employee plan beneficiaries a federal right of action to recover benefits due under their plan." Smith v. First UNUM Life Ins. Co., No 98-CV-2415, 1999 WL 369958 at *3 (E.D.N.Y. June 2, 1999) (citing 29 U.S.C. § 1132(a)(1)(B)). ERISA does not provide a specific statute of limitations for actions brought under this section, so "the controlling limitations period is that specified in the most nearly analogous state limitations statute." Miles v. New York State Teamsters Conference Pension and Retirement Fund Employee Pension Benefit Plan, 698 F.2d 593, 598 (2d Cir.1983) (citing Board of Regents v. Tomanio, 446 U.S. 478, 483-84, 100 S.Ct. 1790, 64 L.Ed.2d 440 (1980)).
The Second Circuit has held that the most closely analogous state limitations statute applicable to ERISA benefits claims is the six-year limitations period prescribed by section 213 of New York's Civil Practice Law and Rules ("CPLR") for breach of contract actions. Id. at 598. Section 201 of the CPLR, however, "allows contracting parties to shorten a statutory period of limitations if that period is contained in a written agreement between the parties." Patterson-Priori v. Unum Life Ins. Co. of America, 846 F.Supp. 1102, 1105 n. 5 (E.D.N.Y.1994). As another court in this district has noted, "[i]t is well-settled in this circuit" that section 201 applies to employee benefit plans governed by ERISA, and that, accordingly, "[w]here a benefit plan specifies a limitations period shorter than six years ... the contractual period governs." Smith, 1999 WL 369958 at *3; see also Yuhas v. Provident Life and Cas. Ins. Co., 162 F.Supp.2d 227, 231 (S.D.N.Y.2001) ("[W]hen a written agreement between the parties, such as an insurance policy, stipulates a shorter limitations period, the shorter period governs."). In this case, plaintiffs insurance plan includes the following clause:
Legal Action
You or your authorized representative may not start a legal action:
1. Until 60 days after proof your claim has been given; or
2. More than three years after the date when proof of your claim was required.
(ECF Docket Entry 13 at 23). This contractual clause represents a written agreement between the parties to shorten the statutory period of limitations, thus, it is controlling.
3. Accrual of Plaintiffs ERISA Claim for Benefits
Although district courts look to state law to determine the correct statute of limitations for ERISA benefits claims, federal law governs as to when that statute of limitations begins to run. Lewis v. John Hancock Mutual Life Ins. Co., 6 F.Supp.2d 244, 247 (S.D.N.Y.1998). Kemper argues that plaintiffs claim accrued, pursuant to the HSBC plan, on August 9, 2000 when proof of her claim was required. It is well established in this circuit, however, that an ERISA cause of action accrues, and the statute of limitations begins to run, "when there has been a repudiation by the fiduciary which is clear and made known to the beneficiaries." See Larsen v. NMU Pension Trust of NMU Pension & Welfare Plan, 902 F.2d 1069, 1073 (2d Cir.1990) (quoting Miles, 698 F.2d at 598). This accrual calculus "applies even when a benefit plan prescribes a different accrual date, such as when the proof of loss is required to be furnished, because to hold otherwise would allow an insurer to simply bury a denial of coverage and wait for the statute of limitations to run." Flood v. Guardian Life Ins. Co., No. 05-CV-5480, 2008 WL 199458 at *6 (E.D.N.Y. Jan. 22, 2008) (internal quotations marks and citations omitted); see also Patterson-Priori, 846 F.Supp. at 1106-1108 (disregarding the accrual date provided in the plan and, pursuant to Miles, determining that action accrued on date fiduciary denied plaintiffs application for benefits). Thus, plaintiffs claim accrued, and the three-year statute of limitations period began to run, when Kemper clearly and unequivocally denied her application. See Medoy v. Warnaco Employees' Long Term Disability Ins. Plan, 43 F.Supp.2d 303, 306-07 (E.D.N.Y. 1999).
The October 3, 2001 letter states, "[s]ince this is the third appeal and we still have not been provided with medical evidence to support a disability for the period of time for which the claim is being filed, this is our final decision on the claim." (O'Rourke Letter at 3.) This was a clear and unequivocal statement that plaintiff's claim was no longer being considered as of October 3, 2001. Plaintiff nevertheless argues that her action is timely even under a three-year statute of limitations because Kemper was continued to review her claims as recently as 2004. Plaintiff points to the letters exchanged between Mr. Bello and IDR and Kemper as "ample evidence" that, subsequent to the October 3, 2001 letter from IDR, her claim was still being considered and had not yet accrued,[4] These letters, however, show only that Mr. Bello made numerous attempts to reopen the issue by periodically requesting additional consideration of plaintiffs claim. Most of the letters are from Mr. Bello to Kemper or IDR and appear to have been left unanswered; only one is a reply from Kemper, acknowledging receipt of Mr. Bello's letter dated April 2, 2003, "in which [Mr. Bello] indicated information was forwarded to [Kemper] concerning plaintiffs claim." (Id. at 39-40) Apart from this brief acknowledgment, the letter appears to be merely a form letter informing Mr. Bello that the administration of all HSBC plan claims were being handled by Kemper's Disability Claims Unit in Florida, rather than by IDR in Connecticut. (Id.) Additionally, Mr. Bello's letter dated September 8, 2004, indicates only that a conversation took place and that Mr. Bello had requested a copy of plaintiffs file, nothing more. (Id. at 32.)
The court finds that these communications did not toll the contractual limitations period. Plaintiff "cannot continue extending the accrual date merely by requesting repeated reconsideration from the plan administrator or the insurer." Mitchell v. Shearson Lehman Bros., Inc., No. 97-CIV-0526, 1997 WL 277381 at *6 (S.D.N.Y. May 27, 1997). Even if Kemper had agreed to consider additional evidence submitted by plaintiff, "an offer by an insurance company to review additional information subsequent to a clear and unequivocal repudiation of benefits does not formally re-open a plaintiffs claim and toll the limitations period." Allwood v. Frontier Commc'ns of Rochester Telephone, Inc., 03-CV-6229, 2004 WL 2202572 at *3 (W.D.N.Y. Sept.30 2004). "A tenacious plaintiff should not be allowed to renew stale claims merely by requesting consideration of final decisions.... If a Court were to rule that an applicant's cause of action is renewed each time [an insurance company] informally re-examines [her insurance] request, [insurance companies] would simply refrain from doing so." Id. (quoting Patterson-Priori, 846 F.Supp. at 1106). None of the letters exchanged between Mr. Bello and IDR and/or Kemper, individually or in the aggregate, support plaintiffs assertion that her claim was formally reopened in 2004. Therefore, plaintiffs ERISA claim accrued on October 3, 2001, and the three-year statute of limitations expired on October 3, 2004. As such plaintiffs claim, was time-barred in 2006 when she filed the instant complaint.
III. Conclusion
For the reasons stated above, plaintiffs complaint is dismissed pursuant to Rule 12(b)(6) for failure to state a claim on which relief can be granted.
SO ORDERED.
NOTES
[1] Originally, plaintiff also sought punitive and consequential damages, (Compl. ¶¶ B, C), but those claims have since been withdrawn, (ECF Docket Entry 27 at 2).
[2] The language of Rule 4 was further amended on December 1, 2007, but "[t]hese changes [were] intended to be stylistic only." Fed. R.Civ.P. 4 Adv. Comm. Notes.
[3] The New York Code of Professional Responsibility is published at Part 1200 of Title 22 of the New York Codes, Rules and Regulations.
[4] Some disagreement exists among district courts in this Circuit as to whether a cause of action accrues when benefits are first denied, or when administrative remedies have been exhausted. See Veltri v. Building Service 32B-J Pension Fund, 393 F.3d 318, 325 (2d Cir. 2004). For present purposes, the court adopts the more lenient approach and assumes that plaintiff's claim did not accrue until her administrative remedies had been exhausted.
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NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 28 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
NIKI-ALEXANDER SHETTY, FKA Satish No. 17-16810
Shetty,
D.C. No. 5:17-cv-00808-NC
Plaintiff-Appellant,
v. MEMORANDUM*
GREENPOINT MTA TRUST 2006-AR2; et
al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of California
Nathanael M. Cousins, Magistrate Judge, Presiding**
Submitted August 15, 2018***
Before: LEAVY, BYBEE, and N.R. SMITH, Circuit Judges.
Niki-Alexander Shetty, FKA Satish Shetty, appeals pro se from the district
court’s judgment dismissing his action alleging federal and state law claims related
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The parties consented to proceed before a magistrate judge. See 28
U.S.C. § 636(c).
***
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
to a foreclosure and a third-party borrower’s mortgage loan. We have jurisdiction
under 28 U.S.C. § 1291. We review de novo a dismissal for failure to state a claim
under Fed. R. Civ. P. 12(b)(6), and we may affirm on an basis supported by the
record. Thompson v. Paul, 547 F.3d 1055, 1058-59 (9th Cir. 2008). We affirm.
Dismissal of Shetty’s Fair Debt Collection Practices Act (“FDCPA”) claim
was proper because Shetty failed to allege facts sufficient to “state a claim that is
plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009) (explaining
that “[a] pleading that offers labels and conclusions” or “naked assertions devoid
of further factual enhancement” is insufficient to survive a motion to dismiss
(citation and internal quotation marks omitted)).
The district court did not abuse its discretion by declining to exercise
supplemental jurisdiction over the state law claims after dismissing Shetty’s
FDCPA claim. See 28 U.S.C. § 1367(c)(3) (permitting district court to decline
supplemental jurisdiction if it has “dismissed all claims over which it has original
jurisdiction”); Costanich v. Dep’t of Soc. & Health Servs., 627 F.3d 1101, 1107
(9th Cir. 2010) (standard of review).
We do not consider matters not specifically and distinctly raised and argued
in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
2 17-16810
Wells Fargo Bank, N.A.’s request for judicial notice (Docket Entry No. 19)
is denied as unnecessary.
AFFIRMED.
3 17-16810
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Case: 19-40682 Document: 00515416737 Page: 1 Date Filed: 05/14/2020
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 19-40682 May 14, 2020
Summary Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
KENDRICK WAYNE THOMPSON,
Defendant-Appellant
----------------------------------------------------------------------------------------
Consolidated with No.19-40684
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
KENDRICK WAYNE THOMPSON, also known as Ken Ken,
Defendant-Appellant
Appeals from the United States District Court
for the Eastern District of Texas
USDC No. 4:17-CR-165-1
USDC No. 4:18-CR-93-2
Case: 19-40682 Document: 00515416737 Page: 2 Date Filed: 05/14/2020
No. 19-40682
c/w No. 19-40684
Before JOLLY, JONES, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
Kendrick Wayne Thompson appeals the sentence imposed following his
guilty-plea convictions for conspiracy to possess with intent to distribute more
than one kilogram of heroin and conspiracy to possess with intent to distribute
more than 400 grams of heroin. He argues that the district court erred in
denying him credit for acceptance of responsibility. We affirm.
Section 3E1.1 of the United States Sentencing Guidelines provides for
either a two or three-level adjustment in a defendant’s offense level where he
has “clearly demonstrat[ed]” acceptance of responsibility for the offense.
United States v. Juarez-Duarte, 513 F.3d 204, 211 (5th Cir. 2008). We will
affirm a district court’s refusal to award credit under § 3E1.1 unless the court’s
decision is “without foundation,” which is a standard of review more deferential
than the clear error standard. Id. (internal quotation marks and citation
omitted).
The record reveals that while in federal custody pursuant to the
indictment charging him with conspiracy to possess with intent to distribute
more than one kilogram of heroin, Thompson became involved in the drug-
trafficking activities that formed the basis of the second indictment charging
him with conspiracy to possess with intent to distribute more than 400 grams
of heroin. Thompson’s sole contention on appeal is that, despite continuing the
same pattern of illicit activity while in custody, he is entitled to credit for
acceptance of responsibility because he did not deny any facts or put the
Government to its burden of proof and six weeks after his arraignment in the
* 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.
2
Case: 19-40682 Document: 00515416737 Page: 3 Date Filed: 05/14/2020
No. 19-40682
c/w No. 19-40684
second case, he pleaded guilty in open court with a written factual basis for the
plea.
His guilty plea, however, does not entitle him to credit for acceptance of
responsibility “as a matter of right.” See U.S.S.G. § 3E1.1, comment. (n.3);
United States v. Patino-Cardenas, 85 F .3d 1133, 1135 (5th Cir. 1996). While
a defendant’s entry of a guilty plea prior to trial in conjunction with the
truthful admission of any relevant conduct constitutes “significant evidence of
acceptance of responsibility,” such evidence may be outweighed by conduct that
is inconsistent with acceptance. § 3E1.1, comment. (n.3). The district court
found that Thompson’s guilty plea to the second-charged offense and his
admission to the elements thereof was overshadowed by his engaging in a
second, near-identical drug trafficking offense while in custody for the first.
Because Thompson engaged in conduct inconsistent with acceptance of
responsibility, the district court’s refusal to award him any credit was not
without foundation. See § 3E1.1, comment. (n.3); Juarez-Duarte, 513 F.3d at
211.
AFFIRMED.
3
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-7527
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
MARK E. PHILLIPS, a/k/a Mark L. Aaron,
Defendant – Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. J. Frederick Motz, Senior District
Judge. (1:05-cr-00165-JFM-1)
Submitted: February 10, 2011 Decided: February 23, 2011
Before WILKINSON and DAVIS, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Mark E. Phillips, Appellant Pro Se. Richard Charles Kay, Allen
F. Loucks, Paul M. Tiao, Assistant United States Attorneys,
Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Mark E. Phillips seeks to appeal the district court’s
order denying his motion to recuse and denying his motion for
assignment of the chief judge or another district court judge to
adjudicate recusal. This court may exercise jurisdiction only
over final orders, 28 U.S.C. § 1291 (2006), and certain
interlocutory and collateral orders, 28 U.S.C. § 1292 (2006);
Fed. R. Civ. P. 54(b); Cohen v. Beneficial Indus. Loan Corp.,
337 U.S. 541 (1949). The order Phillips seeks to appeal is
neither a final order nor an appealable interlocutory or
collateral order. Accordingly, we dismiss the appeal for lack
of jurisdiction. 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.
DISMISSED
2
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625 P.2d 1192 (1980)
95 N.M. 675
Cleon F. RICHARDS and Renee Richards, Plaintiffs-Appellants,
v.
The UPJOHN COMPANY, a Foreign Corporation, Defendant-Appellee.
No. 4064.
Court of Appeals of New Mexico.
April 29, 1980.
Certiorari Denied May 22, 1980.
*1193 Bennett B. Traub and Mark P. Robinson, Cummins, White, Robinson & Robinson, and Richard C. Civerolo and Kathleen Lebeck, Civerolo, Hansen & Wolf, P.A., Albuquerque, for plaintiffs-appellants.
Ranne B. Miller and Kenneth R. Brandt, Miller, Stratvert, Torgerson & Brandt, Albuquerque, for defendant-appellee.
OPINION
LOPEZ, Judge.
The court below granted summary judgment for Defendant drug company (Upjohn) in a suit arising out of the personal injuries suffered by Plaintiff Cleon Richards (hereafter "Plaintiff" or "Richards"), which allegedly resulted from medical treatment with the drug neomycin sulfate, manufactured by Upjohn. Richards and his wife sued on theories of breach of warranties, strict products liability, and negligent misrepresentation. We reverse.
*1194 Three issues are raised on appeal: 1. whether summary judgment was proper; 2. whether the affidavit of Dr. Hewitt, submitted by Plaintiff at the summary judgment hearing, should have been considered by the court; and 3. whether the Defendant should be required to reveal the volume of and income from its sales of neomycin sulfate as requested in Plaintiffs' interrogatory No. 82.
On October 17, 1973, Richards was admitted by Presbyterian Hospital in Albuquerque for surgical treatment of a gunshot wound in his left leg which was not healing properly. Dr. Weaver, in consultation with Dr. Boyd, performed surgery on the wound, after which he ordered the wound irrigated with an antibiotic solution of neomycin sulfate, Polymixin B, and Bacitracin. This was administered by a closed wound suction irrigation system during a three day period. Following this treatment, Plaintiff suffered a severe and permanent loss of hearing in both ears, which eventually resulted in the termination of his employment as an Air Traffic Flight Control Specialist with the Federal Aviation Authority. The neomycin sulfate used in the irrigation solution had been manufactured by Upjohn.
Upjohn had published warnings in the Physicians' Desk Reference (PDR) and in the package inserts of the neomycin sulfate it sold that the drug was ototoxic (toxic to the nerve controlling hearing) and nephrotoxic (toxic to the kidneys), and could cause deafness. The 1971 PDR indicated that the drug could be used topically, and stated that "[n]eomycin sulfate * * * may be used effectively as wet dressings, packs, or irrigations in secondarily infected wounds * *." The warning stated that "[i]n patients with impaired kidney function or with prerenal azotemia, systemic use of neomycin sulfate may result in irreversible deafness * * *." The literature also advised that certain precautions be taken when the drug was used repeatedly for irrigation of extensive wounds. The information was generally scattered among different paragraphs in small print on two pages of the PDR. During and after 1971, Upjohn withdrew its recommendations for any uses other than intramuscular, apparently after the National Academy of Scientists-National Research Council and the Food and Drug Administration had determined the drug was probably not effective for topical use and/or as an irrigation solution for open wounds. The 1972 and 1973 PDR's indicated the drug was for intramuscular use only. Neomycin sulfate had been on the market, and used topically for many years prior to 1971. Doctors Weaver and Boyd, who were supervising Plaintiff's care, did not consult the current PDR or any other literature before ordering Plaintiff's treatment.
All other defendants in the suit except Upjohn, namely Doctors Weaver and Boyd, Presbyterian Hospital, and Albuquerque Orthopedic Associates, settled with Plaintiffs on the fifth day of trial, September 28, 1978. A mistrial was then declared by the court, and the matter was not submitted to the jury. Defendant Upjohn filed a motion for summary judgment, which was granted on February 19, 1979.
I. Summary Judgment.
Summary judgment is proper only if there is no genuine issue of material fact in dispute and the moving party is entitled to judgment as a matter of law. N.M.R.Civ.P. 56(c), N.M.S.A. 1978. Upjohn contends that as a matter of law its drug is not the cause of Plaintiff's deafness. In essence, it argues: 1) Richards offered no medical testimony that neomycin sulfate caused his deafness and so failed to establish that absorption of the drug was the actual cause of the deafness; 2) even if the drug caused the injury, no evidence was presented that the warnings contained in the PDR's and package inserts were inadequate; and 3) even if the warnings were inadequate, Dr. Weaver's decision to use the drug in an irrigation solution without first consulting the PDR was an independent intervening cause relieving Upjohn of liability.
Summary judgment is a drastic remedy to be used with great caution. Pharmaseal Laboratories, Inc. v. Goffe, 90 N.M. 753, 568 P.2d 589 (1977). The party opposing *1195 the motion for summary judgment is to be given the benefit of all reasonable doubts in determining whether a genuine issue of fact exists. Goodman v. Brock, 83 N.M. 789, 498 P.2d 676 (1972). All reasonable inferences must be construed in favor of the party opposing summary judgment. Smith v. Klebanoff, 84 N.M. 50, 499 P.2d 368 (Ct.App.), cert. denied, 84 N.M. 37, 499 P.2d 355 (1972). With these directives in mind, we consider the evidence before us.
Actual cause.
It is undisputed that neomycin sulfate can cause deafness. Upjohn has publicly acknowledged this fact in the information about the drug which it published in the PDR, in 1971, '72, and '73. The PDR's warn that significant amounts of the drug may be absorbed when used repeatedly for irrigation and that high blood levels increase the risk of ototoxicity. The deposition of medical expert Dr. Rosenbaum, contains testimony that the type of surgery performed on Richards, excision of a tract, exposes fresh muscle tissue and leads to rapid absorption of solutions applied to the area. Although evidence was presented to the contrary, Richards testified he had no problems with his hearing prior to November 1973. In support of this, he produced two audiograms taken at the request of his employer, one in August 1973, before surgery and one, in April 1974, after the operation. These audiograms show a dramatic loss of hearing in this period. Three of Richards' supervisors also indicated that they were unaware that Richards had any hearing problem prior to his surgery in the fall of 1973.
Causation may be established by circumstantial evidence. Reid v. Brown, 56 N.M. 65, 240 P.2d 213 (1952). In Carter Farms Co. v. Hoffman-Laroche, Inc., 83 N.M. 383, 492 P.2d 1000 (Ct.App. 1971), we held that the defendant drug company was not entitled to a directed verdict when there was circumstantial evidence that injection of a drug it manufactured caused the death of plaintiff's lambs which had been healthy before the injection. Woods v. Brumlop, 71 N.M. 221, 377 P.2d 520 (1962), cited by Defendant as requiring expert medical testimony to establish causation, is not helpful to Defendant. That case is distinguishable on two grounds. 1) It alleged medical malpractice, not strict products liability.
[I]n a tort strict liability case * * * reasonable inferences from the circumstances may be drawn.
2 Frumer, Products Liability § 16A[A][e][ii] (1979).
2) There was no testimony other than that of the plaintiff herself in Woods that the treatment complained of could cause the type of injury she suffered. In the instant case, it is undisputed that neomycin sulfate can cause deafness. The circumstantial evidence produced by Plaintiff is sufficient to raise the issue of actual cause.
Proximate cause is a factual issue, unless all facts regarding causation are undisputed or, as a matter of law, there is an independent intervening cause. Harless v. Ewing, 80 N.M. 149, 452 P.2d 483 (Ct.App. 1969). Consequently, unless, as a matter of law, 1) Upjohn's warnings are adequate, or 2) Dr. Weaver's failure to consult the appropriate literature before prescribing the neomycin sulfate constitutes an independent intervening cause, a genuine issue of material fact concerning actual or proximate cause exists and that precludes summary judgment.
Adequacy of warnings.
Even if neomycin sulfate were the actual cause of Richards' deafness, Upjohn is not liable unless its warnings about the danger of the drug were inadequate. A drug manufacturer has a duty to warn the medical profession of the dangers of its drugs which it knew or should have known to exist. Baker v. St. Agnes Hospital, [1978-1979 Transfer Binder] Prod.Liab.Rep. (CCH) ¶ 8563 (N.Y. App. Div. Oct. 29, 1979); Tinnerholm v. Parke Davis & Co., 285 F. Supp. 432 (S.D.N.Y. 1968); see generally, 72 C.J.S.Supp. Products Liability § 26(a) (1975). The manufacturer is liable to a patient who suffers injuries from a drug as *1196 a result of the manufacturer's breach of its duty to warn the doctor of the dangers of the drug. McEwen v. Ortho Pharmaceutical Corp., 270 Or. 375, 528 P.2d 522 (1974). The breach of the duty by a drug manufacturer to provide adequate warnings renders the drug unreasonably dangerous, and the drug is then a defective product for purposes of strict products liability. First National Bank in Albuquerque v. Nor-Am Agricultural Products, Inc., 88 N.M. 74, 537 P.2d 682 (Ct.App. 1975). See, Restatement (Second) of Torts § 402A, Comment h (1965). Five relevant standards concerning the adequacy of warnings about a dangerous drug are enumerated in Nor-Am: 1. the warning must adequately indicate the scope of the danger; 2. the warning must reasonably communicate the extent or seriousness of the harm that could result from misuse of the drug; 3. the physical aspects of the warning must be adequate to alert a reasonably prudent person to the danger; 4. a simple directive warning may be inadequate when it fails to indicate the consequences that might result from failure to follow it and, most importantly, in the context of the present case; 5. the means to convey the warning must be adequate. In other words, the drug manufacturer must bring the warning home to the doctor. McEwen; see, Baker. The drug company's duty is to use reasonable care to warn under all the circumstances. Love v. Wolf, 226 Cal. App.2d 378, 38 Cal. Rptr. 183 (1964). It must make reasonable efforts to warn. Sterling Drug, Inc. v. Yarrow, 408 F.2d 978 (8th Cir.1969). What is reasonable in part depends upon the magnitude of the risk involved. Restatement supra, § 388, Comment n.
Although Upjohn's literature in the PDR's of 1971, '72, and '73 contained warnings concerning the use of neomycin sulfate, Richards has presented evidence that these warnings were inadequate. Neomycin sulfate had been on the market for over ten years before the recommendation to use it topically was withdrawn. There is evidence that the drug eventually was classified by the National Academy of Scientist-National Research Council and by the Food and Drug Administration as being probably not effective for topical use and/or as an irrigation solution applied to open wounds. There is also evidence that the warnings which were given by Upjohn were unclear, and that they did not effectively communicate to physicians the dangers from using the drug to irrigate wounds. In these circumstances, there is a genuine issue as to whether Upjohn's warnings were adequate.
It is improper for a court on summary judgment proceedings to decide that the warnings of a manufacturer of a drug that is dangerous if misused are adequate as a matter of law if evidence of inadequacy is presented. Nor-Am; see, Michael v. Warner/Chilcott, 91 N.M. 651, 579 P.2d 183 (Ct. App.), cert. denied sub nom. Robbins v. Michael, 91 N.M. 610, 577 P.2d 1256 (1978). The adequacy of the warnings is a question of fact to be determined by a jury. Nor-Am. Unless, as a matter of law, the acts of Doctors Weaver and Boyd in failing to consult the current PDR and in using the drug in a manner no longer recommended by Upjohn constitute an independent intervening cause, summary judgment should not have been granted.
Independent intervening cause.
The definition of an independent intervening cause is set out in Thompson v. Anderman, 59 N.M. 400, 411-12, 285 P.2d 507, 514 (1955) where the New Mexico Supreme Court wrote:
The independent intervening cause that will prevent a recovery of the act or omission of a wrongdoer must be a cause which interrupts the natural sequence of events, turns aside their cause, prevents the natural and probable results of the original act or omission, and produces a different result, that could not have been reasonably foreseen. (Emphasis added.)
A doctor's negligence is not, as a matter of law, an intervening cause exonerating the drug company, if the doctor's act is reasonably foreseeable. Stevens v. Parke, Davis & Co., 9 Cal.3d 51, 507 P.2d 653, 107 Cal. Rptr. 45 (1973). The issue, *1197 then is whether Dr. Weaver's use of neomycin sulfate in an irrigation solution was reasonably foreseeable. Richards presented evidence that it was. The 1971 PDR indicated the drug could be used topically in irrigating wounds. While the recommendation for topical use was withdrawn in two of the 1971 PDR supplements, there is no doubt that, at one time not too distant from the incident in this suit, Upjohn recommended its product to physicians as being effective for the very use to which Dr. Weaver put it. The deposition of Dr. Lawrence, a former employee of Upjohn, stated that the continued use by physicians after 1971 of neomycin sulfate as an irrigating solution was forseeable and foreseen, by Upjohn. The issue of foreseeability, and thus the question of whether the doctor's use of the drug constituted an independent intervening cause, should go to the jury. Id. In Bristol-Myers Co. v. Gonzales, 548 S.W.2d 416 (Tex.Civ.App. 1976), rev'd on other grounds, 561 S.W.2d 801 (1978), where the plaintiff also became deaf after a wound was irrigated with a solution containing neomycin sulfate the court said that there was sufficient evidence that the drug company's failure (in this case Bristol-Meyer's, not Upjohn's) to warn adequately was the cause of plaintiff's injury. The treating physician had testified he didn't know that continuous irrigation was an improper use and he believed absorption was minimal from irrigation. In the instant case, it is clear from reading Dr. Weaver's deposition that he did not know that continuous irrigation was an improper use; and Dr. Boyd revealed his belief that absorption was minimal when he gave that as the reason that neomycin sulfate could not have been the cause of Richards' deafness.
Upjohn argues that the negligence of Doctors Weaver and Boyd in failing to read the most recent PDRs concerning neomycin sulfate insulates Upjohn from liability. Although some courts have held that the inadequacy of a drug company's warnings cannot be the proximate cause of the patient's injury when the physician failed to consult the literature or observe the warnings concerning the drug he used, [Oppenheimer v. Sterling Drug, Inc., 7 Ohio App.2d 103, 219 N.E.2d 54 (1964); Douglas v. Bussabarger, 73 Wash.2d 476, 438 P.2d 829 (1968)], the better reasoned cases do not reach this result. Stevens; Baker; McEwen; Bristol-Meyers; Sterling Drug. A reasonable person need not conclude from the fact that a doctor was unaware of the drug company's warnings that, if the company had chosen to employ other more effective means to communicate the warnings, the doctor still would have remained unaware of the dangers. Baker; see, McEwen.
The issue, is still the foreseeability of the doctors' actions. If it was foreseeable that doctors might not consult the PDR or package inserts before using neomycin sulfate in an irrigating solution, a doctor's failure to do so does not constitute an independent intervening cause relieving a drug company, whose warnings were inadequate, from liability. This is consistent with the Restatement, supra § 449 which reads:
If the likelihood that a third person may act in a particular manner is the hazard or one of the hazards which makes the actor negligent, such an act whether innocent, negligent, intentionally tortious, or criminal does not prevent the actor from being liable for harm caused thereby.
Dr. Weaver testified that it is not standard practice in the medical profession to re-read the PDR every time a drug is given, particularly for drugs which have been on the market for a long period of time. The evidence shows neomycin sulfate had been used by physicians for over ten years before this incident.
Defendant cites Mulder v. Parke Davis & Co., 288 Minn. 332, 181 N.W.2d 882 (1970) for the proposition that a drug company is not liable for failure to communicate a warning if the doctor is fully aware of the facts which are the subject of the warning. The case is not apposite, however. There the physician testified he was aware of the dangers of the drug and of the dosage recommended by the drug company, but simply chose not to be governed by that *1198 information. In the case before us, the testimonies of both Doctors Weaver and Boyd indicate that they were not aware of the dangers associated with the topical use of neomycin sulfate or that such usage was no longer recommended. The extent of their knowledge should be determined by a jury, as it is a factual question.
There is evidence that Doctor Weaver's failure to consult the PDR and the resulting misuse of the drug was foreseeable. This evidence precluded summary judgment. The court should not have decided, as apparently it did, that, as a matter of law, Dr. Weaver's misuse of the drug was an independent intervening cause.
II. The late affidavit.
Having already decided that summary judgment was improper, we need not discuss the court's failure to admit the affidavit of Dr. Hewitt in opposition to the motion for summary judgment, which was submitted at the hearing on that motion. However, we believe it helpful to the lower courts if we briefly discuss this issue. We reiterate our position in Cordova v. City of Albuquerque, 86 N.M. 697, 526 P.2d 1290 (Ct.App. 1974) that the courts do have discretion to allow the filing of late affidavits under N.M.R.Civ.P. 6(d), N.M.S.A. 1978. This is particularly true in summary judgment proceedings, since it is important for the court to consider as much information as possible before concluding that there are no material facts in dispute. See, Pharmaseal Laboratories. If the court does not have sufficient factual information before it on which to reasonably base a judgment, it cannot grant summary judgment. Toulouse v. Armendariz, 74 N.M. 507, 395 P.2d 231 (1964). Consequently, an affidavit submitted the day of the summary judgment hearing should be allowed, unless the other party needs time to rebut the information contained in the affidavit, and there is some reason that the hearing cannot be postponed.
III. Interrogatory 82.
As with the affidavit, we need not discuss this issue, but we choose to do so to avoid future litigation. Plaintiffs interrogatory 82 requested information from Defendant concerning the volume and dollar amount of its sales of neomycin sulfate (sold under Upjohn's tradename of Mycifradin Sulfate). Upjohn objected to the interrogatory, and the court sustained the objection. According to N.M.R.Civ.P. 33, N.M.S.A. 1978, interrogatories may relate to any matters which can be inquired into under Rule 26(b). N.M.R.Civ.P. 26(b), N.M.S.A. 1978, states:
[T]he deponent may be examined regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action * * * * It is not ground for objection that the testimony will be inadmissible at the trial, if the testimony sought appears reasonably calculated to lead to the discovery of admissible evidence. [Emphasis added.]
The information sought was relevant to Plaintiff's case and it was not privileged information. It was relevant to show that the drug was being sold in containers too large for intramuscular use which was the only use recommended by Upjohn in 1973 at the time of Plaintiff's injury, and that, consequently, Upjohn knew or should have known that physicians were still using the drug topically and/or in irrigation solutions such as the one used on Plaintiff. The information sought was not privileged. Ordinarily, financial information is not privileged, nor is it a trade secret. See, Caldwell-Clements, Inc. v. McGraw-Hill Publishing Co., 12 F.R.D. 531 (S.D.N.Y., 1952); see, generally, Love. Rule 26(b) is a liberal discovery rule. Fort v. Neal, 79 N.M. 479, 444 P.2d 990 (1968). Failure to allow discovery of information which the rule permits to be discovered is an abuse of discretion.
The judgment of the lower court is reversed, and the cause is remanded for proceedings consistent with this opinion.
IT IS SO ORDERED.
SUTIN and ANDREWS, JJ., specially concur.
*1199 SUTIN, Judge (specially concurring).
I specially concur.
To grant summary judgment under the facts and circumstances of this case, extensive and circumfluent in scope and description, is a sad reflection of the judicial process. To my knowledge, summary judgment has never been upheld in a case of such complexity. This is a matter of common knowledge. During extensive oral arguments by competent attorneys, the court said with reference to summary judgments:
Why not eliminate the whole rule. Every time I grant one, I get reversed.
Despite the fact that we have repeatedly said that summary judgment is a drastic remedy, district courts, for unknown reasons, at the conclusion of excellent oral arguments, say:
I'm going to grant the motion. Thank you.
District Judges and lawyers constantly avoid the rules set forth in Goodman v. Brock, 83 N.M. 789, 498 P.2d 676 (1972). Goodman is never mentioned in oral argument and oral argument never follows the rules. (1) The burden is on defendant to make a prima facie showing that it is entitled to summary judgment; i.e., such evidence as is sufficient in law to raise a presumption of fact or establish the fact in question unless rebutted. (2) If done, the burden then shifts to plaintiff to show there was a genuine issue of material fact. We no longer speak in terms of the "slightest doubt" as to the facts to deny summary judgment. Summary judgment should be denied if there are "reasonable doubts" in the court's mind. Plaintiff is to be given the benefit of all reasonable doubts in determining whether a genuine issue of material fact exists. A substantial dispute as to a material fact forecloses summary judgment.
Goodman said:
Unquestionably the burden was defendants to show an absence of a genuine issue of fact, or that they were entitled as a matter of law for some other reason to a summary judgment in their favor. [Emphasis added.] [Id. 792, 498 P.2d 676.]
Plaintiffs mistakenly argued that defendant failed to establish an independent intervening cause as a matter of law. This was not defendant's position.
Defendant argued at the motion for summary judgment that plaintiffs' claims boiled down to whether defendant failed to adequately warn prescribing physicians and failed to furnish prescribing information to physicians relating to the use of Neomycin, a drug; that based upon the testimony of Dr. Weaver at trial, the warning in effect at the time that Dr. Weaver used the drugs, and the indication for use, were adequate; that the actual language of the warning is immaterial because Dr. Weaver didn't read it, didn't rely upon it, and didn't refer to it in any way in his decision to prescribe the drug.
If I understand defendant's position correctly, the negligence of defendant, if any, by way of its warning, was not the proximate cause of plaintiff's injuries.
From the oral argument and the judgment entered in favor of defendant, summary judgment was granted because there was no genuine issue of material fact, nor "as a matter of law for some other reason," to-wit: an independent intervening cause.
Defendant answered in denial with the following pertinent affirmative defenses stated briefly:
(1) plaintiff's injuries resulted from an independent intervening cause, and
(2) the negligence of other persons.
Defendant did not seek summary judgment on its affirmative defense that the conduct of Dr. Weaver was an independent intervening cause.
The first point in defendant's Answer Brief is:
DEFENDANT AT NO TIME ARGUED THAT IT WAS INSULATED FROM LIABILITY BY AN INDEPENDENT INTERVENING CAUSE. [Emphasis added.]
At the end of a long "Introduction" the defendant said:
*1200 * * * Defendant Upjohn moved for summary judgment on the grounds that there was no genuine issues of fact as to the cause of the injury, as to the adequacy of the warnings and as to its position that the adequacy or inadequacy of the warnings and precautions * * * had no effect on the decision to prescribe neomycin * *. [Emphasis added.]
I read plaintiffs' second amended complaint free from any such claims expressed by defendant. Plaintiffs charged:
* * * Defendants knew or should have known that said drugs would very likely be prescribed by physicians * * * to patients such as Plaintiff without inspection for defects in same.
* * * * * *
Defendants * * * expressly and impliedly, warranted to Plaintiff that the neomycin sulfate and Ploymixin B supplied for the use of Plaintiff as above-stated were free of contamination, were safe and were reasonably fit for the intended purpose for which they were used.
* * * * * *
We have not been advised by the court of the basis upon which summary judgment was granted. Defendant's motion for summary judgment stated that "there is here present no genuine issue of material fact" or in the alternative, "to enter partial summary judgment as to each of the claims asserted." The court found "that there remains no genuine issue of material fact" and entered summary judgment.
The question for decision is:
Was there no genuine issue as to any material fact within the theory of plaintiffs' claim?
In a discussion of "The Law Governing Summary Judgment," defendant said:
[A] motion for summary judgment requires that the Court go beyond the allegations of the pleadings to determine whether a claim can in reality be supported on the grounds alleged and whether a material factual controversy exists as to those allegations. Pederson v. Lothman, 63 N.M. 364, 320 P.2d 378, 1958. [Emphasis added.]
Pederson said this:
* * * It must be borne in mind that a summary judgment amounts to more than a motion to dismiss for failure to state a claim upon which relief may be granted; it is by its own terms a judgment. The court goes beyond the allegations of the complaint and determines whether a claim can in reality be supported on the grounds alleged, and whether a controversy as to an issue of fact exists as to the statements of the complaint. [Emphasis added.] [Id. 369, 320 P.2d 378.]
Defendant has misinterpreted Pederson. What the court said was that if the defendant produces by way of deposition or affidavits that the allegations of the complaint are overcome by facts, plaintiff cannot stubbornly rely upon the allegations of the complaint to create an issue of fact. The plaintiff must show that evidence is available which would justify a trial on the issue alleged. The "bare contention" of the complaint is not a showing of "evidence available." Under these circumstances, a plaintiff does not raise a factual issue on the allegations made. Rekart v. Safeway Stores, Inc., 81 N.M. 491, 468 P.2d 892 (Ct. App. 1970).
So, in the instant case, where plaintiff claims defendant knew or should have known that physicians would prescribe the drugs to patients without an inspection for defects and defendant expressly and impliedly warranted to plaintiff that the drugs were safe, these are the material issues of fact. Defendant cannot leave the theory of liability stated and wander into questions of warnings given, especially so, when the doctor has not read the warnings.
Defendant did not make a prima facie showing as required under the Goodman rule.
Summary judgment, as practiced in the district courts, has become an escape route instead of a remedy. To make it a remedy, Rule 56 of the Rules of Civil Procedure entitled "Summary Judgment" must be amended or expanded to state:
*1201 (1) That the motion must state specifically the material fact or facts upon which there is no genuine issue as a basis upon which summary judgment is sought.
(2) A hearing shall be held upon this fact or facts raised.
(3) The district court must make findings or explicitly state the reasons why summary judgment was granted or denied.
Otherwise, the purpose of the rule will be defeated. Its purpose is to hasten the administration of justice, expedite litigation by avoiding needless trials and to enable one to obtain judgment promptly by preventing frivolous defenses for purpose of delay. Agnew v. Libby, 53 N.M. 56, 201 P.2d 775 (1949). Since 1949, we have been flooded with erroneous summary judgments that have delayed trials, and perhaps, increased the cost and expenses, changed the status of parties, caused the loss of witnesses and destroyed the fabric woven around the Rules of Procedure to grant the parties a fair trial.
In 1913, sixty-seven years ago, before the faculty and students of Yale University, the Honorable John W. Goff said:
To-day our profession is almost a storm center, and I include in our profession the judiciary and the bar. In the popular arena of discussion grave questions have arisen which to many appear revolutionary and which, if carried into popular action by law, would certainly be revolutionary according to our system * * *.
* * * * * *
The delay of the law particularly in the administration of justice has evoked from the President of the United States language so scathing that it would be difficult in polite words to excel it in intensity.
Goff, "The Lawyer," 22 Yale L.J. 433 (1913).
"Polite words" cannot describe the inexcusable delay in litigation today. The adoption of the Rules of Procedure was to be the forerunner of the solution to this urgent situation. Summary judgment has not played its part.
ANDREWS, Judge (specially concurring).
I specially concur.
I agree with Judge Lopez that the summary judgment granted in this case should be reversed, but I do not agree with his identification of the issues to be dealt with on remand.
In my view, Oppenheimer v. Sterling Drug, Inc., 7 Ohio App.2d 103, 219 N.E.2d 54 (1964), and Douglas v. Bussabarger, 73 Wash.2d 476, 438 P.2d 829 (1968), are correct; there can be no question of negligence on the part of a drug company for failure to warn of dangerous side effects where the company has supplied the plaintiff's physician with adequate warning but the physician has failed to consult the available literature. In such a case, the physician is an independent intervening cause as a matter of law, and the behavior of the drug company cannot be the proximate cause of any injury suffered by the patient.
However, it appears that there is a substantial question as to whether the warning which was published by Upjohn in the Physician's Desk Reference was sufficient to apprise the doctors of the danger of using the drug in the way they did. If the warning in the PDR was inadequate, the doctors' failure to consult the PDR could not have been an intervening cause of the injury.
Thus, I would limit the basis on which the issue of independent intervening cause is presented to the jury; they should be instructed that they must find Upjohn not liable if they determine that the warning placed by Upjohn in the PDR was adequate. If the warning is found to have been inadequate, the jury must further determine that the administration of neomycin sulfate was the actual cause of plaintiff's injury before Upjohn may be held liable.
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217 F.3d 595 (8th Cir. 2000)
UNITED STATES OF AMERICA, APPELLEE,v.JAMES ZANTRESE AUSTIN, ALSO KNOWN AS DIRTY, ALSO KNOWN AS LITTLE JAMES, APPELLANT.
No. 99-3887
UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
Submitted: May 9, 2000Filed: June 28, 2000
Appeal from the United States District Court for the Eastern District of Arkansas.
Before Bowman, Loken, and Bye, Circuit Judges.
Bowman, Circuit Judge.
1
James Austin pleaded guilty to drug charges pursuant to an agreement with the government. At his sentencing hearing, the District Court pronounced that it would apply a two-level enhancement for Austin's leadership role in a criminal enterprise called the Oak Street Posse. See U.S.S.G. § 3B1.1. After the hearing, but before the District Court filed its formal judgment and sentence, the government filed a motion. Styled "Motion for Reconsideration of Sentence," the document asked the Court to increase the § 3B1.1 enhancement from two to four levels. The District Court nevertheless entered a sentence and judgment consistent with its oral pronouncement. The government subsequently filed a "Supplemental Motion for Reconsideration and for Hearing," also seeking a change in the sentence. Austin filed a response including a motion seeking imposition of no § 3B1.1 enhancement and also requesting a hearing. The District Court, fifteen days after entry of the formal sentence and judgment, ruled on the motions by entering an order imposing a recalculated sentence. The amended sentence, based on a change in the § 3B1.1 enhancement from two to three levels, extended Austin's term of incarceration by 16 months, from 172 to 188.
2
Austin then filed his notice of appeal, which specifies that he appeals both his original and revised sentences. For the reasons discussed below, we hold that we do not have jurisdiction over his untimely appeal of his original sentence. His appeal from the revised sentence, however, is timely, and we conclude that the District Court was without jurisdiction to alter Austin's sentence. We therefore vacate the order purporting to do so, and remand the case for reimposition of the original sentence.
3
A timely notice of appeal is mandatory and jurisdictional. See United States v. Petty, 82 F.3d 809, 810 (8th Cir. 1996) (per curiam). We raise the issue sua sponte even if the parties appear to concede jurisdiction. See United States v. Duke, 50 F.3d 571, 574 (8th Cir.), cert. denied, 516 U.S. 885 (1995). The federal rules accord Austin ten days from "the entry of either the judgment or the order being appealed," Fed. R. App. P. 4(b)(1)(A)(i), to file a notice of appeal. Austin's notice, filed nearly a month after the original sentence and judgment was entered, is patently late as to that judgment.
4
Austin apparently believed that the period for filing a notice of appeal did not begin until the District Court ruled on the parties' post-sentencing motions. Cf. United States v. Ibarra, 502 U.S. 1 (1991) (per curiam) (holding that motion to reconsider order suppressing evidence made order non-final and thus appeal after reconsideration was timely). While the federal rules provide for a renewed appeals period after a ruling on some post-judgment motions, see Fed. R. App. P. 4(b)(3)(A), a motion for "reconsideration" is not listed among them. We therefore must determine whether Austin's appeal is timely for some other reason.
5
We begin by examining the motions for reconsideration. The parties did not cite any federal rule or any other authority suggesting the District Court even had the power to amend Austin's sentence. A federal statute actually prohibits such amendment. See 18 U.S.C. § 3582(c) (1994 & Supp. IV 1998) ("The court may not modify a term of imprisonment once it has been imposed . . . ."). While the statute contains exceptions, only one is even arguably applicable here: "[T]he court may modify an imposed term of imprisonment to the extent otherwise expressly permitted by . . . Rule 35 of the Federal Rules of Criminal Procedure . . . ." Id. § 3582(c)(1)(B).
6
Rule 35, in turn, only has one potentially applicable provision, which allows that "[t]he court, acting within 7 days after the imposition of sentence, may correct a sentence that was imposed as a result of arithmetical, technical, or other clear error." Fed. R. Crim. P. 35(c). Thus, more than seven days after the imposition of Austin's sentence, the District Court had no jurisdiction to alter it, even if the sentence was legally erroneous. See United States v. Abreu-Cabrera, 64 F.3d 67, 73 (2nd Cir. 1995) (collecting cases); see also United States v. Lopez, 26 F.3d 512, 515-18 (5th Cir. 1994) (per curiam) (explaining developments leading to promulgation of Rule 35(c) as codification of and limit on courts' inherent power to reconsider sentences).
7
While a timely Rule 35(c) motion arguably makes the original sentence non-final, any justification for a renewed appeal period could not extend past the District Court's seven-day authority to grant a Rule 35(c) motion. A closer case would present several nice questions, such as whether the oral pronouncement or formal entry of sentence started the seven-day period, see Andrew P. Rittenberg, Comment, "Imposing" a Sentence Under Rule 35(c), 65 U. Chi. L. Rev. 285, 295-303 (1998) (discussing circuit split on this issue), or whether a motion under Rule 35(c) makes the original sentence non-final at all, see United States v. Barraan-Mendoza, 174 F.3d 1024, 1031-1032 (9th Cir. 1999) (Graber, J., dissenting) (arguing that it does not). But even if we applied the most favorable rule for Austin, that the period for filing a notice of appeal was extended by seven days beginning upon formal entry of judgment, see United States v. Morillo, 8 F.3d 864, 869 (1st Cir. 1993), Austin's notice of appeal would still be too late. To reach this conclusion, we do consider and reject the view of United States v. Corey, 999 F.2d 493, 494-96 (10th Cir.), cert. denied, 510 U.S. 1001 (1993), that a timely Rule 35(c) motion creates a new ten-day appeals period beginning whenever the court acts on the motion. The text of Rule 35(c) plainly commands the court to act within seven days, and thus after seven days the motion is effectively denied and any doubt concerning the finality of the sentence is ended. See Morillo, 8 F.3d at 869; see also United States v. Carmouche, 138 F.3d 1014, 1022-23 (5th Cir. 1998) (Duhe, J., specially concurring) (suggesting that Fifth Circuit en banc abandon rule beginning appeals period whenever court decides Rule 35(c) motion). We need not, and do not, decide more than to reject Corey.
8
Austin's appeal from his original sentence must be dismissed as untimely. Normally, when a criminal defendant's notice of appeal is fewer than thirty days late, as here, we remand to the district court to consider findings of excusable neglect. See Petty, 82 F.3d at 810 (discussing Fed. R. App. P. 4(b)). That is unnecessary in this case, because we ultimately remand for reimposition of the original sentence, see, e.g., Lopez, 26 F.3d at 523 (so ordering), which will result in a new final judgment, from which either party may file a timely notice of appeal.
9
By contrast, we do have jurisdiction over Austin's appeal from his revised sentence. The notice of appeal timely followed the District Court's post-judgment order imposing a revised sentence, which is a separate final judgment. As we have stated, the District Court was without authority to enter such an amended sentence and the order imposing it must be vacated. Moreover, because the order amending Austin's sentence was entered without jurisdiction itself, it cannot give us jurisdiction over the original sentence.
10
Austin does not articulate the precise argument that the District Court lacked jurisdiction to change the original sentence. He asserts instead that the District Court abused its discretion because it should have held a hearing and made certain findings before altering the sentence. While Austin does not specify the correct legal theory, he has sufficiently resisted the resentencing in the District Court and before this Court to allow us to reach the issue. More importantly, because the District Court's error was jurisdictional in nature, it cannot be waived. See United States v. Morrison, 204 F.3d 1091, 1093 (11th Cir. 2000).
11
We do not consider Austin's other arguments. To the extent they apply to the first sentence, we have no jurisdiction to consider them because that appeal is untimely. To the extent they apply to the revised sentence, they are moot because that sentence was imposed without jurisdiction. We vacate the order of the District Court amending Austin's sentence and remand for reimposition of the original sentence.
| {
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303 F.2d 353
David Paul PIKE, Petitioner,v.CIVIL AERONAUTICS BOARD and Najeeb E. Halaby, Administrator of the Federal Aviation Agency, Respondents.
No. 16740.
United States Court of Appeals Eighth Circuit.
May 16, 1962.
Charles H. Baker, of Riddle, Baker & O'Herin, Malden, Mo., Veryl L. Riddle and Edward F. O'Herin, Malden, Mo., and also Langdon R. Jones and Robert H. Jones, Kennett, Mo., on the brief, for petitioner.
William L. Howard, Jr. Attorney, Civil Aeronautics Board, Washington, D. C., O. D. Ozment, Associate General Counsel, Litigation and Research, Washington, D. C., Lee Loevinger, Asst. Atty. Gen., Washington, D. C., Richard A. Solomon, Attorney, Dept. of Justice and John H. Wanner, General Counsel, Civil Aeronautics Board, on the brief, for respondents.
Before VOGEL, VON OOSTERHOUT and BLACKMUN, Circuit Judges.
BLACKMUN, Circuit Judge.
1
David Paul Pike, a resident of Missouri and a holder of airman certificates, seeks review of an order of the Civil Aeronautics Board which revoked those certificates on the ground, essentially, that Pike was unqualified to hold them. Jurisdiction under § 1006 of the Federal Aviation Act of 1958, 49 U.S.C.A. § 1486, is established. The Board's order, with one member dissenting, vacated its examiner's ruling dismissing the complaint filed by the Administrator of the Federal Aviation Agency. We, in turn, reverse.
2
The question is whether Pike, although he was a certificated commercial pilot, violated the applicable statute and regulations by giving dual flight instruction to three students at a time when he, Pike, did not possess a flight instructor's certificate. There is no challenge here to the findings of fact which have been made and we are confronted with no problem of the sufficiency of the evidence to support those findings.
3
Pike, born in 1922, operates an airport at Caruthersville, Missouri, owns aircraft and hangars there, engages in crop dusting and charter flights, and is a pilot in the Air Force Reserve. He possesses flight time of over 12,000 hours, 4,400 of which were in military aircraft. At all times material here Pike has held an airman certificate with commercial pilot privileges and airplane single and multiengine land and instrument ratings. In December 1959 the Administrator issued to him, in addition, a limited flight instructor's certificate.
4
In October 1959, while Pike held his airman certificate but before he acquired his limited flight instructor's certificate, he was served with notice of charges by the Administrator. On January 12, 1960, after an informal hearing, the Administrator revoked Pike's airman certificate because of claimed violations of § 610(a) (2) of the Civil Aeronautics Act of 1938, as amended, and of § 610(a) (2) of the Federal Aviation Act of 1958, 49 U.S.C.A. § 560(a) (2) and § 1430(a) (2). Pike, pursuant to the provisions of § 609 of the 1958 Act, 49 U.S.C.A. § 1429, appealed to the Board; the Administrator then filed his complaint with the Board for affirmation of the order of revocation.
5
This complaint alleged among other things (a) that Pike, on about thirty stated occasions in the years 1955 to 1959, inclusive, gave dual flight instruction to Darrell A. Dugger, John M. Cantrell and William E. Morris, holders of student pilot certificates; (b) that on each of these occasions Pike did not hold an airman certificate authorizing him to serve in the capacity of a flight instructor; (c) that in so doing he was in violation of § 610(a) (2) of the applicable Act; (d) that because of these and other violations of the Acts and of the Civil Air Regulations, Pike had demonstrated a disregard for regulation and safety in air commerce so as to warrant, in the public interest, the revocation of his airman certificate; and (e) that the order of revocation of his certificate was accordingly issued. Pike's responsive pleadings contained a general denial and other defenses not pertinent on this appeal.
6
An examiner's hearing ensued. He found that Pike did give the flight instruction to the three students prior to his acquisition of a separate limited flight instructor's certificate. Pike had denied this but the examiner gave no credence to his testimony and actually noted a question as to his veracity. Nevertheless, the examiner dismissed the Administrator's complaint. He did so primarily on the grounds that the term "airman" is not defined by the statute to include "flight instructor"; that the statute's prohibition against one's serving as an airman in an uncertified capacity therefore did not apply to Pike's acts; and that the Regulations also did not prohibit Pike's flight instruction.
7
On the appeal to the Board, however, its majority held that both the statute and the Regulations barred Pike's instruction. In so doing they stated, "Apparently there has not been a direct ruling on this question under the current framework of the regulations". Member Gilliland, in dissent, emphasized that the majority's decision did not rest on the ground that Pike endangered anyone or lacked qualification to perform the acts complained of but merely on the ground that he had not been formally authorized at the time to perform those acts. He noted that since December 18, 1959, Pike has had his limited flight instructor's certificate.
8
The case thus basically concerns only the construction of the statute and the interpretation of the Regulations. We look initially at these.
9
The Civil Aeronautics Act of 1938, 52 Stat. 973, 49 U.S.C.A. §§ 401-681, and the Federal Aviation Act of 1958, 72 Stat. 731, 49 U.S.C.A. §§ 1301-1542, which supplanted the 1938 Act, clearly embody a comprehensive scheme for the regulation of the safety aspects of aviation. See Nebraska Department of Aeronautics v. C. A. B., 8 Cir., 1962, 298 F.2d 286, 291; Lee v. C. A. B., 1955, 96 U.S. App.D.C. 299, 225 F.2d 950, 951; Air Lines Pilots Ass'n International v. Quesada, 2 Cir., 1960, 276 F.2d 892, 894, 897, cert. den. 366 U.S. 962, 81 S.Ct. 1923, 6 L.Ed.2d 1254. This is evident from a review of §§ 601-610 and 701-702 of the 1938 Act, as amended, 49 U.S.C.A. §§ 551-560 and 581-582, and of §§ 601-610 and 701-703 of the 1958 Act, 49 U.S.C.A. §§ 1421-1430 and 1441-1443. In particular, § 601(a) (6)1 of each Act confers upon the Administrator (or, under the 1938 Act, upon the Board) general rule-making authority governing practices as may be found "necessary to provide adequately for * * * safety in air commerce". Then § 602(a)2 empowers the Administrator "to issue airman certificates specifying the capacity in which the holders thereof are authorized to serve as airmen in connection with aircraft"; § 602(b)3 authorizes the issuance of a certificate if the Administrator finds that the applicant possesses "proper qualifications" therefor; § 610 (a) (2)4 declares it unlawful
10
"For any person to serve in any capacity as an airman in connection with any civil aircraft, * * * in air commerce without an airman certificate authorizing him to serve in such capacity, or in violation of any term, condition, or limitation thereof, or in violation of any order, rule, or regulation issued under this subchapter; * * *"
11
and § 6095 authorizes, under certain conditions, the issuance of an order suspending or revoking any type of certificate, including an airman certificate. § 102(b) and (e), § 103(a) and (c) and § 307(c) of the 1958 Act,6 and § 2(b) and (e) of the 1938 Act7 are other statutory provisions emphasizing safety. § 9018 provides for a civil penalty of not to exceed $1,000 for each violation of the statute. Except for those specified in § 902,9 not applicable here, there are no criminal penalties for safety violations.
12
Pursuant to the rulemaking authority granted by § 601 of the 1938 Act, the Board did in fact issue safety regulations for airman licenses. These were adopted by the Administrator in 1958 when he assumed the safety rulemaking function and have been continued without substantial change pertinent to the present proceeding. The Board and the Administrator in their brief concede that the Regulations do not expressly forbid unlicensed instruction. Yet the Regulations do seek to spell out, with respect to a flight instructor's certificate, the "proper qualifications" mentioned by § 602(b). A flight instructor is defined to be "a certificated pilot authorized by the Civil Air Regulations to give flight instruction". One is not to pilot a civil aircraft without "appropriate ratings issued by the Administrator". An applicant obtains a limited flight instructor's certificate by demonstrating his ability properly to instruct students and by showing his familiarity with the methods and procedures set forth in the Flight Instruction Manual. A limited flight instructor's duties and responsibilities include the examination of the student pilot to determine his competency to make solo flights and solo cross-country flights, the entering of appropriate indorsements on the student pilot certificate, the signing of the student's log book for each period of flight instruction, and the maintenance of his own records of flight instruction time and indorsements entered. The student, in applying for a private pilot certificate, must present a reliable log book record and his student certificate appropriately indorsed by a certified instructor. Upon meeting certain requirements, including a satisfactory one year probationary period, a limited flight instructor is entitled to a regular certificate. There are specified limitations, too, in flight instruction as to aircraft category, hours of instruction per day and per week, and the like. 14 C.F.R. 20.5, 20.16, 20.23-4, 20.34, 20.130-8, 43.40, and 43.64.10
13
We state initially that we entertain no doubt whatever that the Administrator has the power, in view of his broad rulemaking authority under the Act and the statute's emphasis on safety, to prescribe that dual flight instruction shall be given only by a certified commercial pilot who also possesses a flight instructor's certificate. See Wilson v. C. A. B., 1957, 100 U.S.App.D.C. 325, 244 F.2d 773, cert. den. 355 U.S. 870, 78 S.Ct. 119, 2 L.Ed.2d 75; Hard v. C. A. B., 7 Cir., 1957, 248 F.2d 761, cert. den. 355 U.S. 960, 78 S.Ct. 543, 2 L.Ed.2d 534. The issue, then, is whether there has been an exercise of that power.
14
Certainly the statute is not specific. § 101's definition of "airman", so far as it is pertinent here, is directed toward a pilot in actual navigation of an aircraft. § 602 merely authorizes the issuance of "airman certificates" although it does prescribe that these certificates are to specify "the capacity in which holders thereof are authorized to serve as airmen in connection with aircraft". It goes on further to prescribe that a certificate shall be issued with such conditions and limitations as are determined "to be necessary to assure safety in air commerce". § 609 provides for the amendment or revocation of any type of certificate including an airman certificate. And § 610 declares it unlawful for anyone to serve "in any capacity as an airman in connection with any civil aircraft * * * in air commerce without an airman certificate authorizing him to serve in such capacity * * *".
15
One searches these statutory provisions in vain for any reference to flight instruction, to capacity as a flight instructor, or to a flight instructor's certificate. Although the statute does speak in terms of various capacities, it contains no definiteness of description in that respect. Perhaps we should not expect the statute to be more positive for capacity limitation seems to be appropriate material for the more flexible area of administrative regulation.
16
The Regulations themselves are scarcely more specific. They do refer to flight instruction and to flight instructor and to the issuance of flight instructor's certificates and the qualifications therefor. The gap, however, lies in the absence of a provision stating, or providing a basis for an unquestionable inference, that the holding of an airman certificate is not equivalent to qualification as a flight instructor or to the holding of a flight instructor's certificate. This is the gap which the Administrator and the Board attempt to bridge by their arguments about implied prohibition in the Regulations of unlicensed flight instruction.
17
This lack of specificity and completeness of the Regulations disturbs us for this case. Because of this, we are disinclined to reach a result, drastic in its application to the individual concerned (whether it be Pike or any other), which deprives an airman of admitted experience and ability of his primary means of livelihood. Compare Carey v. C. A. B., 1 Cir., 1960, 275 F.2d 518, 524; Garber v. C. A. B., 2 Cir., 1960, 276 F.2d 321, 323; Walker v. C. A. B., 2 Cir., 1958, 251 F.2d 954, 956. We prefer to have, where a result of that magnitude is to be forthcoming, a statute or regulation which is more positive and definite than those here involved.
18
This, however, is not the only reason for our conclusion. There are others:
19
1. The actual issuance of a flight instructor's certificate to Pike in December 1959. This fact, if it does not belie, is at least inconsistent with the strenuously urged claim of lack of Pike's trustworthiness. It must imply, too, the Administrator's acceptance and approval of his ability, not only as a pilot, but as an instructor of student pilots. There is nothing in the record to indicate that the issuance of this certificate was due to any newly acquired prowess or repentant attitude on the part of Pike between the time of the challenged instruction in 1955-1959 and the issuance of this additional certificate.
20
2. The Board's interpretation of its own regulations may well be entitled to great weight. Bowles v. Seminole Rock & Sand Co., 1945, 325 U.S. 410, 413-414, 65 S.Ct. 1215, 89 L.Ed. 1700. See Danielson v. C. A. B., 2 Cir., 1953, 204 F.2d 266, 268, and Outland v. C. A. B., D.C. Cir., 1960, 284 F.2d 224, 228-229. But the Board in its own order here concedes the absence of "a direct ruling on this question under the current framework of the regulations" and, in its brief, further concedes that it has not "heretofore had occasion to rule on this precise point". Administrative interpretation of long standing is thus not present.
21
3. The alleged violations here, if they concern safety at all, are obviously of lower degree than certain others which have been involved in reported litigation. They are less vital than, for example, the violation which bore directly upon the safety and welfare of commercial passengers in this court's recent case of Specht v. C. A. B., 8 Cir., 1958, 254 F.2d 905, 78 A.L.R.2d 1135. We cannot take issue with the Board and the Administrator when they stress the importance of adequate flight instruction under properly qualified instructors. Here, however, there seems to be little question of Pike's basic training and his capability as a pilot and, for that matter, as evidenced by his acquisition of a flight instructor's certificate, as a flight instructor. And any particular student pilot's progress is dependent upon more than one man's instruction.
22
4. Our feeling that the revocation provisions of the statute in their application to Pike on this record have at least some penal aspect. We may accept for present purposes — although we need not and do not now pass upon the question — that revocation of an airman's certificate for safety considerations is remedial rather than penal and that the rule that a penal statute is to be strictly construed is perhaps not applicable here. In the Specht case, supra, we said, p. 917 of 254 F.2d, with respect to the revocation of a pilot's airline transport pilot rating, "* * * the primary effect of that revocation is remedial, in that a pilot not qualified to command an airline transport aircraft has been denied the authority to do so". See also Wilson v. C. A. B., supra, p. 774 of 244 F.2d. Compare Didriksen v. F. C. C., 1958, 103 U.S.App.D.C. 17, 254 F.2d 354, 356. But it is logical to assume — and it is borne out by the very example of Pike's own 1952 experience when he was charged with similar violations — that suspension or revocation will be followed by the imposition of a civil penalty under § 901.11 Such a penalty certainly is punitive. This at least prompts us to view the statute with an attitude of reasonable strictness and to demand for this case a stronger statutory or regulation basis than we are presently able to discover. See Judge Prettyman's dissent in Lee v. C. A. B., supra, p. 953 of 225 F.2d. Compare Helvering v. Mitchell, 1938, 303 U.S. 391, 399-404, 58 S.Ct. 630, 82 L.Ed. 917.
23
5. The confusion attendant upon past changes in the Regulations. From September 1, 1942, to July 1, 1945, § 20.80 of the Civil Air Regulations did expressly prohibit the giving of flight instruction without a flight instructor's rating. That provision, however, was deleted from the Regulations on the latter date. Moreover, § 43.66 embraced, but only until April 11, 1957, the somewhat enigmatical provision, "Instrument flight instruction may be given only by a person holding an effective instrument rating. A flight instructor rating is not required". Certainly this history gives some substance to the argument that the deletion of a positive requirement indicates that the requirement is no longer in effect.
24
6. The inconclusiveness of Pike's 1952-3 difficulties. In 1952 the Board held that Pike, in spite of warnings, had violated the Regulations by giving flight instruction when he did not have a flight instructor's rating, and suspended his airman certificate for three months. 13 C.A.B. 539. Upon his continuing to pilot and instruct when he was without his certificate during that period, a civil penalty under § 901 of the 1938 Act was imposed by consent judgment entered in the Eastern District of Missouri. Civil Action No. 1567. However, only the question of personal hardship was at issue before the Board. The question of violation was not raised on that appeal.
25
Our holding does not imply that we are unaware of possible resulting inconsistencies in the existing Regulations. The Board's majority felt that the Examiner's holding "produces the incongruous result of allowing a person who does not hold a flight instructor's certificate to give instruction in a situation where a certificate holder is forbidden to do so", as, for example, where a flight instructor is limited as to category of aircraft. This may or may not be true, for we can conceive of a situation where a certificated pilot's instruction area may reasonably be deemed limited to the very area of his piloting restrictions. We suspect, however, that any inconsistency which may exist is directly attributable to the lack of specificity of the Regulations themselves.
26
Let Pike in no way misunderstand the significance of our holding. We do not condone violations, where they exist, of the statute or of the Regulations. We do not approve misstatements or false entries or an attitude of defiance or an above-the-law approach to proper regulatory authority. In view of his difficulties in 1952-3 and in view of the very fact of the present proceeding, it should be evident enough to him that his activities have apparently been at the law's edge for too long a time already. With an appropriate revision of the Regulations perhaps to be anticipated as a result of this case — assuming that the Administrator continues in his present position — so that there will be no remaining doubt of certification requirements, it is strongly indicated that Pike's operations in the future are to be well within the overall framework of the law and the Regulations. His history is too damaging to afford him much assurance in further near-the-line activity.
27
The petition for review is therefore granted. The Board's order of March 8, 1961, is reversed and the case is remanded with instructions to affirm the examiner's initial decision.
Notes:
1
49 U.S.C.A. § 551(a) (6), § 1421(a) (6)
2
49 U.S.C.A. § 552(a), § 1422(a)
3
49 U.S.C.A. § 552(b), § 1422(b)
4
49 U.S.C.A. § 1430(a) (2). The language quoted is from the 1958 Act. This is somewhat broader than, and not identical with, the language of the corresponding § 610(a) (2) of the 1938 Act, 49 U.S.C.A. § 560(a) (2), but for present purposes the differences are not material and need not be specified here
5
49 U.S.C.A. § 559, § 1429
6
49 U.S.C.A. §§ 1302(b) and (e), 1303 (a) and (c) and 1348(c)
7
49 U.S.C.A. § 402(b) and (e)
8
49 U.S.C.A. § 621, § 1471
9
49 U.S.C.A. § 622, § 1472
10
14 C.F.R. 439.61 specifically permits a commercial glider pilot to give glider instruction out an instructor's rating
11
There apparently is presently pending in the Eastern District of Missouri an action, No. S59C66, against Pike to recover a civil penalty
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777 F.2d 801
Lois Thurston KIBBE, Administrator of the Estate of ClintonThurston, Plaintiff, Appellee,v.CITY OF SPRINGFIELD, Defendant, Appellant.
No. 85-1078.
United States Court of Appeals,First Circuit.
Argued Sept. 11, 1985.Decided Nov. 27, 1985.
Edward M. Pikula, Asst. City Sol., with whom Richard T. Egan, City Sol., Harry P. Carroll, Deputy City Sol., Springfield Mass., were on brief for defendant, appellant.
Terry Scott Nagel, Springfield, Mass., on brief for plaintiff, appellee.
Before COFFIN, Circuit Judge, WISDOM* and ALDRICH, Senior Circuit Judges.
COFFIN, Circuit Judge.
1
Appellee Lois Thurston Kibbe, administratrix of the estate of Clinton Thurston, filed this suit under 42 U.S.C. Sec. 1983 alleging that appellant City of Springfield and a number of its police officers deprived Thurston of his civil rights in a motor vehicle pursuit that ended with a police officer shooting Thurston in the head, causing his death. The jury returned verdicts against the police officer who fired the fatal shot and against the City, but found for three other officers.1 It awarded one dollar in compensatory damages and five hundred dollars in punitive damages against the officer and compensatory damages in the amount of fifty thousand dollars against the City. Appellant challenges the district court's refusal to grant either a directed verdict or judgment notwithstanding the verdict, and also claims error in the jury charge.2 For reasons we discuss below, we affirm.
1. Factual Background
2
At about 6:30 p.m. on September 28, 1981, the Springfield Police Department received a phone call on its 911 emergency line reporting a violation of a restraining order. A cruiser was sent to investigate. A second call about an hour later reported that the subject of the restraining order had called the apartment and threatened to come after its occupants with a knife. Another cruiser was dispatched. A third call reporting that the subject was breaking down the door and a fourth stating that Pamela Etter was being assaulted at that moment also were received, and cruisers were sent to the scene. The officers who arrived after the last call found that Etter had been abducted by Clinton Thurston and driven away in his 1971 Mercury.
3
The car was first spotted by Officer Erich Risch, who was wearing a red windbreaker over his uniform and driving an unmarked car that had flashing headlights, a portable blue light, and a siren, all activated. When Thurston's car stopped at an intersection, Risch walked up to the driver's window and identified himself as a police officer, but Thurston drove off.
4
Risch gave chase, other police cruisers joined in, and Officers Frank Daigneau and John Troy set up a roadblock at a point ahead of the chase. As Thurston passed by the barrier at about twenty-five miles per hour, both officers brandished guns and Troy fired at the car. A nick was found later in the left rear wheel. Appellant claimed that Thurston had accelerated toward Daigneau, narrowly missing Troy. After this episode, a police officer reported to the dispatcher that Thurston "had attempted to run over a police officer." The dispatcher then broadcast: "This is not only a violation of a restraining order, it's assault by means of a vehicle." According to the rules and regulations of the City's police department, the use of firearms is allowed to effect an arrest when certain circumstances exist, including an officer's reasonable belief that the crime in question includes the use or threatened use of deadly force. Lieutenant Thomas Rondeau testified that a car is considered a deadly weapon.
5
Thurston turned left at the first roadblock, and encountered a second one a block away. Officer Kenneth Schaub had placed his vehicle across the right hand lane while he stood in the middle of the three lanes and attempted to flag down Thurston's vehicle. Thurston again failed to stop, and the City claims that he swerved toward Schaub and that Schaub had to dive to avoid being hit. Schaub then fired at the car. Schaub testified that a moment earlier, as Thurston headed toward the roadblock, Schaub drew his gun and would have shot to kill if he had been able to get a clear shot.
6
Officer Theodore Perry, who was on a motorcycle and had not heard instructions from headquarters that motorcycles should try to stay out of the pursuit, accelerated past several cruisers at this point, and engaged in a cat and mouse exchange with Thurston. Three times, the officer moved up even with the rear window on the driver's side of Thurston's car, and each time Thurston swerved toward the left. Perry fired at Thurston after the second and third swerves, apparently hitting him with the second shot. The vehicle slowed down and came to a stop. Perry's first shot apparently hit a house near where Thurston's car coasted to a stop.
7
As Risch ran to Thurston's car, he ordered him to get out. Risch testified that when Thurston failed to do so, Risch leaned in through the driver's window and struck Thurston on the head with his flashlight, and then he and several other officers dragged the apparently unconscious Thurston from the car.3 They threw him to the ground, and, as he lay face down, they handcuffed him. Perry did not report to the street supervisor that he had shot at Thurston, and the officer who transported Thurston to the hospital was not told that any shots had been fired or that Thurston may have been shot. It was not until someone from the hospital called the police station to report that Thurston was in serious condition that street supervisor Rondeau suggested that doctors check for a bullet wound. Doctors then took x-rays and detected the bullet which had entered Thurston's brain. He died a short time later.
2. Discussion
8
a. Judgment NOV and Directed Verdict
9
It is by now axiomatic that Sec. 1983 liability may not be imposed upon a municipality simply on the basis of respondeat superior, but it must instead be premised on a finding that the "injuries [were] inflicted pursuant to government 'policy or custom' ", City of Oklahoma City v. Tuttle, --- U.S. ----, 105 S.Ct. 2427, 2429, 85 L.Ed.2d 791 (1985); Monell v. Department of Social Services, 436 U.S. 658, 694 and n. 58, 98 S.Ct. 2018, 2031 and n. 58, 56 L.Ed.2d 611 (1978); Voutour v. Vitale, 761 F.2d 812, 819-20 (1st Cir.1985). Appellee argued primarily that the City should be found liable here because it had a policy or custom of inadequately training its police officers. A number of cases, including this court's recent Voutour v. Vitale, have accepted "inadequate training" as an actionable municipal policy or custom. Marchese v. Lucas, 758 F.2d 181, 188-89 (6th Cir.1985); Wellington v. Daniels, 717 F.2d 932, 936 (4th Cir.1983); Herrera v. Valentine, 653 F.2d 1220, 1224 (8th Cir.1981); Owens v. Haas, 601 F.2d 1242, 1246-47 (2nd Cir.), cert. denied, 444 U.S. 980, 100 S.Ct. 483, 62 L.Ed.2d 407 (1979). Under this theory, the city is liable either for failing to implement a training program for its officers or for implementing a program that was grossly inadequate to prevent the type of harm suffered by the plaintiff. Voutour v. Vitale, 761 F.2d at 820 ("supervisor must demonstrate at least gross negligence amounting to deliberate indifference, and ... this conduct must be causally linked to the subordinate's violation of plaintiff's civil rights"); Hays v. Jefferson County, 668 F.2d 869, 874 (6th Cir.1982); Wellington v. Daniels, 717 F.2d at 936 (4th Cir.1983); see Languirand v. Hayden, 717 F.2d 220, 227-28 (5th Cir.1983).
10
Although we review the evidence in more detail later, we summarize it briefly here, as background for our inquiry into the Supreme Court's latest holding as to the required showing of a policy of inadequate training. Here, in an admittedly close case, the evidence consisted principally of: (1) testimony that there was but little guidance for undertaking an automobile chase; (2) testimony, contrary to that of the officers, that Thurston was not posing a life-threatening hazard to them; (3) a department rule on the use of firearms which in part required preliminary resort to less severe alternatives, arguably ignored by the officers; (4) another part of the rule which proscribed firing where there was substantial danger to innocent people, arguably violated by two officers; (5) a dispatcher's arguably overzealous announcement on police radio; and (6) evidence of looseness in investigating shootings.
11
Four members of the Supreme Court recently have raised doubts as to whether a harm allegedly caused by a policy of gross negligence in police training could meet Sec. 1983's standard of causation. Tuttle, 105 S.Ct. at 2436 n. 7. We, however, continue to believe this is a viable theory of municipal liability because we conclude that it is possible to show "an affirmative link", Tuttle, 105 S.Ct. at 2436, between a policy of inadequate training and resort to harmful police methods. We base our conclusion on the belief that properly trained officers would avoid certain techniques as inappropriate for some circumstances. In Voutour, we referred to the affidavit of a putative expert witness in police training and procedure who stated that the shooting in that case was a highly predictable result of the inadequate training received by the town's police officers. 761 F.2d at 821-22. Even without expert testimony, we believe a plaintiff could show by a preponderance of the evidence that, for example, the failure to train police officers in how to conduct high speed chases caused the death of an innocent pedestrian struck either by a police cruiser or the suspect's car.
12
We thus come to the more specific issue of whether inadequate training was a viable theory in this case. Appellant would have us find that Clinton Thurston was killed as the result of a single incident of police action which, under Tuttle, 105 S.Ct. 2427, is insufficient, as a matter of law, to establish a municipal policy or custom. In Tuttle, a police officer who had been on the Oklahoma City force for ten months had responded alone to an all points bulletin indicating a robbery in progress at a bar. The officer testified that Tuttle walked toward him as the officer entered the bar, that the officer grabbed Tuttle's arm to restrain Tuttle from leaving, and that Tuttle eventually broke free and went outside, ignoring the officer's commands to "halt". When the officer stepped through the doorway, the officer saw Tuttle crouched on the sidewalk, with his hands in or near his boot. The officer again ordered Tuttle to halt, but when Tuttle started to come out of the crouch, the officer fired his weapon. The officer testified at trial that he believed Tuttle had removed a gun from his boot, and that the officer's life was in danger.
13
In reversing a $1.5 million judgment against the city, the Court focused on an instruction given by the district court which allowed the jury to " 'infer' " from " 'a single unusually excessive use of force ... that it was attributable to inadequate training or supervision amounting to 'deliberate indifference' or 'gross negligence' on the part of the officials in charge", Tuttle, 105 S.Ct. at 2435. Justice Rehnquist, writing for a plurality of four, stated that this inference "allows a Sec. 1983 plaintiff to establish municipal liability without submitting proof of a single action taken by a municipal policymaker". Id. at 2435. He continued:
14
"Presumably, here the jury could draw the stated inference even in the face of uncontradicted evidence that the municipality scrutinized each police applicant and met the highest training standards imaginable. To impose liability under those circumstances would be to impose it simply because the municipality hired one 'bad apple' ". Id.
15
The plurality further observed that it did not matter in Tuttle that respondent introduced independent evidence of inadequate training because "[t]here is nothing elsewhere in this charge that would detract from the jury's perception that it could impose liability based solely on this single incident", id.
16
Tuttle thus holds that a "single incident" of police misconduct does not, standing alone, permit an inference of a policy of inadequate training. That proposition does not, as a matter of law, dispose of this case. There was no instruction here equivalent to the one in Tuttle allowing a jury to infer a policy solely from the occurrence of the harm. The district court here told the jury that "[a]n incident of excessive force on the part of the police officers standing by itself, is insufficient to find the City of Springfield liable under Section 1983". Additionally, appellee presented evidence not only as to what occurred during the pursuit of Thurston but also as to the training of the City's police officers and the department's rules and regulations. Tuttle does not prevent a jury from drawing inferences from the police officers' alleged misconduct, but simply requires that those inferences be based on more than just the fact that the plaintiff was hurt at the hands of a police officer. In this case, the jury was presented with evidence of inadequate training, and was not told that it could find municipal liability "even in the face of uncontradicted evidence that the municipality" adhered to "the highest training standards imaginable", 105 S.Ct. at 2435. See Rymer v. Davis, 775 F.2d 756, 757 (6th Cir.1985).
17
Moreover, we think a second basis of distinction arises out of the facts of the cases. Tuttle involved only one officer who fired one shot. See also Languirand v. Hayden, 717 F.2d 220 (5th Cir.1983) (shooting incident involving one police officer). In contrast, this case involves at least ten officers and three separate shooting incidents, in which three different officers fired their weapons. We thus believe that this is not the sort of "single incident" that the Supreme Court addressed in its opinion in Tuttle, and we find support for this reading in both Justice Rehnquist's plurality opinion, 105 S.Ct. at 2435 ("one bad apple' "), and in Justice Brennan's concurring opinion:
18
"A single police officer may grossly, outrageously, and recklessly misbehave in the course of a single incident. Such misbehavior may in a given case be fairly attributable to various municipal policies or customs, either those that authorized the police officer so to act or those that did not authorize but nonetheless were the 'moving force,' Polk County v. Dodson, 454 U.S. 312, 326, 102 S.Ct. 445, 454, 70 L.Ed.2d 509 (1981), or cause of the violation. In such a case, the city would be at fault for the constitutional violation. Yet it is equally likely that the misbehavior was attributable to numerous other factors for which the city may not be responsible; the police officer's own unbalanced mental state is the most obvious example.... To infer the existence of a city policy from the isolated misconduct of a single, low-level officer, and then to hold the city liable on the basis of that policy, would amount to permitting precisely the theory of strict respondeat superior liability rejected in Monell." 105 S.Ct. at 2440.
19
The significance of the factual differences between these cases lies in the inferences a jury may properly draw simply from the incident itself. Justice Rehnquist observed in Tuttle that where the municipal policy relied upon for liability is not itself unconstitutional, "considerably more proof than the single incident will be necessary in every case to establish both the requisite fault on the part of the municipality, and the causal connection between the 'policy' and the constitutional deprivation", 105 S.Ct. at 2436 (footnotes omitted). We believe proof of the sort of incident we have before us contributes toward proof of the fault and causation elements of the city's liability to a much greater extent than does proof of the sort of single incident involved in Tuttle. This is so because the widespread activity here is more likely to reflect the operating procedures of the police department than would a single incident such as occurred in Tuttle. Although we doubt that even circumstances such as those here would justify an instruction such as that given in Tuttle, we need not decide that issue. For purposes of this case, we only find that Tuttle 's "single incident" holding does not preclude municipal liability, as a matter of law, simply because the police officers' actions occurred within a "single" evening.4 The Fifth Circuit reached a similar conclusion in the post-Tuttle decision of Grandstaff v. City of Borger, 767 F.2d 161 (1985). Grandstaff involved the shooting death of an innocent bystander during the pursuit of a fleeing suspect. In its opinion, the Fifth Circuit noted the absence of direct testimony of prior misconduct within the Borger police force and "that isolated instances of police misbehavior are inadequate to prove the knowledge and acquiescence by a city policymaker in that manner of conduct", 767 F.2d at 171. The court went on to point out, however, that "[t]he evidence does prove repeated acts of abuse on this night, by several officers in several episodes, tending to prove a disposition to disregard human life and safety so prevalent as to be police policy or custom". Id. The court observed that all six officers of the department's night shift were involved in the incident. In upholding the jury verdict for the plaintiff, the court emphasized that the police chief's failure to make changes in practice in the aftermath of this incident allowed an inference that the officers' actions were "the way things are done and have been done in the City of Borger", id., and thus reflected city policy. Like Grandstaff, the instant case involved many officers and a series of exchanges between police officers and civilians. This was a case, unlike Tuttle, arguably involving more than "one bad apple".
20
Our conclusion that Tuttle does not bar this suit does not end the inquiry into whether the district court erred in rejecting the City's motions for directed verdict and judgment notwithstanding the verdict. We must next look at whether, with the evidence before it, the jury could not properly find that the City was grossly negligent in its training of police officers and that that negligence was the proximate cause of Thurston's death. Voutour v. Vitale, 761 F.2d at 820.
21
As we begin our analysis, we have uppermost in mind the strictures of both law and sense that dictate a deference to the facts and inferences therefrom as they could have been found by the jury. In reviewing denials of the motions for directed verdict and judgment notwithstanding the verdict, we may reverse the district court only upon a finding that the evidence could lead reasonable persons to the sole conclusion that the City was not liable. Wildman v. Lerner Stores, 771 F.2d 605, 607 (1st Cir.1985). We must review the evidence in the light most favorable to appellee. Fishman v. Clancy, 763 F.2d at 485, 486 (1st Cir.1985). These principles are particularly pertinent in a case like this, compared to, say, a simple personal injury case where, traditionally, a plaintiff tends to excite sympathy. For in this case, as our narration of facts reveals, the conduct and character of decedent are anything but evocative of sympathy. Accordingly, if a soundly instructed jury, which would in all likelihood view the conduct of decedent to be as reprehensible as do we, nevertheless found the defendants liable, we do not lightly contemplate reversal.
22
We are unable to say that no jury could find that the City was grossly negligent in failing to train its officers, causing their use of excessive force against Clinton Thurston.5 Although evidence on the Springfield Police Department's training practices was sparse, the testimony of two officers indicated that the department gave officers virtually no guidance in apprehending suspects fleeing in motor vehicles who ignored orders to stop. Schaub testified that he was told not to set up physical roadblocks but that he should use his lights and siren, stand in the street, and put up his hand in a stopping motion. Troy testified that his training on stopping a car consisted of being told to move up behind it, put on his lights and siren, and hope the suspect pulls over. The jury could have found that partial roadblocks were not an effective method of slowing down a suspect who was unwilling to stop, and that some technique short of shooting the driver should have been used. The jury might have believed that deploying several police cars to crowd or surround Thurston's car might have forced him to show down, or that sheer persistence eventually might have worn Thurston down, or that calling in reinforcements might have intimidated him into compliance. The jury also could have believed the testimony that Thurston repeatedly shouted to the officers that he was going only to his sister's house, which, in fact, was located a short distance from where the pursuit ended. If the jury believed the officers heard Thurston and knew he might stop voluntarily, the decisions to shoot, particularly the decisions to shoot to kill, reasonably could be viewed as the direct result of training that was grossly inadequate.
23
The jurors could have believed that the actions of two officers, in particular, evidenced a failure to consider methods of stopping a fleeing suspect less drastic than shooting him. Presumably Perry could have shot out the rear tire of the car from his positions right behind and next to Thurston's vehicle, forcing the car to slow down so that the officers could surround it. Schaub, too, was eager to shoot to kill. Although he fired only after Thurston ran through the second roadblock, allegedly forcing Schaub to jump out of the way, Schaub testified that he would have shot to kill sooner if he could have gotten a clear shot. Moreover, the jury could have believed Etter's testimony that Thurston did not try to run down any officers, which would make their shootings appear even more precipitous.
24
The fact that proper police procedures should include less severe means of stopping a fleeing suspect is underscored by the Springfield Police Department's own Rule 28. Section 12 of that rule, which governs the use of firearms, states that "[a] department member shall not discharge a firearm in the performance of duty, except under [certain specified] circumstances, and then only after all other reasonable alternatives have been exhausted and where there is no substantial danger to the public ". (Emphasis added.) If the department recognized the importance of pursuing alternatives to deadly force, as this rule indicates, and yet failed to train on any alternative methods of stopping the suspect in a high-speed pursuit, a jury properly could draw the inference that the department made a conscious policy decision not to do such training. And since the jury may have believed that use of alternatives such as those we have described would have prevented the shooting of Thurston, this rule provides additional support for jury conclusions that (1) the City was grossly negligent in failing to train its officers on ways to capture a fleeing suspect without killing him, and that (2) an "affirmative link" existed between the failure to train and Thurston's death.
25
The jury also could have drawn an inference of inadequate training from the failure of two police officers to abide by the department rule prohibiting the discharge of firearms to effect an arrest when innocent persons are at risk. Although the evidence showed that the officers knew of the rule, their actions permitted an inference that no shooting would have taken place had the officers been properly trained on how to apply it to actual situations. Schaub apparently aimed either at Thurston or generally at his car, not at the tires, and a jury reasonably could believe that Schaub's firing created a risk to Etter. Perry's decision to shoot to kill the driver in a high speed chase unquestionably put the life of the passenger, Etter, in jeopardy. Although there was conflicting testimony as to whether Etter was sitting up in the front seat, or slumped down, the jury could have found that she was visible and that at least some of the officers knew there was a passenger because the pursuit began with an alleged abduction, a fact which had been transmitted over police radio.6 In addition, one bullet, perhaps Perry's first one, landed in the door between the garage and breezeway of a private home located near where Thurston's car stopped, suggesting an additional risk to other innocent people. Rondeau testified that Perry's shots were fired in a thickly settled area.
26
Finally, although appellee emphasized the policy of inadequate training as the basis for municipal liability, she also pointed to evidence of other policies which the jury may have considered in reaching its verdicts. The jury could have believed that this department's policy was to use deadly force whenever it technically was permitted by the rules, even though something less would have sufficed. See Tennessee v. Garner, --- U.S. ----, 105 S.Ct. 1694, 1701, 85 L.Ed.2d 1 (1985) ("if ... there is probable cause to believe that [the suspect] has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape " (emphasis added). The dispatcher's announcement that Thurston's alleged attempt to run down a police officer means "this is assault by means of a vehicle", a deadly weapon, could be viewed as an indirect authorization for the use of deadly force, causing the officers to shoot precipitously. Captain Daniel Spellacy testified that he was monitoring the pursuit with the dispatcher, and so the jury could have found that the man in charge of the department that night approved the escalating intensity of the pursuit.
27
Appellee also argued that the police department's apparently sloppy post-shooting investigative procedures increased the likelihood of officers shooting without justification. Her theory is that neglect in investigating shootings means that there will be a low level of accountability following the use of firearms. The result, in effect, is a policy of encouraging precipitous shooting. As evidence of sloppiness, appellee points out that the department had no policy on preserving all evidence from a shooting and that two officers, in fact, disposed of spent cartridges, making it more difficult to investigate the shootings. The jury also could have believed that Perry never told street supervisor Rondeau at the scene that he had fired his weapon at Thurston, a neglect which Rondeau testified hampered his ability to investigate.
28
On their own, these other policies were not proven sufficiently or linked sufficiently with the harm to impose municipal liability.7 The inferences to be made from these other facts merely lend weight to what we view as the policy a jury reasonably could find as the "moving force", Polk Co. v. Dodson, 454 U.S. 312, 326, 102 S.Ct. 445, 454, 70 L.Ed.2d 509 (1981), behind the actions which led to Thurston's death, the policy of inadequate training. Thus, we hold that a jury reasonably could have found that it was the department's gross negligence in training that caused the premature use of deadly force against Thurston.8
29
b. Jury Instruction
30
Appellant claims that the jury charge was inadequate because it failed to indicate that liability against the City could not be predicated on an isolated incident of negligent training, but must instead be based on "a pattern of deliberate supervisory inaction and indifference". The City also contends that the trial court failed to make clear the issue of proximate cause, specifically that an "affirmative link" must be established between the municipal policy and the unconstitutional activity of its employees. Finally, the City argues that it was entitled to an instruction that liability may result only "from the failure of supervisory officials to remedy a specific situation, of which they knew or should have known in the exercise of reasonable diligence, the continuation of which causes a deprivation of constitutional rights".
31
The trial court charged the jury as follows on the claim against the City:
32
"The City of Springfield is the employer of police officers, but the City cannot be held liable merely because the police officers involved are its employees. An incident of excessive force on the part of the police officers standing by itself, is insufficient to find the City of Springfield liable under Section 1983. A governmental body can be found responsible for the deprivation of a person's civil rights if the actions taken by its employees, are in accordance with a custom or practice of the government and those actions caused the deprivation of the person's rights.
33
"The custom or practice may be an official policy of the City; however, the custom or practice does not have to be authorized by written law, nor must it be the result of formal approval through official decision-making channels. It is enough that the customs or practices are so permanent and well-established, as to demonstrate implicit authorization or approval or acquiescence in the unconstitutional conduct. Where a city's failure to train, supervise, or discipline police officers is reckless or grossly negligent, and this failure constitutes a custom or practice of the city, then the city may be held liable under Section 1983.
34
"If you are convinced by a preponderance of the evidence that Clinton Thurston was deprived of his civil rights by the actions taken by the defendant police officers then you must decide if the actions taken were done in accordance with the custom or practice of the City of Springfield.
35
"If you are convinced by a preponderance of the evidence that the officers acted in conformity with the City's custom or practice, and that this custom or practice violated Clinton Thurston's civil rights, then you may find for the plaintiff and her claim against the City of Springfield. Obviously the reverse is true if you find this is not so, then you will find for the City in this claim."
36
Earlier in its charge, the district court explained the three elements necessary for proof of plaintiff's claim under Section 1983: that the defendants' conduct violated Thurston's federal constitutional right not to be deprived of life without due process of law; that the defendants acted under color of law; and that the defendants' acts were the proximate or legal cause of Thurston's damages. The court defined proximate cause as follows:
37
"An injury or damage is proximately caused by an act or failure to act, whenever it appears from the evidence in the case that the act or omission played a substantial part in bringing about or actually causing the injury or damage, and that the injury or damage was either a direct result or a reasonably probable consequence of the act or omission."
38
We agree that these jury instructions could have been more detailed. The court could have used the Supreme Court's language to explain the need for an "affirmative link" between the City's policy and the harm. It could have emphasized the distinction between negligence and reckless or grossly negligent conduct. But while the district court's instructions could have been better, they were not defective. The district court did not make the error of the trial court in Tuttle. Rather than allowing liability based solely on the incident in which Thurston was harmed, the court here charged that one incident standing by itself is insufficient to make the City liable under Section 1983. Its instructions included a charge on proximate cause, and it instructed the jury that it must find a failure to train which amounted to gross negligence.
39
A defendant is not entitled to any specific words of instruction, but only to instructions that properly convey the applicable law of the case. 9 C. Wright and A. Miller, Federal Practice and Procedure: Civil Sec. 2556 (1971); see Cupp v. Naughton, 414 U.S. 141, 146-47, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973); Dyer v. Ponte, 749 F.2d 84, 88 n. 5 (1st Cir.1984); United States v. Morris, 700 F.2d 427, 433 (1st Cir.1983). We hold that the instructions in this case did so.
40
Accordingly, the judgment of the district court is affirmed.
*
Of the Fifth Circuit, sitting by designation
1
Appellee originally named ten Springfield police officers in her civil rights claim and also asserted pendent state claims for conscious suffering and wrongful death. At trial, she voluntarily dismissed claims against all but the City and four officers. Also at trial, the court directed verdicts in favor of the City and three officers on the conscious suffering and wrongful death claims as well as on counts for conspiracy under 42 U.S.C. Sec. 1985. The jury found for the fourth police officer on a wrongful death claim
2
The district court initially ordered new trials for the City and the police officer on the ground of inconsistent verdicts. The court pointed to the discrepancy in the amounts of compensatory damages awarded against the City and the officer, and it also questioned an assessment of punitive damages against the officer in light of a finding of non-liability on a wrongful death theory, since both required "willfulness". Upon reconsideration, requested by appellee, the court withdrew its new trial orders. In its reconsideration motion, appellee had argued that the defendants had failed to request a new trial and that the district court had no discretion to order a new trial in the circumstances of this case. Although the police officer who was found liable filed an appeal, he has since withdrawn it
3
At about this time, Thurston's car lurched forward, hitting a cruiser that had stopped in front of it. A citizen witness testified that Thurston's car hit the cruiser before Thurston's car came to a complete stop, when it was traveling at about three to five miles per hour. Officer Perry testified that Thurston's vehicle had stopped and then began to move again as Thurston was being pulled from the car, possibly as his foot came off the brake. Pamela Etter testified that Thurston brought his car to a complete stop and that he hit the cruiser as he started to go again
4
It can not be that an incident that is single only in that it begins and ends within a confined period of time can never give rise to a finding of municipal liability. We agree with the court in Leite v. City of Providence, 463 F.Supp. 585, 590 (D.R.I.1978), that a "city's citizens do not have to endure a 'pattern' of past police misconduct before they can sue the city under section 1983". That court went on to note the circumstances in which liability properly could attach in the absence of such a pattern:
"If a municipality completely fails to train its police force, or trains its officers in a reckless or grossly negligent manner so that future police misconduct is almost inevitable, the municipality exhibits a 'deliberate indifference' to the resulting violations of a citizen's constitutional rights. In such a case, the municipality may fairly be termed as acquiescing in and implicitly authorizing such violations.... The training and supervising of these police officers must be so inadequate and the resulting misconduct so probable, that the city can fairly be considered to have acquiesced in the probability of serious police misconduct." Id. at 590-91.
See also City of Oklahoma City v. Tuttle, 105 S.Ct. 2427, 2441 (Brennan, J., concurring) ("A Sec. 1983 cause of action is as available for the first victim of a policy or custom that would foreseeably and avoidably cause an individual to be subjected to deprivation of a constitutional right as it is for the second and subsequent victims; by exposing a municipal defendant to liability on the occurrence of the first incident, it is hoped that future incidents will not occur.").
5
The City does not challenge the jury's conclusion that Clinton Thurston's constitutional rights were violated. It argues only that it is improper to impose liability on the City for the violation
The City also does not challenge the jury's implicit finding that decisions regarding the type of training received by Springfield's police officers are a matter of policy attributable to the City, and we therefore do not address the issue of when an official's actions properly may be designated as "municipal policy". See Voutour v. Vitale, 761 F.2d 812, 823 (1st Cir.1985); Bennett v. City of Slidell, 728 F.2d 762, 769 (5th Cir.1984). See also Pembaur v. City of Cincinnati, 746 F.2d 337, 341 (4th Cir.1984), cert. granted, --- U.S. ----, 105 S.Ct. 3475, 87 L.Ed.2d 611 (1985).
6
Perry testified that he shot at Thurston in part to stop the fleeing suspect and in part to protect himself because Thurston was trying to knock him off his motorcycle. The latter reason was unjustified since department rules say a chase is to be aborted if there is danger to officers, and Perry unquestionably could have avoided the danger. In fact, Captain Spellacy had ordered motorcycles out of this pursuit because of possible danger to cycle officers, but Perry testified that he had not heard this order. It would seem that Perry would be justified in continuing the pursuit once he perceived he was in danger only because he felt that Etter's life was in jeopardy. He testified, however, that he did not know there was a passenger in the car. Thus, the jury could have found his continuing involvement, which resulted in the decision to shoot, to be further evidence of inadequate training on conducting pursuits. Even if the jury disbelieved him and concluded that he knew Etter was in the car, it could have found a significant lapse in training in his decision to shoot the driver of the car in which she was a passenger
7
We agree with appellant that the district court's stated reason for denying the motion for judgment notwithstanding the verdict also reflects an insufficient basis for imposing municipal liability. The court suggested that the City had ratified defendant Perry's action by clearing him and finding that he had acted in accordance with the police department's policies. We are unconvinced that a failure to discipline Perry or other officers amounts to the sort of ratification from which a jury properly could infer municipal policy. Cf. Grandstaff v. City of Borger, 767 F.2d 161 (5th Cir.1985). We need not agree with the district court's reasoning to affirm its judgment, however. Chevron U.S.A. v. National Resources Defense Council, 467 U.S. 837, 104 S.Ct. 2778, 2781 nn. 7-8, 81 L.Ed.2d 694 (1984); Riley Co. v. Commissioner, 311 U.S. 55, 59, 61 S.Ct. 95, 97, 85 L.Ed. 36 (1940); Casagrande v. Agoritsas, 748 F.2d 47, 48 n. 1 (1st Cir.1984)
8
Appellee argues that the jury verdict also is supportable on the basis of an Eighth Amendment claim of deliberate indifference to Thurston's medical needs after he was shot. Although the complaint alleges that Thurston was denied adequate medical care, this theory was not presented to the jury and appellee failed to provide any evidence suggesting that Thurston's treatment after the shooting aggravated the harm from the shooting itself. We therefore reject this claim
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199 F.Supp. 220 (1961)
C & L RURAL ELECTRIC COOPERATIVE CORPORATION and Employers Mutual Liability Insurance Company of Wisconsin, Plaintiffs,
v.
AMERICAN CASUALTY COMPANY, Defendant.
No. 3458.
United States District Court E. D. Arkansas, W. D.
November 20, 1961.
T. S. Lovett, Jr., Little Rock, Ark., for C & L. J. W. Barron, Little Rock, Ark., for Employers Mutual.
Malcolm W. Gannaway, Little Rock, Ark., for defendant.
HENLEY, District Judge.
This is an action for indemnity brought against the surety on a contractor's bond. The cause has been submitted upon a stipulation of facts and written briefs. Complete diversity of citizenship exists between the parties, and the amount in controversy is substantially in excess of $10,000, exclusive of interest and costs. The facts are as follows:
On or about February 20, 1947, plaintiff C & L Rural Electric Cooperative Corporation (C & L) entered into a contract with Robert Kincade and others doing business as Delta Construction Co. (Delta) for the erection of certain transmission lines in Lincoln County, Arkansas. The contract contained the following provisions:
"Article IV
"Particular Undertakings of the Contractor
Section 1.Protection to Persons and Property.
"The Contractor shall at all times take all reasonable precautions for the safety of employees on the work and of the public, * * *
"The following provisions shall not limit the generality of the above requirements:
"(a) The Contractor shall at no time and under no circumstances cause or permit any employees of the Contractor to perform any work upon energized lines, or upon poles carrying energized lines. * * *
* * * * * *
"(g) The Project, from the commencement of work to completion, or to such earlier date or dates when the *221 Owner may take possession and control in whole or in part as hereinafter provided shall be under the charge and control of the Contractor and during such period of control by the Contractor all risks in connection with the construction of the Project and the materials to be used herein shall be borne by the Contractor. The Contractor shall make good and fully repair all injuries and damages to the Project or any portion thereof under the control of the Contractor by reason of any act of God or other casualty or cause whether or not the same shall have occurred by reason of the Contractor's negligence. The Contractor shall hold the Owner harmless from any and all claims for injuries to persons or for damage to property happening by reason of any negligence on the part of the Contractor or any of the Contractor's agents or employees during the control by the Contractor of the Project or any part thereof."
To secure the performance of the contract Delta entered into a bond for the benefit of C & L, and defendant executed said bond as a compensated surety. The bond in the penal sum of $243,253.65 contained a number of conditions, including the following:
"The condition of this obligation is such that if the Principal shall well and truly perform and fulfill all the undertakings, covenants, terms, conditions and agreements of the Construction Contract * * * and shall fully indemnify and save harmless the Owner and the Government from all costs and damages which they, or either of them, shall suffer or incur by reason of any failure so to do, and shall fully reimburse and repay the Owner and the Government for all outlay and expense which they, or either of them shall incur in making good any such failure of performance on the part of the Principal, * * * then this obligation shall be null and void, but otherwise shall remain in full force and effect."
Subsequently, Delta entered upon the performance of the contract, and in the course of the work an employee of Delta, one McEntire, sustained serious personal injuries. On or about February 9, 1948, McEntire filed suit against C & L and others in the Circuit Court of Lincoln County, Arkansas, and recovered a judgment for $40,000.[1] The defendants appealed, and on December 19, 1949, the judgment was affirmed by the Supreme Court of Arkansas. Rehearing was denied on February 6, 1950. C. & L. Rural Electric Cooperative Corporation v. McEntire, 216 Ark. 276, 225 S.W.2d 941.
At the time of McEntire's injury C & L had in force a policy of public liability insurance issued by plaintiff Employers Mutual Liability Insurance Company of Wisconsin, which policy had an applicable limit of $25,000. On February 13, 1950, the McEntire judgment was paid. In discharging said judgment Employers Mutual paid its policy limit of $25,000, defendants other than C & L paid $5,000, and C & L paid the balance amounting to $10,742.99.
The policy issued by Employers Mutual contained a standard subrogation agreement, and after the McEntire judgment had been paid C & L and Employers Mutual filed a suit for indemnity against Delta in the Lincoln County Circuit Court. While the defendant in the instant case was not made a party to that suit, it was notified of its pendency and was kept constantly advised as to its progress.
Delta demurred to the complaint filed against it by C & L and Employers Mutual, and the demurrer was sustained by the trial court. The Supreme Court of Arkansas reversed on January 12, 1953, and denied rehearing on April 20 of that year. C. & L. Rural Electric Cooperative Corporation v. Kincaid, 221 Ark. 450, 256 S.W.2d 337. It was held by the Supreme *222 Court that Delta was required under its contract to provide indemnity on account of the McEntire judgment, but that the amount recoverable by C & L and Employers Mutual would have to be diminished in proportion to any negligence of which C & L might have been guilty which proximately contributed to the McEntire injury. The cause was remanded to the Circuit Court of Lincoln County for trial on the merits.
The case against Delta was tried in February 1956, and the jury found that McEntire's injuries were proximately caused by the concurrent negligence of Delta and C & L and that the fault should be apportioned 60 percent to Delta and 40 percent to C & L. Judgment was entered on the jury verdict, and the Supreme Court of Arkansas affirmed, except that it modified the judgment so as to allow interest to the appellees. Kincade v. C. & L. Rural Electric Coop. Corp., 227 Ark. 321, 299 S.W.2d 67. The opinion of the Supreme Court was rendered on February 11, 1957, and rehearing was denied on March 18, 1957.
As finally determined the amount of C & L's judgment against Delta was $8,879.63, together with costs and interest from May 11, 1957, and the amount of Employers Mutual's judgment was $22,198.08, plus costs and interest from May 11, 1957. No part of those sums has been paid by Delta. After the entry of the judgment against Delta plaintiffs made demand upon American Casualty for payment, and said demand having been refused, this action was commenced on October 16, 1957, in the Circuit Court of Pulaski County, and was duly removed to this Court.[2] It will be noted that while this action was commenced only a few months after the liability of Delta to plaintiffs had been finally fixed and measured, it was not commenced until more than seven years after the original McEntire judgment against C & L had been satisfied.
It is the theory of the plaintiffs that the defendant, American Casualty Co., as surety on Delta's performance bond, is liable to indemnify plaintiffs to the extent of 60 percent of the McEntire judgment and is also liable for a statutory penalty and attorney's fee. It is the further theory of the plaintiffs that, since the liability of Delta under its indemnity agreement did not become fixed and liquidated until final disposition of the suit against Delta, plaintiffs' cause of action against defendant did not accrue until May 1957.
In its answer defendant tenders a number of defenses, including the plea that the action is barred by the Arkansas five year statute of limitations, Ark.Stats., 1947, § 37-209, which provides that all actions on promissory notes and other instruments in writing, not under seal, shall be commenced within five years after the cause of action shall accrue, and not thereafter. Since the Court is of the opinion that the plea of limitations is well founded, it is unnecessary to mention or discuss the other contentions advanced by defendant.
It is a well settled principle that a cause of action for indemnity under a contract such as Delta's accrues when the obligee suffers actual damage, including financial loss occasioned by the payment of money. 27 Am.Jur. Indemnity, §§ 20, 21, and 24; 42 C.J.S. Indemnity § 14(c), pp. 589-591; Carter v. Adamson, 21 Ark. 287.
It is also well established that ordinarily an obligee's cause of action against his obligor's surety accrues at the same time as does the cause of action against the principal obligor, and that it is not necessary for the principal's obligation to be settled or determined before the obligee can proceed against the surety. See in this connection: 50 Am.Jur. Suretyship, §§ 79, 183-184; 72 C.J.S. Principal and Surety §§ 251, 252, 263.
*223 In German Insurance Co. v. Smead, Ark., 13 S.W. 332, the facts were that one Harper gave a bond to the insurance company conditioned that he would faithfully account to the latter for all moneys and properties coming into his hands as the company's agent. Smead and McKemie were sureties on the bond. Harper absconded, and suit was filed against the sureties alone, the contention being that Harper had failed to account for certain moneys that he had collected. The sureties answered the complaint with a general denial. The trial court, over objection, instructed the jury that its verdict must be for the defendants unless it was found "that there has been ascertained balance due from Harper to the plaintiff, of which Harper had notice before the institution of this suit." The jury found for the defendants. The Supreme Court of Arkansas reversed. In a per curiam opinion it was said, "The fourth instruction given at the instance of the defendants * * * is clearly erroneous." The headnote to the opinion is as follows:
"In an action against the sureties on a bond conditioned that the principal shall promptly account for, and pay over and apply, all sums of money received for plaintiff, plaintiff need not show that before bringing suit there had been a settlement of accounts between it and the principal, and the balance due plaintiff ascertained."
In 50 Am.Jur. Suretyship, § 175, p. 1018, it is said that where "by the terms of the contract, the obligation of the surety is the same as that of the principal, then as soon as the principal is in default, the surety is likewise in default, and may be sued immediately and before any proceedings are had against the principal." The same work states that a cause of action on a bond accrues immediately on the breach of any of its conditions, and that the liability of a surety, as a general rule, accrues at the same time as that of the principal. (50 Am.Jur. Suretyship, § 183, p. 1023.) And in the next section (§ 184) it is said that the statute of limitations begins to run in favor of a surety from the time that he is subject to suit.
Applying the foregoing principles the Court is convinced that plaintiffs' cause of action against both Delta and the defendant accrued not later than February 1950 when plaintiffs discharged the McEntire judgment, and that from that time forward they were entitled to bring suit to enforce that cause of action and to obtain a judicial determination of the existence and extent of the obligation of Delta and of defendant to indemnify plaintiffs. And from that time the statute of limitations began to run in favor of both Delta and the defendant.
The argument of plaintiffs that their cause of action against defendant did not accrue until their claim for indemnity from Delta had been definitely established and liquidated by reduction to judgment cannot be sustained. The liability of defendant on its bond was not limited to claims against Delta that had been liquidated or reduced to judgment. Said liability was co-extensive with that of Delta.
Of course, neither Delta nor defendant could be compelled to expend any money by way of indemnity until the lawsuit against Delta in the Circuit Court of Lincoln County had been disposed of. That consideration related simply to the merits of plaintiffs' claims and to the amount of their recovery. It had nothing to do with the accrual of plaintiffs' cause of action. Any obligee suing on a bond may be confronted with a meritorious defense or find himself unable to recover the full amount sued for. The obligation to indemnify, if any, and the extent of that obligation were fixed when the McEntire judgment was discharged, although the existence and extent of such obligation had to be determined in the course of the State court proceeding, and when there was such a determination it was retroactive in effect and related back to the accrual of the cause of action. That principle was expressly recognized as against Delta when the Supreme Court of Arkansas in the last phase of the State court litigation involving that company allowed plaintiffs interest on the amount of their *224 recovery from the date upon which the McEntire judgment was discharged. Kincade v. C. & L. Rural Electric Coop. Corp., 227 Ark. 321, 330-331, 299 S.W. 2d 67.
Since plaintiffs did not commence their action against the surety until after a lapse of more than seven years after the accrual of their cause of action, their claim is barred by limitations, and their complaint will be dismissed.
NOTES
[1] McEntire had received workmen's compensation from Delta, and Delta was not named as a party defendant in McEntire's suit.
[2] Delta was or is a Mississippi concern, and in 1958 plaintiffs here commenced a suit on their judgment against Delta in the federal court in Mississippi. Plaintiffs obtained a default judgment in that suit, but have not collected anything on said judgment.
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IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
December 7, 2004 Session
ROBERT STEVEN JOHNSON v. TENNESSEE FARMERS MUTUAL
INSURANCE COMPANY
Appeal from the Circuit Court for Knox County
No. 1-106-98 Dale C. Workman, Judge
No. E2004-00250-COA-R3-CV - FILED MARCH 9, 2005
The issue for jury resolution was whether Tennessee Farmers Mutual Insurance Company refused
in bad faith to settle a damage suit against Johnson by Moore within his policy limits of $25,000, and
exposed him to a final judgment of nearly $200,000.00. Johnson’s defense entirely focused on his
asserted non-liability, not withstanding that Moore’s medical expenses exceeded $75,000, and his
injuries were serious and permanently disabling, thus reasonably indicating that if Johnson was
found to be negligent, the percentage of his fault necessarily would have to be minimal in light of
his insurance limits. An unidentified van forced Johnson to crash head-on into Moore, and the jury
allocated 50% of Moore’s damages to Johnson and 50% to the van. After this allocation was
affirmed on appeal, Johnson sued Tennessee Farmers Mutual Insurance Company, claiming that
Moore’s claim could have been settled for his policy limits. Tennessee Farmers Mutual Insurance
Company presents a host of issues, beginning with the refusal of the court to direct a verdict, and
continuing with complaints of the trial judge commenting on the evidence and refusing corrective
jury instructions. The judgment is reversed for the latter two reasons.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed and
Remanded
WILLIAM H. INMAN , SR. J., delivered the opinion of the court, HERSCHEL P. FRANKS, P.J., filed a
separate opinion concurring in part, dissenting in part, and SHARON G. LEE, J., filed a dissenting
opinion.
John T. Johnson, Jr., Knoxville, Tennessee, and Michael R. Campbell, Chattanooga, Tennessee, for
appellant, Tennessee Farmers Mutual Insurance Company.
Bryan L. Capps and Sidney Gilreath, Knoxville, Tennessee, for appellee, Robert Steven Johnson.
OPINION
A jury determined that Tennessee Farmers Mutual Insurance Company [hereinafter
“Tennessee Farmers”] acted in bad faith in failing to settle a lawsuit against the plaintiff filed by
Christopher Moore. The policy issued by Tennessee Farmers provided liability coverage of $25,000
for the plaintiff, far less than the verdict in favor of Moore.
Tennessee Farmers appeals, insisting that its motion for a directed verdict should have been
granted, or, in the alternative, that it should be granted a new trial because of the cumulative effect
of numerous errors committed by the trial judge in commenting upon the evidence and refusing to
give appropriate jury instructions.
We have determined that the trial judge’s comments on the evidence require a new trial. We
have also determined that the refusal of the trial judge to instruct the jury per the several requests,
even when considered in isolation, require a new trial. The cumulative influence of these errors, as
hereafter explained, substantially impaired Tennessee Farmers’ right to a fair trial.
We are frank to say that the issue of whether the motion of Tennessee Farmers for a directed
verdict should have been granted is not simplistic of resolution, but we have concluded that for the
reasons hereafter recited the motion was properly denied.
Overview
This litigation arises from an automobile accident which occurred October 25, 1994, in Knox
County, involving a vehicle driven by the plaintiff Robert Steven Johnson [hereinafter “Johnson”],
a vehicle driven by Christopher Moore [hereinafter “Moore”], and a white van driven by an unknown
[hereinafter “John Doe”] motorist. Both Moore and Johnson were insured under liability policies
issued by Tennessee Farmers with minimum limits of liability coverage ($25,000/$50,000) and equal
limits of uninsured motorist coverage. Moore filed suit against Johnson and John Doe for his
personal injuries. Tennessee Farmers was served as uninsured motorist carrier with respect to
Moore’s action against John Doe. Johnson filed suit against John Doe. Tennessee Farmers was
served with process as uninsured motorist carrier with respect to Moore’s action against John Doe.
The actions of both Moore and Johnson against John Doe were settled by Tennessee Farmers
paying its uninsured motorist coverage policy limits, under each policy, to each policyholder. The
suit by Moore against Johnson resulted in a jury verdict allocating 50% fault to John Doe and 50%
to Johnson which resulted in a judgment in favor of Moore against Johnson for $193,750,
substantially in excess of Johnson’s liability coverage of $25,000.
The lawsuit at Bar was filed against Tennessee Farmers by Johnson alleging that Tennessee
Farmers was guilty of bad faith in refusing to settle his case within policy limits.
Tennessee Farmers filed its Answer asserting that it had properly investigated the facts of the
accident, and concluded that (1) Johnson was guilty of no negligence in connection with the
underlying accident, and (2) that it had retained competent counsel to represent and defend Johnson
in the underlying action brought against him by Moore, and (3) had relied upon the advice of the
attorney in determining to try the underlying action believing that a jury would not find Johnson
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guilty of any negligence. The jury found that the failure of Tennessee Farmers to settle the case
against Johnson evidenced bad faith, and returned a verdict for the excess.
Standard of Review
Tennessee’s traditional standard for reviewing the evidentiary foundation of a jury’s verdict
is codified in Tenn. R. App. P. 13(d). The rule provides that “[f]indings of fact by a jury in a civil
action shall be set aside only if there is no material evidence to support the verdict.” Appellate
courts employing this standard may not review the evidence de novo. Alexander v. Armentrout, 24
S.W.3d at 271. Nor may they weigh the proof to determine where the preponderance of the evidence
lies. Reynolds v. Ozark Motor Lines, Inc., 887 S.W.2d 822, 823 (Tenn. 1994); Overstreet v.
Shoney”s, Inc., 4 S.W.3d 694, 718 (Tenn. Ct. App. 1999). Rather, appellate courts must (1) take
the strongest legitimate view of the evidence that favors the verdict, (2) assume the truth of all
evidence that supports the verdict, and (3) allow all reasonable inferences to sustain the verdict.
Barnes v. Goodyear Tire & Rubber Co., 48 S.W.3d 698, 704 (Tenn. 2000); Dickey v. McCord, 63
S.W.3d 714, 719 (Tenn. Ct. App. 2001). If the record contains any material evidence to support the
verdict, the judgment based on the verdict must be affirmed. Crabtree Masonry Co. v. C & R
Constr., Inc., 575 S.W.2d 4, 5 (Tenn. 1978); Moss v. Sankey, 54 S.W.3d 296, 298-99 (Tenn. Ct.
App. 2001).
The Issues
I. Whether the Court erred in failing to grant Tennessee Farmers’ motions for directed verdict.
II. Whether the Court erred in failing to correctly charge the jury regarding bad faith in
accordance with Tennessee Farmers’ request to instruct number 4, 6, and 14.
III. Whether the Court erred in repeatedly allowing plaintiff to introduce evidence relating to the
timing of payments by Tennessee Farmers of uninsured motorist coverage benefits to
Christopher Moore and Robert Johnson.
IV. Whether the Trial Court erred in failing to charge the jury in accordance with Tennessee
Farmers’ request to instruct number 12 that Tennessee Farmers had no duty to make
uninsured motorist coverage payments to Christopher Moore and Robert Johnson.
V. Whether the Court erred in failing to charge Tennessee Farmers’ request to instruct number
15 on the validity of the uninsured motorist coverage offset provision in the Moore policy.
VI. Whether the Court erred by commenting upon the evidence during the testimony of witness
Zane Daniel and by stating that Tennessee Farmers’ policy issued to Christopher Moore did
not contain an uninsured motorist coverage offset provision which would prevent Moore
from recovering uninsured motorist coverage after payment of Robert Johnson’s liability
coverage.
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VII. Whether the Court erred in failing to charge Tennessee Farmers’ request to instruct number
1 that George Buxton was an independent contractor in his relationship with Tennessee
Farmers.
VIII. Whether the Court erred by commenting upon the evidence during the testimony of witness
Zane Daniel and in stating that attorney George Buxton represented Tennessee Farmers in
the underlying action brought by Christopher Moore against Robert Johnson.
IX. Whether the Court erred by denying Tennessee Farmers’ Motion for Mistrial based upon the
Court’s erroneous comments upon the evidence, including rulings regarding the uninsured
motorist offset provision in the Moore policy and regarding Buxton’s representation of
Tennessee Farmers.
I.
We first consider if the record reveals any “material evidence to support the verdict.” Rule
13(d) Tenn. R. App. P.
Johnson was driving his small 1982 Mazda RX7 southbound on Highway 33, in Knox
County, a four-lane divided highway where the accident occurred. Moore was traveling northbound
on a section which was straight with vision unobstructed.
Johnson and Moore were each in the left inside lane of travel. There was a white van in the
right southbound lane near Johnson’s vehicle. As Johnson started to pass the white van it swerved
suddenly into his lane, and Johnson swerved to the left, across the balance of his lane of travel,
across the four foot median, and into the oncoming lane of travel where he collided head-on with
Moore. Both Moore and Johnson were seriously injured.
The investigating officer confirmed the existence of the white van and included in the
accident report the actual lane measurements at the scene. He did not indicate that either Johnson
or Moore did anything wrong.
At the time of the accident, adjuster Dennis Ray Hinkle [hereinafter “Hinkle”] was a field
claims representative for Tennessee Farmers assigned to investigate the accident. He had been an
adjuster with Tennessee Farmers for eighteen years. He confirmed Johnson’s coverage, obtained the
accident report, took a statement from Johnson, and contacted eyewitnesses which included Tina
Marie Miracle, Vickie Linderman and Ray Hall who confirmed that the white van existed; Johnson
stated he had been following the van in the right land and just before the collision had decided to
pass the van; that the van swerved into Johnson’s lane; that there was no contact between Johnson
and the van; and that the impact occurred in Moore’s lane. Hinkle took no photographs of the scene
and made no measurements. On November 8, 1994, fourteen days after the collision, based on this
investigation, he wrote a claims summary stating “we will be denying liability as the accident is due
to the unknown van setting the entire event into motion.”
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Shortly after the accident, attorney Zane Daniel [hereinafter “Daniel”] was retained to
represent Moore. He wrote to Hinkle on December 21, 1994, enclosing copies of Moore’s medical
expenses to date and requesting medical payments coverage be extended to Moore. On December
23, 1994, Hinkle wrote to Daniel again stating that Johnson was not legally responsible for the
accident.
On October 17, 1995, Daniel filed suit in Knox County Circuit Court on behalf of Moore
against Johnson and against John Doe I and John Doe II as the unknown driver and unknown owner
of the white van.
In 1995, Johnson retained attorney A.C. Myers [hereinafter “Myers”] for the specific purpose
of filing suit against Tennessee Farmers to collect uninsured motorist [hereinafter “UM”] benefits.
Tennessee Farmers retained attorney Dennis Jarvis [hereinafter “Jarvis”] to defend the uninsured
actions filed by Johnson and Moore. Tennessee Farmers hired George Buxton [hereinafter
“Buxton”] to represent Johnson in the Moore v. Johnson case. Jarvis filed answers on behalf of
Tennessee Farmers in the Moore and Johnson UM claims denying that the white van ever existed.
On January 29, 1996, Buxton filed an answer on behalf of Johnson in the same tribunal alleging that
the sole cause of the collision was the white van. Jarvis had all the information received by
Tennessee Farmers and the information normally provided to attorneys, including the witness
statements, at the time he denied the existence of the white van in Tennessee Farmers’s answer.
Hinkle received copies of all the answers.
Buxton conducted his own investigation. He reviewed the accident report, visited the
accident scene, reviewed the statements of Johnson and the three witnesses, took photographs, and
met with Johnson five times. In May 1996, Buxton received and forwarded to Tennessee Farmers
an offer by Daniel recommending settlement of Moore’s claim against Johnson for policy limits.
On August 12, 1996, the discovery depositions of Moore and Johnson were taken by Daniel,
Buxton and Jarvis. During the depositions, all counsel learned that Johnson’s car was five feet wide;
that Johnson did not see Moore’s vehicle before impact; that Johnson stated he had just changed into
the left lane before the accident while witnesses confirmed that he had been in the left inside lane
all along; that his car went 3-5 feet into oncoming lane of Moore; and that Johnson’s vehicle was at
a 30 degree angle to Moore’s vehicle at impact. They also learned in Johnson’s deposition that at
the time Johnson began his evasive maneuver into Moore’s path, the white van was 2-3 feet in
Johnson’s lane and at most halfway. Buxton summarized the depositions and sent the summaries
to Hinkle.
After the depositions, Jarvis reported to Tennessee Farmers that in his opinion the proximate
cause of the accident was the John Does white van. He reported that Moore’s injuries were
extensive and that Moore’s medical bills at the time of the depositions were $66,412.35. He reported
that Johnson’s medical bills were $31,988. He opined that “[i]n lieu (sic) of the real and significant
injuries Moore sustained and the amount of medical bills incurred, this may well be a case which it
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would be economically expedient to go ahead and pay our UM coverage and get out of this case
without incurring additional expense.”
On October 21, 1996, nearly two years after the collision, Tennessee Farmers paid Johnson
his UM limits of $25,000, which settled Johnson’s action against John Doe, leaving the Moore’s
claim against Johnson and John Doe. Thereafter, attorney Myers wrote Buxton requesting that
Johnson’s liability coverage limits of $25,000 be paid to settle Moore’s claim against Johnson.
Initially Johnson and Myers did not want Tennessee Farmers to settle Moore’s claim because they
wanted to resolve the Johnson UM claim before anything was done on the liability claim of Moore.
Ultimately, Myers demanded Tennessee Farmers pay Johnson’s liability limits to Moore because he
was concerned about an excess judgment, owing to the comparative fault doctrine.
Buxton enquired of Daniel if he would accept Moore’s UM limits and execute a release as
to Johnson, because Tennessee Farmers would not want to pay Moore his own UM unless it resulted
in a complete resolution of Moore v. Johnson and Doe. Jarvis testified that Moore’s UM claim was
not settled at the same time as Johnson’s uninsured motorist claim was settled because Moore’s case
was set for trial at a later date. In any event, the remaining claims of Moore did not settle in 1996,
and the Moore v. Johnson and Doe case was set for trial February 24, 1997.
During the weeks leading up to trial, there were demands by Myers to settle the claim and
offers to accept limits by Daniel. On January 23, 1997, Buxton wrote Tennessee Farmers sending
a copy of Myers’ letter requesting settlement of the claim against Johnson and stating that Johnson
was not guilty of any fault. Buxton recommended that no offer of settlement be made, but stated that
he could not guarantee that no fault would be assessed against Johnson.
On February 6, 1997, Daniel wrote Buxton describing Moore’s injuries and indicating that
he would recommend to Moore that he accept Johnson’s policy limits if Tennessee Farmers would
also pay Moore his $25,000 UM limits.
Buxton and Jarvis conferred on January 28, 1997 about settlement strategy. At the time,
Moore still had pending claims against both Tennessee Farmers (Doe) and Johnson. When Jarvis
and Buxton discussed settlement, neither of them knew that if Tennessee Farmers paid Moore the
liability limits of the Johnson policy, Moore would not be entitled to receive his own UM limits
under his Tennessee Farmers auto policy. Before the trial of the case of Moore vs. Johnson,
Tennessee Farmers agreed to pay Moore his uninsured motorist policy limits of $25,000. A few days
before trial, Johnson met with Buxton and inquired about comparative fault. Buxton confirmed to
Johnson that a small amount of fault, even 10 percent, would exceed his limits. Tennessee Farmers
ultimately made no offer to pay Johnson’s liability limits to Moore, and the Moore v. Johnson case
went to trial on February 24, 1997.
At the trial, the state trooper on whom Tennessee Farmers based its initial decision to deny
Moore’s claim against Johnson, did not testify, and the accident report was not filed. The pertinent
facts of the investigation were stipulated including the weather conditions and that the lanes were
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twelve feet wide with a four foot dividing median. There were no medical deposition. Moore’s
medical expenses were stipulated to be $75,000 and his injuries were not contested. Buxton allowed
Daniel to read a summary of Moore’s extensive injuries which included a fractured skull and
resulting damage to the frontal lobes of his brain; a crushed right eye; broken nose; broken jaws,
chipped teeth, upper lip ground off, fingers of his left hand partially ground off, scars on his face,
shoulders, hands; a broken back, and loss of hearing in his right ear. He had memory problems,
difficulty speaking, vision problems, difficulty playing guitar which he enjoyed and lost sense of
smell and taste.
After all proof, Buxton moved for a directed verdict as to Johnson arguing that there was no
proof of any negligence by Johnson. The motion was denied and the case went to the jury. The jury
initially deadlocked 11 to l. Buxton discussed the deadlock with Johnson and advised Johnson that
he had the right to insist on a unanimous verdict which would result in a a mistrial. Buxton advised
Johnson to accept the majority verdict, and Johnson agreed. During the discussions, Buxton told
Johnson that accepting the majority verdict was a “serious” or “high stakes” gamble.
After the one hold out juror was excused, the jury announced that they found Johnson at fault,
and after further deliberation, announced their verdict that John Doe was 50 percent at fault and
Johnson was 50 percent at fault. The jury awarded Moore $387,500 which resulted in a judgment
against Johnson for $193,750. After the judgement, Tennessee Farmers paid Johnson’s policy limits
of $25,000 to Moore.
Hinkle testified that he maintained authority from 1994 through the end of the trial to settle
the claim against Johnson. He also had complete authority to settle the uninsured motorist claims
of Moore and Johnson. He confirmed that Johnson had “no say” in whether or not Tennessee
Farmers settled the case against him. He communicated openly with Buxton about whether or not
to settle the various claims all the way up until the time of the underlying trial. He had authorized
the settlement of the Moore and Johnson UM claims. Despite Tennessee Farmers’s insistence that
the van was at fault, Hinkle had no explanation for not paying the UM limits to Johnson promptly.
When he received the letter from Myers demanding that Tennessee Farmers pay Johnson’s liability
limits to Moore, his only discussion with Buxton concerned the fact that they received the letter and
none of the facts had changed.
Hinkle employed Buxton and put great weight on his opinion, but conceded that he need not
follow Buxton blindly. Buxton had no authority to settle any claim without Tennessee Farmers’
approval, but he was authorized to communicate with Daniel regarding Tennessee Farmers’
settlement position. He testified that after Buxton was hired, it was not a possibility under the
circumstances that Daniel could contact Tennessee Farmers directly to discuss settlement of the
claims.
Hinkle knew that he had an obligation as an insurance adjuster for Tennessee Farmers to fully
investigate and evaluate all of the facts surrounding a case before making a decision about the merits
of the claim. He agreed that a proper evaluation of the Moore and Johnson cases would have
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required him to review Buxton’s investigation and Buxton’s recap of depositions. He received the
deposition summaries, but he never read them line by line, and if he read them at all he read them
hurriedly.
Hinkle based his original denial on his initial investigation, but realized from the beginning
that any award by the jury would be substantial and in excess of Johnson’s policy limits. He
conceded that if he had considered all of the facts that had been developed in the case, it should have
caused him some concern that fault would be assessed against Johnson.
Hinkle testified that the multiple claim files were separated in order to avoid internal
conflicts. He did not discuss the cases jointly with Buxton and Jarvis, and denied that the UM claims
had any bearing on the decision on whether to pay the liability claim of Moore. He also denied that
he told Buxton that Tennessee Farmers could not or would not pay all three claims. But when
questioned about the significance of the UM claims versus the liability claim of Moore, he confirmed
his belief that Johnson could not have received his own UM benefits and then have his liability paid
out on his behalf: “you can’t pay the liability portion on behalf of them and then pay his UM. That’s
the same instance - - it just doesn’t work. He is either at fault or he’s not.”
Hinkle knew that of the three claims only Johnson had any personal assets at stake. He
understood comparative fault prior to the underlying trial, and he acknowledged Buxton’s advice that
there was no guarantee that they would be able to hold Johnson’s fault at zero. He knew the jury
would be required to consider comparative fault, and he knew the monetary damages would be huge.
He then confirmed that prior to the underlying trial, he knew Tennessee Farmers had two
options which would have avoided any possibility of a verdict against Johnson and a bad faith claim.
He believed that under the policies Tennessee Farmers could have paid Johnson’s liability to Moore
and neither Moore or Johnson would have been entitled to UM benefits. He also knew that he could
pay Johnson’s $25,000 liability limits to Moore thereby eliminating Moore’s right to collect his own
UM and pay Johnson his own $25,000 UM limits and thus with the same $50,000 he ultimately
spent on the UM claims, meet his obligations to both insureds. This action would have released
Johnson and prevented the underlying trial. He believed these options to be true, and neither was
seen in hindsight. He never discussed these options with Buxton.
Hinkle then conceded that the way he chose to pay the payments under the Moore and
Johnson policies (two UM payments instead of one UM payment and one liability payment)
guaranteed that there was going to be a trial where Johnson’s fault would be compared with the
van. At that trial, Hinkle knew that Johnson would have to be adjudged to have little or no fault to
confine the verdict to policy limits.
Daniel testified that he had been a trial attorney since 1965. He testified that he thought
Johnson was at fault from his first review of the case because Johnson traveled out of his lane across
a four foot median and hit Moore in his lane with no contact between the white van and Johnson’s
vehicle. He conducted an investigation that included scene review, witness contact, photographs of
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the scenes, review of the accident report, measurement of the lanes and median and review of the
sight distance had by Johnson. He put little emphasis on the accident report because it was
inadmissible, and the officer did not witness the accident. He confirmed that Johnson could see at
least 500 yards or one quarter mile straight ahead toward the oncoming Moore vehicle. In addition
to these facts he thought it significant from depositions that Johnson’s car was narrow at five feet
wide. On the issue of whether Johnson was paying attention prior to the collision, Daniel found that
(1) Johnson, unlike the eyewitnesses, placed himself in the left lane of travel leading up to the
collision, and (2) that Johnson somehow could recall the specific rock group and song playing at the
time of the collision.
Based on these facts, Daniel made specific allegations of negligence against Johnson in the
Moore v. Johnson and John Doe I & II Complaint. He received the Answer from Tennessee
Farmers and Jarvis in response to Moore’s UM claim in which Tennessee Farmers inexplicably
denied existence of the van fourteen months after collision.
After the case was filed and Buxton was hired, Daniel did not feel it appropriate to discuss
settlement directly with Hinkle, and the offers he made to settle the liability claim against Johnson
for policy limits were all communicated through Buxton. He understood Buxton had authority to
negotiate the case on behalf of Tennessee Farmers, and he communicated with Buxton about settling
Moore’s claims both by phone and by letter. He testified that he repeatedly offered to settle the
claim against Johnson for policy limits and that he did not make the offer conditional on Tennessee
Farmers’ payment to Moore of both his UM and Johnson’s liability coverage. Shortly before trial,
he called Buxton to explain his position in detail as to why Johnson could be found at fault and
reiterated that even 10 percent fault on Johnson with a $250,000 verdict would jeopardize Johnson
personally.
Buxton testified that in his judgment, Moore and Daniel were only raising two issues to place
fault on Johnson: (1) a discrepancy concerning which lane Johnson had been in at a particular point
in time and (2) Johnson’s recollection of the music on the radio at the time of the accident. Buxton
testified that neither issue had any merit based upon his experience, but he realized that a finding of
near-zero fault on the part of Johnson would be required to stay within policy limits.
The jury did not agree. The split was 11-1, but Buxton did not know whether that was 11
for Johnson or against him. He explained to Johnson the options, recommended taking the majority
verdict, but acknowledged that “there was a gamble” in doing that.
Knoxville attorney Thomas Scott [hereinafter “Scott”] testified as an expert witness on behalf
of the plaintiff. Scott testified that he was familiar with the standard duties that insurance companies
owe their policyholders. He saw nothing wrong with Hinkle’s initial denial of Moore’s claim against
Johnson, but, in his opinion, after depositions had been taken, there was information available to
Tennessee Farmers which should have put it on notice that there was significant exposure for an
excess judgment, that they should have settled the case, and that the failure to do so was bad faith.
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Scott disagreed with Tennessee Farmers’s assessment of zero fault and also believed the
evaluation process was not complete because Hinkle ignored pertinent facts which should have put
him on notice that it was a likely case for an excess verdict. As such, Scott opined that there was
inadequate evaluation of comparative fault on the part of Tennessee Farmers. He testified that there
was no evidence in the Tennessee Farmers’ claim file that they ever considered comparative fault
or what would happen if they were wrong about absolute zero fault on Johnson.
He also believed that the relationship between Buxton, Tennessee Farmers and Johnson
allowed Tennessee Farmers to give credence to the advice of Buxton but with the caveat that it
cannot blindly accept his advice when the lawyer never discusses the possibility of comparative fault.
Scott also explained that within the relationship, very little credence should have been given to
Johnson’s opinion about his own fault because he knew nothing about how he could become liable
under the law and facts.
Scott testified that Tennessee Farmers had a duty to act in good faith with Johnson and not
to gamble with his rights. In doing so, Tennessee Farmers had a duty to consider how much
exposure there was to Tennessee Farmers as opposed to exposure to Johnson if the assessment of
fault was wrong. According to Scott, good faith required Hinkle not only to be faithful to Johnson
and exercise diligence, which required re-evaluation of Moore’s liability claim after the depositions
and in light of the failed directed verdict given the massive injuries and pending huge verdict. Scott
thought the failed directed verdict motion in the underlying trial was a critical juncture, and
Tennessee Farmers should have had a line of communications with Buxton during trial.
Phillip A. Fleissner [hereinafter “Fleissner”], an attorney from Chattanooga, testified as an
expert witness for Tennessee Farmers. After reviewing all relevant material, Fleissner believed that
Tennessee Farmers’s initial denial of the claim was appropriate.
Fleissner believed that Tennessee Farmers had a duty independent of Buxton to investigate
and evaluate the Moore v. Johnson claim and that duty was continual from beginning to the end of
a case. During that continuum, he agreed that as an insurance company, you do not “turn your mind
off.” He agreed that any fundamental investigation includes consideration of accident scene
characteristics such as sight distance, point of impact, and lane measurements. He agreed that it was
most important in his evaluation to see if Buxton and Tennessee Farmers had looked at the pertinent
fact of the accident. He testified that McIntyre v. Ballentine, 833 S.W.2d 53 (Tenn. 1992), did not
change Tennessee Farmers’ duty of good faith, but it changed “some of the principles of negligence
that have to be analyzed and applied when you’re evaluating whether a case is one of liability or not,
and if it is, how much damages might be given.”
He agreed that Hinkle should have reviewed the deposition summaries and/or the entire
context of Buxton’s communications, but he saw nothing in Buxton’s reports to Tennessee Farmers
that should have alerted them that continued denial of the claim was improper. Fleissner testified
that where an insurance company hires competent counsel for the policyholder, the company should
follow the attorney’s advice and professional judgment. Fleissner saw nothing in the file which
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indicated that Tennessee Farmers should have seen something incorrect or deficient in Buxton’s
opinion.
Fleissner agreed that $387,500 was a foreseeable verdict given the severity of the injuries to
Moore. He also agreed that any fault assessed against Johnson would necessarily be near-zero in
order to avoid an excess, and that as the amount of money awarded by the jury increased, any
percentage of fault on Johnson must decrease exponentially, considering the $25,000 policy limits.
Fleissner agreed with Hinkle that under the Moore and Johnson policies, if Tennessee
Farmers had paid Johnson’s liability limits to Moore that Moore would not have been entitled to
receive his own UM limits.
Fleissner found no evidence that Tennessee Farmers placed its financial interest ahead of
Johnson, and saw no evidence of any motive on Tennessee Farmers’ part in denying the claim other
than a good faith belief that Johnson was not guilty of any fault and the Tennessee Farmers acted in
good faith.
Analysis
I.
In Tennessee, an insurer is liable in excess of policy limits when it acts in bad faith. A
leading case dealing with the issue is Southern Fire & Cas. Co. v. Norris, 250 S.W.2d 785 (Tenn.
Ct. App. 1952), in which the principle is succinctly described.
The insured surrenders to the insurer the right to investigate and
compromise or contest claims knowing that, in event of a claim, the
insurer will have its own interests to consider. But an insured also
has a right to assume that his interest will not be abandoned merely
because the insurer faces the prospect of a full loss under the policy.
The relation is one of trust calling for reciprocity of action. The
insured owes the duty of exercising good faith and diligence in
protecting the interest of its insured.
The principle was further elaborated in State Auto Ins. Co. v. Rowland, 427 S.W.2d 30
(Tenn. 1968):
An insurer having exclusive control over the investigation and
settlement of a claim may be held liable by the insured for an amount
in excess of the policy limits if, as a result of bad faith, it fails to
effect settlement within the policy limits; and this may be true even
through the injured party did not make an offer of settlement within
the policy limits. However, in order to prevail in such a case, the
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insured must prove that the failure to settle within policy limits is
“fraudulent or in bad faith”.
% % % % %
. . . (1) That good faith required the Company to investigate the claim
to such an extent that it would be in position to exercise an honest
judgment as to whether the claim should be settled; (2) That the
material question was not what the actual facts were but what facts
relative to the accident and injuries to Davis were known to the
insurer and its agents ‘which they should have considered in deciding
whether it should or should not settle an action brought against the
insurer as the reasonable thing to be done’; (3) That a mere mistake
of judgment would not constitute bad faith; (4) That while the right
of the insurer to control negotiations for settlement must be
subordinated to the purpose of the contract to indemnify the insured
to the limit of the policy, there must be bad faith which resulting
injury to the policy holder before a cause of action accrues; (5) That
if the insurer dealt fairly with the insured and acted honestly and
according to its best judgment it would not be liable; (6) That it owed
its insured no duty to settle merely because a settlement could be
made within the limits of the policy.
Tennessee Farmers premised its motion for directed verdict on the basis that Johnson’s only
argument of bad faith was that: (1) in hindsight, given the facts in Moore v. Johnson, the case should
have been settled, and (2) it held an honest belief that Johnson would be found zero at fault. The
trial judge found both arguments to be without merit and denied the motions.
Johnson argues that the denial of the directed verdict motions was proper because he clearly
proved through direct and circumstantial evidence: (1) that Tennessee Farmers had an affirmative
duty to deal with Johnson in good faith and place his financial interest at least equal to Tennessee
Farmers’ own interests; (2) that the standard of care in the insurance industry for discharging that
duty required Tennessee Farmers, not Buxton, to honestly, continually and diligently evaluate all of
the evidence that would be presented against Johnson at trial including damages; and (3) that
Tennessee Farmers fell below the standard of care and breached that duty by, (a) failing to diligently
and continuously investigate and re-evaluate all the facts of the accident and damage exposure while
blindly relying on advice of counsel, and (b) by failing to place Johnson’s interest at least equal to
Tennessee Farmers’ when deciding how to settle the liability suit against him within the context of
Johnson’s and Moore’s competing uninsured motorist claims and policy.
There is no liability in Tennessee upon an insurer for judgment in excess of the policy limits
except in case of bad faith. Tennessee Farmers Mutual Insurance Company v. Hammond, 290
S.W. 2d 860 (Tenn. Ct. App. 1956). We are not aware of any reported cases which provides a
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concise definition of bad faith. Most of the cases which deal with the subject of bad faith give
guidance as to what is not bad faith.
The appellant argues correctly that negligence alone is not sufficient to render an insurer
liable for an excess verdict. Southern Fire & Casualty Co. v. Norris, supra. A refusal to negotiate
is insufficient evidence of bad faith where there was an honest belief on the part of the insurer that
the insured’s act was not the proximate cause of the accident, and that all liability could be avoided
on that basis. State Auto Ins. Co. of Columbus, Ohio v. Rowland, supra. An insurance company
is not guilty of bad faith when it relies upon the advice and counsel of claim agents, adjusters and
eminent lawyers, based upon facts revealed by careful investigation and careful examination of
witnesses, and has reached the opinion that there is no liability. Perry v. United States Fidelity &
Guaranty Company, 359 S.W.2d 1, 22 (Tenn. Ct. App. 1962).
Our Supreme Court has held that it is not bad faith to refuse to negotiate when there was an
honest belief that the insured’s act was not the proximate cause of the accident and that all liability
could be avoided on that basis. Alford v. National Emblem Ins. Co., 469 S.W.2d 375, 378 (Tenn.
1971.
It is clear that the attorney employed by Tennessee Farmers to defend Johnson - George
Buxton - was of the opinion that Johnson was not guilty of any negligence and that he would prevail
at trial. He, of course, stopped short of a guarantee. It is equally clear that Tennessee Farmers
believed that Johnson was not guilty of any negligence and that he not only could - but that he would
- prevail at trial. Both were mistaken, as it developed.
Johnson testified that every piece of information he ever gave to Buxton and Tennessee
Farmers was that he was not at fault. The investigating state trooper prepared an official accident
report, and in the section of the report covering contributing factors, the officer checked “none” for
Johnson.
Tina Marie Miracle was an eyewitness to the accident, and she gave a statement that the
driver of the white van was the sole cause of the accident. Vickie Linderman also witnessed the
accident, and she gave a statement that had she been in the same position as Johnson when the van
moved suddenly to its left, she did not know of any action she could have taken to avoid the
accident.
There was another witness listed on the police report by the name of Michael Ray Hall who
did not actually see the events prior to the accident, but he did hear someone say at the scene that
white van changed lanes and forced the sport car driver (Johnson) over. There was no witness who
challenged the essential elements of Johnson’s version of the accident, and accordingly, the state
trooper reasonably assigned no fault to Johnson.
Johnson also employed his uncle, attorney A.C. Myers, to pursue his uninsured motorist
claim against John Doe. Before taking of discovery depositions, Mr. Buxton reported to Tennessee
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Farmers that Johnson and Myers did not want Tennessee Farmers to settle Moore’s claim against
Johnson. Discovery depositions were taken in August 1996. Johnson heard nothing at the
deposition which indicated he was at fault, and his attorney George Buxton, still believed that 100
percent of the fault was on the white van, and so advised Tennessee Farmers.
We also note the testimony of attorney Dennis Jarvis who was retained by Tennessee Farmers
to represent it with respect to the uninsured motorist actions filed by Moore and Johnson.
Consequently, Mr. Jarvis’ position in the lawsuit was completely opposed to the position of Johnson
and George Buxton. If Mr. Jarvis was to be successful in defending the uninsured motorist claims
filed by Johnson and Moore, he would have to establish fault on the part of Johnson. As we noted,
in the initial answer he filed on behalf of Tennessee Farmers, Mr. Jarvis denied that there was any
unknown vehicle involved in the accident, and he denied that John Doe was at fault. But, after
taking discovery deposition, Mr. Jarvis was of the opinion that the proximate cause of the accident
was the John Doe white van, and this opinion was reported to Tennessee Farmers. Mr. Jarvis
recommended to Tennessee Farmers that it pay Johnson his $25,000 in UM coverage. This was
done, and later Tennessee Farmers also paid Moore his UM coverage limits before trial.
Before trial, Johnson’s attorney A.C. Myers, wrote to Buxton requesting that Johnson’s
liability coverage limits of $25,000 be paid to settle Moore’s claim. Although initially Johnson and
Myers indicated they did not want Tennessee Farmers to settle Moore’s claim, they planned to
collect Johnson’s UM coverage limits and then call upon Tennessee Farmers to settle Moore’s claim
against Johnson. Upon receipt of the letter, Buxton advised Tennessee Farmers that, in his opinion,
Johnson had no liability and recommended that no settlement offer be made to Moore. Specifically,
Buxton stated:
However, my professional opinion as to an evaluation of this case,
indicates that Mr. Johnson had no liability in the causation of this
accident and should be adjudicated to have zero fault. Where there
is no guarantee for that result, I would recommend against any offer
of settlement to the Plaintiffs based on the lack of liability of our
insured. In all events, please give me a call.
This was the last written communication and advice from Buxton to Tennessee Farmers.
At the time of trial, Hinkle was District Claims Manager for Tennessee Farmers, and he had
the authority to settle the claim against Johnson. However, it was his opinion that Johnson was
guilty of no fault, and never received any information which indicated Johnson was at fault, or that
Johnson had overreacted, or that there were any material discrepancies between the testimony of
Johnson and the witnesses.
Tennessee Farmers argues that it had a good faith belief that Johnson was not negligent based
upon its own investigation, the conclusion of the state trooper, the testimony and firm opinion of
Johnson that he was not at fault, the testimony of independent eyewitnesses, the opinion of an
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experienced competent attorney chosen to defend Tennessee Farmers with respect to the uninsured
motorist claims, and most importantly, the opinion of the competent experienced attorney who
defended Johnson.1
Tennessee Farmers argues that there is no evidence that it placed its financial interest ahead
of Johnson, and by making the voluntary uninsured motorist payments to Moore and Johnson before
trial, Tennessee Farmers ended up paying three (3) times as much as it would have paid based upon
the actual jury verdict.
The expert testimony of Thomas Scott, who testified on behalf of Johnson, was simply a
20/20 hindsight look at the evidence, which is what this Court does. As heretofore stated, he testified
that there was information available to Tennessee Farmers which should have put it on notice that
there was significant exposure for an excess judgment. Scott further testified that there was
inadequate evaluation of comparative fault and that the evaluation process did not seem to be
complete, because Tennessee Farmers ignored facts which should have put them on notice that it was
a likely case for an excess verdict. It is clear that Scott simply disagreed with the fault assessments
of the state trooper, the eyewitnesses, Hinkle, Buxton, Jarvis, and Johnson.
The appellant cites the prophetic words of Judge Avery in the case of Perry v. United State
Fidelity & Guaranty Company, supra, where he stated:
There is, as we see it, no way to find the defendant in this case guilty
of bad faith, when they have advice and counsel of claim agents,
adjusters and eminent lawyers, based upon facts revealed by careful
investigation, careful examination of witnesses under the right of
discovery of evidence, and have reached an opinion that there is no
liability on the part of the carrier of insurance, such as was Mr. Perry
in this case, unless we are just simply going to say that whenever the
judgment in such case exceeds the amount of the maximum liability
carried, the insurance carrier will be liable for it. If we reach that
state in our cases, then the insurance companies need not place any
amount whatever as a maximum liability in their contracts.
The appellee argues that Hinkle admitted that he based his initial denial of Johnson’s liability
on his limited, early investigation, and that he merely scanned the discovery depositions which
would give him pause to re-think his opinion. Hinkle and Buxton were aware that any award to
Moore would - almost certainly - be in greatly excess of Johnson’s limits. Hinkle agreed that if he
had carefully considered all of the developed facts he would have been concerned as to whether any
fault would be assessed against Johnson. Consequently, the appellee argues that Hinkle could not
1
Indeed, so firm was the opinion of Buxton that when the jury hung 11-1, he agreed, as did Johnson, to accept
a majority verdict. There is, as to Johnson, an extraordinary irony implicit here.
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honestly have believed that Johnson had zero fault - he was driving a small sports car, he did not
collide with the van, and he veered precipitously to his left needlessly.
While the issue of whether a directed verdict for the defendant should have been granted is
close, we think there was “material evidence to support the verdict.” Rule 13d, Tenn. R. App. P.
We have “commented on the evidence addressed at the first trial”, of necessity, somewhat in
derogation of the pronouncement of this Court in Goings v. Active Cas. & Surety Co., 491 S.W.2d
847 (Tenn. Ct. App 1972) that if this Court is to reverse and remand for a new trial, it should not
comment on the evidence adduced at the first trial. But the appellant presented the issue of material
evidence squarely leaving us with no choice but to comment at length on the evidence principally
favorable to the appellee.
II.
We next consider the refusal of the trial judge to charge the following special requests
propounded by the appellant:
A. Mere negligence on the part of an insurance company in failing to settle a
claim against its insured is not sufficient to impose liability against the
insurance company. Before an insurance company can be held liable for
failing to compromise or settle a claim, the refusal to settle within the policy
limit must be fraudulent or in bad faith.
B. Bad faith embraces more than bad judgment or negligence and it imports a
dishonest purpose, moral obliquity, conscious wrongdoing, breach of a
known duty through some ulterior motive or ill will partaking of the nature
of fraud, and it embraces an actual intent to mislead or deceive another.
C. Bad faith on the part of an insurer is a frivolous or unfounded refusal to pay
the proceeds of the insurance policy, Such conduct imports a dishonest
purpose and means a breach of the duty of good faith and fair dealing through
some motive of self-interest or ill will. Mere negligence or bad judgment is
not bad faith.
D. . . . [T]hat Tennessee Farmers did not have any duty to settle or pay the
uninsured motorist claims of either Christopher Moore or Robert Johnson
unless or until they obtained a judgment against John Doe.
Request A.
This is a correct statement of applicable law. Southern Fire & Casualty Co. v. Norris,
supra. We have reviewed the instructions carefully, the essential boiler-plate language of which
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does not encompass this obviously applicable principle to the facts of this case. This special request
should have been charged.
Request B.
Tennessee law is clear on the point that negligence or mistaken judgment is not bad faith,
which was not defined by the trial judge. Southern Fire & Casualty Co. v. Norris, supra, makes
it clear that bad faith cannot be equated to negligence, because it is more egregious conduct than
negligence and requires a certain definiteness of purpose. The charge did not explain the quantum
or essence of conduct which amounts to bad faith; the trial judge merely gave the jury three examples
of bad faith. This special request is definitive of the level of conduct required to be proved in order
to onerate an insurer with bad faith, and the jury should have been instructed accordingly. Carruba
v. Transit Cas. Co., 443 F3d 260 (Sixth Cir. 1971).
Request C.
What we have said in B, applies with equal force to this requested instruction. See, Black’s
Law Dictionary, Sixth Edition.
Request D.
This is a correct statement of applicable law. See, Tenn. Code Ann. § 56-7-1201(a). The
presentation of prejudicial and irrelevant testimony precipitated this request, which will be discussed
hereafter.
Instead, the trial court instructed the jury that bad faith was:
. . . failure to investigate a claim to such an extent that it would be in
a position to exercise honest judgment as to whether a claim would
be settled, or two, failure to fairly consider the facts relative to the
accident and a claimant’s injuries known to it whether they are the
actual facts or not and deciding whether the insured should or should
not settle, or three, failure of the insured with the right to control the
litigation and settlement to fairly consider the rights and interest of
the insured as compared to the interest of the insurance company.
This is the charge as it appears in the transcript. If delivered in that fashion, it was
undoubtedly confusing. But the main error in the charge was not instructing the jury concerning the
essence of conduct which constitutes bad faith.
The rule in this jurisdiction is that the trial judge should instruct the jury upon every issue of
fact and theory of the case raised by the pleadings and supported by the proof, and should give every
special request which correctly states the law, is supported by the evidence, and is not included in
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the general charge. Spellmeyer v. Tennessee Farmers Mut. Ins. Co., 879 S.W.2d 843, 846 (Tenn.
Ct. App. 1993). Where the issues are close, as here, correct jury instructions are particularly
important. Hutcheson v. Teeter, 687 S.W.2d 286, 287 (Tenn. 1985). It was imperative that the jury
understand the meaning of bad faith; these special requests were couched in clear, understandable,
and reasonable language and the refusal of the trial judge to give them prejudiced the adjudicable
rights of the defendant. See, Underwood v. Waterslides of Mid-America, 823 S.W.2d 171 (Tenn.
Ct. App. 1991).
III.
Tennessee Farmers, as stated, insured the Moore and Johnson vehicles, and also provided
UM coverage for both. This UM coverage was paid to both before trial. Johnson was allowed, over
objection, to present evidence as to the timing of these UM payments. This was prejudicial error.
He was allowed to testify that Tennessee Farmers did not pay his UM policy limits before he filed
suit, and plaintiff’s counsel was allowed to cross-examine Hinkle with respect to this issue. This
testimony served only to obfuscate the issue and prejudice the jury. It had no relevancy whatever
on the issue of bad faith.
The trial judge also allowed testimony regarding timing of the payment to Moore of his UM
coverage, the purpose of which seems clear. It suggested a pattern of delay on the part of Tennessee
Farmers in the payment of the UM claims of Moore and Johnson as evidence of its alleged bad faith
in handling the liability claim against Johnson.
We agree with the appellant that it was error for the court to allow Johnson to suggest there
was something improper about the timing of the UM benefits. Tennessee Farmers had no obligation
to pay the UM claims until there was legal determination of fault, because the policy provides that
“We will pay only compensatory damages which a covered person is legally entitled to recover from
the owner or operator of an uninsured motor vehicle because of . . . .” The applicable statute so
provides, Tenn. Code Ann. § 56-7-1201(a).
Any delay in the payment of the UM claims of Johnson was not relevant to the issue of
whether Tennessee Farmers was guilty of bad faith in the handling of the Johnson liability claim.
Relevant evidence is defined in Rule 401 of the Tennessee Rules of Evidence as “evidence having
any tendency to make the existence of any fact that is of consequence to the determination of the
action more probable or less probable than it would be without the evidence.” The timing of the
payment of the UM claims of Moore and Johnson had no relevance to the issue of whether
Tennessee Farmers exercised good faith in the handling of the liability claim of Moore against
Johnson. The trial judge finally concluded, when the opinion of the expert witness Scott was sought,
that the prejudicial impact of the evidence outweighed its probative value, but we agree that this
determination by the court was too late to correct the damage created by the evidence which had been
introduced as described by Johnson’s counsel “throughout the trial.” The trial judge refused
Tennessee Farmers’ special request for a jury instruction which would have, at least in part, rectified
the error.
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IV.
The Moore policy contained an offset provision, as follows:
Our limit of liability for this Uninsured Motorist Coverage shall be
reduced by the sum of the limits payable under all liability and/or
primary uninsured motorist insurance policies . . . applicable to the
bodily injury. . . of the covered person.
Damages payable under this coverage to or for covered person shall
be reduced by :
1. The amount paid under the Liability..
Coverages of . . . any other automobile
insurance policy;
The appellant submitted the following special request:
Members of the jury, there has been conflicting testimony about a
provision in the Moore policy under his uninsured motorist coverage
which would have eliminated that uninsured motorist coverage by
reason of the payment of Robert Johnson’s liability coverage. I
instruct you that the offset provision in question is valid. Had
Tennessee Farmers first paid to Christopher Moore Robert Johnson’s
liability coverage limit of $25,000, then Mr. Moore could not have
recovered his uninsured motorist coverage, which was also $25,000.
This was a correct statement of the law. Tenn. Code Ann. § 56-7-1201(d); Poper v. Rollins,
90 S.W.3d 682, 687 (Tenn. 2002); Erwin v. Rose, 980 S.W.2d 203, 209 (Tenn. Ct. App. 1992). This
instruction was applicable to the plaintiff’s theory and the evidence allowed over objection by
Tennessee Farmers relating to the timing of Tennessee Farmers’ payment of UM coverage benefits
to Moore and Johnson. The instruction was inexplicably refused.
Tennessee Farmers contended that it did not place its financial interest ahead of the financial
interest of Johnson, because it had paid both Moore and Johnson under the UM coverage of their
respective policies when it was not obligated to do so. Tennessee Farmers argued that it believed
that Johnson was not at fault, and that its payment to Moore and Johnson under their UM coverage
was consistent with this belief.
This special request would have corrected the trial judge’s error in stating to the jury that the
Moore policy did not contain an offset provision which would prevent Moore from recovering UM
coverage after payment of Johnson’s liability coverage. The failure to give this special request
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compounded the court’s error in commenting on the evidence and is reversible error. Underwood
v. Waterslides of Mid-America, 823 S.W.2d 171, 178 (Tenn. Ct. App. 1991).
V.
The appellant argues that the trial judge commented upon the evidence which clearly cannot
be done in this jurisdiction as a matter of constitutional principle. The comment was made after the
trial judge allowed Johnson to introduce evidence relating to the timing of the payment of UM
coverage to both Moore and Johnson as relevant to the issue of bad faith. A witness for Johnson,
Attorney Daniel, was asked if he was aware of the offset provision (heretofore discussed) in Moore’s
(his client’s) policy. Daniel’s response was “I don’t see how that could be.” The trial judge, after
some colloquy, then said, in the presence of the jury:
“I hold that’s not what the policy provides. Let’s move on.”
The trial judge then repeated “I hold that’s not what the policy provides.” In this he was probably
misled by attorney Daniel’s testimony.
The matter at issue was the offset provision in the Tennessee Farmers’ policy issued to
Moore, which was clearly relevant to the appellants’ contention that it was not financially motivated
in refusing to pay Johnson’s liability coverage to Moore and instead could have saved itself $25,000
by making such a payment following which the offset provision in Moore’s policy would have
eliminated his right to UM coverage.
There is a strong policy in Tennessee against a trial judge making statements in the presence
of the jury on questions of fact. Marress v. Carolina Direct Furniture, Inc., 785 S.W.2d 121, 129
(Tenn. Ct. App. 1989). “The constitutional guarantee of a trial by jury requires the judge to be
extremely careful not to express an opinion on any fact to be passed on by the jury.” McKay v.
Mitchell, 463 S.W.2d 710, 721 (Tenn. Ct. App. 1970); McBride v. Allen, 720 S.W.2d 459, 462
(Tenn. Ct. App. 1979). “Slight indications of opinion on the part of the judge can have a powerful
impact upon the minds of the jury.” Kanbi v. Sousa, 26 S.W.3d 495, 498 (Tenn. Ct. App. 2000).
A trial judge should do nothing to prejudice the rights of the parties. State, ex rel Comm’r v.
William, 828 S.W.2d 397, 403 (Tenn. Ct. App. 1991). Here the trial judge commented on the
evidence which was the content of the Tennessee Farmers’ policy issued to Moore, and clearly
misstated the law. Tenn. Code Ann. § 56-7-1201(d); Poper v. Rollins, 90 S.W.3d 682, 687 (Tenn.
2002). This error was prejudicial. As we held in Kanbi:
Our judicial system charges the jury with the duty of deciding the
facts of the case under the supervision of the judge, while the
province of the judge is to “lay down the rules of law governing the
parties without bias and without interference in finding the facts.”
McBride v. Allen, 720 S.W.2d 459, 463 (Tenn. Ct. App. 1979). This
separation of functions is mandated by the Tennessee Constitution,
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which states in Article VI, Section 9 that “[t]he Judges shall not
charge juries with respect to matters of fact, but may state the
testimony and declare the law.”
Though a judge is permitted to question a witness, even very slight
indications of opinion on the part of the judge can have a powerful
impact upon the minds of the jury. McBride v. Allen, 720 S.W.2d
459 (Tenn. Ct. App. 1979). Thus, in order to protect the jury’s fact-
finding role, judges must be very careful about expressing or
intimating any opinion on any fact at issue Graham v. McReynolds,
90 Tenn. 673, 18 S.W.272 (1891). Improper comments from a judge
can, and sometimes do, result in reversal of a judgment. State v.
Suttles, 767 S.W.2d 403 (Tenn. 1989); Cleckner v. Dale, 719 S.W.2d
535 (Tenn. Ct. App. 1986). The comments of the trial judge could be
construed as an indication that she had reservations about Ms.
Sousa’s credibility.
However, not every comment by a judge that can be deemed improper
requires reversal. The standard for this court to follow when dealing
with allegations of error below are found in the Rules of Appellate
Procedure. Rule 36(b) reads “A final judgment from which relief is
available and otherwise appropriate shall not be set aside unless,
considering the whole record, error involving a substantial right more
probably than not affected the judgment or would result in prejudice
to the judicial process.”
Whether an error should be considered harmless or prejudicial
depends in part on how closely balanced the evidence is. If it is very
close, then an improper comment by a judge can more easily affect
the judgment by tipping the scales in favor of one party or the other.
See State v. Suttles, 767 S.W.2d 403, 404 (Tenn. 1989).
We have read the entire trial transcript in this case, and we note that
the comments objected to did not involve central factual questions.
More importantly, we find that the evidence presented of Ms. Sousa’s
fault was overwhelming, while there was no evidence of any fault on
the part of Ms. Kanbi or of any other party, but merely speculation.
Under such circumstances, it is highly unlikely that the comments of
the trial judge could have affect the jury’s verdict. We accordingly
affirm that verdict, and the judgment of the trial court.
The evidence in the case at Bar was “clearly balanced”; in fact, were we not forbidden to
weigh the evidence, it would be difficult to consent to the judgment. For this reason the case is
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decidedly dissimilar to Kanbi, supra. The evidence was not overwhelmingly favorable to the
appellee, and the trial judge’s comments cannot be said to be harmless.
VI.
Another issue is whether the trial judge erred in further commenting upon the evidence, and
in informing the jury in the underlying action of Moore v. Johnson that attorney Buxton represented
Tennessee Farmers Mutual Insurance Company.
The comment occurred during the testimony of attorney Daniel, who represented Moore.
Q: Did George Buxton, in those conversations that you had with
him, represent to you during the discussions about settling
that he was speaking for Tennessee Farmers?
MR. JOHNSON: I object to --
MR. CAPPS: Goes to state of mind.
THE COURT: Overruled. Whatever statement he made about this or who
he’s representing.
THE WITNESS: He did.
Q: Without telling me anything about - without telling me
anything about this conversation where Moore and the parents
were present, what, it any - what, if any, words - what, if any,
words in those conversations did he use that represented to
you that he was speaking on behalf of Tennessee Farmers?
MR. JOHNSON: Objection, Your Honor. He’s asking Mr.
Daniel --
THE COURT: Ask him about any statements he made about
representing Tennessee Farmers. Mr. Daniel,
by the letter is it clear he was hired by
Tennessee Farmers?
THE WITNESS: I just always took it every thing he did was
with Tennessee Farmers --
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THE COURT: So, no specific statements in addition to that.
Everybody knew he was hired by Tennessee
Farmers, right?
THE WITNESS: What do you mean, Your Honor?
THE COURT: Everybody knew that Tennessee Farmers hired
him --
THE WITNESS: Oh, yeah, they --
THE COURT: Okay. Well, ask him about his specific
conversation.
% % % % %
Q: What do you recall about those conversations that led you to
believe he was representing – that he was representing
Tennessee--
THE COURT: Everybody knew he was representing
Tennessee Farmers. What’s the question
about what you want to ask him specifically.
The appellant argues that this error was egregious because the trial judge not only commented
on the evidence, but misstated Buxton’s position. We agree. The prejudice clearly appears, because
here the trial judge told the jury that Buxton was the attorney for Tennessee Farmers, clearly
suggesting that he was not looking after the interest of Johnson.
It has long been settled in Tennessee that an attorney hired by an insurance carrier to
represent a policyholder is the attorney for the policyholder. Blaylock and Brown Construction,
Inc. v. AIU Ins. Co., 796 S.W.2d 146, 155 (Tenn. Ct. App. 1990); Formal Ethics Opinion 85-F-100
(9/30/85). The Supreme Court In re Petition of Youngblood, 895 S.W.2d 322 (Tenn. 1995) held:
The employment of an attorney by an insurer to represent the insured
does not create the relationship of attorney-client between the insurer
and the attorney, nor does that employment necessarily impose upon
the attorney any duty or loyalty to the insurer which impairs the
attorney-client relationship between the attorney and the insured or
impedes the performance of legal services for the insured by the
attorney.
The Supreme Court further held:
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The obligation to defend the insured under a contract of insurance
obviously contemplates representation by counsel who can exercise
professional judgment and devote complete loyalty to the insured
regardless of the circumstances.
895 S.W.2d at 328. We hold that George Buxton was not counsel for the insurance carrier, but that
he was counsel for and represented the policyholder/insured. See, Givens v. Mullikin, 75 S.W.3d
383 (Tenn. 2000).
The appellant submitted a special request to correct the clear error, but the request was
refused. Rather, the trial judge stated “I exactly meant to say that” — meaning that George Buxton
represented Tennessee Farmers when he did not. He represented Johnson.
The judgment is vacated and reversed and the case is remanded for a new trial. Costs are
assessed to the appellee.
___________________________________
WILLIAM H. INMAN, SENIOR JUDGE
-24-
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Electronically Filed
Intermediate Court of Appeals
CAAP-11-0000525
17-JUL-2013
08:37 AM
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975 F.2d 1548
Bartek (Joseph P.)v.Urban Redevelopment Authority of Pittsburgh
NO. 91-3884
United States Court of Appeals,Third Circuit.
Aug 13, 1992
Appeal From: W.D.Pa.,
Standish, J.
1
AFFIRMED.
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79 F.3d 531
11 IER Cases 934
Ross V. MOUNT, Plaintiff-Appellant,v.UNITED STATES POSTAL SERVICE, Louisville Division; Clara V.Comer, M.D.; Robert Diehl; Don Warren; Richard Green,also known as John Doe; Lynn Miller; Roger Cecil; HunterGrace; Dennis Patti; Kenneth Alsup, Defendants-Appellees.
No. 94-6385.
United States Court of Appeals,Sixth Circuit.
Argued Feb. 6, 1996.Decided March 28, 1996.
On Appeal from the United States District Court for the Western District of Kentucky; Charles M. Allen, Senior District Judge.
Genon G. Hensley (briefed), Bedford, KY, Thomas M. Dattilo (argued and briefed), Madison, IN, for plaintiff-appellant.
Robert D. Kamenshine (argued and briefed), Leonard Schaitman, U.S. Department of Justice, Appellate Staff, Civ. Div., Washington, DC, for defendants-appellees.
Before: KENNEDY and SUHRHEINRICH, Circuit Judges; GILMORE, District Judge.*
SUHRHEINRICH, Circuit Judge.
1
Plaintiff Ross Mount brought suit against his former employer, the United States Postal Service ("USPS"), and several individuals who work for or with the USPS, alleging that they released confidential medical information concerning plaintiff in violation of the Privacy Act, 5 U.S.C.A. § 552a (West 1977 & Supp.1995). The District Court held that plaintiff failed to present sufficient evidence of an intentional or willful violation of the Privacy Act and dismissed the action. Plaintiff appeals from the grant of summary judgment in favor of the USPS.
2
We conclude that the entry of summary judgment was proper and therefore affirm.
BACKGROUND
3
Plaintiff worked as a custodian for the USPS, Louisville Division, in Scottsburg, Indiana. He became angry over a matter at work and, on March 20, 1992, met with the postmaster, Kenneth Alsup. The USPS contends that during this meeting plaintiff expressed hostility towards his working environment and co-workers, and that Alsup recommended counseling to plaintiff. Plaintiff maintains that he informed Alsup of his intention to file a complaint with the USPS regarding the working conditions in the Scottsburg post office.
4
On March 24, 1994, plaintiff met with Robert Diehl, supervisor of the Employee Assistance Program ("EAP").1 At this meeting, the USPS contends that plaintiff appeared to be angry and hostile, and that he indirectly threatened a co-worker, Kathy Munden. Diehl referred plaintiff to Jefferson Hospital for a psychiatric evaluation, but plaintiff refused the hospital's assistance.
5
A subsequent incident occurring approximately two months later caused Alsup to be concerned with plaintiff's mental health. As a result, Alsup placed plaintiff on administrative leave and ordered him to undergo a fitness-for-duty examination. This exam was to be performed by Dr. Clara Comer, a physician under contract with the USPS. Plaintiff refused, submitting instead a fitness-for-duty statement by a private physician. Because the physician was not a psychiatrist, Dr. Comer accepted the statement solely as proof of plaintiff's physical condition.
6
Dr. Comer reported her findings to Richard Green, manager of the Health and Safety Office in the Louisville Division, and to Don Warren, manager of the Louisville Division's Labor Relations Office. After plaintiff failed to present sufficient evidence of his mental stability, the USPS began proceedings to place plaintiff on an enforced leave of absence.
7
Dennis Patti, acting director of Field Operations in the Louisville Division and the employee charged with determining plaintiff's leave status, obtained plaintiff's labor relations file. Subsequently, Patti made this file available to William Brinley, plaintiff's union representative.
8
Plaintiff filed suit in federal court claiming numerous violations of the Privacy Act by the USPS and various named individuals. Plaintiff alleged violations based upon the repeated disclosure of information contained in his medical records and/or the actual release of portions of the records themselves to nonmedical personnel in the course of determining whether plaintiff was fit for duty.
9
The District Court dismissed the various named individuals, holding that only an agency can be civilly liable under § 552a. In addition, the District Court held that plaintiff failed to present sufficient evidence that the USPS had acted with the required intent or willfulness. Plaintiff appeals only the grant of summary judgment to the USPS.
ANALYSIS
10
We review the District Court's grant of summary judgment de novo. Gregory v. Hunt, 24 F.3d 781, 784 (6th Cir.1994). Summary judgment is proper if the record, when viewed in the light most favorable to the nonmoving party, shows that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED.R.CIV.P. 56(c); Akers v. Palmer, 71 F.3d 226, 229 (6th Cir.1995).
11
In opposing a properly supported motion for summary judgment, the nonmoving party must set forth sufficient specific evidence to permit a fair-minded jury to return a verdict in its favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no 'genuine issue for trial.' " Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986).
12
Plaintiff contends that there is a question of fact as to whether the USPS intentionally or willfully released information in his medical file in violation of the Privacy Act. The USPS counters that the Privacy Act clearly permitted each disclosure.
13
Subject to certain exceptions, the Privacy Act, 5 U.S.C.A. § 552a, restricts the disclosure of information contained in government records. Section 552a(b) provides in relevant part:
14
No agency shall disclose any record which is contained in a system of records ... except pursuant to a written request by, or with the prior written consent of, the individual to whom the record pertains, unless disclosure of the record would be--
15
(1) to those officers and employees of the agency which maintains the record who have a need for the record in the performance of their duties;
16
....
17
(3) for a routine use....
18
An adversely affected individual may file a civil action against an agency that violates the provisions of the Privacy Act. 5 U.S.C.A. § 552a(g)(1). To recover damages, the plaintiff must show that the agency acted "intentionally" or "willfully," which is a standard "somewhat greater than gross negligence." White v. Office of Personnel Management, 840 F.2d 85, 87 (D.C.Cir.1988) (per curiam) (quotations and citation omitted); see Rose v. United States, 905 F.2d 1257, 1260 (9th Cir.1990). An agency acts intentionally or willfully "either by committing the act without grounds for believing it to be lawful, or flagrantly disregarding others' rights under the [Privacy] Act." Wilborn v. Department of Health & Human Servs., 49 F.3d 597, 602 (9th Cir.1995) (quotations and citation omitted); see Andrews v. Veterans Admin., 838 F.2d 418, 425 (10th Cir.), cert. denied, 488 U.S. 817, 109 S.Ct. 56, 102 L.Ed.2d 35 (1988).
19
We conclude that each of the intra-USPS disclosures had some basis in the "need to know" exception, § 552a(b)(1). Alsup, Comer, Green, Warren, and Patti were all employees or agents of the USPS with responsibilities for making employment and/or disciplinary decisions regarding plaintiff. In light of the questions surrounding plaintiff's mental stability, each had at least an arguable need to access the information in plaintiff's medical records. See Hernandez v. Alexander, 671 F.2d 402, 410 (10th Cir.1982) (concluding that the need to know exception authorizes disclosure where the records are necessary to make disciplinary decisions regarding the employee to whom the records pertain). Plaintiff has introduced no evidence to suggest that any of the USPS employees or agents acted with a "flagrant disregard" for his rights.
20
Similarly, the disclosure to Brinley, the union official representing plaintiff, had a basis in the "routine use" exception, § 552a(b)(3). The published list of routine uses applicable to the USPS provides, inter alia, for disclosure "to a labor organization upon its request when needed by that organization to perform properly its duties as the collective bargaining representative of postal employees in an appropriate bargaining unit." Privacy Act of 1974; Systems of Records, 54 Fed.Reg. 43,652, 43,655 (1989). The issue raised by this published routine use is whether the disclosed information is relevant to the union representative's actions in grievance proceedings. NLRB v. United States Postal Serv., 841 F.2d 141, 144-45 n. 3 (6th Cir.1988). Here, plaintiff's mental health was a central issue in the administrative action against plaintiff; the release of such records to Brinley falls squarely with the routine use exception.
21
Plaintiff also contends that at least some of the disclosures by various USPS employees were in fact motivated by a desire to retaliate against plaintiff for threatening to file a complaint about the working conditions in the Scottsburg post office. In Henson v. National Aeronautics & Space Admin., 14 F.3d 1143 (6th Cir.), modified, 23 F.3d 990 (6th Cir.1994), the plaintiff alleged that one of her superiors caused information in her medical records to be disclosed in retaliation for a prior disagreement between the two. The court reversed a grant of summary judgment, holding that a material issue of fact existed in light of evidence that a physician had been ordered to disclose the information at issue against the physician's will. Id. at 1149. Here, unlike in Henson, there is no proof that any of the disclosures were retaliatory. Plaintiff has offered nothing more than unsubstantiated speculation. The District Court did not err in granting summary judgment.
CONCLUSION
22
For the foregoing reasons, the judgment of the District Court is AFFIRMED.
*
The Honorable Horace W. Gilmore, United States District Judge for the Eastern District of Michigan, sitting by designation
1
The Employee Assistance Program is a USPS-sponsored program which provides counseling to postal employees and their families regarding drug, alcohol, and/or other personal problems that could or had a negative impact on the employee's work performance
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PRESENT: All the Justices
NEIL KUCHINSKY
OPINION BY
v. Record No. 131656 JUSTICE ELIZABETH A. McCLANAHAN
April 17, 2014
VIRGINIA STATE BAR, EX REL.
THIRD DISTRICT COMMITTEE
FROM THE CIRCUIT COURT OF THE CITY OF COLONIAL HEIGHTS
Charles E. Poston, Chief Judge Designate, Ann Hunter Simpson
and Walter W. Stout III, Judges Designate
In this appeal of right from an attorney disciplinary
proceeding before a three-judge panel appointed pursuant to Code
§ 54.1-3935, we consider whether an attorney violated Rules
1.8(a), 3.4(d), and 8.4(a) of the Virginia Rules of Professional
Conduct.
I. Facts and Proceedings
A. Background and Prior Private Admonition
Neil Kuchinsky is an attorney licensed to practice law in
the Commonwealth. In March 2008, Dillwyn T. Person (“Person” or
“Dillwyn”) hired Kuchinsky to represent him in connection with
Dillwyn’s claim for a portion of his father’s estate. 1 Person
and Kuchinsky entered into a contingency fee agreement providing
that Kuchinsky would receive one-third of the first $50,000
recovered, or its fair market value, and one-fourth of anything
recovered in excess of that amount, or its fair market value.
1
Person’s father, Thomas McCoy Person, died intestate. At the
time of his passing, Thomas Person owned several parcels of land
in the City of Emporia and Greensville County, Virginia.
Kuchinsky then filed a partition suit on behalf of Person
against Person’s siblings in the Greensville County Circuit
Court. After filing the partition suit, Kuchinsky drafted a
quitclaim deed, which was executed by Person. The quitclaim
deed granted Kuchinsky a 25% interest in any “right, title, and
interest” Person may possess in the six parcels of land that
were the subject matter of the partition suit against Person’s
siblings “as well as 25% of any other real estate interest
[Person] may have that may appear of record.” The quitclaim
deed was recorded in the Greensville County Circuit Court. 2
In December 2008, the Virginia State Bar (“VSB”) received a
complaint submitted by Dillwyn’s brother, Clinton Person. The
complaint alleged that Kuchinsky’s acquisition of a 25%
quitclaim interest in the subject matter of the underlying
partition suit was a “clear conflict of interest.” In an
agreed-upon disposition, a subcommittee of the Third District
Committee, Section I, of the VSB, found that Kuchinsky violated
Rule 1.8(j) of the Virginia Rules of Professional Conduct by
2
Sometime after the quitclaim deed was recorded, Person
dismissed Kuchinsky as his counsel. However, later that year,
Person re-employed Kuchinsky and executed a second fee agreement
which stated that Person would pay Kuchinsky’s attorney’s fees
for any unproven bar complaints lodged against Kuchinsky,
reaffirmed that Kuchinsky had earned “all prior fees” (including
the 25% quitclaim interest), and waived potential conflicts of
interest in the renewed representation.
2
acquiring “a proprietary interest in the cause of action or
subject matter of litigation.” 3 As a result, Kuchinsky was
issued a private admonition without terms on February 18, 2010.
B. Events Occurring After the Private Admonition
On March 24, 2010, an Order was entered in the partition
suit between Person and his siblings appointing a Special
Commissioner for the purpose of conveying the property that was
subject to the suit. The Special Commissioner then executed a
deed conveying to Kuchinsky a 25% interest and to Person a 75%
interest in two specific parcels of real estate, 211 Wadlow
Street and 640 Clay Street in Emporia, Virginia. After the deed
was issued, Kuchinsky wrote to the Special Commissioner and
asked him to “[p]lease file ‘our’ deed as soon as possible.” 4
The Special Commissioner’s Deed was then recorded in the
Greensville County Circuit Court.
After the Special Commissioner’s deed was recorded,
Kuchinsky proceeded to file two actions against Person. First,
3
The subcommittee’s determination was based on Kuchinsky’s
acquisition of the quitclaim deed from Person, as well as his
acquisition of a similar interest from another client.
4
Initially, Kuchinsky had objected to the Special Commissioner’s
deed, stating that he intended his 25% quitclaim interest to be
a “springing attorney’s lien for legal work, not as a
proprietary interest.” Therefore, Kuchinsky argued,
“conveyances and debts set forth by the Commissioner as
transferable or payable to Neil Kuchinsky should be permitted to
be converted to a deed of trust and note” between himself and
Person.
3
Kuchinsky filed a Warrant in Debt against Person in the
Greensville County General District Court. The court entered a
default judgment against Person for $2,896 in principal, $6,756
in attorney’s fees, and $53 in court costs. The same day,
Kuchinsky recorded the default judgment as a lien against the
jointly owned properties. Secondly, Kuchinsky filed a suit
against Person in the Greensville County Circuit Court to
partition the jointly owned properties.
Before serving Person in the partition suit, Kuchinsky
sought to negotiate an agreement by which Person would pay
Kuchinsky for his interest in the properties. Prior to the
completion of that transaction, however, Person filed a
complaint with the VSB in September 2010 alleging that Kuchinsky
“took total advantage of my faith and ignorance in him for his
self-interest.” Subsequently, during the pendency of the VSB’s
investigation into Person’s complaint, Kuchinsky served Person
with notice of the partition suit. The case was referred to the
Commissioner in Chancery for Greensville County, who conducted a
hearing. 5
5
Kuchinsky and Person eventually reached an agreement whereby
Person signed a promissory note for fees and costs owed to
Kuchinsky, secured by a deed of trust. Finally, in November
2011, Kuchinsky executed and recorded a deed conveying his 25%
interest in the jointly owned properties back to Person.
Subsequently, pursuant to Kuchinsky’s request, the Greensville
County Circuit Court issued an order of nonsuit in Kuchinsky’s
partition suit against Person.
4
In June 2012, the VSB filed a Charge of Misconduct against
Kuchinsky pursuant to the Rules of the Virginia Supreme Court,
Part 6, § IV, ¶ 13-16(A). Specifically, the VSB alleged that
Kuchinsky violated Rules 1.8(a), 3.4(d), and 8.4(a) 6 through his
conduct towards Person after the issuance of the prior
6
In relevant part, the rules Kuchinsky was charged with
violating, all of which appear in Part 6, § II of the Rules of
Court, read as follows:
Rule 1.8 – Conflict of Interest: Prohibited
Transactions
(a) A lawyer shall not enter into a business
transaction with a client or knowingly acquire an
ownership, possessory, security, or other pecuniary
interest adverse to a client unless:
(1) the transaction and terms on which the lawyer
acquires the interest are fair and reasonable to
the client and are fully disclosed and
transmitted in writing to the client in a manner
which can be reasonably understood by the client;
(2) the client is given a reasonable opportunity
to seek the advice of independent counsel in the
transaction; and
(3) the client consents in writing thereto.
Rule 3.4 – Fairness to Opposing Party and Counsel
A lawyer shall not:
. . . .
(d) Knowingly disobey or advise a client to disregard
a standing rule or a ruling of a tribunal made in the
course of a proceeding, but the lawyer may take steps,
in good faith, to test the validity of such rule or
ruling.
Rule 8.4 – Misconduct
It is professional misconduct for a lawyer to:
(a) violate or attempt to violate the Rules of
Professional Conduct, knowingly assist or induce
another to do so, or do so through the acts of
another.
5
admonition. After referral to the Third District Committee,
which conducted a hearing, the Committee found, by clear and
convincing evidence, that Kuchinsky had violated Rules 1.8(a),
3.4(d), and 8.4(a) of the Rules of Professional Conduct and
issued Kuchinsky a public reprimand without terms. The District
Committee then issued a Written Determination explaining its
decision. In its Determination, the District Committee made
several findings of fact. Then, in a section titled “Nature of
Misconduct,” the District Committee listed the rules that it
found Kuchinsky had violated. Under each rule, the District
Committee stated that “[r]espondent’s actions that violated this
rule include, but are not limited to, the following” and
provided a non-exhaustive list of Kuchinsky’s actions it found
to be in violation of each rule. 7
Kuchinsky filed a notice of appeal and demand for review of
the District Committee’s determination by a three-judge panel,
pursuant to Code § 54.1-3935. 8 After each party submitted
7
The Written Determination also noted that one member of the
Committee dissented from the District Committee’s finding that
Kuchinsky violated Rule 3.4(d) by disregarding the VSB’s prior
admonition on the basis that the Committee member “did not
believe that the Committee is a ‘tribunal’ within the
contemplation of the rule.”
8
On the same day, Kuchinsky also filed a Motion to Reconsider
the District Committee’s determination on the basis that one of
the Committee members should have recused himself from the
proceedings. The District Committee denied Kuchinsky’s Motion
6
briefs, the panel heard argument and issued an Order holding
that there was substantial evidence in the record to support the
District Committee’s decision. Subsequently, the panel issued a
Memorandum Order incorporating the District Committee’s findings
of fact in full and affirming its decision.
Kuchinsky appeals.
II. Analysis
A. Standard of Review
To prove that an attorney violated the Rules of
Professional Conduct, the VSB must present clear and convincing
evidence of the violation. Livingston v. Virginia State Bar,
286 Va. 1, 10, 744 S.E.2d 220, 224 (2013). When reviewing a
disciplinary decision by a three-judge panel:
“[W]e will make an independent examination of the
whole record, giving the factual findings . . .
substantial weight and viewing them as prima facie
correct. While not given the weight of a jury
verdict, those conclusions will be sustained unless it
appears they are not justified by a reasonable view of
the evidence or are contrary to law.”
Green v. Virginia State Bar ex rel. Seventh Dist. Comm., 274 Va.
775, 783, 652 S.E.2d 118, 121 (2007) (quoting El-Amin v.
Virginia State Bar, 257 Va. 608, 612, 514 S.E.2d 163, 165
(1999)). Furthermore, “[c]onsistent with well-established
to Reconsider, and the issue raised therein is not before this
Court on appeal.
7
appellate principles, we view the evidence and all reasonable
inferences that may be drawn therefrom in the light most
favorable to the Bar, the prevailing party below.” Id.
B. Kuchinsky’s “Right to a Meaningful Appeal”
In his first assignment of error, Kuchinsky argues that he
was deprived of his right to a meaningful appeal because the
District Committee’s Determination stated under each finding of
a Rule violation: “Respondent’s actions that violated this rule
include, but are not limited to, the following.” (Emphasis
added.) Because the listings of facts which followed were not
exhaustive, Kuchinsky asserts that the three-judge panel could
not properly determine which facts the District Committee
considered in making its decision.
An attorney subject to disciplinary proceedings is entitled
to notice and the opportunity to be heard. Pappas v. Virginia
State Bar, 271 Va. 580, 587, 628 S.E.2d 534, 538 (2006). In
construing this right, we have held that “it is only necessary
that the attorney be informed of the nature of the charge
preferred against him and be given an opportunity to answer.”
Moseley v. Virginia State Bar, 280 Va. 1, 3, 694 S.E.2d 586, 589
(2010) (internal quotation marks omitted). Although we have not
previously considered the extent of an attorney’s due process
rights in the context of an appeal, we have held that “[t]he
procedures outlined in Part Six [of the Rules of the Supreme
8
Court of Virginia] ensure the integrity of the disciplinary
process and protect the rights of the attorney.” Pappas, 271
Va. at 587, 628 S.E.2d at 538.
Part 6, § IV, ¶ 13-16(Y) of the Rules of Court establishes
what a District Committee must include in its written
determination. Specifically, the Rule states:
If a District Committee finds that the evidence shows
the Respondent engaged in Misconduct by clear and
convincing evidence, then the Chair shall issue the
District Committee’s Determination, in writing,
setting forth the following:
1. Brief findings of the facts established by the
evidence;
2. The nature of the Misconduct shown by the facts so
established, including the Disciplinary Rules violated
by the Respondent; and
3. The sanctions imposed, if any, by the District
Committee.
In the case at bar, the District Committee’s Determination
satisfied each of the three requirements. It included findings
of fact, explained the nature of Kuchinsky’s misconduct that was
established by those facts, and stated what sanction was to be
imposed. Part 6, § IV, ¶ 13-16(Y) does not require that a
District Committee list the specific facts relied upon in
finding individual rule violations. Therefore, the District
Committee did not err by failing to include an exhaustive list
for each violation.
9
Furthermore, Kuchinsky’s argument that the three-judge
panel could not ascertain what facts the District Committee
considered in making its decision lacks merit. A three-judge
panel appointed pursuant to Code § 54.1-3935 reviews a District
Committee determination to determine “whether there is
substantial evidence in the record upon which the District
Committee could reasonably have found as it did.” Va. Sup. Ct.
R., Part 6, § IV, ¶ 13-19(E) (emphasis added). Thus, in
addition to the District Committee’s findings of fact, a three-
judge panel has the benefit of considering the entire record in
reviewing a District Committee’s Determination. Accordingly, we
hold that Kuchinsky was not deprived of his right to a
meaningful appeal in this case.
C. Rule 1.8(a)
Rule 1.8(a) of the Rules of Professional Conduct states
that:
(a) A lawyer shall not enter into a business
transaction with a client or knowingly acquire an
ownership, possessory, security or other pecuniary
interest adverse to a client unless:
(1) the transaction and terms on which the lawyer
acquires the interest are fair and reasonable to
the client and are fully disclosed and
transmitted in writing to the client in a manner
which can be reasonably understood by the client;
(2) the client is given a reasonable opportunity
to seek the advice of independent counsel in the
transaction; and
10
(3) the client consents in writing thereto.
The District Committee found that Kuchinsky violated Rule
1.8(a) through his “continued ownership interest in [Person’s]
property and his pursuit of a partition of the property pursuant
to his interest as set forth in the deed” and through his
“failure to formally terminate his representation prior to
filing suit against Person in district court and circuit court.”
1. Kuchinsky Acquired a 25% Interest in Two Specific Properties
Through the Special Commissioner’s Deed
Kuchinsky argues that his continued interest in Person’s
property was not an acquisition of an interest in the property.
To violate Rule 1.8(a), an attorney must “knowingly acquire an
ownership, possessory, security or other pecuniary interest
adverse to a client.” (Emphasis added.)
While the quitclaim deed gave Kuchinsky a 25% interest in
Person’s undivided ownership interests in the six properties at
issue in the underlying partition suit against Person’s
siblings, the Special Commissioner partitioned, at Kuchinsky’s
request as counsel for Person, the various interests in those
properties. The Special Commissioner’s Deed then conveyed to
Kuchinsky a 25% interest and to Person a 75% interest in two of
the six properties - to the exclusion of Kuchinsky's other co-
tenants’ interests implicated by the execution of the quitclaim
deed, and to the exclusion of Kuchinsky’s interests in the other
11
four properties. Accordingly, Kuchinsky and Person thereafter
exclusively owned the two properties as tenants in common.
Thus, only Kuchinsky and Person had the "right to possess, use
and enjoy [these two] common propert[ies],” City of Richmond v.
Suntrust Bank, 283 Va. 439, 443, 722 S.E.2d 268, 271 (2012)
(quoting Graham v. Pierce, 60 Va. (19 Gratt.) 28, 38 (1869)).
Moreover, although Kuchinsky initially objected to the Special
Commissioner’s Deed, he later wrote a letter to the Special
Commissioner encouraging him to record it; and Kuchinsky did not
disclaim the deed after it was recorded. Through these actions,
Kuchinsky “knowingly acquire[d]” an interest in Person’s
property for purposes of Rule 1.8(a).
2. The Common Law Exceptions to the Rules of Champerty and
Maintenance do not apply to Rule 1.8(a)
Alternatively, Kuchinsky contends that his actions are
protected by the common law exception to the doctrine of
champerty and maintenance for aiding the indigent. See 3B
Michie’s Jurisprudence, Champerty and Maintenance, § 2 (“Aiding
the indigent is one of the generally recognized exceptions to
the law of maintenance.”). Because Person could not afford to
pay an attorney in advance, Kuchinsky argues that his fee
arrangement with Person falls within the exception. We
disagree.
12
In relevant part, Comment 16 to Rule 1.8 explains that
“Paragraph (j) states the traditional general rule that lawyers
are prohibited from acquiring a proprietary interest in
litigation. This general rule, which has its basis in common law
champerty and maintenance, is subject to specific exceptions
developed in decisional law and continued in these Rules.”
(Emphasis added.) However, unlike the earlier disciplinary
proceeding against Kuchinsky, the case at bar does not involve a
Rule 1.8(j) violation. There is no common law doctrine which
permits an attorney to “knowingly acquire an ownership,
possessory, security or other pecuniary interest adverse to a
client” in violation of Rule 1.8(a) simply because the client is
indigent.
3. Person was Still Kuchinsky’s Client at the Time the Offending
Conduct Occurred
Finally, Kuchinsky asserts that Person was no longer his
client at the time the offending conduct took place because
“nothing remained to be done in Person’s case” and because
Person allegedly informed Kuchinsky that he did not intend to
pay Kuchinsky for his services. We reject this argument.
During the hearing before the District Committee, Kuchinsky
testified that by the time he filed the partition suit against
Person on May 18, 2010 “[t]here may have been some rents that
remained to be divided, cash assets” from the underlying
13
partition suit between Person and his siblings. Additionally,
Kuchinsky acknowledges on brief that no final order had been
entered in the underlying partition suit when he acquired the
Special Commissioner’s deed and filed his partition suit against
Person. Finally, Kuchinsky took no steps to formally withdraw
from his representation of Person in accordance with Rule
1.16(b) before engaging in the violative conduct. 9
Therefore, Person was still Kuchinsky’s client at the time
he knowingly acquired an interest in Person’s property, and we
hold that the three-judge panel did not err in affirming the
District Committee’s finding that Kuchinsky violated Rule 1.8(a)
of the Rules of Professional Conduct.
D. Rule 8.4(a)
Rule 8.4(a) of the Rules of Professional Conduct
establishes that “[i]t is professional misconduct for a lawyer
to . . . violate or attempt to violate the Rules of Professional
Conduct, knowingly assist or induce another to do so, or do so
through the acts of another.”
As we explained in Part II.C., supra, Kuchinsky violated
Rule 1.8(a) by acquiring an interest in Person’s property
9
In relevant part, Comment 8 to Rule 1.16 states that “[a]
lawyer may withdraw if the client refuses to abide by the terms
of an agreement relating to the representation, such as an
agreement concerning fees or court costs.” Thus, although
Person allegedly informed Kuchinsky that he would not honor
their fee agreement, the representation continued absent
Kuchinsky’s withdrawal.
14
through the Special Commissioner’s Deed, by asking that the
Special Commissioner record the deed, and by pursuing a
partition of Person’s property once the deed had been recorded.
Therefore, he also committed professional misconduct under Rule
8.4(a) by violating the Rules of Professional Conduct, both
through his own acts and through the acts of the Special
Commissioner.
However, Kuchinsky argues that we should reverse the three-
judge panel’s finding that he violated Rule 8.4(a) because “a
redundancy of charges in disciplinary proceedings is
disfavored.” In support, Kuchinsky cites Morrissey v. Virginia
State Bar, 248 Va. 334, 448 S.E.2d 615 (1994). In Morrissey, a
three-judge panel found that Respondent violated DR 1-102(A)(4)
of the former Virginia Rules of Professional Responsibility,
which stated that “[a] lawyer shall not . . . [e]ngage in
conduct involving dishonesty, fraud, deceit, or
misrepresentation which reflects adversely on a lawyer's fitness
to practice law.” 10 Id. at 336, 448 S.E.2d at 616. On appeal,
the VSB assigned as cross-error the panel’s failure to also find
that Respondent had violated former DR 1-102(A)(3), which
10
The panel also found that Respondent violated former DR 8-101,
which prohibited a lawyer serving in public office from
“[a]ccept[ing] anything of value” when the lawyer “knows or it
is obvious that the offer is for the purpose of influencing his
action as a public official.” However, that portion of the
opinion is not relevant to the issue presented by the case at
bar.
15
established that “[a] lawyer shall not . . . . [c]ommit a crime
or other deliberately wrongful act that reflects adversely on
the lawyer’s fitness to practice law.” Id. at 334, 448 S.E.2d
at 621. We rejected the VSB’s argument and affirmed the panel’s
decision, holding that “[a]lthough Morrissey's concealments were
deliberate and wrongful, we do not think that the language of DR
1-102(A)(3) indicates a clear intent to provide multiple
punishment for such acts under the circumstances of this case.”
Id. (citing Fitzgerald v. Commonwealth, 223 Va. 615, 635, 292
S.E.2d 798, 810 (1982)).
In contrast to the rules at issue in Morrissey, Rule 8.4(a)
clearly supports a finding that an attorney has committed
professional misconduct under Rule 8.4(a) in addition to a
finding that the attorney violated another underlying Rule of
Professional Conduct. Rule 8.4(a) states that a violation or
attempted violation of another rule is professional misconduct.
This misconduct provision would be rendered meaningless if it
did not provide for the imposition of a separate and additional
violation. It is a “well established rule of construction that
a statute ought to be interpreted in such manner that it may
have effect, and not be found vain and elusive.” McFadden v.
McNorton, 193 Va. 455, 461, 69 S.E.2d 445, 449 (1952). We
believe that the same principle applies to our interpretation of
the Rules of Professional Conduct. Accordingly, we hold that
16
the three-judge panel did not err in affirming the District
Committee’s finding that Kuchinsky violated Rule 8.4(a) of the
Rules of Professional Conduct.
E. Rule 3.4(d)
In relevant part, Rule 3.4(d) of the Rules of Professional
Conduct states that “[a] lawyer shall not . . . [k]nowingly
disobey . . . a standing rule or a ruling of a tribunal made in
the course of a proceeding, but the lawyer may take steps, in
good faith, to test the validity of such rule or ruling.”
The District Committee found that Kuchinsky violated Rule
3.4(d) by “continu[ing] to pursue his ownership interest in
Person’s property” after receiving the prior admonition from the
VSB and by failing to “divest himself of his ownership interest
[in Person’s property] until one year after he received Person’s
[bar] complaint.” However, the admonition issued to Kuchinsky
was a private admonition without terms. The admonition did not
require that Kuchinsky divest himself of his interest in
Person’s property, nor did it indicate that he must refrain from
taking additional steps to secure his interest. Rather, it
merely stated that Kuchinsky violated Rule 1.8(j) by acquiring
the original quitclaim deed from Person. Because the private
admonition issued to Kuchinsky did not include terms requiring
that Kuchinsky either take or refrain from taking any action, he
could not “knowingly disobey” the admonition. Accordingly, we
17
hold that the three-judge panel erred in affirming the District
Committee’s finding that Kuchinsky violated Rule 3.4(d) of the
Rules of Professional Conduct. 11
III. Conclusion
We affirm the three-judge panel’s decision with regard to
Rules 1.8(a) and 8.4(a), reverse its decision with regard to
Rule 3.4(d), and remand the case for reconsideration of the
sanction to be imposed.
Affirmed in part,
reversed in part,
and remanded.
11
The related issue of whether a disciplinary arm of the VSB
constitutes a “tribunal” for purposes of Rule 3.4(d) is not
before this Court on appeal.
18
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5 N.Y.3d 808 (2005)
PEOPLE v. OLIVER.
Court of Appeals of the State of New York.
August 1, 2005.
Application in criminal case for leave to appeal denied. (Ciparick, J.).
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975 F.2d 1551
Peterson (Jamil Alexander)v.Lehman (Joseph), Ryan (Joseph M.), Stepanik (John R.),Larkin (David H.), Smith (Joseph), Kavalick (Joseph),Buchanan (Ronald), Anzalone (Anthony A., M.D.), Censulla(Philip), Ohl (Thomas), Raklewicz (Michael, M.D.)
NO. 92-7217
United States Court of Appeals,Third Circuit.
Aug 31, 1992
Appeal From: M.D.Pa.,
Conaboy, J.
1
AFFIRMED.
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720 A.2d 339 (1998)
156 N.J. 444
In the Matter of the Application of William C. LA TOURETTE for Admission to the Bar.
Supreme Court of New Jersey.
Argued September 14, 1998.
Decided December 4, 1998.
*340 Walton W. Kingsbery, III, Trenton, for presenter Committee on Character.
William C. La Tourette, pro se (Margaret A. Holbrook, Engelwood, attorney; Ms. Holbrook, of counsel and on the brief).
PER CURIAM.
William C. La Tourette passed the written examination for the New Jersey Bar in 1997. His Certified Statement for admission to the New Jersey Bar disclosed a number of issues requiring further investigation, including arrearages in child support, various questionable civil suits, and intemperate interaction with the New Jersey Board of Bar Examiners (Bar Examiners) and members of his law school community. An RG 303 Panel, convened pursuant to Regulation 303 of the Regulations Governing the Committee on Character (RG 303), recommended that La Tourette's certification for admission to the New Jersey Bar be granted on the condition that he not engage in solo practice for a year unless under the auspices of a supervising attorney approved by the Committee. A Statewide Panel reviewed La Tourette's application for admission as required by RG 303(8). In its Report and Recommendation, the Statewide Panel recommended that certification of good character be withheld. The Statewide Panel forwarded its report and the record to this Court. On June 16, 1998, we ordered La Tourette to show cause why certification of his application for admission to the New Jersey Bar should not be withheld for failure to meet the requirements of good character and fitness. The matter was presented to the Court on September 14, 1998.
In determining that La Tourette was unfit to practice law, the Statewide Panel relied on findings that the candidate had made insufficient efforts to reduce arrearages of $14,000 in child support; had disclosed a client's confidence while working as a law clerk; had demonstrated disrespect for judicial personnel, procedures and institutions by engaging in a course of litigation challenging bar admission procedures; and had employed the Fair Debt Practices Act not as a means to avoid collection of monies that he did not owe, but as a means to obtain revenue to support himself.
Two members of the Statewide Panel disagreed with the majority's recommendation. They found that because of La Tourette's inexperience at the time when he disclosed the client's confidences, La Tourette believed that disclosure was necessary to prevent the perpetration of a fraud on the tribunal. The client had told La Tourette about a prior incident related to the assault with which the client had been charged. Without the knowledge of his attorney employer, La Tourette wrote a memorandum informing the court of the client's statements. The two panelists found that La Tourette's credit litigation was a reasonable exercise of rights under the act, as evidenced by the settlement of the cases by the creditors. The panelists also found that his lawsuits against the Bar Examiners and Rutgers University School of Law were motivated by a genuine belief that he had been wronged.
Based on our independent review of the record, we find clear and convincing evidence that La Tourette presently lacks the character and fitness to practice law. Although his credit litigation may have been justified, his intemperate exchanges with Bar Examiners personnel and his litigation against the Bar Examiners and his law school demonstrated an unwillingness to accept any personal responsibility for his difficulties. (La Tourette had unsuccessfully taken the bar examination seven times.) In one *341 letter to the Secretary of the Bar Examiners, La Tourette characterized all communications with the Bar Examiners as "marked by petty cruelty." He added that a court order compelling him to pay the examination fee was a "fraud and deceit," and that the Bar Examiners had committed acts of "purposeful harassment and cruelty." His suit against his law school charged that its failure of performance caused him to fail the bar examination. His suit against the Bar Examiners exhibited a callous disregard of the rights of others. One lawsuit sought to restrain the publication of bar results. La Tourette filed three separate federal suits, one of which sought injunctive relief to strike down the requirement of passage of a bar examination as a prerequisite for a license to practice law. These bar-related suits were all summarily dismissed by federal and state courts. Although not yet bound by Rule of Professional Conduct 3.1, which requires a lawyer to have a good faith basis for bringing or defending suit, La Tourette is covered by the provisions of N.J.S.A. 2A:15-59.1, the frivolous litigation statute. A claim constitutes frivolous litigation if "judging the [claimant's] conduct as a whole," the claim "was brought in bad faith, for the purpose of delay and harassment." Deutch & Shur, P.C. v. Roth, 284 N.J.Super. 133, 139, 663 A.2d 1373 (Law Div. 1995). Given the summary disposition of his claims, they may be viewed as bordering on the frivolous. La Tourette further demonstrated his lack of respect for judicial officers and institutions by surreptitiously recording conversations with Bar Examiners personnel. We conclude that La Tourette's statements and correspondence concerning the conduct of the Bar Examiners show such marked disrespect for judicial personnel, procedures and institutions as to belie a fidelity to the administration of justice. In re McLaughlin, 144 N.J. 133, 154, 675 A.2d 1101 (1996). We agree with the Statewide Panel that certification of La Tourette's application for admission should be withheld.
Because the Court's concerns are with an applicant's present fitness to practice law, evidence of reform and rehabilitation becomes relevant to an assessment of an applicant's moral character. In re Matthews, 94 N.J. 59, 81, 462 A.2d 165 (1983). "Where evidence convincingly demonstrates reform and rehabilitation, it can overcome the adverse inference of unfitness arising from past misconduct and, if persuasive, present fitness may be found." Ibid. Although we find respondent presently unfit to practice law, we do not find that the candidate's character is unsalvageable. His very persistence at gaining admission demonstrates a strong desire to become a member of the bar. What is missing is an acceptance and understanding of what is expected from every member of the bar concerning civility and respect for judiciary personnel and everyone with whom an attorney comes in contact.
The following types of evidence are probative of reform and rehabilitation: (1) an applicant's "complete candor in all filings and proceedings conducted by the Committee on Character"; (2) an applicant's "renunciation of the past misconduct"; (3) "[t]he absence of any misconduct over a period of intervening years"; (4) "a particularly productive use of [the applicant's] time subsequent to the misconduct"; and (5) "[a]ffirmative recommendations from people aware of the applicant's misconduct who specifically consider the individual's fitness in light of that behavior." Id. at 82, 462 A.2d 165.
We do not foreclose the possibility that La Tourette will be able to produce sufficient evidence of the character traits necessary to establish his fitness to practice law. In re Jenkins, 94 N.J. 458, 470-71, 467 A.2d 1084 (1983). Such evidence could, we suggest, demonstrate that he has consistently supported his children, has implemented a plan for repayment of any remaining creditors, has availed himself of the justice system only consistent with the standards expected of one aspiring to become a member of the bar, and perhaps has become involved in community service or volunteer activities. Finally, he must demonstrate that "when placed in a position of responsibility, he can act honestly and truthfully and with trustworthiness and reliability in his dealing with others." Matthews, supra, 94 N.J. at 83, 462 A.2d 165.
Accordingly, we adopt the Committee's recommendation and direct that certification *342 of the candidate's character and fitness be withheld without prejudice to the candidate's right to present to the Committee, no earlier than two years from the filing date of this opinion, evidence of rehabilitation in accordance with Matthews, supra, and this decision.
For withholdingChief Justice PORITZ, and Justices HANDLER, POLLOCK, O'HERN, GARIBALDI, STEIN and COLEMAN7.
OpposedNone.
ORDER
This matter having come before the Court on an Order to Show Cause why the character certification of WILLIAM C. LA TOURETTE should not be withheld, and good cause appearing;
It is ORDERED that certification of the candidate's character and fitness is withheld, without prejudice to his right to present to the Committee on Character, no earlier than two years from the filing date of this opinion, evidence of rehabilitation in accordance with In re Matthews, 94 N.J. 59, 462 A.2d 165 (1983) and the Court's opinion in the within matter.
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182 P.3d 325 (2008)
219 Or. App. 428
IN RE K.O.S.
STATE
v.
K.O.S.
No. A135014.
Court of Appeals of Oregon.
April 16, 2008
Affirmed without opinion.
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IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
IN RE: THE ESTATE OF PERRY M. : No. 683 MAL 2014
MCKEAN, DECEASED, JUNE L. :
CONFER, ADMINISTRATRIX :
: Petition for Allowance of Appeal from the
: Order of the Superior Court
:
:
PETITION OF: LARRY HAINES :
ORDER
PER CURIAM
AND NOW, this 17th day of February, 2015, the Petition for Allowance of Appeal
is DENIED.
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137 F.3d 1352
Parksv.Jones*
NO. 96-31292
United States Court of Appeals,Fifth Circuit.
February 12, 1998
Appeal From: E.D.La. ,No.95CV1127K
1
Affirmed.
*
Fed.R.App.P. 34(a); 5th Cir.R. 34.2
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222 F.Supp.2d 789 (2002)
UNITED STATES of America, for the Use and Benefit of AMERICAN SHEET METAL CORPORATION, and American Sheet Metal Corporation, Plaintiffs,
v.
The TRAVELERS INSURANCE COMPANY, and Manoj K. Shah, Inc., Defendants.
No. C.A.2:02CV624.
United States District Court, E.D. Virginia, Norfolk Division.
September 27, 2002.
Glen W. Thompson, Pender & Coward, Virginia Beach, VA, for Plaintiffs.
Johnny C. Cope, Cope, Olson & Yoffy, PLC, Newport News, VA, for Defendants.
OPINION AND ORDER
SMITH, District Judge.
This matter is before the court on the motion of defendants The Travelers Insurance Company ("Travelers") and Manoj K. Shah, Inc. ("Shah") to stay the current action pending arbitration, in accordance with the written agreement of the parties. Plaintiffs oppose the motion.
*790 I. Background
This case arises under the Miller Act, 40 U.S.C. § 270a et seq., which requires that in any construction contract with the United States government, the contractor must provide a payment and a performance bond to the United States. It also allows a subcontractor to sue against the payment bond for nonpayment of services performed on a public works project.
Defendant Shah contracted with the United States government to replace the roof of Building 171 at the Norfolk Naval Shipyard in Portsmouth, Virginia. In compliance with the Miller Act, defendant Travelers' predecessor in interest, Reliance Insurance Company, issued a payment bond guaranteeing the payment of all claims for labor and materials on the project. In May of 1999, Shah entered into a written subcontract with plaintiff American Sheet Metal Corporation ("American"), in which American agreed to provide labor and materials for the project. The price of the subcontract was $2,307,820.00. According to the complaint, American supplied Shah with materials and labor from time to time. Although American received periodic payments, Shah left a balance of $180,545.00, which is still due and unpaid. American claims it made a demand on Shah for payment but has not received the balance. On August 8, 2002, the United States brought suit on behalf of American, pursuant to the Miller Act, to recover the money still allegedly owed to American under the subcontract. Defendants answered the complaint and also filed a counterclaim, asking for liquidated damages in the amount of $480,000 to compensate Shah for damages incurred because of American's substantial delay in completion of work. In addition, defendants filed the present motion, seeking to stay all proceedings and to direct the parties to arbitrate. Plaintiffs filed an opposition to the motion to stay.
II. Discussion
Defendants move to stay this action, relying on the arbitration clause in the subcontract between Shah and American.[1] According to the Federal Arbitration Act, a party to a written arbitration agreement, contained in a contract involving interstate commerce, may petition the court for a stay of a suit, which the court shall grant if "the issue involved in such suit or proceeding is referable to arbitration under such an agreement." 9 U.S.C. § 3. Plaintiffs argue that arbitration is inappropriate in this situation because the subcontract excludes claims brought under the Miller Act. The question before the court, then, is not whether Miller Act claims are generally arbitrable, but rather whether subsequent language in the subcontract negates the stated intent of the parties to subject their claims to arbitration.[2]
*791 In the present case, the subcontract between Shah and American contains the language of the Standard Form of Agreement Between Contractor and Subcontractor, 1987 Edition, of the American Institute of Architects ("AIA"). It states in relevant part:
6.1 Any controversy or claim between the Contractor and the Subcontractor arising out of or related to this Subcontract, or the breach thereof, shall be settled by arbitration, which shall be conducted in the same manner and under the same procedure as provided in the Prime Contract with respect to claims between the Owner and the Contractor .... If the Prime Contract does not provide for arbitration, or fails to specify the manner and procedure for arbitration, it shall be conducted in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association currently in effect unless the parties mutually agree otherwise.
* * * * * *
6.5 This Article 6 shall not be deemed a limitation of rights or remedies which the Subcontractor may have under Federal law, under state mechanics' lien laws, or under applicable labor or material payment bonds unless such rights or remedies are expressly waived by the Subcontractor.
(Subcontract, Article 6, attached to Def. Mot. to Stay, Ex. A) (emphasis added).
Plaintiffs contend, despite the broad language in section 6.1 quoted above, they are not bound to arbitrate the dispute because section 6.5 specifically excludes from coverage, inter alia, rights or remedies arising under federal law. Because the Miller Act is federal legislation, giving plaintiffs rights and remedies under federal law, and because American as the subcontractor has not expressly waived its right to Miller Act claims, plaintiffs argue that their Miller Act claim is outside the scope of arbitration in section 6.1 and is governed by section 6.5. This court agrees.
By consenting to section 6.5, the parties specifically excluded from arbitration any claim under the Miller Act, unless expressly waived by American. See United States ex rel. Tanner v. Daco Const., 38 F.Supp.2d 1299, 1300-01 (N.D.Okla.1999) (holding that identical contract provision specifically excluded Miller Act claims from general arbitration provision). The Miller Act provides American the right to sue in federal court on the payment bond for amounts owed to it by the contractor under the terms of the subcontract. Given the unambiguous language of the subcontract, and the fact that American has not expressly waived its right to proceed in federal court, this court finds that the arbitration clause is unenforceable because the parties are not compelled to arbitrate the Miller Act claim.
III. Conclusion
For the above stated reasons, Defendants' Motion to Stay is DENIED. The Clerk is DIRECTED to send a copy of this Opinion and Order to counsel for the parties.
IT IS SO ORDERED.
NOTES
[1] The parties do not dispute the validity of the arbitration provision, only its scope.
[2] The court notes, however, that the Miller Act claim would be arbitrable if the parties had not agreed to section 6.5 in the subcontract or if American had expressly waived its right to sue under the Miller Act. See Employers Ins. of Wausau v. Bright Metal Specialties, Inc., 251 F.3d 1316, 1324 (11th Cir.2001) (holding that Miller Act does not preclude arbitration under FAA when parties previously agreed to arbitrate disputes); United States ex rel. Capolino Sons, Inc. v. Electronic & Missile Facilities, Inc., 364 F.2d 705, 707-08 (2d Cir.1966) (requiring subcontractor to arbitrate Miller Act claim pursuant to a subcontract containing arbitration provision); Agostini Bros. Bldg. Corp. v. United States ex rel. Virginia-Carolina Elec. Works, 142 F.2d 854, 855 (4th Cir.1944) (noting that 9 U.S.C. § 3 applies to claims brought under the Miller Act); see also Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 25, 111 S.Ct. 1647, 114 L.Ed.2d 26 (1991) (holding that statutory claims may be the subject of enforceable arbitration agreement).
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578 F.2d 742
11 ERC 1729, 8 Envtl. L. Rep. 20,480
LESLIE SALT CO. et al., Appellants-Cross-Appellees,v.Robert F. FROEHLKE, Secretary of the Army, et al.,Appellees-Cross-Appellants,andSierra Club et al., Appellees-Cross-Appellants.SIERRA CLUB et al., Appellees-Cross-Appellants,v.LESLIE SALT CO. et al., Appellants-Cross-Appellees.
Nos. 76-2414, 76-3135, 76-3202 and 76-2696.
United States Court of Appeals,Ninth Circuit.
May 11, 1978.As Amended June 9, 1978.Rehearing and Rehearing En Banc Denied July 19, 1978.
Edgar B. Washburn (argued), of Landels, Ripley & Diamond, San Francisco, Cal., for appellants-cross-appellees.
Kathryn Oberly (argued), Anthony C. Liotta, Acting Dep. Asst. Atty. Gen., Raymond N. Zagone, Washington, D.C., James L. Browning, Jr., U.S. Atty., David E. Golay, Asst. U.S. Atty., San Francisco, Cal., for Appellees-cross-appellants Froehlke et al.
Appeal From the United States District Court for the Northern District of California.
Before MERRILL, CUMMINGS,* and SNEED, Circuit Judges.
SNEED, Circuit Judge:
1
These appeals deal with the scope of the regulatory jurisdiction of the U.S. Army Corps of Engineers ("Corps") over "navigable waters of the United States" as that term is used, first, in the Rivers and Harbors Act of 1899, 33 U.S.C. § 401 et seq., and, second, in the Federal Water Pollution Control Act of 1972, 33 U.S.C. § 1251, et seq.
2
Suit was initiated on March 29, 1972, by the Sierra Club against Leslie Salt Co. ("Leslie"), seeking a declaratory judgment that Leslie's diked evaporation ponds in and around Bair Island in San Francisco Bay were built in violation of the Rivers and Harbors Act of 1899 because Leslie had failed to seek or obtain permits from the Corps. The action also sought a permanent injunction ordering removal of the dikes or, in the alternative, prohibiting further construction or maintenance of dikes at Bair Island. Leslie then sued the Corps on December 20, 1973, seeking a declaration that the regulatory jurisdiction of the Corps over tidal marshlands in San Francisco Bay under both the Rivers and Harbors Act of 1899 and the Federal Water Pollution Control Act of 1972 ("FWPCA") is delimited by the line of mean high water ("MHW"). The Sierra Club was permitted to intervene in this action.
3
The two cases were consolidated for trial. On December 9, 1974, the district court rendered partial summary judgment in favor of the Corps and the Sierra Club in Leslie's suit against the Corps ("Leslie's suit"), holding that the Corps's jurisdiction under the FWPCA extends to the line of mean higher high water ("MHHW") on the Pacific coast. Leslie Salt v. Froehlke, 403 F.Supp. 1292 (N.D.Cal.1974). This was followed on March 11, 1976 by an opinion in both cases holding that the Corps's jurisdiction under the Rivers and Harbors Act also extends to the MHHW line on the Pacific coast. Sierra Club v. Leslie Salt, 412 F.Supp. 1096, 1102 (N.D.Cal.1976). The district court further held that the Corps's jurisdiction extends to the former MHHW line in its unobstructed, natural state, rather than to the present MHHW line, which at least in part follows the bayward edge of Leslie's dikes. Id. at 1102. Finally, the court held that although the Corps had timely asserted its jurisdiction over the discharge of dredged or fill material under the FWPCA of 1972, it was estopped from requiring permits under the Rivers and Harbors Act for the future maintenance of any obstruction already constructed before the Corps's assertion of jurisdiction. Id. at 1104. The court ruled that its estoppel holding in Leslie's suit against the Corps was also applicable to the Sierra Club's action ("Sierra Club's suit"), which later was dismissed on the court's own motion. These appeals followed.
4
The district court erred in holding that the Corps's jurisdiction under the Rivers and Harbors Act extends to the MHHW line on the Pacific coast, but was correct insofar as its holding subjected to the Corps's jurisdiction under the FWPCA waters which are no longer subject to tidal inundation because of Leslie's dikes, without regard to the location of historic tidal water lines in their unobstructed, natural state. The district court also erred in dismissing Sierra Club's suit against Leslie, designated in this court as No. 76-2696. Therefore, we reverse in part, modify in part, and remand No. 76-2696 for further proceedings.
I.
5
Facts.
6
Leslie owns some 35,000 acres of property along the shores of south San Francisco Bay. Appellant Mobil Oil Estates Ltd. (Bair Island Investments) is the owner of a 3,000-acre parcel in San Mateo County known as "Bair Island."1 The subject lands were originally conveyed by the United States to the State of California pursuant to the Arkansas Swamp Act of 1850, 43 U.S.C. § 981 et seq., and then patented by the state to Leslie's predecessors in interest. In its natural condition, the property was marshland subject to the ebb and flow of the tide.2 Commencing in 1860, the land was diked and reclaimed and has since that time been used primarily for salt production by means of solar evaporation of Bay waters introduced into Leslie's salt ponds. These dikes were completed, for the most part, in 1927, although some work continued through 1969. Because of these dikes, the land in question has not been subject to tidal action on a regular basis, although most of it is periodically inundated by Bay waters for salt production. The Bair Island property was removed from salt production in 1965; because of the continued maintenance of dikes on the island, it has become dry land.
7
In 1971 and 1972, the San Francisco District of the Corps published two Public Notices (No. 71-22 on June 11, 1971, and No. 71-22(a) on January 18, 1972), stating that the Corps had changed its policy and would henceforth require permits for all "new work" on unfilled marshland property within the line of "former mean higher high water," whether or not the property was presently diked off from the ebb and flow of the tides.3
8
In these Public Notices the Corps purported simply to redefine the scope of its regulatory authority within the ambit of the Rivers and Harbors Act of 1899, sections 9 and 10 of which prohibit filling or the construction of any "dam," "dike," "obstruction," or "other structures" within the "navigable water of the United States," without the prior authorization of the Corps of Engineers. 33 U.S.C. §§ 401, 403.4
9
An understanding of the technical tide line terminology is critical to this case. Every 24.8 hours, both the Pacific and Atlantic coasts of the United States experience two complete tidal cycles, each including a high and a low tide. The Gulf coast tides, known as diurnal, have but one high and one low tide each lunar day. On the Atlantic coast, the difference between the two daily tidal cycles, known as semi-diurnal tides, is relatively slight. Accordingly, there is in most instances little difference between the two high tides or between the two low tides in a given day on the east coast. The two daily Pacific coast tidal cycles (known as "mixed type" tides), however, in most locations are substantially unequal in size, with one high tide significantly higher than the other. The mean high water line is the average of both of the daily high tides over a period of 18.6 years; the mean higher high water line is the average of only the higher of the two tides for the same period of time. Thus, on the Atlantic coast the difference between the MHW and the MHHW is relatively small, while on the Pacific coast generally it is relatively large. Sierra Club v. Leslie Salt, supra, 412 F.Supp. at 1098-99.
10
We shall first discuss Leslie's suit and then turn to that of the Sierra Club.
II.
11
Leslie's Suit.
12
A. Summary Judgment in Leslie's Suit.
13
A threshold question is raised by Leslie as to whether summary judgment was improperly granted. We find that the district court did not err in deciding that there were no genuine issues of material fact. The issues to be decided in Leslie's suit were purely legal. As framed by Leslie, the action was for a declaratory judgment that the regulatory jurisdiction of the Corps under both the Rivers and Harbors Act and the FWPCA extended only to the MHW line, and an injunction restraining the Corps from requiring permits for properties located above the MHW line. The suit did not involve action or inaction by the Corps on any particular application by Leslie for a permit under the Rivers and Harbors Act or the FWPCA, since Leslie has refused to apply for any permits. Thus, the particular circumstances and characteristics of Leslie's property in this case were not material to the questions raised on the motions for summary judgment.
14
B. Scope of Corps's Jurisdiction Under Rivers and Harbors Act.
15
Analysis of the Rivers and Harbors Act must begin by acknowledging that it does not define the terms "navigable water of the United States" or "waters of the United States." Pertinent regulations defining these terms have recently been adopted by the Corps. On July 25, 1975, after the San Francisco District of the Corps issued the two Public Notices dealing with the use of the MHHW line as the limit of its jurisdiction, the Corps promulgated the following definition of "navigable waters of the United States":
16
The term, "navigable waters of the United States," is administratively defined to mean waters that have been used in the past, are now used, or are susceptible to use as a means to transport interstate commerce landward to their ordinary high water mark and up to the head of navigation as determined by the Chief of Engineers, and also waters that are subject to the ebb and flow of the tides shoreward to their mean high water mark (mean higher high water mark on the Pacific coast ). See 33 C.F.R. 209.260 (ER 1165-2-302) for a more definitive explanation of this term.
17
33 C.F.R. § 209.120(d)(1) (emphasis added).5
18
Regulation 209.260, adopted September 9, 1972, provides in most pertinent part, as follows:
19
Shoreward limit of jurisdiction. Regulatory jurisdiction in coastal areas extends to the line on the shore reached by the plane of the mean (average) high water. However, on the Pacific coast, the line reached by the mean of the higher high waters is used.
20
33 C.F.R. § 209.260(k)(1)(ii) (emphasis added).6
21
Prior to these amendments the Regulation did not address itself to the shoreward limit of its jurisdiction and deferentially set forth its views regarding what constitutes navigable water as merely "the views of the Department since the jurisdiction of the United States can be conclusively determined only through judicial proceedings." 33 C.F.R. § 209.260(a) (1971).
22
Leslie contends that the district court's ruling upholding the Corps's regulations is contrary to every reported decision defining the boundaries of tidal water bodies. Conceding that Congress may in theory have the power under the Commerce Clause to legislate with respect to land between the MHW and the MHHW line, Leslie argues that the "navigable waters of the United States" within the meaning of the Rivers and Harbors Act have consistently been judicially extended only to the MHW line. In response, the Corps and the Sierra Club argue that the extent of Rivers and Harbors Act jurisdiction on the Pacific coast is an issue of first impression for any appellate court, and has arisen in only two previous court cases.7 They urge that the Corps's use of the MHHW line on the Pacific coast is a logical and reasonable attempt to "harmonize" its regulatory program throughout the country. Inasmuch as Leslie accurately describes the state of the authorities, the Corps and Sierra Club in effect invite us to read the Act differently than in the past to accommodate the desire of the Corps to extend its jurisdiction on the Pacific coast. We decline the invitation because we believe it is misdirected. It should be addressed to Congress rather than the Judiciary.
23
Turning to the authorities, the Supreme Court in 1915 held that federal regulatory jurisdiction over navigable tidal waters extends to the MHW line. Willink v. United States, 240 U.S. 572, 580, 36 S.Ct. 422, 60 L.Ed. 808 (1916). While Willink was concerned with the boundaries of the tidal waters on the Atlantic coast, the case is significant because it deals directly with the relationship between the federal navigational servitude and the Corps's regulation of "navigable waters of the United States." The servitude, which reaches to the limits of "navigable water," permits the removal of an obstruction to navigable capacity without compensation. See 33 U.S.C. § 403. Accordingly, an expansion of "navigable water" shoreward diminishes the protection of the Fifth Amendment. We think an interpretation of the Act which accomplishes this, first advanced seventy-two years after its enactment, should be viewed with skepticism to say the least.
24
The district court in support of its interpretation relied on the earlier river case of Greenleaf-Johnson Lumber Co. v. Garrison, 237 U.S. 251, 35 S.Ct. 551, 59 L.Ed. 939 (1915), to derive the "underlying principle" that federal authority over navigable waters "necessarily . . . extends to the whole expanse of the stream, and is not dependent upon the depth or shallowness of the water." Greenleaf-Johnson, 237 U.S. at 263, 35 S.Ct. at 555. The trouble with this "principle," however, is that it could support the use of the extreme high spring tides for the line of jurisdiction just as well as it supports MHW or MHHW. A "principle" which bestows more power than its beneficiary currently requests should not be readily accepted.
25
Consistent with Willink, however, is the leading case defining the extent of tidal water bodies on the Pacific coast. Borax Consolidated, Ltd. v. City of Los Angeles, 296 U.S. 10, 56 S.Ct. 23, 80 L.Ed. 9 (1935) originated in a property dispute brought by Los Angeles to quiet title to land on an island in Los Angeles harbor. At issue was the proper boundary between tidelands as to which the State possessed original title upon admittance to the Union, and uplands, which became public lands of the United States at the time of their acquisition from Mexico. Los Angeles claimed the disputed property under a tidelands grant from the State of California, while Borax Consolidated, the upland owner, claimed under a patent issued by the United States. The specific question presented on appeal to the Supreme Court was whether this boundary line was the mean high tide line as urged by Los Angeles, or the "neap tide" line, as Borax Consolidated contended. Neap tides are those which occur monthly when the moon is in its first and third quarters, during which time the tide does not rise as high or fall as low as on the average. In contrast, "spring tides," which occur at times of new moon and full moon, are greater than average. During spring tide the high water rises higher and low water falls lower than usual. Borax, supra, 296 U.S. at 23, 56 S.Ct. 23.
26
The Supreme Court, affirming a decision of this court, held that the tideland extends to the MHW mark as technically defined by the United States Coast and Geodetic Survey: that is, "the average height of all the high waters" at a given place over a period of 18.6 years. Id. at 26-27, 56 S.Ct. at 31 (emphasis added). The Supreme Court stated its rationale as follows:
27
(B)y the common law, the shore "is confined to the flux and reflux of the sea at ordinary tides." . . . It is the land "between ordinary high and low water mark, the land over which the daily tides ebb and flow. . . ."
28
The range of the tide at any given place varies from day to day, and the question is: How is the line of "ordinary" high water to be determined? . . .
29
In determining the limit of the federal grant, we perceive no justification for taking neap high tides, or the mean of those tides, as the boundary between upland and tideland, and for thus excluding from the shore the land which is actually covered by the tides most of the time. In order to include the land that is thus covered, it is necessary to take the mean high-tide line, which . . . is neither the spring tide nor the neap tide, but a mean of all the high tides.
30
Id. at 22-23, 26, 56 S.Ct. at 29, 31.
31
The district court below distinguishes Borax on the grounds that the Supreme Court was dealing with an issue of title and "made no reference to the federal navigational servitude under the Rivers and Harbors Act or to the distinction of MHHW and MHW." Sierra Club v. Leslie Salt Co., supra, 412 F.Supp. at 1101. However, Borax cannot be brushed aside so easily. The considerations involved in the regulation of navigable waters under the commerce power are intimately connected to the question of title to tidelands. The term "navigable waters" has been judicially defined to cover: (1) nontidal waters which were navigable in the past or which could be made navigable in fact by "reasonable improvements," United States v. Appalachian Electric Power Co., 311 U.S. 377, 61 S.Ct. 291, 85 L.Ed. 243 (1940); Economy Light & Power Co. v. United States, 256 U.S. 113, 41 S.Ct. 409, 65 L.Ed. 847 (1921); and (2) waters within the ebb and flow of the tide. The Propeller Genesee Chief v. Fitzhugh, 53 U.S. (12 How.) 443, 13 L.Ed. 1058 (1851); United States v. Stoeco Homes, Inc., 498 F.2d 597 (3d Cir. 1974), cert. denied, 420 U.S. 927, 95 S.Ct. 1124, 43 L.Ed.2d 397 (1975); United States v. President, etc., of Jamaica & R.T.R., 183 F. 598, 601 (C.C.E.D.N.Y.1910), rev'd on other grounds, 204 F. 759 (2d Cir. 1913); United States v. Banister Realty Co.,155 F. 583, 594 (C.C.E.D.N.Y.1907). Tideland, by definition, is the soil underlying tidal waters. To fix the shoreward boundary of tideland there must be fixed the shoreward limit of tidal water which, in turn, should fix the shoreward limit of "navigable waters" in the absence of a contrary intent on the part of Congress. To fix the limit of "navigable water," for the purposes of the Rivers and Harbors Act, further shoreward than Borax fixed the limit of "tidal water" assumes the existence of an intent of Congress at the time of the Act's enactment of which we have no evidence.
32
The high probability that Congress in the Act intended that the shoreward limit of tidal water and navigable water be the same is supported by the fact that only five years previously in Shively v. Bowlby, 152 U.S. 1, 14 S.Ct. 548, 38 L.Ed. 331 (1894), the Supreme Court held that a "donation land claim, bounded by the Columbia river, . . . includes no title or right in the land below high-water mark," id. at 58, 14 S.Ct. at 570, resting its conclusion on the fact that lands under "tide waters" had "great value to the public for the purposes of commerce, navigation, and fishery." Id. at 57, 14 S.Ct. at 569. Shively, we suggest, assumed that the shoreward limit of the navigational servitude, and thus also the shoreward limit of navigable water, fixed the seaward limit of private ownership. Numerous other cases have recognized that land ownership can be determined by the limits of navigable water. See, 1 R. E. Clark, Waters and Water Rights § 37.2(c) (1967).
33
This long-standing recognition that, for the purpose of fixing a shoreward limit, the terms tide water and navigable water are interchangeable strongly suggests that in Borax the Supreme Court, in the course of settling a title dispute, also fixed the shoreward boundary of navigable water on the Pacific coast. This is buttressed by the fact that since Borax and Willink, the MHW line has been routinely cited as the boundary of federal regulatory jurisdiction over tidal waters by every court to consider the question, with the two recent exceptions upon which the Corps and Sierra Club rely. United States v. Stoeco Homes, Inc., supra, 498 F.2d 597 (3d Cir. 1974), cert. denied, 420 U.S. 927, 95 S.Ct. 1124, 43 L.Ed.2d 397 (1975); United States v. Holland, 373 F.Supp. 665 (M.D.Fla.1974); United States v. Cannon, 363 F.Supp. 1045 (D.Del.1973); United States v. Pot-Nets, 363 F.Supp. 812 (D.Del.1973); United States v. Lewis, 355 F.Supp. 1132 (S.D.Ga.1973). As stated in Holland, supra:
34
Borax became a landmark case in the law of tidal boundaries. And even though the test used by the Supreme Court was enunciated to settle a land dispute, and notwithstanding the fact that the test derived from an English court's desire to preserve to property owners so much of the land as is "dry and maniorable", the test of the mean high water mark became the inveterate standard to be applied in limiting federal authority over navigable waters.
35
Holland, supra, 373 F.Supp. at 671.
36
Although these cases all arose on the Atlantic or Gulf coasts, each implicitly accepts Borax, a Pacific coast case,8 as enunciating a rule applicable to all coasts of the United States. Taken together, they indicate the extent to which the MHW line has been consistently accepted as the boundary of "navigable waters of the United States." To affirm the Corps's recent regulations setting the shoreward reach of federal regulatory power on the Pacific coast at the MHHW line would constitute a dramatic reversal of long-established decisional precedent.9
37
The appellees insist that the Corps's recently promulgated regulations using the MHHW line are not an extension of jurisdiction, but merely a recognition of previously informal policy. They point to the testimony of various Corps officials, both in depositions taken for trial and in Congressional hearings, that the Government's policy had always been to assert Corps regulatory jurisdiction on the Pacific coast up to the MHHW; but that in marsh areas, the seaward edge of marsh grass was used to mark the limits of permit authority, even if the MHHW line was shoreward of this. This inchoate policy apparently remained unstated until 1969, when the first public reference to it was made in a Congressional hearing. House Committee on Government Operations, Protecting America's Estuaries: The San Francisco Bay and Delta, H.R.Rep. No. 1433, 91st Cong., 2d Sess., 50-51 (1970); House Committee on Government Operations, Increasing Protection For Our Waters, Wetlands, and Shorelines: The Corps of Engineers, H.R.Rep. No. 1323, 92d Cong., 2d Sess., 27-33 (1972).10 Assuming arguendo that there was such a policy on the part of the Corps, we cannot accept an interpretation which was never stated or practiced, and which is so clearly contrary to the long-established precedent to which the Corps in its regulations prior to 1972 gave deference. Neither do we perceive how the use of MHHW on the Pacific coast and MHW elsewhere would bring any more "harmony" to the Corps's regulatory jurisdiction than has existed under the heretofore uniform application of the MHW line on all coasts.11
38
Moreover, we have already indicated that more is involved than simply an expansion of the Corps's regulatory authority. As stated by the Supreme Court in United States v. Virginia Electric Co., 365 U.S. 624, 81 S.Ct. 784, 5 L.Ed.2d 838 (1961):
39
This navigational servitude sometimes referred to as a "dominant servitude," . . . or a "superior navigation easement," . . . is the privilege to appropriate without compensation which attaches to the exercise of the "power of the government to control and regulate navigable waters in the interest of commerce." United States v. Commodore Park, 324 U.S. 386, 390, 65 S.Ct. 803, 89 L.Ed. 1017.
40
United States v. Virginia Electric, 365 U.S. at 627-28, 81 S.Ct. at 787 (emphasis added).
41
The navigational servitude reaches to the shoreward limit of navigable waters. To extend the servitude on the basis of a recently formulated administrative policy is to impose an additional burden of unknown magnitude on all private property that abuts on the Pacific coast.
42
We wish to point out, however, that our interpretation of the Rivers and Harbors Act is not governed by a belief that the Act represents the full exertion by Congress of its authority under the Commerce Clause. To paraphrase the Court of Appeals for the Third Circuit in Stoeco Homes, supra, "we can put aside the question whether under the Commerce Clause, Congress could extend the regulatory jurisdiction of the Army Corps of Engineers" to the MHHW line or beyond:
43
In the statute on which the government relies Congress did not do so. It extended that jurisdiction only to the navigable waters of the United States. . . .(The Rivers and Harbors Acts of 1890 and 1899) were enacted pursuant to the Commerce Clause, but neither reached the full extent of Congressional power over commerce. That power was exercised in 1890 to protect "waters, in respect of which the United States has jurisdiction" and in 1899 to protect "waters of the United States." Congress obviously adopted the judicial definition of those waters as of 1890. That definition was the admiralty definition.
44
Stoeco Homes, supra, 498 F.2d at 608-09 (emphasis added).
45
We hold that in tidal areas, "navigable waters of the United States," as used in the Rivers and Harbors Act, extend to all places covered by the ebb and flow of the tide to the mean high water (MHW) mark in its unobstructed, natural state. Accordingly, we reverse the district court's decision insofar as it found that the Corps's jurisdiction under the Rivers and Harbors Act includes all areas within the former line of MHHW in its unobstructed, natural state.
46
Our holding that the MHW line is to be fixed in accordance with its natural, unobstructed state is dictated by the principle recognized in Willink, supra, that one who develops areas below the MHW line does so at his peril. We recognize that under this holding issues of whether the Government's power may be surrendered or its exercise estopped, and if so, under what circumstances and to what extent, may arise. Leslie, for example, may contend that there has been a surrender by the Corps of its power under the Rivers and Harbors Act with respect to certain land below the MHW line. Such contentions, however, are not presently before us in this case. Therefore, at this time it is not necessary for us to pass on issues such as were before the court in Stoeco, supra.
47
C. Scope of Corps's Jurisdiction Under FWPCA.
48
The scope of regulatory authority under the FWPCA presents a substantially different issue. The district court's holding that the Corps's regulatory jurisdiction under the FWPCA is "coterminous" with that under the Rivers and Harbors Act, extending to "the former line of MHHW of the bay in its unobstructed, natural state," is faulty. Sierra Club v. Leslie Salt, supra, 412 F.Supp. at 1102-03. In its opening brief in this appeal, Leslie properly concedes that:
49
. . . the Corps' jurisdiction under Section 404 of the FWPCA is broader than its jurisdiction under the Rivers and Harbors Act in that it encompasses existing marshlands located above as well as below the lines of mean high water and mean higher high water which are currently subject to tidal inundation.
50
Brief for Appellant Leslie Salt Co. at 60.12
51
Leslie contends, however, that the use of the former unobstructed, natural MHHW line "extends the Corps' regulatory authority significantly further than is authorized by the FWPCA," because it results in the possibility that the Corps would be able to regulate discharges onto dry lands under an Act whose purpose is to control pollution of the nation's waters. Id.
52
This contention presents a false issue. Neither the Corps nor the Sierra Club argues for the result envisioned by Leslie. Instead, they contend that under the FWPCA,13 the case law interpreting it, and the Corps's own regulations, neither the MHW nor the MHHW line marks the full limit of the Corps's jurisdiction to regulate the pollution of the waters of the United States. The appellees, however, agree with appellant Leslie that, as stated in the Sierra Club's brief,
53
(i)f any portions of Leslie's property were in fact dry, solid upland as of the date of the passage of the FWPCA, therefore, not subject to being returned to their former natural condition of periodic tidal inundation should the artificial obstructions be abated, that property would fall outside the Corps' Section 404 jurisdiction . . . .
54
Brief for Appellee Sierra Club at 84.
55
Where the parties differ is on the question of whether the Corps's jurisdiction covers waters which are no longer subject to tidal inundation because of man-made obstructions such as Leslie's dikes. These are the waters which the district court apparently wanted to include under the aegis of the FWPCA through the use of the historic MHHW line "in its unobstructed, natural state."
56
There are at least two problems with the district court's solution to the issue of Corps authority over Leslie's salt ponds. First, it goes beyond the necessities of this case. Although the appellees insist that the court did not mean to include "fast land," or "improved solid upland" within the ambit of its decision, its order is in fact ambiguous. It simply states that:
57
Pursuant to the FWPCA the Corps may require permits for the discharge of dredged or fill material up to the line of MHHW in its unobstructed natural state, as defined in effect in the Corps' Public Notices 71-22 and 71-22(a) . . . .
58
Sierra Club v. Leslie Salt Co., supra, 412 F.Supp. at 1104.
59
Public Notice No. 71-22(a), published on January 18, 1972, restricts the permit requirement for new work in diked areas below former MHHW to "unfilled portions" thereof.14 The court's order, on the other hand, leaves open the possibility of an interpretation to which appellant objects and upon which appellee does not insist.
60
Second, and much more important, the court below actually placed undue limits on the FWPCA when it stated that "the geographical extent of the Corps' jurisdiction under the Rivers and Harbors Act is coterminous with that under FWPCA." Sierra Club v. Leslie Salt Co., supra, 412 F.Supp. at 1102. It is clear from the legislative history of the FWPCA that for the purposes of that Act, Congress intended to expand the narrow definition of the term "navigable waters," as used in the Rivers and Harbors Act.15 This court has indicated that the term "navigable waters" within the meaning of the FWPCA is to be given the broadest possible constitutional interpretation under the Commerce Clause. California v. Environmental Protection Agency, 511 F.2d 963, 964 n.1 (9th Cir. 1975), rev'd on other grounds sub nom. Environmental Protection Agency v. State Water Resources Control Board, 426 U.S. 200, 96 S.Ct. 2022, 48 L.Ed.2d 578 (1976) ("Congress clearly meant to extend the Act's jurisdiction to the constitutional limit. . . ."). See United States v. Phelps Dodge Corp., 391 F.Supp. 1181 (D.Ariz.1975); United States v. Holland, supra, 373 F.Supp. 665 (M.D.Fla.1974). Also in Phelps Dodge, supra, the court interpreted the FWPCA broadly in finding that:
61
. . . a legal definition of "navigable waters" or "waters of the United States" within the scope of the (Federal Water Pollution Control) Act includes any waterway within the United States also including normally dry arroyos through which water may flow, where such water will ultimately end up in public waters such as a river or stream, tributary to a river or stream, lake, reservoir, bay, gulf, sea or ocean either within or adjacent to the United States.
62
Phelps Dodge, supra, 391 F.Supp. at 1187. See also, United States v. Holland, supra, 373 F.Supp. at 670-676.
63
The water in Leslie's salt ponds, even though not subject to tidal action, comes from the San Francisco Bay to the extent of eight to nine billion gallons a year. We see no reason to suggest that the United States may protect these waters from pollution while they are outside of Leslie's tide gates, but may no longer do so once they have passed through these gates into Leslie's ponds. Moreover, there can be no question that activities within Leslie's salt ponds affect interstate commerce, since Leslie is a major supplier of salt for industrial, agricultural, and domestic use in the western United States. Much of the salt which Leslie harvests from the Bay's waters at the rate of about one million tons annually enters interstate and foreign commerce.
64
Our suggestion that the full extent of the Corps's FWPCA jurisdiction over the "waters of the United States" is in some instances not limited to the MHW or the MHHW line is reinforced by regulations published by the Corps on July 19, 1977 and found at 33 C.F.R. § 323.2, as published at 42 Fed.Reg. 37144-37145.16
65
Without determining the exact limits of the scope of federal regulatory jurisdiction under the FWPCA, we find that the regulations at 33 C.F.R. § 323.2 are reasonable, consistent with the intent of Congress, and not contrary to the Constitution. We therefore hold that the Corps's jurisdiction under the FWPCA extends at least to waters which are no longer subject to tidal inundation because of Leslie's dikes without regard to the location of historic tidal water lines in their unobstructed, natural state. We express no opinion on the outer limits to which the Corps's jurisdiction under the FWPCA might extend.
66
Our holdings with respect to the Rivers and Harbors Act of 1899 and the FWPCA dispose of the declaratory judgment sought by Leslie in its case. Any claims by Leslie, which may be engendered by these holdings, and which are not also involved in Sierra Club's case, whether based on equitable considerations, estoppel, or surrender, must be made and considered in a separate and independent proceeding.
III.
67
Sierra Club's Suit.
68
The district court applied its ruling in Leslie's case against the Corps to the Sierra Club's suit as well. In an order filed June 30, 1976, the court ruled that "there are no issues remaining to be tried in action No. C-72-561 WTS," and dismissed the Sierra Club's complaint in that case. On appeal, the Sierra Club has contended that genuine issues of material fact remain to be tried in the Bair Island case which preclude summary dismissal of its complaint in that action. In oral argument before this Court, Leslie conceded that the Sierra Club's action does involve unresolved issues not properly determined on summary judgment. We agree, and therefore remand case No. 76-2696 for trial.
69
In doing so we point out that our holding with respect to the limit of the Corps's authority under the Rivers and Harbors Act is applicable to Sierra Club's suit. We also recognize that our precise holding with respect to the Corps's power under the FWPCA may not be sufficiently comprehensive to dispose of all questions that might arise on remand. Our reluctance to address issues, which on the basis of the present record must be hypothetical, is required by our disability to render advisory opinions. A full development of the facts on remand will remove this obstacle.
70
The decision of the district court with respect to the Rivers and Harbors Act of 1899 is reversed. The decision of the district court with respect to the FWPCA is reversed in part and modified in part. The action of the Sierra Club against Leslie Salt is remanded for further proceedings not inconsistent with this opinion.
71
Reversed in part, Modified in part, and Remanded in part.
*
Hon. Walter J. Cummings, United States Circuit Judge, for the Seventh Circuit Court of Appeals, sitting by designation
1
Leslie, which conveyed this property to Mobil Oil Estates, has represented the interests of the latter throughout this suit. Accordingly, reference will be made only to Leslie herein
2
In its brief, Leslie asserts that "(i)n their natural condition the former marshlands in question were located above the line of mean high water . . . ." This statement is disputed by the Sierra Club, particularly with respect to Bair Island; apparently it is not disputed by the United States, however
3
Public Notice No. 71-22 provides in pertinent part as follows:
This Public Notice is issued to inform all interested parties of the definition of navigable waters of the United States subject to tides in which the permit procedures established by the River & Harbor Act of 1899 are applicable. Henceforth limits of jurisdiction over such waters shall extend to the line on shore reached by the plane of the mean of the higher high water.
Public Notice No. 71-22(a) provides as follows:
This is in elaboration of our previous Public Notice No. 71-22, dated 11 June 1971, announcing that the Corps of Engineers is now exercising its regulatory authorities within the area bound by the plane of the mean of the higher high water. Permits are required for all new work in unfilled portions of the interior of diked areas below former mean higher high water.
4
Section 9 of the Rivers and Harbors Act of 1899, 33 U.S.C. § 401, provides in pertinent part as follows:
It shall not be lawful to construct . . . any bridge, dam, dike or causeway over or in any . . . navigable water of the United States until the consent of Congress to the building of such structures shall have been obtained and until the plans for the same shall have been submitted to and approved by the Chief of Engineers and by the Secretary of the Army . . . .
Section 10 of the Rivers and Harbors Act of 1899, 33 U.S.C. § 403, provides in pertinent part as follows:
The creation of any obstruction not affirmatively authorized by Congress, to the navigable capacity of any of the waters of the United States is prohibited; and it shall not be lawful to build or commence the building of any wharf, pier, dolphin, boom, weir, breakwater, bulkhead, jetty, or other structures in any . . . water of the United States . . . except on plans recommended by the Chief of Engineers and authorized by the Secretary of the Army; and it shall not be lawful to excavate or fill . . . within the limits of any breakwater, or of the channel of any navigable water of the United States, unless the work has been recommended by the Chief of Engineers and authorized by the Secretary of the Army prior to beginning the same.
5
On July 19, 1977, the Corps published a recompilation of its regulations covering permit applications. The equivalent of the regulation here cited is now found at 33 C.F.R. § 321.2(a), under Part 321, "Permits for Dams and Dikes in Navigable Waters of the United States," and at 33 C.F.R. § 322.2(a), under Part 322, "Permits for Structures or Work in or Affecting Navigable Waters of the United States," both published at 42 Fed.Reg. 37139 (July 19, 1977). These new sections, which are identical in wording, provide:
The term "navigable waters of the United States" means those waters of the United States that are subject to the ebb and flow of the tide shoreward to the mean high water mark (mean higher high water mark on the Pacific coast), and/or are presently used, or have been used in the past, or may be susceptible to use to transport interstate or foreign commerce. See 33 C.F.R. Part 329 for a more complete definition of this term.
There has been no substantive change from the July 25, 1975 regulation.
6
This regulation is now found in identical form at 33 C.F.R. § 329.12(a) (2), as published at 42 Fed.Reg. 37163 (July 19, 1977)
7
One of these is unreported, United States v. Freethy, No. 73-1470 (N.D.Cal. Feb. 24, 1975); the other makes only passing mention of the use of the MHHW line as the Corps's limit of jurisdiction, United States v. Kaiser Aetna, 408 F.Supp. 42, 50 n.18 (D.Hawaii 1976), appeal docketed, No. 76-1968 (9th Cir. May 3, 1976)
8
Aside from Freethy, supra, and Kaiser Aetna, supra, the only other reported Pacific coast Rivers and Harbors Act case is this Court's decision in United States v. Sunset Cove, 514 F.2d 1089 (9th Cir.), cert. denied, 423 U.S. 865, 96 S.Ct. 125, 46 L.Ed.2d 94 (1975). In Sunset Cove, the parties stipulated to use of the MHW line as the extent of federal regulatory jurisdiction
9
In distinguishing Borax, the district court apparently relied in part on the fact that the Supreme Court made no reference to the relatively large difference between MHHW and MHW on the Pacific coast. Sierra Club v. Leslie Salt, supra, 412 F.Supp. at 1101. We note, however, that in concluding that the MHW line is the lateral boundary of a tidal water body on the Pacific coast, the Borax court relied on a United States Coast and Geodetic Survey publication which clearly described the phenomenon of diurnal inequality between MHHW and MHW on the Pacific coast. H. A. Marmer, Tidal Datum Planes, U. S. Coast and Geodetic Survey (Special Publication No. 135), at 5-7, 74-97, 125-127 (1927). Borax, supra, 296 U.S. at 23, 26-27, 56 S.Ct. 23. Moreover, in its brief before the Supreme Court in Borax, the respondent City of Los Angeles stated:
The courts, in the cases cited by petitioners, point out that the boundary line is not the limit reached by the "unusual" or "extraordinary" high tides. Why then should it be fixed as the limit reached by unusual or extraordinary low high tides? The respondent is not contending in this action that the boundary line between tideland and upland is the limit reached by the unusual or extraordinary high tides. Neither is it contending that the boundary line is the mean of the higher high tides.
Brief on Behalf of Respondent at 84, Borax, supra, 296 U.S. 10, 56 S.Ct. 23, 80 L.Ed. 9 (1935) (emphasis added). Thus, the Supreme Court's attention was in fact drawn to the MHW-MHHW distinction.
10
The Corps's deference to the courts in defining "navigable waters" may explain the apparent uncertainty which it had, prior to the publication of the first Public Notice on June 11, 1971, about the limits of its jurisdiction. At hearings in May and August of 1969 before the Conservation and Natural Resources Subcommittee of the Committee on Government Operations of the U.S. House of Representatives, Corps officials testified that the Corps's regulatory jurisdiction over San Francisco Bay waters extended to the line of MHHW. However, on January 28, 1971, the division engineer of the Corps's South Pacific Division, Brig. Gen. Frank A. Camm, sent a letter to a representative of the Sierra Club stating that the Corps's jurisdiction over San Francisco Bay extended only to "those waters that were in fact capable of being used for navigation." Hence, said General Camm, "the extent of our jurisdiction in the bay would be the line of mean higher high water (MHHW), except that in marshland areas it would be the outer edge of the marsh grass." House Committee on Government Operations, Increasing Protection for Our Waters, Wetlands, and Shorelines: The Corps of Engineers, H.R.Rep. No. 1323, 92d Cong., 2d Sess. 27 (1972)
The congressional subcommittee asked the Secretary of the Army to explain the discrepancy between the Corps's earlier testimony and General Camm's statement. In response, Under Secretary of the Army, Thaddeus R. Beal, stated in a letter of June 16, 1971, that the Corps's jurisdiction:
. . . extends to the entire surface of a water body once a major channel within that water body has been found to be navigable . . .. Thus, the "navigable waters" of San Francisco Bay include areas laid bare at low tide, as well as areas presently occupied by marsh grasses but nevertheless subject to normal tidal inundation. Confusion has arisen because physical marks (such as cuts on banks, the edge of terrestrial plant growth, or the edge of marsh grass) have often been accepted as the dividing line between land and water, or roughly equivalent to the line of mean high water. Indeed, early surveys often accepted such lines for purposes of delineating property ownership boundaries. While such lines are useful for general purposes, they cannot be used to delineate "navigable waters" for purposes of legal jurisdiction.
Although local custom has in the past justified the use of readily recognizable boundary lines, such as the grass line in San Francisco Bay, the need for a uniform national policy has become evident. Accordingly, we have requested that our Division Engineer for the South Pacific adopt the line on the shore reached by the plane of the mean of the higher high waters as the limit of Federal permit jurisdiction.
In its report, the subcommittee correctly called this statement a "new policy" which "broadened" the Corps's jurisdiction. Id. at 27-29 (emphasis added).
It should be noted that the purpose of these hearings was to examine the Corps's policy of requiring permits only for activities which affected navigation per se ; the Committee's reports focused on urging that the Corps broaden its scope of permit review to consider all ecological factors under applicable environmental protection statutes. The Corps was also criticized for its past failure to require permits for activities in arguably navigable waters of San Francisco Bay. The question of the exact boundary of tidal navigable waters on the Pacific coast was not directly raised, and the relative merits of using MHHW rather than MHW were not discussed. Indeed, as seen, there was apparently some confusion on the part of the Corps as to what the boundaries of its jurisdiction were. Compare, testimony of General Glasgow, August 20, 1969, with his responses to questioning by Congressman McCloskey, in House Committee on Government Operations, Protecting America's Estuaries: The San Francisco Bay and Delta, H.R.Rep. No. 1433, 91st Cong., 2d Sess., 51-53 (1970).
Thus, it is apparent that the Corps, feeling chastened by congressional criticism of its policies, sought to make up for past mistakes by enunciating a new, broadened definition of its regulatory jurisdiction. At no point did Congress or a single congressional committee specifically authorize or even consider the use of MHHW as opposed to MHW on the Pacific coast.
11
The difference between morning and afternoon tides is known as "diurnal inequality." Like the monthly variations between spring and neap tides, it is brought about by variations in the declination of the moon relative to the earth. Since the difference between MHHW and MHW is relatively greater on the Pacific coast, the Corps argues that its use of MHHW on the Pacific is more consistent with use of MHW elsewhere than if it simply applied MHW everywhere
However, there are so many exceptions to the basic pattern of greater diurnal inequality on the Pacific coast than the Atlantic that the Corps's policy cannot be said to produce any "harmony." The three tide types form a continuum from semidiurnal to mixed to diurnal. As diurnal inequality increases the lower high water and higher low water tend to become equal and merge. When this occurs, there is but one high and one low water in a tidal day instead of two. Thus, this diurnal or "daily" type of tide, which is found on the Gulf coast, is actually an extreme form of the mixed type of tide found on the Pacific coast, just as the mixed tide type is a more extreme form of the semidiurnal type.
As reported in the USGS publication relied on by the Supreme Court in Borax, supra, there are tremendous variations in the amounts of diurnal inequality found at various points on the different coasts. For example, there is greater diurnal inequality at Baltimore, Maryland, on the Atlantic coast, than at either Astoria, Oregon or Humboldt Bay, California, both on the Pacific coast. Since the difference between the once a day diurnal type of tide and the mixed tide type is strictly a matter of degree, it is not surprising that some places on the Gulf coast such as the southern end of Florida and parts of Texas actually experience Pacific-type diurnal inequality. On the other hand, the Alaskan coast (presumably part of the Pacific coast for Corps purposes) has tremendous variations all along the spectrum, from Atlantic-type semidiurnal tides at Ketchikan, Juneau, and Anchorage; to Pacific-type mixed tides at Sitka, Kodiak, and Point Barrow; to Gulf-type diurnal tides at Dutch Harbor and St. Michael.
In view of these inconsistencies in diurnal inequality, it is difficult to see the rationality of using a different standard for the Corps's jurisdiction on the Pacific coast in order to bring about an asserted uniformity. H.A. Marmer, Tidal Datum Planes, U.S. Coast and Geodetic Survey (Special Publication No. 135), at 5-7, 74-83 (1927).
12
Leslie's concession is well taken, since the case law clearly supports an expansive reading of the term "navigable waters" as used in the FWPCA, 33 U.S.C. § 1251, et seq. In United States v. Holland, 373 F.Supp. 665 (M.D.Fla.1974), the district court, in an excellent analysis, held that the discharge of "sand, dirt and dredged soil on land which, although above the mean high water line, was periodically inundated with the waters of Papy's Bayou" was within the reach of the FWPCA, since Congress intended to control the discharge of pollutants into waters at the source of the discharge, regardless of its location vis-a-vis the MHW or MHHW lines. The court stated that:
. . . the mean high water line is no limit to federal authority under the FWPCA. While the line remains a valid demarcation for other purposes, it has no rational connection to the aquatic ecosystems which the FWPCA is intended to protect. Congress has wisely determined that federal authority over water pollution properly rests on the Commerce Clause and not on past interpretations of an act designed to protect navigation. And the Commerce Clause gives Congress ample authority to reach activities above the mean high water line that pollute the waters of the United States.
The defendants' filling activities on land periodically inundated by tidal waters constituted discharges entering "waters of the United States" and, since done without a permit, were thus in violation of 33 U.S.C. § 1311(a).
Holland, supra, 373 F.Supp. at 676.
The legislative history of the FWPCA reviewed by the Holland court amply supports its conclusion.
13
The FWPCA defines "navigable waters" as "the waters of the United States, including the territorial seas." 33 U.S.C. § 1362(7)
14
See n.3, supra
15
The Act itself defines the term "navigable waters" broadly: "waters of the United States, including the territorial seas." 33 U.S.C. § 1362(7). See n.13, supra. The bill submitted to the Senate as S. 2770 defined "navigable waters" as "the navigable waters of the United States, portions thereof, and the tributaries thereof, including the territorial seas and the Great Lakes." 2 Legislative History of the Water Pollution Control Act Amendments of 1972, at 1698 (hereinafter cited as Legislative History). The report of the Senate Committee on Public Works submitted with the bill explained:
The control strategy of the Act extends to navigable waters. The definition of this term means the navigable waters of the United States, portions thereof, tributaries thereof, and includes the territorial seas and the Great Lakes. Through a narrow interpretation of the definition of interstate waters the implementation (of the) 1965 Act was severely limited. Water moves in hydrologic cycles and it is essential that discharge of pollutants be controlled at the source. Therefore, reference to the control requirements must be made to the navigable waters, portions thereof, and their tributaries.
Id. at 1495 (emphasis added).
The House of Representatives bill, H.R. 11896, contained a more restrictive definition of "navigable waters": "the navigable waters of the United States, including the territorial seas." 1 Legislative History at 1069. When the two bills went to Conference Committee, the word "navigable" was deleted from the definition. The Conference Report explained that:
The conferees fully intend that the term "navigable waters" be given the broadest possible constitutional interpretation unencumbered by agency determinations which have been made or may be made for administrative purposes.
Conference Report, S.Rep. No. 1236, 92d Cong., 2d Sess., 144, reprinted in (1972) U.S.Code Cong. & Admin.News p. 3822; reprinted in 1 Legislative History at 327.
In presenting the Conference version to the House, Representative Dingell, a member of the Conference Committee, explained the Committee's intention in defining federal water pollution control jurisdiction even more clearly:
. . . the conference bill defines the term "navigable waters" broadly for water quality purposes. It means all "the waters of the United States" in a geographical sense. It does not mean "navigable waters of the United States" in the technical sense as we sometimes see in some laws.
1
Legislative History at 250. After discussing the effect of judicial decisions expanding the old test of navigability, Representative Dingell concluded:
Thus, this new definition clearly encompasses all water bodies, including main streams and their tributaries, for water quality purposes. No longer are the old, narrow definitions of navigability, as determined by the Corps of Engineers, going to govern matters covered by this bill.
16
This section sets out the definitions used in Part 323, which covers permits for discharges of dredged or fill material into waters of the United States pursuant to Section 404 of the FWPCA. In pertinent part, § 323.2 provides as follows:
For the purpose of this regulation, the following terms are defined:
(a) The term "waters of the United States" means:
(1) The territorial seas with respect to the discharge of fill material . . .;
(2) Coastal and inland waters, lakes, rivers, and streams that are navigable waters of the United States, including adjacent wetlands ;
(3) Tributaries to navigable waters of the United States, including adjacent wetlands (manmade nontidal drainage and irrigation ditches excavated on dry land are not considered waters of the United States under this definition);
(4) Interstate waters and their tributaries, including adjacent wetlands ; and
(5) All other waters of the United States not identified in paragraphs (1)-(4) above, such as isolated wetlands and lakes, intermittent streams, prairie potholes, and other waters that are not part of a tributary system to interstate waters or to navigable waters of the United States, the degradation or destruction of which could affect interstate commerce.
(c) The term "wetlands" means those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs and similar areas.
(d) The term "adjacent" means bordering, contiguous, or neighboring. Wetlands separated from other waters of the United States by man-made dikes or barriers, natural river berms, beach dunes, and the like are "adjacent wetlands."
(Emphasis added; footnotes omitted).
These definitions were published as part of the regulatory recompilation mentioned in note 5, supra. On July 25, 1975, the Corps issued interim regulations defining "navigable waters of the United States" for purposes of the FWPCA. These regulations, which were found at 33 C.F.R. § 209.120(d)(2), differed in only minor respect from the more recent regulations quoted above. While the now superseded interim regulations were published before the district court's March 11, 1976 opinion holding that the Corps's FWPCA jurisdiction extends to the former line of MHHW, the July 19, 1977 recompilation was published after that decision. This court should apply the laws and regulations "in effect at the time it renders its decision." Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 419, 91 S.Ct. 814, 825, 28 L.Ed.2d 136 (1971); Thorpe v. Housing Authority, 393 U.S. 268, 281, 89 S.Ct. 518, 21 L.Ed.2d 474 (1968).
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178 Ariz. 425 (1994)
874 P.2d 982
Laurie SANBORN, Plaintiff-Appellee,
v.
BROOKER & WAKE PROPERTY MANAGEMENT, INC., an Arizona corporation; Del Pueblo Homes, Inc., an Arizona corporation; Lakewood Del Pueblo Limited Partnership, an Arizona limited partnership, Defendants-Appellants.
No. 1 CA-CV 93-0425A.
Court of Appeals of Arizona, Division 1, Department A.
April 11, 1994.
*426 Stockton & Hing by Robert Ong Hing, Thomas F. Ames, Scottsdale, for plaintiff-appellee.
Robert E. Siesco, Phoenix, for defendants-appellants.
OPINION
VOSS, Judge.
Appellants, by way of an accelerated appeal,[1] ask this court to reverse the trial court's award of treble damages and attorneys' fees to appellee, Laurie Sanborn. Because we find that appellants unjustifiably withheld an undisputed amount of wages, we affirm the judgment and award.
FACTS AND PROCEDURAL HISTORY
Appellee was employed by appellants on March 11, 1991, to sell homes in appellants' Lakewood subdivision. Appellee was promised a 1.5% commission on each home she sold, once the sale was final. During her tenure with appellants, appellee wrote sales agreements on a number of homes and collected commission advances of $4,500.
On January 31, 1992, appellee, through her attorney, made a demand for $18,588.10 in commissions she claimed appellants owed her on fourteen of the sales contracts she had written. Appellants responded on February 4, 1992, with a letter and attached ledger sheet claiming they owed appellee only $6,590.52. A check for this amount was included with the letter but was tendered as "full satisfaction of disputed balance for commissions." Appellee refused to endorse the check under those terms and returned it to appellants.
Appellants, after further review of their records, amended their ledger sheet to include two other sales for which appellee claimed commissions were due. Based on these changes, appellants made a revised offer of $9,976.97, again contingent on appellee accepting the check as full and final settlement. Appellee again rejected the offer and stated she would accept $15,750 as full and final settlement. This counteroffer was rejected and appellee filed her complaint on February 18, 1992.
On May 14, 1992, appellants made a third settlement offer, this time for $9,215.32. Appellee rejected this offer on May 19, 1992, and countered with her prior offer of $15,750, which was again rejected. On August 17, 1992, appellants filed a disclosure statement in compliance with Rule 26.1, Arizona Rules of Civil Procedure. In it, appellants stated: "Defendant admits, and has always admitted, that Plaintiff is entitled to some amount for commissions.... [B]ased upon the commission *427 sheet which is annexed, Ms. Sanborn is entitled to $9,976.65."
Based on this admission, appellee's attorney wrote to appellants' counsel demanding immediate payment of $9,976.65 and warning that "[y]our client's failure to pay even this undisputed amount, would certainly leave them open to an award of treble damages...." Appellants failed to respond and appellee filed a motion for partial summary judgment for the $9,976.65.
After receiving appellants' response and appellee's reply and hearing oral argument on the issue, the trial court granted partial summary judgment and awarded appellee $8,589.05[2] trebled to $25,767.15 pursuant to Ariz. Rev. Stat. Ann. (A.R.S.) section 23-355 (1983). Judgment was entered for this amount plus costs, prejudgment interest, and attorneys' fees of $8,589.05. Appellants timely appealed.
DISCUSSION
A. Standard of Review
Because the material facts in this case are not in dispute, we review only whether the trial court properly interpreted and applied the pertinent statutes to these undisputed facts. Statutory interpretation involves legal rather than factual questions. Thus, we are not bound by the trial court's interpretation of the law and conduct our review de novo. Hampton v. Glendale Union High School Dist., 172 Ariz. 431, 433, 837 P.2d 1166, 1168 (App. 1992).
B. Treble Damages
An award of treble damages for unpaid wages is governed by A.R.S. section 23-355, which states: "If an employer, in violation of the provisions of this chapter, shall fail to pay wages due to any employee, such employee may recover ... an amount which is treble the amount of the unpaid wages." An employer is in violation of this chapter if it fails to pay wages due to a discharged employee "within three working days [of discharge] or the end of the next regular pay period, whichever is sooner." A.R.S. § 23-353(A) (1983). Withholding wages is forbidden unless "[t]here is a reasonable good faith dispute as to the amount of wages due...." A.R.S. § 23-352(3) (1983).
Preliminarily, we note that sales commissions are wages for purposes of these statutes. This is clear from the definition in section 23-350(5), which states: "`Wages' means nondiscretionary compensation due an employee ... for labor or services rendered... whether determined by a time, task, piece, commission or other method of calculation. Wages include ... commissions...." Accordingly, this chapter applies to the question of whether the trial court abused its discretion in awarding treble damages on appellee's outstanding commissions.
Appellants argue that they did not impermissibly withhold appellee's wages because: (1) they made good faith settlement offers before and during the litigation which exceeded the base amount eventually awarded to appellee; and (2) their disagreement with appellee's demands constituted a good faith dispute under section 23-352(3), which permitted them to withhold all outstanding wages without incurring treble damages.
Appellants' first argument is resolved by our holding in Patton v. County of Mohave, 154 Ariz. 168, 741 P.2d 301 (App. 1987). In that case, we held that a good faith effort to settle "is not synonymous with a good-faith refusal to pay the wages in the first place." Id. at 172, 741 P.2d at 305. We found that Mohave County acted unreasonably in claiming it did not owe its former employee anything. Id. We reached this conclusion because Mohave County's refusal to pay was based on negligently maintained wage records that it initially failed to investigate when the former employee pointed out discrepancies. Id. We held that although Mohave County eventually did an investigation, admitted it owed some money, and made a settlement offer for that amount, none of those actions obviated the county's prior unreasonable, bad faith refusal to pay. Id. *428 Given these holdings against a defendant which believed (albeit mistakenly) it owed nothing, appellants who knew and admitted from the beginning that they owed appellee a substantial amount of money cannot be excused from treble damages on the basis of their settlement offers.
We next address appellants' contention that under section 23-352(3), an employer who reasonably and in good faith disputes some portion of an employee's claim, may refuse to pay any part of the outstanding amount without fear of treble damages. We cannot agree with this interpretation.
It is true that the legislature did not intend to deter the litigation of good faith wage disputes, Apache East, Inc. v. Wiegand, 119 Ariz. 308, 312-13, 580 P.2d 769, 773-74 (App. 1978), and therefore Arizona courts have consistently held that treble damages should not be awarded in such good faith disputes. Schade v. Diethrich, 158 Ariz. 1, 13, 760 P.2d 1050, 1062 (1988); Abrams v. Horizon Corp., 137 Ariz. 73, 78, 669 P.2d 51, 56 (1983); Patton, 154 Ariz. at 172, 741 P.2d at 305; Quine v. Godwin, 132 Ariz. 409, 413, 646 P.2d 294, 298 (App. 1982); Apache East, 119 Ariz. at 312, 580 P.2d at 773. No Arizona court, however, has ever decided whether section 23-352(3) permits an employer to withhold liquidated amounts based on a dispute over a portion of the total wage claim. Indeed, our supreme court specifically declined to answer this question in Abrams. The court stated: "We ... find it unnecessary to address at this time a narrower issue posed by the parties, that is: where a good faith dispute exists as to part of the individual claim for wages due, must an employer tender the liquidated portion of the claim to avoid treble damage liability?" 137 Ariz. at 78 n. 3, 669 P.2d at 56 n. 3. This is the question we address today.
Appellants contend they were justified in withholding the entire amount of appellee's wages because her demands were "excessive" and constituted "overreaching." Essentially, appellants admit they withheld the wages simply because they were offended by appellee's efforts to extract more money from them. Appellants' subjective response to appellee's position, however, is immaterial to the issue of her entitlement to the undisputed portion of the amount she was requesting, and gives appellants no legal justification for withholding such amounts.
Here, it is undisputed that appellee was entitled to the $8,589.05 she eventually received. Yet appellants refused to pay any amount unless appellee agreed to accept the offered sums as full accord and satisfaction of all her claims. We do not believe section 23-352(3) was intended to protect employers who take this approach. In our view, the statute was intended to provide employers with a shield from treble damage liability when they retain wages based on a good faith belief that they owe nothing more. It was not meant to give employers license to retain undisputed portions of unpaid wages for use as a sword in settlement negotiations. See Schade, 158 Ariz. at 14, 760 P.2d at 1063.
This conclusion is consistent with Arizona treble damage wage cases and the plain language of section 23-352. For example, in Patton we stated that the treble damages provision "is directed against employers who delay paying wages without reasonable justification." 154 Ariz. at 172, 741 P.2d at 305. And in Apache East our supreme court held that "the employer [withholds wages] at his peril" because "the court in its discretion may award treble damages" if it deems the withholding unreasonable. 119 Ariz. at 312, 580 P.2d at 773. In both cases, negligently kept wage records indicating little or no wages owed formed the basis of the employers' decisions to withhold funds. Yet both employers were found lacking reasonable justification for not paying their respective employees. This raises the question: if employers act in bad faith when their refusal to pay is based on sloppy records that reflect no outstanding amount owed, how can an employer be found to be acting in good faith in not paying wages which, according to its own records, it owes? In our opinion it cannot. Refusal to pay under such circumstances constitutes bad faith.
Our supreme court reached a similar conclusion in Abrams. In that case, the court held that treble damages were properly assessed on the portion of withheld commissions which the employer admitted owing. *429 137 Ariz. at 78-79, 669 P.2d at 56-57. At the same time, however, the court held that other commissions which the employer refused to pay on the basis of a dispute over interpretation of the employment contract were not subject to trebling because whether they were owed at all was a matter of good faith dispute over contract interpretation. Id. at 79, 669 P.2d at 57. These holdings clearly lead to the conclusion that only the portion of wages which is disputed in good faith is exempted from trebling under section 23-355.
Yet appellants would have us read the statute as allowing employers to withhold the total "wages due" if "[t]here is a reasonable good faith dispute as to the amount...." A.R.S. § 23-352(3). While the language of section 23-352(3) might support such a reading when viewed in isolation, the argument fails when this language is read in the context of the entire statute.
Under section 23-352, "[n]o employer may withhold any portion of an employee's wages" unless one of three statutory exceptions applies. Because the statute prohibits withholding any wages without justification, the logical conclusion is that only those wages to which an exception applies may be withheld. An analysis of the first two exceptions supports this interpretation. These exceptions allow an employer to withhold portions of an employee's wages pursuant to state or federal law (e.g., for income taxes), or based on a written agreement between the employer and employee (e.g., for a retirement fund). A.R.S. § 23-352(1), (2). Neither of these exceptions can be read as granting an employer the ability to retain an employee's entire paycheck based on a dispute over such withholdings. Thus, to be consistent, the third or "good faith" exception must be read as giving an employer permission to retain only that portion of wages which it disputes owing.
This reading is also mandated by the fact that an "amount of wages" usually is "due" because it has been withheld by the employer. Thus, for purposes of this section one can view "wages due" as synonymous with wages withheld. If the latter phrase is substituted for the former, the meaning of the good faith exception becomes crystal clear: "No employer may withhold or divert any portion of an employee's wages unless ... [t]here is a reasonable good faith dispute as to the amount of wages [withheld]." A.R.S. § 23-352. In our opinion this is the proper interpretation of this exception and the only one that is consistent with prior case law, legislative intent, and the language of the statute itself.
To hold otherwise would permit employers to hold large sums of unpaid wages hostage based on a good faith dispute over some small fraction of the total. Thus, we hold that failure to tender an unrestricted payment of wages that an employer has reasonably calculated it owes its employee, constitutes bad faith and exposes an employer to the possibility of treble damages under A.R.S. section 23-355.
As a policy matter this holding is just to all parties. Employers will not lose any rights by paying wages which they admit owing. To the contrary, voluntarily tendering undisputed amounts would be strong evidence of good faith and should protect employers from treble damages. Employees will also benefit by receiving at least the undisputed portion of their unpaid wages in a timely fashion. Once the admitted amounts are paid, an employee would still be free to litigate the remaining disputed portion, but at the peril of losing and possibly having to pay the employer's attorneys' fees. Likewise, the employer, if it chooses to litigate the disputed portion, also runs the risk of losing and paying attorneys' fees and may still face treble damages on the retained amount should its refusal to pay be deemed unreasonable. Thus, both parties will have an incentive to settle their dispute without litigation.
Here, appellants should have voluntarily made a non-contingent tender of whatever funds they admitted they owed appellee. Instead, appellants retained all outstanding commissions and made all offers contingent on appellee dismissing her claim. These actions constituted unreasonable, bad faith behavior and the trial court acted within its discretion in holding appellants liable for treble damages.
*430 C. Attorneys' Fees
Under A.R.S. section 12-341.01 (1992), the court may award attorneys' fees to the successful party in an action arising out of a contract. Here, appellants contend that appellee was not a "successful party" because the base amount awarded by the trial court was less than the amount appellee sought and less than the amount offered prior to trial by appellants. In the alternative, appellants contend the amount awarded was unreasonable and should be reduced. We disagree.
1. Was Appellee the Successful Party?
The decision as to who is the successful party for purposes of awarding attorneys' fees is within the sole discretion of the trial court, and will not be disturbed on appeal if any reasonable basis exists for it. Schwartz v. Farmers Ins. Co., 166 Ariz. 33, 800 P.2d 20 (App. 1990). While the award of money is an important item to consider when deciding who is the prevailing party, the fact that a party does not recover the full measure of relief it requests does not mean that it is not the successful party. Ocean West Contractors, Inc. v. Halec Constr. Co., 123 Ariz. 470, 473, 600 P.2d 1102, 1105 (1979). In Arizona, "a party [is] `successful' if he obtains judgment for an amount in excess of the setoff or counterclaim allowed." Id. Here, appellee was awarded $8,589.05, an amount far in excess of the setoff of $1,387.60 allowed by the court on appellants' illegality defense. Given that, we cannot say that the trial court acted unreasonably in deeming appellee the successful party.
Appellants, however, contend that the standard for determining who is a successful party and whether fees should be awarded is expressed in Wagenseller v. Scottsdale Memorial Hospital, 147 Ariz. 370, 394, 710 P.2d 1025, 1049 (1985), and Associated Indemnity Corp. v. Warner, 143 Ariz. 567, 570, 694 P.2d 1181, 1184 (1985), and ask us to overturn the award on the basis of that standard. Appellants misinterpret the law in two respects.
First, the factors listed in Wagenseller and Associated Indemnity are not a guide for deciding who is the prevailing party but rather are intended "to assist the trial judge in determining whether attorney's fees should be granted ... once eligibility has been established." Wagenseller, 147 Ariz. at 394, 710 P.2d at 1049 (emphasis added). Second, those factors do not dictate our review of a trial court's decision to award fees. As our supreme court has stated:
In reviewing the exercise of [the trial court's] discretion ...:
[T]he question is not whether the judges of this court would have made an original like ruling, but whether a judicial mind, in view of the law and circumstances, could have made the ruling without exceeding the bounds of reason. We cannot substitute our discretion for that of the trial judge.
Associated Indemnity, 143 Ariz. at 571, 694 P.2d at 1185 (citations omitted). Thus, while we consider the Wagenseller and Associated Indemnity factors, we do not substitute our own item-by-item analysis for that of the trial court.
Here, appellee's eligibility as the successful party was properly established and in light of the circumstances and the various criteria of Wagenseller, we cannot say that the trial court exceeded the bounds of reason in awarding attorneys' fees.
2. Was the Amount of Attorneys' Fees Unreasonable?
Appellants argue that the starting point for the attorneys' fee amount should have been the one-third contingency fee limit imposed by the fee agreement between appellee and her counsel and that certain items should have been subtracted from that figure. Appellants, however, cite no authority for this proposition. Although appellants are correct in their assertion that evidence of reasonableness is required even in contingency fee cases, Crews v. Collins, 140 Ariz. 80, 82, 680 P.2d 216, 218 (App. 1984), in our view, "`[t]he most useful starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate.'" Timmons v. Tuscon, 171 Ariz. 350, 357, 830 P.2d 871, 878 (App. 1991) (quoting Hensley v. Eckerhart, 461 U.S. 424, 433, 103 *431 S.Ct. 1933, 1939, 76 L.Ed.2d 40 (1982)). Once this "lodestar" figure has been calculated, other factors may be considered. Id.
Here, according to his affidavit, appellee's attorneys spent 110.8 hours on this litigation. We do not believe this to be an unreasonable or inordinate amount of time to spend on a case of this type over a fifteen-month period. Similarly, the hourly rate charged by appellee's attorneys ($115/hour) cannot be deemed excessive or unreasonable. Thus, we multiply these figures for a lodestar of $12,734. Comparing this theoretical "reasonable" fee to the $8,589.05 actually awarded, it is difficult to see how the smaller amount can be less reasonable than the larger. This remains true even if we agree with appellants that $1,739.50 of the fees was improper and should be subtracted. Subtracting that amount from the $12,734 lodestar would still leave a theoretical reasonable fee cap of $10,994.50, an amount more than two thousand dollars higher than the actual award. Thus, we cannot say that the trial court's decision to award $8,589.05 was an abuse of discretion.[3]
CONCLUSION
For all the foregoing reasons we find that the trial court did not abuse its discretion in awarding treble damages and attorneys' fees. Accordingly, the judgment and award are affirmed.
COSTS AND ATTORNEYS' FEES ON APPEAL
Appellee requests this court to award her attorneys' fees and costs incurred in connection with this appeal. This court has discretion to award attorneys' fees to the successful party under A.R.S. section 12-341.01. Wenk v. Horizon Moving & Storage Co., 131 Ariz. 131, 639 P.2d 321 (1982). In addition, under A.R.S. section 12-342 (1992), we are to award costs to the successful party on appeal. Appellee is the successful party in this appeal. Therefore, we award costs and attorneys' fees to appellee in an amount to be determined following appellee's compliance with Rule 21, Arizona Rules of Civil Appellate Procedure.
Appellee also requests this court to impose sanctions on appellants under Rule 25, Arizona Rules of Civil Appellate Procedure. Although we agree that appellants' arguments lacked merit, we do not find them so unsupported as to be frivolous. Appellee's request for sanctions is therefore denied.
GRANT, P.J., and EHRLICH, J., concur.
NOTES
[1] Accelerated appeals are usually disposed of by summary order and as a rule are taken off the accelerated track when they present issues of opinion value. See Rule 29(g). This case is a unique exception to the usual approach for two reasons: (1) no oral argument was scheduled, thus giving us substantially more than the normal three days in which to issue our decision, Rule 29(d); and (2) the case only presented two narrow issues. Practitioners should note that this unique combination of circumstances will rarely occur and result in an accelerated opinion.
[2] The trial court adjusted the $9,976.65 figure downward by eliminating $1,387.60 in arguably illegal commissions on two sales written by appellee after her real estate license connection with appellants' broker was severed.
[3] Although we view $10,994.50 as a reasonably supportable figure for fees, awarding this higher amount was impossible because the trial judge was limited to the agreed-upon 33.33% contingency fee. Associated Indemnity, 143 Ariz. at 570, 694 P.2d at 1184 ("The trial judge ... has broad discretion in fixing the amount of the fee provided that `such award may not exceed the amount paid or agreed to be paid.'" (Emphasis added.)).
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330 F.Supp. 1047 (1968)
Sol FANBURG
v.
CITY OF CHATTANOOGA, a municipal corporation of Tennessee, et al.
Civ. A. No. 4960.
United States District Court, E. D. Tennessee, S. D.
January 26, 1968.
Tollett J. Swafford, Excell Eaves, Chattanooga, Tenn., for plaintiff.
Ellis K. Meacham, Chattanooga, Tenn., for City of Chattanooga.
Morgan & Garner, Chattanooga, Tenn., for James "Bookie" Turner.
Schoolfield & Taylor, Chattanooga, Tenn., for Charles W. Bonner.
*1048 MEMORANDUM AND ORDER
ROBERT L. TAYLOR, District Judge.
Defendant, City of Chattanooga, has filed a motion for summary judgment or dismissal supported by answer and affidavits.
It is the theory of plaintiff, as set forth in the pretrial order, that on April 9, 1966, at approximately 9:00 A. M., Charles W. Bonner, who was a police officer employed by the defendant, City of Chattanooga, and while acting in the course of his duties as such police officer, was in the process of ticketing a motor vehicle whose operator had parked on the sidewalk in front of plaintiff's garage at 1409 McCallie Avenue, Chattanooga, Tennessee at the time the encounter took place between plaintiff and Officer Bonner. Defendant Turner was the duly elected and acting Commissioner of Fire and Police for the City of Chattanooga at the time the matters complained of occurred.
Plaintiff contends that he approached Officer Bonner, who was in the process of ticketing one of plaintiff's customers, and he was ordered to return to the garage property by Officer Bonner. Plaintiff contends that he obeyed the order, but when he was approximately eight feet away from the sidewalk, he was assaulted by Officer Bonner. After striking plaintiff a number of times, Officer Bonner took him to police headquarters and assaulted him again upon removing him from the police car. Plaintiff contends that Bonner was acting as an employee of said City of Chattanooga and was further acting under the direct supervision and control of the defendant Turner and that the action of Bonner was imputed to both the City of Chattanooga and to the defendant Turner.
Plaintiff further contends that he sustained multiple injuries to the head and facial fractures and is entitled to both compensatory and punitive damages from each of the defendants.
In another case in this District, in which the City of Loudon was a defendant, McArthur v. Pennington, D.C., 253 F.Supp. 420, this Court said, in part:
"The City of Loudon contends that it cannot be held as a matter of law for the alleged violation of plaintiffs' rights. (This was a case where the police officers of Loudon assaulted plaintiffs.) This phase of the case may be disposed of in short order. The City is right in this contention. It is not liable under the Civil Rights Statute. Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492. Sires v. W. R. Cole et al. (C.A. 9, July 17, 1963) 320 F.2d 877." p. 421
Further:
"The Court has held that the officers were acting as agents and representatives of the City of Loudon in the commission of what the Court has held wrongful acts against these plaintiffs and if the City were an individual or corporation, or a partnership, it would be liable in damages for such actions. However, the City is immune from liability for wrongful actions of its policemen committed while in the performance of their duties unless the City has waived immunity for such actions by the carrying of liability insurance." p. 429
The record indicates that the City of Chattanooga was without insurance covering the claims of plaintiff. The motion of the City, therefore, must be sustained.
Congress did not undertake to bring municipal corporations within the coverage of the Civil Rights Act. Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492, 505.
Defendant Turner has likewise made a motion for summary judgment upon the ground that there is no genuine issue for determination; that he had no personal knowledge of any of the incidents leading up to the arrest and altercation described in the pre-trial order; that he did not direct or order the arrest or altercation *1049 of the plaintiff and did not at any time confer with Officer Bonner in relation to the arrest and is not liable to plaintiff. He supports his motion by his own affidavit and those of Chief of Police McGovern and Captain Nelson.
Affiant Turner states that at no time preceding the arrest of plaintiff did he direct or order the arrest of Fanburg and did not confer with Bonner in relation to said arrest. Nor did he direct or order Officer Bonner to make the arrest and engage in the altercation that took place following the arrest.
The affidavit of Chief McGovern states that on April 8, 1966 (the arrest took place April 9, 1966) he advised Captain Nelson that a police officer was needed for a special traffic detail on McCallie Avenue. Captain Nelson inquired of Officer Bonner if he could perform the detail. He left the selection of the officer to perform the detail to Captain Nelson. Chief McGovern had no personal knowledge of the incidents leading up to the arrest and altercation. Chief McGovern was not directed or ordered by Commissioner Turner to arrest plaintiff and did not confer with Officer Bonner in relation to said arrest.
Officer Nelson, in his affidavit, stated that he was contacted by Chief McGovern on April 8, 1966 and directed to assign an officer to a special traffic detail on McCallie Avenue. He inquired if Officer Bonner would be suitable. The selection of Bonner was left to him. He instructed Bonner of his duties on the special detail. He had no special knowledge of what took place immediately preceding or at the time of the arrest. He was not directed or ordered by any of his superiors within the police department to arrest Fanburg and did not confer with Officer Bonner in relation to the arrest.
In his answer, Officer Bonner denies that he was under the direct supervision and control of defendant Turner. His direct superior was Captain Nelson. He denies that in making the arrest of plaintiff he acted in concert or conspired with any other person. He states that he was interfered with by plaintiff while performing his duties and that plaintiff attempted to draw a pistol on him, at which time he placed him under arrest.
In the discovery deposition, plaintiff stated that he had no knowledge of any witness that would testify that the City of Chattanooga, through its authorized representatives or otherwise, directed the arrest of plaintiff or the alleged assault which followed. He also testified in the discovery deposition that he knew of no witness who would testify in his behalf in that respect.
It is not claimed that Turner was present or personally participated in the arrest. Ordinarily, a chief of police or commissioner of police is not responsible for the acts of his subordinates unless he directs that such acts be done or personally cooperated in the offense. An officer acting under the general supervision of the chief is not sufficient to hold the chief of police or commissioner liable. Jordan v. Kelly, D.C., 223 F. Supp. 731.
In the absence of participation in conduct under color of law which deprives a plaintiff of rights, privileges and immunities secured to him by the Constitution, the chief of police or commissioner of police cannot be held liable for wrongful acts of his subordinates. Runnels v. Parker, D.C., 263 F.Supp. 271, 273.
In the opinion of the Court, the affidavits in support of the Turner motion and the absence of an allegation of fact by the plaintiff as a basis for liability against him, requires the Court to sustain the motion.
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141 F.3d 1186
98 CJ C.A.R. 1585
NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.
UNITED STATES of America, Plaintiff-Appellee,v.Harold Frederick KRUEGER, Defendant-Appellant.
No. 97-6262.
United States Court of Appeals, Tenth Circuit.
April 1, 1998.
Before BRORBY, BARRETT, and BRISCOE, Circuit Judges.
1
ORDER AND JUDGMENT*
2
After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R.App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument.
3
Harold Frederick Krueger appeals from the district court's order denying his motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. Appellant was convicted and sentenced on counts of conspiracy, mail fraud, wire fraud, and money laundering. Our jurisdiction arises under 28 U.S.C. §§ 1291 and 2553. Because appellant's § 2255 motion was filed after the enactment of the Antiterrorism and Effective Death Penalty Act of 1996, the certificate of appealability provision created by that act is applicable to his case. Cf. United States v. Kunzman, 125 F.3d 1363, 1364 n. 2 (10th Cir.1997), cert. denied, No. 97-8055, 1998 WL 86544 (U.S. Mar.30, 1998). The district court denied appellant a certificate of appealability. Therefore, appellant must demonstrate "a substantial showing of the denial of a constitutional right" before this court considers his appeal. 28 U.S.C. § 2253(c)(2).
4
Appellant presents six arguments on appeal. In his first two points, he challenges as false certain testimony of agent Barry Black and witness Crawford Cameron presented to the grand jury which indicted him. Before the district court, he contended that this and other allegedly false evidence demonstrated ineffective assistance of counsel, asserting that his counsel should have filed a pre-trial motion to dismiss the indictment. The district court concluded that this argument was moot in light of the jury's findings convicting appellant on all counts of the indictment and this court's affirmance of his conviction on sufficiency of evidence grounds. District Court Order at 5. We agree, and note that appellant does not challenge the district court's analysis or ruling on this point. His arguments on appeal do not demonstrate ineffective assistance of counsel.
5
Appellant's third and fourth arguments assert that certain evidence presented at trial was false. He alleges as false witness Mark Lippert's testimony regarding the dates of execution and notarization of a lease document. The district court ruled that because the lease itself was admitted as evidence at trial, the issue about the dates of execution and notarization was not falsely presented to the jury. Appellant argues that the lease document could not correct Lippert's allegedly false testimony, and contends that this evidence "was very material to destroying Appellant's veracity with the Jury." Appellant's Br. at 7. He also contends that the trial court erred in omitting testimony from Jane Hardin which would have demonstrated the existence of Barry Kent. The district court rejected this contention, noting that the matter was "fully explored" at trial, District Court Order at 3, and that evidence was presented on both sides. Appellant responds that omitting this evidence allowed the government to impeach his credibility and served as a basis for a sentencing enhancement. Because we agree with the court that evidence was admitted at trial from which the jury could have believed appellant's version of the facts on both of these points, and because credibility is the unique province of the jury, see United States v. Smith, 131 F.3d 1392, 1399 (10th Cir.1997), cert. denied, --- U.S. ----, 118 S.Ct. 1109, 140 L.Ed.2d 162 (1998), these arguments do not demonstrate error of constitutional magnitude.
6
Appellant's fifth point contends that the government's response to his § 2255 motion did not address all of his arguments and, therefore, the district court should have considered those matters admitted under Rule 8(d) of the Federal Rules of Civil Procedure. Our review of the government's response, however, indicates that the government addressed each of appellant's arguments, including those he specifically identifies on appeal. Further, we conclude that Rule 8(d) applies to factual averments, not legal argument. Appellant's final contention challenges the district court's order as incomplete. We have reviewed the court's order in light of his specific complaints and conclude that the district court thoroughly addressed all of the issues raised in appellant's § 2255 motion. This argument is without merit.
7
Because appellant's arguments on appeal fail to demonstrate a substantial showing of the a denial of a constitutional right, we deny appellant's application for a certificate of appealability. Accordingly, this appeal is DISMISSED. Appellant's request for a hearing on his § 2255 motion is denied as moot. The mandate shall issue forthwith.
*
This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3
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